Restrictions on On-Call Work
(Higher Labor Court Berlin-Brandenburg, decision dated October 16, 2014 – 21 Sa 903/14)
When it comes to location and duration of working hours, the interests of the company and the employees generally widely diverge. The company desires a far-reaching scope of action to be able to adapt the location and duration of working hours – also on short notice – to the respective needs of the business. The employees want security in such planning. A flexible model accepted by the Federal Labor Court (BAG) reasonably merged these respective interests – namely, in on-call work.
Under this model it can be agreed that fixed regular working time may be exceeded by no more than 25 percent. Alternatively, it can be agreed that the regular working hours specified may be undercut by no more than 20 percent. A combination is also conceivable: i.e. an upwards and downwards range of fluctuation, if the percentages are adjusted accordingly; for example, an exceeding of 12.5% and an undercutting of 10%. Either unchangeable monthly compensation or compensation based on the actual working hours within the flexibility limits can be agreed upon.
For the Higher Labor Court Berlin-Brandenburg, the flexibility in the case discussed here went too far. It put narrow limits on on-call work on two levels simultaneously. First, the Higher Labor Court, acting in accordance with the decisions of the Federal Labor Court concerning admissibility of revocations, required that the employment contract or agreement for on-call work list the cases in which the on-call work clause may be used. If, in a concrete case, the employer changes the working hours due to an effective on-call work clause, the employer must also balance competing interests. That is, the employee’s interest in a stabilization of working hours must be weighed against the interests of the company.
Unfortunately, the Higher Labor Court has rejected leave to appeal to the Federal Labor Court, although the Federal Labor Court has not (yet) itself formulated these stringent requirements developed by the Higher Labor Court. For employers, action will be required should an on-call work option continue to be legally effective. The clauses used must be supplemented by a presentation of the reasons why a change in working hours can be made. These will, as a rule, normally be operational reasons. However, it is recommended that these should be specified further – as far as this is possible. In exercising the right to modification, interests must be balanced and this balancing will be adjudicated on by the labor courts in subsequent litigation, where appropriate. Written records are therefore recommended. In any case, the Higher Labor Court’s decision will not make matters easier for companies.