Clock in in the morning, clock out in the evening – that could soon be the case in Germany.
The Federal Labor Court in Erfurt made it clear on Tuesday that it is mandatory to record working hours.
Trust-based working hours could soon be a thing of the past.
This is the result of a judgment by the Federal Labor Court (BAG) in Erfurt.
While politics and business are still discussing an amendment to the Working Hours Act, the judges are creating facts - with an impact on the working world of many people.
The Bonn labor law professor Gregor Thüsing calls the fundamental judgment of the Federal Labor Court in Erfurt on the general obligation to record working hours a sensation.
The decision of the highest German labor judges in Erfurt could bring back a kind of digital time clock in companies, offices and administrations.
In recent years there has been a trend towards trust-based working time models, mobile working and home office with little control and paperwork.
A case from North Rhine-Westphalia was negotiated.
It is still unclear how the judgment will affect the newer working models.
+
The Federal Labor Court makes it clear: In Germany there is an obligation to record working hours.
© Sina Schuldt/dpa
Recording of working hours: A fundamental judgment has been made
While the traffic light government, business representatives and labor law experts are still discussing an amendment to the German Working Hours Act, the highest court has now decided: There is an obligation to record working hours in Germany (1ABR 22/21).
The President of the Federal Labor Court, Inken Gallner, justified the obligation of employers to systematically record the working hours of their employees with the interpretation of the German Occupational Safety and Health Act after the so-called time clock judgment of the European Court of Justice (ECJ).
Don't miss anything: You can find everything to do with careers in the regular careers newsletter from our partner Merkur.de.
The reasoning of the judges for the recording of working hours
"If you interpret the German Occupational Health and Safety Act with the stipulations of the European Court of Justice, then there is already an obligation to record working hours," said Gallner at the hearing.
According to the German Working Hours Act, only overtime and Sunday work has to be documented, not the entire working time.
However, the Federal Labor Court did not refer to the Working Hours Act, but to the Occupational Health and Safety Act.
According to Paragraph 3, employers are already obliged to "introduce a system with which the hours worked by employees can be recorded".
Gallner said in the hearing: "Time recording is also protection against external exploitation and self-exploitation."
What makes the decision to record working hours explosive
With its landmark decision, the Federal Labor Court is anticipating the debate on amending the German Working Hours Act.
The federal government is working on implementing the requirements of the European Court of Justice from its 2019 time clock judgment into German law.
According to this, EU countries are obliged to introduce objective, reliable and accessible working time recording.
According to the intention of the ECJ, this should help to curb excessive working hours and comply with rest periods.
The downside of trust work is sometimes unpaid overtime, unionists argue.
It is also stipulated in the coalition agreement of the traffic light government (SPD, Greens and FDP) that the federal government wants to deal with the recording of working hours due to the ECJ ruling.
It says literally: “In dialogue with the social partners, we are examining what need for adjustment we see in view of the case law of the European Court of Justice on working time law.
At the same time, flexible working time models (e.g. trust-based working hours) must continue to be possible.” According to the German Working Time Act, only overtime and work on Sundays are currently recorded.
Accordingly, it is likely that legislative changes are planned.
Termination of the employment contract: the most important facts that everyone should know
Termination of the employment contract: the most important facts that everyone should know
What the judgment on the recording of working hours can do
Experts expect that the BAG fundamental judgment will have an impact on the trust-based working time models that have often been practiced in business and administration up to now, including mobile work and home office, because there is more control with it.
"The question is whether regulations on trust-based working hours are still possible as before," says labor lawyer Thüsing.
Other experts are more optimistic.
Court President Gallner said that after the ECJ ruling, Germany had leeway "about how, not whether, the recording of working hours".
Companies now have to set up solutions for “comprehensive working time recording”, believes specialist lawyer Michael Kalbfus from the Noerr law firm in Munich.
Attorney Marcel Seifert comments on the case in writing on the
Anwalt.de
website : “Neither the ECJ nor the BAG has made any specifications as to how the time recording must be carried out.
So there is room for creativity here.
However, employers should be aware that according to the highest court rulings of the BAG, there is an obligation to record working hours.
Would you like more tips on the subject of jobs and careers?
Then follow our news pages on the career portals Xing and LinkedIn.
Timekeeping: This is the case that has been negotiated
The case that was being negotiated was actually only about the question of whether works councils can insist on the introduction of an electronic timekeeping system - i.e. have a right of initiative.
The works council's demand for better overtime documentation failed.
The Federal Labor Court justified its rejection if there is already a legal obligation to record working hours.
The fact that the legal dispute led to a landmark judgment visibly surprised the lawyers for the works council and the employer, who runs social and health facilities.
(dpa/cbl)
List of rubrics: © Sina Schuldt/dpa
