Federal Labor Court rules on time tracking

Timekeeping “Obligation or Not”: a farce in (at least) 3 acts.

The European Court of Justice has long attested that there is a national obligation for time recording. Hubertus Heil and his ministry made the first push with the draft bill to amend the regulations for mini-jobbers, in which he even wrote an obligation for digital time recording into law. Ironically, this passage was scrapped at the insistence of the FDP (the “digitalization party”), because it would lead to even more bureaucracy. Furthermore, German labor law only provides for the recording of “overtime” in the Working Hours Act. Now, the highest German labor court has finally commented – with a surprising justification.

Digital Time Recording (still) not mandatory.

The present BAG ruling concerned the co-determination right of a works council to introduce digital time recording. In other words: a works council wanted to introduce digital time recording. Together with the employer’s side, no agreement was reached. – and sued. The action for the co-determination right failed – because employers must have time recording anyway. This must already be “objective”, “reliable” and “accessible” today according to the European Court of Justice.

Time recording is employee protection - the BAG's reasons

One of the employer’s fundamental duties is to influence the necessary occupational safety measures for employees at work. So far, not surprising. In order to comply with occupational safety, working and rest times, the BAG considers time recording pursuant to § 3 (2) sentence 1 ArbSchG as a fundamental duty of the employer. Anyone who does not have documented time recording is therefore already acting unlawfully today. And the BAG goes even further.

“The obligation to introduce is also not limited to the employer making such a system available for voluntary use to employees (…) According to the case law of the Court of Justice, he must also actually make use of it.”

it writes in its guiding principles. So it must not only exist – it must be actively used and is based on the statements of the European Court of Justice (we recall: “objective”, “reliable” and “accessible”).

“This creates an objective legal obligation for them to act”

The BAG now explicitly instructs politicians to act and create the legal regulations.

Hubertus Heil will now have to become active (not that he hadn’t already wanted to), but the FDP will now find it very difficult to score points with their “bureaucracy monster” argument.

Because time recording is not just annoying bureaucracy, but according to the BAG: health protection. This gives the topic a new quality. And this outweighs money or effort by far. Although employers may take into account their company and its size in the design of their time recording, it must be noted that “the improvement of safety and health protection of employees at work represents objectives that must not be subordinated to purely economic considerations”. Translated: if it serves the safety and health of employees, money plays only a subordinate role.

Conclusion: … or Outlook?

Digital time recording is (still) not mandatory. But it already offers the certainty that the criteria “objective”, “reliable” and “accessible” are guaranteed. These will be the standards for time recording. So it makes sense to develop in the digital direction, as our current minister of labor has already had this topic on his legislative “agenda”. The political will is therefore clear. By linking it to health protection, time recording becomes even more important. Instead of reacting, acting is important. For many employees, the use of time recording as a duty will be a change that is equivalent to a company change. Instead of having to make two changes, it makes sense to strive for one change and actively implement it.

SMARTCHILLI is more than just time recording for the catering industry.

The time recording already meets the requirements of the European Court of Justice. The time recording has been developed for restaurateurs and temporary employment agencies who work together on projects. It is a cloud solution that is ready for use in 5 minutes and, if desired, also includes an event:dating tool for planning shifts for mini-jobbers and a job:sharing tool for recruiting. This development was funded by the BMWK and is currently being launched on the market. Pilot partners are currently being sought who may use the tool until 28.02.2023 – and who will be strategically accompanied during the introduction and the change process. Feel free to contact Frank Spiegelhoff or Thorsten Rensing for this.

Anyone who wants to read the complete guiding principles of the BAG can find them here.