In the Workplace
Individual and Collective Labour Law
All employees have specific rights that are prescribed by law, collective bargaining agreements and/or individual employment contracts. Labour law serves the primary purpose of protecting employees. All employees have certain minimum rights, whether a contract of employment exists or not. These are for example:
- the right to have paid holidays
- the right to receive payment in case of sickness and on public holidays
- rights against unfair dismissal (including right to be given a minimum period of notice)
- the right for written information on the main conditions of the employment contract
- the right to receive maternity or paternity leave
Collective bargaining agreements can depart from the regulations laid down by law by providing more favourable terms than the legal minimum. Individual contracts of employment can in turn be more favourable than collective bargaining agreements. This is known in Germany as the Favourability Principle ("Günstigkeitsprinzip"). Working conditions that do not reach the legal minimum standard are not permitted and are not binding under law.
There are also collective labour rights that stem from the laws protecting collective bargaining agreements and the Industrial Constitution Law ("Betriebsverfassungsrecht").
Industrial Constitution Law
In all private companies, e.g. private limited companies ("GmbH") or public limited companies ("Aktiengesellschaft") that permanently employ at least five employees, it is possible to elect a works council ("Betriebsrat") in accordance with the Industrial Constitution Law. The "Betriebsrat" represents the interests of the workforce within the workplace, working closely together with the employers as well as with the trade unions and employer federations represented in the firm.
The "Betriebsrat" is elected by all employees working in the company, regardless of their nationality. The "Betriebsrat" makes sure, for instance, that workers’ legal rights, safety regulations, collective bargaining agreements and company agreements are complied with and that employees are not treated differently due to their ethnic origin, religion, nationality, political or trade union activities and affiliations, or because of their gender or sexuality.
Another important legal requirement of the "Betriebsrat" is to foster the integration of foreign employees and to promote greater understanding between them and the German workers, and to demand measures to combat racism and xenophobia within the company. It also has the right to demand the removal of an employee for racist or xenophobic behaviour and to veto the recruitment of a prospective employee for the same reasons.
The "Betriebsrat" has the right to be consulted in social, personnel and economic matters. For example, it also has a say if workers are ordered to work overtime or short time. It also has a right to be involved in any envisaged recruitment or dismissal of workers and in drawing up social plans in the event of factory closures or other company changes. In some companies the employers and "Betriebsrat" have concluded company agreements to promote equal opportunities and to protect against discrimination.
Problems in the Workplace
Does my wage accord with the collective pay agreements? As an employee, do I have a right to a Christmas bonus? Can my employer demand that I work overtime? What holiday rights do I have? What happens if I am ill or have an accident? Information and help with problems in the workplace are provided by the "Betriebsrat" in private companies and by the Staff Council ("Personalrat") in public administration and local authorities.
It is also worth getting in touch with the "Betriebsrat" if you are discriminated against or bullied at work by colleagues or senior staff. The employer is legally obliged to protect the personal rights and health of its employees.
Employees have numerous legal possibilities to protect themselves. They can find out information from the responsible company department or receive advice from and/or legal representation from their trade union or a lawyer. There is no legal obligation to use a lawyer in labour courts of the first instance. Labour courts have a "Rechtsantragsstelle", which is a special office where you can file a suit. Although they are not permitted to provide you with any individual legal advice, they will help you correctly lodge a statement of claim. It is also possible to claim legal aid for conducting a lawsuit.
You can find out further information by checking the Services pages of the Bundesministerium für Wirtschaft und Arbeit (Federal Ministry of Economics and Labour) atwww.bmwa.bund.de or by calling their information hotline at 0180 5 615 003 (0.12 €/Min.) You can also visit the homepage of the German Confederation of Trade Unions ("Deutscher Gewerkschaftsbund") at www.dgb.de as well as the DGB homepage specifically dealing with migration issues provided by its training arm, the DGB Bildungswerk, at www.migration-online.de.
Labour Contract Notice and Protection
It is not permissible just to tell somebody that they are sacked, they must also be informed in writing. An employee is generally protected against dismissal in accordance with the Protection Against Dismissal Act ("Kündigungsschutzgesetz") if the employee-employer relationship has lasted for more than 6 months and if more than 10 employees are employed in the company (this does not include trainees; part-time workers are considered on a proportional basis). The Protection Against Dismissal Act requires that the dismissal is socially justified, i.e. it must be justified by the conduct or behaviour of the employee or as a result of urgent operational requirements.
If there is a "Betriebsrat" in the company, it must be consulted before anyone is given notice of dismissal. Any notice of dismissal that is given without the "Betriebsrat" being consulted is invalid. Under certain conditions it is possible for the "Betriebsrat" to veto the dismissal.
If the employee wishes to prevent a dismissal notice from taking effect, he or she must file a suit at the responsible labour court within three weeks of receiving written notice of dismissal.
Special protection against dismissal is enjoyed, for example, by women during pregnancy and up to four months after giving birth as well as by trainees and severely handicapped people. It is generally forbidden for these employees to be dismissed. It is only possible in exceptional circumstances if the employer has received prior approval from state authorities. The "Betriebsrat" or the trade unions can provide you with more information.
The requirements for organising working hours are regulated in the Working Hours Act ("Arbeitszeitgesetz"). The Working Hours Act generally applies to all workers, employees and trainees. The act avoids stipulating legal requirements for organising working hours that go beyond what is necessary for protecting the health of employees. In particular it regulates the maximum working hours per day, breaks, and the minimum rest periods following the work time. It also generally prohibits employment on Sundays and on statutory holidays. Within the framework of the act, the specific working hours are stipulated in collective bargaining agreements, company agreements and/or in contracts of employment.
The occupational health authorities in the various federal states (e.g. the Factory Inspectorate ("Gewerbeaufsichtsamt"), Health and Safety Executive ("Amt für Arbeitsschutz") are responsible for ensuring that the Working Hours Act is complied with.
Occupational Health and Safety
Occupational health and safety comprises all measures that ensure the physical and mental wellbeing of all employees during the work. These include all necessary legal, organisational, technical and medical preventive measures. The essential aim is to prevent accidents, hazards, harm, nuisance and avoidable stress. Occupational health and safety is also concerned with the creation of humane workplaces, working processes and working conditions.
The basic health and safety provisions are contained in the Health and Safety at Work Act ("Arbeitsschutzgesetz"). Other special health and safety aspects are regulated, for example, by the following important laws and legal provisions:
- Act concerning plant physicians, safety engineers and other occupational safety specialists ("Gesetz über Betriebsärzte, Sicherheitsingenieure und andere Fachkräfte für Arbeitssicherheit"; "Arbeitssicherheitsgesetz")
- Equipment and Product Safety Act ("Geräte- und Produktsicherheitsgesetz")
- Occupational Safety Ordinance ("Betriebssicherheitsverordnung")
- Hazardous Substances Ordinance ("Gefahrstoffverordnung")
- Workplace Ordinance ("Arbeitsstättenverordnung")
The employer is primarily responsible for complying with the health and safety provisions. The respective federal state authorities (in particular the Factory Inspectorate) ensure that the health and safety regulations are maintained. As funding bodies for statutory accident insurance, the trade associations are responsible for prescribing accident prevention regulations that are to be observed in addition to the state health and safety provisions. The trade associations’ supervisory bodies monitor compliance with theses accident prevention regulations.
Child Labour and Youth Employment Protection
Occupational health and safety protection is even more important for children and juveniles as it is for adults. The Youth Employment Protection Act ("Jugendarbeitsschutzgesetz") and the Child Labour Protection Ordinance ("Kinderarbeitsschutzverordnung") therefore protect young people under the age of 18 from work that begins too early, that lasts too long and which is too difficult, dangerous or unsuitable for them.