In September, we had already told you about the Order of the Federal Labor Court reports: As a result, companies had to prepare for the nationwide introduction of working time recording. A single decision does not yet make law — but it has set the course for appropriate implementation.
The court has now published the reasons for its decision — and thus also provided an insight into the tasks faced by both employers and the Federal Ministry of Labour and Social Affairs. Here is an overview of the most important answers for you and your company
How the Federal Labor Court justifies its decision
Recording working time is mandatory — this is what the Federal Labour Court says. According to the court, this obligation can be derived, among other things, from the Charter of Fundamental Rights of the European Union — it states that workers have the right to limit maximum working hours and also to daily and weekly rest periods. The Charter obliges employers to respect these rights and to measure working time by providing an objective, reliable and accessible system for recording working time. The European Court of Justice had already decided this in 2019, which required implementation through a corresponding national law.
Somewhat surprisingly, the Federal Labour Court has now decided that the duty to record working time can also be derived from the Occupational Health and Safety Act and without further legal regulation: Section 3 ArbSchG states that employers must “ensure appropriate organisation and provide the necessary means” to ensure occupational safety. Time clocks, attendance records or time recording software are therefore not mentioned — but the Federal Labour Court broadly interprets the provision and sees it as an obligation to record the employer's working time.
How must employers take action now?
If you have not yet introduced a time recording system in your company, this must now be done as soon as possible. So far, there are no requirements as to what this time recording should look like — in theory, every employee could also sign in handwriting on a piece of paper as they come and go. However, it is important that you ensure that all of your employees also use the time recording system on a mandatory basis. Based on the reasons for the decision, it is currently unclear whether this obligation also applies to all groups of employees, such as senior employees.
If there is a works council in your company, it must be involved in designing time recording — both with regard to the specific system and the handling of trust-based working hours.
Trust-based working hours? Can they even still exist with comprehensive working time recording? Yes, because the legislator has not yet defined who is responsible for recording working time: The employer, who documents the working hours of its employees, or the individual employee who provides information in real time or retrospectively about when to when he/she worked. Accordingly, it can be assumed that the employer can delegate his obligations to employees to a certain extent as long as he controls proper time recording.
What must be regulated by law?
The Federal Ministry of Labour and Social Affairs has already announced that it will await the reasons for the decision and will then prepare a corresponding draft law. An exact time frame for this is unknown.
However, it is to be hoped that the legislator will provide appropriate clarification promptly. This applies in particular with regard to the ambiguities in the decision as to whether certain groups of employees can be excluded and how exactly the recording of working time must be structured. Furthermore, in 2019, the European Court of Justice saw that the national legislator has leeway to differentiate on the basis of the operational situation, which makes it appear possible in particular to exempt small businesses from the obligation.
conclusion
For employers who do not yet record working time, there is now a need for more action. However, it can be seen for the moment that a violation of Section 3 Occupational Health and Safety Act, from which the Federal Labour Court derives the time recording obligation, has no direct consequences. Only when an occupational health and safety authority should determine that working time recording cannot be introduced in violation of the occupational health and safety obligation, can it issue an enforceable order. This could result in fines if the employer acts contrary to the order.
