(Full-time) recording of working hours
Christmas is just around the corner, the Nicholas was hardworking and for all HR managers in the company, be it on employer*or on the employee side, has been fulfilled by one of the great wishes of the expiring year. You are there, the reasons for the decision to recording work. If you want it to white in black, you will follow this link. https://www.bundesarbeitsgericht.de/ decision/1-abr-22-21/
Anyone who can better tolerate the smallest portions due to the turbulent pre -Christmas period will be revealed by the following:
- Employers actually have to record the working hours of their employees.
- Working on work applies to all employees employed in the company within the meaning of Section 5 (1) sentence 1 BetrVG.
- The time recording applies immediately.
- The work time recording must be guaranteed by an "objective, reliable and accessible" system.
- The recording does not necessarily have to be made in electronic form, recordings in paper form can be sufficient.
- The obligation to record can be delegated to the employees, so the trust working time still seems to be practicable.
- The works council is entitled to an initiative right for the design of the work time recording in accordance with Section 87 (1) No. 7 BetrVG.
- The operating parties should jointly ensure the most efficient implementation of statutory occupational safety in the company.
If you can tolerate a little more now, with the words of the Federal Labor Court (BAG), the following should be said:
This is where the work time recording comes from?
The obligation of the employer to introduce a system with which all working hours in community operations are recorded follows from Section 3 (2) No. 1 Occupational Safety Act (ArbSchG).
According to this framework regulation (see also BAG of March 18, 2014 - 1 ABR 73/12 - Rn. 23, BAGE 147, 306), the employer must ensure a "suitable organization" and the "required funds", taking into account the type of activities and the number of employees.
In the event of an understanding of Union rights, the legal regulation also includes the - fundamental - obligation of employers to introduce a system to record the daily working hours they have achieved by their employees, the start and end and thus the duration of working hours including overtime.
Working Hours Act and the Occupational Health Act complement each other in terms of working time law issues!
The fact that the content requirements for working hours in the Working Hours Act are regulated does not allow the conclusion that a duty of the employer for the systematic recording of all working hours could not result from the Occupational Health and Safety Act. The aspect of working hours, which is a not insignificant part of the occupational and health protection of the employees, is not excluded from the scope of the Occupational Safety Act (§ 1 ArbSchG). Section 1 (3) sentence 1 ArbSchG only makes it clear that the obligations of the employer resulting from the Occupational Safety Act leave his obligations based on other legal provisions. Section 5 (3) No. 4 ArbSchG shows that working hours are also part of the object of the Occupational Safety and Safety Act as an immediate risk factor.
The Working Hours and Occupational Safety Act should apply side by side in the event of questions of working time law. The guidelines on which the two laws are based on 2003/88/EG and 89/391/EEC do not exclude each other. According to the third Reference of the (working time) guideline 2003/88/EC, the provisions of the (occupational safety framework) guideline 89/391/EEC also remain applicable to compliance with the minimum rest times and the weekly maximum working hours (see ECJ of May 14, 2019-C-55/18-[CCOO] paragraph 61).
Employment recording applies to all employees employed in the company within the meaning of Section 5 (1) sentence 1 BetrVG!
The obligation of the employer to introduce and use from Section 3 Paragraph 2 No. 1 ArbSchG will be recorded at the beginning and end of daily working hours, including overtime, - as for the participation in accordance with Section 87 BetrVG alone - also refers to all employees employed in their companies within the meaning of Section 5 (1) sentence 1 BetrVG.
The obligation of an employer to record working hours concerns those employees, for which the national legislature does not have deviated on the basis of Art. 17 Para. 1 of Directive 2003/88/EC from the requirements of Art. 3, 5 and 6 letter b of this guideline. The Court of Justice assumed that the obligation to recording work is "without prejudice to Art. 17 Para. 1" of this directive (cf. ECJ of May 14, 2019 - C -55/18 - [CCOO] Rn. 63). This means that the work time recording does not have to extend to employees for whom a Member State has provided exceptions because the duration of its working hours due to special features of the activity performed is not measured and/or can be determined or can be determined by the employees themselves.
The works council is entitled to an initiative right for the design of the work time recording in accordance with Section 87 (1) No. 7 BetrVG!
The works council - subject to any other future regulations by the legislator - is entitled to an initiative right for the design of the system to be used in the operation of the employer to record from the beginning and the end of the daily working hours according to § 3 Paragraph 2 No. 1 ArbSchG (see, for example, for the design of the clarification process according to § 84 Paragraph 2 SGB IX AF AF [now § 167 Paragraph 2 SGB IX] BAG of March 22, 2016 - 1 ABR 14/14 - paragraph 12, BAGE 154, 329). Because of the character of Section 3 Paragraph 2 No. 1 ArbSchG as an occupational safety law framework and the Union law requirements to be observed in this context in this context, the works council cannot limit its initiative right to a time recording in electronic form.
According to Section 87 (1) No. 7 BetrVG, the works council must have a say in operational regulations on the health protection that the employer has to meet based on a public law framework, but the scope of maneuver will remain in the design. The right of co -determination begins if there is a legal obligation to act objectively and, due to the absence of a mandatory legal requirement, requires operational regulations in order to achieve the objective of occupational health and health protection specified by the law (BAG of November 19, 2019 - 1 ABR 22/18 - margin no. 28 MWN, BAGE 168, 323). These requirements are (currently) met.
According to the framework provision of Section 3 Paragraph 2 No. 1 ArbSchG (see BAG VOMKKK March 18, 2014 - 1 ABR 73/12 - Rn. 23, BAGE 147, 306), they are obliged to set up a system, with the start and end and thus the duration of working hours, including the overtime of the employees in their companies. This means that there is an objective statutory obligation to act. Their design leaves space for a participation of the works council.
The work time recording must be guaranteed by an "objective, reliable and accessible" system!
According to the requirements of the Court of Justice of the European Union, an "objective, reliable and accessible" system must be introduced to protect the security and health of the workers, with which the daily working hours performed by the employees can be measured (EuGH VomKKK May 14, 2019 - C -55/18 - [CCOO] Rn. 38 ff., 60 ff.).
The recording does not necessarily have to be made in electronic form, recordings in paper form can be sufficient!
As long as no concrete regulations have been made by the legislator, there is a scope in which the “form” of this system must be determined (ECJ of May 14, 2019 - C -55/18 - [CCOO] Rn. 63). In their selection, the special features of the affected areas of activity of the employees and the peculiarities of the company, in particular their size, must be taken into account. As the general lawyer's reference to the general lawyer can recognize (ECJ of May 14, 2019 - C -55/18 - [CCO] Rn. 63; Contracts of the General Pitruzzella of January 31, 2019 - C -55/18 - [CCOO] Rn. 87), the working time recording must not be carried out without exception. Rather, depending on the activity and companies, recordings in paper form can be sufficient.
The obligation to record can be delegated to the employees, so the trust working time still seems to be practicable!
In addition, even if the establishment and provision of such a system is the responsibility of the employer, it is not excluded according to the Union law issues to delegate the recording of the times in question as such (see also Bayreuther NZA 2020, 1, 6 f.; [C-55/18] p. 38 ff.; Schrader NZA 2019, 1035, 1037). When selecting and closer to the respective work time recording system, it should be noted that the improvement of security and health protection of the workers in the work that may not be subordinate to work (fourth Reference of Directive 2003/88/EC; EuGH of May 14, 2019 - C -55/18 - [CCO] Rn. 66 MWN).
The operating parties should jointly guarantee the most efficient implementation of statutory occupational safety in the company, for which the employer is given a scope for design!
As long as (and as far as) the legislator has not exercised the scope in the design of the Union law work obligation (cf. also Bayreuther NZA 2020, 1, 3; Baeck/Launzer/Launer NZG 2019, 858, 859 f.), The operating parties and - in the event of their lack of agreement - according to § 87 para. Make regulations. In particular, you have a scope for design, in which way - if necessary differentiated according to the type of activities performed by the employees - the recording from the beginning and end of working hours in the company must be recorded.
Since the employer, the following obligation from Section 3 Paragraph 2 No. 1 ArbSchG, does not necessarily refer to a time recording in electronic form to recording a system for recording from the beginning and end of the working hours, the right of initiative system due to such a time recovery system from Section 87 (1) No. 7 BetrVG can not only be limited to this. This provides the content and purpose of this participation.
Section 87 (1) no. 7 BetrVG does not regulate the matter that is determined in question itself, but rather ties in with the presence of a need for the occupational safety of the employee. Such a framework is characterized by the fact that it requires measures to ensure the health protection of the employees, but does not give them in detail, but only specifies the employer a protection goal to be achieved (see BAG of March 18, 2014 - 1 ABR 73/12 - paragraph 18, BAGE 147, 306). According to the legal conception, there is a right to co -determine if the employer hits the obligation to act from the framework regulation. The starting point for the participation of the works council then forms the scope for the employer in the implementation or fulfillment of their statutory obligation to act.
Precisely because compelling legal requirements are missing, a "regulation" must be made at the operational level in order to achieve the occupational and health protection of employees that is intended by the provision required by the provision in need of completion (see BAG of March 28, 2017 - 1 ABR 25/15 - paragraph 18, BAGE 159, 12; BAG from February 11, 2014 - 1 ABR 72/12 - paragraph 14). Purpose of the right of co -determination provided in Section 87 (1) No. 7 BetrVG is to ensure the most efficient implementation of statutory implementation of the statutory implementation of statutory occupational safety in the company in the interests of the employees concerned by the equivalent of the works council when the employer is completed (BAG from September 30, 2014 - 1 ABR 106/12 - marginal no. 13 MWN).
This goal cannot be achieved if the object of the matter to be regulated is too narrow, contrary to the requirements of the respective framework. In the event that the operating parties do not reach this, the subject of a right of initiative, in conjunction with Section 100 ArbGG, must - in the event that the operating parties do not reach an agreement - must also be able to form the subject of an arbitration. If the regulatory mandate of such an arbitration board is limited too much, there is a risk that it will not be able to make the content of the obligation to act in terms of content because the legally provided design freedom - is partly taken by limiting the regulatory mandate. As a result, an efficient implementation of statutory occupational safety in the company would not be guaranteed. For this reason, the regulatory mandate of an arbitration board must correspond to the respective content of the obligation and the scope of design and the existing scope for the design of the employer - and thus also the content of the initiative right to the works council.
Recommendation for action - whoever likes it shortly and without adoption!
Now Gilts: You now have to deal with the various options for working time recording in your own company. To do this, you have to develop specific options for action and expressly observe and regulate the topics of employment contract or collective law design, Working Health Act, Occupational Safety Act, Data Protection and Participation of the Works Council. Talk to us!
*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.
