No right of initiative of the works council in the introduction of electronic time recording BUT legal obligation to record working time!
On 13 September 2022 the Federal Labour and Employment Court (Bundesarbeitsgericht, BAG) decided that the works council has no right of initiative regarding electronic time recording (1 ABR 22/21). At the same time, the BAG decided that employers are legally obligated to introduce a system for recording working time.
Co-determination in the introduction of electronic time recording
In the case decided by the BAG, an employer and a works council negotiated the conclusion of a works agreement on electronic time recording. In the course of the negotiations, the employer decided not to introduce electronic time recording after all and the negotiations were broken off. In the conciliation committee set up at the request of the works council on the topic “Conclusion of a works agreement on the introduction and use of electronic time recording”, the employer objected to the conciliation committee’s competence. It argued that the works council had no right of initiative regarding the introduction of electronic time recording.
Therefore, the works council applied for a court ruling that a right of initiative regarding the introduction of electronic time recording existed. The employer, on the contrary, took the view that only the employer could decide on the question “if” a technical device according to section 87 para. 1 no. 6 BetrVG (Betriebsverfassungsgesetz – Works Constitution Act) is introduced. Only when such a decision has been taken, the works council has a right of co-determination to protect the employees’ personal rights. However, the works council has no right of initiative regarding the introduction of electronic time recording.
Works council cannot enforce the introduction of electronic time recording
The BAG upheld the first-instance decision of the Labour Court Minden and, contrary to the decision of the Higher Labour Court Hamm, rejected a right of initiative of the works council in the introduction of electronic time recording.
But: legal obligation to introduce time recording
Surprisingly for many and of high importance for the practice, the BAG also decided that if the Working Hours Act is interpreted in accordance with union law, the employer is already obliged to record working time without a change in the legislation.
Consequences for the practice
The decision has far-reaching consequences for the practice:
The works council cannot initiate the introduction of electronic time recording. However, it is now clear that employers are legally obligated to record working time. In the event of non-compliance, this can have far-reaching consequences, in particular regarding the compensation for overtime.
Employers now have to review their working time models, in particular as to whether previous trust-based working time models should be replaced by time recording and more control.
Until the full decision is published, it remains to be seen to what extent the BAG has defined specific requirements for the recording of working time.