Work -time recording - practiced occupational safety or a gängel band for the world of work
What happened so far!
Everyone saw it coming and nobody could prevent it. The emotional state of the European Court of Justice was something similar, which in 2019, with the establishment of the targets of the European Working Time Directive, launched (full-time) recording of working hours (ECJ, judgment of May 14, 2019-C-55/18).
With its judgment, the ECJ commented on the submission of the National Court of Spain to interpret the working time RL 2003/88/EC. Essentially, he followed the general lawyer's final applications and decided that the nation states had to set up a system "with which the daily working time performed by each employee [1] can be measured".
For this, it requires the "establishment of an objective, reliable and accessible system, with which the daily working time performed by each employee can be measured".
Only with this, according to the ECJ's statement, can the "right of every employee to a limitation of the maximum and daily and weekly rest periods" be guaranteed, which is not only a rule of special importance of the social law, but also in Art. 31 Para. 2 of the Fundamental rights chart (GRC). The nation states have a certain scope for implementation, so that the special features of the respective areas of activity and peculiarities of companies, such as their size, could be taken into account in the legal design. However, these conceivable exceptions do not remove the national legislators from being introduced to the creation of a system for time recording.
In view of this, the labor lawyers agreed: first the legislator must become active and implement the requirements of the ECJ, since there is no legal basis for such an obligation to recording work in German law. The Federal Minister of Labor already presented the direction of the March on the day of the announcement of the judgment. The German legislature would now work. We are still waiting for the draft law to this day. Regardless of this, the offers for time recording systems, such as mushrooms, shot out of the ground. One or the other daring legal view on the scope and importance of the decision of the ECJ broke through the undergrowth of the labor court case law and was collected for the time being (cf. LAG LAG Lower Saxony, judgment of May 6, 2021,- 5 Sa 1292/20, according to which the decision of the ArbG Emden's labor court is not durable: the obligation to compete from the working time directive has no effect on the Detention and evidence burden in the overtime process.
Almost three years later, the Federal Labor Court decided: A legal basis for a full time recording existed in German law. The obligation already arises from the Occupational Safety Act (BAG, decision of September 13, 2022 - 1 ABR 22/21).
What has so far only been hung about the employer like a sword of Damocles is now certainty: All employers in Germany are already obliged to record the working hours of their employees.
What was it about?
The applicant works council and employers who entertain a fully inpatient residential institution as joint operation closed a company agreement in 2018. At the same time, they negotiated a company agreement on the acquisition of work. An agreement on this did not come about. At the request of the works council, the labor court used an arbitration board on the subject of "conclusion of a company agreement to the introduction and application of an electronic time recording". After the employers complained of their responsibilities, the works council initiated this decision -making process. He requested the statement that he is entitled to an initiative right to introduce an electronic time recording system.
This LAG Hamm took place to the works council's application (LAG Hamm, decision of July 27, 2021 - 7 TabV 79/20). The legal complaint of the employers directed against this decision was successful before the BAG's first Senate. According to Section 87 (1) of the entrance rate BetrVG, the works council only has to say in social affairs if there is no statutory or tariff regulation. In the event of a conformer of Union law, the employer is legally obliged to record the working hours of the employees. This includes an initiative right of the works council that can be enforced with the help of the settlement site to the introduction of a system of work time recording.
What do we know at the current status?
- The obligation to fully recording work already applies today and for all employers.
- Only the expected reasons for the decision will - hopefully - answer the question of how the entrepreneur fulfills his obligation as best as possible.
- Regardless of this, the employers should already deal with the possibilities with regard to the required time recording and clarify which operational requirements are available and which systems are suitable for this.
- The present decision will have a direct impact on the flexible and mobile work as well as the working hours.
- The German legislature will work.
What do we not know yet or what do we have to think about?
- How is the work time recording to be implemented?
- What is to be understood by an "objective and reliable system"?
- Is there a compulsion to automatically record?
- Do all companies have to record working hours or are there exceptions?
- Can the time recording be delegated to the employees?
- What are the data to be recorded?
- How high is the recording frequency?
- Does trust work still remain possible?
Outlook: follow -up questions about working hours
What questions will the BAG answer in its reasoning itself? Here are a few ideas:
- Is occupational safety in every industry to be implemented by an electronic time recording?
- Can the employee recording also be transferred to the employees and carried out in other, yet objective, reliable and accessible form?
- Does the employer obligation to introduce a time recording system also result from the duty of employees to record their working hours?
- How do employers deal with employees who do not grasp their working hours?
- How is "trust working hours" practicing? The confidence models previously practiced so far must be questioned. This will also have an impact on mobile and flexible work as well as the home office.
- What is "working time" and what is not one of them?
- What is the effects of the obligation to record working hours under occupational safety law ("compliance") on the obligation to remuneration?
Recommendation
It remains exciting. However, you should not fall into blind actionism or panic. Rather, you should already deal with the various options for working time recording in your own company. As soon as the reasons for the decision are published, specific options for action should be designed. Talk to us!
[1] For reasons of better readability, the male form is used for personal names and personal words. Corresponding terms generally apply to all genders within the meaning of equal treatment. The shortened language form has only editorial reasons and does not include a rating.
