The Ministry of Employment has submitted, for consultation, a draft bill amending the Act implementing parts of the Working Time Directive and the Labour Court and Trade Union Arbitration Tribunals Act. According to the draft bill, the law will enter into force on 1 January 2024
The draft bill contains two main amendments, one of which has been proposed based on an agreement between DA, FH and Akademikerne. One of the main amendments is the implementation of the exemption clause in the Working Time Directive, according to which it is permissible for an employee and an employer to agree to a working week more than 48 hours on average per week (the so-called “opt-out”). The second is the introduction of a requirement to record employees’ daily working hours (although certain employees are exempt from this registration requirement).
“Opt out” agreement
According to the bill, the limit on average weekly working hours of 48 hours (over a seven-day period calculated over a period of 4 months), including overtime, remain in force and unchanged. In the draft, it is proposed that the main representative labor market parties in Denmark can agree that employees can work more than 48 hours a week on average (“opt-out”) with individual agreements, however this will only be relevant in the collective agreement arena.
Furthermore, the proposal means that the opt-out agreement can only be concluded for employees who are covered by collective agreement provisions relating to on-call time and who perform functions critical to society. As the new provision is worded, the opt-out agreement will not be applicable to individual agreements outside the areas covered by collective agreements.
The draft bill also contains recording keeping requirements for employers on the working time of their employes. Pursuant to the draft bill employers will be obliged to introduce objective, reliable, and accessible working time registration systems to measure the daily working hours of each employee. The proposal is to ensure compliance with the rules on daily and weekly rest periods and maximum weekly working time.
Furthermore, employees must have access to their own information in the working time registration system, and the employer must store registered information for a period of 5 years.
It is clear from the comments to the preparatory works to the bill that employers will have a high degree of freedom to decide the method of recording working time.
In addition, it is proposed that sections 3 (breaks), 4 (48-hour rule) and 5 (normal working hours for night workers) of the Act do not apply to (i) employees whose length of working hours cannot be measured or determined in advance due to special features of the work performed, or (ii) employees who can make independent decisions or who have managerial functions.
Therefore, the registration requirement should not apply to the employees covered by this exemption. The employee’s employment contract must state that the provisions do not apply.
The above should be taken into consideration when drafting new employment contracts and Mette Klingsten can assist you with this if required.
Update on 14 November 2023
The bill has been presented in the Danish Parliament on 8 November 2023.