Dispatch of the BMAS of April 18, 2023 to change the Working Hours Act
Since the so-called Stechhwahr judgment, it has been excited about legal new regulations on the acquisition of work and a proposal by the legislator for the modernization of the Working Hours Act.
On April 18, 2023, the Federal Ministry of Labor and Social Affairs (BMAS) has now submitted the first draft of the "Law on the Amendment of the Working Hours Act and other regulations". The draft law aims at introducing regulations for the recording of all working hours in the light of the ECJ and BAG case law on the obligation to reconcile work.
The draft of the BMAS of April 18, 2023 stipulates that the legal obligation to recording work should generally be implemented by changing and supplementing the Working Hours Act (ArbZG), in particular § 16 ArbZG.
The first slight criticism is already permitted at this point. There is no necessary steps to modernize work time recording and the use of the possible freedoms of the basic EU guidelines.
The draft speaker provides the following:
1. Electronic working time recording
Employers* should be obliged to electronically record the beginning, end and duration of the daily working hours of the employee on the working day. The legislator thus prescribes the way in which working hours are recorded.
As a legal basis, not only common time recording tools and applications are to be understood as the legal basis, but now also topped calculation software, such as Excel.
2. "Collective work time recording"
In addition, the draft speaker stipulates in its reasoning that "collective work time recording" should be possible through the use and evaluation of electronically guided shift plans. This would also enable a so -called passive work time recording, provided that the start, end and duration of the daily working hours as well as deviations from this, especially overtime or overtime, are also also included.
3. Consideration obligation of a maximum of two years
The records should be kept for the duration of the employment relationship, but not more than two years.
4. Delegated work time recording/trust working hours
Working hours should be recorded by employees or third parties, such as superiors or employers. However, the responsibility of the employer should remain in order to lead proper records for the working hours of the employees.
The employer should remain responsible for this in the case of delegated work time recording or trust agreements. According to Section 16 (4) ArbZG-Refe, he must take "suitable measures" that ensure that violations of legal provisions on working and rest periods are brought to the attention of him.
5. Information obligations to employees
In accordance with Section 16 (5) ArbZG-REFE, employers should be obliged to provide their employees on request working times and a copy of the records. The reasoning states that employees should also be able to view and reproduce their records in the electronic time recording system in order to comply with information obligations.
Note: This should make overtime disputes easier for employees. Now the employer would actually "support" the employee with regard to the overtime worked for him.
6. Tariff opening clause
In addition, the legislative proposal in Section 16 (7) ArbZG-REFE contains a tariff opening clause. Thereafter, exceptions to the prescribed working times should be made possible, especially longer deadlines for recording working hours.
7. Exceptions on the obligation to record
In addition, certain groups of employees in accordance with Section 16 (7) No. 3 ArbZG-REFE should be excluded from the duty of recording of Section 17 (1) of the EU working time directive 2003/88/EC, without the draft law giving specific information on which groups of workers. This should be "managers" and "recognized experts".
8. Transition period
The obligation to recording work should not be enforced immediately after the law comes into force. Rather, the draft lecturer provides for a transition period of one to five years staggered according to the company in order to implement the legal obligation to recording electronic time.
9. Small business clause etc.
Not from the working time recording as such, but from electronic recording obligation, employers should be permanently excluded with up to ten employees, foreign employers without a permanent establishment in Germany if they send up to ten employees to Germany, and private households who employ the domestic workers.
10. Administrative offense
In the future, violations of the obligation to electronically record working hours and the information obligations should be administrative offenses. These can be punished with a fine of up to 30,000 euros.
The draft law of the BMAS is a step that focuses on the interests of the employees and the union. Unfortunately, design options that are possible according to EU guidelines do not come into play. Above all, the advantages of modern working time restructuring are not (yet) recognized and used.
The legislative procedure and other consultations are still at the beginning. However, the draft lecturer shows in which direction the political discussion on the subject of work time recording and modernization of labor law can go.
The following still applies: not everything that glitters is gold. Therefore, freely to Ambrose Bierce: "Hope is wish and expectation at the same time." We stay for you!
*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.
