Changes in how we record our working time
The revised Ordinance No. 1 to the Labour Law (ArGV 1) came into force on 1st January 2016. Two new provisions, Articles 73a and 73b, were introduced that waive the systematic obligation to record working hours.
In clearly defined conditions, these new provisions make it possible to reconcile the differences that deviate from the obligatory detailed system used for recording working time.
The Labour Law is used by the majority of all businesses and employees and is designed to help protect employees against health hazards in the workplace. It contains mandatory guidelines on the minimum measures for protection in the area of occupational health and safety, which, in principle, may not be deviated from by agreement (collective labour agreements, individual employment contract, etc.). Health and safety at the workplace must be ensured by means of, for example, rules governing times for work and rest.
So that the cantonal authorities can check that these provisions are being complied with, there is, in principle, an obligation to record working time. The rules that have been in force since 1st January 2016 cover different obligations on the recording of hours worked, depending on which category the employee is in:
Employees with a higher managerial role (Art. 9 ArGV 1)
The provisions of the Labour Law governing work and rest times do not apply to individuals who work in a higher managerial capacity. It is therefore not mandatory for these employees to keep a record of the hours they work. The legal definition of this group of employees is very strict and that is why, as a rule, it only refers to “top managers”, that is to say, members of the management team and individuals with similar roles of this status.
Employees with a high degree of autonomy in the organisation of their work and time (Art. 73a ArGV 1)
Employees with a high degree of organisational autonomy in their work and who arrange the majority of their own work time (reference value for the level of autonomy relating to time: at least 50%), are exempt from the obligation to record their working time provided that they fulfil the conditions stipulated in Art. 73a ArGV 1.
Employees with a certain amount of autonomy in the organisation of their time (Art. 73b ArGV 1)
Employees with a certain degree of autonomy in determining their working time (reference value for the level of autonomy relating to time: at least 25%), only have to record the hours they have worked in a day (i.e. the overall total). If a business would like to benefit from the simplified work time recording, the conditions stipulated in Art. 73b ArGV 1 must be cumulatively fulfilled.
All other employees (Art. 73 ArGV 1)
If an employee does not meet the conditions described in any of the categories mentioned above, or if the conditions of the relevant rules are not fulfilled, then there is a comprehensive duty for time recording, which follows the provisions laid out in Art. 73 ArGV 1.
Implementation of the duty to record working time in the Canton of Basel-Stadt
Businesses that fall within the scope of the Labour Law are obliged, on their own authority, to ascertain whether or not and to what extent there is a requirement for their employees to record their working times and to take the corresponding measures autonomously. In this regard, it is important to know that there are no legal stipulations governing the way in which the work time is recorded.
For all those who are not in a higher managerial position, there is, in principle, a comprehensive duty for time recording that follows the provisions laid out in Art. 73 ArGV 1. The stipulations of this duty can only be relaxed in accordance with the provisions of Art. 73a or 73b ArGV 1 if the relevant conditions are met in full.
If, for example, a business would like to benefit from the waiver of the recording of working hours in accordance with Art. 73a ArGV 1, this possibility must have already been provided for in a collective labour agreement. Firstly, the social partners involved in the duty must open the corresponding negotiations and meet the requirements listed in Art. 73a ArGV 1. In a further step, it is the company’s/employer’s duty to verify with the relevant employees whether the conditions laid down in Art. 73a ArGV 1 are met in each individual case, before the individual waiver agreements are concluded.
If a business would like to benefit from simplified work time recording then this possibility must have already been provided for in a collective agreement with employee representatives. Individual agreements with the relevant employees can also be concluded in businesses with less than 50 employees (the number of people is decisive).
As part of their company inspections, it is the Labour Inspectorate’s responsibility in the AWA to check whether the statutory work guidelines are being correctly implemented in terms of the duty to record the working hours of employees. As a result there is no need for an advance inspection, in particular with regard to the implementation of the new procedures for recording working hours (Art. 73a and 73b ArGV 1). The employer is responsible for complying with the Labour Law.
If it becomes apparent that a business is deviating from the statutory requirements, the Labour Inspectorate draws the matter to the attention of the business and sets it a reasonable deadline to restore its legal status.
Many answers to questions concerning recording of work hours and the procedures involved are provided in the guidance texts for the ArGV 1. For further information, please contact the work time specialists at the Labour Inspectorate, Barbara Maier (direct line: +41 61 267 88 18), and Andreas Laffer (direct line: +41 61 267 87 63).