The reasons for the much-noted decision by the German Federal Labour Court of 13 September 2022 are now available. These clarify numerous points but some matters unfortunately still remain open. What applies?
- What? Employers have an obligation to set up a system to record the beginning and end, and therefore the duration, of the working time of their employees, including any overtime. There is an objective legal obligation to take action in this respect. The German Federal Labour Court derives this obligation from the general provision of section 3 (2) no. 1 German Occupational Health and Safety Act (ArbSchG) which stipulates that employers must ensure that there is appropriate organisation. The German Federal Labour Court has not said whether rest breaks must be specifically recorded or whether they can also be deducted as a fixed amount of time. It is therefore necessary to assume that rest breaks also have to be specifically recorded. This is the only way to make a reliable statement about the actual amount of working time. This simultaneously means that deducting a fixed amount of time for rest breaks is unfortunately unlikely to be possible.'
- Who? Section 3 German Occupational Health and Safety Act (ArbSchG) also applies to (genuine) executive employees. However, according to what the German Federal Labour Court has now established, executive employees could be exempt from the obligation to record their working time. This is because Union law also definitely permits a waiver of the documentation requirement where the legislator has legitimately exempted employees from the application of the German Working Hours Act (ArbZG). Therefore this currently unfortunately only applies to executive employees but not also to employees employed on the basis of trust-based working time. This would require an amendment to section 18 German Working Hours Act (ArbZG).
- How? According to the German Federal Labour Court, working time does not necessarily have to be recorded electronically. The employer has a degree of flexibility here. Analogue time recording "on paper" is therefore also possible. The German Federal Labour Court has also clarified that the recording of working time can also be delegated to employees.
- From when? The legal obligation applies immediately or, according to the argumentation set out in German Federal Labour Court's reasons for its decision, actually already applied in the past.
- Involvement of the works council? According to the reasons for the decision by the German Federal Labour Court, the works council's right to participate in the decision on the form which the recording of working time should take results from section 87 (1) no. 7 German Works Constitution Act (BetrVG) ("How" working time is recorded). If an electronic time recording system is to be introduced, section 87 (1) no. 6 German Works Constitution Act (BetrVG) is applicable.
- What applies in the case of violations of the obligation to record working time? If working time is not currently recorded, this does not constitute an administrative offence. According to section 25 German Occupational Health and Safety Act (ArbSchG), violating an enforceable order by the competent authority is an offence. However, it cannot be ruled out that such orders will be issued on certain occasions. In addition, it is likely that a legal regulation on the recording of working time can (soon!?) be expected. This may well be linked to special provisions on administrative fines.
- What does this mean for trust-based working time? Employees are still free to decide when to work, taking account of the provisions on working time. However, the actual working time of employees must be recorded with immediate effect.
- What action needs to be taken? The German Federal Labour Court has established that there is a legal obligation to take action to record working time. If the duration of working time is not currently documented, employers should now, at the latest, start thinking about how they want to record it in the future. There is a degree of flexibility here. Even though not observing these requirements is not yet punishable by an administrative fine, it can be assumed that the responsible authorities or the legislator will soon take action. Furthermore, the works council can make use of its right of initiative under section 87 (1) no. 7 German Works Council Constitution Act (BetrVG) and at least enforce the "how" of recording working time through a conciliation board for health protection.