The current amendments to the Working Hours Act and the Law on Rest Periods have been in force since 1 September 2018. At its core is the increase in the maximum daily working time to twelve hours. In our current TPA Newsletter, we will inform you about these and other important changes.
New working hours: Up to twelve hours per day
The most substantial amendment to the Working Hours Act (AZG) – and one that that has been hotly debated to date – concerns the permission for employers to temporarily deploy their employees without administrative penalties for up to twelve hours per day or 60 hours per week with immediate effect, which should make it possible to decriminalise current working practice to a large extent. The additional 11th and 12th hours, which are now permitted by the amendment, are generally to be paid as overtime.
• Employees may refuse overtime hours exceeding ten hours per day or 50 hours per week without giving reasons, and they may not be disadvantaged for this either – for example with regard to pay or promotion opportunities.
• If an employee is nevertheless dismissed, such a dismissal may be challenged in court within two weeks.
• In addition, employees can choose whether they want to be compensated in cash or with time off in lieu for overtime in excess of ten or 50 hours.
Until 31 August 2018, employees were allowed to work a maximum of ten hours a day or 50 hours a week, depending on the legal or collective agreement situation. Under certain conditions, however, it was possible to be deployed for up to twelve hours per day or 60 hours per week by means of works agreement or individual agreements. This regulation on special overtime has been dropped with the amendment.
The provision that employees may be deployed for a maximum of 48 hours per week on average during a four-month period remains unchanged, and it is also important that all provisions more favourable to employees in collective agreements and works agreements are not affected by the amendment.
The following will apply to flexitime agreements in the future:
As of 1 September 2018, flexitime workers can be deployed for the legally permissible normal working time of twelve hours if it is ensured that they can also consume time credits on an all-day basis and consumption in connection with a weekly rest period is not excluded.
Please note that the flexitime agreement must provide for the possibility of using days off in lieu. And it must not exclude the possibility of consuming such days toe create long weekends.
If, under these conditions, the employee now works for more than ten but no more than twelve hours, on the basis of his or her own autonomous time management, this constitutes normal working time.
Overtime only exists if, despite flexitime, the employer orders working hours that exceed the normal working hours of eight hours a day or 40 hours a week.
Please note that many collective agreements stipulate that, even with flexitime, normal working hours are limited to ten hours and that the 11th and 12th hours of the day count as overtime. As such, these incur an overtime surcharge.
Exception from weekend and public holiday rest
The Law on Rest Periods (ARG) stipulates that employees must be granted an uninterrupted rest period of 36 hours, including Sundays. Employees may therefore not be deployed on weekends due to what is referred to as weekend rest.
Since 1 September 2018, however, the following exception applies: in the event of temporary special work requirements, an exemption from the weekend and public holiday rest requirement may be granted by works agreement on a maximum of four weekends or public holidays per employee per year. In companies without works councils, this requires an individual written agreement.
If, for example, the exceptions from the weekend and holiday rest are concluded for recurring events – such as every year for the Christmas or Easter period – the corresponding reason must be recorded in the works agreement or in the individual written agreement.
Please note that an exception from the weekend rest period is not allowed to be made on four consecutive weekends. Without a works agreement, employees may refuse to work on weekends and public holidays without providing any reasons. They must not be subsequently disadvantaged in terms of pay, promotion or transfer. Above all, they may not be dismissed for this reason. If the employee is nevertheless dismissed, they may challenge the dismissal within two weeks in court.
Special rule: Retail
Retailers do not have the option of agreeing to an exception from the weekend or holiday rest on four weekends or public holidays per year, for sales activities are regulated according to the Opening Hours Act.
IMPORTANT – New exception for close relatives
Also new since 1 September 2018 is that certain close relatives are not subject to either the Working Hours Act or the Law on Rest Period. This applies to family members who are employed under employment contracts and registered with the regional health insurance fund as employees.
The following are considered close relatives
• Adult children
• A spouse or registered partner living in the same household, and
• A partner, if he/she has lived with the employer in the same household for at least three years.
This exception only applies if the company/employer is a sole trader. Corporations or partnerships entered in the commercial register such as limited partnerships (KG) and general partnerships (OG) cannot make use of this provision.
However, the exception from the AZG and ARG only applies if
the total working time of the close relative due to the special characteristics of the activities
is not measurable or not determinable, or
the total working time of the close relative requires self-determination of working hours by the employee, due to the special characteristics of the activity.
Executives and – this is new – other employees who have been granted significant independent decision-making powers are also exempt from the regulations.
Special case: hotel and catering industry
The collective agreement for the hotel and catering industry has already allowed a reduction of the daily rest period to at least eight hours, contrary to the statutory provisions, for full-time employees in the kitchen and service of seasonal establishments.
The new regulation that has now come into force also provides for a reduction of the daily rest period for employees in the hotel and catering industry to at least eight hours for split shifts.
However, the following significant changes must be taken into account:
For split shifts
• the AZG itself permits the reduction of the rest period,
• the reduction of daily rest periods concerns full-time and part-time employees,
• it is possible to shorten the rest period not just in seasonal establishments, but in all establishments of the hotel and catering industry.