Working time must be recorded in future - the end of trust-based working hours?

October 24, 2022 /

Originally, the Federal Labor Court (BAG) discussed the co-determination rights of works councils. The discussion ended with the decision that employers are obliged under current law to maintain systems with which the working time of all employees can be recorded. What does this decision mean for working time models such as trust-based working or New Work?

The judgment

A works council demanded co-determination rights regarding the introduction of electronic time recording systems in the company. The BAG rejected this, as co-determination is excluded if there is a legal basis.

The BAG refers to Section 3 (2) ArbSchG: The legal obligation to record working hours is interpreted in line with the ECJ ruling from 2019 (“time clock ruling”). Although Section 3 does not refer to the recording of working hours, non-compliance with the Working Hours Act can have an impact on the health and safety of the employee. It is therefore no longer possible to waive the recording of working hours.

Design requirements and scope of application

It is still unclear for employers what form the documentation must take – is an Excel spreadsheet sufficient or must the working hours be recorded electronically? According to the ECJ, the records must in any case be objective, reliable and accessible. Weekly working hours, break times and rest periods should also be identifiable. However, no concrete specifications have yet been issued regarding the design and requirements for recording working hours.

The impact of the ruling on executive employees is still unclear. This is because, unlike the Occupational Health and Safety Act, the Working Hours Act applies to all employees, including senior executives, who are also obliged to record their time according to the current legal situation. It is to be expected that the legislator will create an adapted regulation in this case.

Trust-based working hours and flexible working time models

Is the existence of flexible working time models such as trust-based working time under threat? Basically, trust-based working time means that employees can determine the start and end of their working hours themselves. This concept does not exclude compliance with the Working Hours Act, as these requirements already applied before the ruling. Therefore, nothing stands in the way of the continuation of these models in the future. In addition, the traffic light coalition is also in favor of allowing flexible working time models in the future.

Do you need to act?

Employers are fundamentally obliged to record working time with immediate effect. Although the specific documentation requirements have not yet been determined, it is foreseeable that some form of time recording will have to take place in the future. Employers should therefore consider implementing a suitable time recording system as a precautionary measure.

Sources:

https://www.haufe.de/personal/arbeitsrecht/bag-urteil-sorgt-fuer-handlungsbedarf-bei-zeiterfassung_76_575932.html
https://www.lto.de/recht/hintergruende/h/bag-1abr9788-pflicht-arbeitszeiterfassung-arbeitgeber-betriebsrat-arbeitnehmer-mitbestimmung-betrvg-initativrecht/
https://rsw.beck.de/aktuell/daily/meldung/detail/bag-arbeitgeber-muessen-arbeitszeit-kontrollieren
https://www.wbs-law.de/arbeitsrecht/bag-kommt-gesetzgeber-zuvor-pflicht-zur-elektronischen-arbeitszeiterfassung-gilt-ab-sofort-62046/

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