Employers must systematically record the working hours of their employees.
(Photo: dpa)
Berlin The Federal Labor Court (BAG) in Erfurt has decided: In Germany there is an obligation to record working hours. The President of Germany’s highest labor court, Inken Gallner, justified the employer’s obligation to systematically record working hours on Tuesday with the so-called time clock judgment of the European Court of Justice (ECJ).
In May 2019, the ECJ decided that the member states must oblige employers to set up an objective, reliable and accessible working time recording system with which the daily working hours of employees can be measured. This is the only way to implement the rights from the EU Working Time Directive, i.e. the maximum weekly working time and the daily and weekly rest periods.
Gallner referred to a passage in the Occupational Health and Safety Act that obliges employers to introduce a system with which the hours worked by employees can be recorded. “If you interpret the German Occupational Health and Safety Act with the stipulations of the European Court of Justice, then there is already an obligation to record working hours,” she said at the hearing.
The German legislature had not yet amended the working time law. Labor Minister Hubertus Heil (SPD) is currently examining an amendment to the Working Hours Act. The coalition agreement between the SPD, Greens and FDP states: “In dialogue with the social partners, we are examining what need for adjustment we see in view of the case law of the European Court of Justice on working time law. Flexible working time models (e.g. trust-based working hours) must continue to be possible.”
Top jobs of the day
Find the best jobs now and
be notified by email.
Experts expect that the BAG fundamental judgment (1ABR 22/21) can have far-reaching effects on the trust-based working time models that have been practiced thousands of times in business and administration up to mobile work and home office, because this requires more control. According to the German Working Hours Act, only overtime and Sunday work has to be documented, not the entire working time.
More control due to overtime
In this specific case, it was actually about co-determination: A clinic in the Minden area and the works council had been negotiating a company agreement on recording working hours in 2017, but could not come to an agreement. In 2018, the clinic decided to do without electronic time recording.
The works council then pushed through the appointment of an arbitration board at the Minden Labor Court. But the employers complained about the competence of the arbitration board: According to the case law of the Federal Labor Court, the works council has no right of initiative when introducing a “technical device”.
In 1989, the BAG took the view that the works council could only refuse technical controls. The works council in Minden, meanwhile, insisted on other rights “worthy of protection”.
Especially when it comes to the precise recording of working hours and overtime, it could also be good from the employee’s point of view to demand “more control”, the argument goes.
The case went before the labor court in Minden and finally before the regional labor court (LAG) in Hamm. The spectacular decision: the court granted the works council a right of initiative when setting up technical facilities (7 TaBV 79/20).
Now the works council failed before the BAG with its demand for electronic time recording. The Federal Labor Court justified its decision by ensuring that co-determination or a right of initiative is excluded if there is already a legal obligation to record working hours.
It has thus been decided by the highest court that German employers are obliged to record working hours. The Bonn labor law professor Gregor Thüsing called the decision of the federal labor judges a bang.
More: Can minus hours be offset against vacation or salary?