"Dare more progress - Alliance for freedom, justice and sustainability" is how the traffic light coalition has titled its 178-page coalition agreement for the years 2021 to 2025. The plans under the heading "Respect, opportunities and social security in the modern world of work" are of particular importance for all those working in the field of labor law and human resources. The following is an overview of some of the important topics.
The statutory minimum wage is currently being developed based on the Minimum Wage Act by a Minimum Wage Commission (Mindestlohnkommission) consisting of representatives of employers and employees. For 2022, an increase to EUR 9.82 on 01.01. and EUR 10.54 on 01.07. has already been set. The new federal government also wants to set the minimum wage at EUR 12.00 in 2022. This has already been sharply criticised by employers' associations and is considered unconstitutional.
Home office / mobile work
There is currently no legally guaranteed right or obligation to work from home. However, there is currently a home office obligation until 19.03. due to the Infection Protection Act (Infektionsschutzgesetz) in connection with the Corona pandemic.
It is planned that every employee will be entitled to discuss the possibilities of mobile working and home office activities with his or her employer. The employer should only be able to object to this if he can demonstrate conflicting operational concerns. Overall, the possibilities of mobile working / home office are to be improved. This form of working has increased extraordinarily in times of the pandemic and corresponds to the wishes of employers and employees for different reasons. A new regulation already in place for a few months grants work councils co-determination rights in designing mobile work.
Working time law
In times of new working worlds and models, the call for a loosening of the working time law is becoming louder and louder. From the employers' point of view, there is criticism of the rigid rest periods that must be taken between work phases (basically 11 hours) and the maximum weekly working time (within a 5-day-working week regular 40 hours, extension to 50 hours possible). Unfortunately, nothing in this context shall be changed fundamental. Nevertheless, flexible working time models should be possible in the future, but only within the framework of collective bargaining agreements. However, more and more companies in Germany do not apply collective agreements, including start-ups, for which this flexible option would then be ruled out. Furthermore, the fundamental ruling of the European Court of Justice of 2019 (14.05.2019 - C - 55/18) on the obligation to record working time is to be implemented into international law. The European Court of Justice has, among other things, required an objective, reliable and accessible system by each employer to measure the working time worked by each employee. This means that trust-based working time models in which employees have not previously recorded any working hours can no longer be continued in this way and must therefore be adapted.
In Germany, fixed-term employment contracts (befristete Arbeitsverträge) are a popular and usually easy-to-use flexible instrument. Fixed-term employments are advantageous for employers in that such contracts do not have to be terminated, which could regularly be reviewed in court, but end automatically upon expiry. In Germany, due to the strict regulations of the Dismissal Protection Act (Kündigungsschutzgesetz), terminations are often associated with legal uncertainty for employers. This Act applies to terminations in companies with more than 10 employees and if the employee has been with the company for more than half a year.
The possibility of concluding fixed-term employment contracts is to be limited in terms of duration. It is currently unclear whether the further restrictions, already laid down in a draft law by the previous government but ultimately not implemented, will be introduced. According to the draft law, fixed-term contracts without reason have to be limited to 18 months (currently 24 months) and with only one possibility of extension (currently 3 extensions possible). It was also envisaged that only a certain number of workers in a company could be employed on fixed-term contracts without a given reason for the fixed term.
International secondment of workers / specialized workers
The federal government wants to abolish unnecessary administrative requirements for A1 certificates for cross-border services by introducing a European electronic real-time register. Also, certain business trips are to be exempted from the requirement of an A1 certificate. Currently, workers are required to carry the A1 certificate with them on short-term business trips as well as on longer-term postings within the EU and also on short-term mobile work abroad.
The protection of workers in cross-border postings is to be improved and bureaucratic hurdles to be reduced. In the future there have to be effective and efficient controls in order to be able to take action against abuse and fraud, as well as broad advisory services for seconded and mobile workers. An information platform is also to be introduced in all EU languages, including information on national labor law in the member states.
There should be further development of existing immigration law to recruit specialized workers from abroad in a targeted manner. To this end, the EU Blue Card residence permit is to be extended to non-academic professions if there is a concrete job offer.
Apprenticeship and postgraduate professional education
The coalition agreement deals extensively with the challenges of digitalisation and the accompanying need to qualify employees for new professional fields. Accordingly, it announces improved opportunities for professional reorientation, apprenticeship and postgraduate professional education. Among other things, it has to be possible for employees under certain conditions to obtain a vocational qualification retroactively or to start a professional reorientation. For this purpose, an agreement is to be concluded between employer and employee. In this case, the Federal Employment Agency (Bundesagentur für Arbeit) can grant subsidies on application and support these projects.
The laws already in place in this context are to be supplemented and the wage gaps that still exist between women and men are to be closed. In particular, the enforcement of equal pay is to be strengthened by enabling workers to assert their individual rights, including through working associations.
Other planned regulations
Still announced: New and additional regulations on occupational health and safety, extension of co-determination rights of works councils and extension of rights of unions, families support, support for disabled people as well as whistleblowing, company pension plans and employee data protection.
While a draft of the Minimum Wage Act is already available, for many of the issues presented it remains to be seen what the new regulations will actually look like in the end after the 3 coalition parties have discussed them and what impact they will have on the status quo.
In any case this will raise numerous legal questions that lead to discussions and negotiations between employer, employees, works councils, unions and employers' associations.
By: Markus Künzel, ADVANT Beiten
Please note, this article was published in the LaborLawMagazine, Issue 1, March 2022, p. 3 et. seqq.