Codetermination

The relevant numbers

No. 2: the start and end of daily working time including breaks, and the distribution of working time across the days of the week. That covers rosters, flexitime frameworks and core times.

No. 3: the temporary shortening or extension of the customary working time. That covers ordered extra work and short-time work.

No. 6: the introduction and use of technical devices intended to monitor behaviour or performance. Under settled case law, objective suitability for monitoring is enough; no intention is required. Every time recording system meets that.

No. 14: the arrangement of mobile working, in the act since 2021.

What the 2022 order changed

Before 13/09/2022 it was disputed whether the works council can demand the introduction of time recording. The Federal Labour Court decided: it can no longer, because the duty already exists by law. A right of initiative requires a regulatory gap free of codetermination, and there is none here.

This regularly gets presented the other way round in the market. The correct position is: the order took the right of initiative away from the works council, it did not grant it. Codetermination over the arrangement is entirely unaffected.

When no agreement is reached

In the cases under section 87(1) BetrVG the conciliation board decides, and its ruling replaces the agreement between the employer and the works council (section 87(2) BetrVG). Codetermination is therefore enforceable, unlike a mere right to be heard in other areas.

A measure introduced without the required consent is ineffective as against the employees. A breach can also lead to a prohibition on using evidence, but need not: on 29/06/2023 (2 AZR 296/22) the Federal Labour Court held that a breach does not automatically make evidence unusable.