First draft law on the recording of working time

With an officially unpublished draft bill dated 18 April 2023, the Federal Ministry of Labour and Social Affairs has taken a first step towards reforming the Working Time Act (Arbeitszeitgesetz, “ArbZG”). In general, the draft bill does not provide for any surprising amendments. The draft is essentially limited to the implementation of ECJ case law on the recording of working time and leaves a lot unclear.

In its decision of 13 September 2022 (Case No. 1 ABR 21/22), the Federal Labour Court (Bundesarbeitsgericht) derived a general duty to monitor daily working time from Sec. 3, Para. 2, No. 1 of the Labour Protection Act (Arbeitsschutzgesetz) (for more details, please refer to our Insight of 15 September 2022). The German legislator was thus called upon to standardise the details of the recording of working time in Germany.

Since there is much to suggest that the present draft bill is not yet final, we will limit ourselves to the following brief summary of the planned innovations:

• The core of the draft bill is the obligation to record the beginning, end and duration of daily working time.
• In principle, the recording must be made electronically on the respective day of the work performance.
• The employer may delegate the recording to employees or third parties, but remains responsible in any case. It is therefore questionable whether and how an effective delegation of the recording obligation to employees would be possible, i.e. whether training and instructions would suffice.
• Records of working time shall be kept for at least two years.
• According to the draft bill, the employee has a right to be informed about the recorded working time upon request and to be provided with a copy. This should significantly ease the burden of proof for employees in remuneration proceedings.
• Trusted working time should remain possible, because the employer can waive control of the contractually agreed working time. Nevertheless, the employer must then ensure to become aware of non-compliance with statutory working time and rest period requirements.
• Collective agreements (Tarifverträge) may provide for deviations, for example a non-electronic form of time recording.
• The draft law provides for a one-year transitional arrangement under which working time may initially be recorded in non-electronic form. For employers with less than 250 employees, this exemption will apply for two years and for employers with fewer than 50 employees for five years after the regulation comes into force.
• In the event of a breach of the record-keeping obligation, a fine of up to EUR 30,000 is threatened.

As this is only an first draft, further developments and changes to the draft remain to be seen. Experience with the Whistleblower Protection Act (Hinweisgeberschutzgesetz) in Germany has shown that there is still a long way to go before the reformed ArbZG actually comes into force. Furthermore, since some questions relevant to practice, including the implementation of trust-based working time, remain unanswered in the draft, a further clarification of the draft would be welcomed.