Mandatory registration of working time as of 2027: the clock is ticking

Already in 2019, the European Court of Justice required EU Member States to impose an objective, reliable and accessible system for measuring working time on their employers. Belgium is one of the four EU Member States where this has not yet been implemented.

In its coalition agreement, the government announced that it would address this issue by 1 January 2027.

In the meantime, a draft bill has been drawn up and has already been submitted to the National Labour Council (NLC) for its opinion. However, the draft bill has yet to be submitted to Parliament, so that it may still be subject to amendment.

We outline the key points below based on the advice of the NLC.

1. What exactly is this about?

The draft bill introduces a new article 38quinquies in the Employment Act of 16 March 1971. This article obliges every employer to set up a system allowing the daily and weekly working time of each employee to be registered in an objective and reliable manner.

The intention is to bring Belgian legislation in line with EU Directive 2003/88/EC of 4 November 2003 relating to  the organisation of working time, as interpreted by the European Court of Justice (ECJ). The ECJ ruled in its judgment of 14 May 2019¹ that such a registration obligation is necessary to be able to monitor compliance with the maximum working time and the mandatory rest periods, and subsequently confirmed this conclusion in its judgment of 19 December 2024².

2. Who does the obligation apply to?

The obligation would apply to all employers, in both the private and public sector, regardless of the size of the company or the sector in which it operates. There is no threshold in terms of number of employees.

However, very important is that a number of categories of employees would be excluded from this obligation.

These excluded categories match the categories of employees that are also excluded from the provisions with regard to working time and working time schedules of the Belgian Employment Act, namely:

• employees working in a family business where only blood relatives, relatives by marriage or foster children work under the authority of the father, the mother or the guardian;
• staff with a management position or a position of trust;
• sales representatives;
• homeworkers and teleworkers, both structural and occasional.

However, a new category has been added to the draft bill, namely that of ‘mobile staff’, which refers to employees whose role involves carrying out work outside the employer’s premises and who, for this purpose, travel on a regular and systematic basis to visit clients, prospective clients or work sites (e.g. medical delegates, technicians, etc).

Moreover, this list of exceptions could still be extended by Royal Decree.

3. Which type of system must you use?

The draft bill does not impose any specific form. The employer can therefore choose the system that best suits its company: a time clock, a digital system using a badge or mobile app, performance sheets, etc..

Crucial is that, according to the text of the draft bill, a mere deviation register, whereby only deviations from the applicable fixed or variable working time schedule are recorded, would be sufficient for employers to fulfil their obligations, provided that the actual working time performed can thereby be established in an objective and reliable manner. A system that automatically fills in the hours based on the scheduled working time schedule, without taking into account the time actually worked, is in any case not sufficient.

This would mean that things are not as dire as they sound and the administrative burden for employers can be kept to a minimum.

4. How long must you keep the data?

The registered data must be kept for at least five years. You should therefore consider in good time  who will have access to the data, how they will be stored, and how this fits into your privacy and HR processes.

5. When will  the obligation apply?

According to the draft bill, the obligation enters into force on 1 January 2027. However, employers who do not yet have a suitable registration system on that date are given a transitional period until 31 March 2027 at the latest to comply. These dates are not final yet.

6. What sanction do you risk as an employer?

From a criminal law perspective, the draft bill, as it currently stands, does not provide for a specific criminal sanction in the Social Criminal Code for employers who fail to introduce a (full) registration system. This is in contrast to sliding working hours, where such a sanction does exist, namely a level 2 fine, multiplied by the number of employees concerned. It is not yet clear at this stage whether a similar sanction will also be introduced for the general registration obligation.

At least as important is the civil law risk. Employers without a (reliable) registration system are in a weaker position in the case of a dispute with an employee invoking overtime worked or rest periods not observed. Indeed, the absence of a registration system can give rise to a shift of the burden of proof whereby the employer must prove that no overtime hours have been performed by the employee.

7. Does this change anything about pay or working time itself?

No. The registration obligation serves to monitor compliance with the existing rules on maximum working time and rest periods. It is not intended to extend the concept of working time or to automatically create additional wage costs.

This being said, if it appears that the employee worked beyond their scheduled working time schedule and the employer tolerated this, this may give rise to a claim for the payment of overtime hours, which will entail additional costs.

A recommendation in this respect can be to provide in a policy that overtime hours may only be performed with the explicit consent of the employer.

8. What can you already do now as an employer?

Employers are advised to already start preparing now:

• Map out how work is actually carried out in your company and to what extent the actual hours performed deviate from the scheduled working time schedules.
• Check whether you already have usable data available to register working time, such as badge systems, project time sheets or payroll administration.
• Examine which type of system best suits your organisation and your way of working.

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If you would like further information or assistance regarding this topic, please contact Philippe De Wulf (philippe.dewulf@altius.com), Emma Van Caenegem (emma.vancaenegem@altius.com) or Esther Soetens (esther.soetens@altius.com).

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1. C-55/18, CCOO/Deutsche Bank ↩︎
2. C-531/23, Loredas ↩︎

Written by

• Esther Soetens

  Counsel

• Daphné de Crombrugghe

  Associate