The report from Erfurt was a real sensation for many employers. The Federal Labor Court ruled that companies are obliged to record the working hours of their employees. FOCUS online explains what the works council has to do with it and what that means specifically for you.

Actually, it all started quite unspectacularly: As is so often the case, a dispute was settled in court. Nothing special. But the development of the dispute over the powers of a works council is surprising. In the end, one person in particular looks bad: the legislature. He was overtaken by the verdict – and now he has to follow suit. The most important questions and answers on the judgment of the Federal Labor Court (file number: 1 ABR 22/21).

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If there is a works council in a company, this must be involved in many cases. However, the statutory intensity of his participation varies. The spectrum ranges from pure information, hearing and consultation rights to equal co-determination.

The works council therefore has co-determination rights, but not a right of initiative. This means that if the employer wants to make decisions in areas that affect the works council’s right of co-determination, he must involve them and come to an agreement with them. The decision of the employer to make changes in an area, on the other hand, rests entirely with him. Only he can take the initiative, not the works council.

However, this was questioned by a works council of a residential facility. The reason: negotiations about the introduction of a system for recording working hours. The employer therefore correctly entered into talks with the works council. Over time, however, he lost interest and let the matter rest. However, the works council wanted to continue talking about the subject and put pressure on the company to introduce a time recording system. As a result, the arbitration board was called in. The problem: It is unclear whether this is responsible if the works council requests the introduction of working time recording and the arbitration board is then supposed to make a binding regulation. This was examined in court.

Consequently, the lower court in Minden affirmed the right of initiative. So the employer was right. Other labor courts saw a corresponding right of initiative for the works council in the recording of working hours as possible and thus approved the appointment of the arbitration board by the works council.

However, the Federal Labor Court (BAG) is now giving the whole matter a new twist. In Erfurt, it was found that the works council’s right of initiative was irrelevant. This is only allowed to have a say if there are no legal regulations. In this case, however, there is: Paragraph 3, paragraph 2, number 1 of the Occupational Health and Safety Act (ArbSchG). This stipulates that the employer must “ensure a suitable organization and provide the necessary resources” to ensure the safety and health of employees at work.

The court recently ruled that this also includes the measurement and recording of working hours. This means that the works council’s application was rejected and the employer was formally right. But what the judgment means now has far greater implications: an obligation to record working hours in Germany.

The Occupational Health and Safety Act applies to all companies in Germany, no matter how big they are. And that regardless of whether a works council exists or not. According to the BAG ruling, this means that in future all companies in Germany will be obliged to record working hours.

Employment lawyers see immense effects on thousands of trust-based working time models, on mobile working models or on the home office, because more control is now necessary. This could become a mammoth task for business and administration.

The recording of working hours applies with immediate effect. According to the court’s press release, this means: “The employer is obliged under § 3 Para. 2 No. 1 ArbSchG to introduce a system with which the hours worked by the employees can be recorded.” The judgment is now applicable law.

The form in which working hours should be recorded is one of the open questions that the BAG’s decision entails. Electronic recording is not mandatory. But the question is not new. The legislator has had time to find a solution since 2019.

The judgment of the European Court of Justice (ECJ) three years ago already stated that employers must be obliged to introduce objective, reliable and accessible recording of working hours. This is to measure the daily hours worked by employees.

Despite considerable effort, employment lawyers recommend companies and businesses to install time recording solutions in everyday work as soon as possible. How, that is (still) up to you.

Everywhere where the so-called trust-based working hours used to apply, improvements must be made. However, this did not quite meet previous requirements either. As early as 2019, the BAG saw the situation as follows: just because the employer offers trust-based working hours does not mean that the employee will not be paid overtime.

The BAG’s interpretation of trust-based working hours means that the employer trusts that his employee will only work as much overtime as is necessary for the proper performance of his or her work.

Now, however, the end of trust-based working hours has finally been sealed with the BAG ruling. So if you haven’t installed a form of the time clock yet, you have to follow suit. Previously, only overtime and Sunday work had to be documented, not the entire working time. That is now a thing of the past.

It doesn’t always have to be the electronic and more expensive variant of timekeeping that finds its way into the company. The possibilities are manifold. Timesheets or Excel spreadsheets are among the simplest and cheapest options. Other alternatives include web-based or even mobile software solutions and hardware solutions such as the time clock. Nowadays, working hours can also be recorded by fingerprint.

Anyone who does not record the working hours of their workforce is in what is known as an unlawful state. In addition, a company must then expect that it will be asked by the works council to let it have a say in the design of time recording. This can then also affect the type of time recording, for example electronic time recording.

For works councils and employees, the verdict is definitely an improvement. This strengthens your legal position in the recording of working hours. However, there is no general right of initiative for works councils to participate in all possible technical introductions.

Setbacks are now to be expected, especially with the popular trust-based work or flexible working time models and working from home. Because the judgment also applies to home office and telework. Experts are already talking about the end of the flexibility of working in your own living room.

First of all, the judgment of the Federal Labor Court is to be regarded as a landmark judgment. This means that it was bindingly determined for everyone that working hours must be recorded by all employers. As a result, the pressure on the legislature is now increasing in the area of ​​working time recording. Some laws now have to be improved and the transition to time recording regulated. Employment lawyers assume that the decision will now fuel legislative processes.

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