COMPLIANCE & RIGHT · TREATY
BAG, Decision of 13 September 2022 – 1 ABR 22/21. The decision to record working time is often seen as a requirement for a specific software. However, their starting point was a dispute over the right of initiative of the works council. For companies, the distinction between mandatory registration and concrete design is crucial.
What was involved in the proceedings
The works council wanted to force the introduction of an electronic time recording system. The Federal Labour Court denied the right of initiative claimed because there was already a legal obligation to introduce a collection system. It was based on Article 3(2)(1) of the ArbSchG in an interpretation consistent with Union law.
The decision concerns the recording of the beginning, end and thus duration of the daily working time including overtime for the covered workers. It did not indiscriminately order a particular electronic product for each company. The scope for design and participation in the implementation shall be considered separately.
The organisational task
For the company, it should first be determined which employees and forms of work are covered. After that, the method of recording, corrections, responsibility and evaluation are regulated. Mobile work and flexible working hours must fit into the process. A system that can only be operated at the site of operation can create practical gaps when working regularly in other places.
If the input is transferred to the employees, it needs understandable specifications and a handling of missing or recognizablely implausible entries. The organisation must not limit itself to providing an unused tool. The purpose of the survey is to enable control of labour time limits.
Check remuneration and working time protection separately
A time recording does not automatically answer any question about the remuneration of overtime. Employment contracts, collective agreements, regulations and other conditions are relevant to this. Conversely, a system of remuneration does not remove the limits on working time. Human Resources and managers should distinguish these levels when releasing.
Confidential working time can allow for a self-responsible situation of working time. However, this does not lead to a flat-rate exemption from documentation and protection requirements. The concrete regulation must fit both the work model and the legal requirements.
Co-determination and data protection
In the design of a technical system, participation rights may exist where there is room for regulation. Access rights, evaluation purposes and storage must also be clarified. Data collected for the control of working time may not be used for any additional performance profiles without own examination.
Therefore, a reasonable audit order does not only include the text of an operating agreement. It also looks at the intended functions and actual evaluations. Further information on the classification of operational processes can be found at Employment law compliance.
Legal basis and decisions: BAG, full decision 1 ABR 22/21; BMAS: Questions and Answers on Time Management; § 3 ArbSchG; § 87 BetrVG.
Situation as at 2 November 2026.
Further reading: Employment law compliance · Data protection and IT security · Compliance consulting: order, process and results
Four practical examples
The following fictitious cases illustrate typical examination questions. The concrete solution depends on the circumstances of the individual case.
01 · Mobile work
Working hours actually worked outside the office are also clearly recorded. Corrections and responsibilities are regulated.
02 · Confidence working time
The free division of the work is associated with an appropriate recording. Flexibility and documentation are combined organizationally.
03 · Electronic system
Before introduction, room for design, co-determination and access rights are examined. The decision does not require a specific software.
04 · Overtime dispute
Covered hours lead to a compensation dispute. Protection of working hours and conditions for entitlement to payment shall be assessed separately legally.
Your next step
Do you want to transfer the requirements to your company or have a specific process checked? A brief description and a reference to existing deadlines are sufficient for the first contact. We shall vote on the scope of examination and compensation prior to commissioning.