Since my dissertation, I've been fascinated by working time law. That's why I want to stay on the ball in this area too and have familiarized myself with a recent ruling by the OVG Münster from 13.02.2020 (1 A 1512/18) has dealt with. However, if you have done a lot of research into working time law, you will find that there are no major surprises in this ruling when it comes to rest periods and working time. Nevertheless, I would like to pick up on this ruling and outline a few key points, as my previous publications on working time have been published in specialist journals that are not so easily accessible or divisible. In addition, there still seems to be a lack of clarity regarding the terminology, otherwise this ruling would not exist 😉 .
Whether I will write further articles here on the subject of working hours depends on how often this page is read, liked and shared.1For the sake of simplicity, the Duden has decided to follow a strict scheme and to apply the morphological rules that apply to German verbs in German translations of this kind, even if the result is an irritating written form in terms of pronunciation. The basic rule for the participles of weak verbs is: ge + word stem + t. In the case of "liken", we take "lik" as the word stem, which goes back to the fact that the stem of a word is normally determined by separating the inflectional or word-forming endings (e.g. from liking = lik + ing), and we have already made a number of determinations according to this pattern: in addition to "faken, gefakt" and "tunen, tuned", we also use "canceln, gecancelt", "timen, getimt", "checken, gecheckt" and "managen, gemanagt", for example. And accordingly, we also recommend "gelikt." It is clear to us that "gecheckt" is easier to accept than "gelikt," but we think it is an unnecessary complication to offer different solutions here.Dr. Werner Scholze-Stubenrecht, head of the Duden editorial team, source: https://www.korrekturen.de/nachgefragt/gelikt_geliket_oder_geliked.shtml (the little heart under the title) is shared or commented on. Enough of the preamble - let's get straight to the topic and, in my opinion, to the two key principles:
Guiding principle
Rest periods and working time are to be differentiated according to the degree of autonomy of the employee in choosing his place of residence and organizing his time.
For anyone who has dealt with the EU Directive 2003/88/EC, this is nothing other than Art. 2 No. 1 and 2 of said Directive, which have already been sufficiently clarified by ECJ rulings.2October 3, 2000, C-303/98 (SIMAP); September 9, 2003, C-151/02 (Jaeger); December 1, 2005, C14/04 (Dellas), September 10, 2015, C266/14 (Federación de Servicios Privados del sindicato Comisiones obreras), February 21, 2018, C518/15 (Matzak) and the European Commission3European Commission(2017). Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organization of working time of 24.05.2017 (2017/C 165), Brussels. have been sufficiently substantiated. In summary, it can be said that Rest period as opposed to working time stands. The decisive criterion for differentiation is the extent to which the employee can determine his or her own location and, inextricably linked to this, the organization of his or her own time. The less autonomy over location and organization, the more likely this time is to be classified as working time. This classification can be made in stages:
On-call service
On-call duty is basically rest time, as it is generally associated with a high degree of autonomy. However, the tighter the spatial and temporal requirements (e.g. until arrival at the duty station) become, or if alarms are raised with a predictably reliable regularity, on-call duty must be classified as standby duty.4See in detail Alberts, Cornelia; Bürger, Bernd (2018). The EU Working Time Directive and its impact on police practice. Die Polizei, 109, p. 223; VGH Baden-Württemberg, Urt. v. 26.06.2013 - 4 S 94/12
On-call service
On-call duty means that the civil servant must be at a location specified by the employer and must be available to perform his or her duties if necessary. The actual performance of work is irrelevant. Even if the civil servant sleeps at a specified location but can be called upon to perform work at any time, this is undoubtedly on-call duty (e.g. any civil servant on duty who has to remain on duty premises). The only decisive factor is the obligation to be available at a specific location. Spatial autonomy and, accordingly, the freedom to organize one's own time are clearly restricted. On-call duty is to be assessed as working time with regard to occupational health and safety. However, the legal assessment of compensatory time off or even the payment of these working hours is somewhat more complex. In this respect, too, the current OVG ruling reinforces previous case law. This topic could be dealt with in more detail in another article if there is interest.
Working hours
According to Art. 2 No. 1 of the Directive 2003/88/EC working time is any period of time during which an employee works in accordance with national legislation and/or practice, is at the employer's disposal and performs his or her duties or tasks. In addition to what we think of as traditional working time, i.e. a specific activity for an employer, this also includes on-call duty, i.e. "being available" with limited autonomy.
If you would like to read a few principles on the subject before the possible second part of this article, we recommend the article by Judge Cornelia Alberts and myself in "The police" recommended. This can be found online (unfortunately not very cheap), and the magazine should also be in circulation in many authorities.