Are plumbers on call

Employment Law On-call duty and on-call duty: this applies legally

On-call duty and on-call duty are becoming common practice in more and more industries. In terms of labor law, however, they repeatedly cause problems. What employers and employees should know.

Harald Czycholl

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Whether a hospital doctor or firefighter, heating engineer or plumber: In numerous professions it is important that employees too Can be used spontaneously outside of their normal working hours are. Because fires, births, heating failures or burst pipes do not adhere to the usual working hours and also occur at night or on weekends. And then quick action is required.

How many employees in Germany regularly or occasionally Emergency services complete or be available as on-call service is nowhere statistically recorded. However, experts assume that their number has increased significantly in recent years.

While on-call duty is generally considered to be working time and accordingly has to be remunerated at a certain hourly rate, this is the case with one On-call service not the case. The decisive legal difference here is where the employee has to be: If he undertakes to remain on the company premises or at another specified location, this is on-call duty and therefore working time. This applies even if the employee can rest during this time or if the specified place of residence is his private home.

The minimum wage also applies to on-call duty

"Payments in the on-call service are always regulated differently," says Alexander Bredereck, specialist lawyer for labor law from Berlin. Such are traditional Pay always a little lower than normal pay. However, the Federal Labor Court has ruled that employers must also pay a minimum wage during standby time. Ultimately, the payment depends on the actual work content, plus public holiday and night surcharges.

How often the employee must be on call is also stipulated in the various contracts, agreements or laws. "If the on-call service is very intensive, then you will tend to see it as normal working hours," explains Bredereck. For example, on-call duty in hospitals is to be fully regarded as working time, the European Court of Justice in Luxembourg has ruled.

On-call service is usually remunerated with a flat rate

If the employee is free to choose where he is and what he is doing and only needs to be able to appear promptly at the respective location if necessary, this is on-call duty. This is not paid as working time, but usually with a flat rate. However, employers have to pay their employees for this in any case, regardless of whether they are actually called to work at the same time, according to the German Lawyers Association. If you are called to work during on-call duty, this counts as normal working hours, which - in addition to the agreed on-call fee - must be paid normally. Anyone who goes to work from on-call duty is therefore also entitled to supplements for night or Sunday work, depending on the day and time of the week.

The distinction between on-call duty and on-call duty follows relatively strict rules. For example, the response time specified in on-call duty must not be too short, the European Court of Justice has ruled (file number: C-518/15). The case involved a firefighter who had to be on call within eight minutes. That was not enough for the court: employees on standby had to be able to carry out private activities - without the risk of constant interruptions, in which they had to leave everything immediately, the judges found.

Accessibility must be ensured

The employees on call must be reachable in any case. "In times of on-call duty, employees must ensure that they can receive calls," says Michael Eckert, labor lawyer from Heidelberg and member of the board of the German Lawyers' Association. However, there is a particular risk of consequences under labor law if you are on standby and cannot be reached. "It would be like not going to the office in the morning," explains Eckert. Even the excuse that there was no reception at the moment does not count.

There are no upper limits on how often and for how long employees can be on call or on call. Unless otherwise regulated in the collective agreement, they apply in full normal maximum working hours: ten hours per day is the maximum. On average, calculated over six months, it should not be more than eight hours a day. And between the services there must be at least eleven hours of rest.

On-call duty must be contractually agreed

In case of doubt, employees do not have to put up with the fact that the employer orders new on-call duty if this is not stated in the employment contract and it is not provided for in a works agreement or in the collective bargaining agreement. The Hessian State Labor Court decided that the employer exceeded his right to issue instructions if he ordered on-call duty without a contractual or collective agreement regulation (Az .: 12 Sa 1606/06).

The case negotiated by the Hessian judges was about an IT specialist who commuted several hundred kilometers on weekends to the place where his children lived, whom he took turns looking after with his former wife. This worked until the employer decided to introduce on-call duty at the weekend, during which the employee should be available at work within a short period of time. The IT specialist was reluctant and was initially fired because he refused to work. However, the judges declared both the termination and the on-call duty to be ineffective.

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