For the Luxembourg Court, bosses must measure "daily working time"

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Are clocking machines going to multiply in companies? This is one of the questions that comes to mind when you read a judgment delivered on Tuesday 14 May by the Court of Justice of the European Union (CJEU). This court, based in Luxembourg, concludes that the Member States are obliged to oblige employers to introduce a system "To measure the daily working time of each worker". The decision does not – a priori – call into question the existing legislation in France, but it reaffirms more vigorously the need to ensure the effective respect of the rest periods to which persons in activity are entitled. Which inspires a little perplexity among human resources directors (HRD).

The case examined by the CJEU is a result of the Audiencia Nacional – the Central Court in Spain. It sought to shed light on the European rules on "The arrangement of working time" and "Improving the safety and health of workers". His request was made following a dispute between a trade union organization – the Federación de Servicios de Comisiones Obreras (CCOO) – and Deutsche Bank: the first criticized the second for not having instituted a "Recording of daily working time" employees, even though, in his view, the national law as well as the European texts provide for it.

Modalities defined by the Member States

This legal analysis was challenged by Deutsche Bank, in the name of the jurisprudence of the Tribunal Supremo – the Spanish Supreme Court. To be sure, the Central Court of Madrid had asked the CJEU for its opinion.

The judgment rendered Tuesday is very affirmative: "Read in the light" of the Charter of Fundamental Rights of the EU, the European directives "Oppose" national regulations that do not impose on employers "An objective, reliable and accessible system for measuring the length of daily working time". Such procedures are essential, underlines the Luxembourg Court, in particular from the point of view of the "Health" and "Resting" of the worker. The authority considers that:

"The worker must be regarded as the weaker party in the employment relationship, so that it is necessary to prevent the employer from having the option to impose a restriction on his rights. "

The CJEU does not provide ready solutions to ensure respect for these principles: it is up to the Member States to define "The practical arrangements for implementing such a system, in particular the form that it must take", knowing that "Particular peculiarities" to each sector or " some companies " can "Where appropriate", be taken into consideration.

Read also No, French employees work no less than their neighbors

"It's the return of the timekeeper"

Evaluating the impact of this judgment for France is not obvious, given the diversity of situations and standards in force. In the private sector, employees may be subject to very different schemes: for example to collective schedules, applying uniformly to all staff, or individualized.

Another option, very common among executives: working time can be determined in days over the year – not hours; in this case, a convention called "Custom-days" is put in place, thanks to a collective agreement that sets a number of conditions (categories of employees concerned, number of days worked, etc.). Whatever the scheme chosen, limits are set, in particular so that the person enjoys rest periods (at least 11 hours between two days of work and 35 consecutive hours per week).

Therefore, how to comply with the decision pronounced Tuesday in Luxembourg? "It's the return of the timekeeper", sighs Jean-Paul Charlez, president of the National Association of HRD, commenting on the judgment of the CJEU, which refers, according to him, "At another time". The diagnosis of Mr. Charlez is however far from unanimous. "Our labor code already plans to count the hours of work of each employee, reminds Antoine Lyon-Caen, professor emeritus of labor law at the University of Nanterre. For example, for those in a workshop or department who are subject to different collective schedules, the employer must record the start and end times of each work period. " In other words, the bosses, in line with the law, will not have to change their practices, since they must have a clear idea of ​​the time that their employees spend on their business.

"More weapons for employees"

As for the legislation, it will not have to be adapted, one assures the ministry of work, including for the flat-rate employees, since it obliges the employer to " make sure(R) regularly that the workload of the employee is reasonable and allows a good distribution, over time, of his work ». "This decision of the CJEU should not have any impact on the texts applicable in France, in particular for everything relating to the fixed-days, says Lyon-Caen, but it makes a very firm reminder of the rules to be respected in terms of working time and workers' health. "

"This decision gives additional weapons to employees, who want to seize the judge as a result of a conflict with their employer," said Me Beatrice Bursztein.

Honorary Dean of the social chamber of the Court of Cassation, Pierre Bailly thinks moreover that "The most interesting in this stop" live in "The repeated reminder of the existence of a fundamental right, guaranteeing health and safety at work and the obligation of the labor judge to interpret his national law to that effect".

It is, therefore, very possible that the decision of Tuesday feeds litigation. "It gives additional weapons to employees, who want to seize the judge as a result of a conflict with their employer over unpaid overtime or a workload so large that it prevents the respect of rest periods", estimates Me Beatrice Bursztein, lawyer specializing in labor law. In these lawsuits, the flat-days are likely to be a target of choice: conventions that had put in place in several sectors have already been invalidated by the Court of Cassation, on the grounds that they did not guarantee enough than "Amplitude and workload are reasonable".

Article reserved for our subscribers Read also The days package does not exempt the employer from measuring the workload of the employees

Bertrand Bissuel

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