Working time recording in the company – what applies now?

January 16, 2023

On September 13.09.2022, 1 (case number: 22 ABR 21/XNUMX), the Federal Labor Court made a decision on working time recording, which generated a considerable response. As a result of this decision, many questions have arisen among companies regarding the correct recording of working hours. Not only HR managers, but also consulting lawyers are asking themselves: What applies now? Can there still be trust-based working hours in the future? Is my time recording system still legally compliant? The following article is intended to provide an overview of the decision and its impact on practice. Further information can be found on the website of the Federal Ministry of Labor and Social Affairs (here).

1. THE DECISION OF THE FEDERAL LABOR COURT OF September 13.09.2022, 1 (AZ: 22 ABR 21/XNUMX)

In its reasoning, the court bases the obligation to record working hours not - as one might think - on the Working Hours Act (ArbZG), but on an interpretation of the Working Hours Act that complies with European law Section 3 Paragraph 2 No. 1 Occupational Safety and Health Act (ArbSchG).

This legislation states:

“§ 3 Basic obligations of the employer

(1) The employer is obliged to take the necessary occupational safety measures, taking into account the circumstances that influence the safety and health of employees at work. He must check the effectiveness of the measures and, if necessary, adapt them to changing circumstances. In doing so, he must strive to improve the safety and health protection of employees.

(2) The employer must plan and implement the measures in accordance with paragraph 1, taking into account the type of activities and the number of employees

to ensure a suitable organization and to provide the necessary resources (…)”

In practice, it is not helpful to argue legally against the derivation, even if it is not convincing. Therefore, only the effects and implementation options will be discussed below.

2. OBLIGATION TO RECORD WORKING TIMES FOR COMPANIES

The Federal Labor Court already sees companies as obliged to set up a working time recording system. Out of Section 3 Paragraph 2 No. 1 ArbSchG If interpreted in accordance with EU law, it can be derived: The employer must introduce and use a system with which he can record and record the start and end of daily working hours, including overtime (i.e. the duration of working hours). This obligation is not limited to the mere provision of the system. Rather, the employer must actually record working hours to the extent described above. Since no form is prescribed, electronic time recording or in paper form is also possible. In addition, time recording can still be delegated to the employees.

3. COMPANY WITH A WORKS COUNCIL

What was somewhat overlooked in all the excitement surrounding the obligation to record working hours was the actual message of the decision: The works council has, with regard to the “Ob“The introduction of a working time recording system no right of co-determination. As explained above, the employer is already obliged to do this due to legal requirements. However, the works council has with regard to the “Who“ of the working time recording system, i.e. its design a right of co-determination. However, this may be restricted by the expected new legal regulations.

4. IS CONFIDENT WORKING STILL POSSIBLE?

Yes, trust-based working hours are still possible. The Federal Labor Court's reasons for its decision do not contain any explicit statements about flexible work on a trust basis. Employees plan their working hours independently. In our opinion, this remains possible. The only thing that changes is that working hours including breaks must be documented in the future.

5. CONCLUSION

Companies should examine their existing working time recording structures, but not panic. In any case, it is advisable to make adjustments to the documentation requirements. However, in view of the expected new legal regulations, this should all be done with a sense of proportion.