flexible working hours

Modern time clock

As flexitime (abbreviation: GLZ, or flexible working hours , GLAZ or variable working hours , Varaz; English flexitime , American English flextime ) is a form of flexible working hours meant that the workers a largely autonomous distribution of work permits.

General

The most widespread form of flexible working time is the working time model of flexitime. With it, employees are not tied to a rigid start or end of work, between which the working hours lie; rather, within certain limits they can decide for themselves about the beginning and the end. At the start of work, the employee must perform his work during working hours and continue until the end of work, only interrupted by work breaks . This can usually be associated with saving or catching up on working hours, which, like the actual start and end of work, is recorded in a working time account.

According to the Federal Labor Court (BAG), the purpose of flexible working hours is " to enable the employee to determine the timing of work in free self-determination according to his needs and wishes within the flexible hours specified in the service agreement ". This judgment concerned an employee, but workers or civil servants can also benefit from flexitime. The working hours of civil servants are regulated by the respective working time ordinance (AZV) of the federal or federal state. In § 2 No. 5 AZV, this includes a legal definition of flexible working hours as the "working hours in which civil servants can determine the beginning and end of daily working hours themselves within certain limits". Many of these regulations now also permit the introduction of flexible working hours for civil servants through service agreements.

The trust-based working time is not a flexitime rule.

species

A general distinction is made between two types of flexitime:

With simple flexitime , the employee is bound to the daily amount and duration of working hours. He is only free to work within a certain time frame.
With qualified flexitime , the employee can decide not only about the timing of their daily working hours, but also about their daily duration and the creation of a compensation for achieving the average of the owed working hours within a given time frame.

Core working hours and working time accounts are only required for qualified flexitime.

The flexible working time is made up of the sliding range ( e.g. start of work from 7:00 a.m. to 9:00 a.m. and end of work from 3:00 p.m. to 7:00 p.m.) and the core working time between these sliding ranges. Attendance and duty to work only exist during core working hours.

Legal issues

Flexitime issues are part of collective labor law and are regulated in the collective agreement or in a company or service agreement. The statutory framework of working hours must be taken into account. This includes the maximum daily working time of 10 hours ( Section 3 ArbZG ), work breaks and rest periods ( Section 4 ArbZG and Section 5 ArbZG) as well as the recording of working hours ( Section 16 (2) ArbZG). Personnel to which the ArbZG does not apply ( Section 18 ArbZG to Section 21 ArbZG such as executives , heads of authorities , flight personnel and ship crews ) are generally excluded from flexitime. There are special regulations according to the JArbSchG ( § 8 Abs. 1 JArbSchG) and maternity protection ( § 4 Abs. 1 MuSchG ). Flexitime is also not possible for every type of job. Shift work , on-call duty or further training usually require all those involved to be present at the same time. The works council has a right of co-determination in flexitime issues ( Section 87 (1) No. 2 BetrVG ).

The working time account initially records the amount of time the employee has fulfilled his main performance obligation according to Section 611 (1) BGB or did not have to do so due to continued payment of wages . If there is flexitime credit, it documents the extent to which the employee can still take time off in lieu. Conversely, a "minus" (a negative balance, working time debt) represents an advance wage or salary that can be offset against a credit . Overtime cannot be clearly delimited in the case of flexitime, so that a regulation is required as to when the excess of a certain flextime credit is regarded as overtime and remunerated. Usually, the amount of working time debts is also limited in the agreements.

The power-determination of the employer in terms of working hours is transferred to the qualified flextime to the employee, in the simple flextime it remains with the employer. With qualified flexitime, the employee can decide autonomously when he will fulfill his work obligation. For example, he may not show up for work on some working days (“flextime”) or only work part-time. Flexitime days are neither leave under the Federal Leave Act nor special leave , but rather a compensation for leisure time through corresponding flextime credit in the amount of one working day. According to § 2 No. 6 AZV, the flex day is a full-day time compensation granted with the consent of the immediate supervisor in the accounting period for flexitime, with daily working times of less than two hours being considered a flex day,

In the event of default in acceptance by the employer, § 615 BGB stipulates that the employee does not have to rework ( subsequent performance ), even if he could rework. The phrase " no work, no wages " is thereby reversed into "wages even without work". However, a reduction in wages is permitted if the employee has been given freedom of disposition with regard to the distribution of working hours during flexitime, but he has not performed the required work to a sufficient extent. The application of Section 616 of the German Civil Code (BGB) is regularly ruled out during flexitime in order not to burden the employee completely with the consequences of the externally determined distribution of working hours. The employer that in accordance with § 616 BGB by the flexitime advantage to be remunerated service exemptions accounted largely for administrative procedures or visits to the doctor and the punctuality of the employee is minimized to the start of core working hours.

Not working during the agreed working hours is - without flexitime - an impossibility , but not a delay . When agreeing flexitime, the legal question of impossibility or delay does not arise as long as the employee and employer are within the agreed time frame.

Violations of the obligation to record by time clocks or other personnel time recording devices are usually associated with considerable penalties under labor law, from warning to extraordinary behavior-related dismissal , because what is known as "working time fraud" is committed, which can lead to disadvantages for the employer and the employee enriches himself here at the employer's expense by being paid for work not done. Therefore, fraud ( Section 263 of the Criminal Code ) can also be a criminal offense in the event of intent .

Long-term accounts

Newer collective agreements also regulate long-term regulations, from annual working time to lifetime working time accounts (e.g. in the public service by § 10 TVöD ). These are then to be specified in company or service agreements.

economic aspects

Flexitime systems regularly have core working hours during which attendance and work are compulsory. The actual flextime is upstream and downstream of the core working time with a fixed time frame that defines the earliest and latest recording of the daily working time. The core working hours ensure that the harmonized workflow remains largely undisturbed, because operational cooperation is guaranteed by the presence of all employees . Outside of core working hours, however, there may be disruptions in customer contacts and internal communication . With the help of flexitime, the workload can also be better coordinated with the presence of the staff. Flexitime can help relieve commuter traffic in metropolitan areas and enable individual employees to organize their leisure time more individually .

International

There are comparable flexitime regulations in western industrialized countries .

If there is flexitime credit in Switzerland , there is basically no overtime within the meaning of Art. 321c OR . Missing working hours through no fault of your own do not have to be compensated. In the case of negative hours through no fault of the employer, according to Art. 324a OR , the employer is regularly obliged to continue paying wages despite the lack of work. According to the Swiss Federal Supreme Court , the purpose of flexitime “is precisely based on the fact that the employee can, within this framework, determine whether to exceed or fall short of the planned working hours. ... It is therefore his area of responsibility to ensure that the balance is settled on time. The 'cutting off' of plus hours is therefore generally permissible. "

In Austria , in companies in which a works council has been set up, flexible working hours are to be specified by means of a works agreement. If there is no works council, a written flexitime agreement must be made with the individual employee as part of an employment contract. Since September 2018, the normal daily working hours may be extended by up to 12 hours if the flexitime agreement provides that a time credit can be used all day, i.e. flexible days can be used and the use of the time credit in connection with a weekly rest period is not excluded, the sliding days can therefore be set in such a way that longer weekends are possible.

Web links

Archive of company and service agreements of the Hans Böckler Foundation
Employment law guide flextime - with court decisions. In: Arbeitsratgeber.com
Lale Necati: flextime; In-depth presentation of the various flexitime regulations from 2004. In: Arbeitsratgeber.com (PDF; 175 kB)

literature

Michael Bachner, Micha Heilmann: The company agreement. Manual with model agreements on CD-ROM . 5th, completely revised edition. Bund-Verlag, Frankfurt am Main 2011, ISBN 978-3-7663-6002-1 .

Ingo Hamm: Flexible working hours in practice . 2nd Edition. Bund-Verlag, Frankfurt am Main 2001, ISBN 3-7663-3269-4 .

Sabrine Klaesberg: The service agreement . In: The staff council. 6/2008, p. 255.

Individual evidence

↑ Harald Schliemann (Ed.), Labor Law in the BGB: Commentary , 2002, p. 209

↑ Wolfgang Hromadka / Frank Maschmann, Labor Law, Volume 1: Individual Labor Law , 2005, p. 204

↑ BAG, judgment of December 16, 1993, Az .: 6 AZR 236/93 = BAGE 75, 231 , 237

↑ Harald Schliemann (Ed.), Labor Law in the BGB: Commentary , 2002, p. 209

↑ Springer Fachmedien Wiesbaden (ed.), Compact Lexicon HR , 2013, p. 57

↑ BAG, judgment of March 21, 2012, Az.:5 AZR 676/11 = BAGE 141, 88

↑ BAG, judgment of December 13, 2000, Az.:5 AZR 334/99 = NZA 2002, 390

↑ Ulrich Preis / Lale Necati, Innovative Arbeitsformen , 2005, p. 202 f.

↑ Ulrich Preis / Lale Necati, Innovative Arbeitsformen , 2005, p. 201

↑ Wolfgang Hromadka / Frank Maschmann, Labor Law, Volume 1: Individual Labor Law , 2005, p. 272 f.

↑ Sebastian Hopfner / Reinhardt Seifert, collective agreements for the private insurance industry - commentary , 2006, p. 19

↑ Lena-Marie Schauß, The Contribution of the Care Leave Act to the Better Compatibility of Family Care and Work , 2017, p. 86

↑ Wolfgang Hromadka / Frank Maschmann, Labor Law, Volume 1: Individual Labor Law , 2005, p. 272

↑ BAG, judgment of November 24, 2005, Az. 2 AZR 39/05 = NJW 2006, 1545

↑ Ulrich Büdenbender / Hans Strutz, Gabler Lexikon Personal , 1996, p. 166

↑ Ulrich Büdenbender / Hans Strutz, Gabler Lexikon Personal , 1996, p. 167