„Guten Morgen Frau Wallmann, ist es möglich einen Mitarbeiter mit Vertrauensarbeitszeit in Kurzarbeit zu schicken? Und wenn ja, wie weise ich die weniger gearbeiteten Stunden beim Arbeitsamt nach?
Kurze Frage – kurze Antwort:
Grundsätzlich ist es während einer Kurzarbeitsphase unbedingt erforderlich, die tatsächliche Arbeitszeit zu dokumentieren, um aus der Differenz zur Soll-Arbeitszeit den Arbeitsausfall auch nachweisen zu können, für den es das Kurzarbeitergeld gibt.
Soweit ein Betriebsrat existiert, ist die Einführung von Kurzarbeit mitbestimmungspflichtig. Von daher kann in einer entsprechenden Betriebsvereinbarung zur Kurzarbeit, dann auch das technische Prozedere zum Nachweis des Arbeitsausfalls geregelt werden.
Und by the way:
Kurzarbeit kann unabhängig vom geltenden Arbeitszeitmodell nicht im Wege des Direktionsrechts angewiesen werden. Es bedarf in der Regel tariflicher Öffnungsklauseln oder Betriebsvereinbarungen ( nach BetrVG, bitte keine lyrisch selbst erfundenen). In älteren Arbeitsverträgen findet man vereinzelt noch Kurzarbeitsklauseln, die wir vielleicht in Zukunft wieder vereinbaren sollten.
Fehlen diese Regelungen helfen nur kurzfristige Individualvereinbarungen mit den Arbeitnehmern, die auf Anforderung auch bei der Agentur für Arbeit vorgelegt werden müssen. Das ist häufig im Mittelstand ohne Tarifvertrag oder Betriebsrat notwendig. Ich empfehle dabei, die Verhandlungen hierüber nicht einzeln mit jedem Arbeitnehmer zu führen, sondern im Team, um alle gemeinsam motivieren zu können, den Betrieb und damit alle Arbeitsplätze zu erhalten. Darüber hinaus sollten bei Mitarbeitern mit Kundenkontakten unbedingt externe Kommunikationsregeln vereinbart werden. Denn auch wenn Corona wütet, kann Kurzarbeit bei Kunden mächtig die Gerüchteküche schüren.
Mehr über Kurzarbeit im Artikel Corona und Subventionsbetrug
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