Amendments to the Social Penal Code - Sanctions for non-compliance with flexible working hours provisions

On 21 June 2024, the law amending the Social Penal Code was published. These amendments came into effect on 1 July 2024. With this legislative change, several sanctions related to non-compliance with the provisions on flexible working hours have also been introduced.

Introduction in the company

If a company wishes to implement flexible working hours, this must be established through either a collective labour agreement (CLA) or the work rules. Such a flexible working schedule includes fixed periods during which the employee must be present (“core hours”) and variable periods during which the employee chooses the start and end times of the workday and breaks (“flexible hours”).

The CLA or work rules must specify at least the following:

• the average weekly working hours that must be observed within a reference period of three calendar months (or another duration, with a maximum of one year);
• the core hours (the mandatory presence hours in the company);
• the flexible hours (the variable periods during which the employee determines their arrival, departure, and breaks). The daily working hours must be limited to 9 hours;
• the number of hours that can be worked below or above the average weekly working hours (maximum 45 hours/week);
• the number of hours worked more or less than the average weekly working hours, which at the end of the reference period can be subject to a transfer (maximum 12 hours, which can be increased by the CLA).

Time tracking

A time tracking system must be provided, which must be accessible to both the employee and the inspection authorities. This time tracking system must contain information about:

• The identity of the employee;
• The duration of their work performance per day;
• For part-time employees with a fixed schedule: the start and end times of the workday and breaks.

This information must be retained for five years after the day to which it pertains.

The employee must also be able to track how many hours they have worked more or less than the average working time during the reference period.

Sanctions

If the employer does not include all the mandatory details in the work rules, a level 1 sanction (an administrative fine of EUR 80 to 800) can be imposed.

From July 1, 2024, a level 2 sanction (a criminal fine of EUR 400 to 4000 or an administrative fine of EUR 200 to 2000) will be applied for non-compliance with legal provisions regarding flexible working hours, specifically:

• failure to provide a time tracking system that includes the data required by law for each employee;
• failure to provide a time tracking system that allows the required data to be maintained throughout the ongoing reference period;
• failure to take necessary measures to ensure that the time tracking system can be accessed by every employee working under a flexible schedule and by social inspection authorities;
• not adhering to the five-year retention period;
• failing to ensure that the employee is aware of the exact number of hours worked more or less than the average weekly working hours based on the flexible schedule during the reference period;
• allowing the employee to work outside of the core and flexible hours.

The fine will be multiplied by the number of affected employees (up to a maximum of 100).

Action point

Since non-compliance with the provisions on flexible working hours will be sanctioned from 1 July 2024, it is even more important for employers to:

• include the correct provisions in the work rules;
• provide a time tracking system that complies with legal requirements;
• ensure that employees do not work outside of the core and flexible hours.