AKMV Divided work shift
One of the employer’s rights is the authority to determine the start and end of an employee’s working hours, as well as to establish the work shift schedule, which the employee is obliged to follow.
According to information provided by the National Labour Inspectorate via phone, it is possible to agree on a split shift by mutual agreement with employee representatives under § 90 paragraph 6 of the Labour Code: “The employer may, in agreement with employee representatives, divide the working hours of the same shift into two parts.”
“The employer determines the start and end of working hours and the schedule of work shifts in agreement with the employee representatives. For the validity of this agreement, a written form is not required. If the employer autonomously determines the start and end of working hours, as well as the schedule of work shifts, even though employee representatives operate at their workplace, the employer violates the law and may be subject to financial penalties imposed by the competent local Labour, Social Affairs and Family Office. Similarly, the employer acts contra legem (against the law), i.e., unlawfully, if they agree with the employee representatives on the start and end of working hours and the schedule of work shifts, but at the same time fail to fulfill their notification obligation towards their employees. This notification must be made in written form at the employer’s premises in a place accessible to all employees. At the same time, according to § 90 paragraph 9 of the Labour Code, the employer is obliged to notify the employee of the work schedule in the above manner at least one week in advance and for a period of at least one week. This obligation protects the employee from frequent changes in their work regime.” (EPI Commentary on the Labour Code)
An employer without a social partner acts autonomously when dividing a work shift into two parts. (Commentary C.H.BECK)
When dividing a work shift lasting longer than 6 hours, the employer provides the employee with a break for eating and rest—not at the beginning or the end of the shift—followed by personal time off. The employer is also authorized to split working hours within one shift into two parts even for shifts shorter than 6 hours; the time between the two parts of the shift counts as the employee’s personal time off. (Labour Code Commentary, Wolters Kluwer)
However, attention should be paid to the following: § 92 of the Labour Code states:
“The employer is obliged to schedule working hours so that the employee has a minimum rest period of 12 consecutive hours between the end of one shift and the start of the next within 24 hours, and a minor employee at least 14 hours within 24 hours.” This means, for example, if a shift ends at 10:00 PM, the employee can only start working again after 12 hours, i.e., no earlier than 10:00 AM the next day. Additionally, work after 10:00 PM is considered night work, which is subject to special conditions.