Can the works council demand that working hours be recorded? Can the works council demand that working hours be recorded?
Ruling of the Hamm Regional Labor Court causes a stir

Can the works council demand the introduction of working time recording?

A ruling by the Hamm Regional Labor Court (7 TaBV 79/20) caused a stir in July 2021: In this ruling, the works council was granted the right to demand that the employer introduce an electronic time recording system for all employees. But what is so groundbreakingly new about this ruling?

A look at the Works Constitution Act (BetrVG) shows that the works council in companies under Sec. 80 para. 1 No. 1 of the Works Council Constitution Act (BetrVG) to ensure that the laws and regulations applicable for the benefit of employees are implemented. These include, among others, the requirements of the Working Hours Act (ArbZG). In this context, employers shall, pursuant to Sec. 80 para. 2 BetrVG, the documents required for this purpose, i.e. in this specific case the working time records, must be made available to the works council. Here, for example, the question is whether the legal requirements of the ArbZG in Germany are being complied with, which stipulates, for example, the maximum number of hours that may be worked per week and which break times and rest periods must be observed.

At the same time, the Works Council shall, pursuant to Sec. 87 para. 1 No. 6 of the Works Council Constitution Act (BetrVG) provides for a right of co-determination with regard to the introduction and use of technical equipment intended to monitor the behavior or performance of employees – i.e. including electronic recording of working hours.

However, experts have so far disputed whether this results in a so-called direct right of initiative for the works council. This has now been affirmed at least by the LAG Hamm in its recent ruling and states that “the principles for the assumption of a right of initiative […] also apply to the co-determination in the introduction of a technical control device within the meaning of Section 87 (1) of the German Stock Corporation Act (AktG). 1 No. 6 BetrVG are “transferable”.

In the next step, the decision was heard by the Federal Labor Court (BAG). In its ruling (1 ABR 22/21) on 13.09.2022, this court has now determined that employers under Section 3 para. 2 No. 1 ArbSchG are obliged to introduce a system with which the working time worked by employees can be recorded. In this context, the BAG refers to the interpretation of the German Occupational Health and Safety Act (ArbSchG) in conformity with European law and thus to the ECJ ruling on the recording of working hours from May 2019, in which the German legislator has not yet taken action.

It follows from this legal obligation that the works council cannot force the introduction of a digital time recording system in the company with the help of the conciliation body. This is because a corresponding right of co-determination pursuant to Section 87 of the German Works Council Constitution Act (BetrVG) would only exist if a statutory regulation did not already exist.

Note: This blog article does not constitute legal advice and, in particular, cannot replace individual legal advice.

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