Works council activities and working hours

The case concerned a works council member who ended his night shift early in order to achieve a rest period of eleven hours before the start of a works council meeting on the next working day. The employer credited the works council member's working time account with lost time, but only up to a total rest period of eight hours between the night shift and the start of the works council meeting. The works council member filed a lawsuit requesting further time credit on the grounds that he was to be released from performing work without a reduction in pay in accordance with Section 37 (2) BetrVG even if a necessary works council activity outside of working hours made it impossible or unreasonable to perform the work.

The Federal Labor Court, which previously did not define fixed rest periods with regard to the reasonableness of an interruption between work performance and works council activities, ruled in its judgment of 18.01.2017 - 7 AZR 224/15 that a works council member who has to attend a works council meeting during the day between two night shifts outside of their working hours is entitled to stop working in the previous night shift before the end of the shift if this is the only way to ensure an uninterrupted recovery period of eleven hours per day during which neither work performance nor works council activities are to be performed.

However, the Federal Labor Court did not decide whether the works council activities constitute working time within the meaning of the Working Hours Act. It merely referred to the assessment of rest periods in accordance with Section 5 (1) of the Working Hours Act