Legal assistance with ADV and ATV questions

Questioner

I have recently been employed by another employer with 6 employees who, according to them, is affiliated with small metal body construction. Question 1: Am I entitled to ADV days or can the employer cancel them? The employer indicates that we work 40 hours per week, this is also stated in my contract, but my pay slip mentions a 38-hour working week. Question 2: Is an employer allowed to use this and why would it be applied?

Lawyer

Not laid down in the civil code, nor in the collective labour agreement. Therefore, you cannot hold the employer to it. If there are ADV days, these must be agreed in consultation with the employees. It is strange that 38 hours is stated on the pay slip. If you have a 40-hour contract, you can hold the employer to it. This means you do not work fewer hours than agreed.

Questioner

Thank you for your quick response. In the collective labor agreement book various topics are discussed concerning adv such as scheduling it, the employer can do this for example in blocks of 2, 4 or 8 hours. I just can't find out whether an employer is obliged to use adv days which I find strange, after all a collective labor agreement is there to enforce and to prevent unfair competition if an employer joins to enjoy the benefits but to come up with rules for the burdens then a collective labor agreement is of no use at all. The fact that I am told that I have a 40-hour working week and only 38 hours are noted on the pay slip, I suspect, has to do with the adv days, because if you have 40 hours on your pay slip, adv days must be applied and this must be reported to the union how these are applied, as soon as a 38-hour working week is discussed, the employer has no obligation to report this because adv days are simply not applied, but as I say, I suspect this. I will also contact the/a union, perhaps they can give me more clarity about the rules in the collective labor agreement regarding adv, thank you and good luck with your helpfulness to others.

Lawyer

A union can tell you the rules. You can assume that if something is not included in the collective labor agreement, it will be left to the employer.

Questioner

Thank you for your quick response. I quote from a text from the FNV, You are entitled to a reduction in working hours (adv) reduction in working hours (atv) when you actually have a longer working week than you are supposed to work based on your employment contract. For example, if you are supposed to work 38 hours per week according to your employment contract, but actually work 40, you will build up 2 adv hours per week. If you do this 52 weeks per year, you will have saved up 13 days per year. ATV AND ADV DAYS NOT LEGALLY REGULATED The right to adv or atv days, unlike vacation days, is not regulated by law but in your collective labor agreement or company regulations. The number and status of the days depends on what is stipulated therein. For example, it may state whether they can be taken freely or whether your employer processes them in the schedule. In principle, you do not accrue adv days during illness. I conclude from this that the employer must indicate this in my contract, which was not done, adv is not discussed in my contract, and because I am paid for 38 hours and work 40, I am entitled to it despite the fact that 40 hours is stated in my contract, or am I making it too rosy in this way of thinking, I was taught that you have to turn everything you have been told around and look at it again if you know what I mean. I would like to receive your feedback on my findings.

Lawyer

Don't mention it. Overtime can simply be overtime. That is the case if nothing is stated about it in the contract. You can appeal for an allowance for that. Overtime can also entitle you to adv days. This must then be laid down in the collective labour agreement or company regulations. You can submit a request to the works council to record the adv.