Implementation of electronic time recording
The employer is obliged under section 3(2)(1) of the Labour Protection Act (ArbSchG) to introduce a system to record the working time worked by employees. Due to this legal obligation, the works council cannot force the introduction of a system of (electronic) time recording in the enterprise with the help of the conciliation board. A corresponding right of co-determination under section 87 of the Works Constitution Act (BetrVG) only exists if and to the extent that the company matter is not already regulated by law.
The applicant works council and the employers, who run a full inpatient residential facility as a joint operation, concluded a works agreement on working time in 2018. At the same time, they negotiated a works agreement on the recording of working time. No agreement was reached on this. At the request of the works council, the labour court set up a conciliation board on the topic of "concluding a works agreement on the introduction and application of electronic time recording". After the employers objected to its jurisdiction, the works council initiated these resolution proceedings. It sought a declaration that it had the right of initiative to introduce an electronic time recording system.
The Regional Labour Court granted the works council's application. The employer's appeal on points of law against this decision was successful before the First Senate of the Federal Labour Court. Pursuant to section 87 (1), introductory sentence, of the Works Council Constitution Act (BetrVG), the works council only has a say in social matters if there is no statutory or collective agreement provision. Under an interpretation of section 3 subsection 2 no. 1 ArbSchG* in conformity with European Union law, the employer is legally obliged to record the working hours of the employees. This excludes a right of initiative of the works council - which may be enforced with the help of the conciliation board - to introduce a system of recording working time.
LAG Hamm, decision of 27.07.2021, 7 TaBV 79/20
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