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Duty to register working hours – bill sent out for consultation

A draft bill has been sent out for consultation that requires registration of working hours for each employee and allows deviation from the 48-hour rule for certain groups of employees

Written by

Sara Baldus

Elisabeth Krusegård Nielsen

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

In light of this decision, a working group has been set up under the Implementation Committee of the Ministry of Employment. The work of the working group has resulted in a draft bill to amend the Act on the Implementation of Parts of the Working Time Directive (the Working Time Act), which has now been sent out for consultation.

There are two main elements to the bill: first, it is proposed to introduce a duty to register employees’ working hours on an individual level. At the same time, it is proposed to exempt a significant group of employees from the rules on maximum weekly working hours and, thus, the duty to register. Second, it is proposed that deviations from the 48-hour rule can be agreed in collective agreements and local agreements in connection with on-call shifts and the like.

Registration of working hours
The bill means that employers must introduce 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 defined how such a system must or can be designed, and it is emphasised in the draft bill that there is a high degree of flexibility in terms of methodology. However, it is proposed to require that employees must be able to access their own information and that the information must be stored for 5 years.

It is also proposed that employees whose working hours cannot be measured or determined in advance, or employees who can organise their own working hours, and employees who can make independent decisions or have managerial functions, can be exempted from the rules on maximum daily/weekly working hours. These groups of employees are sometimes referred to as “self-organisers”. It will be a requirement to state in the employment contract that the employee is exempt from the rules. The question of which employees will ultimately be exempted from the rules will depend on a specific assessment, but in the draft bill it is assumed that the scope of this exemption will be limited.

Possibility of ”opt-out” in collective agreements
In the draft bill, it is proposed to use a provision in the Directive that allows derogation from the 48-hour rule under certain conditions – a so-called “opt-out” agreement. So far, it has not been possible to make opt-out agreements in Denmark.

In order to be able to make an opt-out agreement, the most representative parties in the labour market must agree that individual agreements can be made in a given area covered by a collective agreement that employees may work more than 48 hours per week on average – but generally no more than 60 hours per week on average over a 4-month period.

It is a condition for using this exemption option that the employees perform functions that are critical to society within certain areas, e.g. necessary continuity, on-call activities or within the hospital area, utilities and similar infrastructure. The employees must also be covered by the provisions in the collective agreement regarding on-call shifts, and it must be possible for the employees to withdraw their consent to an increase in working hours at any time.

In connection with 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.

The draft bill currently proposes that the effective date is 1 January 2024.

Norrbom Vinding will follow the legislative process and provide an update when there are any new developments in this regard.

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