Arbeitsrecht & Tarifpolitik

In contrast to the situation in the 1950s, 1960s and 1970s, it is not possible to speak of labour law as a largely unregulated legal matter. On the contrary, labour law suffers in large parts from overregulation. There are alone three different laws providing for part-time entitlements - namely the Part-Time and Fixed-Term Employment Act, the Parental Allowance and Parental Leave Act and two Nursing Leave Acts. For the same area, namely the care of close relatives, there is a Care Time Act and a Family Care Time Act side by side. Such a multitude of legal regulations for comparable life situations can hardly lead to predictable results.

Nevertheless, the impression that labour law is strongly influenced by case law is correct. Even beyond the law on industrial disputes, case law often comes to surprising results that are not always obvious when reading the law. The unpredictability of the decisions applies not only to the structuring of contractual employment relations, but also to a large extent to collective labour law. This is rooted in the short - and therefore, in its absoluteness, false - statement: "Labor law is employee protection law." What is correct is that labour law shapes labour relations.

Legislation and case law at the European level are becoming increasingly important for German labour law. The number of directives or regulations on labour law issues is constantly increasing, such as the Working Time Directive or Temporary Agency Work Directive, the Directive on the European Works Council or the Regulation and Directive on the Establishment of the European Company. Brussels governs a lot of things and the European Court of Justice in Luxembourg reinforces this tendency. In addition, the decisions of the European Court of Human Rights could gain in importance. This has made German labour law even more confusing in recent years. Legal certainty and legal clarity have often fallen by the wayside for employers and employees. It is the task of the German legislator and the German government to make labour law legally secure and not to disregard its important employment policy effects. Social is what creates work!

Labour law is facing major challenges as a result of globalisation, the high division of labour, the worldwide networking of companies and digitalisation. These challenges mean opportunities for more employment and even better working conditions. Certainly, new technical possibilities will mean that jobs will be completely or largely eliminated. However, if the process of digitalisation is wisely supported by legal regulations, we will ultimately have more new jobs than is currently the case.

The first, second and third industrial revolutions already eliminated employment opportunities, but in the end there was more work and thus more prosperity for everyone. Today, no one mourns the loss of the niche cab drivers, for example, when they board a modern taxi. German labour law is not yet sufficiently equipped to meet these challenges. What is needed is a sensible restructuring, e.g. in working time and occupational health and safety law, which takes account of a central insight: Flexibility creates employment security.

The formation of employment contractual relations is primarily the responsibility of the contracting parties. Employers and employees know best how to structure their contractual relations. This applies to the establishment, implementation and termination of the employment relationship. The legislator must flank this - as in almost all other areas of civil law. One contribution to this is, for example, the Protection Against Dismissal Act. However, a law with only 23 paragraphs now fills basic commentaries of over 3000 pages. It is obvious that this means an imbalance - if one compares basic commentaries on the Civil Code with its almost 2000 paragraphs. The further development and contractual opening of protection against dismissal is therefore an example of how more contractual options lead to more employment through more legal certainty.

Under no circumstances must there be new regulation and new bureaucracy. Fixed-term contracts and temporary work in particular have proven to be employment drivers on the labour market and bridges into work. Although contracts for work and services are not a specific form of employment and all labour and collective bargaining law in Germany applies to the workers employed in them, they are often referred to as "precarious types of employment". A contract for work and services is not a type of employment, but a way of establishing contractual relations between private individuals, between entrepreneurs and consumers and also between companies.

In recent years, fixed-term and temporary employment in particular have proven to be top employment drivers in the private sector. For example, almost two-thirds of those employed in temporary work had previously been unemployed, and almost one-fifth had been long-term unemployed or had never worked before. Of those employed in the private sector with a fixed-term contract, more than three quarters obtained a follow-up job in the same company, and almost 45% were even taken on in a permanent position immediately following the fixed-term employment. These opportunities offered by the law on fixed-term contracts for jobseekers must not be destroyed.

The amendment of the German Personnel Leasing Act (AÜG) brought about major changes in the law on personnel leasing as of 1 April 2017 Section 1 (1b) AUG introduced a statutory employee-related maximum leasing period of 18 months, from which a deviation can be made by collective agreements in the industry of deployment. According to Section 8 (4) sentence 2 no. 1 AUG, a longer deviation from equal pay than nine months is permissible if, after 15 months at the latest from the date of assignment to an assignment company, at least a wage is achieved which is defined in the collective agreement as equivalent to the collectively agreed wage of comparable employees in the assignment industry. Part-time work creates good opportunities to organise a return to work, especially for people who are looking for a return to work after a longer break but who are not yet fully available to the labour market.

The special feature of German labour law is the totality of its collective components. The relationship between collective bargaining law on the one hand and the law of co-determination and works constitution on the other is unique in this form in Europe and possibly worldwide. No country in the world has such far-reaching co-determination and participation rights for employees, and no other partner state of the European Union has so far set out to copy German co-determination law. Co-determination in companies and enterprises can stabilise and secure employment. To achieve this, however, it must be integrated into European company and co-determination law. Moreover, co-determination must not be allowed to hinder necessary restructuring in companies by imposing excessively long deadlines.

Freedom of association and autonomy in collective bargaining are part of the success story of the German labour market. Collective bargaining law is one of the indispensable components of our economic order. Its most important task is to bring order and peace to industrial relations. This order and peace is the basis for the acceptance of the German collective bargaining system, which is essentially characterised by the institution of regional collective agreements. In recent years, collective agreements have been modernised and further developed in many sectors through a variety of opening clauses. They provide a reliable basis for the parties to collective agreements and, through opening clauses, for the company partners. This reliable basis must be maintained. An essential prerequisite for this was secured with the legal restoration of the collective bargaining unit in the Collective Bargaining Act. This has made a significant contribution to strengthening the functioning of the autonomy of collective bargaining. Following the Federal Constitutional Court's approval of the principle of collective bargaining unity, the government and the legislature are now called upon to implement the necessary concrete measures. The concretisations which the Federal Constitutional Court considers necessary do not change the character of the collective bargaining unit as a stabilising element of industrial relations. Respect for the Federal Constitutional Court alone demands that the necessary clarifications be implemented promptly.

The BDA stands for a high level of collective bargaining coverage. Like collective bargaining autonomy, collective bargaining coverage is always an expression of freedom of association. This includes the possibility to opt for a collective agreement as well as the possibility to opt out of the collective agreement. A high level of collective bargaining coverage is achieved - as shown by the sectors with a high level of collective bargaining coverage - not through legal compulsion to apply collective agreements, but through the free decision in favour of collective bargaining coverage on the basis of attractive and manageable collective agreements.

The right to industrial action in Germany also requires a legal basis. This has not existed to date. This is unacceptable, especially in the light of the development of the case law of the Federal Labour Court in recent decades. Industrial action must be reduced to its basic functions. Above all, clear guidelines must be established, according to which industrial action must always be strictly tariff-related, may only be the last resort in the dispute and political and wildcat strikes are excluded. This also applies to so-called flash mobs, which are not a means of industrial action but a political issue.