On call

from Wikipedia, the free encyclopedia

On- call duty ( also called on- call service in Switzerland ) is the period of time during which the employee , without having to be directly present at the workplace, has to stay for the purposes of the company or the service at a position within or outside the company specified by the employer . so that he can start his full work immediately or soon if necessary.

Forms of on-call services

  • Willingness to work (readiness for work): Time of reduced work performance within regular working hours, during which the employee only has to be ready to intervene at times.
  • On-call service (part of working hours, being on call, on-call service ): The employee is obliged to be at a location specified by the employer outside of the contractually agreed working hours at the order of the employer in order to start work if necessary. Related to the on- call service is the journal service of some offices and companies, which is, however, set up at the place of work . He provides specialist staff for emergencies or urgent inquiries in the evenings or on weekends . However, special regulations apply, for example in hospitals, if there is a considerable amount of regular on-call duty or on-call duty during regular working hours. In this case, the working day can be extended beyond ten hours in accordance with Section 7 (1) No. 1 ArbZG.
  • On-call duty ( on-call service, stand-by): The employee is obliged to ensure that he can be reached at all times by order of the employer in order to start work on demand. The employee can determine his own whereabouts, provided this is compatible with the obligation to take up work. The modalities, such as remuneration, deadlines to be observed before starting work, etc. are often set out in collective bargaining agreements or works agreements, etc. Otherwise, the individual legal arrangement applies. Even if the employee is not called to work, according to the interpretation of the European Court of Justice this time counts as working time and not as rest time .

Affected organizations and professional groups

On-call services are necessary in all organizations (utilities, services ) and fields of activity, the lack of which would lead to long-lasting disruptions or to disadvantages for the general public or important areas of companies. Among other things, they are set up to reduce constant attendance and night shifts . This saves costs on the one hand, and reduces the burden on staff on the other.

On-call duty on a large scale is particularly necessary

See also: riot police

Legal dimensions

The topic of on-call service touches on different areas of law, whereby different questions are raised:

Situation in Germany

Public health and safety at work

In the much-noticed landmark judgment of October 3, 2000 ("Simap decision"), the European Court of Justice ruled in connection with the on-call service of Spanish doctors that the on-call time in the form of being on call is working time within the meaning of European working time law. After that, the standby time must be fully taken into account when calculating the maximum permissible working time. In this respect, the standby time is not a rest time, even if the work of the standby person is not used. In contrast, times in which only on-call duty is performed are not to be regarded as working hours in the aforementioned sense. However, on-call duty is only available if work is required only in exceptional cases.

The German jurisprudence hardly followed this judgment and German laws were not changed.

In the judgment in the Jaeger case on September 9, 2003, the ECJ further confirmed that the on-call duty performed by a doctor in the form of personal presence in the hospital may not be classified as a rest period, even if the person concerned does it during times when he is not used, is allowed to rest at his place of work.

Since January 1, 2004, on-call times have also been considered working hours in Germany, "if the working hours are regularly and to a considerable extent on-call or on-call duty". The German Working Hours Act was changed slightly by the law on labor market reforms .

According to a ruling by the Federal Labor Court on June 29, 2016, the minimum wage also applies to periods of on-call duty .

Maximum working hours and minimum rest periods

The maximum daily working time is eight hours; it can be extended to ten hours if it does not exceed eight hours on average ( Section 3 ArbZG).

If on-call duty is ordered, the maximum working time can be extended beyond ten hours. The maximum permissible total working time is not regulated by law, but it must be limited in a collective agreement ( Section 7 (1) No. 1 ArbZG). However, a maximum of ten hours of full working time may be here, this results from § 3 ArbZG. It should be noted that the entire working time in a row is an individual working day, even if the working time extends over two calendar days. Example: Full work from 12 p.m. to 8 p.m. (= 7.5 hours plus 30 minutes break), then on standby from 8 p.m. to 8 a.m., then full work again from 8 a.m. to 12 p.m. This working time would be inadmissible, since full work would be 11.5 hours on this working day.

The maximum permissible weekly working time is 48 hours on average over a 52-week period (= 2496 hours in 52 weeks). On-call duty is to be taken into account 100%, regardless of how high it is rated and how much is compensated or paid out in free time ( Section 7 (8) ArbZG).

The minimum daily rest period is eleven hours ( Section 5 (1) ArbZG); in certain cases it can be reduced to ten hours if another rest period is extended to twelve hours ( Section 5 (2) ArbZG). On the basis of a collective agreement , the rest period can be shortened to nine hours if an appropriate compensation is granted ( Section 7 (1) no. 3 ArbZG).

If the working time is extended beyond twelve hours by on-call duty, the minimum rest period of eleven hours may not be shortened ( Section 7 (9) ArbZG).

Deviations from these statutory maximum working hours and minimum rest periods can also be made if the employee has given his written consent ( Section 7 (2a) in conjunction with Section 7 (7) ArbZG). In this case, the maximum working hours and minimum rest periods then applicable must be regulated in a collective agreement.

Individual labor law

An employee may be obliged to perform standby duty on the basis of an employment contract , a works agreement or a collective agreement. The obligation can also result from the nature of the employment relationship, if afterwards on-call duty is customary, for example for doctors and long-distance drivers. However, there is no general obligation to be on call.

If the employee is required to be on call, the remuneration for the inactive or active times is based on individual or collective agreements. A flat rate is permitted. The fact that readiness is to be regarded as working time under occupational health and safety law does not in itself result in a claim for remuneration. Standby times do not necessarily have to be remunerated like full working hours. An agreement that readiness is to be provided free of charge can, however, be void due to immorality . If there is no remuneration agreement, remuneration is to be paid if, under the circumstances, willingness can only be expected in exchange for remuneration ( Section 612 (1) BGB ). As a rule, this should be answered in the affirmative. In this case, the amount is to be determined according to a given estimate or the customary ( § 612 Paragraph 2 BGB).

Collective labor law

If the employer intends to introduce on-call services, he has to inform the works council according to German law and to consult with it about the effects on the employees ( § 90 BetrVG ). The works council has to ensure that the legal provisions applicable to the protection of employees are observed and complied with.

In addition, company regulations on on-call services are subject to the co-determination of the works council insofar as they concern questions of order in the company, the start and end of daily working hours and the distribution of working hours over the individual days of the week or a temporary shortening or extension of normal working hours ( Section 87 Paragraph 1 Clause 1 No. 1, 2 and 3 BetrVG).

Situation in Austria

Due to the European framework, the situation is very similar to that in Germany.

The important legal bases include:

European framework

Based on Directive 2003/88 / EC on certain aspects of the organization of working hours , the European Court of Justice (ECJ) had in the aforementioned judgments Simap and Dr. Norbert Jaeger found that both active and non-active standby time should be counted as working time, i.e. that standby duty requiring presence at the place of work does not count as rest time, but as working time .

In 2006, efforts to find a compromise to amend the Working Time Directive, which had been discussed primarily with regard to the opt-out regulations, failed. In this context, Minister of Economic Affairs and EU Council Chairman Martin Bartenstein pointed out that (as of 2006) three quarters of the EU member states , including Austria, violated the existing Working Time Directive according to the case law of the European Court of Justice. On June 9, 2008, the European Council of Ministers agreed on an amendment to the directive. It only comes into force if the European Parliament approves it. There would then be a basis at European level for differentiating between active and inactive phases, so that on-call services no longer necessarily have to be fully counted as working time. The weekly working time should in principle be limited to 48 hours, but exceptions should be made. For example, an upper limit of 60 hours should be provided for the individual employee, but weekly working hours of up to 65 hours should be possible, provided that part of this is performed as standby duty in the form of “active standby time”.

However, European directives only have an indirect effect on the legal situation in the member states via implementation in national law. Federal Health Minister Ulla Schmidt said that nothing would change immediately for German doctors and other employees. The Marburger Bund announced resistance to the new directive.

France

Individual evidence

  1. ^ BAG , decision of February 18, 2003 Az. 1 ABR 2/02 [www.lexetius.com/2003,884 full text], assignment of on- call duty to working hours
  2. ↑ ECJ, judgment of February 21, 2018, Az. C-518/15 On-call duty at a certain place close to work with on-call duty is "working time"
  3. ↑ ECJ, judgment of October 3, 2000, Az. C – 303/98 , full text , EEC Directive 93/104 No. 2, Simap = Sindicato de Medicos de Asistencia Publica
  4. ↑ Council Directive 93/104 / EC of November 23, 1993 on certain aspects of the organization of working time (OJ L 307 of December 13, 1993, p. 18),
    now updated by Directive 2003/88 / EC on certain aspects of the organization of working time , (OJ L 299 of November 18, 2003, pp. 9-19)
  5. ↑ LAG Hamburg, decision of February 13, 2002, Az. 8 TaBV 10/01
    LAG Schleswig-Holstein, decision of March 12, 2002, the case was submitted to the ECJ for a preliminary ruling.
    LAG Schleswig-Holstein, judgment of May 16, 2002, Az. 1 Sa 602/01, full text (PDF; 36 kB)
    BAG, decision of February 18, 2003, Az. 1 ABR 2/02,
    BAG, judgment of 5. June 2003, Az. 6 AZR 114/02, full text (PDF)
  6. ↑ ECJ, judgment of September 9, 2003, Az. C-151/02, full text - Jaeger
  7. ↑ Little will change for doctors at first. In: Deutsches Ärzteblatt , Ärzteblatt 100, issue 36 of September 5, 2003
  8. ↑ Article 4b of the law on reforms on the labor market of December 24, 2003, Federal Law Gazette I, 3002, 3005 f. Full text (PDF)
  9. ↑ Law on labor market reforms ( Memento of the original dated August 11, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. sidi.de, html 4 without JavaScript , accessed on November 10, 2017 @1@ 2Template: Webachiv / IABot / www.sidi.de
  10. ↑ BAG, judgment of June 29, 2016, Az. 5 AZR 716/15, full text .
  11. ↑ BAG, judgment June 5, 2003, Az. 6 AZR 114/02, full text .
  12. ↑ BAG, judgment of January 28, 2004, 5 AZR 530/02, full text .
  13. ↑ Lukas Starker: Working hours in the hospital. ( Memento of the original from September 21, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (pdf) @1@ 2Template: Webachiv / IABot / www.patientenanwalt.com
  14. ↑ Rest of Work Act  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF)@1@ 2Template: Toter Link / www.bmwa.gv.at  
  15. ^ The KA-AZG amendment 2014 Österreichische Ärztezeitung, on October 25, 2014
  16. ↑ Directive 2003/88 / EC of the European Parliament and of the Council of November 4, 2003 on certain aspects of the organization of working time ; this replaced the previous directives 93/104 / EG and 2000/34 / EG
  17. ^ Judgment of the ECJ of October 3, 2000 in the case C-303/98 (Simap)
  18. ↑ Judgment of 9 September 2003 in the case C-151/02 (Jaeger) , excerpt from the final part of the judgment: Directive 93/104 / EC ... is to be interpreted as meaning that the on-call service performed by a doctor in the form of personal presence in the hospital , fully constitutes working time within the meaning of this directive, even if the person concerned is allowed to rest at his place of work during periods when he is not used, so that the directive is contrary to the regulation of a Member State according to the times during which an employee is idle during on-call duty are classified as rest time.
  19. ↑ New attempt to reach an agreement on working hours directive failed. Welt Online, June 3, 2006, accessed June 14, 2008 .
  20. ↑ a b Bartenstein: Fronts in the working time directive further hardened. (No longer available online.) June 2, 2006, formerly in the original ; Retrieved June 14, 1008 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.bmwa.gv.at  
  21. ↑ a b EU agreement on a maximum working time of 48 hours. Reuters, June 10, 2008, accessed June 14, 2008 .
  22. ↑ Trade unionists mobilize around 65 hours a week. Spiegel Online, June 10, 2008, accessed June 14, 2008 .
  23. ↑ On- call services - Doctors run a storm against working time resolution. Welt Online, June 10, 2008, accessed June 14, 2008 .