If an employer trading in building materials agrees with its employees, given the seasonality of the business, that working hours should be based on the employer’s “important requirements and the criteria typical of the job of a driver”, the obligation to work does not suspend for a specific period of time .
This was decided by the Fifth Senate on July 9, 2008 (5 AZR 810/07). The employer cannot rely on the agreement to work on call. If on-call work has been effectively agreed and the work is called off in accordance with the employment contract and higher-level legal regulations, the employee is only entitled and obliged to perform work to the extent of the respective call-off by the employer. However, there is a provision in the general terms and conditions according to which the The employer reserves the right to call the employee to work or not for a period of three months, in accordance with § 307 Abs. 1 sentence 1 BGB ineffective.
The agreement unreasonably disadvantages the employee, contrary to the requirements of good faith, because his work obligation is unilaterally transferred to the employer based on the reason and amount and there is neither a minimum workload nor a maximum workload or an appropriate ratio of fixed and variable working conditions. A completely open scope of work obligations is not acceptable; This does not only apply in the case of Section 12 Paragraph. 1 Sentence 1, Sentence 2 TzBfG. The dependence of the employer’s business on the weather cannot change this.