Now it has been decided by the highest court: According to a ruling by the Federal Labor Court (BAG), there is an obligation to record working hours in Germany, which is currently the subject of heated debate in the traffic light government, in business and among labor law experts. The President of Germany's highest labor court, Inken Gallner, justified the employer's obligation to systematically record the working hours of their employees on Tuesday in Erfurt with the interpretation of the German Occupational Safety and Health Act after the so-called time clock judgment of the European Court of Justice (ECJ).
Experts expect that the BAG fundamental judgment (1ABR 22/21) will have far-reaching effects on the trust-based working time models that have been practiced thousands of times in business and administration, including mobile work and home office, because there is more control with it. According to the German Working Hours Act, only overtime and Sunday work has to be documented, not the entire working time. The Bonn labor law professor Gregor Thüsing called the decision of the federal labor judges a bang.
It fell after negotiating a case in North Rhine-Westphalia in which a works council failed with its demand for the right to initiate an electronic time recording system. The Federal Labor Court justified its decision by ensuring that co-determination or a right of initiative is excluded if there is already a legal obligation to record working hours.
With its landmark decision, the Federal Labor Court pushed ahead in the debate about changing the German Working Hours Act. The federal government is still working on transposing the 2019 ECJ requirements for the introduction of an objective, reliable and accessible recording of working hours into German law.
Gallner, presiding judge of the First Senate, referred to a passage in the Occupational Health and Safety Act that obliges employers to introduce a system with which the hours worked by employees can be recorded. "If you interpret the German Occupational Health and Safety Act with the stipulations of the European Court of Justice, then there is already an obligation to record working hours," she said at the hearing.