On-call work - Arbeit auf Abruf
October 13, 2020
On-call work is a special type of part-time work in which the employee is required to work "according to the workload" (section 12 Part-time Limitation Act (TzBfG)). The employer can therefore determine within the legal limits when the employee is needed. This represents a deviation from the legal norm, because according to the intention of section 615 the German Civil Code (BGB), the employer actually bears the economic risk of not being able to deploy his/her employee in a meaningful way. This means that the employer is obliged to pay the wages even if the employee cannot be occupied. For this reason, on-call work as an employment model is only permissible under strict legal conditions and under conditions developed in case law.
On call work is only permitted if it has been contractually agreed between employer and employee. The law says that the agreement must specify "a certain duration of weekly and daily working time". If a certain duration of the weekly working time is not specified, a working time of 20 hours is considered as agreed according to section 12 (1) sentence 3 TzBfG. This shall apply from 01.01.2019 for every part-time call-off employment relationship. However, this does not preclude the parties of the employment relationship from agreeing on weekly working hours of less than 20 hours. Section 12 TzBfG does not guarantee a minimum working time. However, such a minimum working time must be contractually stipulated by the parties. It must be greater than zero. If the duration of the daily working time is not fixed, the employer must use the employee's work performance for at least three consecutive hours each.
The contract must therefore specify the minimum number of hours an employee must or can work per day or per week. If a minimum working time has been agreed for the duration of the weekly working time, the employer is only allowed to call up to 25 percent of the weekly working time additionally. Thus, if a minimum working time of 30 hours per week has been agreed, the weekly working time may be increased to a maximum of 37.5 hour of agreed on-call work. It is also possible to go beyond the arrangement of overtime.
If a maximum working time has been agreed for the duration of the weekly working time, the employer is only permitted to call up to 20 percent less of the weekly working time. Maximum working time is the maximum time limit which the employer is allowed to call up. At the same time, the employee has security that a reduction of a maximum of 20 percent of the weekly working time is possible. So if a maximum working time of 30 hours per week is agreed, the law allows a reduction to a minimum of 24 hours. This serves to protection of the employees.
We will be pleased to advise you on the legally secure layout of on-call work.