WORKING TIME

Abstract

Working time is subject of health and safety in the form of the Working Time Act (ArbZG) as well as of works councils’ co-determination under section 87 (II) Nrs. 2 and 3 Works Constitution Act (BetrVG), (at times) section 99 BetrVG and of individual and colletive contractual arrangements. Under health and safety aspects, it is about limitation of working time to a maximum permissible threshold and its interruption through necessary repose periods in order to avoid health endangering impacts on the employees. The paper describes the baselines of the German Working Time Act’s rules and the limits to flexibility possible according to it, which are to be tested constantly for their conformity with EU law in the (Working Time) directive 2003/88/EC of 4 November 2003. The question which activities constitute “work” under the German and European rules is of particular importance. There is no definitive answer to this question yet for diverse employee duties and activities for the benefit of others. For co-determination under section 87 (II) Nr. 2 BetrVG the question is, on which weekdays and which concrete times of day employees shall work, i.e. when exactly does working time start and end? In this context as well, it is of importance which activities are “work”, e. g. whether putting on protective clothing at the work place counts as work. For co-determination under section 87 (I) Nr. 3 an alteration of the usual working time volume may only be “temporary”, for co-determination under section 99 BetrVG the increase of the hitherto existing volume must be “significant”. The paper describes the problems in detail. It must be resolved in individual contracts to which temporal extent the employee owes work at all. Here, section 307 Civil Code (BGB) requests sufficient clarity, in particular regarding the agreement for which temporal work extent the employer owes which reimbursement. Here as well it has to be determined what belongs to reimbursable “working time”. This is not necessarily coinciding with the health and safety or the co-determination realm.