Unpaid meal time is considered working time

Breaks as unpaid breaths

Working Hours ActArbZG

§ 4 Rest breaks
The work is to be interrupted by a predetermined rest period of at least 30 minutes for a working time of more than six to nine hours and 45 minutes for a working time of more than nine hours. The breaks according to sentence 1 can be divided into periods of at least 15 minutes each. Employees may not be employed for more than six hours in a row without a break.

Breaks and short breaks / fixed in advance
1. Rest breaks iSd. Working time law are interruptions in working time of a certain duration that are used for recreation. These must be breaks in working hours set in advance, during which the employee neither has to work nor be available for it. He must be free to decide where and how he wants to spend this time. The decisive feature of the break is that the employee is released from any work obligation and also from any obligation to be ready for work.
2. Short breaks iSv. § 7 Paragraph 1 No. 2 ArbZG are, provided they meet the general requirements for a break, rest breaks within the meaning of 4 ArbZG and no working hours iSv. Section 2 Paragraph 1 S 1 ArbZG.
3. Short breaks of at least 8 minutes regularly have a reasonable duration in the sense of the term. Section 7 Paragraph 1 No. 2 ArbZG.
BAG 13.10.2009 - 9 AZR 139/08

Work without a break

The Institute for Research into Social Opportunities, ISO (Cologne), surveyed 4012 employees between 18 and 65 nationwide:

  • 73% stay longer at work under time pressure,
  • 62% then do without breaks,
  • According to their own assessment, 35% shorten the work steps in a risky way when things get tight.
  • 16% even take work home with them.

Breaks are not our freely configurable lifetime, but merely “relaxation breaks”. That's why employers should pay to make us tired!

“During the breaks, employees are generally to be released from any work and also from any obligation to be ready to work. You can leave your place of work during the break and you can also decide freely, unless otherwise agreed under labor law. If the employee is contractually obliged to spend so-called breaks in contact with guests, customers, etc., there is no such decision about the individual recreational opportunity. "
(Implementation of the Working Hours Act, decree of the Ministry of Economics and Labor of the State of North Rhine-Westphalia of March 3, 2008, on § 4 ArbZG - breaks)

Materials for the ver.di action week 2014

Assertion of bogus breaks
Presentation at the ver.di clinic conference on May 26, 2014
Presentation - Matthias Blum, Hospital Society North Rhine-Westphalia (KGNW), at the ver.di clinic conference on May 26, 2014;
Poster with pictureungshistorySophie: All the time. No pseudopause for lukewarm! (three.42 - May 2012)

More: Of tea ladies and night watches (breaks) (in: Arbeitsrecht und Kirche 1/2011)


Link and bookmark: www.pause.schichtplanfibel.de

⊗ Shift plan primer extra
And on-call service?

• March 28th - April 1st, 2022 in the Bunter Haus Bielefeld
Employee representation is really strong twice:
Working with patients is physically and often psychologically stressful. Nevertheless, some employers require that employees stay in the company beyond their regular time owed - ready to start work at any time.
Dissatisfaction is growing in the operating theaters, laboratories and X-ray departments. Because some work in on-call duty, hardly get any rest overnight or sleep much worse there than at home. And many suspect: none of this is right.
⊗ Alternative working time models - an attractive example: on-call duty
⊗ Obstacles to the on-call service: breaks, working alone, night work and the resulting health protection measures
⊗ Recording of load and utilization in the on-call service
⊗ Loopholes: public holidays, pre-festive days, combination with overtime
⊗ Remuneration: additional money or reduced working hours
⊗ Individual exceptions to being drawn to the service
⊗ Suggestions to initiate change processes
⊗ Statutory and collective bargaining barriers and openings?
Speaker: Tobias Michel

⊗ Shift plan primer extra
Assault on leisure time

• May 16-20, 2022 in Saalfeld
The importance of free time is increasing. For colleagues as well as for their employers. Reliable life planning requires shift schedules that - arranged in good time - reflect the contractual requirements and wishes. The reality, however, looks different: The planned breaks are postponed or canceled depending on the workload; the end of the shift slips sooner or later; New offers for changes to plans and shift changes follow every few days.
With the help of small case studies, we examine how the corporate interest group can protect colleagues from encroaching on their free time. And we discuss to what extent ´intelligent failure concepts´ relieve or burden.
⊗ Binding nature of the shift plans: For employers, the company interest group, the employees
⊗ Plan supplements: overtime and overtime
⊗ Plan changes: shift changes, work on days when there are no plans
⊗ Notice periods, time and peer pressure
⊗ Health and social consequences of the attacks
⊗ Increased protective effect through company agreements
⊗ Coercive measures against illegal and contractual violations

⊗ Shift plan primer extra
Breaks as a lever for relief

• September 12-16, 2022 in Gladenbach
In any case, breaks lengthen the company presence of the employees, but their recreational effect is questionable in many cases. Often, breaks are inserted in the daily routine when the workload allows it. Especially in the poorly staffed shifts, on weekends, at night or on standby duty, employees willingly forego their breaks. Ergonomics therefore recommends employers to organize regular breaks. But many of them find this difficult for a variety of reasons. So the advocacy group better take care of it itself. Using case studies and proposed rules, we examine the circumstances under which breaks have a strengthening, relieving effect on colleagues and work out ways to enforce better break rules.
⊗ Legal obligations of employers
⊗ Ergonomic status on the recreational effect (short breaks with limited effect)
⊗ Position and length of the breaks
⊗ Break rooms as social focal points
⊗ Paid breaks, breaks as working time
⊗ Minimum occupation and documentation obligations of the employer
⊗ Co-determination of the breaks in the individual duty rosters

Breaks: definition
From the reason:
The concept of rest is not defined by law. In § 4 ArbZG it is required.
[...] According to the established case law of the Federal Labor Court, rest breaks in the sense of the working time law are interruptions of working time of a certain duration that serve to relax (BAG September 28, 1972 - 5 AZR 198/72 - AP AZO § 12 No. 9 = EzA AZO § 12 No. 1). These must be breaks in working hours which are fixed in advance and during which the employee neither has to do work nor to be available for it. He must be free to decide where and how he wants to spend this time. The decisive feature of the break is that the employee is released from any work obligation and also from any obligation to be ready for work.
[…] Part of the concept of the break is that the duration of the work break is fixed in advance. At what point in time it must be determined, whether at the latest at the beginning of daily working hours or at the beginning of the respective break, is controversial (see Schliemann loc. It is indispensable that the duration of the break must also be known when it begins. A break from work that the employee does not know how long it will begin is not a break. The employee must then be ready for work at all times.
[…] The “unproductive times” according to No. 4. 3. BV do not meet the requirements for a break. The duration of the periods according to No. 4. 3. BV is not determined when they begin.
This applies to at least part of the periods in question. No. 4. 3. BV also expressly provides for cases in which the driver is called to start work by a "beeper" provided or via loudspeakers. There is then no period during which the driver does not have to respond to such a call immediately.
(BAG, judgment October 29, 2002 - 1 AZR 603/01)

Breaks and short breaks / fixed in advance
1. Rest breaks iSd. Working time law are interruptions in working time of a certain duration that are used for recreation. These must be breaks in working hours set in advance, during which the employee neither has to work nor be available for it. He must be free to decide where and how he wants to spend this time. The decisive feature of the break is that the employee is released from any work obligation and also from any obligation to be ready for work.
2. Short breaks iSv. § 7 Paragraph 1 No. 2 ArbZG are, provided they meet the general requirements for a break, rest breaks within the meaning of 4 ArbZG and no working hours iSv. Section 2 Paragraph 1 S 1 ArbZG.
3. Short breaks of at least 8 minutes regularly have a reasonable duration in the sense of the term. Section 7 Paragraph 1 No. 2 ArbZG.
(BAG 13.10.2009 - 9 AZR 139/08) From the reason:
The concept of the break means that the duration of the work break is determined in advance.
The aim of this regulation is to ensure that the employee actually has a rest break available, can adjust to it and that this is not overlaid and "forgotten" by continuous further work. However, it is not necessary that an exact time is determined. The specification of a certain time frame is sufficient (see BT-Drucks. 12/5888 p. 24 on § 4 - breaks; general see Neumann / Biebl ArbZG § 4 Rn. 3 with further references). However, it is essential that the duration of the break must be known at least at the beginning of the break. An interruption to work which the employee does not know how long it will last is not a break, as he would then have to be ready for work at all times (BAG October 29, 2002 - 1 AZR 603/01 - to I 3 b aa of the reasons , BAGE 103, 197). A subsequent “reallocation” of unforeseen business interruptions to a break is therefore excluded (Roggendorff ArbZG § 4 marginal number 9).
The requirement to be certain in advance also applies to short breaks in the sense of Section 7 (1) No. 2 ArbZG, since the split short breaks are intended to fulfill the right to the granting of rest breaks according to Section 4 ArbZG and thus all legal requirements for a break must be met (Baeck / Deutsch ArbZG Section 7 marginal number 70) .
In this sense, breaks in driving time provided for in a duty roster are also set in advance (BAG 23 June 1988 - 6 AZR 137/86 - re II 3 c of the reasons, BAGE 59, 73; 4 June 1969 - 3 AZR 180/68 - 2 of the reasons, AP BMT-G II § 16 No. 1; November 23, 1960 - 4 AZR 257/59 - BAGE 10, 191, 195 f .; Anzinger / Koberski ArbZG § 4 Rn. 10; Neumann / Biebl ArbZG § 4 Rn. 6; Roggendorff ArbZG § 4 Rn. 9; Schliemann ArbZG § 4 Rn. 27). By specifying the driving time breaks in the duty roster, it is ensured that the employee knows in advance when he is entitled to a break of a certain length according to the duty roster and when he can take it (also for transfer times BAG November 27, 2008 - 6 AZR 765/07 - Rn . 40, ZTR 2009, 198).
This does not conflict with the fact that the start of the break can be postponed if, for example, the scheduled break start is not adhered to due to delays. In this case, at least at the beginning of the actual break, it is clear whether the minimum time required by the collective agreement for accepting a short break of 8 minutes will be reached and how long the break will last in the specific case. The employee can then use the short break for recreational purposes for this fixed period of time without having to fear being drawn to work.

Breaks in the on-call duty of a paramedic
The breaks ordered by the defendant represent “breaks that are fixed in advance” within the meaning of § 4 ArbZG. The fact that the plaintiff is obliged to drive during this time in an emergency constitutes one permissible according to § 14 Paragraph 2 No. 2 ArbZG , temporary exception to the regulation of § 4 ArbZG. ... A break does not generally require that the employee must be entitled to leave the company during the break.
(Labor Court Kiel, judgment June 3, 2002)

On-call duty is not a break
On-call duty counts as part of the “normal” working time, which is to be interrupted by breaks after a certain length of time. The employer can not only, but must rather grant the employee a break as soon as his working time exceeds the said 9 hours. However, in the event of a dispute, only a 30-minute break was to be deducted from the salary because the 45 minutes had not been properly set.
(LAG Schleswig-Holstein, judgment of January 14, 2009, Az: 6 Sa 347/08)
Confirmed in the revision by the BAG

On-call duty is not a break
Reasons for the decision:
On-call duty is also due to the regulation created in Art. 4b of the law on labor market reforms of December 24, 2003 (Federal Law Gazette I p. 3002), which came into force on January 1, 2004, working hours in the sense of Section 2 ArbZG (see Senate July 15, 2009 - 5 AZR 867/08 - Rn. 12; BAG March 16, 2004 - 9 AZR 93/03 - on BI 2 of the reasons, BAGE 110, 60, 65; February 18 2003 - 1 ABR 2/02 - BAGE 105, 32). Accordingly, on-call duty is to be taken into account when determining the duration of statutory rest breaks as working time (ErfK / Wank 10th edition, § 4 ArbZG marginal number 1).
2. The inactive times of the on-call duty do not constitute breaks in the sense of 4 ArbZG. In the case of on-call duty, the employer can determine the employee's whereabouts and use him at any time. The employee cannot freely choose where and how he spends his breaks. This stands in the way of a break, which is characterized by the fact that the employee can freely determine the use of the period (st. Rspr., BAG October 13, 2009 - 9 AZR 139/08 - Rn. 30 mwN), contrary (ErfK / Wank § 4 ArbZG marginal 1; Schütt / Schulte ArbZG § 4 marginal 4; Buschmann / Ulber ArbZG 6th edition § 4 marginal 1c).
(BAG - judgment 16.12.2009 - 5 AZR 157/09)

A break is not a readiness to work
".., there is only a break if the employee is released from any work, including in the form of willingness to work, during the break period provided or determined by him." In their commentary on the Working Hours Act (Beck-Verlag), Baeck / Deutsch refer to this judgment under Section 4 Paragraph 11 and conclude that on-call duty may not be ordered during the break. On-call duty, however, is allowed.
(BAG judgment 05/05/1988 - 6 AZR 658/85)

Effective giving of a break
In 1998, the Baden Württemberg State Labor Court had to judge whether the plaintiff, who was employed as a nurse in a hospital, could be prescribed by the defendant, the hospital operator, that she had to spend her break in the ward kitchen of the intensive care unit or in the ready room of the operating room ambulance . The court regarded the determination of the whereabouts in certain areas within the company premises as inadmissible, as this is not justifiable with the term "rest break" contained in § 4 ArbZG. The opinion of the defendant hospital operator that a residence permit was necessary was also not taken into account, since the plaintiff had to be available in an emergency. It was found that the risk of such an exceptional case does not justify stipulating a break location for an employee in the area of ​​the company premises.
(LAG Baden Württemberg, October 14, 1998 - 3 Sa 16/98)

"Take care of your breaks yourself"
The employer has not fulfilled his duty to grant a break if he has left a group of employees to regulate the break by mutual agreement, but the employee has a regulation from which a predetermined break in working hours results for the individual, have not met or fail to implement a regulation made by them.
(BAG, judgment 27.2.1992 - 6 AZR 478/90 = BB 1993, 1086 = DB 1992, 583, 2247)
The nursing staff in the intensive care unit of a hospital had only a so-called standby room available for the break, in which, among other things, the ward telephone and the technical devices for monitoring the patients were located. There was no fixed break regulation.There was only an amicable practice in that the use of the breaks was left to the nursing staff themselves. There was a lack of the necessary time off from any work or willingness to work. The nurses were also on standby in the standby room during this time. None of the employees could have withdrawn completely from their readiness to work without coordination with the others.

Compulsory breaks
1. If the employer is temporarily unable to use the employee for operational reasons - for example due to the requirements of his client - this does not remove the employer's obligation to pay remuneration due to Section 615 sentence 3 BGB.
2. If the client has to take a break due to the requirements of the client, the employer owes the remuneration for these times as well.
(LAG Cologne - judgment 04.08.2008 - 5 Sa 639/08)
From the reason:
Like the LAG Cologne in its judgment of August 23, 2007 - 5 Sa 933/07 - the judging chamber assumes that the work interruptions ordered by the defendant, the so-called "break hours" according to § 615 sentence 3 BGB, are to be remunerated insofar as they have been presented in a substantiated manner by the plaintiff party, who is obliged to provide evidence and provide evidence. For this, it is necessary that at least the days on which the defendant orders such unpaid breaks are given so that the defendant can contest this argument in a qualified manner on the basis of the duty rosters.
The defendant does not deny that such breaks occur regularly. In these cases, the defendant falls behind with its obligation to assign the employee a functional job, § 295 BGB, because it refuses to accept the work at short notice and unilaterally for reasons that are within its risk area. The job offer of the employee present in the company, insofar as this is not dispensable according to § 296 BGB anyway, lies in his presence at the workplace and his presumed willingness to work during the break. In this respect, the defendant cannot invoke its right, inter alia. determine the time of work unilaterally according to the operational requirements, § 106 GewO. Because an (unpaid) work interruption ordered on the same day for a period of 1 hour or more no longer corresponds to fair discretion, as it is incompatible with essential and mandatory principles of labor law. In these cases, the employee does not have the opportunity to make sensible use and organization of the work break that is required solely for operational reasons and not because of the provisions of the Working Hours Act.
By ordering breaks, the employer unlawfully shifts its economic risk to the employee. Because the employer bears the economic risk according to the risk distribution provided for in § 615 sentence 3 BGB. If he is temporarily unable to deploy the employee for operational reasons - for example due to the requirements of his client - this does not remove the obligation to pay.

Emergency during breaks - when a paramedic is on call?
The breaks ordered by the defendant represent “breaks that are fixed in advance” within the meaning of § 4 ArbZG. The fact that the plaintiff is obliged to drive during this time in an emergency constitutes one permissible according to § 14 Paragraph 2 No. 2 ArbZG , temporary exception to the regulation of § 4 ArbZG. ... A break does not generally require that the employee must be entitled to leave the company during the break.
(Labor Court Kiel, judgment June 3, 2002)

(§ 6 Abs. 1 TVöD) Provide rest breaks so that they can be paid for
From the reason:
The employment contract is a reciprocal contract. This means that the employee is only entitled to remuneration if he has performed work on his part. For times in which the employee does not perform any work, he therefore does not receive any remuneration, unless this is provided for separately by contract, statutory or collective law. A recovery break within the meaning of § 4 ArbZG is characterized by the fact that the employee does not perform any work during this time (BAG February 27, 1992 - 6 AZR 478/90 - AP No. 5 to § 3 AZO Kr = ZTR 1992, 378 = DB 1992, 2247). As a rule, therefore, the employee cannot demand any remuneration for a break.
If the defendant were to plan rest breaks in the shifts, these would have to be remunerated like working hours according to Section 6 (1) sentence 2 TVöD, because the plaintiff works in alternating shifts. However, it cannot be inferred from this regulation that this remuneration component must be paid even if the employer does not plan any breaks in the shift.
Because if shift planning without the planning of rest breaks in the sense of § 4 ArbZG were to be illegal, a right to refuse performance or a legally enforceable claim to plan legally compliant shifts with rest breaks in the future might arise. However, under no circumstances can this give rise to an additional entitlement to remuneration.
(LAG Mecklenburg-Western Pomerania September 15, 2011 - 5 Sa 268/10)

(§ 6 TV-L) Changing clothes is working time with an obligation to pay. No DV over flat rate.
Principles:
Changing times and internal commuting times caused by changing are working hours subject to remuneration in the scope of the TV-L if the employer stipulates that certain clothing must be worn and changing must take place in the company.
(BAG judgment 19.09.2012 - 5 AZR 678/11; Attention: The BAG changed its case law!
From the reason:
The extent to which changing and internal commuting times count towards working hours is determined - if there is no other regulation - according to general principles. The employee may not arbitrarily determine his duty to perform himself, he must rather work with reasonable exhaustion of his personal capabilities [...]. This modified subjective standard also applies to changing clothes and going from the changing room to work. Only the period of time that is required for the individual employee while exhausting his personal capabilities counts as working time.
Section 2 (2) DV 2010, which stipulates a flat rate of 15 minutes per attendance shift on Campus G, does not contradict this. The provision is ineffective. Art. 73 para. 1 in conjunction with Art. 75 para. 4 sentence 1 no. 1 BayPersVG permits a service agreement only on the beginning and end, but not the duration of the working hours. According to Bavarian staff representation law, a service agreement on the duration of individual components of the working time is therefore out of the question [...].
The TV-L did not - which would be legally possible in principle - not set a flat rate for the duration of changing times and the internal commuting times caused by the changing in the collective wage regulations on working hours
2. The changing times required while exhausting the personal capabilities of the employee, including the internal travel times from the changing room to the job, are "subject to remuneration" a) The statutory remuneration obligation of the employer is linked to the "performance of the promised services" according to Section 611 (1) BGB at […]. This includes not only the actual activity, but any other activity or measure required by the employer in the Synallagma [= mutual contract] that is directly related to the actual activity or the manner in which it is performed. To the iSv. Section 611 (1) of the German Civil Code “promised services” also includes changing rooms in the company as ordered by the employer. In such a case, the employer himself, with his instructions, makes changing clothes and going from the changing room to the job a contractual obligation [...]. The Senate does not adhere to the view expressed in the decision of October 11, 2000 (- 5 AZR 122/99 - BAGE 96, 45) that the employer is only obliged to pay for the actual activity. The employer regularly promises remuneration for all services that he demands from the employee on the basis of the right of direction mediated by his employment contract.
b) The TV-L does not give any indications for the assumption that the parties to the collective bargaining agreement would have wanted to regulate the collective wage obligation differently from the statutory one. According to Section 15, Paragraph 1, Clause 1 of the TV-L, employees receive a monthly table fee. This is paid for the performance of the work. This is made clear by Section 22, Paragraph 1, Clause 1 in conjunction with Section 21 (1) sentence 1 TV-L. Thereafter, the employees continue to receive the table remuneration for a period of six weeks if they are unable to work due to illness and are not at fault. If the employees perform work to an extent that exceeds the agreed working hours, they will receive overtime pay according to the more detailed collectively agreed provisions, Section 7 (7) and Section 8 (1) TV-L. The TV-L has not made a separate remuneration regulation for changing times and internal commuting times caused by changing clothes.
III. According to these principles, the plaintiff is entitled to remuneration for the changing and internal commuting times from the changing room to the place of work that were incurred during the dispute and required when her personal capabilities were exhausted. The Senate cannot determine the amount of the remuneration due to the lack of determinations by the State Labor Court.

Worked through Pay!
1. The employee can request remuneration for the entire shift if the employer planned a break for the shift, but the employee worked because the employer did not properly assign him the break.
2. The employer has not fulfilled his duty to grant a rest break if he has left a group of employees to regulate the break by mutual agreement, but the employees have a regulation from which a pre-determined break in working hours is possible for the individual results, have not met or fail to implement a regulation made by them.
(LAG Cologne, judgment 27.11.2013 - 5 Sa 376/13)

A break at night with your eyes open? Pay
From the reason:
The decisive factor is that the defendant did not fulfill its obligation to allow the plaintiff a break. This applies even if it is assumed in her favor that she instructed the night watch, and thus also the plaintiff, to take a break between 2 and 5 a.m. However, it cannot be inferred from her presentation that the employees have actually made a regulation that resulted in a predetermined break in working hours for the individual. This is at their expense because, as the employer, they have to ensure that their employees actually take the legally required breaks. Your statement that the plaintiff used the given time window for breaks is unsubstantiated. It does not reveal when the plaintiff took a break on which night from when to when.
In addition, the time corridor mentioned by the defendant does not meet the requirements of the Working Hours Act. If you start work at 8:45 p.m., it is not permitted to take a first break at 4 a.m. (§ 4 sentence 3 ArbZG).
The breaks that were actually not granted during night shifts were at least provided as a readiness for work. This was to be remunerated like “full work”.
(LAG Nuremberg, judgment 10.06.1998 - Az .: 3 Ca 3003/97).

Supplements in the paid break? No surcharges without a legal basis.
From the reason:
1. The works agreements say nothing about the amount of payment for breaks. Paid breaks are also given if they are uniformly remunerated with the basic wage. There is just as little evidence of an increase in the basic remuneration as there is of a decrease. Pay does not necessarily aim at remuneration in the same amount as if work had been done.
2. The works agreements do not contain a sufficient indication that breaks should not only be calculated as work, but should also be remunerated as work actually performed.
(BAG, judgment November 18, 2009 - 5 AZR 774/08).

Paid Breaks for Workers (BMT-G)
(BMT-G II). In § 14 para. 5 BMT-G II it says: "Work breaks are not included in the regular working hours, with the exception of alternating shifts"

Paid breaks
Breaks that could not be taken are overwork. They can be compensated for by time off and possibly overtime pay or by paying out. Since overtime bonuses are always paid at least one month later, they can in fact be claimed retrospectively for seven to eight months. Paid break (work readiness and rest breaks of a driver) For nursing staff, for example on night duty, who cannot leave the ward because the patients would otherwise be left to their own devices, it has been decided that the "break" is to be assessed and paid for as working time. 1. A break is only given if the duration of the break is clear at the latest at the start of the break. 2. Loading and unloading times during which the driver is allowed to leave his vehicle and the company premises but must immediately comply with a work call are not considered breaks. In terms of remuneration law, these times are readiness for work i. S. v. § 2 Federal collective bargaining agreement for long-distance freight and furniture transport.
(BAG, October 29, 2002 & # 8212 - 1 AZR 603/01)

Finally, it also emerges from the defendant's own submission that it is apparently based on incorrect ideas about working time law. If the defendant actually only wants to use driving times as it has presented in the first instance, it may be correct that overtime did not occur in the extensive form as presented by the plaintiff. However, this legal opinion of the defendant is wrong. Loading and unloading times during which the driver is allowed to leave his vehicle and the company premises, but must immediately respond to a call to work, are not considered breaks. Rather, they are working hours (see BAG judgment of October 29, 2002, Az. 1 AZR 603/01 in MDR 2003, 880). Rather, a rest break is only given if the duration of the work interruption is determined at the latest at the start of the work interruption and the employee does not have to expect to be called upon to perform work during this time.
Since the parties have not made any provision under remuneration law for such working hours, this working time must also be remunerated in full.
(LAG Lower Saxony, judgment 22.08.2003 - 16 Sa 100/03)

Burden of proof for overtime
Prove that work has been done, through proof, in the right place at the right time. Denied by the employer, by explaining the breaks.
(BAG, judgment of May 16, 2012 - 5 AZR 347/11)
From the reason:
a) Based on the provisions of the general law of obligations in connection with § 614 BGB, the principle "No work, no wages" applies in the employment relationship. If the employee demands remuneration for work in accordance with § 611 BGB, he must therefore explain and - in the event of a dispute - prove that he is doing work or one of the facts that regulates a remuneration obligation without work (e.g. § 1 BUrlG, §§ 615, 616 sentence 1 BGB, § 2 paragraph 1, § 3 paragraph 1 EntgeltFG, § 37 paragraph 2 BetrVG). Since the specific work to be performed is usually determined by the employer through instructions (Section 106 GewO), the employee satisfies his burden of presentation by submitting that he was ready at the right place at the right time in order to follow the employer's work instructions.
The employer must respond to this presentation in a substantiated manner within the framework of a graded burden of presentation. The employer must therefore state in detail which work he has assigned the employee and whether the employee has complied with the instructions. If he does not submit anything or does not submit a substantiated entry, the working hours reported by the employee are deemed to have been granted (cf. on the entire BAG April 18, 2012 - 5 AZR 248/11 - marginal 14).
[27] b) Nothing else applies to the employee's assertion that he performed the owed work in a time that exceeded normal working hours. If the employee demands remuneration for overtime based on an employment contract, the employer's collective bargaining obligation or Section 612 (1) BGB, he must explain and - in the event of a dispute - prove that he has performed work in excess of normal working hours. In doing so, the employee satisfies his burden of proof by stating the days on which, from when to when, he performed work or was available for work on the instructions of the employer. The employer must respond to this presentation in a substantiated manner within the framework of a graduated burden of presentation and state in detail which work he has assigned to the employee and on which days the employee - from when to when - has - not - complied with these instructions.
[28] However, these principles may not be applied schematically, as it were, but always require the consideration of the activity to be performed in the respective dispute and the specific operational processes. For example, a driver like the plaintiff, to whom certain tours are assigned by the employer, can already satisfy his burden of proof by stating which days he started which tour and when. In the context of the tiered burden of disclosure, it is then up to the employer, by evaluating the records in accordance with Section 21a, Paragraph 7, Clause 1 of the ArbZG, to substantiate the days on which the employee must have worked for what reasons in a smaller amount of time than he claimed.

Fixed break in advance
Official guiding principle:
1. The employer is in default of acceptance if the order to the employee to take a break is ineffective. This also applies if the latter offers his work uninterruptedly for a period that goes beyond the maximum limits of the Working Hours Act.
2. The employer's instruction to the employee to take a break is effective if it meets the requirements of § 106 GewO. It is therefore to be measured by whether it is compatible with the employment contract, the provisions of a works agreement, an applicable collective agreement and statutory provisions.
3. The order to interrupt work violates § 4 ArbZG if it has not been determined “in advance”. It is sufficient for this if the duration of the break is specified at the beginning of the break. It is not necessary that the timing of the rest break has already been determined before the start of the actual working hours.
(LAG Cologne, judgment 03.08.2012-5 Sa 252/12)

Break fixed in advance / not granted breaks: burden of proof for default of acceptance
1. The employer's instruction to the employee to take a break is effective if it meets the requirements of § 106 GewO. It is therefore to be measured by whether it is compatible with the employment contract, the provisions of a works agreement, an applicable collective agreement and statutory provisions.
2. In cases in which it is disputed whether an interruption in working hours constitutes a break that excludes default in acceptance, a graduated burden of presentation and proof is to be assumed. The employee must first explain and, if necessary, prove which days he worked and at what times the employer ordered work interruptions on these days. It is then up to the employer to demonstrate and, if necessary, to prove that he has arranged a break in advance and that this arrangement corresponds to the relevant company agreement and equitable discretion. For this he has to indicate from when to when the respective shift lasted. In addition, he must present in concrete terms and, if necessary, prove the actual circumstances that result in compliance with the requirements set by the employment contract, provisions of a works agreement, an applicable collective agreement and statutory provisions.
If these requirements have been complied with, it can generally be assumed that the instruction has complied with reasonable discretion. The employer is not required to justify every break order in detail if there are no indications that the instruction is not appropriate. Rather, it is up to the employee, following the employer's presentation, to present and, if necessary, prove circumstances that speak against the employer's fair discretion. If he has succeeded in this, the employer has the opportunity to present and, if necessary, prove circumstances that nevertheless justify the observance of equitable discretion.
(LAG Cologne, judgment 03.08.2012 - 5 Sa 1509/11)
From the reason:
According to § 295 BGB, however, a verbatim offer is sufficient if the obligee has declared that he will not accept the performance or if an action by the obligee is necessary to effect the performance. According to § 295 sentence 2 BGB, the verbatim offer is the same as the employee's request to cooperate. […] If the employer makes use of a (supposed) right to determine the length of the working hours, Section 296 of the German Civil Code (BGB) does not apply. In the case of an employment relationship that has not been terminated, it cannot generally be assumed that the employer did not take an action to be taken in good time. Rather, the employee must offer the work. A literal offer is sufficient. Because the employer declares by defining the shifts including the breaks that he will not accept the work at other times (BAG November 18, 2009 - 5 AZR 774/08 - EzA § 615 BGB 2002 No. 31). If an employee is instructed by the employer to interrupt work, there is usually an actual offer within the meaning of Section 294 of the German Civil Code. At the start of the shift, the employee's request to the employer to employ him for the duration of the shift is to be seen, unless there is an effective order to interrupt working hours (see LAG Cologne October 6, 2008 - 5 Sa 964 / 08 - juris; 23 August 2007 - 5 Sa 933/07 - juris; in these decisions the Chamber assumed the applicability of § 295 BGB).
[…] According to Section 4 ArbZG, seven-hour shifts must have a break of at least 30 minutes. It should not be concluded from this that the employee cannot put the employer in default of acceptance if he offers his work for a seven-hour shift without interruption. Because it is up to the employer to determine the timing of the break and its duration in exercising his right of direction. If he instructs the employee to take a break without observing the legal and works constitution requirements, he is in default of acceptance. Like the employer, who does not exercise his right to direct and lets the employee work through, he must pay the full shift. If the employer has ordered an interruption to work, the employer is not in default if he has effectively instructed the employee to take a break. The instruction is legal if it meets the requirements of § 106 GewO. [...] The question of how long “in advance” the start and duration of the work interruption must be determined in order to be able to speak of a lawfully arranged break is answered differently. The BAG considers it indispensable, but probably also sufficient, that the employee knows at the beginning of the break how long it should last (BAG October 13, 2009 - 9 AZR 139/08 - AP § 2 ArbZG No. 4; 29. October 2002 - 1 AZR 603/01 - NZA 2003, 1212; also Schliemann, ArbZG, § 4 Rn. 19). As a justification, the BAG refers to the fact that an interruption to work, at the beginning of which the employee does not know how long it will last, is not a break because he would then have to be ready for work at all times.
According to the opposing view, the timing of the rest break must have been determined before the start of the actual working hours (LAG Cologne May 16, 2012 - 3 Sa 49/12; Neumann / Biebl, ArbZG, 15th edition, § 4 marginal number 3). Others require that at least a time frame must be set at the beginning of working hours within which the employee should take a break (HWK-Gäntgen, 4th edition, § 4 ArbZG marginal 4; Anzinger / Koberski, ArbZG, 3rd edition, § 4 Rn. 31 et seq .; so also the justification for the law; see BT-Drucks. 12/5888 p. 24).
The issue outlined does not require a decision in the present case. Because the works agreement of January 31, 2011 - as will be shown immediately - in favor of the employees, that the timing of the rest break is determined at the latest at the beginning of the shift. [...]
The burden of presentation and proof of the actual circumstances that justify the default in acceptance is borne by the employee. Since the concrete work to be performed is usually to be determined by the employer through instructions (Section 106 GewO), the employee satisfies his burden of proof by submitting that he was ready at the right place at the right time in order to follow the employer's work instructions ( BAG May 16, 2012 - 5 AZR 347/11 - DB 2012, 1752; April 18, 2012 - 5 AZR 248/11 - juris).
On the other hand, the employer has the burden of presentation and proof for an employee's incapacity within the meaning of § 297 BGB and the existence of the prerequisites of § 106 GewO including the observance of fair discretion (BAG July 21, 2009 - 9 AZR 404/08 - EzA § 4 TVG Luftfahrt Nr. 18; November 5, 2003 - 5 AZR 562/02 - AP § 615 BGB No. 106; ErfK / Preis, 12th edition, § 106 GewO Rn. 7 and § 615 BGB Rn. 109).

No flat-rate deduction for breaks
The driver claims breaks that have been deducted as a lump sum. The employer determined the working time based on the "come" and "go" times of the time recording and with the help of the employee cards. He deducted one hour as a break time per day. The exact rest times were not regulated.
From the reason:
The employer] did not specify the extent to which rest breaks were specified, nor how it was ensured that these were actually observed. However, this would have been necessary, especially against the background of the judgment of the BAG of May 16, 2012 (5 AZR 347/11, juris). According to this, a driver who has been assigned certain tours by the employer is sufficient for his burden of proof by stating which days he started which tour and when. As part of the tiered burden of disclosure, it is then the responsibility of the employer, by evaluating the records in accordance with Section 21a (7) S 1 ArbZG, to substantiate the days on which the employee, for what reasons, must have worked in a smaller amount of time than claimed by him (BAG, op ., Paragraph 28). If it is to be assumed with the plaintiff that the defendant determined the working hours on the basis of the "coming" and "leaving" times of the PZE employee cards, it should also have shown that the plaintiff actually worked less because he did 1 hour break claimed by her every day. Whether the plaintiff actually took an hour's break every day, which would then have to be deducted and would have to remain without remuneration, remained open until the end. The defendant did not make a specific presentation in this regard. Thus, the defendant was not entitled to deduct one hour as a daily break as a flat rate.
b) Therefore, for the period from 01/01/2008 to 02/28/2010, the defendant has to pay one hour later for each day on which the plaintiff actually performed work and the defendant took an hour's break. According to the PZE employee cards (pages 42 to 67 of the file) to which reference is made, 401 working days and thus 401 hours are affected in the specified period. The defendant has to compensate the defendant with € 9.85 each, so a total of € 3,949.85.
c) Likewise, in the period from 01.03.2010 to 31.07.2011, 247 hours per day of actual work with break deduction are shown on the employee cards (pages 68 to 84 of the file) with € 8.87, i.e. H. to remunerate a total of € 2,190.89. Insofar as the plaintiff assumes an hourly wage of € 9.85, he overlooks the fact that with the conclusion of the amendment agreement of February 24, 2010, the parties agreed on an hourly wage of only € 8.87.
The plaintiff is therefore entitled to payment of a total of € 6,140.74 from the defendant. The interest claim results from §§ 288 Abs. 1, 286 Abs. 2 BGB. ...]
However, contrary to his opinion, the plaintiff cannot demand the payment of an additional hour as an unjustified break deduction on days on which he was unable to work.
(Labor Court Hamm 01/30/2013 - 3 Ca 1634/11)

Break in the individual workstation - night shift on the ward of a hospital
A break regulation does not meet the legal requirements if the employees are allowed to take breaks, but this is impossible for them for factual or legal reasons.
(BAG 23.09.1992 - 4 AZR 562/91)
Absurd exception 1:
A break i. S. d. Section 12 (2) AZO (since July 1, 1994: Section 4 ArbZG) does not require the employee to be entitled to leave the company during the break. The right of co-determination of the works council according to Section 87 (1) No. 1 BetrVG is covered by a regulation that prohibits employees from leaving the company during the half-hour lunch break required by law.
In any case, such a prohibition does not violate Section 75 (2) BetrVG if the employees are simultaneously entitled to leave the company outside of this lunch break for another hour and if reasons for the time recording make it appear sensible to arrange the two work interruptions differently.
(BAG 21.8.1990 - 1 AZR 567/89 = BB 1991, 71 = DB 1991, 394 = NZA 1991, 154)
Absurd exception 2: Break in night duty on the ward of a nursing home
However, the BAG differentiates between hospitals and old people's homes in the night break regulations: * For hospitals, it is assumed that the nursing staff are constantly available in a single workstation, i.e. cannot take a break in the sense of the law, even if there is the possibility of sitting down longer in between.
* For old people's homes, the FOPH assumes that because the residents are not “sick”, a break can be set at a certain phase of the night when everyone is asleep.
The employer has fulfilled his duty to grant a break if he creates a break regulation that enables the employees to take the break.
From the reason for the specific case of a single workstation with additional seat guards if required: “It may be true that only one nurse is available in the entire retirement home during the break. However, this is a question of the organization by the defendant and, if necessary, its correction by the supervisory authorities.
(BAG 23.09.1992 - 4 AZR 562/91)

Co-determination: breaks
The breaks referred to in Section 87 (1) No. 2 BetrVG are breaks that interrupt working hours, which are not part of working hours themselves and therefore do not have to be remunerated. Paid noise breaks are therefore not breaks in the sense of this regulation.
(BAG 07/28/1981 - 1 ABR 65/79)

Unpaid breaks
A co-determination right of the works council according to § 87 Abs. 1 Nr. 2 BetrVG with regard to the introduction and duration of breaks presupposes that the breaks are unpaid. In the case of breaks subject to remuneration (regulated by collective bargaining agreements), there is a right of co-determination only with regard to the determination of their timing.
(BAG 07/01/2003 - 1 ABR 20/02)

Paid breakfast break
The regulation of a works agreement, according to which the employer has to reimburse the employees for a 15-minute breakfast break every working day, violates the regulation block of § 77 Abs. 3 S. 1 BetrVG. The cancellation of a paid breakfast break for newly hired employees is not subject to the works council's right of co-determination in accordance with Section 87 (1) No. 10 BetrVG.
(LAG Munich 06/05/2013 - 10 TaBV 119/12)
From the reason:
The paid breakfast break only affects the relationship between performance and consideration:
Depending on the specific implementation method, either the collectively agreed remuneration is increased by the remuneration for the break time or the collectively agreed working time is reduced in the amount of the break time with the same remuneration (see under II B 2 a bb). If the employer decides on the contrary act of no longer paying for breakfast breaks and returning to the collective agreement of the Synallagma, this consequently leads to a reduction in the remuneration per unit of time. The reduction is not based on any intervention in the existing pay structure, for example on deleting a bonus or changing another component, but on a simple adjustment of the level of wages (or working hours).

Really completely free - improper break regulations during the night shift
Principles:
1. The employer has fulfilled his duty to grant a break if he creates a break regulation that enables employees to take the break.
2. A break regulation does not meet the legal requirements if the employees are allowed to take breaks, but this is impossible for them for factual or legal reasons.
(BAG 23.9.1992 - 4 AZR 562/91 = BB 1992, 2512 = DB 1993, 1194 = NZA 1993, 752)
"Breaks" are predetermined breaks in working hours during which the employee neither has to work nor be available for it, but can freely decide where and how he wants to spend this time. The decisive feature for the "break" is therefore that the employee is released from any service obligation and also from any obligation to be available for service .;
From the facts:
The parties argue about whether the defendant is obliged to reimburse break times granted by it during the night watch in a nursing home as working time.
The plaintiff is with the defendant, inter alia. operates the nursing home "Elisabethenhof" in M, has been employed as a nurse since April 15, 1983. According to § 2 of the employment contract of March 29, 1983, the employment relationship is based on the employment contract guidelines of the Diakonisches Werk der Evangelische Kirche in Deutschland (AVR) in their respective valid versions.
The plaintiff has been regularly on night duty for a long time. The defendant has a break regulation known to the plaintiff from June 19, 1985 for the night watch. Thereafter, during the night shift, which lasts from 8.45 p.m. to 7.15 a.m., the times for the first night watch are from 11 p.m. to 11.30 p.m. and 2.00 a.m. to 2.30 a.m. 2nd night watch from 11.30 p.m. to midnight and break from 2.30 a.m. to 3.00 a.m. This break regulation goes back to a letter from the administrative director of the defendant to the chairwoman of the employee representative body on June 19, 1985, who had objected in a meeting against the break regulation valid up to then.
During the breaks, the night guards can move around freely, do not have to react to the bell and, in particular, can also leave the nursing home. The breaks are also set to periods in which the night watch is only used in rare cases, based on experience.
In the “Elisabethenhof” nursing home for the elderly, 75 people of care rate group IV (= highest care level) are regularly looked after by 2 night guards in 3 living areas spread over different floors. One living area is not occupied during the night shift. The defendant has therefore ordered that the unoccupied area must be checked every half hour. In addition to the plaintiff, an unexamined assistant is usually called in for the night watch. If special features become apparent in individual residents of the home during the previous day shift, so-called seat guards are called in for them, who are exclusively responsible for this patient and monitor him during the night.
In August 1989 the plaintiff asserted against the defendant that the break times would be paid in future as working time because he could not actually take the prescribed breaks. The defendant finally refused this, most recently by letter of May 22, 1990.
With the action served on the defendant on July 5, 1990, the plaintiff seeks to pay the break times for the period from September 7, 1989 to May 31, 1990 in the undisputed amount of a total of DM 3,467.37 gross and to establish that the defendant is obligated is to reimburse these breaks as working time in the future. He submitted that the break times should be remunerated as working time, since he actually had no breaks during this time, but was on call. ... The defendant ... has submitted that during the break, the pausing night watch can do whatever it wants, in particular leave the home. She does not need to respond to ring signals. The planned break times are also observed by the night watches, including the plaintiff himself, which is easily possible due to their different timing; consequently, there is neither on-call duty nor on-call duty during the breaks. The people to be cared for are not exclusively epileptic patients, rather such seizures have only occurred in two residents in the past few years (a total of 6 seizures, only half of them during the night). The measures to be taken in such cases are also known to the unexamined auxiliaries, especially since the latter - before being deployed as a second night watch - is assigned to day duty for at least 3 months and there they are familiarized with the general nursing tasks, but also with the measures required in emergency situations. In addition, as the entries in the night watch book show, the activities of the night watch are generally limited to rather harmless tasks (half-hour checks of the unoccupied living area, going to the toilet, changing diapers, administering medication, etc.). If the break is actually impracticable in an emergency, this time will be reimbursed. [...]
Key messages of the judgment:
The revision is unfounded.
The plaintiff is not entitled to payment for the breaks as working time.
I.1. The plaintiff has no claim against the defendant for remuneration for the entire time of the night shift; because the latter was entitled not to count the periods of time granted as breaks against the period of service to be remunerated. During this time, the plaintiff does not do so-called "full work", in which he looks after the residents of the home and carries out the related work, nor does he render "work readiness", which is to be remunerated as "full work". Rather, the defendant granted a non-remunerable break during this time.
2. In accordance with the constant case law of the Federal Labor Court (see last BAGE 58, 243, 247 = AP No. 1 to § 3 AZO Kr, to II 2 of the reasons and BAG judgment of February 27, 1992 - 6 AZR 478/90 - intended for publication in the specialist press, in each case with further information) the regional labor court has correctly determined the term “pause”, which is neither legally nor collectively defined, with recourse to natural language usage. According to this, “breaks” are pre-determined breaks in working hours during which the employee neither has to do work nor be available for it, but can freely decide where and how he wants to spend this time. The decisive feature for the break is therefore that the employee is released from any service obligation and also from any obligation to be available for service (BAG, loc. Cit.).
3. The plaintiff was released from any service obligation and also from any obligation to be available for service during the disputed periods of time.
a) According to the findings of the state labor court, which were not challenged with admissible procedural complaints, the defendant set the break times as binding and expressly allowed the staff to set these times as desired and to ignore any bell tones of the home residents. In this respect, the plaintiff has shown neither omissions nor contradictions or errors of thought by the state labor court. This ensures, however, that the individual employee can interrupt his work during the night shift during certain periods of time without having to be ready to resume it at any time. It may be true that only one nurse is available in the entire retirement home during the break. However, this is a question of the organization by the defendant and, if necessary, its correction by the supervisory authorities. In addition, it should also be taken into account that the defendant undisputedly set the break times to the night hours, when experience shows that the least amount of work occurs. Accordingly, the plaintiff has not specifically stated in the entire proceedings that he was actually prevented from observing the breaks as such. Rather, the defendant submitted undisputedly that the plaintiff had also taken the breaks to which he was entitled. The plaintiff's general submission that he considers the break regulations to be “unlawful” is not sufficient to show that he was unable to take breaks. Even if it is not possible to take the break as specified in one night due to an emergency, this does not make the break regulation generally ineffective. Otherwise, the plaintiff could determine whether to take an ordered break and thereby obtain additional remuneration. Finally, for the question of whether the plaintiff was actually prevented from taking the break at the specified time, it should not be overlooked that the defendant undisputedly provided additional seat guards for special care cases where increased care was to be expected during the night In addition to the second general night watch, they covered the increased demand caused by these residents.
4. The break regulation was not ineffective because it would have been introduced without the involvement of the responsible employee representatives.
It is correct that the employee representation according to § 3 Abs. 1 Nr. 4 of the Employee Representation Regulations in Diaconal Institutions (MVO) of September 24, 1973 i. d. F. of June 10, 1988 has to participate in the break regulation. According to the defendant's express submission, which was not disputed by the plaintiff and which was also established as such by the regional labor court, the employee representatives agreed to the break regulation made on their own initiative. The letter from the chairperson of the employee representatives dated June 26, 1985, presented by the plaintiff to the appellate body, does not constitute a refusal of consent, apart from the fact that it is a new lecture that is not to be taken into account (Section 561 (1) ZPO) From the penultimate sentence of the letter and the overall context, the employee representatives only wanted to receive a written notification about who is responsible for the proper care of the residents during the break. However, it is undisputed that the defendant has assumed this responsibility. Insofar as the plaintiff now claims that it had already been disputed in the oral hearing before the court of appeal, that the employee representatives had given their consent, this contradicts the contents of the file and the findings of the regional labor court. The plaintiff has neither requested a protocol correction according to § 164 ZPO nor a correction of the facts according to § 320 ZPO. It is thus certain that the plaintiff did not dispute the assertion that the employee representative had agreed (§ 314 ZPO).
Finally, it cannot be overlooked that the employee representatives have not called upon the arbitration board, as provided for in Section 34 (5) of the MVO in the event that no agreement can be reached between management and employee representatives.

Participation in break regulations
Guiding principle:
1. The breaks referred to in Section 87 (1) No. 2 of the BetrVG are breaks through which working hours are interrupted, ie which do not themselves belong to working hours and therefore do not have to be remunerated. Paid noise breaks are therefore not breaks in the sense of this regulation.
2. The works council's right of co-determination according to Section 87 Paragraph 1 No. 7 of the Works Council relates to regulations that the employer has to make on the basis of existing industrial safety regulations. The existence of such framework regulations that need to be filled in is a prerequisite for a right of co-determination.
3. The works council's right of co-determination according to Section 91 of the BetrVG is only given if the particular burden on employees mentioned there is due to a change in workplaces, work processes or the work environment. It does not extend to cases in which existing conditions obviously contradict the established ergonomic knowledge about the humane design of work.
(BAG Az: 1 ABR 65/79)

Participate or pay
Breaks must be co-determined in their location and serve to relax in their location. Otherwise they are subject to remuneration.
(LAG Cologne judgment 06/05/2013 - 3 Sa 131/13
Revision pending at the BAG under 1 AZR 705/13) From the reason:
[...] The works council is not informed of the breaks by email until the night immediately before the assignment. However, this mere notification does not suffice for the right of co-determination. Rather, the consent of the works council is required. Silence on the part of the works council cannot be interpreted as approval, since the right of co-determination according to Section 87 BetrVG is not a veto right. In contrast to Section 99 BetrVG, the regulation does not provide for any deadlines after which the works council's approval is faked after the unsuccessful expiry (cf. e.g. BAG January 29, 2008 - 3 AZR 42/06).
b) It is also not sufficient that the responsible works constitution body merely recognizes that there is no right of co-determination with regard to the matter, and thus gives the employer a “free hand” in a matter subject to co-determination without co-shaping the content. As a result, such behavior would give the employer the sole right to decide on the matter subject to co-determination. [...]
However, the right of co-determination can be exercised by concluding a works agreement as such, if the works agreement provides that the employer is entitled to take the measure alone under certain conditions regulated in the agreement, i.e. if the works agreement already regulates the essentials (cf. on this and the following BAG 03.06.2003 - 1 AZR 349/02). The law does not require the consent of the works council to be obtained for each individual order subject to co-determination if the latter has given its consent in advance - for example for urgent cases that occur again and again. However, this must not violate the substance of the works council's right of co-determination. In the cited decision, the Federal Labor Court viewed a works agreement as an effective exercise of the right of co-determination, but emphasized that the works agreement contained “detailed regulations” on the procedural and distribution modalities associated with the unilateral authority to issue orders (see no. 56 above) and thus the works council contained the "substantially helped to shape" the matter subject to co-determination (see para. 54). [...]
The meaning and purpose of the right of co-determination according to Section 87 (1) No. 2 BetrVG with regard to the duration and location of the statutory breaks is obviously that the works council should ensure that the employer does not set the breaks according to their own economic flexibility aspects and profit optimization aspects , but that the recreational needs and other personal needs of the employees are preserved (see BAG 01.07.2003 - 1 ABR 20/02). [...]
In any case, a break cannot be granted in the first half an hour because no working time has preceded it and in this respect, conceptually, it is not a break. However, a break at the beginning of the second working hour permitted by the works agreement is also in any case, especially since the break must be granted "continuously", i.e. H. in its entire legal scope, in many of the shifts performed by the plaintiff already not with the law, d. H. with § 4 ArbZG, compatible. This is because it cannot satisfy the employee's recreational needs even on a normal shift. This early start of the breaks, which is permitted by the works agreement, is obviously chosen in the sole interest of the employer and would [...] undermine the substance of the works council's right of co-determination.
The same applies to the permitted latest end of the breaks at the end of the seventh hour of work. Many of the plaintiff's shifts only work eight hours at all. The break shortly before the end of the shift cannot meet the employee's need for recreation either and is obviously only permitted by the works agreement to meet the employer's operational needs.
A break that does not satisfy the employee's recreational needs, but is set on one side according to the employer's operational or corporate policy goals, is stressful for the employee. He should not have to interrupt work at times that do not meet his need for relaxation. The aim of the right of co-determination is precisely to protect the employee in this regard. If the employer therefore orders the break without observing the co-determination right, he will burden the employee. Without the break, the employee would be entitled to remuneration, be it because he had worked or because the employer was in default of acceptance. The delay in acceptance will only be eliminated - as shown above - if the break is arranged in accordance with statutory and collective provisions and at reasonable discretion. Only when the break is arranged according to equitable discretion, legal requirements and compliance with collective law, thus also while safeguarding the rights of co-determination, the otherwise existing claim for payment or default of acceptance will be eliminated. The violation of the right of co-determination does not result in claims by the employee concerned that would not have existed before. Rather, already existing legal positions of the employee are diminished. [...]
Only the legal consequence that the employer has to pay the break ordered in violation of the right of co-determination according to Section 87 (1) No. 2 BetrVG appears to be an appropriate and effective sanction for the violation.

Participate or pay
If an employer orders breaks without observing the works council's right of co-determination in accordance with Section 87 (1) No. 2 BetrVG, the breaks are to be remunerated from the point of view of default in acceptance even if they comply with Section 4 ArbZG.
LAG Cologne, judgment 09.10.2013 - 5 Sa 202/13)
(following LAG Cologne April 26, 2013 - 4 Sa 1120/12).
From the reason:
However, it must be established that the defendant set the breaks without having received the approval of the works council in accordance with Section 87 (1) No. 2 BetrVG. For this reason, the defendant did not effectively set the breaks and thus did not eliminate the delay in acceptance. The plaintiff is also entitled to the claims from the point of view of the theory of the prerequisite for effectiveness. The following applies in detail:
a) According to § 87 Paragraph 1 No.2 BetrVG, the works council has to co-determine the beginning and end of daily working hours including breaks as well as the distribution of working hours over the individual days of the week. The right of co-determination also relates to the duration and location of the breaks (see instead of many Fitting BetrVG, 26th edition, § 87 marginal number 116).
However, it emerges from the defendant's submission that the works council did not have a say in the specific breaks communicated by the dispatcher to the plaintiff on the respective day at the start of the shift. The breaks are not included in the monthly plan provided in the company agreement or in the daily plan provided there. That is undisputed and corresponds to the regulations of the works agreement. The works council is not informed of the breaks by email until the night immediately before the deployment.
However, this mere notification does not suffice for the right of co-determination. Rather, the consent of the works council is required. Silence on the part of the works council cannot be interpreted as approval, since the right of co-determination according to Section 87 BetrVG is not a veto right. In contrast to Section 99 BetrVG, the regulation does not provide for any deadlines after which the works council's approval is faked after the unsuccessful expiry (cf. e.g. BAG January 29, 2008 - 3 AZR 42/06).
b) It is also not sufficient that the responsible works constitution body merely recognizes that there is no right of co-determination with regard to the matter, and thus gives the employer a “free hand” in a matter subject to co-determination without co-shaping the content. As a result, such behavior would give the employer the sole right to decide on the matter subject to co-determination. This is not permitted (BAG loc. Cit., BAG 11/17/1998 - 1 ABR 12/98). The defendant's assertion that the procedure was "coordinated" with the works council is therefore just as irrelevant as it is unsubstantiated.
c) According to the established case law of the Federal Labor Court, a works council may not exercise its right of co-determination in such a way that it gives the employer the sole right to decide on the facts subject to co-determination (cf. apart from the previous references also BAG 26.04.2005 - 1 AZR 76/04 - with further evidence). If, therefore, the silence of the provisions of the works agreement on the monthly plan and the daily plan with regard to the breaks should be interpreted in such a way that the employer should have the sole right to decide on the location of the breaks, the works agreement would be ineffective in this respect and would be subject to co-determination pursuant to Section 87 Para. 1 No. 2 is also not sufficient.
d) However, the right of co-determination can be exercised by concluding a works agreement as such if the works agreement provides that the employer is entitled to take the measure alone under certain conditions regulated in the agreement, i.e. if the works agreement already regulates the essentials ( cf. on this and the following BAG 03.06.2003 - 1 AZR 349/02). The law does not require the consent of the works council to be obtained for each individual order subject to co-determination if the latter has given its consent in advance - for example for urgent cases that occur again and again. However, this must not violate the substance of the works council's right of co-determination. In the cited decision, the Federal Labor Court viewed a works agreement as an effective exercise of the right of co-determination, but emphasized that the works agreement contained “detailed regulations” on the procedural and distribution modalities associated with the unilateral authority to issue orders (see no. 56 above) and thus the works council contained the "substantially helped to shape" the matter subject to co-determination (see para. 54).

Right to cease and desist in arranging work during set break times
a) The employer is instructed to refrain in future from ordering or tolerating employees who work according to shift and duty schedules that they perform work during the break times provided there.
b) The employer is threatened with a fine of up to EUR 10,000.00 for each case of violation of the obligation under Clause 2 a.
(BAG, decision 07.02.2012 - 1 ABR 77/10)
For the reasons:
The employer unilaterally changed the duty rosters agreed with the works council by repeatedly canceling the specified break times and instructing the employees concerned to work during this time, or by tolerating the work performed by them during the breaks. The breach of labor constitutional obligations contained in this is gross. The employer was obviously not authorized to unilaterally cancel the fixed break times. The large number of breaches of duty in the past also creates the risk of repetition in the future. This is neither excluded by the instructions given nor by the hiring of additional employees. This is already countered by the fact that, even after the first instance decision, between February and April 2010 there were at least five cases in which the specified break times were not observed.

Participation in paid short breaks
According to Section 87 (1) No. 2 BetrVG, the works council has a say in determining the timing of short breaks that are subject to remuneration.
(BAG, 07/01/2003 - 1 ABR 20/02)

No participation in the payment of smoking breaks
The employer alone has the right to decide whether he continues to pay his employees during the smoking breaks. The works council has no right of co-determination here.
(LAG Schleswig-Holstein, January 10, 2008 - 4 TaBV 12/07)

The works council's right to information
Official guiding principle:
1. In the case of so-called trust-based working hours, too, the works council has a fundamental right to information according to Section 80 (2) sentence 1 BetrVG in order to be able to monitor compliance with the rest period according to Section 5 (1) ArbZeitG and the rest breaks according to Section 4 ArbZeitG BAG, decision of 6.5.2003 - 1 ABR 13/02, AP No. 61 to § 80 BetrVG 1972).
2. The scope of the information is based on the necessity of the information for the performance of the control tasks. 3. Insofar as compliance with the statutory rest periods and breaks is structurally ensured by the framework regulation on trust-based working hours applicable in the company, the scope of the right to information is reduced.
(LAG Cologne, decision 06.09.2010 - 5 TaBV 14/10)
From the reason:
The scope of the works council's right to information is not met by the forms for recording working hours modified by the respondent. According to these forms, the employees only have to state for each day with yes / no whether the uninterrupted rest period of at least 11 hours and the rest breaks according to § 4 AZG have been observed. Since the working time registration form does not require any further details, it is impossible for the applying works council to check this blanket information. For example, the blanket statement that the rest period of 11 hours was observed does not provide any information about when working hours ended on one day and when work was resumed on the following day. With regard to the control task assigned to the works council in Section 80 (1) BetrVG, this blanket information does not allow any, and certainly no efficient, control of the statutory working time limits. The required scope of the information depends on the working time regulations applicable in the company in each individual case. In this respect, there is also a dependency on the control option. The easier it is to check, the less extensive the information needs to be. If, for example, the working time regulation itself, such as the working time frame, ensures that the provisions of the Working Hours Act are secured with regard to rest periods and breaks, the scope of the information obligations is reduced to those who have not complied with the framework. If, for example, break times or a working time frame are set, the right to be informed will focus on the exceptions that have been exceeded. On the other hand, the more limitlessly the working hours can be determined, the more comprehensive the right to information.
If, on the other hand, the working time regulations structurally ensure that the statutory rest periods and breaks are observed, this simplifies control for the works council and thus reduces the amount of information required. If, for example, as discussed in the oral hearing before the regional labor court on September 6, 2010, the working time frame within the trust-based working time were limited to a total of 13-hour time frame, e.g. from 7:00 a.m. to 8:00 p.m., it would be structurally ensured that the Employees observed the 11-hour rest period in accordance with Section 5 (1) AZG. In such a case, it would be very easy for the works council to check violations, because the presence of employees before the start of the working time frame, i.e. before 7:00 a.m., or after the end of the working time frame, i.e. after 8:00 p.m., and thus a violation would be easy to determine. In such a case, it would no longer be necessary to carry out the control tasks of the works council to inform the works council in detail about the start and end of working hours in order to enable it to control the rest periods of Section 5 (1) AZG.
The same would apply with regard to the break times if a binding break frame were set in terms of time.
It is therefore up to the respondent to organize the trust-based working hours while maintaining the principle of maximum working time sovereignty in such a way that the teaching effort is reduced or structurally superfluous.

Termination without notice, smoking break
Principles:
If the regulation applies in the company that employees have to stamp out during smoking breaks, termination without notice is justified if an employee repeatedly spends breaks in the smoking room despite a warning without using the prescribed time recording.
(§ 626 BGB; Labor Court Duisburg, judgment 14.09.2009 - 3 Ca 1336/09)

A Muslim worker's prayer breaks during working hours
1. An employee does not renounce his basic rights under Art. 4 I, II GG, because he had to reckon with the conclusion of the employment contract that the proper fulfillment of his contractual obligations could collide with his obligations to his faith.
2. An employer is not obliged to accept breaks in prayer by the Muslim employee during working hours, protected by Art. 4 I, II GG, if this causes operational disruptions.
(LAG Hamm judgment 01/18/2002 - 5 Sa 1782/01)
For the reasons:
With the conclusion of the contract, the employee has generally submitted to the employer's right of direction. Insofar as the employer exercises this right of direction in order to guarantee an undisturbed business process, the employee must obey the employer's instructions resulting from this, despite the protection provided by his basic right under Art. 4 I and 2 GG. However, the employer is obliged to ensure the practice of religion by the client to a reasonable extent through operational organizational measures.

Obstinate pauses
1. The fact that a two-man column responsible for road maintenance in a city district "unauthorized" interrupts work in the morning for a half-hour break at a coffee shop does not necessarily provide an "inherently important reason" for in the absence of a prior warning an extraordinary termination.
2. The fact that the column does not show the coffee break in the work reports to be created by it, but rather assigns it to the interrupted or subsequent work order according to the working hours, does not justify an extraordinary dismissal (here a worker who has been employed by the employer for about 30 years) if the Time information in the work reports neither play a role in the calculation of remuneration nor for the billing of services vis-à-vis the client, nor is it intended to be used for work (time) control.
(LAG Düsseldorf, judgment 24.06.2009, - 12 Sa 425/09)

Pee break with an accident at work on the company toilet