Decision of the Regional Labour Court of Munich dated 11 July 2022, 4 TaBV 9/22
In order for employers to be able to comply with this obligation, they should delegate these recording obligations to the employees and carry out random checks at the very least.
Since the rulings of the European Court of Justice (EuGH / ECJ) (also read ››) and the German Federal Labour Court (BAG) (also read ››) on the recording of working time, discussions on the continued permissibility of trust-based working time have been intense. As a matter of principle, it is widely agreed that trust-based working time will remain possible.
In the case now decided, also the Regional Labour Court (LAG) of Munich has assumed that working time on the basis of trust and the recording of working time do not contradict each other. In the case of trust-based working time, the employer only waives the control of working hours. However, working time on the basis of trust does not release him from his recording obligations.
In the present case the works council had requested the employer to submit records on
- the beginning and end of the daily working hours
- overtime and undertime in relation to the weekly target working time, as well as
- Sunday and public holiday hours,
well aware that such records did not exist. The general works agreement, which grants all employees in the sales and distribution field service the right to determine their own working hours within the established working time framework, explicitly required employees to comply with the German Working Hours Act and to record all working days on which they worked more than eight hours excluding breaks. Further recording obligations were not imposed on the employees. No records of the working hours of these employees were kept by the employer himself.
However, neither the works council nor the Regional Labour Court (LAG) of Munich considered this to be an obstacle to the asserted right to information. On of the responsibilities of the works council is to ensure that the laws in favour of the employees are complied with (Sec. 80 (1) no. 1 German Works Council Constitution Act (BetrVG)). In order to check compliance with the provisions of the German Working Hours Act, including the required rest periods, the works council must be provided with the requested information.
The fact that the employer does not record the working hours of the employees does not preclude the right to information. In principle, information only has to be provided if the employer actually has the requested information. However, this is not the case if the employer does not have the requested information only because he does not want to have it. The employer simply has to request the information for the works council from the employees.
However, at the same time it is clear that the requested information cannot be conjured up by the employer. If the employer does not meet his obligations under the court order, the works council can request that the employer be ordered to pay a fine, which may amount up to EUR 10,000.
The employer can and should delegate the recording obligations to the employees and at least carry out random checks whether the recording is actually done. Currently there are no special requirements for the form of recording. Even an Excel list kept by the employee is sufficient.