In September 2022, the German Federal Labor Court (Bundesarbeitsgericht) ruled that employers are required under Section 3 of the German Occupational Health and Safety Act (Arbeitsschutzgesetz) to record the beginning and end of employees' daily working hours.
What happened?
The starting point of the decision was the question of whether a works council is entitled to a right of initiative in the introduction of electronic time recording. In the case in question, the employer and the works council were negotiating a works agreement on the recording of working hours. No agreement was reached on this. The works council therefore turned to the conciliation body, against which the employer objected, contesting its competence. The German Federal Labor Court rejected the works council's right to initiate the introduction of an electronic time recording system, but dealt in principle with the employer's obligation to record working time and affirmed this.
The German Federal Labor Court rejected the works council's right of co-determination because the employer was already obligated by law to introduce a system with which the beginning and end and thus the duration of the working hours in the company are recorded. The works council's right of co-determination can therefore never concern the "whether", i.e. the question of whether a time recording system is introduced. This is because all employers are already subject to this obligation.
The German Federal Labor Court located the employer's obligation to introduce a system with which all working hours in the company are recorded in Sec. 3 (2) No. 1 German Occupational Health and Safety Act. According to this, the employer must ensure suitable organization and provide the necessary resources for planning and implementing the measures, taking into account the type of activities and the number of employees. This results in the employer's obligation to introduce a system for recording the daily working time worked by its employees, which includes the beginning and end and thus the duration of the working time, including overtime. In this regard, the system must be objective, reliable and accessible for the recording of working hours.
The German Federal Labor Court does not specify a particular form, which this system must have. Rather, the employer has a great deal of freedom in designing the system. When selecting the system, therefore, the particularities of the employees' respective areas of activity and the peculiarities of the company, in particular its size must be taken into account. For example, depending on the company's activities, paper records may be sufficient. It may also be possible to delegate the recording of the relevant times to the employees.
What is to be done?
Following the German Federal Labor Court's decision, many questions remain unanswered. In particular, the court did not make any concrete requirements for the time recording system, so that the employer's obligations are still unclear in detail. The legislature must take action here and has announced that it will do so. However, as long as the legislator has provided no clarification, employers should record the start, end and location of working hours and delegate their recording to their employees if necessary. This can be done electronically or in paper form. However, the employer must then monitor the recording of working time and check the corresponding evidence.
For the time being, this has no effect on any "trust-based working time" that may exist. This can presumably continue to be agreed unchanged, provided that working time is then recorded accordingly.
Consequences of non-compliance?
If an employer does not yet introduce working time recording and does not comply with the German Federal Labor Court's requirements, there is no threat of fines, at least for the time being, as there is no statutory regulation. The competent authority would first have to issue an enforceable order on the recording of working hours. Only if the employer (repeatedly) violates the order would there actually be a threat of a fine.
If you have any questions about the recording of working hours or other topics, please feel free to call us or send us an e-mail.
