The German Federal Labour Court (Bundesarbeitsgericht – BAG) has now published the reasons for its much-noted decision of 13 September 2022 (ref. 1 ABR 22/21). It is now clear that the recording of working time is a fundamental duty of occupational health and safety and must be observed. However, employers still have to wait for the legislator to clarify important details.

Legal obligation to record working time

The Federal Labour Court (Bundesarbeitsgericht – BAG) has now clarified that according to Section 3 (2) No. 1 of the Occupational Health and Safety Act (Arbeitsschutzgesetz – ArbSchG), employers are under a mandatory obligation to introduce a system to record working time. However, works councils have no right of initiative regarding the introduction of such a system, as the obligation is a legal duty relating to occupational health and safety.

The obligation includes recording the total duration of daily working time, Including the beginning and end of the daily working time as well as break times and overtime. Previously, the obligation was simply to record  working time in excess of the daily working time of eight hours within the meaning of Section 16 (2) sentence 1 of the German Working Time Act (Arbeitszeitgesetz – ArbZG).

The legal obligation occurs with immediate effect. There is no transitional period for companies, as Section 3 is an existing general clause under the Occupational Health and Safety Act. Furthermore, according to the BAG, it is not sufficient to make a working time recording system available to employees; rather, one must “actually make use of it and thus use it”.

Design of the time recording system

When selecting the time recording system, ” the particularities of the respective areas of activity of the employees concerned and the peculiarities of the undertaking – in particular its size – must be taken into account” (para. 65). In addition, the court states: “In the selection and detailed design of the respective working time recording system, however, it must be taken into account that the improvement of the safety and health of workers at work are objectives which may not be subordinated to purely economic considerations”.

The time recording system must record working time “objectively and reliably” (ECJ, 14 May 2019, ref. C-55/18). However, the recording “does not have to be carried out electronically without exception and necessarily”, according to the BAG, but can be carried out in paper form or as an Excel spreadsheet.

At the very least, the BAG explicitly confirms that employers can delegate the recording of working hours to the employee.

Observe co-determination rights

When introducing such a system, the works council has a right of co-determination under Section 87 (1) No. 7 German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG).This means that the works council has the right of co-determination concerning the  design options for the time-recording system. The works council’s right of initiative is not limited to the electronic form of time recording.

Executive employees

In this case, the BAG did not have to answer the question of whether the regulation also affected executive employees in addition to employees within the meaning of Section 5 (1) BetrVG. If interpreted in conformity with EU law and from the point of view of protecting health and safety, the obligation to record time would also extend to executive employees. There are also no indications from the ruling that an exception should apply to executive employees. However, according to section 18 (1) no. 1 ArbZG, the Working Hours Act explicitly does not apply to executive employees and so this is an argument against the duty applying to them. This important issue therefore urgently requires clarification by the legislator.

Legislative leeway on essential questions of detail

Other questions on the detail, such as those relating to trust-based working hours, also remain unanswered. There is leeway on the “how”, but not on the “whether”. If, in the case of agreed flexible trust-based working time, the employee works in a self-determined manner and freely plans his or her time and records it accordingly, this should continue to be possible. Confidential and private work where the employer has little insight, without time recording, on the other hand, will no longer be possible.

The German legislator is therefore required to regulate the essential details of trust-based working time, mobile working and working from home by law. It is to be hoped that a draft law planned for the first quarter of 2023 will use the flexibility granted to the legislator by the BAG and take sufficient account of how matters operate in reality. It would be desirable, for example, to have sector-specific special regulations such as those that already apply  in the maritime sector or in wine and agricultural industries.

Until there is clear legislation, violations of Section 3 of the Occupational Health and Safety Act are not subject to fines and do not constitute an administrative offence. A fine can only be imposed if the occupational health and safety authority imposes conditions on the company regarding the recording of working hours and the company fails to comply with these.

Recommendation

Contrary to some claims in the press, the BAG’s decision on the recording of working time, which is now available in full text, is not a “thunderbolt”. However, employers should take the decision as an opportunity to make preparations for the introduction of a working time recording system in 2023. To this end, employers should check whether any current systems are suitable for objective and reliable recording of working time. If not, employers are advised to explore available solutions for time recording. Even if the expected legislative provisions result in changes to the details, employers should consider taking the first steps towards implementation, such as budgeting or the involvement of the competent works council.

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