A year ago, the German Ministry of Labour and Social Affairs started the dialog “Work 4.0” and raised the question whether it is necessary, in view of the current technological trends, social developments and changes in the labour market, to create a new working model or concept.
The term “Work 4.0” is linked to “Industry 4.0”, also known as the fourth industrial revolution. Whereas the third industrial revolution (Work 3.0) was characterized by the advancing globalization, it is the era of digitalization and the increasing importance of the Internet that labels “Work 4.0”.
Although it is still unclear how the future world will be organized, it is apparent now that, in many areas of work, temporal and spatial boundaries are “blurring”.
This brings advantages and disadvantages for all those involved. A disadvantage for employees is their permanent availability, even after office hours. However, a great advantage is the possibility of flexible work. Through flexible work, it is possible to incorporate family needs, to avoid rush-hour traffic and to self-determine work.
Employers benefit from this way of working: it is easier to have work done quickly, and travelling times can be used more effectively. On the other hand, the employer can supervise the employees only to a limited degree and has to place more trust in them.
The question that arises is, whether and how modern forms of work can be implemented in compliance with the existing laws and where German labour law is reaching its limits.
1. Flexible Working Hours
Employers are entitled to dictate their employees’ working times. Although flexible working is possible, the employer has to comply with the statutory requirements, such as the German Working Hours Act (Arbeitszeitgesetz):
Maximum Working Hours: eight hours on working days (§ 3 Working Hours Act) Can be extended to up to ten hours per working day, if an average of eight hours per working day is not exceeded within six calendar months or within 24 weeks. A possible solution for more flexible working would be a provision for maximum weekly working hours instead.
Rest Period: uninterrupted period of at least eleven hours at the end of the working day (§ 5 Working Hours Act) This provision implicates that interrupting work in the afternoon for family matters and resuming it in the evening would not be possible in practice. The rest periods required by law are intended for employment relationships that are organized in the traditional way, when an employee’s presence is required.
Work on Weekends and Public Holidays is protected by the Working Hours Act. Without an official permit, work is possible on these days only in exceptional cases (§ 10 Working Hours Act). These provisions are mandatory for employees, which limits flexible working. Under the Working Hours Act Saturdays are regarded as working days.
Flexible working time, for example on weekends, should be remunerated, except for work performed voluntarily.
2. Flexible Places of Work
Besides flexible working time, the working place can also be chosen, in theory. Now, the home-office topic is supplemented by the so-called “mobile office”, where work is also performed while travelling, etc. In general, the employer dictates where the work has to be performed, and there is no entitlement to work in a home or mobile office. A clear contractual agreement is therefore recommended.
Who is liable if the employer’s property is damaged? If it is damaged by the employee himself, the principles of limited employee liability apply. But what happens in case a family member damages the company’s property? A regulation by contract seems to make most sense, where the employee should be obligated to store the company’s property in such way that it cannot be damaged; otherwise he will be fully liable.
Concerning Data Privacy Protection, the employer is generally obligated to take the necessary measures to warrant data security, especially in the event of mobile work. But employees should also be bound by contract to protect personal data in the mobile office against loss and should take care not to disclose any business secrets during business calls in public.
The Occupational Health and Safety Act (Arbeitsschutzgesetz) provides that the employer must organize mobile work in such a way that a risk to the life or health of the worker is avoided to the greatest possible extent. Therefore, the company should have a contractual right of access to the employee’s domicile. Such a right can be granted only in individual cases and after prior agreement with the employee.
Is it useful to allow the employees to bring their own devices? One problem will be that the data will not always be readily available for the company if they are stored on a private end device. It should be ensured that business and private data are separated on these devices, especially with regard to the protection of business secrets.
In the context described above, the works council has codetermination rights primarily in three areas:
• Scheduling of the daily working hours and the breaks
• Temporary increase or decrease of usual working hours
• Introduction and application of technical installations intended to monitor the conduct or work of the employees
It can be noted that the works council has codetermination rights in respect of many areas of work concerning the mobile office. The extent to which flexible solutions can be agreed on in a company also depends on the relevant works council.
As a second topic, the German Federal Labour Court confirmed again in a current decision (Federal Labour Court of 24 September 2015-2 AZR 3/14), that notice of dismissal for operational reasons cannot be given if it is possible to give the affected employee another comparable vacant position in the company. The Second Senat considered the employee’s transfer to headquarters/a branch of the company abroad invalid, because in ordering this the employer overstepped the limits of its authority to issue instructions. An employer is not obligated to offer a job in a business or business unit located abroad. The employer’s obligation arising from the Protection Against Unfair Dismissal Act to continue to employ the employee in a vacant position in order to avoid termination does not apply to jobs abroad. Additionally, the Federal Labour Court pointed out that the employer did not act in a “self-contradictory manner” by primarily relying on the employee’s refusal to work abroad as instructed, but alternatively justifying the termination for convenience by stating that it was not necessary to employ him there.
Furthermore, CMS developed an overview that shows all thresholds in German Employment Law at a glance by clicking here.
It includes all current information as of December 2015. Besides a great overview of the key provisions, there are also overviews of the social security contributions, the assessment ceilings for social security contributions (per month), the number of works council members and the number of works council members that have been released from work duties.
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