Unraveling Germany's labor laws
We’ve chosen a back-to-work topic for this month’s Red Tape: labor laws (Arbeitsrecht) in Germany. Specifically, labor laws that may affect foreign nationals working in Germany.
Let’s begin with the job application and interview: if you are interviewing for a job in a German company, you should know a little about the sort of questions you may and may not be asked. For example, employers are not permitted to ask whether you are a member of a trade union (Gewerkschaftsmitglied), whether you are thinking of starting a family, about your religious beliefs (Konfession) or whether you are a member of a political party. And, if such a question is asked, you are not obliged to give a truthful answer. Conversely, as a potential employee, you are required to be truthful about your past work experience (Arbeitserfahrung) and qualifications (Qualifikationen). Should an employer be able to prove that you lied about this, these would be considered reasonable grounds for dismissal (Kündigung).
Starting a new job in Germany often requires you to go through a six-month probation period (Probezeit), during which time your employment can be terminated at short notice and without any reason being given. This would be agreed upon, however, before the employment commences. One recent change in German employment law may also affect new employees. A fixed-term contract (befristeter Arbeitsvertrag) used to be confined to areas where the fixed-term nature of employment was objectively justifiable. Now a new employee may be offered a fixed-term contract for up to two years without that special justification.
If you’re working for a German company for the first time, you will need to acquaint yourself with the structure and functions of a company works council (Betriebsrat), a body that is often, wrongly, confused with a trade union (Gewerkschaft). A works council is made up of elected members of the workforce and represents the interests of all employees. It does not, however, play a role in negotiating salaries. Though there is no legal obligation for a company to have a works council, one can be set up by staff in any company that has five or more eligible employees.
The council’s powers are not inconsiderable. If, for example, it is not properly consulted on the termination of a person’s employment, that termination will not be legally effective. If you are taking on a position in a German company, seek out your works council representative and find out when and where their weekly consulting hour (Sprechstunde) takes place. Integration of foreign employees is a particular responsibility of a works council.
One instance in which a works council will not, at least initially, be involved, is if an employer issues a written warning (Abmahnung) to a member of the workforce. This procedure is initiated against an employee either whose work is not up to scratch or who has behaved inappropriately. However, if an employee considers the warning unjustified, that person can apply to the employment tribunal (Arbeitsgericht) to have the warning removed from his or her file (Personalakte). Here the works council will be able to advise an employee on how to proceed.
Next month, in the second part of our feature on German labor laws, we will be looking at how to change existing contracts of employment and giving you more information about employment termination.
Finally, our special thanks go to solicitor David Hole, Fachanwalt für Arbeitsrecht, without whose help this article would not have been possible. For more information on German labor laws visit his Website www.germanlaw.co.uk.
