Co-determination Rights in the Introduction of Electronic Working Time Recording – Reasoning of the Federal Labor Court (BAG)
On March 13, 2024 (Case No.: 1 ABR 20/24), the Federal Labor Court (BAG) clarified the framework of co-determination rights regarding the introduction of an electronic system for recording working hours. The publication of its reasoning provides clarity about the role of works constitution committees in this context.
Background of the Proceedings
The subject of the proceedings was the question of whether a works council has the right to initiate action if an employer has not yet introduced a technical system for systematic time recording. The works council demanded the introduction of an electronic system and asserted a co-determination right under § 87 para. 1 no. 6 BetrVG. The BAG’s decision was issued within the context of conciliation board proceedings.
Exclusion of the Works Council’s Right of Initiative
Substantive Distinction according to § 87 BetrVG
The BAG clarified that the co-determination right under § 87 para. 1 no. 6 BetrVG applies exclusively to the type and design of a system for time recording that has already been established. There is no right of initiative regarding the initial introduction of such a system so long as the employer is not formally obliged to implement it. The court rejected the possibility of compelling the employer to introduce an electronic time recording system via a conciliation board.
Relevance of the Decision
In addition, the BAG refers to recent jurisprudence on the Working Hours Act, stating that employers are generally required to introduce a system that documents the start and end times of employees’ daily working hours. However, this requirement arises directly from occupational safety law and was not the subject of the co-determination decision of the conciliation board.
Implications for Operational Practice
Specification of Co-determination
According to the court, the works council retains a co-determination right regarding the “how” of implementing and designing the time recording system, but not the “whether”. The meaning of § 87 para. 1 no. 6 BetrVG thus focuses on technical and organizational aspects of existing systems, not on the fundamental decision to introduce such a system.
Distinction from Statutory Duty
The BAG further differentiates between workplace co-determination and the legal duty of working time recording. Should the employer be legally required to introduce time recording – for example, due to statutory requirements – their decision-making authority is removed to that extent and co-determination refers only to the design of the specific system.
Conclusion and Legal Context
The decision of the Federal Labor Court highlights the separation between statutory duties of the employer and the collective rights of works council participation. The works council’s right of initiative is limited to aspects concerning the design of a time recording system. The reasoning of the BAG’s decision can be accessed on the court’s website (source: https://www.bundesarbeitsgericht.de/entscheidung/1-abr-20-24/).
Companies, works councils, and investors are thus encouraged to carefully consider current case law when organizing workplace time recording. If you have questions about co-determination rights or current obligations regarding time recording, the advisory team at MTR Legal is happy to assist you. Further information and contact details can be found under employment law advisory services.
