3.1 Are employees protected from discrimination? If so, on what grounds is discrimination prohibited? Training contracts which are primarily aimed at training young people for a profession are not considered to be employment contracts. They are regulated by the Vocational Training Act, which provides, however, in paragraph 3(2) that the rules and principles of the employment contract shall be applied, unless the law expressly provides for an exception or the application of labour law is incompatible with the nature and purpose of vocational training. The complaint must be lodged with the Labour Court within three weeks of receipt of the written notice of dismissal (including extraordinary dismissal). If the employee fails to do so, his objection that the dismissal would be ineffective is excluded, i.e. the dismissal is valid from the outset. 8.1 How do employees` data protection rights affect the employment relationship? Can an employer freely transfer employee data to other countries? 8.3 Are employers allowed to conduct recruitment checks on potential employees (e.g. criminal record checks)? In the event of temporary redundancy (e.g. missing orders or bad weather), mutual contractual obligations are not completely abolished, but collective agreements or company agreements may provide for short-time working with corresponding wage reductions. However, such a measure cannot be ordered unilaterally by the employer. 6.7 What claims can an employee assert in the event of dismissal? What are the remedies for a successful trial? 6.4 Are there categories of employees with special protection against dismissal? A merger within the meaning of the Basic Law is a voluntary permanent association which cannot be limited to a single company. In addition, each association must consider itself a representative of workers or employers and work specifically towards the conclusion of collective agreements. Homework: Homeworkers enjoy more or less the same rights as other workers as those provided for in the Duties Act of 14 March 1951, as last amended on 16 December 1997.
For example, homeworkers are mainly represented by homework committees, composed of three members each representing employers and homeworkers and a chairperson appointed by the competent labour authority. A duties committee supports the conclusion of collective agreements. If there is no trade union in certain areas of activity, the Homework Committee sets minimum standards for remuneration and working conditions (§ 19). Collective agreements may be concluded between unions on the employee side and employers` associations or, rarely, employers on the employers` side. In order to extend the scope of collective agreements to employers and non-unionised workers, German law empowers the State Secretary for Employment to declare such agreements universally applicable (“declaration of general application”). Part-time employees who want to work full-time should be given preference in the case of a full-time vacancy. Employers are also required to inform employees who wish to change their working hours and the works council of full-time or part-time vacancies in the company and of opportunities to participate in continuing training measures. Each collective agreement is a contract consisting of two parts (§ 1 para.
1). The first part of contract law deals with the rights and obligations of the contracting parties. The two main obligations of the partners are industrial peace and the duty to use all available means to ensure that their members comply with the agreement. An arbitration agreement (explained under Strike and lockout) can also be added. The second part of the collective agreement regulates the employment contract, matters relating to the enterprise and the formation of enterprises within the meaning of the Law on the Formation of Enterprises. This distinction is important for the duration of the collective agreement. Generally, a collective agreement ends at the end of the period for which the contract was concluded. It may be terminated prematurely by the legal initiative of either party or by mutual agreement. In any case, the contractual part necessarily ends at the same time. On the other hand, the rules defining the parties remain in force until they are replaced either by an individual contractual agreement or by a company agreement or, in particular, by legal provisions of a new collective agreement (Article 4(5)). The works council has both participation and co-determination rights. The right to participate includes the right to be informed and to make recommendations.
The right of codetermination is much more practical because it involves the possibility of blocking the decision of an employer, which depends on the approval of the works council. It covers topics such as work rules, working hours including overtime and holiday schedules, methods of remuneration, the introduction and use of technical equipment to monitor employee behaviour and performance, accident prevention and health protection, social benefits and the provision and removal of company-owned housing. However, wages can never be set at company level (Articles 87(1) and 77(3)). Contribution by Liliane Jung. Last updated, April 2001. Works councils enjoy extensive rights of information, consultation and co-determination, which are regulated by the Enterprise Formation Act. A distinction must be made between co-determination rights and codetermination rights. While participation means informing and consulting works councils, codetermination refers to the right of workers to have a say in company decisions. While most of the rights in the Constitution Business Act relate to information and consultation, there are the following areas of co-determination: The employment of children is prohibited by the Youth Protection Act.
This applies not only to children under 15 years of age, but also to those who are older and who are still required to attend full-time education (§§ 5, paras. 1 and 2, paragraphs 1 and 3). In very exceptional cases, the above-mentioned children may be used, e.g. for occupational therapy purposes (§ 5 abs.2). However, the work must be adapted to the child. Each employment of children is monitored by the labour inspectorate of the federal State concerned. Jurisdiction over labour law, which also includes trade union disputes, is governed by the Labour Courts Act. There are three instances, namely the local labour courts, the regional labour courts and the Federal Labour Court in the last instance. Each local labour court consists of a professional judge who is president and two unpaid honorary judges with corresponding legal powers. Each of them is appointed from among employers and employees. In comparison, regional labour courts have a few chambers, each of which is composed in the same way as a local labour court.
Part-time workers must be treated as full-time employees, unless there are legally justified reasons for unequal treatment (paragraphs 5 and 4, paragraph 1). Since part-time work is mainly carried out by women, the difference in treatment between part-time and full-time workers often leads to indirect discrimination on grounds of sex. In 1998, 32.4% of all German women worked part-time, compared with only 4.6% of men (OECD Employment Outlook 1999).
