One year with the amendment to the Danish Working Hours Act – what has happened?

On 1 July 2024, an amendment to the Danish Working Time Act came into force.

• The amendment to the Act introduced the possibility, under certain conditions, to derogate from the rules on maximum weekly working hours (the 48-hour rule) in selected parts of the labour market (the so-called ‘opt-out’ scheme). In addition, a registration requirement was introduced, making it mandatory for employers to measure and record the daily working hours of each employee in an objective, reliable and accessible working time recording system with the aim of ensuring compliance with the rules on daily rest periods, weekly rest periods and maximum weekly working hours.
• The amendment also introduced a new concept into Danish law: self-organiser. According to the legislative history, the concept is intended to cover employees who are not subject to the registration requirement.

The concept of self-organiser one year later – have we become any wiser?

The industrial arbitration tribunal’s award FV2023.915, issued on 7 January 2025, contributes to the understanding of the concept of self-organiser. In the award, the arbitrator considered when an employee can be considered a ‘self-organiser’ and thus whether this employee can be exempted from, among other things, the 48-hour rule and the requirement for time registration. In this case, it was undisputed that the employee had worked more than 48 hours per week on average twice over a period of four months.

An employee may be covered by the exemption for self-organisers if the length of working time cannot be measured and/or determined in advance due to the special nature of the work performed, or if the employee can determine their own working hours, such as employees with management functions or the authority to make independent decisions. However, a specific and individual assessment of the employee's employment relationship must always be made. The decisive factor is whether the employee himself has ‘significant influence on the organisation of the work’ and can thus be considered a self-organiser.

In the award, the arbitrator referred to the following in the preparatory work for the Working Time Act, which refers to the case law of the Court of Justice of the European Union and the Commission's assessment of Article 17(1) of the Working Time Directive concerning the exemption self-organisers:

“It appears, inter alia, that the provision could cover ‘certain senior managers’ and ‘certain experts, experienced lawyers in an employment relationship or academics who have considerable freedom to determine their working hours. It also appears that the provision must be interpreted as meaning that its ‘scope is limited to what is strictly necessary to safeguard the interests that these exceptions allow to be protected’ and that ‘such an exception cannot be interpreted broadly to apply to an entire category of workers.’ Furthermore, it appears that ‘the exception does not apply to workers whose working hours ... can only be determined in part by the workers themselves.’ Finally, it is stated, among other things, that the scope of Article 17(1) is ‘quite limited.’”

In addition, the arbitrator emphasised that the term ‘academics’ refers to researchers, etc., and not to academically educated employees in general.

The employee was not a self-organiser

The arbitrator found that the employee's position was not comparable with the examples covered by the exception mentioned above.

The question was then whether there were specific circumstances that could justify the employee being considered self-organised. The arbitrator emphasised that the employer's description of the employee's opportunities for flexibility and self-organisation was subject to a number of reservations in relation to what was ‘within the scope of the tasks to be performed’, ‘compatible with the tasks’ and ‘within the given deadlines’.

On this basis, the arbitrator found that the employee's influence on the length of working hours and the organisation of work was not sufficient for the employee to be considered self-organising. The employee was therefore covered by the 48-hour rule.

However, there had been no specific violation of the 48-hour rule, as the arbitrator found that the calculation of the 48-hour rule in the employee's case should be based on a reference period of 12 months and not 4 months, which is otherwise the starting point, as the employee was covered by a collective agreement with a 12-month reference period.

Littler notes

The award contributes to the understanding of when an employee can be considered a self-organiser and thus exempted from the registration requirement and the 48-hour rule. Whether an employee can be considered a self-organiser will always depend on a specific individual assessment. The exemption for self- organisers must be interpreted narrowly and cannot apply to an entire category of employees. The employee in the ruling was not considered to be a self-organiser despite the fact that she could decide for herself when she came and went, when she performed her tasks, and in what order (as long as she complied with the set deadlines and frameworks for completing the tasks) and regardless of the fact that she was employed without maximum working hours.

Littler is following the development and the contribution of future decisions to the understanding of the working time rules.

Disclaimer: This article is not and should not be considered legal advice.