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Co-Determination of the Works Council in Case of Tolerance of Overtime

The Federal Labor Court (BAG) decided in a decision dated July 28, 2020 - 1 ABR 18/19 - that a toleration of overtime which violates the works council's right of co-determination according to Sec. 87 Para. 1 No. 3 of the Works Constitution Act (BetrVG) exists if there are sufficient indications for the employer's lack of necessary countermeasures in order to evaluate his inactivity as acceptance.


The parties involved are arguing about a claim for omission.

The employer has concluded a "company agreement on working hours" with the works council elected in her company, which regulates shift work and overtime. The daily working time in the shift models is eight hours.

After the electronic time recording system for two employees repeatedly showed times of more than eight hours per working day, the works council objected to this as overtime work and requested the employer to clarify the facts and take countermeasures. In response, the employer informed the works council that the two employees had been mistakenly assigned to a working time model not applicable to them (flextime instead of shift model) when recording their working hours. However, the error had been corrected and the two employees had been made aware on the observance of the working hours applicable to them according to the works agreement.

The works council has requested that the employer be ordered to refrain from tolerating or accepting the performance of overtime.

The labor court dismissed the request, the Regional Labor Court granted it. The employer's appeal to the BAG against this decision was successful.

Reasons for the decision

The BAG considered the request unfounded, since the work council is not entitled to a general claim for omission from Sect. 87 Para. 1 BetrVG. A behavior of the employer contrary to the works constitution is not given, which is also a precondition for the omission requirement according to Sect. 23 Para. 3 BetrVG.

1. First of all, the BAG has clarified that not only the order but also the toleration of overtime worked by employees is subject to co-determination according to Sec. 87 Para. 1 No. 3 BetrVG if a collective factual situation exists.

2. However, the cases in the present instance would not justify the assumption of toleration of overtime by the employer. 

Whether the employer tolerates overtime is to be evaluated under consideration of all individual case circumstances. One-off exceedings of the normal working hours due to special circumstances would not in themselves indicate that the employer tolerated overtime.

In the present case, there are no indications that the daily shift duration was exceeded for organizational reasons or because of the workload. The assumption of toleration was also contradicted by the fact that there had been a technical mix-up of the recording of working hours relevant for the two employees (flextime instead of shift work). The employer had thus at best accepted the work of the employees in a working time system that did not apply to them - unnoticed, according to her assertion - and had not tolerated overtime. In addition, the employer had corrected the working time records in response to the works council's objection and had pointed out to both employees the shift system applicable to them.

3. There were also doubts about the risk of repetition. If the party concerned has taken measures to remedy the state of disturbance, a danger of future impairments by accepting a similar state of disturbance is unlikely to occur.

Hints for the practice

The regulation of the temporary extension of the normal working hours, i.e. the regular working hours, is subject to the mandatory right of co-determination of the works council according to Section 87 (1) no. 3 BetrVG . Without the participation of the works council, the employer can therefore not order the performance of overtime. In addition, the works council's right of co-determination not only exists if the employer expressly orders overtime, but also if the employer tolerates voluntarily performed overtime (BAG, decision dated November 27, 1990 - 1 ABR 77/89). With the current decision, the BAG has made it clear that a toleration of overtime may only be concluded if all individual circumstances of the case have been taken into account and acknowledged. Although there was a lack of sufficient indications for the assumption that overtime is tolerated, it can be assumed that overtime is tolerated if overtime regularly or systematically occurs in the employer's company and the employer nevertheless fails to take the necessary countermeasures.

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