In a decision of September 13, 2022 (1 ABR 22/21), for which only the press release is available so far, the Federal Labor Court decided that the works council has no right of initiative when introducing electronic time recording. What is surprising, however, is the reasoning of the Federal Labor Court. According to this, the works council cannot have a right of co-determination when introducing electronic time recording because the employer is already legally obliged to record the working hours of the employees. The BAG thus establishes an obligation to record working hours, the introduction of which the ECJ had actually imposed on the legislature.
Why is?
In the underlying proceedings, the employer and the works council argued about whether the works council had the right to initiate electronic time recording (section 87 (1) no. 6 BetrVG).
The parties initially negotiated the conclusion of a company agreement on electronic time recording. Since no agreement could be reached, the employer decided not to introduce electronic time recording. The conciliation proceedings that followed were made dependent on a legally binding decision on the existence of a right of initiative for the works council.
The corresponding request for a declaration by the works council was rejected in the first instance by the Minden ArbG with a decision of September 15, 2020 – 2 BV 8/20 on the grounds that the works council has no right of initiative when introducing electronic time recording. In response to the complaint lodged by the works council, the LAG Hamm decided by decision of July 27, 2021 (7 TaBV 79/20) that the works council does have such a right of initiative. Due to the associated deviation of the LAG Hamm from the decision of the BAG of November 28, 1989 (1 ABR 97/88), it had allowed the appeal to the BAG.
What has been the case so far?
In the decision of the BAG from 1989, it denied the existence of a right of initiative for the works council within the framework of Section 87 (1) No. 6 BetrVG. In principle, the works council has a right of initiative within the framework of Section 87 (1) BetrVG, but this is limited by the content of its respective right of co-determination and its meaning and purpose. Sense of the right of co-determination according to § 87 para. 1 no. 6 BetrVG in the introduction and use of technical devices that are intended to monitor the behavior or the performance of the employees, be it interventions in the personal sphere of the employees only with equal co-determination allow the works council. The works council’s right of co-determination therefore has a defensive function against the introduction of such technical control devices, the introduction of which is not prohibited as such and the application of which can also be sensible and necessary, taking into account the interests of the employees. However, it contradicts this intended purpose of the right to co-determination if the works council itself – for whatever reason – demands the introduction of such a technical control device.
What does the BAG say now?
In its current decision, the BAG no longer argued with the sense and purpose of Section 87 Paragraph 1 No. 6 BetrVG, but has already started elsewhere and thus caused a real sensation.
In the opinion of the BAG, there is a legal obligation for the employer to record the working hours of the employees if § 3 Para. 2 No. 1 ArbSchG is interpreted in accordance with EU law. This excludes the works council’s right of initiative to introduce a system for recording working hours, since the works council only has a say in social matters according to Section 87 (1) of the introductory sentence of the BetrVG if there is no statutory or collective bargaining agreement.
The BAG is thus largely based on a sensational ruling by the ECJ from 2019, in which it ruled that European working time law requires employers to be obliged under national law to set up an objective, reliable and accessible system with which the daily hours worked by employees can be measured. A corresponding express legal regulation does not yet exist; German working time law only expressly states in Section 16 (2) sentence 1 ArbZG that overtime must be systematically recorded, but not for the entire working time.
However, the BAG now derives such an obligation from Section 3 (2) No. 1 ArbSchG. According to this regulation, the employer is obliged to take the necessary occupational health and safety measures, taking into account the circumstances affecting the safety and health of employees at work. He must check the measures for their effectiveness and, if necessary, adapt them to changing circumstances. In order to plan and implement these measures, the employer must, among other things, ensure a suitable organization and provide the necessary funds, taking into account the nature of the activities and the number of employees.
What does the BAG’s decision mean in practice?
The effects on practice associated with the BAG’s decision can already be assessed as extremely far-reaching and, after the already extensive changes to the Proof Act, mean a further step backwards instead of an approximation to the special features of the modern working world. This applies in particular with regard to flexible working time models such as trust-based working hours, which according to initial estimates will only be possible under difficult conditions in the future. Employers should therefore now at the latest start thinking about introducing a system for recording working hours. It remains to be seen whether the BAG will make statements on the design of the time recording system in the reasons for the decision, which, in our opinion, is not to be expected.
For further information, please contact:
Dr Timon Gray, Partner, Linklaters
timon.grau@linklaters.com
