A decision by the Federal Labour Court caused major discussion last week: Working hours must be recorded. Is this the end of the “trust-based working time” estimated since the start of the pandemic at the latest? Do we have to reintroduce time clocks?
The answers to the most urgent questions about the new decision can be found in this article.
The “time clock verdict” and its consequences
Many employees have probably also asked themselves the question: Hasn't recording working hours long ago been mandatory? In fact, she wasn't. As long as employees comply with their rest periods of eleven hours and the statutory maximum working and break times, they can work as much as they want (or must). Although employers are required to document overtime, the law has so far left many questions unanswered about working hours.
The decision of the Federal Labour Court came about in an unexpected way, but hardly surprising: As early as 2019, the European Court of Justice ruled in the so-called “time clock ruling” that member states must implement regulations for recording working hours.
Can the works council introduce working time recording?
What has happened now? An employer had decided to introduce electronic recording of working time in his company. It was questionable whether he would have to involve his works council. The two parties did not agree — the employer withdrew the project and did not want to introduce electronic working time recording after all. The works council then contacted the conciliation body — primarily with the question of whether working time recording could also be carried out on its initiative and whether this falls within its area of competence.
The dispute went through the courts and finally ended up before the Federal Labour Court. This has now decided: The works council does not have the right of initiative with regard to recording working time. However: As regulated in Section 3 (2) No. 1 Occupational Health and Safety Act (ArbSchG), the employer is obliged to “ensure appropriate organization and provide the necessary resources” — and in the opinion of the BAG, this includes the measurement and recording of working time.
This means that all companies in Germany, regardless of their size or the question of whether there is a works council, must now record working hours. “According to Section 3 (2) No. 1 ArbSchG, the employer is obliged to introduce a system with which the working time worked by employees can be recorded,” the court's press release states — without obligation to implement it, with immediate effect.
What is the aim of the Federal Labour Court's decision?
But wait — is this decision now “law”? Not strictly speaking. The legislator (who has been tasked with implementing the “time clock ruling” for three years) is expected to convert the BAG's decision into a new law as quickly as possible. Federal Minister of Labour Hubertus Heil told the German editorial network that his ministry would “find reasonable solutions that are manageable in operational reality.” His ministry's legislative proposals will “enable flexibility and be practical,” said the minister.
In principle, a system for recording working time is one way of implementing and documenting the principle of “work for pay”. It remains to be seen whether the so-called trust-based working time is now a thing of the past — and also whether and how much additional work working time recording will mean for HR departments and other parties involved. However, there are already many uncomplicated, digital alternatives available to workers for time clocks and punch cards.
How do you now deal specifically with the decision of the Federal Labour Court? What do you generally have to consider when using working time recording systems from the perspective of employment and data protection law? Our experts will be happy to answer these questions for you.
