BDA AGENDA 02/21 | TOPIC OF THE WEEK

Berlin, 20 January 2021: The decision by the Federal Chancellor and the Minister Presidents of the federal states to introduce a compulsory ordinance on the introduction of home office and the draft ordinance presented by the Federal Minister of Labour Heil are not a good sign for the social partnership in Germany. It does not go together to celebrate the social partnership in Sunday speeches and to deprive it of its business basis in everyday business.

Only last Friday, the President of the German Employers' Association, Dr. Dulger, the Chairman of the German Trade Union Confederation, Rainer Hoffmann, as well as the Federal President, Frank Walter Steinmeier, announced a joint declaration on home office. The aim of this agreement is to enable the use of mobile working through company and individual agreements where this is possible for operational reasons and desired by employees. In this way, employers (and trade unions) are once again making a contribution to guiding the Federal Republic through the shoals resulting from the pandemic under difficult conditions.

In his speech, the Federal President rightly and emphatically emphasised that social partnership is proving its worth even and especially in this difficult situation, which has already lasted almost twelve months. Since the beginning of spring 2020, companies, works councils and employees have been doing a great deal to keep the consequences of the pandemic at bay. The goal of all remains and must remain to combine a high level of value creation with a high level of health protection and safety. It is no exaggeration to emphasise time and again that there is almost nowhere else as safe as in the workplace.

This statement apparently does not bother the Federal Minister of Labour. On the basis of the Occupational Health and Safety Act, he wants to issue an ordinance obliging employers to allow their employees to perform mobile work in their homes. This form of mobile work is to be made possible whenever there are no compelling operational reasons to the contrary. This is almost unique in labour law. The state obliges the employer to offer mobile work to employees selected by the state. The employee, on the other hand, decides at his or her own discretion whether to accept this "offer".

It is true that this regulation does not give the employee a direct, independent right to home office. However, the right of the authority to instruct the employer accordingly encroaches deeply on the core of the employer's right of direction. The result is that in future a state authority external to the company is to judge when compelling operational reasons stand in the way of mobile working from home. This is particularly noteworthy because, especially in the public sector, employers often offer their employees home offices on a homeopathic basis at best, even though there is a great deal of office work in public administration.

This approach not only raises fundamental questions about the Labour Minister's understanding of working life. Above all, this approach takes the risk of damaging the social partnership. The question quickly arises as to the value of such agreements when one social partner can no longer say with certainty today whether what he signed yesterday will still apply tomorrow.