In an earlier ruling this year, the European Court of Justice held that European member states must require employers to introduce systems for recording the working time of their employees. However, since there is no German law stipulating time recording( with the exception of overtime recording duties) yet, typically it is up to the employer whether or not to introduce consistent time recording mechanisms.
In the underlying case, the works council wanted to force the employer into negotiations for an electronic time recording system within the company. The employer argued that the works council did not have the right to initiate such negotiations. While the works council has a co-determination right with regard to systems allowing the employer to monitor employees, the employer was of the opinion that this did not allow the works council to enforce the establishment of such a system. The works council subsequently sought the establishment of a conciliation committee, which is set up by a court ruling if a works council co-determination right is not “evidently excluded”.
The Regional Labour Court Hamm therefore had to decide whether the works council was allowed to initiate such negotiations (judgment dated July 4, 2019, docket number 7 TaBV 93/18).
The court decided that it was not “evidently excluded” that the works council’s co-determination right also supported the request to implement the time recording system. While the right to initiate negotiations with regard to issues that are subject to co-determination is excluded if this goes against the rationale and purpose of the co-determination right, this was, according to the court, not “evident” here.
Please note that due to the lower standard of scrutiny with regard to the establishment of a conciliation committee, this does not necessarily mean that a works agreement must be concluded and that the works council can enforce time recording mechanisms. Whether or not a true right to initiate negations exists will subsequently be decided by the conciliation committee.