Extra work

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Overtime , including overtime or plus hours , is done by employees if they exceed the agreed working hours . The relevant standard working time can result directly from the employment contract , but also indirectly from a collective agreement , collective agreement or collective employment contract , a works agreement or a law .

Under the term “overtime”, which is often used in this sense in Germany, labor lawyers usually mean working time that exceeds the statutory maximum regular working time of eight hours per day or 48 hours per week ( Section 3 ArbZG).

Civil servants are referred to as overtime in Germany and as additional services in Austria if they exceed the regular working hours stipulated in civil service law . If there are no special regulations on overtime, an employee is generally not obliged to do overtime; Exceptions arise from the duty of loyalty for emergency work. In the case of high-paid executives , it is generally assumed, due to the level of their remuneration, that they will also have to work overtime if necessary.

If the agreed working under steps (as opposite of overtime), is of less work , also reducing hours or minus hours , talking.

Regulation in Germany

Duty to work overtime

An obligation to work overtime or overtime usually arises only on the basis of a collective agreement, a works agreement or an employment contract. In the absence of such a regulation, an employee generally only owes the work to be performed during normal working hours. In addition, in exceptional situations, particularly in emergencies, the employee is required to work overtime. If an employee repeatedly refuses to work overtime or overtime in justified exceptional cases, he can be dismissed for refusal to work . Severely disabled employees can demand to be released from overtime according to Section 207 of the Social Code, Book Ninth.

As a rule, the maximum working hours regulated in the Working Hours Act (ArbZG) must not be exceeded. If the maximum permitted working hours are exceeded, there is an employment ban, the employee may refuse to work. According to Section 3 ArbZG, an average of a maximum of eight hours of work per working day (Monday to Saturday) is permitted, resulting in a maximum working week of 48 hours. The working time can be extended to ten hours per working day, i.e. 60 hours per week; but only if within six calendar months or within 24 weeks an average of eight hours on workdays is not exceeded. Exceptions can be permitted in a collective agreement or on the basis of a collective agreement in a company or service agreement or with the approval of the competent authority. In the event of a violation of mandatory working time provisions, the employee can refuse to work.

Regulation in public service

According to the collective bargaining agreement for the public service (TVöD), overtime is the hours worked on the order of the employer that exceed the regular working hours of full-time employees (39 hours in the western tariff area or 40 hours in the eastern tariff area) for the week according to the schedule or standard working hours and are not compensated by the end of the following calendar week. Overtime, on the other hand, refers to the work performed by part-time workers that goes beyond the specific employment contract up to the work done by a full-time worker (Section 7 (6) TVöD). The employees are obliged to work overtime and overtime in the context of justified operational or official necessities - in the case of part-time employment based on the employment contract or with their consent.

Partly consists of the Staff Committee laws of the federal and state governments a say of the staff council at predictable overtime and extra work, such. B. in North Rhine-Westphalia according to § 72 Paragraph 4 No. 2 State Personnel Representation Act (North Rhine-Westphalia) .

Remuneration or compensation for time off

As a rule, overtime is to be paid for. However, compensation for leisure time can also be agreed. Overtime extends company or individual working hours .

Remuneration or time off can only be requested if the employer ordered, approved or tolerated the overtime or if it was necessary to complete the task. If the employer denies the overtime, the employee who demands the remuneration of overtime must explain in detail on which days and at which times of the day he worked beyond normal working hours.

He must also state clearly whether the overtime has been ordered by the employer or necessary to complete the work that is incumbent on him or whether it has been approved or tolerated by the employer. If employees are obliged to work overtime by order of the employer, they are therefore entitled to have the employer inform them in writing.

In the absence of an (effective) remuneration regulation, Section 612 (1) of the German Civil Code (BGB ) obliges the employer to pay additional work for overtime if, under the circumstances, this can only be expected in return for remuneration. A corresponding objective expectation of remuneration is generally given if the employee does not receive any outstanding remuneration. Flat rate agreements do not include overtime. In spite of a flat-rate agreement, separate remuneration can be requested in any case for such working hours.

In the case of higher-paid employees in particular, it is often agreed that overtime should be compensated at a flat rate with the salary . According to the Munich Regional Labor Court, such flat-rate agreements are permissible as long as there is no noticeable imbalance in terms of overtime and the remuneration granted. The Düsseldorf Regional Labor Court, on the other hand, considers form-based clauses in employment contracts, according to which the weekly / monthly wage (agreed in the employment contract) should compensate for all overtime, as ineffective because the employee cannot see the amount of the overtime pay. The Federal Labor Court has also declared a clause “required overtime is covered by the monthly salary” to be ineffective.

Overtime allowance

Entitlement to the payment of an additional overtime allowance only exists if this has been agreed or the entitlement arises from a collective agreement , another provision under collective law or a company practice . In contrast to the surcharges for Sunday, public holiday and night work, the overtime allowance as such is not exempt from social security contributions and taxes.

Flexible working hours and overtime

In service companies, especially in the public sector, flexible working hours are often offered on the basis of the collective bargaining agreement or the works agreement . According to this, employees can determine the start and end of work themselves, taking into account core working hours. However, it is often the amount of work that actually determines the use of such working time accounts. Insofar as certain time credits have been “saved up” as part of flexible working hours , these can usually only be “celebrated”, but not remunerated (advance time). In more recent collective agreements, long-term regulations, from annual working time to lifetime working time accounts, are made. Classic overtime pay is therefore largely a thing of the past, at least in the service sector .

Regulation in Austria

In Austria, a distinction is made between two forms of overtime:

  • Overtime is those working hours that exceed the statutory normal working hours (that is 8 hours per day or 40 hours per week)
  • Overtime hours (called overtime for short) are those hours of work that lie between an industry-specific (collective agreement ) or contractually shortened working time and the statutory normal working time

Depending on the collective agreement, the working hours are set at 37.5 (for state employees), 38.5 or 40 hours. Depending on the collective agreement, 1½ to 7½ hours of overtime can be charged. The employer only has to pay the normal hourly wage for overtime. They are mostly used for preparation times, such as B. in trade or in the craft, expected. Some collective agreements can also be used to add up to the full eight hours of work, as is often the case in office jobs. As a result, instead of the prescribed 38.5 hours, you work 40 hours a week. As a result of this rule, a maximum of 320 overtime hours per year is possible in retail.

In Austria, an overtime surcharge is charged for overtime. The normal surcharge for an overtime is 50% and the increased one is 100%. The increased surcharge is z. B. offset for night and public holiday work and is tax deductible for up to 10 hours per month (the number of subsidized overtime hours was increased from five to ten hours on January 1, 2009). In the case of certain collective agreements and working time models (e.g. "flextime model" in IT-KV), however, a uniform surcharge of 65% is provided, regardless of the time of provision.

For the 13th and 14th salary (vacation and Christmas bonus), an average number of overtime hours must be taken into account if this is agreed in the collective agreement.

There is also time compensation, which can be 1: 1.5. This means that you get one and a half hours free for one hour of work (lead time).

For part-time employees, i.e. employees who do not achieve the statutory normal working hours, a surcharge of 25% has to be paid for the overtime hours, i.e. the hours between the contractually agreed and normal working hours, since January 1, 2008. However, employees must also receive the overtime allowance if time compensation has been agreed.

Regulation in Switzerland

The minimum public-law provisions on overtime, which are monitored by the state, can be found in the Swiss Labor Act . In most cases, however, they are replaced by provisions in collective employment agreements under private law .

Regulation in Hungary

In Hungary, a maximum of 250 overtime hours are currently allowed (as of December 2018). In the future, employees should be able to be obliged to work up to 400 overtime hours per year. Employers should be able to take three years to compensate for or pay for overtime. Despite massive protests from the opposition, who referred to the law as the “slave law”, the amendment to the law was passed on December 12, 2018.

Regulation in France

The weekly working time of 35 hours (as of May 2018) is used as a reference, beyond which it is overtime. If there are no other individual or collective agreements, a maximum of 220 hours of overtime per year may be worked.

Under the government of Nicolas Sarkozy , overtime was made tax-free. This regulation was abolished again under François Hollande . In December 2018, the government under Emmanuel Macron made overtime exempt from tax and social security contributions from 2019. Economists criticized the measure because it hardly affects people in the low-wage sector, promotes overtime and does not benefit people who work part-time or who are unemployed.

Amount of overtime in Germany

According to the IAB working hours calculation, a total of 1.729 billion hours of overtime was worked in Germany in 2016 , of which 782 million were paid and 947 million unpaid overtime. According to the microcensus, dependent employees worked 828.7 million paid and unpaid hours of the total volume.

The following table shows the development according to the IAB working time calculation from 2006 to 2016:

Health consequences of overtime

Working overtime tends to increase the risk of heart attacks. This was the result of a UK long-term study that examined more than 6000 British civil servants (4000 men, 2000 women) aged 39 to 61 for eleven years. All of them had healthy hearts at the start of the study in the early 1990s.

After eleven years, 369 officials had either died of cardiovascular disease or had suffered a heart attack (= 369 had a coronary event ( sudden cardiac death ), myocardial infarction or angina pectoris ). It showed a 60 percent increased risk of illness for those who worked three to four hours a day. The civil servants who worked a lot of overtime tended to be younger, more men and higher up the career ladder.

The association between overtime and coronary events was independent of risk factors such as smoking, obesity or elevated blood lipid levels.

The scientists also give possible reasons for this association. Overtime was often done by people who tend to be competitive and tense (type A behavior). Too much time in the office could also lead to depression, feelings of anxiety and deficits in sleep and recovery times. People with a tendency to work overtime are possibly precisely those who do not take it easy and also show up in the office when they are sick.

The Whitehall-ll study examines the effects of various aspects of the world of work on the health of working people. Subjects are approximately 6,000 UK public service workers. The latest Whitehall II results show that working overtime dramatically increases the risk of developing CHD . At the start of the study (1991 to 1994), the subjects (ages 39 to 61 years) had a healthy heart. Over a period of eleven years, 369 people suffered either fatal or non-fatal infarcts or angina pectoris . Using the Cox- proportional hazard models , it was calculated that employees who worked three to four hours of overtime per day were 60% less than those who did not (HR 1.60; 95% CI: 1.15-2.23 ) had an increased risk of developing CHD. If other, non-work-related CHD risk factors were factored out, an HR of 1.56 remained for overtime (95% CI: 1.11-2.19). Overtime is therefore an independent risk factor for heart disease, regardless of the conventional risk factors. This can in part be explained by the personality structure of the test subjects: Type A personalities in particular who work overtime are always under steam and more often suffer from high blood pressure. Those who work a lot of overtime also have less time to worry about a healthy diet, compensatory exercise and regular doctor visits, and are more likely to suffer from lack of sleep , anxiety disorders and depression .

See also


  • Anger, Silke (2006): On the payment of overtime in Germany: Unpaid overtime on the advance , in: DIW weekly report No. 15–16, April 12, pp. 189–196.
  • Rosenau, Marc: The arrangement of overtime , NJW -Spezial 24/2010, 754
  • Thomas Dieterich u. a. (Ed.): Erfurt Commentary on Labor Law , 11th edition, Munich 2010, Verlag CH Beck, ISBN 978-3-406-60876-6 .
  • Martin Henssler, Heinz Josef Willemsen, Heinz-Jürgen Kalb: Labor law commentary , 2nd edition, Cologne 2006, Otto Schmidt publishing house, ISBN 3-504-42658-6 .

Web links

Individual evidence

  1. in Germany, for example, Section 12 (1) sentence 3 TzBfG
  2. z. B. Article "Overtime, Overtime" in the labor law manual by Hensche lawyers (online) ; Juraforum Lexicon: Overtime
  3. ↑ Public Service Law Act 1979, Section 49
  4. Working hours: more and less work. Basel-Stadt , accessed on July 7, 2013 .
  5. Information from the teachers' main staff council 01/2007 Association of Education and Upbringing - State Association of Saxony-Anhalt, 2007, accessed on July 7, 2013 .
  6. Wage claims can only be offset against minus hours if the employee has agreed to a working time account. www.hensche.de, March 17, 2012, accessed on July 7, 2013 .
  7. Landesarbeitsgericht Rheinland-Pfalz, judgment of December 15, 2011, file number 2 Sa 559/11
  8. Federal Labor Court , judgment of February 27, 1981, file number: 2 AZR 1162/78
  9. Labor Court Frankfurt / Main, February 23, 2005, file number 10 Ca 9795/04
  10. ^ Federal Labor Court, judgment of December 14, 1967 5 AZR 74/67
  11. Overtime: What labor law allows in Anwaltauskunft Magazin , November 3, 2015 (accessed November 16, 2015).
  12. § 7 Abs. 7 TvöD
  13. Section 6 (5) TVöD
  14. ^ Federal Labor Court, judgments of November 25, 1993, file number. 2 AZR 517/93 and May 29, 2002 file number 5 AZR 370/01
  15. ^ Judgment of the European Court of Justice of February 8, 2001, Az. C-350/99
  16. Quotation from BAG press release No. 16/12 on the judgment of February 22, 2012 - 5 AZR 765/10 [1]
  17. Federal Labor Court, judgment of September 28, 2005, file number 5 AZR 52/05 , see under I. 1. b) of the reasons for the judgment
  18. Regional Labor Court Munich, judgment of August 1, 2007, file number: 10 Sa 93/07
  19. ^ Judgment of July 11, 2008, file number 9 Sa 1958/07
  20. ^ Federal Labor Court, judgment of September 1, 2010, file number 5 AZR 517/09
  21. https://www.wko.at/branchen/vbg/handel/Ueber hours.html
  22. https://www.wko.at/service/steuern/Sonntags-,_Feiertags-_und_Nachtzuschlaege_%28SFN-Zuschlaege%29.html
  23. Ulrike Famira-Mühlberger, Stefan Fuchs: Unpaid overtime in Austria. Austrian Institute for Economic Research, June 2013, accessed on September 8, 2019 . P. 3, last section and footnote 1.
  24. IT collective agreement
  25. Hans-Peter Siebenhaar: Orbán enforces his “slave law”. In: Handelsblatt. December 12, 2018, accessed December 17, 2018 .
  26. Heures supplémentaires d'un salarié du secteur privé. In: Service-Publique.fr. May 29, 2018, accessed December 12, 2018 (French).
  27. Michaela Wiegel: Just alms or a victory for the middle class? December 11, 2018, accessed December 12, 2018 .
  28. ^ French parliament approves Macron's social package. In: FAZ. December 21, 2018, accessed December 12, 2018 .
  29. Anna-Sophie Schneider: To whom Macron’s billion promises are of use. In: Spiegel Online. December 11, 2018, accessed December 12, 2018 .
  30. a b IAB-Arbeitszeitrechnung, quoted from: Answer of the Federal Government to the small question of the MPs Jutta Krellmann, Klaus Ernst, Fabio De Masi, other MPs and the parliamentary group DIE LINKE: Overtime in Germany. In: Drucksache 19/289. German Bundestag, December 15, 2017, accessed on March 23, 2018 . Tables on p. 8.
  31. Microcensus. Quoted from: The Federal Government's response to the minor question from MPs Jutta Krellmann, Klaus Ernst, Fabio De Masi, other MPs and the DIE LINKE parliamentary group: Overtime in Germany. In: Drucksache 19/289. German Bundestag, December 15, 2017, accessed on March 23, 2018 . P. 2.
  32. aerztezeitung.de May 12, 2010
  33. M. Virtanen, JE Ferrie, A. Singh-Manoux, MJ Shipley, J. Vahtera, MG Marmot, M. Kivimäki: Overtime work and incident coronary heart disease: the Whitehall II prospective cohort study. In: European heart journal. Volume 31, number 14, July 2010, pp. 1737–1744, doi : 10.1093 / eurheartj / ehq124 , PMID 20460389 , PMC 2903713 (free full text).