The long-awaited bill, which introduces a requirement for registration of working time for each individual employee and provides the opportunity to derogate from the 48-hour rule for certain employee groups, has been submitted to the Parliament. The effective date has been postponed to 1 July 2024

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In 2019, the European Court of Justice delivered its decision in the so-called Deutsche Bank case, establishing that the Working Time Directive obligates Member States to require employers to set up a system to measure the length of each individual employee’s working time.

In light of the decision, a working group has been set up under the Implementation Committee of the Ministry of Employment. As a result of this work, a bill to amend the Act on Implementation of Parts of the Working Time Directive (the Working Time Act) has been presented to the Parliament following a consultation process.

The bill has three elements: First, it is proposed to introduce a requirement to register employees’ working hours on an individual level. Second, it is suggested to exempt employees who can be characterised as “self-organisers” from the rules on, among other things, maximum weekly working hours. Finally, it is proposed that derogations from the 48-hour rule can be agreed in collective agreements in connection with, for instance, on-call shifts.

Registration of working hours and self-organisers
The bill provides that employers must implement an ”objective, reliable and accessible” system for registering the individual employees’ daily working hours in order to ensure and be able to document compliance with the rules on rest periods and maximum weekly working hours. It is not further specified how such a system must or can be designed, and the bill emphasises that there is a high degree of flexibility in terms of method. However, it is proposed to require that employees must be able to access their own information and that the information must be stored for five years.

It is further proposed that employees 1) whose working hours have a length that cannot be measured or determined in advance, or who can organise their working hours themselves, and 2) who can make independent decisions or who perform managerial functions can be exempted from the rules on maximum weekly working hours, night work and breaks. Employees who meet both conditions can be referred to as “self-organisers”. In order for the exemption to apply, it must be stated in the employees’ employment contract that the rules are not applicable. Ultimately, the question of which employees may be exempted will depend on a specific assessment, but in the bill it is assumed that the scope of the exemption will be limited.

Further, if self-organisers are exempted from the working environment rules on daily and weekly rest periods, such self-organisers will also be exempted from the requirement to register their working time.

Possibility of opt-out in collective agreements
The bill proposes to use a provision in the Working Time Directive that allows for derogation from the 48-hour rule subject to certain conditions – a so-called ”opt-out agreement”. Until now, it has not been possible to make opt-out agreements in Denmark.

In order to enter into an opt-out agreement, the most representative social partners must agree that, in a given collective agreement area, individual agreements can be made for employees to work more than 48 hours per week on average. In general, employees with such an agreement may work a maximum of 60 hours per week on average over a 4-month period, but in certain cases the reference period in an opt-out agreement can be extended to 12 months and the average weekly working hours can exceed 60 hours.

It is a condition for using this exemption option that the employees perform socially critical functions within certain areas, such as necessary continuity, on-call activities or within the healthcare sector, the utility sector and similar infrastructure. The employees must also be covered by provisions in a collective agreement regarding on-call shifts, and it must be possible for the employees to withdraw their consent to increase the working hours at any time.

Already in the collective bargaining negotiations earlier this year, the possibility of opt-out was introduced in a number of collective agreements, which will, however, only come into force if or when legislation so allows.

Effective date postponed to 1 July 2024
When the draft bill was announced in mid-September 2023, the proposed effective date was 1 January 2024. However, based on consultation responses from the social partners, the effective date has been postponed to 1 July 2024. This means that employers will have significantly more time to put in place systems to register working time.

Norrbom Vinding will follow the legislative process and provide an update when there is new information.

The content of the above is not, and should not be a substitute for legal advice.