The name Inken Gallner is rather unknown to the general public. This will probably remain the case in the future, after all, not everyone follows the labor law debates in Germany. And yet Gallner has now made a decision that has very far-reaching consequences – it could affect almost all 41 million workers in Germany.
Gallner, a lawyer and convinced European, has been President of the Federal Labor Court (BAG) since the beginning of the year. On Tuesday afternoon, she announced a fundamental decision, the core sentence of which reads: “The employer is (…) obliged to introduce a system with which the work done by the employees working time can be recorded.” This decision was not expected, since the specific procedure was actually about the powers of works councils.
It is a decision that surprised almost everyone: labor lawyers, employers and employees, and especially the federal government. To put it simply, Gallner only adopted what the European Court of Justice had already decided in May 2019: The member states must oblige employers to set up an “objective, reliable and accessible” working time recording system. This is the only way that the rights from the EU Working Time Directive could be implemented, i.e. the maximum weekly working time and rest periods.
To date, there has not been a mandatory one in Germany Working time measurement, only overtime and work on Sundays and public holidays must be documented. That is why the federal government should have implemented the requirements from Europe quickly. But she took her time. The coalition agreement only states that the “need for adjustment” will be examined. A move by Minister of Labor Hubertus Heil (SPD), which, however, only referred to selected sectors, failed due to resistance from the FDP.
Now many questions are open. Although the Federal Labor Court has emphasized the time recording obligation, employers will hardly be able to avoid it due to its authority as the highest instance of labor courts. However, there are no laws that regulate exactly what this obligation should look like. The question is, for example, how employees should document their working hours. In electronic form? With pen and paper? And when do working hours actually begin – maybe when you start up your work laptop and log in? It is just as open how the recording is to be controlled and what sanctions there are in the event of violations. The legal scholar Frank Bayreuther from the University of Passau tells the SZ that he doubts that the occupational safety authorities could act on the basis of the BAG decision. “The legislature is called upon to regulate this precisely.”
Not all workers should be happy
The annoyance among employers is just as great as the uncertainty. “This means that employees and companies are overwhelmed without legal specification,” says Steffen Kampeter, general manager of the employers’ association BDA. The decision was “not thought through”. In trade union circles he is seen in a much more positive light. “This statement is long overdue,” says Anja Piel, she is a board member of the German Trade Union Confederation. “Employees’ working hours are getting longer and longer, and the number of overtime hours worked has remained at a worryingly high level for years.” Verdi also sees the decision positively. This would close loopholes, says the deputy boss Andrea Kocsis.
Nevertheless, not all employees should be happy: In the creative industries, for example, many people work flexibly, sometimes twelve hours on one day, but four on another day. If the mandatory recording of working hours came for all employees without exception, then such trust-based working time models could hardly be maintained because they would violate maximum limits. The Federal Ministry of Labor is now called upon to create clarity. A spokeswoman announced that a corresponding draft law was already being worked on.