The Spanish Supreme Court has confirmed that smoking breaks can be deducted from working hours – and in Austria?
Smoking breaks are considered leisure time
The question of whether smoking breaks should be considered leisure time is now causing a stir among us. And with what? Rightly! Because: According to the law, smoking breaks during working hours are also prohibited in Austria, unpaid and have to be incorporated.
According to the Working Hours Act, only the statutory breaks of at least 30 minutes are to be observed. They have to interrupt their daily working hours after six hours at the latest. However, workers can design them as they please.
A company agreement must regulate whether the half hour can be divided into several small units. In principle, employees cannot choose the times of the rest periods without an agreement with the employer.
In concrete terms, this means that smokers have to “stamp out” every time they pick up a cigarette. Theoretically. Because in many places the topic is handled rather flexibly in practice.
Works agreements possible
Employers can also allow their employees to take breaks from smoking without “stamping out”. In addition, the works council can enforce regulations on cigarette breaks through company agreements. If this does not exist, both the Chamber of Commerce (WKO) and the trade union federation recommend clarifying in good time whether smoking breaks are considered working hours or not.
The company management can theoretically prohibit smoking breaks that take place outside of the agreed work breaks. Or they can request that the worker incorporate them.
Chefs can ban smoking
However, an absolute ban on smoking by the employer even during this break would be a disproportionate encroachment on the privacy of the employee. However, the employer can usually prohibit smoking during working hours, i.e. outside of the break.
The employer can also decide – taking into account the protection of non-smokers – where smoking is allowed on his company premises and where not.
Arbitrary smoking breaks can only be a reason for dismissal under particularly difficult circumstances. In this case, according to the WKO, it must be checked whether the smoking breaks represent a significant absence from working hours, whether the missed work is important and whether there are operational disadvantages. In addition, appropriate warnings must have been issued and consequences under labor law must have been threatened.
