Obligation to record working hours is a challenge for employers and employees

GTrade unionists have welcomed the recent judgments of the European Court of Justice and the Federal Labor Court on the subject of recording working hours as “overdue” contributions to better employee protection. But according to the experiences of Stefan Wolf, President of the employers’ association Gesamtmetall, the so-called time-clock ruling has had one main effect so far: it has “put law firms and consultants in a gold-rush mood,” reports Wolf, who is the CEO of the Swabian automotive supplier Elring-Klinger in his main job. “They are now roaming the country trying to convert the resulting uncertainty into high consultant fees.”

Gesamtmetall, as the representative of 7000 companies in the metal and electrical industry, now sees the traffic light coalition all the more called upon to tackle a courageous reform of the statutory work regulations – in order to create clarity again and at the same time ensure scope for flexible work organization.

This is also in the interest of many employees, not just among the 4 million employees in the metal and electrical industry, Wolf explained to journalists in Berlin on Tuesday or mobile working can no longer be offered by companies in the form practiced so far”.

The European Court of Justice (ECJ) gave the impetus for all this in 2019, when it formulated new principles in a decision on a case from Spain. According to this, the EU states must oblige all companies to “set up an objective, reliable and accessible system with which the daily working hours worked by each employee can be measured”.

And against this background, in September 2022 the Federal Labor Court, somewhat unexpectedly, used a dispute about the rights of works councils to derive a direct legal principle for Germany from it: Every employer is obliged to “introduce a system with which the working hours worked by the employees are recorded can be”.

Legal situation is uncertain

The uncertainty for employers now lies in the fact that it is difficult for them to assess the extent to which they actually have to enforce the recording and documentation of working times in their companies. In addition to trade unionists, well-known consulting service providers and employment law firms had concluded in public statements that complete time recording was now mandatory for everyone, without any political involvement whatsoever.

In jurisprudence, however, this interpretation is at least controversial. Since the ECJ ruling, Gregor Thüsing, Director of the Institute for Labor Law and Social Security Law at the University of Bonn, has regularly pointed out that the exact wording is very important: It is not the same whether companies have a time recording system for everyone have to offer – or whether they really have to enforce collection for everyone.