Rarely has a change in current law caused quite so much political irritation as has the new working hours regulation. Yet in spite of the concerted outcry from critics, the amendments, effective as of 1 September 2018, are rather moderate. The new rules offer more flexibility at a lower risk of criminal liability.
The AZG in its former form already provided for some flexible working hours models. Thus, in case of a long weekend ("short Friday"), employees may work up to 9 hours on some days without receiving an overtime allowance; up to 10 hours a day are permitted if a 4-day week is introduced. Some averaging and flexitime schemes allow up to 10 hours per day and more than 40 hours per week, provided that, when averaged, the normal weekly working hours are not exceeded.
Nevertheless, more than 10 hours of work per day have so far been permitted only in exceptional cases as defined by law or in an emergency, a situation that frequently caused problems for employers. If the daily or weekly limits were exceeded, employers were liable to pay substantial administrative fines even when employees were ready to work longer hours voluntarily.
First of all, a major aspect needs to be considered that was mostly ignored in the public debate: in the future, employees will not be forced to work 12 hours every day, nor will the 8-hour day be given up as the statutory normal daily working hours. Same as today, the normal working day must not exceed 8 hours and the normal working week must not be longer than 40 hours, as provided in Section 3 (1) of the Working Time Act ("AZG"). Regulations governing the normal working hours under various collective bargaining agreements, which frequently specify a reduction to 38.5 or even 38 hours, also remain unaffected.
Under the quite rigid structure of the AZG, any work beyond the normal working hours constitutes overtime. Overtime must be compensated by an allowance of 50% or more, depending on a relevant provision in the collective bargaining agreement, either in the form of money or by compensatory time-off. This has not changed either.
Decriminalisation by raising the limits
The new rules decriminalise employers inasmuch as the maximum permitted limits are generally raised to 12 hours per day and 60 hours per week. Consequently, employers no longer risk being fined when longer working hours are needed. Nevertheless, employees must not put in more than 20 hours of overtime per week; moreover, under the EU Working Time Directive (2003/88/EC) a weekly average of 48 working hours must not be exceeded across a reference period of 17 weeks even when there is need for more work.
Right to refuse without giving grounds
The new regulation does not mean that employees are forced to work up to 12 hours per day if so instructed by the employer. Under Section 7 (6) AZG, employees are free to refuse to do overtime without giving grounds for their refusal when such overtime increases their daily work beyond 10 hours or the working week beyond 50 hours. Employees must not be penalised for their refusal; if the employer gives notice, the employee can appeal within two weeks. This provides employees with an effective legal tool to ensure that the 12-hour day remains voluntary.
Choice for employees
Another safeguard for employees is the new Section 10 (4) AZG: For overtime in excess of 10 hours per day or 50 hours per week, employees have the choice of receiving monetary compensation or time-off.
Greater flexibility for flexitime
The extension of the normal daily work to 12 hours improves the flexibility offered by flexitime and has a positive effect for both sides. Flexitime means that employees themselves choose within given limits when to start and stop work. This choice allows them to work longer on some days and shorter on others, for as long as the normal weekly working hours are, on average, not exceeded.
With the new Section 4b AZG, flexitime workers still must not exceed the normal 10 working hours. Extending the daily period to up to 12 hours is, however, possible when the agreed flexitime scheme allows consuming a time credit over a whole day and does not exclude consuming it in connection with a weekly period of rest. It was also clarified that working hours imposed by the management which go beyond the 8-hour day or 40-hour week are deemed overtime. In this way, it is legally safeguarded – contrary to what is being alleged by some critics – that working for 12 hours per day without any additional payment is permissible solely when the flexitime employee him-/herself determines to do so.
New exemptions from the AZG
The new AZG exempts certain family members, executives and other employees "who have significant decision-making powers", always on condition that their entire working hours are, due to the work's special character, either not counted or not predetermined or are defined by the employees themselves in terms of duration and timing. It must be assumed that the new exemptions will cause some interpretative problems in actual practice.
Changes in the Rest Periods Act (ARG)
With the exception of extraordinary cases regulated by law, exemptions from the rest periods during weekends and public holidays were possible only on the basis of ordinances and collective bargaining agreements. Accordingly, they require very long lead times. The new Section 12b ARG permits exemptions on four weekends or public holidays per employee and year, subject to a company agreement, in order to enable enterprises to quickly respond to a temporary rush job. Operations which have no works council installed may use individual agreements, but employees may refuse, without giving any reasons, to do weekend or holiday work.
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