The Federal Ministry of Labour and Social Affairs ("BMAS") has answered the question of "how" to record working time with the long-awaited draft law of April 18, 2023. We classify the consequences for practice.
European Court of Justice (“ECJ”) and Federal Labor Court (“BAG”) put legislators under pressure to act
Already on September 13, 2022, the BAG (1 ABR 22/21) decided, following a corresponding previous decision of the ECJ, that employers are obliged to introduce an objective, reliable and accessible time recording system. The BAG read this European law requirement into the employer's duty to ensure safety pursuant to sec. 3, para. 2, no. 1 of the Occupational Safety and Health Act (“ArbSchG”).
This answered the question of the "whether" of time recording. In order to clarify the question of "how", i.e. the concrete implementation, the BAG, on the other hand, called on the legislator to make a decision.
Reaction of the BMAS - Content of the draft law
The present draft bill, which still has to go through the political bodies, represents the concrete implementation and now prescribes the recording of the beginning, end and duration of daily working time in electronic form, unless there is a legal exception.
Recording by employee or employer on the same day
The draft bill explicitly regulates the employer's obligation to record time in sec. 16 Draft bill of the Working Hours Act (“RefE-ArbZG”). According to this, employers are obliged to electronically record the daily working time of their employees on the day of their work performance and to keep it for a period of two years.
However, the law gives employers the option of having this recording done directly by their employees or their supervisors and thus to delegate it. However, even in cases of delegation, the employer remains responsible; in case of infringement or insufficient documentation, the employer may be fined up to EUR 30,000.
Who is affected by the electronic documentation obligation?
On the employer side, all employers are affected regardless of size. However, small businesses with no more than 10 employees can look forward to relief. In this case, time recording does not have to be done electronically.
Employers bound by collective agreements could also benefit, as the draft bill contains opening and derogation clauses in favour of parties to collective agreements under sec. 16, subsec. 8, sentences 1-2 and 7, no. 1 RefE-ArbZG.
On the employee side, all employees as well as trainees, interns and volunteers are covered by the regulation. Freelancers and managing directors, on the other hand, are not covered. In addition, the draft bill allows for a deviation from the obligation to keep records by collective agreement with regard to employees for whom the total working time cannot be measured or determined in advance due to the special characteristics of the activity performed.
No end to trust-based working time
The good news for employers and employees is that trust-based working time is still possible. Consequently, there is no end to the flexibilisation of working conditions. What is meant is trust-based working time in the form whereby the employee himself records his contractually agreed working hours and the employer refrains from monitoring compliance with the contractually agreed working hours.
Nevertheless, employers will not be able to avoid responsibility here either, but must at least take suitable measures to ensure that they are aware of violations of the legal provisions on the duration and location of working hours and rest periods. In practice, an automated program that alerts the employer in the event of such violations is likely to be useful in order to comply with the legal obligation.
No change in on-call duty and standby duty
The draft bill does not change the classification of on-call time as working time and continues to disregard on-call time in working time - with the exception of significant restrictions on the free allocation of time (ECJ, judgment of 9 March 2021 - C-344/19 and C-580/19; BAG, judgment of 27 July 2021 - 9 AZR 448/20).
Workplace co-determination
Similar to the organization of mobile work (section 87 (1) no. 14 Works Constitution Act), the works council has no right of co-determination on the "whether" of the recording of working time. However, a right of co-determination under sec. 87 (1) nos. 6 and 7 Works Constitution Act can be considered where the employer wants to go beyond the minimum provisions of the planned law or where it still leaves room for manoeuvre.
Open questions
Unfortunately, the draft bill has so far sometimes fallen short of the expectations placed on it by practitioners. In some places, the legislator misses the opportunity to provide clarity. Since the exceptions of sec. 18 Working Hours Act (“ArbZG”) remain, the obligation to record working time should probably not apply to executive employees. However, this has been controversial in practice so far, and a clarification by the legislator would have been desirable. In particular, the relationship between the ArbZG and the ArbSchG, which does not exclude executive employees from the scope of protection, and the application to GmbH managing directors remains unclarified by the legislator.
Unfortunately, it remains unclear which employees are meant in the case of the applicability of a collective agreement whose total working time cannot be measured or determined in advance because of the special characteristics of the work performed. Although the explanatory memorandum of the draft refers to executives, prominent experts or scientists who can decide on the scope and organization of their working time, real clarity will presumably only come from practice.
The draft bill also does not clarify rest and break periods, as these are not covered by the recording obligation. Although the rest periods can be deduced from the records of working hours, the breaks, on the other hand, cannot be deduced from the records.
Finally, it remains unclear (also in the absence of supreme court rulings) whether work that is not time-critical, such as writing a short email in the evening, constitutes (recordable) working time.
Conclusion and consequences for practice: What employers must observe in the future
It is already apparent that the law will not deliver what many practitioners had hoped for. Some questions related to the ArbZG remain unresolved. It will be up to case law to answer these.
Furthermore, against the background of negative freedom of association, it seems at least questionable if opening clauses can only be used with the help of collective bargaining parties. It would have been desirable to take into account the company parties, who regularly know the company's (working time) needs best.
At the same time, the draft law makes it clear that the BAG's requirements can no longer be ignored. Although the draft law grants transitional periods staggered according to the size of the company (five years for companies with less than 50 employees, two years for less than 250 employees and one year for larger companies), employers should already actively deal with the implementation of the coming law and seek advice.
