Amendment of Danish Act on Working Hours

9 November 2023

What does the amendment entail? 

The key points of the bill are the following:

1. The registration requirement (and the exception of employees considered “self-organisers”)
2. Possibility of derogating from the maximum weekly working hours for certain employees ("opt-out")

Background on the amendment

The Working Time Directive has been implemented into Danish law through the Danish Act on Working Hours (in Danish: “arbejdstidsloven”). The bill shall implement the legal position set by the Court of Justice of the European Union in accordance with the Court’s case-law, as the Court has ruled on the understanding of the Working Time Directive in a number of cases, in particular C-55/18 of 14 May 2019 on Deutsche Bank concerning the registration of working hours. 

The registration requirement

The bill introduces an obligation for employers to register each employee's daily working hours. The aim is to ensure compliance with rules on maximum weekly working hours as well as daily and weekly rest periods. 

There is freedom of method to a great extent in relation to fulfilling the registration requirement. The following requirements are imposed on the time registration system: 

• the registration shall be done through a time recording system, which is objective, reliable and accessible;
• the registration shall be accessible to each worker during employment; and
• the employer must store the data for five years after the end of the period, on which the calculation of the employee's average weekly working time is based (i.e. at the end of the reference period of four months as set out in the Danish Act on Working Hours). 

According to the bill’s explanatory notes, compensation cannot be awarded to employees if the registration requirement is not complied with. However, non-compliance may have adverse procedural risk (in Danish: “processuel skadevirkning”) for the employer in a case concerning violation of an employee's rights. 

The registration requirement entails both administrative and financial consequences for many employers. For employers who have already implemented a time tracking system covering all employees in accordance with the requirements, the new rules will not have much impact. On the other hand, for employers without a time registration system, costs for purchasing and implementing such registration system are to be expected. 

The registration requirement will apply to all employees except for employees considered "self-organisers".

Self-organisers exempt from the registration requirement

As mentioned above, the purpose of the registration requirement is to ensure compliance with several working time requirements. However, self-organisers are exempt from these rules and, therefore, the registration requirement will not apply to these employees. 

The employment contract for a self-organising employee must state that the employee is self-organising and is, thus, exempt from the provisions of the Danish Act on Working Hours on maximum weekly working hours, rest breaks entitlements and duration of night work. Consequently, it will be necessary to update employment contracts for employees who can be regarded as self-organisers. 

Self-organisers are employees whose working hours cannot be measured or determined in advance because of the specific features of the work performed, or where it is determined by the employee her/himself who is able to make independent decisions or who have managerial rights. 

In an interpretative message regarding the Working Time Directive, the Commission communicated that self-organisers include for example certain experienced leaders  whose working hours are generally not measured or fixed in advance, since they are not obliged to be at the workplace at certain times but can independently determine their schedule. Similarly, certain experts, experienced lawyers in an employment relationship or academics who have considerable freedom to determine their working hours may be included as well. 

The concept is not exhaustively defined in the bill, and it will, therefore, depend on a specific assessment of what applies to the planning and determination of working hours in the individual employment relationship, and thus whether an employee is self-organising.

Derogation from maximum weekly working hours ("opt-out")

The bill also introduces an option for employers and employees to conclude an individual agreement permitting the employee to work for more than 48 hours per week on average. Such agreement can only be concluded for certain employees covered by a collective agreement. 

Furthermore, it is a condition that the most representative parties of the collective agreement have permitted that such individual agreements can be made. In addition, the option of derogating applies only to employees covered by provisions in a collective agreement concerning on-call time and who perform functions that are critical to society. Thus, the possibility of agreeing to opt-out in relation to the rule on maximum weekly working hours is relatively limited in its scope, when looking at the entire Danish labour market.  

For specific advice on the new rules, please contact Deloitte Legal.