What should employers consider when dealing with overtime for works council members?

I. Overview and legal Framework

The starting point for the lawful handling of overtime by works council members is Section 37 (3) of the Works Constitution Act (BetrVG), which grants a right to paid time off to compensate for works council activities that, for operational reasons, must be performed outside the individual’s working hours. Only if time off cannot be granted within one month for operational reasons must the time spent be remunerated as overtime.

The statutory structure is therefore mandatorily two-tiered: time off takes priority; remuneration is secondary.

II. Requirements for overtime within the meaning of Section 37 (3) BetrVG

Overtime in the works-constitution sense first requires that the activity constitutes necessary works council work which – had it fallen within working hours – would have triggered release from work under Section 37 (2) BetrVG. The decisive reference point is the individual working time of the respective works council member. What matters is solely whether the official duties had to be performed at a time when there was no contractual duty to work. Finally, there must be operational reasons, i.e., circumstances within the employer’s sphere (nature of the operation or workflow) that compel action outside the individual’s working hours. Typical constellations include rotating shifts or meetings and assemblies required by operational necessity that occur outside individual working hours.

By contrast, there are no operational reasons where overtime is caused merely by the internal organization of works council activities (so-called council-related reasons). Nor does a high volume of necessary works council work generally lead to operationally induced overtime, as long as the duration and scope – prompted by the employer – do not reach an unusual level.

III. Priority of time off in lieu

The right to time off in lieu is the statutory rule and takes precedence over any monetary compensation. A works council member cannot demand remuneration instead of time off, nor can the employer unilaterally grant remuneration in place of release from work. Time off must be granted within one month after the works council activity performed outside working hours. If this period expires without time off being granted, the entitlement to time off does not automatically convert into a monetary claim (see also Section VI).

IV. Assertion, notification, and Information

Unless the employer is otherwise aware, the works council member must promptly notify when and for how long they worked outside their regular hours. Mere notification of the activity (e.g., spreadsheets) does not suffice to assert the claim to time off; an explicit request for release from work is required. On the employer side, it is permissible and sensible to require brief details of the operational reasons necessitating activity outside personal working hours. The information pertains to extraneous prerequisites of the claim and not to the substantive works council activity itself.

V. Employer’s right to determine the timing of time off

The employer has a unilateral right to determine the timing of time off. This constitutes an instruction on the distribution of working time within the meaning of Section 106 of the Trade Regulation Act (GewO) and must comply with equitable discretion. The preferences of the works council member must be taken into account unless there are conflicting operational interests. Release from work may be granted in a continuous block or in segments (e.g., by the hour) to reconcile operational needs with individual preferences. The claim is subject to collective agreement exclusion periods and general limitation rules. Employers should therefore ensure prompt processing and robust documentation.

VI. Remuneration as overtime: a narrow exception

Mere inaction by the employer or the expiry of the one-month period does not automatically convert the time-off entitlement into a claim for remuneration. Remuneration requires that the works council member has duly requested time off and that the employer has refused to grant it due to objective operational reasons.

VII. Particularities for fully released works council members

For fully released works council members, an employer-determined time off allocation is excluded because the duty to work is suspended. Nevertheless, the priority of time off still applies. If a fully released member performs necessary works council activities outside their free time for operational reasons, they must independently assess whether and when to take time off. A remuneration claim does not arise even if the volume of necessary works council work makes taking time off practically more difficult. Pure workload is not an operational reason within the meaning of Section 37 (3) sentence 3, second half-sentence BetrVG. In overload situations, broader general or specific releases or targeted training of additional works council members should be considered to enable an appropriate division of tasks.

VIII. Practical recommendations for employers

Employers should establish clear internal processes. First, ensure prompt notification and an explicit request for time off by the works council member, including brief details of the operational reasons and the time involved. Second, exercise the right to determine timing within the bounds of equitable discretion, document the decision, and manage the one-month period. Third, treat remuneration strictly as a narrow exception: require proper assertion in advance, and only remunerate where objective operational reasons prevent time off within one month. Fourth, set clear guidelines for fully released works council members on taking time off independently and provide for options such as additional releases or training to avoid council-related bottlenecks.

IX. Common pitfalls and how to avoid them

A frequent mistake is paying remuneration too quickly without a prior, properly asserted claim to time off or without objective operational reasons preventing time off. This contravenes the priority of time off and risks an impermissible benefit to the works council member under Section 78 sentence 2 BetrVG.

It is also problematic to confuse council-related organizational shortcomings with operational reasons. Organizational issues that can be optimized within the self-organization of the works council do not justify remuneration.

Finally, it is a common misconception that the expiry of the one-month period automatically triggers a payment obligation. Without proper assertion and objective reasons for refusal, the entitlement to time off remains in place.

Conclusion

Employers act lawfully if they respect the priority of time off, systematically review the prerequisites for entitlement, actively manage the one-month period, and apply the narrow remuneration exception only where there are objective operational reasons. For fully released works council members, organizational solutions are the appropriate path, not an expansion of remunerable overtime.