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Is there already an obligation to record working time?
Judgment of the Labour Court of Emden of 20 February 2020 in Case No. 2 Ca 94/19
According to the Labour Court in Emden, employers already have an obligation to record the daily working time of employees. This is due to the direct application of EU law provisions and the judgment of the European Court of Justice (ECJ) of 14 May 2019 (in Case No. C 55/18).
For more information, see BEITEN BURKHARDT Labour Law Newsletter, August 2019, page 1.
Facts of the case
The employee worked as a construction assistant. After the end of his employment relationship, he demanded payment for overtime from his employer. The employer refused, as in its view the work performed had already been remunerated. This was confirmed by a site journal, which the employer and employee used to record the daily working time.
Judgment
The Labour Court of Emden decided in favour of the employee. The employer had not sufficiently demonstrated that the employee had not worked the overtime claimed. The employer has the obligation to record working time and to establish an objective, reliable and accessible system. The site journal, which was presented, does not fulfil these requirements. In confirming this obligation to record working time, the Court relied on EU law provisions, in particular Article 31 (2) of the Charter of Fundamental Rights of the European Union (EUCFR). According to this provision, every employee has the right to the limitation of maximum working hours, to daily and weekly rest periods and to annual paid leave. This right was further defined by the rules established in the EU Working Time Directive in accordance with the jurisprudence of the ECJ.
According to the Labour Court in Emden, full recording of daily and weekly working time is critical in order to guarantee compliance with the working time regulations. This requires neither an interpretation of German working time law in accordance with the EU directives nor the specific implementation of the judgment of the ECJ of 5 May 2019 by the German legislator. The Labour Court draws a comparison to the judgment of the ECJ, in which the European Judges came to the conclusion that there was a right to paid annual leave arising directly from Article 31(2) EUCFR (Cases C-569/16 and C-570/16).
Practical consequences
Whether and what consequences the judgment of the Labour Court of Emden will have is still not clear. However, the message from Emden is clear: Employers must establish objective, reliable and accessible working time recording systems within their organisations and must do so now. The judgment does not make it clear what such a system must entail in order to fulfil these requirements. There are not yet any similar judgments from other courts either.
However, introducing a system for recording the working time of employees could be premature. In its judgment, the ECJ held that the Member States have the obligation to transpose their ruling into national law. German legislators announced that the working time law would be amended accordingly. What the new rule will provide is still open. If employers introduce a system now, there is a danger that it won’t meet the legal requirements in the future and will have to be changed. Employees may have a codetermination right with respect to systems for the recording of working time and these rights may have to be taken into account, which could result in a cumbersome and protracted process.
Practical tips
Ultimately, employers have to weigh up and observe the situation within their company: is there a danger that employees will bring an action based on a claim for the payment of overtime? The judgment of the Labour Court in Emden does not apply generally, but only to the legal dispute between the parties. Instead, if employees wish to derive their own rights from this judgment, they will have to assert their rights before the relevant labour court. Whether the court will come to the same reasoning as the Court in Emden is questionable as the Emden judgment has been criticised based on justified legal considerations. It could therefore be advisable - also to keep costs down - to wait for the German legislators to transpose the ECJ ruling into national law and to see then what requirements any system for recording working time needs to fulfil.