Obligation to record working time for the employer

With the latest decision of the Federal Labour Court (Bundesarbeitsgericht, BAG) on the topic of “recording working time” of 13 September 2022 – 1 ABR 22/21 – Germany’s highest labour court has now established for the first time that an employer’s obligation to measure and record the working time of its employees follows from section 3, paragraph 2, no. 1 of the Labour Protection Act (Arbeitsschutzgesetz, ArbSchG). Since the ArbSchG is applicable to all employers regardless of sector and field of activity, this obligation will in future apply regardless of whether or not there is a works council. This follows from the recently published press release of the BAG.

The BAG has thus preceded the legislator in implementing the requirements of the European Working Time Directive 2003/88/EC and the related case law of the European Court of Justice (ECJ). The ECJ most recently specified these requirements in its much-discussed so-called “time clock decision” of 14 May 2019 (Case C-55/18). According to this decision, the employer is obliged to create reliable systems with which the daily working time worked by each employee can be measured, in compliance with the European Working Time Directive 2003/88/EC. Without such arrangements, neither the hours worked nor their distribution over time nor the number of overtime hours can be determined objectively and reliably.

According to the ECJ ruling, the legislator is obliged to create appropriate framework conditions that guarantee the recording of working time by the employer. Although with the introduction of the Minimum Wage Act (MiLoG) with section 17 (1) MiLoG in conjunction with section 2a (1) Illicit Labour Act (SchwarzArbG), there has already been an obligation since 2014 for employers in, for example, certain economic sectors or branches of the economy to record working time within one week and to keep these records for at least two years. This applies, for example, to employers in the construction industry (section 2a (1) (1) SchwarzArbG) and in the freight forwarding, transport and related logistics industry (section 2a, (1) (4) SchwarzArbG). However, the form in which the record must be kept is not specified. In case of violations, employers face a fine of up to EUR 30,000.00. Irrespective of this, according to section 16 (2) of the Working Hours Act (ArbZG), employers are obliged to record working hours in excess of the working day, irrespective of the industry.

In February 2022, the Federal Ministry of Labour and Social Affairs had presented a draft law in the course of the changes in the area of marginal employment, which, among other things, also provided for an amendment of section 17 (1) MiLoG. According to this, employers in the relevant economic sectors should now be obliged to record working time “electronically and in a tamper-proof manner”. This was intended to meet (at least in part) the demands made on the legislator by the „time clock decision“. However, the proposed amendments were not taken into account when the law was passed and thus did not come into force or will not come into force on 1 October 2022, as other provisions of the passed law did.

With its latest decision, the BAG has now clarified that, in principle, every employer must record the working hours of its employees in the future. What is new is that the BAG derives this obligation from section 3, paragraph 2, no. 1 of the ArbSchG. According to this, the employer must “ensure suitable organisation and provide the necessary means” to ensure health protection.

The background to the BAG decision was a dispute about the competences of a works council in the context of co-determination. Specifically, it concerned the introduction of a system for recording working time. Pursuant to section 87 (1) no. 6 of the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG), the works council has a right of co-determination in the “introduction and use of technical equipment intended to monitor the behaviour or performance of employees”. In the underlying dispute, the works council had sought a declaration that it had a right of initiative to introduce an electronic time recording system. This has now been denied by the BAG. The BAG explained that the works council only has a right of co-determination if there is no statutory regulation. In the present case, however, such a regulation exists in the form of section 3 paragraph 2 no. 1 ArbSchG.

So far, only the press release and no detailed reasons for the decision are available. Only when this is the case will it be possible to assess whether any freedoms for the employer or exceptions to this obligation are conceivable.

If you have any further questions on the subject, our experts in labour law will be happy to assist you.