Unpaid overtime definitely conflicts with labour law. There is also a maximum amount of hours you are technically allowed to work on a day, which is ten. Sixty hours also is the absolute weekly maximum with 48 hours being the regular maximum.
However, if you do not report these hours no one will ever know.
If you receive a salary, you don't get paid by the hour. If your contract says you don't have a right for compensation (monetary or otherwise) for extra hours, then you don't. Negotiating such terms is up to the employee (or the unions).
> There is also a maximum amount of hours you are technically allowed to work on a day, which is ten.
That's a different thing from not being paid for hours you work extra.
I think this is a good summary of the law in practice. Any overtime has to be compensated by the employer. Obviously, there are ways people work around it if the employee is fine with it...
However, if you go to court about unpaid overtime you are sure to win. This has obviously implications on your hireability though. On paper you are protected.
Drug trade is a common practice yet it is illegal. My employers would not risk to be caught and punished for unpaid overtime or more than 10 hours / day work on average. It was explicitly told us that we cannot work more than 8 hours on average and everybody is pretty serious about that. Not sure what industry or what companies are you talking about and referring to it as common practice.
> Use German resources if you want to learn about Germany.
This is an English speaking forum. Unless you have evidence that the English resources contradict the german ones, calling me out on this is pointless.
> Tldr; employees and employers have to make sure that no-one oversteps the 10 hour maximum.
That's not the point. The point is do you have a right to get compensated for extra hours. Let's say you're hired for 36hrs/week but the reality is closer to 40. The contract says you're not entitled to compensation for overtime. As far as the law is concerned, I see no problem here whatsoever.
You can include clauses that allow limited unpaid overtime, for example "36 hours per week and up to 16 hours of unpaid overtime per month", but then, as an employee, you should treat that as a 40 hours contract. Unpaid overtime cannot be agreed upon retroactively, it must be in the initial contract. Unlimited overtime is not permissible except for people in certain positions (Managing Directors or other people with full control over their time are generally exempt from that, people with sufficiently high compensation might be [the usual threshold is the Beitragsbemessungsgrenze der gesetzlichen Rentenversicherung which increases yearly and is currently at about 80k EUR/year])
However, the legal situation differs from the situation on the ground. Companies still offer contracts with invalid and unenforceable rules and employees are still afraid to sue, even though you can sue for unpaid overtime after you leave.
If you actually look at the court case, the guy won because the contract was unclear on its terms, not because such terms are inadmissable in general. That's why the lower court didn't decide in his favor. The decision doesn't generalize across all contracts.
> You can include clauses that allow limited unpaid overtime, for example "36 hours per week and up to 16 hours of unpaid overtime per month", but then, as an employee, you should treat that as a 40 hours contract.
That's besides the point. The question is, is that paid overtime? If you ask me, it isn't because any extra hour worked doesn't translate into extra money.
> Unpaid overtime cannot be agreed upon retroactively, it must be in the initial contract.
It didn't claim otherwise, I explicitly said it has to be in the contract and from what I read in other places, it seems commonplace.
> If you actually look at the court case, the guy won because the contract was unclear on its terms, not because such terms are inadmissable in general.
They are. Quote from the courts press release:
> Der vertragliche Ausschluss jeder zusätzlichen Vergütung von Mehrarbeit war wegen Intransparenz nach § 307 Abs. 1 Satz 2 BGB unwirksam.
The court ruled that the terms are unclear because it is not known to the employee how many hours he might have to work for his wage. A clause stipulating unlimited unoaid overtime can never fulfill that requirement. Thus unlimited overtime is inadmissible in the general case, except for the cases I listed previously.
The relevant quote from the ruling (which is linked from the courts press release) is:
"a) Die Parteien haben zwar in Tz. 4.4. des Arbeitsvertrags bestimmt, dass der Kläger für Über- und Mehrarbeit keine gesonderte Vergütung erhalte. Diese Regelung ist jedoch nach § 307 Abs. 1 Satz 1 BGB unwirksam, weil sie nicht klar und verständlich ist, § 307 Abs. 1 Satz 2 BGB."
and
"Eine die pauschale Vergütung von Überstunden regelnde Klausel ist nur dann klar und verständlich, wenn sich aus dem Arbeitsvertrag selbst ergibt, welche Arbeitsleistungen in welchem zeitlichen Umfang von ihr erfasst werden sollen. Der Arbeitnehmer muss bereits bei Vertragsschluss erkennen können, was gegebenenfalls „auf ihn zukommt“ und welche Leistung er für die vereinbarte Vergütung maximal erbringen muss (BAG 1. September 2010 - 5 AZR 517/09 - Rn. 15 mwN, BAGE 135, 250; 17. August 2011 - 5 AZR 406/10 - Rn. 14 mwN, EzA BGB 2002 § 612 Nr. 10)."
> > You can include clauses that allow limited unpaid overtime, for example "36 hours per week and up to 16 hours of unpaid overtime per month", but then, as an employee, you should treat that as a 40 hours contract.
> That's besides the point. The question is, is that paid overtime? If you ask me, it isn't because any extra hour worked doesn't translate into extra money.
That's why I said "if your contract stipulates unpaid overtime, treat is as part of your regular work time." If you get to work less, fine, but assume you have to work the maximum time stipulated in the contract. (weekly time plus max overtime)
> from what I read in other places, it seems commonplace.
I'd not call it commonplace, but in some areas it's not uncommon. It's still inadmissible in most cases, but as I said before, people don't sue so companies don't learn their lesson.
I don't understand what you're disagreeing with exactly. I say "unpaid overtime" appears to be legal. I didn't say "unlimited unpaid overtime".
From everything you quoted, "unpaid overtime" is legal as long as it's clearly transparent from the contract and it's within other laws restricting the amount of hours total. Unpaid overtime is statistically common as per the other sources I linked to.
Obviously, if unpaid overtime clauses were clearly and entirely illegal, the lowest court would've immediately ruled in favor of the plaintiff, not against him.
I doubt it, Germans rank high in terms of unpaid overtime.
https://www.dw.com/en/unpaid-overtime-a-common-phenomenon-in...
They also have some of the lowest wages combined with the rather high social security expenses.
https://www.learngermanonline.org/salaries-and-living-costs-...
Given that, I think Germany doesn't deserve its good reputation.