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Summary
This article deals with the aftermath of the ECJ’s CCOO judgment (14 May 2019, C-55/18), which has been a major issue in various EU jurisdictions. The article consists of two parts. This first part introduces the case, its primary consequences in Germany and deals with a comparison of legal requirements throughout Europe. The second part will discuss some particular consequences in Germany.
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Background
For almost 3.5 years, German jurisprudence has been working on the consequences of the so-called "CCOO" decision of the ECJ (decison of 14 May 2019 – C-55/18) for German law. Especially, since according to German law, only the working hours of employees that exceed a duration of 8 hours per day have to be recorded, according to Section 16 (2) of the German Working Time Act (Arbeitszeitgesetz – "ArbZG"). The legislator, however, despite frequent request to regulate, remains stubbornly inactive, and so far there has been no change to the national legislation (in the meantime, on 18 April 2023, the Federal Ministry of Labor and Social Affairs published a first draft bill, which - as is rumored - has been harshly criticized not only by the opposition but also by the government itself, so that it is absolutely uncertain whether it will be pursued in this form at all; in any case, an adapted draft could not hurt, since the current draft definitely contains solutions that are far from being practical). It remains unclear how exactly the employer’s record-keeping obligations with regard to the working hours completed by its employee, which are relatively clearly stipulated by the ECJ, will be contoured by the German legislature.
However, a recent decision by the German Federal Labor Court (Bundesarbeitsgericht – “BAG”), judgement of 13 September 2022 – 1 ABR 22/21, gives reason to once again take a closer look at impending obligations to act if case law is duly applied.
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Recent developments in Germany: Federal Labour Court decision of 13 September 2022
Facts
A works council had tried to persuade the employer to introduce electronic work time recording. Thereby, the works council relied on Section 87 (1) No. 6 of the Works Council Constitution Act (Betriebsverfassungsgesetz – “BetrVG”) that states:
“(1) The works council has a right of co-determination in the following matters in so far as they are not prescribed by legislation or collective agreement:
[…] the introduction and use of technical devices designed to monitor the behaviour or performance of the employees;”
guarantee an appropriate organization and provide the necessary means […]”
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Requirements and obligations to act according to BAG and ECJ
EU requirements
According to the decision of the ECJ of 14 May 2019 (C-55/18, para. 60)
“[…] the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured.”
This statement originates from a decision on Spanish labor law, which seems to be comparable to German labor law with regard to the employer’s documentation obligations concerning employees’ working hours. The complaint was filed by a trade union which demanded the implementation of a system for recording the daily working hours of employees – inter alia because the overtime payment of its members was to be controlled.
The central connecting factor of the above statement is the Working Time Directive (Directive 2003/88/EC of 4 November 2003), which contains well-known requirements, such as the eleven-hour rest period or the maximum weekly working time of 48 hours on average, and Article 31 (2) CRF that states:“Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”
In order for these provisions to be effective, the employer is obliged to provide an appropriate documentation system for working time. This, in turn, must objectively and reliably reflect the number of hours actually worked by the employee as well as their timing and the hours worked in excess of the usual working hours.
The subject matter of the recording obligation from the ECJ’s point of view is thus clearly outlined:
All working time including beginning, end and the breaks in between must be recorded. Only this way is it possible to check whether the daily and weekly maximum working hours and the daily and weekly minimum rest periods are being observed.
German Requirements
a) Manual time recording and delegation are (still) possible
In turn, neither the Working Time Directive nor the case law of the ECJ contain any specific form requirements for the recording of working time, and the BAG does not specify such requirements either. Rather, the BAG confirms that the recording of working time can (continue to) be carried out by the employer as well as by the employee and that technical options are not subject to any specifications. This means that as long as there is no legal regulation to the contrary, handwritten self-recordings of working hours are sufficient, at least to the extent that they are sufficiently verifiable in Germany.
b) Control obligations as a minimum standard
From the point of view of practical effectiveness of the Working Time Directive, however, it must be assumed that there is an obligation on the part of the employer to check the documentation to be generated: An uncontrolled working time recording system offers no guarantee whatsoever that the working times recorded correspond to those actually worked. This does not meet the requirement of a "reliable system". Considering that it is hardly possible to demand protection against all kinds of potential manipulations, for the assumption of a reliable system, however, in practical implementation there must at least be protective and control mechanisms in place that prevent obvious manipulations.
It is difficult to deduce from the existing decisions of the national labor courts or the ECJ which inspection interval is to be observed. For Germany, an outer limit is certainly the inspection of compliance with the maximum working time of 48 hours at six-month intervals, since Section 3 ArbZG states:
“The work shifts of the employees on working days may not exceed eight hours. They may be extended to ten hours only if the average shift within six calendar months or twenty-four weeks does not exceed eight hours per working day.”
In contrast, compliance with the minimum daily and weekly rest periods is completely independent of time intervals. In view of the large number of conceivable violations within a six-month period, it can be assumed that the inspection interval to be observed by the employer should be set well below six months.
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Comparison
As these requirements are important yet unclear, we asked our fellow national correspondents to fill in the key requirements.
ZIE TABEL IN EXCEL FILE
The employer refused to do so, pointing out that electronic time recording is a technical control device for the introduction of which the works council has no right of initiative.
Judgment
Although the Higher Labor Court (Landesarbeitsgericht – “LAG”) of Hamm found that Section 87 (1) No. 6 BetrVG did contain a right of initiative on the part of the works council, the BAG held that the works council did not have a right of initiative for the introduction of (electronic) work time recording. This would be the case – and that is a really “new point” of view in the German from a German perspective – in the BAG’s view, because employers are under the original obligation to maintain and actively use a working time recording system. This duty is inferred from employers’ basic obligations under Section 3 (2) No. 1 of the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work (Arbeitsschutzgesetz – “ArbSchG”). According to this provision:
“(1) The employer has a duty to take the necessary measures of occupational safety and health, taking account of the circumstances, to influence the safety and health of workers at work. He shall examine the effectiveness of those measures and, where necessary, adapt them to changing circumstances. His aim in doing so shall be to improve the safety and health protection of the workers.
(2) When planning and implementing the measures referred to in subsection (1), the employer shall, in the light of the nature of the activities and the number of workers,
The court held that there was no room for a right of initiative on the part of the works council if the employer already had an original duty to implement the relevant measure.
In this context the BAG pointed out, that according to its opinion, the obligation of national employers to implement and maintain a system recording their employees’ working time does not follow directly from Article 31 (2) EU Charter of Fundamental Rights (“CFR”), because Article 31 (2) CFR, in its view, does not establish any direct obligation in this respect. The fundamental right under Article 31 (2) is, however, concretized by Art. 3 and 5 of the Working Time Directive 2003/88/EC. According to ECJ case law (ECJ of 14 May 2019 – C-55/18, para. 60), the EU Member States shall oblige employers to introduce an objective, reliable and accessible system with which the working times of employees can be measured in order for the Directive to have its full effect. Moreover, simply recording the beginning and end of daily working hours shall not be sufficient, but the corresponding data shall also be collected and recorded. Hence, an employer must actually make use of the system.
In Germany, the legal obligation to record working time follows from Section 3 (2) No. 1 ArbSchG. This provision shall be interpreted in line with EU law to include the obligation to record working time. Hence, according to the BAG’s argumentation, there is no right of initiative for the works council. This interpretation, which anchors the basis for the legal obligation to record working time in the ArbSchG, is not precluded by the fact that the substantive requirements for working time are actually governed by the ArbZG.
The BAG further held that works councils have a right of co-determination with regard to the form and structure of time recording, but they may not insist on, e. g., work time recording in electronic form, because the employer has an entrepreneurial leeway regarding the form of time recording.
While according to Article 17 (1) of Directive 2003/88/EC, statutory exemptions from the obligation to record working time are possible under national law (if the working time cannot be measured and/or predetermined or determined by the employees themselves due to special characteristics of the activity performed), in Germany, the obligation to record working time to date applies to all employees in the absence of established exceptions (apart from Section 18 ArbZG that stipulates, that the ArbZG “[…] is not applicable to: […] executive staff within the meaning of Section 5 (3) BetrVG.”)