Arbeitszeit ist nicht gleich Arbeitszeit

The question often arises for both employers and employees as to what is meant by the term working time. It is important to understand that different working time concepts must be distinguished from one another.

In particular, this concerns the term working time in the sense of a concluded employment contract, and on the other hand the term as used by the so-called Working Hours Act, i.e. working time in the sense of occupational safety law.
Working hours within the meaning of the Working Hours Act
Working time within the meaning of the Working Hours Act is the time from the start to the end of work. The decisive factor for the assessment is whether the employee spends the time in the interests of his employer and how high the degree of stress is. This means that travel time, i.e. the time from the employee's home to the company, does not count as working time. Business travel times also generally do not count as working hours in the sense of occupational health and safety law. However, this can be assessed differently if the (main) performance obligation of the respective employee consists of traveling, which is the case, for example, with a truck driver who sets off on a journey from his home. This can also be assessed differently if the employee performs an obligation to perform under the employment relationship during the business trip, for example by processing files during a business-related train journey.
If the Working Hours Act is violated, particularly if the maximum working hours set by law are exceeded, the employer may face fines. In the worst case, he may even commit a criminal offense. It is therefore often of crucial importance for employers to determine whether working hours are covered by occupational health and safety law in individual cases.
Contractual working hours
From the employee's perspective, however, the question usually arises as to for what times and to what extent the employer is obliged to pay remuneration, i.e. whether work is being carried out in accordance with the employment contract.
Working time in the employment contract sense is the working time that is specified in the employment contract. Unless there are different (collective) contractual regulations, the time spent by the respective employee to provide the contractually owed services is working time subject to remuneration. Consequently, in a recent decision, the Federal Labor Court came to the conclusion that changing clothes is part of the working time owed by the employee and to be paid to him if the employer prescribes the wearing of certain clothing that must be put on and taken off at work; see. BAG, judgment of October 26, 2016, 5 AZR 168/16. With the instruction, the employer exercised his right of direction conferred on him by the employment contract. Changing clothes was therefore a (ancillary) service that was subject to remuneration.
Conclusion
The question of whether working hours subject to remuneration and/or working hours within the meaning of occupational safety law exists can be legally very complex in individual cases. This is also reflected in the fact that the Federal Labor Court is repeatedly called upon to classify individual facts. Legal advice can help avoid gross misjudgments in the run-up to a conflict.