According to Section 3 Sentence 1 of the ArbZG, an employee’s working hours on a working day may not exceed eight hours. If there is a permissible extension of working hours on working days according to the further regulations of the Working Hours Act, this must be compensated for on an average of eight hours on working days, i.e. 48 hours per week, within a period of six or twelve calendar months, Section 3 Sentence 2 and Section 7 Paragraph. 8 ArbZG. Periods of readiness for work and on-call duty are also subject to compensation without restriction.
According to a decision of the First Senate of January 24, 2006 (- 1 ABR 6/05 -), these provisions on maximum permissible working hours cannot be used on the basis of Section 7 Paragraph. 1 No. 1 ArbZG can be deviated from through a collective agreement. According to § 7 para. 1 No. 1 letter a ArbZG, an extension of the maximum working time on a working day beyond ten hours can be permitted in a collective agreement if the working hours include regular and significant availability for work or on-call duty. Of a considerable extent iSd. The rule applies if there are at least three hours of availability for work out of a maximum daily working time of eleven hours. In addition, Section 7 Para. 1 No. 1 letter b ArbZG provides for the possibility of setting a compensation period other than that provided for in Section 3 Sentence 2 ArbZG. However, both regulations do not exempt you from the obligation to compensate for exceeding the statutory working hours on working days to an average of eight hours, including times of readiness for work and on-call duty, within one year at the latest. The First Senate further decided that the transitional regulation pursuant to Section 25 Sentence 1 ArbZG as amended by the law of December 24, 2003 does not exempt from the obligation to compensate. According to the transitional regulation, the collective agreements existing on January 1, 2004 or with subsequent effect until December 31, 2005 remain unaffected to the extent that they contain regulations that are different from the time limits according to Section 7 Para. 1 or 2 or Section 12 Sentence 1 ArbZG differ. However, these transitional exceptions do not cover those arising from Section 3 Sentence 2 and Section 7 Paragraph. 8 ArbZG maximum permissible annual average weekly working hours. Any understanding of Section 25 Sentence 1 ArbZG other than the literal one is excluded because of the requirement to interpret national regulations in accordance with European law.
An understanding according to which the transitional regulation, which was extended until December 31, 2005, also allows the 48-hour limit to be exceeded, contradicts Article 6 letter b of Directive 2003/80/EC (Working Time Directive).