Work on call: German Federal Labor Court decides in favor of employer

If the contracting parties agree to work on call without specifying the number of the weekly working hours, a weekly working time of 20 hours has generally been deemed to have been agreed since 2019 (Art. 12 (1) sentence 3 TzBfG).

In the case now decided by the German Federal Labor Court (“BAG”), such new regulation had not been observed by the employer. Since 2009, he had employed a female employee as an on-call temporary worker in his company as required. He engaged her for varying periods of time and paid her according to the hours she actually worked. The employment contract did not contain any provisions regarding the number of weekly working hours. In the years 2017 to 2019, he engaged the employee for an average of just over 100 hours per month, i.e., more than 20 hours per week. From 2020 onwards, the employer only called up fewer hours on average than in previous years. Thereupon, the temporary employee filed a lawsuit and claimed that the employer had to pay retrospective remuneration based on the average working hours for the years 2017 to 2019. This could be concluded from a supplementary interpretation of the contract.

The BAG did not follow this view in its decision of October 18, 2022 (case no. 5 AZR 22/23). According to the BAG, a number of weekly working hours deviating from the statutory presumption can only be assumed by way of supplementary contract interpretation under two conditions:

1. The statutory 20-hour regulation does not constitute an appropriate regulation in the employment relationship in question, and
2. there are objective indications that the employer and employee would have made a different provision and agreed upon a higher or lower number of weekly working hours if they had been aware of the regulatory gap when the contract was concluded.

However, the plaintiff has not provided any evidence for such an assumption. The employer’s alleged call-off behavior in an arbitrarily chosen period is not sufficient.

Conclusion

In contracts with temporary staff, the parties should always agree upon a work schedule within which the employer is entitled to call off the working time. The statutory limits must be observed. This should also be checked for existing contracts concluded before 2019. Otherwise, there is a risk to run into problems with social insurance providers, particularly in the case of employees who are classified as marginally employed. If the 20-hour rule comes into effect, it is no longer possible to account for them as marginal employment on the basis of the current minimum wage.