Even if trust-based working time is agreed, recording working hours is necessary. The Munich Regional Labor Court decided this in a judgment on July 11, 2022 (Az.: 4 TaBV 9/22).
Employers must establish systems for recording working hours. The Federal Labor Court made it clear in a decision on September 13, 2022, that there is an obligation in Germany for systematic recording of working hours (Az. 1 ABR 22/21). The BAG followed the so-called time clock ruling of the ECJ from May 14, 2019. According to the judgment of the Munich Regional Labor Court from July 11, 2022, it is also clear that even trust-based working time is no exception and the employer must record working hours, explains the law firm MTR Rechtsanwälte, which focuses its advisory services on labor law. Previously, labor law only required the recording of overtime.
The case before the Regional Labor Court in Munich involved the working hours of a company’s sales representatives. It was contractually regulated in a company agreement that trust-based working time applies in the field. Accordingly, the sales representatives could manage their working hours independently. The employer did not monitor their working hours or record time.
However, the works council opposed this and demanded that the company provide information on the specific working hours in the field. The legal dispute eventually landed before the Regional Labor Court in Munich, and here the employer did not succeed with his argument that time recording is not required when trust-based working time is agreed upon. Compliance with the Occupational Health and Safety Act is one of the works council’s duties, the court explained. This includes compliance with working hours. To verify this, the works council is entitled to information about daily working hours, including overtime, Sunday and holiday work. This applies even when trust-based working time is agreed upon, according to the Munich Regional Labor Court.
Following the judgments of the Munich Regional Labor Court and the BAG, employers must introduce systematic recording of working hours. This does not automatically mean the end of trust-based working time, as the judges left room for maneuver and did not specify how time recording should be conducted.
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