Supplement for nurses in unplanned overtime

BAG: Municipal clinics can not refer to recreational compensation
Erfurt (jur). Nursing public health workers are entitled to an overtime surcharge in the case of unplanned overtime hours in the shift service. However, only in the shift plan included overtime on the other hand, according to the collective agreement for public services - hospitals (TVöD-K) provided for a compensation, decided the Federal Labor Court (BAG) in Erfurt in a recently published judgment of March 23, 2017 (Az .: 6 AZR 161/16). This also applies to part-time employees.

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A nurse from Berlin had sued. He worked in a three-quarters position with a total of 29.25 hours per week in a clinic. The hospital used it after shift plans prepared in advance in alternating shift.

But despite the shift schedule, there were also unplanned overtime hours that the employer ordered. The clinic granted this a time off.

The nurse referred to the collective agreement. For unplanned overtime must be entitled to an overtime surcharge.

This contradicted the hospital. The plaintiff did not work overtime, but did "extra work". Overtime could only be incurred in shift work if it exceeded the regular weekly working time of full-time employees - ie 39 hours. But even then, the employer still has the opportunity to offset the hours by spending time in the plantation cycle.

This was contradicted by the BAG. Although the relevant provisions in the TVöD-K are not entirely clear, the only sensible interpretation is that the plaintiff - regardless of the existence of a part-time job - should be entitled to an overtime surcharge for unplanned overtime hours. The benchmark here is the "daily" working hours specified in the shift schedule.

The fact that no compensation should be granted, but a surcharge, is also due to the double burden of unplanned unplanned overtime: on the one hand the shift work and on the other the unplanned arrangement of overtime.

The clinic could also not point out that unplanned overtime incurred because of the late arrival of employees at shift change and therefore the "employee side" for it also have to stand up, the BAG ruled. There is no collective responsibility on the part of the "employee side" for the late arrival of a worker, with the result that only a compensation for overtime must be granted.

If a proper handover is not possible because of a late-coming employee, there is much to suggest that the shift schedule is too short. The employer simply had to plan overtime for the transfer in the shift schedule, which could later be compensated for as a time off.

Finally, overtime pay would also be payable to part-time workers. That "overtime" should be incurred only when exceeding the regular working hours of a full-time employee, complained the chief labor judge also. Otherwise, part-timers would be "discriminated against in equality". fle