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The right of initiative is gone, codetermination is not
That was exactly the subject of the Federal Labour Court order of 13 September 2022 (1 ABR 22/21). A works council wanted to compel the introduction of an electronic system; the court denied the right of initiative, because codetermination under section 87(1) BetrVG requires that there be no statutory rule.
The side effect was far greater: to reach that result, the court had to find that a statutory duty exists. That settled the recording duty in Germany.
In practice that means: the employer has to act, the works council cannot force it to, but no system goes live without the works council.
Which grounds apply
Central is section 87(1) no. 6 BetrVG: the introduction and use of technical devices intended to monitor employees' behaviour or performance. Under settled case law, objective suitability for monitoring is enough; the intention is not required. A time tracking system always meets that.
On top of that comes no. 2: the start and end of daily working time including breaks, and the distribution of working time across the days of the week. And no. 3: temporary shortening or extension of the customary working time.
If no agreement is reached, the conciliation board decides (section 87(2) BetrVG). Its ruling replaces the agreement.
What belongs in the works agreement
An agreement that holds up governs at least these points. It can be shorter, but that leads to renegotiation.
- Scope and excluded groups of people.
- Which data is recorded, and expressly which is not (location, biometric features, work pace).
- Purpose limitation and an express exclusion of behaviour and performance monitoring.
- Access rights by role: employees, managers, HR, works council.
- How corrections are handled and logged.
- Retention and deletion.
- Permitted and impermissible evaluations.
- Term, termination and continuing effect.
What the works council itself may see
To perform its tasks, the works council has a right to information under section 80(2) BetrVG. That includes monitoring compliance with the Working Hours Act.
It cannot demand personalised evaluations of all employees across the board. An anonymised evaluation, supplemented by personal details where there is a specific occasion, is usual and workable.
Since 2021, section 79a BetrVG has made clear that the works council has to comply with data protection rules when processing personal data and that the employer remains the controller within the meaning of the GDPR.
How to keep the process short
Involve them early, with a draft rather than a finished decision. Anyone who signs the contract first and negotiates afterwards loses time and trust.
Second: do not merely promise the exclusion of performance monitoring, demonstrate it technically. A system whose role management shows who sees what takes the heat out of the discussion.
Third: agree a trial phase, with a review after three months and the option to adjust. That is easier to sign than a rule for all time.
This is not legal advice; for a specific case at your workplace you are better off asking someone qualified to give it.
Published by: AMNAU GmbH
Editorial responsibility: Ugur Aydogan, Product development.
Last reviewed: 2 September 2026