The right to extend working hours – sec 9 Act on Part-Time Work and Fixed-Term Employment (TzBfG)

Many employees want flexibility at work; often, this means there is a desire to work part-time (less than 40 hours a week). However the reverse case is also not uncommon; an employee wants to increase his working hours, particularly to earn more money. Both cases are covered by German law. However, there is a claim (currently) only in respect of shortening the working time (sec. 8 TzfG). With an extension the conditions are different. Sec. 9 TzBfG stresses here that a request for extension should be taken into account when filling a vacant position. Thus, if a worker is employed part-time and now wants to work full-time, this is only relevant if a full-time vacant position is filled. This means that there is no general right to return from part-time employment to full-time employment. Although such a claim is often required, it is not provided for by law.

Therefore, an extension of working hours is only possible under certain conditions. It is important that a (comparable) position with extended working hours is actually free. What this means, the Federal Labor Court has ruled in a recent judgment (docket number 9 AZR 192/17). The court has made it clear that a free job exists only if this position is completely unoccupied. In this particular case, the employer had decided to increase a worker’s working time due to increased labor demand. According to the Federal Labor Court, at no time was there a vacant job, so that a claim under sec. 9 Act on Part-Time Work and Fixed-Term Employment to increase the working hours did not exist. The employer is not bound by sec. 9 Act on Part-Time Work and Fixed-Term Employment here. This rule therefore only applies if the employer establishes a new position or, after the departure of an employee, newly recruits. In a mere temporal restructuring, the scheme does not apply.

The employer can thus relatively freely distribute working time and is not restricted by the law. It is only necessary to ensure that there is no completely free position. However, the employee does not have a claim to the establishment of a vacant position. For this reason, sec 9 Act on Part-Time Work and Fixed-Term Employment is often heavily criticized by employee representatives. Maybe a change will be made to this position by a new federal government in Germany.