In September 2022 the Federal Labour Court found that employers are obliged to record working hours of employees as part of their general duty to ensure the employees' health and safety in the workplace. Regarding the "how" of this recording, i.e. the configuration of a recording system, a works council existing in the employer's establishment has a co-determination right. Consequently, the Regional Labour Court of Munich recently ruled that this right of co-determination also contains a right of initiative. The works council can thus force a regulation of this matter even if the employer is unwilling to negotiate.
In the case decided by the court, the employer declined the initiative of the local works council to negotiate on the configuration of a system to record working hours for employees in the field force. The reasoning was that the employer did not want to act until the pending amendment of the German Working Hours Act had been introduced, as he hoped that he may then not be obliged to record the working hours of the field force employees concerned after all.
The court found that this was not a valid reason to deny the works council the right to co-determine the matter. Employers cannot validly argue that they have not decided yet whether they want to comply with their obligations.
Practical Point
- The right of co-determination of the works council and thus also the right to initiate negotiations only concerns the "how" of the implementation of a recording system for working time and not the "if" because the employer is already obliged to introduce such system anyway according to the September 2022 Federal Labour Court ruling, thus lacking any leeway that would allow for negotiation on the "if".
- If the employer refuses to negotiate with the works council in matters of co-determination, a conciliation committee is to be set up upon request of one of the parties to resolve the issue, Sec. 76 Works Council Constitution Act (BetrVG).
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