The draft invoice seems to be to make clear the principles, however uncertainties stay.
For the reason that much-discussed determination of the German Federal Labour Courtroom of 13 September 2022 (1 ABR 22/21), employers have been obliged to report the working hours of their employees in Germany. Though the Federal Labour Courtroom selected particular elements, such because the extent of the working time to be recorded, element continues to be missing. A “practicable proposal” on the recording of working time, which was introduced by Federal Ministry of Labour and Social Affairs to be printed within the first quarter of 2023, was subsequently extremely anticipated.
As a substitute, a draft invoice on the modification of the German Working Time Act (Arbeitszeitgesetz – ArbZG) was printed. The draft implements the selections of the German Federal Labour Courtroom and the European Courtroom of Justice from earlier years on the recording of working time and introduces rules on the concrete design of the recording of working time. Nevertheless, the brand new provisions will solely partially get rid of present authorized uncertainties for employers.
Important new provisions
The draft basically accommodates the next new provisions in sec. 16 ArbZG:
- The employer is obliged to electronically report the start, finish and length of every day working time on the day of labor efficiency (sec. 16 para two ArbZG).
- The recording of working time will be performed by the worker himself or by a 3rd occasion. The employer stays accountable for the correct recording of working time (sec. 16 para. three ArbZG).
- Within the occasion of recording of working time by the worker and if the employer waives the management of working time, the employer shall take applicable measures to make sure that they grow to be conscious of violations of the ArbZG (sec. 16 para. 4 ArbZG).
- The employer is obliged to tell the worker of the recorded working time upon request and to supply a duplicate of the information (sec. 16 para. 5 ArbZG).
- Information of working time shall be saved by the employer in German for the complete length of the workers’ precise employment, not less than throughout the complete work or service, however not longer than two years in complete. On the request of the supervisory authorities, information of working time should be saved out there on the place of employment (sec. 16 para. six ArbZG).
An infringement of the duty below the amended sec. 16 para. two, 5 and 6 does straight lead to a superb of as much as €30,000.00.
Methodology of digital recording
The draft doesn’t present for a selected technique of how digital recording ought to be carried out. Along with the time recording gadgets already in use, different sorts comparable to apps on cell phones or the usage of standard spreadsheet programmes are thought of appropriate. Collective recording of working time via the use and analysis of digital shift schedules is one other chance to report working time.
Delegation to staff
The employer is allowed to delegate the recording of working time to the workers. Nevertheless, because the employer stays accountable, they need to explicitly instruct staff to correctly report their working time and monitor this by finishing up spot checks. This method will make sure the employer is ready to partly justify themselves to the occupational well being and security authority within the occasion of a breach of the recording obligation. The occupational well being and security authority shall contemplate the extent to which the breach of the record-keeping obligation is solely brought on by the workers.
Belief-based working time
A trust-based working time (Vertrauensarbeitszeit) with free planning of time allocation can nonetheless be agreed. Employees can proceed to find out the beginning and finish of labor themselves. Nevertheless, the employer should guarantee they grow to be conscious of violations of the provisions of the ArbZG (eg, on the utmost permissible working hours or on the uninterrupted relaxation interval after the tip of the every day working time). This may be achieved, as an example, by an automated warning message from the digital time recording system.
Exceptions to the duty to report working time
- The duty to report working time electronically doesn’t apply to employers with as much as ten staff and to employers with out an working website in Germany if as much as ten staff are seconded to Germany (sec. 16 para. eight ArbZG).
- As well as, the draft accommodates a gap clause, in keeping with which the settlement of deviating rules in a collective bargaining settlement, on the premise of a collective bargaining settlement in a works council settlement is feasible (sec. 16 para. seven ArbZG). In these agreements, the non-electronic recording of working time, the day on which working time shall be recorded and sure teams of staff will be exempted from the recording obligation. This shall be potential for workers who can resolve on the scope and allocation of their working time themselves (eg, managers, scientists and specialists).
The difference of the ArbZG to the necessities of the fashionable working world, which has been hoped for years, has didn’t materialise. Nevertheless, it was most likely to not be anticipated within the quick time because the determination of the Federal Labour Courtroom in September final 12 months.
Sadly, the draft doesn’t resolve all uncertainties within the adjusted areas. The query of which staff’ working time should be recorded was not clarified. Whether or not govt staff (leitende Angestellte) inside the which means of the German Works Structure Act (Betriebsverfassungsgesetz) are additionally topic to the duty to report working time was controversially mentioned earlier than. Primarily based on the present draft the exception in sec. 18 ArbZG would nonetheless be relevant and the duty to report time wouldn’t apply to them. As well as, it’s probably there shall be difficulties in figuring out which staff will be fully exempted from the duty to report working time in collective agreements. The cited examples (managers, scientists and specialists) present scope for interpretation.
Moreover, the draft doesn’t present for any particular rules on relaxation and break instances with regard to the duty to report time. Whereas breaks most likely shouldn’t have to be recorded and thus can’t be supervised, compliance with the remaining interval will be derived from the recorded working hours. On this respect, some clarification by the legislator would have been helpful. The draft additionally doesn’t include any provisions on particular types of work comparable to cellular working or working from house.
However, employers ought to take care of the brand new provisions swiftly, because the amendments of the ArbZG shall come into power in the beginning of the quarter following its promulgation and motion is already required from this level on. The start, length and finish of working time should be recorded by the employer as quickly as the brand new regulation comes into power.
The draft merely gives a transitional regulation in keeping with which employers are granted an implementation interval for the introduction of a system for the digital recording of working hours. All employers might also report working time non-electronically for as much as one 12 months after the amendments enter into power. Employers with fewer than 250 staff are granted an implementation interval of two years, employers with lower than 50 staff have an implementation interval of 5 years.