In the judgment of July 15, 2009 (5 AZR 867/08), the Fifth Senate dealt with the compensation of night-time on-call hours when referring to the federal collective agreement for employees in the church version (BATKF). According to § 48a paragraph. 4 BATKF, employees are entitled to additional leave if they work a certain minimum number of hours at night.
According to the wording of paragraph. 6, the claim is excluded for night-time on-call services performed outside of regular working hours. Since on-call duty has been considered working time in the sense of the new version of Section 2 of the ArbZG on January 1, 2004. § 2 ArbZG is recognized, the exception regulation deviates from the legal model in such a way that it results in an unreasonable disadvantage.
The in § 48a paragraph. The clause contained in Section 6 BATKF is therefore not applicable, so that nightly hours of on-call duty outside of regular working hours are also included in accordance with Section 48a Paragraph. 4 BATKF must be compensated for by additional leave.