Set-up time

The criterion: serving the employer

What matters is whether the activity serves the business exclusively or very largely. In its judgment of 26/10/2016 (5 AZR 168/16) the Federal Labour Court held that changing clothes is part of the work that has to be paid where the employer prescribes particular clothing and it has to be put on and taken off at the business.

Under that decision, work clothing is conspicuous where its design lets the person be identified in public with a profession or an industry. Anyone who can put it on at home and wear it inconspicuously to work has no changing time serving the employer.

Changing time also covers the associated journeys within the business, for instance from the locker to the workplace. Where the duration cannot be stated precisely, the court may estimate it under section 287 of the Code of Civil Procedure.

Pay and the Working Hours Act

Two questions have to be kept apart. In working time law, set-up time that serves the employer counts as working time within the meaning of section 2(1) ArbZG and therefore towards maximum working time.

Whether it has to be paid additionally depends on the employment contract and a collective agreement. A collective rule can pay it as a flat rate or exclude it, as long as the minimum wage is still reached for the total time.