The European Court of Justice (ECJ) dealt with employee rest periods in its decision of 02.03.2023, Rs C-477/21 (IH/MÁV-START). The decision has significant implications for rest periods when work is performed during weekend rest/weekly.
A Hungarian train driver sued his employer, the Hungarian railway company MÁV-START, claiming that he was not granted a daily rest period of 11 hours if that rest period preceded or followed a weekly rest period or a holiday period. The Hungarian company MÁV-START has a collective agreement that provides a minimum weekly rest period of 42 hours. Thus, the weekly rest period of 42 hours applicable in Hungary is significantly higher than the minimum weekly rest period of 24 hours prescribed by European law in Art 5 of Directive 2003/88/EC.
2. View of the ECJ
Directive 2003/88/EC provides a daily rest period of 11 hours (Art 3) and a weekly rest period of 24 hours (Art 5). The ECJ concluded that the daily rest period is not part of the weekly rest period. The daily rest period must be added to the weekly rest period additionally.
Even if a national regulation provides a weekly rest period of more than 35 consecutive hours (= 11 + 24), the employee must be granted the daily rest period of 11 hours in addition to this weekly rest period. The employee is entitled to the daily rest period that precedes the weekly rest period.
3. Conclusion for Austria
For Austria, this means that the employee is entitled to a daily rest period of 11 hours and (= plus) a weekly rest period of 36 hours.
- In the case of a "normal" 5-day week, this is not problematic because 47 hours of total rest can be adhered at the weekend. E.g. if the employee's working time ends on Friday at 5 p.m. and he starts work on Monday at 8 a.m., he has a total rest period of 63 hours.
- It is critical if the employee does not receive 47 hours of total rest period between the end of work and the next beginning of work. Example: If the employee works on Saturdays after 9:00 a.m. (when his work begins on Monday, 8:00 a.m.), the 47 hours are not met. I.e., substitute replacement rest must be granted.