Who worked for how long, when, and what time? The employer must measure this. (Photo: © pixelery/123RF.com)
Read aloud:
Recording working hours – but how? – Special topics
October 2022
Following the European Court of Justice, the Federal Labor Court has also confirmed that bosses are obliged to record the working hours of their employees.
Legal experts are calling it a bombshell from Erfurt: Three years after the European Court of Justice's (ECJ) "time clock ruling," the Federal Labor Court has now also ruled that companies must systematically record the working hours of their employees . This requirement stems from the Occupational Health and Safety Act . The decision strengthens the rights of employees.
The dispute concerned a works council and the employer of a residential care facility. After the employer initially wanted to introduce a time tracking system and negotiated with the works council, he later broke off talks. The works council, however, wanted to enforce the introduction of time tracking . The issue at hand was the works council's statutory rights of participation . The Works Constitution Act (BetrVG) grants works councils a tiered system of co-determination : among other things, they have the right to participate in decisions regarding the specific design of technical monitoring devices ( § 87 para. 1 no. 6 BetrVG ).
"It's obvious that a time tracking system constitutes a technical monitoring device. This allows the employer to easily track when and for how long an employee has worked," explains labor law expert Prof. Dr. Michael Fuhlrott.
The Federal Labor Court (BAG) ruled that the works council has no right of co-determination in this matter because there is already a legal regulation regarding the recording of working hours. Section 3 of the Occupational Health and Safety Act requires employers to take necessary organizational measures to ensure the health of their employees. This includes recording working hours. Therefore, according to the BAG, companies are already legally obligated to record the working hours of their employees.
Operations management
Operations management
Operations management
This applies regardless of whether a works council exists in the company or not, the judges emphasized. The Federal Labor Court (BAG) also cited the so-called " time clock ruling" of the European Court of Justice (ECJ) from 2019. In that ruling, the ECJ decided that European working time law requires the introduction of a system for objective time recording. However, this decision has not yet been transposed into national law by the German legislature.
Federal Labour Court, decision of 13 September 2022, file no. 1 ABR 22/21
"This decision massively strengthens the rights of employees ," commented labor lawyer Fuhlrott, who considers the ruling the most important labor law decision of the entire year. "Today's decision has far-reaching consequences for companies. The specific details of the requirements set by Germany's highest labor court regarding time tracking are not yet available in the decision, which has so far only been released as a press release," Fuhlrott said. However, he is clear on one point: "With this decision, the Federal Labor Court is also overtaking the legislature, which has not yet created any legislation to implement the European requirements. It can be assumed that today's decision will also give new impetus to the legislative process. The legislature has been put under considerable pressure by today's decision ," the lawyer concluded.
As recently as May 2022, the Federal Labour Court (BAG) ruled that the obligation to record working hours stipulated by the European Court of Justice (ECJ) has no consequences for the burden of proof in disputes concerning overtime pay .
According to the Federal Labor Court decision FAQs Read about the obligation to record working hours > here!
Regardless of this new Federal Labor Court (BAG) ruling, comprehensive obligations for recording working hours already exist , whether under the Minimum Wage Act, the Posted Workers Act, or the Working Time Act. The resulting documentation requirements already represent a significant additional burden for the companies concerned. Extending working time recording to all employees across all sectors will considerably increase the bureaucratic burden , especially for small and medium-sized enterprises (SMEs), and could potentially mean the end of many flexible working time arrangements, such as trust-based working hours, according to the German Confederation of Skilled Crafts (ZDH). However, a final assessment can only be made once the full grounds for the judgment are available.
In its ruling, the Federal Labor Court (BAG) refers to Section 3 of the Occupational Health and Safety Act (ArbSchG). According to this provision, employer measures must also take into account the type of work and the number of employees . Even after the European Court of Justice (ECJ) ruling, exceptions to the rules regarding working time recording can be stipulated based on company size . The German Confederation of Skilled Crafts (ZDH) will advocate for these aspects to be considered in the implementation of the ruling.
The ECJ's "time clock ruling": Employees' working hours must be measured by a reliable system. This is the ruling of the European Court of Justice (ECJ) of May 14, 2019, case number C-55/18 . All EU member states must require companies to systematically record the daily working hours of their employees . Only in this way can it be verified whether the permissible maximum working hours are being exceeded. The ruling became known in the media as the "ruling on the return of the time clock."
Exceptions possible for small businessesThe Central Association of German Skilled Crafts (ZDH) required Exceptions for small businesses and stresses that the ECJ has expressly ruled that smaller companies or certain industries The ECJ ruling states that national laws may "take into account the specific characteristics of the respective sector of activity or the specific features, even the size, of certain undertakings."
DHB is now also available digitally! Simply click here and register for the digital DHB!
Newsletter
Write a comment