Basics of German Labour Law E-Book

Ilona Zenker

• Herausgeber: Books on Demand
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 151

Veröffentlichungsjahr: 2015

Beschreibung

Its a guide for German Labour Law and gives an overview of the main aspects of the individual employment relationship between employers and employees.

Leseprobe

by

Ilona ZENKER

ZENKER Ilona, born 1965, studied at the University of Augsburg/Germany Law including special finance- and businessadministration sciences, and graduated with a P.hD. in Law. After serving as a lawyer at court and in public service, since 1994 she is self-employed as a (founding-) executive partner of a law firm, specialised in counselling and representing private owned (international) companies as well as public corporations and trusts. From the beginning in 1994 she is permanently practising the full scale of German Labour Law. She is also Member of various Law associations and teaches her deeply profound theoretical and practical knowledge, experienced in countless cases, as a lecturer at University.

List of Abbreviations

AG

Aktiengesellschaft (public limited company, stock corporation)

AGG

Allgemeines Gleichbehandlungsgesetz (Act on Equal Treatment)

ArbG

Arbeitsgericht (Labour Court of first Instance)

ArbGG

Arbeitsgerichtsgesetz (Act on Court Procedure in Labour Law)

ArbNErfG

Arbeitsnehmererfindungsgesetz (Employee Invention Act)

ArbPlSchG

Arbeitsplatzschutzgesetz (Act on Protect of the Workplace)

ArbSchG

Arbeitsschutzgesetz (Occupational Safety and Health Act)

ArbZG

Arbeitsgesetz (Act on Working Time)

art.

article

AufenthG

Aufenthaltsgesetz (Act on Residence)

AÜG

Arbeitnehmerüberlassungsgesetz (Act on Commercial Temporary Work and Commercial Transfer of Employees)

BAG

Bundesarbeitsgericht (Federal Labour Court)

BBG

Bundesbeamtengesetz (Civil Service Law)

BBiG

Berufsbildungsgesetz (Occupational Training Act)

BDSG

Bundesdatenschutzgesetz (Federal Data Protection Act)

BEEG

Bundeselterngeld- und Elternzeitgesetz (Act on Parental Leave and Parental Time)

BeschFG

Beschäftigungsförderungsgesetz (Act on the Improvement of Employment Opportunities)

BetrVG

Betriebsverfassungsgesetz (Works Constitution Act)

BGB

Bürgerlisches Gesetzbuch (Civil Code)

BGH

Bundesgerichtshof (Federal Court of Justice)

BUrLG

Bundesurlaubsgesetz (Federal Vacation Act)

BVerfG

Bundesverfassungsgericht (Supreme Constitutional Court)

CDU

Christliche-Demokratische Union (Christian Democratic Union)

CEEP

European Centre of Enterprises with Public Participation

CSU

Christliche-Soziale Union (Christian Social Union)

EC

European Commission

ECJ

Europäischer Gerichtshof (European Court of Justice)

ed.

edition

EEC

European Economic Community

EFZG

Entgeltfortzahlungsgesetz (Act on Continued Payment of Remuneration on Holidays and in Case of Sickness)

e.g.

exempli gratia

EGBGB

Einführungsgesetz zum bürgerlichen Gesetzbuch (Introductory Act of German Civil Code)

EU

Europäische Union (European Union)

et seq.

et sequitur

ETUC

European Trade Union Confederation

EuGH

Europäischer Gerichtshof (European Court of Justice)

GDR

Deutsche Demokratische Republik, DDR (German Democratic Repuplic)

GewO

Gewerbeordnung (Trade Regulation Act)

GG

Grundgesetz (Constitution)

GKG

Gerichtskostengesetz (Court Fees Act)

GmbH

Gesellschaft mit beschränkter Haftung (Company with limited liabilty)

HAG

Heimarbeitsgesetz (Act on Homework)

HGB

Handelsgesetzbuch (Commercial Code)

IAO

Internationale Arbeitsorganisation (International Labour Organisation)

ILO

International Labour Organisation

InsO

Insolvenzordnung (Insolvency Act)

JArbSchG

Jugendarbeitsschutzgesetz (Young Person Employment Act)

KG

Kommanditgesellschaft (Limited commercial partnership)

KSchG

Kündigungsschutzgesetz (Dismissal Protection Act or Law of Protection against Unlawful Dismissal)

LAG

Landesarbeitsgesetz (Land Labour Court)

MindArbBedG

Gesetz über Mindestarbeitsbedingungen (Act on Minimum Working Conditions)

MuSchG

Mutterschutzgesetz (Maternity Protection Act)

NachwG

Nachweisgesetz (Law of Notification of Conditions)

NGO

Non-guvernamental Organisations

no.

number

NZA

Neue Zeitschrift für Arbeits- und Sozialrecht

OHG

Offene Handelsgesellschaft (general partnership)

p.

page

para.

paragraph

RichterG

Richtergesetz (Judicary Act)

SchwbG

Schwerbehindertengesetz (Act on Disabled Persons)

SGB

Sozialgesetzbuch (Social Security Code)

SPD

Sozialdemokratische Partei Deutschlands (Social Democratic Party)

TVG

Tarifvertragsgesetz (Act on Collective Agreements)

TzBfG

Teilzeit- und Befristungsgesetz (Act on Part-Time Work and Fixed-Term Contracts)

UNICE

Industry and Employers Confederations of Europe

UWG

Gesetz gegen unlauteren Wettbewerb (Act against Unfair Competition)

Vol

volume

WRV

Weimarer Reichsverfassung (Weimar Constitution)

TABLE of CONTENTS

Foreword

Title I

General Consideration of the Individual Employment Contract

Chapter 1

I. In General

1. Conditions of an Individual Employment Contract

2. Distinctions and other Types of Contract

3. Contract Parties

a. Employees

Employee-like persons

Executive Staff

Freelance Collaborators

Civil Servants

b. Employer

II. Theories about the sources of individual employment relationship

1. Integration Theory

2. Contract Theory

Chapter 2

Sources of German Labour Law and Employment Relationship

I. Law of Nations / International Law / Law of EU

1. Law of Nations

a. International Labour Organisation (IAO)

b. European Convention of Human Rights and European Social Charter

2. International Law

3. Law of the European Union

II. National Law

1. Hierarchy of sources of German Labour Law and the Employment Relationship

2. Constitution

3. Ordinary Legislation

4. Court Decisions

5. Employment Contract

6. Collective Agreements

7. Company Agreements

8. General Terms and Conditions

9. Custom

10. Right to Issue Instructions

11. Overview of the ranking

Title II

General Conditions for the Conclusion of an Individual Employment Contract

Chapter 1

I.

Legal capacity

1. Legal incapacity

2. Limited legal capacity

3. under-age employees and employers

II. Legal prohibitions of concluding an employment contract

III. Formal requirement

1. General formal provisions

2. Law on notification of conditions governing an employment relationship – Nachweisgesetz

IV. Agreement by consensus on the employment contract

V. Power of an attorney and proxy

1. Authority by law and by power of an attorney

2. Representation with power of an attorney

3. Representation without power of an attorny

Chapter 2

The Hiring Process

I. Job Advertising

1. „Invitatio ad offerendum“

2. General Equal Treatment Act

a. in general

b. legal consequences

II. Application

1. Duties of Revelation

2. Legal consequences

III. Job interview

1. Right to ask question

a. Pregnancy

b. Physical Disability

c. Conviction

d. Age

e. HIV Infection

f. Employee of the State security service of the GDR

2. Tests and medical examination

3. Further sources of information

4. Reimbursement of expenses and so forth

Chapter 3

Faults of the employment contract

I. Causes of nullity

1. Section 134 of the German Civil Code (BGB)

2. Section 138 of the German Civil Code (BGB)

II. Causes of rescission

1. Section 119 paragraph II of the German Civil Code (BGB)

2. Section 123 of the German Civil Code (BGB)

III. Legal consequences

Title III

Legal relationship – Rights and Duties of employer and employee

Chapter 1

I. Right of the employer and corresponding duties of the employees

1. Right of the employer to organize the work – Duty of the employee to work

2. Right of the employer to issue directions – Duty of the employee to follow directions

3. Right of the employer to control – Personal right of the employee

4. Right of the employer to demand loyalty and other duties of behaviour

5. Right of the employer to demand confidentiality

6. Right of the employer to prohibit competition

II. Duties of the employers and corresponding rights of the employees

1. Duty to grant holiday

2. Duty to pay remuneration

a. Different types of wages

b. Overtime hours

c. Work on Sundays, Public Holidays an Night work

d. Short-time work

3. Futher duties

Chapter 2

Payment without work

I. Annual holiday, sick leave, maternity

II. Employee`s absence of short duration

III. Default of acceptance of the employer

IV. Employer´s risk

Title IV

Modification, suspension and termination of the individual employment contract

Chapter 1

Termination by mutual consent

Chapter 2

Termination by extraordinary and ordinary dismissal

I. Extraordinary Dismissal

II. Ordinary Dismissal

1.) Dismissals on grounds of personal capability

2.) Dismissals on grounds of conduct

3.) Termination for operational reasons

III. Special Case

Dismissal with the option of altered conditions of employment

Chapter 3

Other reasons for Termination

I. Rescission of contract

II. Expiry of a period

III. Death of the employee

IV. Voluntary Service in the Army

V. Reaching the age limit

Chapter 4

Unlawful Reasons for Termination

I. Transfer of the company

II. Business Cessation and Company Insolvency

1.) Business Cessation

2.) Company Insolvency

III. Basic Miltary Service

IV. Death of the Employer

Title V

Chapter 1

Freedom of Contract

Chapter 2

Various Types of Individual Labour Contract

I. Full-Time Contract for an indefinite Period

II. Contract for a definite Period

III. Contract for part-time Work

IV. Contract for temporary Labour

V. Contract for marginal Employment / Mini-jobs

VI. Homework / Telework

VII. Employment / On-Call Work

VIII. Job-Sharing

Title VI

Jurisdicition

Chapter 1

System of Labour Courts

Chapter 2

Organs of Judicature

I. Professional Judge

II. Lay Judge

III. Lawyers and other Representatives

Chapter 3

Procedural Principles

I. Venue and subject-matter jurisdiction

II. Procedure

III. Appeal

IV. Costs

Chapter 4

Everday Business at Court

I. Indemnity

II. Employment reference

Foreword

German law is part of a European legal system which follows the tradition of Roman law. All important legal issues are covered by extensive legislation in the form of statutes, codes and regulations.

Whereas German civil law is rooted in the Roman ‘ius commune,’ the history and the development of labour law started in the industrialization era of the 19th century. Germany was the first country – after England – to pass labour laws.

Regulations concerning child labour were established in Prussia in 1839, whereby the employment of children under 9 years of age was prohibited, and children under the age of 16 were only allowed to work ten hours a day.

In 1863 the German Workers Association was founded, and the Industrial Code, which was established in 1869, was the next step towards the creation of a legal system to protect workers. From 1878 onwards, Bismarck’s government passed a series of laws intended to protect the working class, such as the Health Insurance Act, Accident and Disablement Insurance and Provisions for Old Age, all of which were part of the beginnings of social security.

Since the Weimar Republic, after the end of World War I, protection against unfair dismissal has been a key element of German labour law. This was laid down in Section 84 of the Works Councils Act of 1920. In 1926 a special labour court jurisdiction was established by the Labour Courts Act and all disputes concerning labour law were decided by the labour courts and no longer by the ordinary civil courts.

All trade unions and employers` associations were dissolved during the National Socialist era, and working life was reguated by the state. The fundamental features of the Weimar regulations concerning protection against unfair dismissals were retained in Section 56 of the National Labour Act of 1934.

After the end of World War II, the newly established Federal Republic drew up the German Constitution (Grundgesetz – GG) and labour laws were developed further. The re-founded States (Länder) established the Acts on the Protection against Unfair Dismissals, which mainly reverted to the model of the Weimar Republic.

There is no general code for labour law in Germany. Employment law is based on the Constitution and various statutes, ordinances and legal provisions. It develops from rulings of the Labour Courts, especially those of the German Federal Labour Court. Employment law is a complex issue, and is not without inconsistencies.

This textbook is a concise guide of the basics of labour law and the individual employment relationship between employers and employees. It is intended for readers who are looking for a short overview and reliable information on the fundamentals of German Labour Law.

Schrobenhausen – 2014

Ilona Zenker

Title I

General Considration of the Individual Emplyment Contract

Chapter 1

I. In General

I.1. Conditions of an Individual Employment Contract

The individual employment contract is neither legally defined nor legally standardized. The employment contract was developed out of the service contract, codified in the German Civil Code (Bürgerliches Gesetzbuch – BGB).

This is the reason why up to the present day all legal regulations of the service contract in the German Civil Code (BGB) still apply to the individual employment contract. According to Section 611 of the German Civil Code (BGB), a service contract is in force whenever the provision of any services is owed by one party of the contracting parties. However, it must be pointed out that the service contract is different from the individual employment contract because of the greater mutual rights and duties of the parties. The reason for this is a personal dependence of the employee on the employer, concerning working time, the working place and the kind of work required of the employee.

The guiding principle of German labour law is freedom of contract, which means that the employer is free to choose with whom he wants to conclude an employment contract.

The employment contract arises from two corresponding declarations of intent by the two contracting parties, without any formal requirements. The principle of freedom of contract implicates that no special formalities are required and the contract can even be concluded by an oral statement. According to the Act of Documentation of Employment Conditions (Nachweisgesetz – NachwG), the employee has the right to claim a written documentation of the essential contents of the employment contract.

But that does not mean that the observance of the written form is required to conclude a valid labour contract. The legal restrictions on freedom of contract will be explained later.

I.2. Distinctions and other Types of Contract

The service contract must be distinguished from several other kinds of contracts.

The service contract and hence the individual employment contract is different from an “assignment” or “order” as stated in Section 662 BGB, which is free of charge. The employment contract must also be distinguished from the “contract of work and services” as stated in Section 631 of the German Civil Code (BGB), because the employee is not pledged to succeed, but only to work.

1.3. Contract Parties

a. Employees

In German Labour Law there is no statutory provision defining the notion of “employee”. According to Section 84 of the Commercial Code (Handelsgesetzbuch – HGB), there is only a legal definition of the term “self-employed”. A self- employed person is free to organise her / his work and to determine her / his working time.

There are different factors that indicate the status of an employee. An employee is a person who is obliged to work for an employer because of a private contract, and who is in a relationship of personal subordination. This subordination is a combination of personal subordination and economic dependence. The employee is integrated into the employer`s organisation, has to follow the directives of the employer and carries no economic risks.

The distinction between manual workers, the so called “blue- collar workers”, who mainly work with their hands and do manual labour and the so-called “white-collar workers”, who are employees mainly involved in brainwork, has historical origins. The distinguishing features of these two groups were laid down in the occupational classification of Section 133 paragraph 2 of the old version of the Social Security Code (Sozialgesetzbuch - SGB), which was in effect until the beginning of 2005.

The white-collar workers were better paid, had longer periods of notice and were covered by a special statutory pension system. With the advance of technological progress this classification disappeared, as it was incompatible with the principle of equal treatment (Article 3 of the German Constitution – Grundgesetz GG). Although the notion of manual workers and employees can still be found in legal texts, although the two groups are no longer treated differently.

As stated above, the factors indicating the status of an employee are numerous. We are therefore going to define the notion of the employee by describing groups of working people who are not defined as employees in terms of German labour law.

Employee-like Persons

Employee-like persons are neither “self-employed” nor employees as described above. “Employee-like” persons are not covered by labour law as a whole, but only by some specific sections. The fundamental distinction between them is the “economic and personal dependence on the one group and the “independence” of the other group.

Employee-like persons are not integrated into the operational labour organisation of the employer, can freely determine their actions and their working time, have to do most of their duties themselves and perform their work - for one or more employer - for more than half of their average income, which is paid by one employer. For these reasons employee-like persons are not dependent on an employer in the same way or to the same extent as ordinary, regular employees. Therefore employee-like persons are not protected from dismissal, for example, but they can sue either in labour or industrial courts.

“Commercial agents”, who are prohibited by contract to work for other companies, also belong in this category. Most of the mutual duties of the parties are mainly written down in the Commercial Code (Handelsgesetzbuch – HGB).

In the same way, “homeworkers” also belong to employeelike persons, because they work either alone or with help of family members at a place of their own choosing, and can dispose of their working time freely. Their rights are specified in the Act of Homework (Heimarbeitergesetz – HAG)

Executive Staff