First there are delivery delays, then the order has to be completed very quickly. Best in shifts. But can the employer order it so easily?

A large order comes in – the machines would have to run around the clock for this. The employer wants to switch the schedules to shift work. Do the employees have to participate?

Basically, the following applies: If the employer wants to arrange the working hours of an employee in shift rhythm, he is limited by the employment contract, but also by the co-determination of the works council and staff council. That explains Jürgen Markowski, specialist lawyer for labor law in Offenburg.

Ordering shift work is therefore only possible if the parties to the employment contract come to an agreement on this, if shift work is already provided for in the employment contract or if a collective agreement that provides for shift work applies. According to the specialist lawyer, this applies at least whenever the working hours are agreed in the employment contract without a shift.

“If I have an employment contract that basically only stipulates that I work 40 hours a week and that my work performance is based on operational requirements, then the employer has the right to issue instructions to also order shift work,” says Markowski.

This falls under the classic content of the right of direction, which is regulated in paragraph 106 of the trade regulations. However, the employer must also take the legitimate interests of employees into account. If you want to know whether your employer can now order shift work, you should first look at your employment contract.

“In companies with a works council or in departments with a staff council, however, the employer must obtain their approval when introducing shift work,” Markowski continued. As a rule, a works agreement is then concluded to introduce shift work.

The works or staff council can also have a say in the design of shift models, for example. “Shift work can be very stressful,” says Markowski. Health protection aspects must therefore also be taken into account during the introduction. Last but not least, the employer must comply with the legal requirements of the Working Hours Act when introducing shift work.

Jürgen Markowski is a specialist lawyer for labor law in Offenburg and a member of the executive committee of the labor law working group of the German Lawyers’ Association (DAV).

(This article was first published on Monday, July 04, 2022.)