The Federal Labour Court (BAG) strongly reiterates the need for recording of working time

A recent wake-up call from Germany's highest labour court, but merely "old wine in new bottles": Already in 2019, the European Court of Justice (ECJ) ruled that employers must provide an objective, reliable and accessible time recording system (ECJ, judgment of 14 May 2019 – C-55/18). Since this decision, the German legislator has also been called upon to adapt the German Working Time Act to EU law in accordance with the ECJ's requirements. The Federal Labour Court (Bundesarbeitsgericht – BAG) has now ruled that employers are already obliged to introduce a system to record the working time worked by employees (Federal Labour Court, decision of 13 September 2022 – 1 ABR 22/21).

Although the coalition agreement of the current government also included the examination of necessary adjustments to the Working Time Act in consideration of this decision, the partial reform of the Working Time Act had so far not been planned until the first half of 2023.

However, the priority of the planned partial reform was to increase the flexibility of working time and working hours in consultation with the collective bargaining parties. The need to record working time in order to meet the requirements of the ECJ was not the focus.

New decision regarding working time recording

This has now changed as a result of the recent decision of the Federal Labour Court, which had the effect of a wake-up call. The Federal Labour Court has ruled that when interpreting section 3 (2) no. 1 of the Occupational Health and Safety Act in conformity with EU law, the employer is already legally obliged to record the working hours of the employees and to introduce a system to record the working hours worked by the employees. Based on this reasoning, the Federal Labour Court rejected the works council’s right of initiative to introduce a system for recording working time, which could be enforced with the help of the conciliation board.

According to the Federal Labour Court, the works council only has a right of co-determination in social matters under section 87 (1) of the Works Council Constitution Act (Betriebsverfassungsgesetz – BetrVG) if there is no statutory or collectively agreed regulation. The statutory regulation provides that the employer must take the necessary measures for occupational safety and health, taking into account the circumstances that affect the safety and health of employees at work. He must check the effectiveness of the measures and, if necessary, adjust them to changing circumstances.

Follow-up questions on working hours

The many interesting follow-up questions that arise can only be answered after the full reasons for the judgement have been published:

  • Is labour protection through time recording to be implemented in this form in every sector?

    Even if this should be the case, it will not lead to the fact that every employee’s working time must be recorded by means of a time clock in the company. In principle, the recording of working time can also be assigned to the employee and carried out in a different, yet objective, reliable and accessible form, e.g., through a time recording app.

    It should also be noted that there is already an obligation to record working time. In certain sectors, the recording of regular daily working time is mandatory, e.g., for “mini-jobbers” (section 17 Minimum Wage Act – MiLoG) or employees in road transport (section 21a para. 7 Working Time Act – ArbZG). Also, the Working Time Act already provides in § 16 para. 2 ArbZG that time exceeding the standard working time of eight hours per working day must be recorded and kept for 2 years. Any working time on Sundays and public holidays must also be recorded.
  • Does the employer’s obligation to implement a time recording system also imply an obligation for employees to record their working hours?
  • How should employers then deal with employees who simply do not want to record their working hours?
  • How can “trust-based working time” still be handled in a fair and correct way?
  • What counts as “working time” and what doesn’t?
  • Will “working time fraud” experience a revival as grounds for warning and/or dismissal?

What are the consequences of the obligation to record working hours according to labour protection law (“compliance”) on the remuneration obligation? It is a well-known fact that not every working time has to be remunerated.

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