Opt-out (labor law)
Opt-out is a term from labor law and describes the possibility of employers and employees agreeing on an individual contract for a higher weekly working time than the 48 hours prescribed in the Working Hours Act (ArbZG).
The European Court of Justice (ECJ) has ruled that on-call duty requiring presence at the place of work does not count as rest time , but rather as working time within the meaning of Directive 2003/88 / EC on certain aspects of the organization of working hours . The German Bundestag then changed the Working Hours Act (ArbZG) in 2004 and equated on-call duty with work readiness ; therefore, on-call duty is assigned to working hours, which in principle must not exceed 48 hours a week. However, the ArbZG opens up the option of a different agreement on working hours with or without time compensation through a collective agreement if there is a considerable amount of work readiness or on-call duty. This so-called opt-out is expressly permitted by the applicable EU Working Time Directive. However, the ECJ found that the consent of the individual employee to exceeding the maximum working hours can only be given individually and is not replaced by the consent of the trade union negotiating partners (individual opt-out). The ECJ restrictively declares that for the employee's consent it is not sufficient that the employment contract contains an individual contractual reference to the consent in a collective agreement. Rather, consent must be given not only individually, but also freely and expressly, which is usually not the case with a reference to a collective agreement.
The individual opt-out can also be used in civil service law if state or federal regulations so provide. Special regulations for civil servants in municipal fire brigades have been created on a regular basis . However, it is controversial whether the remuneration for the activity in the context of the opt-out is constitutional.
Individual evidence
- ↑ 20, - Euro flat rate for opting out in NRW is unconstitutional . Hotsteg's law firm. December 30, 2013. Accessed December 30, 2013.