GER: Is Electronic Time Recording on the Way?

Nov 18, 2022 Benn-Ibler Rechtsanwälte

The German Federal Labour Court (Bundesarbeitsgericht, hereinafter BAG) has made it clear that working hours must be documented. This will spell upheaval for many companies in Germany.

In the case at hand, the petitioning works council and the employers, who run a full-time inpatient residential facility, concluded a works agreement on working hours in 2018 and began negotiations on an agreement concerning the documentation of working hours. However, no agreement was reached. At the request of the works council, the labour court set up a conciliation board to deal with the issue. After the employers objected to the works council's responsibility, the works council initiated a resolution procedure. The works council sought a court ruling stating that they had the initiative right to introduce an electronic time recording system. The Regional Labour Court sustained the works council's motion. The employer's appeal against this decision was successful before the BAG.

Specifically, the BAG was of the opinion that Section 3 (2) no. 1 of the Occupational Health and Safety Act (Arbeitsschutzgesetz, hereinafter ArbSchG) already provides the legal basis for an employer's obligation to introduce a system for recording working time. Consequently, there is no room for a right of initiative (meaning the right of employee codecision within the scope of section 87 of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG)) of the works council. This is because the works council only has a right of codecision in social matters insofar as there are no statutory or collectively agreed provisions. Under an interpretation of section 3(2)(1) ArbSchG in conformity with EU law, employers are legally required to introduce a system that records the number of hours worked by employees.

It is not clear how an exact operational solution could look like. There are no national regulations on precisely how working time should be recorded. In its ruling on the recording of working time, the European Court of Justice calls for reliable, objective, and accessible systems for the effective implementation of the Working Time Directive.

Press release of the German Federal Labour Court 35/22 on ruling BAG,1 ABR 22/21 (13 September 2022)