ECJ ruling on the 17-week average rule
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Why is trust-based working time so controversial? In this blog, we will tell you what trust-based working hours really mean, what opportunities and risks they entail and which legal regulations employees and employers must observe.
Trust-based working hours: flexibility or control and transparency through time recording?
Why is trust-based working time so controversial? In this blog, we will tell you what trust-based working hours really mean, what opportunities and risks they entail and which legal regulations employees and employers must observe.
A long overdue clarification
At the same time, the average working time within a 17-week calculation period must be 48 hours must not be exceeded.
If there is also travel time, a distinction can be made between the following:
- Active travel time: In this case, the active travel time including working time may not exceed 48 hours in the 17-week calculation period
- Passive travel time: If there is passive travel time (passenger in a car, train journey, airplane), the maximum limits can be exceeded, but must be regulated according to the Working Hours Act depending on the company agreement or in a written individual agreement.
But how do you calculate the average maximum limit of 48 hours correctly?
Do you calculate weeks 1-17, 18-35,...etc. or do you calculate weeks 1-17, 2-18, 3-19,...etc.? In both cases you have an average of 17 weeks, but how do you interpret the 17/48 rule correctly?
This question has now been answered by a new Judgment of the European Court of Justice (11.04.2019, C-2554/18 Syndicat des cadres de la sécurité intérieure).
The whole thing was set in motion after the union of internal security managers filed a complaint with the Conseil d'État in France to have the provision annulled.
The Conseil d'État therefore turned to the ECJ and asked for clear clarification as to whether the calculation periods for complying with the average maximum working time limit of 48 hours were not only:
- can be calculated using fixed calendar days with start and end dates
but also
-must be complied with at all times in a constantly changing period of 17 weeks that can be calculated forwards and backwards.
In its judgment C-254/18, the ECJ states,
'that a national system for calculating the average weekly working time may provide for reference periods beginning and ending on fixed calendar days, provided that it contains mechanisms capable of ensuring that the maximum average weekly working time of 48 hours is observed during each six-month period divided into two consecutive fixed reference periods'
This means that EU member states are free to determine the reference periods of their choice - provided that the "protection of the health and safety of workers" is guaranteed. This means that employees are protected from excessive peaks in overtime and the distribution of working hours is more balanced.
In concrete terms and strictly speaking, this means that the HR department has to calculate every day whether the average maximum work limit for the last 17 weeks has been adhered to.
This is where Personalwolke comes into play.
With our digital time recording system we provide you with an evaluation tool that allows you to create a report with just a few clicks, in which you can analyze the Total & the average of the last 17 weeks.
This way you are on the safe side, can react in good time and are legally protected to avoid administrative penalties, additional claims or other unpleasant consequences.
