Hours of Work Act. Dated 6 June 1994.
(Bundesgesetzblatt, 10 June 1994, No. 33, pp. 1170- 1177)
CHAPTER I. HOURS OF WORK ACT (Sections1-26)
[CHAPTERS 2-16. Consequential Amendments]
CHAPTER 1. HOURS OF WORK
Division 1. General provisions
Section 1. Purpose of this Act.
The purpose of this Act is:
Section 2. Definitions.
(1) Hours of work means the hours from the beginning to the end of work, not counting rest periods. Hours of work under more than one employer shall be added together. In underground mining work, rest periods shall count as working hours.
(2) Workers means workers, employees and persons undergoing training.
(3) Night-time means the period from 11 p.m. to 6 a.m.
(4) Night work means all work which occupies more than two hours of night-time.
(5) Night workers means workers who:
Division 2. Daily hours of work and free time
Section 3. Workers' hours of work.
Workers' daily hours of work may not exceed eight hours. Such hours can be extended to ten hours only if within six calendar months or within 24 weeks an average of 8 hours per day is not exceeded.
Section 4. Rest periods.
Hours of work shall be interrupted by rest periods, fixed in advance, of at least 30 minutes, if hours last for between six and nine hours, and of 45 minutes, if hours of work last for more than a total of nine hours. The rest periods referred to in the first sentence can be divided up into periods of at least 15 minutes each period. Workers may not be employed without a rest period for more than six consecutive hours.
Section 5. Daily rest.
(1) Workers must have an uninterrupted period of rest after the end of their daily work of at least 11 hours.
(2) The duration of the period of rest in subsection (1) can, in hospitals and other institutions for the treatment, nursing and care of persons, in restaurants and other institutions for entertainment and lodging, in transport undertakings, radio and television and in agriculture and the care of animals, be reduced by up to one hour, if each such reduction is compensated within one calendar month or within four weeks by the extension of another rest period to at least 12 hours.
(3) Notwithstanding subsection (1) above, in hospitals and other institutions for the treatment, nursing and care of persons, reduction of rest periods because of calls during stand-by duty or during on-call periods, which do not amount to more than one-half of the rest period, can be made up at other times.
(4) Where provisions of the European Community relating to drivers and assistant drivers provide for shorter minimum rest periods, these provisions shall be valid notwithstanding subsection (1) above.
Section 6. Night work and shift work.
(1) The hours of work of night workers and shift workers shall be established in accordance with the accepted results of scientific research into the appropriate scheduling of work.
(2) The daily hours of work of night workers may not exceed eight hours. Notwithstanding section (3), they can be extended to ten hours only if an average of eight hours per day is not exceeded within one calendar month or within four weeks. For periods in which night workers within the meaning of paragraph 2(5)(ii) are not requested to perform night work, sentence 2 of section 3 shall apply.
(3) Night workers shall have the right to a medical examination before entering into employment and thereafter at regular intervals of not less than three years. On attaining 50 years of age, night workers shall have the right to examination at intervals of one year. The cost of such examination shall be borne by the employer, unless it offers night workers these examinations free of charge administered by the enterprise physician or by an inter-enterprise medical service.
(4) The employer shall be required to transfer a night worker at his or her request to a suitable daytime workplace, if:
unless there are urgent reasons within the enterprise which prevent this. If such reasons prevent the transfer of the worker to a suitable daytime workplace, the works council or the personnel committee must be consulted. The works council or the personnel committee can offer the employer suggestions for a transfer.
(5) If no provisions concerning compensation exist under a collective agreement, the employer must guarantee night workers an appropriate number of paid days off for the hours of work performed during the night, or an appropriate supplement over and above the gross wage due to them for such working hours.
(6) It must be ensured that night workers have the same access to further training and to opportunities for promotion as other workers.
Section 7. Divergent provisions.
(1) The following provisions shall be permitted in a collective agreement, or in an individual works agreement on the basis of a collective agreement:
(2) Provided that the protection of workers' health is ensured by a corresponding period of compensatory time, it can be provided in a collective agreement, or in an individual works agreement on the basis of a collective agreement:
(3) Within the sphere of application of a collective agreement referred to under subsections 1 or 2, divergent provisions can be adopted in the enterprise of an employer who is not bound by a collective agreement, either by an individual works agreement or, if there is no works council, by a written agreement between the employer and the worker. Provisions that are divergent from a collective agreement can be adopted in an individual works agreement, and can also be applied in enterprises of an employer who is not bound by a collective agreement. Provisions adopted under paragraph (2)(iv) that are divergent from a collective agreement shall be valid between employers and workers who are not bound by a collective agreement, if it is agreed between them that the provisions of the collective agreement which apply to the public service shall apply and the employers meet the costs of the enterprise principally through grants, within the meaning of the Budget Act.
(4) Churches and religious associations under the public law can incorporate the divergences referred to under subsections (1) or (2) in their rules.
(5) In areas not normally covered by a collective agreement, the exceptions under subsections (1) or (2) can be permitted by the supervising authority if this is necessary for operational reasons and the workers' health is not endangered.
(6) The federal Government can authorize exceptions under subsections (1) or (2) by statutory order with the consent of the Upper House of Parliament, provided that this is necessary for operational reasons and the workers' health is not endangered.
Section 8. Dangerous work.
The federal Government can, by statutory order, with the consent of the Upper House of Parliament, reduce working hours beyond those provided for under section 3 for individual areas of employment, for particular work or for particular groups of workers, in which particular dangers to workers' health are expected; extend rest periods and daily rest beyond what is provided for under sections 4 and 5; extend the provisions under section 6 for the protection of night workers and shift workers and reduce the possibility for divergencies under section 7, provided that this is necessary for the protection of workers' health. Sentence 1 does not apply to areas of employment and to work in enterprises within the competence of the Mines Inspectorate.
Division 3. Rest on Sundays and holidays
Section 9. Rest on Sundays and holidays.
(1) Workers may not be employed from midnight to midnight (0 to 24 hours) on Sundays and public holidays.
(2) In enterprises having several regular shifts by day and night, the beginning or end of the rest on Sundays and holidays can be brought forward or postponed by up to six hours, if the enterprise closes for the 24 hours following the beginning of the daily rest.
(3) In the case of drivers and assistant drivers, the beginning of the 24-hour rest on Sundays and holidays can be brought forward by up to two hours.
Section 10. Work on Sundays and holidays.
(1) If work cannot be undertaken on workdays, workers can be employed on Sundays and holidays, notwithstanding section 9:
(2) Notwithstanding section 9, workers may be employed on production work on Sundays and holidays, if the tasks permitted as a result of the interruption of production under paragraph (1)(xiv) would require the employment of more workers than in the case of continuous production.
Section 11. Compensation for work on Sundays and holidays.
(1) At least 15 Sundays in the year must be free.
(2) Sections 3-8 shall apply correspondingly to employment on Sundays and holidays; but the maximum hours of work and compensatory periods provided for under section 3, section 6(2) and section 7 may not be exceeded by hours of work on Sundays and holidays.
(3) If workers are employed on Sunday, they must have a day of rest in compensation, which shall be granted within a period of two weeks including the day on which they worked. If workers are employed on a holiday which falls on a working day, they must have a day of rest in compensation, which shall be granted within a period of eight weeks including the day on which they worked.
(4) Rest on Sunday or on a public holiday under section 9, or the day of rest as compensation under subsection (3), shall be granted to the workers immediately in connection with a rest period under section 5, provided that there are no technical or work organization reasons not to do so.
Section 12. Divergent provisions.
A collective agreement, or an individual works agreement on the basis of a collective agreement, can permit:
Subsections 7(3) to (6) shall apply.
Section 13. Authorization, directive and consent.
(1) The federal Government can, by statutory order, with the consent of the Upper House of Parliament, in order to avoid serious damage, taking into consideration the protection of the workers and of the Sunday and holiday rest:
and can decide upon the conditions necessary for the protection of workers and rest on Sundays and holidays.
(2) If the federal Government does not use its powers under subparagraph (1)(ii)(a), the governments of the Länder can issue corresponding provisions by statutory order. The governments of the Länder can delegate these powers to the highest authorities in the Länder by statutory order.
(3) The supervising authority can:
and can issue directives concerning hours of work with due regard to the time established for public religious services.
(4) Notwithstanding section 9, the supervising authority shall permit workers to be employed on Sundays and holidays on work which, for chemical, biological, technical or physical reasons, must be continued without interruption on Sundays and holidays.
(5) Notwithstanding section 9, the supervising authority must permit the employment of workers on Sundays and holidays, if, because of extensive utilization of the legally permitted weekly hours of work and because of longer hours of work in foreign countries, the competitive position is adversely affected to an excessive degree, and employment can be ensured by permitting work on Sundays and holidays.
Division 4. Exception in special cases
Section 14. Exceptional cases.
(1) Exceptions to sections 3 to 5, subsection 6(2), section 7 and sections 9 to 11 shall be permitted in the case of temporary work in emergencies and in extraordinary cases which occur independently of the will of the persons affected and whose effects are not to be corrected in any other way, especially when there is a risk that raw materials or food will spoil or the results of work will turn out wrongly.
(2) Divergence from sections 3 to 5, subsection 6(2), section 7, subsections 11(1) to (3) and section 12 shall also be permitted:
if the employer cannot be expected to make other arrangements.
Section 15. Consent and authorization.
(1) The supervising authority can
(2) The supervising authority can permit further exceptions in addition to those envisaged in this Act, insofar as these are urgently necessary in the public interest.
(3) The Federal Ministry of Defence can, within its own area of authority, by statutory order, and with the agreement of the Federal Ministry of Labour and Social Affairs, for compelling defence reasons, require workers to perform work over and above the limits of hours of work and the restrictions provided for in this Act and in statutory orders and collective agreements issued on the basis of this Act.
Section 16. Publication and time records.
(1) The employer shall be required to post or to display for inspection in an appropriate place in the enterprise a copy of this Act, of the statutory orders and of the collective agreements and individual works agreements made on the basis of this Act with reference to subsections 7(1) to (3) and section 12, and which are applicable to the enterprise.
(2) The employer shall be required to record the hours of work of workers which extend beyond the daily hours of work under sentence 1 of section 3. These records shall be kept for at least two years.
Section 17. Supervising authority.
(1) Compliance with this Act and statutory orders issued on the basis of this Act shall be supervised by the authorities (supervising authorities) which have competence under the laws of the Länder.
(2) The supervising authority can order the necessary measures which the employer must take in order to meet the obligations which arise under this Act and under statutory orders issued on the basis of this Act.
(3) In the case of the public service of the federal Government and of public corporations, institutions and foundations which are immediately subordinate to the federal Government, the duties and the authority of the supervising authority shall be exercised by the competent federal ministry or by agencies determined by the ministry. This shall also apply to authorizations under subsections 15(1) and (2).
(4) The supervising authority can require from the employer the information necessary for the implementation of this Act and for statutory orders issued on the basis of this Act. It can also require the employer to submit or to forward for inspection the records of hours of work and collective agreements or individual works agreements made under subsections 7(1) to (3) and section 12.
(5) The agents of the supervising authority shall have the right to enter and to inspect workplaces during operating and working time; outside these times, or if the workplaces are situated in a dwelling, they may be entered and inspected without the consent of the occupier only in order to prevent an immediate danger to public safety and order. The employer must permit entry to and inspection of the workplaces. The constitutional right of inviolability of the dwelling (Article 13 of the Constitution) shall be modified accordingly.
(6) The person obliged to supply information can refuse to answer questions which would expose him or a relative as specified under paragraphs 383(1)(i) to (iii) of the Code of Civil Procedure to the risk of criminal prosecution or of proceedings under the Administrative Offences Act
Division 6. Special provisions
Section 18. Non-application of this Act.
(1) This Act shall not apply to:
(2) The employment of persons under 18 years of age shall not be covered by this Act but instead shall be covered by the Young Workers (Protection of Employment) Act.Legislative Series, 1976-Ger. F.R. 2.
(3) The employment of workers in merchant ships as crew members within the meaning of section 3 of the Seafarers' Act shall not be covered by this Act but instead shall be covered by the Seafarers' Act.
(4) The employment of workers in the bakery and confectionary sector shall not be covered by this Act but instead by the Working Time in Bakeries and Confectionaries Act.
Section 19. Employment in the public service.
In the exercise of sovereign responsibilities in the public service, where no provisions exist under a collective agreement, the provisions relating to working time which apply to public officials can be applied by the competent authority to workers insofar as sections 3 to 13 do not apply.
Section 20. Employment in aviation.
The employment of workers as crew members in aircraft shall be covered not by the provisions of this Act relating to hours of work and rest periods but by the provisions regarding flying time, air service time and rest periods of the Second Implementing Order in the Working Regulations for Aviation Machines in such versions as may from time to time be in force.
Section 21. Employment in inland waterway transportation.
The provisions of this Act shall apply to the employment of crew members in inland waterway transportation, provided that the provisions regarding rest periods in the Inspection Regulations for Rhine Navigation and Inland Navigation, in such versions as may from time to time be in force, are not opposed to this. They can be adjusted by collective agreement to meet the circumstances of inland waterway transportation.
Division 7. Penalties and fines
Section 22. Fines.
(1) There shall be a contravention where the employer deliberately or negligently:
(2) Contraventions specified under paragraphs (1)(i) to (vii), (ix) and (x) can be penalized by a fine of up to 30,000 marks, and those under contraventions under paragraph (1)(viii) by a fine of up to 5,000 marks.
Section 23. Penal sanctions.
(1) With regard to acts specified under paragraphs 22(1)(i) to (iii), and (v) to (vii), one who:
shall be punished by imprisonment by up to one year or by a fine.
(2) A person who in cases specified under paragraph (1)(i) endangers a worker through negligence shall be punished by imprisonment of up to six months or by a fine calculated on the basis of up to 180 days of income.
Division 8. Final provisions
Section 24. Implementation of international agreements and
legal enactments of the European Community.
The federal Government can, with the consent of the Upper House of Parliament, issue statutory orders under this Act in order to meet obligations under international agreements or for the implementation of legal enactments of the Council and Commission of the European Communities which fall within the purview of this Act.
Section 25. Transitional provisions for collective agreements.
If a collective agreement, which is already in existence when this law comes into force, or which remains in effect subsequently, contains provisions that are inconsistent with subsections 7(1) or (2), or sentence 1 of section 12, which exceed the upper limits laid down in those provisions, the provisions in such a collective agreement shall remain unchanged. Individual works agreements reached under a collective agreement shall be considered collective agreements for the purposes of sentence 1. Sentence 1 shall apply correspondingly to provisions under a collective agreement in which, notwithstanding subsection 11(3), a wage supplement is granted for employment on holidays instead of free time period.
Section 26. Transitional provisions for particular groups
As of 1 January 1996, section 5 shall apply to doctors and nursing staff in hospitals and other institutions for the treatment, nursing and care of persons.
[CHAPTERS 2-16. Consequential Amendments]
International Labour Organization