In this episode, Isabel Firneis and Matthias Unterrieder discuss a recent decision by the European Court of Justice (ECJ) in case C-477/21 (MÁV-START). The decision states that a daily rest period must be granted in addition to the weekly rest period, even if national laws already provide employees with a weekly rest period that exceeds the minimum requirements of EU law. This ECJ decision could have direct implications for the interpretation of rest period regulations in Austria and lead to longer rest entitlements for employees.
The ECJ case in question
A recent ECJ decision (C-477/21, MÁV-START from 02 March 2023) deals with the entitlement of employees to daily and weekly rest periods and how they must be accumulated. The case was brought before the court by a Hungarian train driver who asserted that his employer, a Hungarian railway company, had granted insufficient rest periods due to not having granted a daily rest period in addition to his weekly rest period. Based on applicable Hungarian regulations, the train driver was entitled to a daily rest period of 12 hours and a weekly rest period of 48 hours (which was in general permissibly reduced to 42 hours).
The train driver claimed that the regulations on rest periods were incorrectly applied and that he actually was entitled to 12+42 hours of rest, meaning a total of 54 hours. His employer on the other hand claimed that granting a weekly rest of 42 hours was not only in line with Hungarian law but also more favourable than the daily plus weekly rest period entitlements under the EU Working Time Directive (EU minimum entitlements: 11 hours daily rest, 24 hours weekly rest = 36 hours if added together). In the view of the railway company, granting 42 hours of weekly rest was therefore sufficient.
The ECJ however ruled in favour of the train driver saying that the daily rest period must be granted in addition to, and before, the weekly rest period under Hungarian law. This amounts to a total of 54 hours of rest and is far more favourable than the minimum rest period entitlements under the EU Working Time Directive. The ECJ noted that the daily and weekly rest periods constitute two separate entitlements with different objectives. The EU Working Time Directive foresees minimum entitlements. The member states are free to grant longer daily and weekly rest periods but not shorter ones. Therefore, the daily rest must be granted irrespective of the length of the weekly rest period provided for by the applicable national legislation.
Impact for Austria
In Austria, the daily rest period is the same as in the EU Working Time Directive (11 hours). However, the weekend rest period constitutes an uninterrupted 36 hours in each calendar week and must include Sunday. The weekend rest must in general begin no later than 1 pm on Saturday. However, there are certain exceptions. For example, in trade businesses employees can work until 6 pm on Saturdays. Alternatively, employees working during the weekend rest period are entitled to an uninterrupted weekly rest of 36 hours within a calendar week and the weekend rest period must include a whole weekday off.
If the principles of the new ECJ decision are applied to Austrian regulations, the result would be that the daily rest period must be granted in addition to the weekly rest period, which is not currently the case. Therefore, the 11 hours of daily rest would have to be granted before the 36-hour weekly (end-of-week) rest begins. This means that employees would have to have 47 hours off at once due to the coincidence of daily and weekly rest. However, the current rest periods only reflect 36 hours at once.
For employers, this could be particularly problematic in the context of employees who work on Saturdays. Specifically, if said employees work until 6 pm. Due to the need of 47 hours of consecutive rest, working on Monday would be nearly impossible (as the starting time would be 5 pm).
Solutions for Austria
The simplest way to resolve this riddle might be to shorten the Austrian weekly rest to 25 hours (which is still 1 hour more than the minimum weekly rest entitlement under the EU Working Time Directive). Given that the daily rest period must be granted in addition to, and before, the weekly rest period, employees would continue to have a consecutive 36 hours off. Further, the legislator must consider how to deal with the fact that currently, the weekend rest period must include the entirety of Sunday (which is difficult for Saturday workers if the daily rest must be taken before the weekend rest).