When setting a calendar limit for an increase in working hours, the transparency requirement of Section 307 Para. According to a decision of the Seventh Senate of September 2, 2009 (7 AZR 233/08), 1 sentence 2 BGB does not require that the reason for the limitation must be agreed in writing.
In contrast to the uncertain situation for the employee in the case of unclear cancellation reservations, there is no comparable uncertainty for the employee in the case of an exclusively calendar-based time limit. It is unmistakably clear that the increase in working hours ends upon expiry of the deadline without any further action by the employer. In accordance with Section 307 Para. 1 BGB, the content check of the limitation of individual contractual terms and conditions are circumstances that affect the limitation of an employment contract as a whole in accordance with Section 14 Paragraph. 1 TzBfG is important.
If the limitation of an increase in working hours is based on circumstances that affect the limitation of an employment contract as a whole in accordance with Section 14 Para. 1 Sentence 2 No. 3 TzBfG could objectively justify, the employer’s interest in increasing working hours only for a limited period usually outweighs this. An unreasonable disadvantage to the employee in the sense of. § 307 Abs. 1 BGB may exceptionally apply in such a case if, before agreeing on the temporary increase in working hours, the employee indicated his wish to increase the working hours indefinitely and the employer has not allocated him the corresponding permanently available employment capacities.
In its judgment of September 15, 2009 ( 9 AZR 757/08 ), the Ninth Senate decided on the employer’s right to assign work on Sundays and public holidays by virtue of its right to direct. If the parties to the employment contract do not expressly regulate the distribution of working hours, the standard working hours at the time of conclusion of the contract initially apply.
The content of such an agreement is that the agreed work must be carried out during the effectively determined operational working hours. If the employer’s right to distribute working hours is not limited by law, collective law or individual contract, the employer determines the distribution of working hours by instruction in accordance with its right of direction under Section 106 Sentence 1 GewO. There must be concrete evidence for a restriction on the employer’s right to issue instructions regarding the distribution of working hours.
A specific distribution of working hours over individual days of the week does not only occur because the employee has been deployed in the same way for a longer period of time. Rather, in addition to the mere passage of time, there must be special circumstances that show that the employee should only be obliged to carry out his work unchanged.