On 18 April 2023, the Federal Ministry of Labour and Social Affairs published a draft of a law to reform the Working Hours Act, which the Federal Government is now discussing.
Reason for the new draft of a law
The Federal Government is reacting to the rulings of the European Court of Justice and the Federal Labour Court. Already in 2019, the European Court of Justice had ruled that there is an obligation to record working time due to Art. 3, 5, and 6 of the Working Time Directive (European Court of Justice, ruling of 14.05.2019, ref. C-55/18). In its decision of 13.09.2022 (Ref. 1 ABR 22/21), the Federal Labour Court also established an obligation for employers to generally record working time.
Digital and same-day recording
The draft amendment to the Working Time Act provides that the beginning, end and duration of daily working time shall in principle be recorded digitally. The working time must be recorded on the same day as the work is performed. In addition, the employer is obliged to inform the employee about the hours worked by printing out the electronic record if requested to do so. The records are to be made in German and must be kept for a period of at least two years.
According to the draft, exceptions to this regulation are possible in the following cases:
- when a collective agreement is applicable or on the basis of a collective agreement by a company agreement,
- for small businesses with up to ten employees,
- for foreign employers without a permanent establishment in Germany who post less than ten employees to Germany, and
- for domestic workers in private households.
Confidential working time should continue to be possible
Confidential working time is a working time model in which the employer waives the right to determine the beginning and end of the contractually agreed working time. In this case, the employer trusts that the employee will fulfil his or her duty to work. In confidential working time, the employer is supposed to delegate the obligation to record working time to the employee and to ensure that he is aware of any violations of the legal provisions on working time and rest periods.
Fines for non-compliance with the obligation to record working time
The draft of a law provides that violations of the obligation to record can be punished with a fine of up to EUR 30,000.
The legal obligation to record working time will apply as soon as the law comes into force. Even if there will be a one-year transition period, employers who employ more than ten workers should prepare for the digital recording of working time and create the necessary technical conditions for it in good time.
Conclusion: Employers should prepare for digital working time recording
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