Mwill the working times of all employees in Germany have to be precisely recorded and documented in the future? And is this the end of the so-called trust-based working hours? A much-noticed judgment of the Federal Labor Court (BAG) from the past week seems to point in that direction. However, more clarity about the intentions of the court will only be provided in a few weeks by the written reasons for the judgment. In any case, the pressure on the traffic light coalition is already growing to legally re-regulate the working time law - and at the same time to re-secure the so-called trust-based working time.
This is also the view of the German Management Association ULA, whose membership is now naturally faced with particular challenges in dealing with the new case law: The judgment of the BAG "should now lead to concrete legal requirements as quickly as possible," warns ULA President Roland Angst.
"A legal regulation on the recording of working hours should continue to allow generally proven models, such as working hours based on trust," he told the FAZ Regulations do not apply to officers. "Therefore, they cannot be subject to any timekeeping," concludes ULA boss Angst.
The traffic light coalition agreement also wants flexibility
Political pressure to maintain flexible handling of working time recording (the basis for so-called trust-based working time models) also results from the traffic light coalition agreement. The general manager of the employers' association Gesamtmetall, Oliver Zander, draws attention to this and provides the substantive justification: "As diverse as the operational and individual work models are, the recording of working hours in practice in German companies is as different," explains Zander. "This practice has proven its worth."
In fact, the SPD, Greens and FDP had already decided at the beginning of the legislative period to “check” together with the social partners what need for adjustment they saw “in view of the case law of the European Court of Justice on working time law”. An important goal of this examination they had in coalition agreement expressly defined: "Flexible working time models (e.g. trust-based working hours) must continue to be possible."
Should the case law of the Federal Labor Court of its own accord lead to stricter recording of working hours in Germany, the legislature would probably no longer have to concern itself with these political wishes. However, the political task of securing leeway for so-called trust-based working hours through suitable changes to the law would remain.
Whether the judgment of the European Court of Justice (ECJ) of 2019 mentioned in the coalition agreement also means stricter requirements for Germany was controversial at least until the most recent judgment of the BAG. Among other things, this involves the question of whether working times actually have to be recorded in each individual case - or whether it is sufficient for the employer to offer its employees an easy-to-use option to do so.
There is also another aspect: the occupational safety and health to which the BAG refers aims to monitor compliance with statutory maximum working hours. However, this is not automatically the same as checking the (usually shorter) contractual working hours.