ArticlesWorking time and its recording

The discussion (and the reactions) on the bill for the extensive but also important reform of the labor law-the consultation on which was completed quite recently (: May 27, 2021) have recently been becoming increasingly intense. Among the issues it deals with are those concerning the working time and his recording. The relevant time limits have already occupied us in our previous article. On the occasion of this draft law, it is worth taking a special look at the relevant issues, in the light of European legislation and jurisprudence and what is currently in force in our country.


Directive 2003/88 on working time limits

In general

Directive 2003/88 concerns the organization of working time and aims to improve the safety, hygiene and health of employees at work. It requires that adequate rest periods for rest be available to employees (5).

In this context, this Directive proceeds to a very specific definition of the minimum daily and weekly rest periods. Also: the maximum limits of weekly working time. On the contrary, the maximum daily working time limits follow a contrario.


The working time limits

In particular, as regards the minimum time limits for daily and weekly rest, this Directive provides that:

With a reference period of twenty-four hours: Every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period (Article 3).

With a reference period of a week: Every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred above (article 5 §1).

It follows, a contrario, that the daily working hours may not exceed thirteen hours.

At the same time, the above Directive explicitly stipulated that in a period of seven (7) days, the working time may not exceed, on average, 48 hours (including, in fact, overtime – article 6.b’).


Imposition of obligations in the Member States

This Directive requires Member States to comply with its minimum standards of minimum daily and weekly rest time and maximum weekly working time. It does not, however, specify how Member States will ensure the implementation of its provisions, which is left at their discretion. Based on the “wording” of the Directive, the Member States are obliged to take the “necessary measures” in order to be compatible with the minimum protection limits set by the Directive as a whole.


The requirements of the ECJ – The recording of daily working time

However, the discretion of the Member States and its threshold for taking the “necessary measures” is judged and limited by the ECJ. The national provisions of each Member State may not invalidate the minimum protection requirements laid down in Directive 2003/88 (Case: C-55/18, paragraph 43).

The ECJ also accepts, of course, that Member States must guarantee compliance with the above minimum rest periods. Also, they must prevent any exceeding of the maximum weekly working time. In this way, the full effectiveness of this Directive is ensured (Case: C-55/18, paragraph 43).

The ECJ further acknowledges that Directive 2003/88 does not specify the specific way in which Member States are required to provide the above guarantees. It acknowledges, however, that, despite the discretion of the Member States, the latter must guarantee the full and practical effectiveness of the minimum requirements of the Directive. In other words: to ensure, in fact, that employees have the minimum daily and weekly rest periods and that the upper limit of the average weekly working time is observed (Cases: C-14/04, Paragraph 53, C 484/04, paragraphs 39 and 40, C-243/09, paragraph 64).

In the same context, the ECJ requires that, in order to ensure the practical effectiveness of Directive 2003/88, Member States should oblige employers to implement an objective, reliable and easily accessible system for measuring the daily working time of each employee (Case: C-55/18, paragraph 60). On the contrary, it accepts that the obligation to record only overtime does not achieve the purpose of the Directive and is incompatible with it (Case C-55/18, paragraph 52).


Our national law – The time card

The obligations of the employer

It is known in our national law that, at least to date, there is no corresponding obligation to record the daily working time of each employee.

The employer, in particular, is obliged to register in the information system ERGANI (article 36 par. 1 law 4488/2017):

(a) Any change or modification of the working hours or the organization of the working hours of the employees, no later than the day of the change or modification of the working hours or the organization of the working hours (and in any case before the provision of work by the employees),

(b) any “overwork” and

(c) any legal overtime.

The obligation to record working time in our country is therefore limited to recording in the ERGANI the (legal) exceeding of working time limits. Therefore, Greece must, under EU law, establish a system for recording the total daily working time of each employee. The choice of registration system is at the discretion of the Member State. Therefore, it does not matter if it will be in digital or physical medium.


The (ten-year long) discussion about the time card

Despite the non integration of a system for recording the total daily working time in our national law, the institutionalization of the time card took place a decade ago.

In particular, Law 3996/2011 provides that “Under the responsibility of companies, IKA – ETAM is informed daily and in real time about the working time, the arrival and departure time of the employees of the company who are subject to the insurance of IKA – ETAM. This procedure is done by using a time card in an electronic staff presence clock (hourly measurement) and the data are transmitted electronically or otherwise to IKA – ETAM… “(article 26 par. 1. a΄ and b΄).

However, the above provision has not been applied. In particular, the necessary Ministerial Order was never issued, which would set out the technical specifications for the implementation of the provision on the time card. In addition, the budget feasibility study, which was envisaged for the implementation of this measure, was never completed (article 26 par. 6 of law 3996/2011).

Then, with Law 4144/2013, it was provided that: “The employer is obliged to register in the information system of the Ministry of Labor, Social Security and Social Solidarity “ERGANI” any change or modification of working hours or organization of working time of employees, no later than the day of the change or modification of the working hours or the organization of the working time, and in any case before the provision of work by the employees, as well as before the provision of the “overwork” and the legal overtime” ( article 80 par. 1 par. a).


The bill

The (new) provision of the time card

The bill mentioned in the introduction provides, among its other regulations, for the institutionalization of the digital time card (article 74 of the bill). It is provided, specifically, that the “Businesses – employers are obliged to have and operate an electronic system for measuring the working time of their employees, directly connected and interoperable, in real time, with the ERGANI INFORMATION SYSTEM II “(article 74 par. 1 of the bill).

“Work time is measured using a digital time card. When used, it is recorded in real time in the ERGANI INFORMATION SYSTEM II any change concerning the working time of the employees, such as, in particular, the start and end time of the work, the break, the exceeding of the legal working hours and any kind of leave” (article 74 par. 2 of the bill).

The concerns

The above provision of the digital time card seems, at first, compatible with the requirements of the ECJ. However, there are some concerns regarding the implementation of this measure. They are basically (also) related to the outstanding issues that need to be regulated by the Ministerial Orders to be issued. Among others those concerning: (a) the Digital Time card (article 79 par. 1 of the bill), (b) the protection of personal data (article 79 par. 2 of the bill), (c) the characteristics of the enterprises (field, size, type) to which the digital time card system will be applied and (d) the employees who will fall into the category of executives (article 79 par. 4 of the bill).

Finally, particular concerns are raised about the consequences that arise when the employee inadvertently omits the mandatory registration (because they forgot, for example, to “pass” the digital card from the recorder).

The bill provides that “If, during the on-site inspection in a company, it is found that the digital card of an employee is not activated, a fine of ten thousand five hundred (10,500) euros is imposed on the employer per employee who does not have an activated digital card. In the event that in three audits, within a period of twelve (12) months, the violation of the present is ascertained, a temporary cessation of operation of the company is imposed for a period of fifteen (15) days. (Article 74 §4 of the bill).

A fine of €10,500 is already provided in cases of undeclared work. On the contrary, in cases where during the on-site inspection discrepancies are found between the staff schedule on a given day and the (declared) employees, the fines reserved are much lower.

It seems, therefore, illogical to equate the fine for undeclared work with the case of (involuntary) error in recording the employee’s daily schedule. Therefore, the “non-activated card” case should be clearly identified. The same treatment cannot be reserved in the case where the digital time card was never activated by an employee of a specific company and in the case that on a specific day the employee, by mistake, did not activate it.


The Greek legislator has shown obvious, until today, cowardice in adopting what is provided by the European legislation for the working time limits. Also, for the implementation of those measures that it adopted for the confirmation of the working time limits (: time card).

It is already time, on the one hand, to align with the relevant directions of European legislation and, on the other hand, to adopt the necessary measures for its enforcement.

Let’s hope that the bill that will eventually be passed will manage to achieve the necessary balance (also in terms of working time limits) between European legislation and case law, employees’ rights and, of course, the promotion of entrepreneurship


Stavros Koumentakis
Managing Partner


P.S. A brief version of this article has been published in MAKEDONIA Newspaper (June 13, 2021).


Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

Stavros Koumentakis
Nikis Avenue & 1, Morgenthau st., 54622 Thessaloniki
(+30) 2310 27 80 84

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