Willingness to work
In labor law, readiness to work is the time of “alert attention in a state of relaxation”, during which the employee must be present at the workplace and be ready to take up the work immediately and without being asked by others.
General
The willingness to work is part of the working hours in which the employee does not actually work, but must be present at the workplace or the workplace in order to be able to intervene in the work process at any time . It is distinguished from the call time and the call , the even less to work performance include and availability of an employee. Work readiness is, for example, the waiting time of the rescue service personnel between two missions or the long-distance driver when loading or unloading the truck.
Legal issues
Public health and safety at work
Readiness to work is working time in the sense of public health and safety at work. Above all, this means that the working hours are not suitable for complying with the breaks and rest periods prescribed by the ArbZG. The standby time must also be taken into account when it comes to compliance with the maximum permitted working hours.
Individual labor law obligation to perform
The obligation to be ready to work can result from the employment contract , a works agreement or a collective agreement . If it is part of a certain occupation that there are regular on-call times, the agreement to exercise this occupation also includes the obligation to be on-call. Moreover, the arrangement should work readiness as such in most cases even by the right to issue the employer to be covered, according to the employers a generally agreed content of work performance by instructions must concretize sided.
It is more problematic if the willingness to work leads to the regular working hours being exceeded. Then the question arises less whether a willingness to work is to be achieved, but rather whether overwork ( overtime ) has to be done. Problems also often arise when it comes to the amount of remuneration for the periods of availability.
Compensation for willingness to work
The willingness to work represents a performance of the employee - albeit less than full-time work, so that the question of what the employer will do in return , i.e. the remuneration, arises. The fact that the willingness to work is working time within the meaning of occupational health and safety law does not yet result in a direct entitlement to remuneration .
Rather, the amount of the remuneration is based on the agreement made in the employment or collective agreement. A flat rate is just as permissible as a lower remuneration compared to full working hours or the granting of compensation for leisure time. If there is no individual or collective agreement, the amount of the remuneration is to be determined according to a given estimate, otherwise according to the customary ( § 612 Paragraph 2 BGB ). An agreement that the willingness to work is to be provided for very little remuneration or even free of charge can be void due to immorality if there is a noticeable imbalance between the service and the consideration. In this case the usual remuneration has to be paid.
Co-determination rights of the works council
According to the German Works Constitution Act (BetrVG), company regulations on readiness to work are subject to the participation of the works council , insofar as they concern questions of order in the company, the beginning and end of working hours and the distribution of working hours or a temporary reduction or extension of normal working hours ( Section 87 Paragraph 1 Clause 1 No. 1, 2 and 3 BetrVG). The works council also has a right to information and advice, because the planning of work readiness regularly concerns questions of work organization. After all, one of the tasks of the works council is to ensure that the legal provisions that apply in favor of the employee are complied with. The works council also has a right to information in this respect, because it can, for example, only use the data from the employer's working time records to fulfill its statutory task and, for example, monitor compliance with the prescribed minimum rest periods.
Special features for drivers
In long-distance freight and passenger transport, there are many activities that make it necessary to be ready for work, for example waiting for the unloading and loading instructions directly at the customer's premises, supervision during loading and unloading activities, checking the refrigeration units or supervising the truck for the purpose of Theft protection of valuable loads.
In some cases, special provisions apply to drivers regarding their readiness to work.
European regulation on driving and rest times
Regulation (EC) No. 561/2006 of the European Parliament and of the Council regulates the driving and rest times that drivers must observe in passenger and freight transport. As a regulation, this legal provision must be observed directly in all EU states, including Germany. Insofar as rest periods are to be observed according to this regulation, these cannot be fulfilled by periods of readiness for work.
German working time law
Since September 1, 2006, the German Working Hours Act (ArbZG) has contained special provisions for drivers in Section 21a of the ArbZG.
According to Section 21a (3) ArbZG, standby times during which the employee must be ready to take up work at the workplace or elsewhere are not to be regarded as working hours within the meaning of the working time law if the standby period and its expected duration are in advance, but at the latest immediately before the start of readiness. In the case of alternating employees, the time that the employee spends as a passenger or in the sleeping cabin while driving is also not working time. These times are therefore not to be added to the calculation of the maximum working hours. The standby and passenger times are not rest periods. While the standby time must not be viewed as a break, the passenger time, on the other hand, can be a break.
Tariff situation in Germany
The relevant federal collective bargaining agreement for long-distance freight and furniture transport of July 14, 1988 (BMT-Fernverkehr) was terminated on March 26, 1992 to June 30, 1992 and has since then only been in force directly in employment relationships that already existed at that time and to which the collective agreement was directly applicable, so-called after - effect of the collective agreement. The BMT long-distance transport regulates, among other things, which activities of a driver are to be regarded as work that is subject to remuneration. According to this, in addition to the pure driving times, loading and unloading activities and working hours are counted as working hours.
The collective agreement thus establishes a claim to remuneration for working hours. Although these regulations only apply in force after effect, this can be seen as an indication that the performance of willingness to work can only be expected in return for appropriate remuneration. The willingness to work of the driving staff is therefore, even if there is no agreement, to be remunerated according to § 612 BGB. An existing remuneration agreement will have to be measured against the limits of immorality.
Web links
- Willingness to work at the Federal Ministry of Labor, Social Affairs and Consumer Protection, Central Labor Inspectorate (Austria)
Individual evidence
- ^ BAG, judgment of April 14, 1955, AP No. 3 to § 13 AZO; BAG, judgment of March 9, 2005, Az .: 5 AZR 479/02; BAG, decision of February 18, 2003, Az .: 1 ABR 2/02 = BAGE 105, 32 ; BAG, judgment of February 12, 1986, Az .: 7 AZR 358/84
- ↑ Siegfried G. Häberle (ed.), Das neue Lexikon der Betriebswirtschaftslehre , 2008, p. 57
- ↑ cf. Section 7 Paragraph 1 No. 1 a ArbZG ; According to Art. 2 No. 1 of Directive 2003/88 / EC on certain aspects of the organization of working time , working time is any period of time during which an employee works in accordance with national legislation and / or practice, is available to the employer and carries out his work or performs tasks .
- ↑ BAG, judgment of June 5, 2003, Az .: 6 AZR 114/02 = BAGE 106, 252
- ↑ BAG, judgment of May 6, 2003, Az .: 1 ABR 13/02 = BAGE 106, 111
- ↑ Regulation (EC) No. 561/2006 (PDF) , OJ L 102 of 11/04/2006 pp. 0001 - 0014
- ↑ With the introduction of this regulation by the law on the amendment of the passenger transport regulations and working time regulations for drivers of August 14, 2006 ( Federal Law Gazette I, p. 1962 ), the German legislature adopted the EC Directive 2002/15 / EC of August 11 , 2006 with a one and a half year delay. March 2002 transposed into national law.
