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Working time is no time to smoke
Photo: Artinun Prekmoung/EyeEm/Getty Images/EyeEm
smoking break.
Up stairs, down stairs - four, five or six times a day: For the judges at the state labor court in Mecklenburg-Western Pomerania, this is absurd during regular working hours (reference number: 5 TaBV 12/21).
Specifically, it was the case of a logistics service provider at the seaport of Rostock, where large quantities of wood and wood products in particular are handled.
According to the framework collective agreement for port workers, employees could take a 30-minute break for every six-hour shift.
In September 2011, the employer and the works council agreed on a general ban on smoking on the port site due to the particular risk of fire.
Smoking was only permitted on five "smoking islands".
When fires broke out at several companies in the port in 2020, the employer pointed out that smoking was only permitted in the signposted areas and "only during the breaks prescribed by the collective agreement".
"We've been doing it this way for years," the judges do not accept
The works council did not want to accept this and insisted on its right to co-determination.
The company's instructions go beyond the company regulations.
For years, unplanned, inserted smoking breaks - for example in the case of technologically induced interruptions in working hours - were possible.
Accordingly, the employer should not put off smoking employees to the regular breaks.
The employer argued that smoking was not part of the job and was therefore only permitted outside of the working hours stipulated in the collective agreement and during regular breaks.
This was also the case before.
Ultimately, the works council is striving to introduce paid smoking breaks.
Smoking on duty is contrary to the obligation to work
The state labor court in Mecklenburg-Western Pomerania has now ruled that the works council has no right of co-determination if the employer only allows smoking during regular breaks.
The right to co-determination encompasses how employees live together and work together in the company, but not “work behavior and thus regulations and instructions that directly specify the duty to work”.
The smoking breaks are not regulated by tariff.
With the order to only allow smoking during regular breaks, only work behavior is affected.
The employer does not have to tolerate such work interruptions.
Because there is an obligation to work during the specified working hours.
The fact that it is not always possible to employ all employees permanently due to the fluctuating workload is no reason for leaving the workplace and going to a "smoking island", emphasized the LAG.
flg/faq/JurAgentur
