Can my employer dictate how long my break should be? After all, it’s a can rule.
That is at least the top question among 100 surveyed people.
And actually, I could end this whole thing here with the answer: Yes, he can and yes, he is also allowed to!
But that would not be a satisfactory answer.
What does the VO say?
The VO 561/2006/EG states in Article 8, Paragraph 4 as follows:
The driver may take at most three reduced daily rest periods between two weekly rest periods.
Many cling to the hope “The driver may…” and interpret it as a can rule. So, as if the driver had the decision to make whether to shorten or not shorten it.
However, there is a big BUT!
But there is also the § 106 GewO .
§ 106 of the Commercial Code (GewO) regulates the employer’s directive authority. According to this, the employer may, at his discretion, determine the content, location, and time of the work performance, as long as these working conditions are not determined by the employment contract, provisions of a works council agreement, an applicable collective agreement, or legal regulations. This also applies with regard to the order and behavior of employees in the company. When exercising discretion, the employer must also take into account any disabilities of the employee.
This means that if your boss or even the dispatcher tells you to take only 9 hours of rest, that is legally covered.
And just to translate the “Der Fahrer darf…” from the legal jargon into German:
The sentence itself only provides the possibility that the daily rest period can be reduced from 11 to a maximum of 9 hours three times a week (between two weekly rest periods).
And yes, the driver can also decide this for himself. But ultimately, also the entrepreneur / his authorized person…
“If I’m not fit enough after 9 hours of rest, I won’t drive!”
Also a statement that usually follows when drivers are educated by facts of a better understanding.
Now, on one hand, it’s not only the right of the driver, but also his duty, if he doesn’t feel capable of safely driving his vehicle through traffic, to leave the truck standing.
However, if someone is not capable of safely driving their truck through traffic after 9 hours, they are also not capable after 11 hours and should not be behind the wheel but in a taxi on the way to a doctor.
At this point, I can already mention DocStop . Just follow the link to the page, and you’ll know what I mean. :D
Also once again: The employer or one of his authorized representatives may prescribe how long you are allowed to take a break. And only if this is within the legal framework.
In other words: Regularly 11 hours, but maximum shortened to 9 hours. For anything less than 9 hours, you can safely say: Ah, no way!
Does this also apply to weekly rest time?
In general, yes. However, it depends on whether and what is stated in the employment contract. Since we as professional drivers rarely have clauses in our employment contracts specifying when we should start work, this doesn’t apply here. Our working hours are flexible, as the economy requires.
And even if something is specified in the employment contract, it’s only background information. § 106 GewO can still take precedence over the employment contract, provided that operational needs require starting and ending work at a different time. However, § 315 BGB must not be disregarded.
Additionally, even if you observe your regular weekly rest time of 45 hours, your employer may still order you to start work on Sunday evening instead of Monday morning. Logically, he should inform you about this before the 45-hour period, not on Sunday late afternoon, when you won’t have enough time to get sufficient sleep.
Oh, and before I forget: § 106 GewO applies not only to our profession. It also applies to all other professions.
