No right of initiative of the works council in the introduction of a working time recording system in the enterprise

No right of initiative of the works council in the introduction of a working time recording system in the enterprise – does this also mean: direct obligation to introduce a working time recording system for all, or not after all?

On 13 September 2022, the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled in a decision (1 ABR 22/21) that the works council had no right of initiative in the introduction of an (electronic) working time recording system. This is because the employer already has a legal obligation to introduce a system to monitor the working hours of each individual employee. This decision has been widely publicised and the question now arises whether employers are already obliged to introduce an electronic time recording system for all employees.

The BAG decision was based on the following:

The works council sought a declaration that it had the right of initiative to introduce an electronic time recording system.

The BAG rejected this application.

The BAG’s press release states: “If Section 3 (2) no. 1 ArbSchG (German Occupational Health and Safety Act) is interpreted in conformity with EU law, the employer is legally obliged to record the working hours of the employees. This excludes a right of initiative of the works council – which may be enforced with the help of the conciliation board – to introduce a system of recording working time.”

Thus, the BAG seems to follow the ECJ case law from 2019 (ECJ 14 May 2019 – C-55/18), according to which the European Working Time Directive obliges all employers to set up an objective, reliable and accessible time recording system, even if it is not directly mentioned in the press release.

Upset in the press and restraint at the Federal Ministry of Labour and Social Affairs

With this decision, the BAG caused a wave of reactions in the media public as well as among workers’ representatives and employers’ associations. The reason for the great interest is the implication in the court press release of a legal obligation for the employer to record working time. However, the written decision with detailed reasons is not yet available (and this is quite usual) and is expected in November this year at the earliest. The Federal Minister of Labour and Social Affairs, Hubertus Heil, has emphasised that he will wait for the reasoning of the BAG decision.

What does this mean in practice?

  • It is now clear that the works council cannot demand that the employer introduce an electronic time recording system on its initiative.
  • If one follows many voices, everyone is now asking whether the BAG decision also means that every employer must now comprehensively and without exception introduce an (electronic) time recording system. This, in turn, would have an impact on the models frequently exercised in practice, such as trust-based working time, mobile working, etc. Employers without a time recording system would be acting in breach of the law and in the “worst case” would even have to face sanctions.
  • However, the press release does not provide such details on the future organisation of daily working time. Whether and in what form employers will be required to document the working time of their employees in the future is purely hypothetical at this point in time, but a comprehensive obligation to record working time cannot be ruled out.
  • The Federal Government had already announced after the ECJ ruling in 2019 that it wanted to create a legal basis for the scope and design of time recording. However, a concrete draft law is not yet available.
  • Neither the scope of application (certain groups of activities/time models, etc.) nor the detailed design of a time recording system (paper form/Excel spreadsheet/electronic recording system, etc.) have yet been specified by case law or prescribed by the legislator. Therefore, the reasons for the current BAG decision remain to be seen.
  • Employers should nevertheless be attentive, prepare for the fact that electronic time recording may have to be introduced at very short notice and therefore rely on good communication with the works council and the employees.

For more information on our employment law consulting services, click here.