The mandatory recording of working hours has become the focus of companies and HR managers at the latest since the ruling of the Federal Labor Court (BAG) on September 13, 2022. While many companies are still busy with the technical and organizational implementation, the question arises as to the co-determination rights of the works council – in particular the right of initiative and right of inspection. This article offers HR decision-makers and company managers a compact overview of the current legal situation and provides practical recommendations for introducing a time recording system in line with the works council and legislation.
Contents
Current legal framework for recording working time
In its ruling dated 13/09/2022 (Ref. 1 ABR 22/21 ) clarified that employers are legally obliged to introduce a system for recording working hours. This obligation arises from Section 3 (2) No. 1 ArbSchG – interpreted in light of the ECJ ruling from 2019. This is not only about recording attendance time, but also about ensuring that statutory working time regulations such as maximum working hours, break regulations and rest periods are observed.
The works council’s right of initiative – what is permitted?
The Hamm Regional Labor Court (Judgment of 27.07.2021, Ref. ) had initially ruled that the works council could assert a right of initiative to introduce an electronic Time & Attendance system. This meant that the works council could have actively demanded the introduction of such a system, even if the employer was not planning to do so.
However, this legal opinion was revised by the Federal Labor Court in the above-mentioned decision: Since employers are legally obliged to introduce Time & Attendance, the works council’s right of initiative for the initial introduction of a system no longer applies.
Nevertheless, the works council has a right of co-determination in accordance with Section 87 (1) No. 6 BetrVG – in particular with regard to the specific design of Time & Attendance, e.g. the selection of technical systems (e.g. terminal, web interface or app), the question of whether trust-based working time or to-the-minute recording is used, the regulation of breaks, correction processes and documentation.
Right of inspection of the works council: transparency in working hours
In addition to the right of co-determination, the works council has the right under Section 80 (2) BetrVG to inspect employees’ working time records in order to monitor compliance with statutory and collectively agreed working time requirements, to identify overloads or systematic violations, to point out grievances and, if necessary, to demand remedial action. This right of inspection is particularly important in the case of mobile forms of work, mobile working or home office, as well as in the case of trust-based working hours or a high degree of flexibility in everyday working life.
Recommendations for HR decision-makers
To ensure that companies are on the safe side – legally, technically and organizationally – it is advisable to take the following steps:
- Prepare legally compliant implementation: Check the applicable requirements from the Occupational Health and Safety Act and current case law. Develop a concept for Time & Attendance that meets the minimum legal standards.
- Involve the works council at an early stage: Involve the works council in the planning for the introduction and selection of the system. Develop a company agreement on the design of the Time & Attendance system together.
- Select the right time recording system: Pay attention to user-friendliness, customizability and data protection compliance. Consider hybrid forms of work, mobile use and interfaces to HR software.
- Transparent communication within the company: Inform your employees about the introduction in good time. Train managers and teams in how to use the new solution.
- Don’t forget data protection: The recording of working times is personal – make sure you comply with the GDPR. Clear deletion periods, access rights and documentation are essential.
Conclusion
The introduction of a time recording system is not a “nice-to-have”, but a legal necessity. For HR decision-makers and companies, this means not only taking action, but also cooperating strategically with the works council or staff council. While the right of initiative is restricted, the right of co-determination remains in place – and the right of inspection strengthens the works council’s monitoring function. With a well thought-out implementation, you not only create legal compliance, but also trust, transparency and efficiency in everyday working life.
Note: This blog article does not constitute legal advice and, in particular, cannot replace individual legal advice.