The Federal Labor Court In its judgment of October 18.10.2023, 5 (case number: 22 AZR 23/20) decided on weekly working hours for on-call work. If the duration of weekly working hours is not specified, XNUMX hours are deemed to be agreed. A deviation from this can only be accepted by way of supplementary contract interpretation if the legal regulation is not appropriate and there are objective indications that the parties would have agreed on a different duration of weekly working hours when the contract was concluded.
1. FACTS
The plaintiff employee has been employed by the defendant employer, a company in the printing industry, as an “on-call assistant” since 2009. The employment contract does not contain any regulation regarding the length of weekly working hours. The plaintiff was called upon to work for varying amounts of time as needed.
From 2020 onwards, the extent to which their work performance was called upon decreased compared to the immediately preceding years. The plaintiff therefore claimed that, according to her calculations, her work performance was called up by the defendant for an average of 2017 hours per month between 2019 and 103,2.
The plaintiff is of the opinion that a supplementary interpretation of the contract shows that the working time now owed and to be paid by the defendant is 103,2 hours. She demands compensation for delay in acceptance if the use of her work in 2020 and 2021 did not reach this level.
The Bielefeld Labor Court (apparently there is one) assumed that the duration of the weekly working hours in the parties' on-call employment relationship Section 12 Paragraph 1 Sentence 3 TzBfG corresponding to 20 hours. The lawsuit for payment of late acceptance compensation was therefore only upheld to the extent that in individual weeks the plaintiff's workload was less than 20 hours. The plaintiff's appeal to the Hamm Regional Labor Court was unsuccessful. The appeal before the Federal Labor Court was also unsuccessful.
2. DECISION
According to the Federal Labor Court, according to Section 12 Paragraph 1 Sentence 3 TzBfG By law, a working time of 20 hours per week is deemed to be agreed if the employer and employee agree to work on call but fail to do so Section 12 Paragraph 1 Sentence 2 TzBfG to specify a specific duration of weekly working hours in the employment contract.
By way of supplementary contract interpretation, a different duration of weekly working hours can only be assumed if the fiction of the Section 12 Paragraph 1 Sentence 3 TzBfG There is no appropriate regulation in the employment relationship in question and there are objective indications that the employer and employee made a different provision when concluding the contract and were aware of the gap in the regulations and agreed on a higher or lower duration of weekly working time. In the specific case, the plaintiff provided no evidence to support such an assumption.
According to the BAG, the parties can, despite the legal fiction of Section 12 Paragraph 1 Sentence 3 TzBfG expressly or implicitly agree on a different duration of weekly working hours at the beginning of the employment relationship. However, the employer's on-call behavior during a certain period of time long after the start of the employment relationship and which appears to be arbitrary is not sufficient for this. The employer's retrieval behavior alone does not have any legal explanatory value. The employee's sole willingness to do more in a certain period of time also applies Section 12 Paragraph 1 Sentence 3 TzBfG The work owed to him does not justify the assumption that the employee wants to commit himself permanently for a longer period of time than provided for by law.
3. CONCLUSION
The Federal Labor Court's decision confirms the legal consequences of on-call work without specifying the weekly working hours. In the case of on-call work, it is recommended that parties to the employment contract agree on a specific weekly working time when concluding the contract in order to ensure the legal fiction of Section 12 Paragraph 1 Sentence 3 TzBfG to prevent. If the weekly working hours are adjusted during the current employment relationship, an agreement in written or text form is recommended in order to prevent any legal disputes and potential back pay.
