Contract for work and services (Germany)

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A contract for work and services is a type of contract under private law for the mutual exchange of services , in which one part (entrepreneur) undertakes to produce a work against payment of remuneration (wages) by the other part of the contract (customer) . The success owed is typical of the contract. In Germany, contracts for work and services are regulated in accordance with § 631 ff. BGB .

In the political discussion, the term contract for work and services is primarily addressed as a problem for bogus contracts that are used instead of temporary work or employment contracts in companies.

Historical development

Work contracts according to the regulations of the German Civil Code

The historical forerunners of the work contract can be traced back to Roman law . There it was included in the consensual contract, a form of contract that did not depend on the transfer of furniture. More specifically, he belonged to the contract type of locatio conductio , under which binding transactions such as the rental and lease contract or business from employment relationships were subsumed. In its appearance as locatio conductio operis it was according to today's understanding a work contract.

Since its entry into force on January 1, 1900, the contract for work and services regulated in Sections 631 ff. Has been an integral part of the Civil Code as one of the basic types of contract . For example, in the handicrafts but also in the cultural sector , contracts for work and services are predominantly an unproblematic form of contract because the contractors in these industries actually create external “works” that are not bound by instructions and for different clients and because they do not replace better-paid permanent staff with this activity . These self-employed bear the full entrepreneurial risk and have to pay for their work equipment as well as for their social security .

Legal meaning

The concept of work in a work contract

In the case of a contract for work, the contractor owes the contractor to produce a work ( Section 631 (1) BGB), i.e. to bring about a certain success of an actual nature and the contractor owes the contractor the agreed wages in return. In the case of a work contract, the production of a work is the contractually owed performance as a factual feature . Therefore, the effort to produce a work is not sufficient for the fulfillment of the contract, a concrete performance is required. It does not matter whether the work is a thing or an immaterial product of work (e.g. computer programs). The legal concept of work in this sense includes material and immaterial things , as well as the results of a work or service (cf. § 631 Paragraph 2 BGB).

The contract for work and services is to be distinguished in particular from the service contract and purchase contract . In contrast to a service contract, a service contract owes a certain success and not just an activity or duty of care. In a sales contract, the content of the contract is not the production, but the procurement of the item. The due date of the remuneration of the work contract occurs with the acceptance of the work ( § 640 , § 641 BGB). With this, the entrepreneur makes advance payments with the creation of the work , unless otherwise agreed. The production of movable objects is subject to sales law rules ( § 650 BGB). The contract for work and services that was previously relevant in these cases was abolished in the course of the modernization of the law of obligations .

Thus, by and large, the following contracts are still subject to contract law:

  • Manufacture of immovable objects (structures)
  • Manufacture of special machines and systems
  • Repair contracts
  • Production of non-physical works (e.g. software, blueprint, reports)

The service contract aims at a fixed result, in contrast to the service contract , which has regular performance as its content, and the sales contract , which is not based on a previously defined performance obligation. (see also order .)

The subject of typical contracts for work and services are construction work , repair work , manual activities (e.g. furniture production, installation, wallpapering, making a tailor-made suit), transport services (e.g. taxi rides ), the production of artistic works (e.g. pictures, sculptures) or the preparation of reports and plans .

Content

Special forms

Special forms of works contract are partly already provided for in the Civil Code ( travel contract ), in other laws ( freight contract (HGB)), or have in practice been established ( transport contract , construction contract , scheduling agreement ).

For individual types of contract, the classification as a service contract is only obtained by the measures in individual cases, provisions (. Eg management contract , this may also be a service contract).

The work delivery contract is a hybrid of a work contract and a sales contract .

In practice, a work contract with is copyright protected works with a copyright treaty coupled. It also regulates the client's right of use. A special feature is the transfer right to third parties (i.e. the right to further distribution) for which an appropriate share of the proceeds is agreed.

For work contracts similar to temporary employment, see #Fantastic contract

Wages

Work wages are a common term in business life for the consideration that is owed in the contract for the production of the work. Instead, the German Civil Code speaks of remuneration and regulates this in Section 632 BGB.

With regard to the amount of the remuneration, § 632 (2) BGB states : If the amount of the remuneration is not determined, the tax-based remuneration is to be regarded as agreed if there is an estimate, in the absence of an estimate the usual remuneration.

The amount of the remuneration can then be freely agreed in the contract, unless there are mandatory provisions in the statutory remuneration regulations ("Taxe") for certain work services, e.g. B. in the HOAI for object planning by architects and engineers, the VOB / B for construction work or for transport services in local public transport . If there is no specific agreement on the level of remuneration and a tax, the usual remuneration is deemed to have been agreed. “Customary” is a remuneration that, according to the general opinion of the parties involved, is usually granted at the place of the work at the time the contract is concluded.

Forms of remuneration

In the case of an agreed remuneration as well as the usual remuneration, the following options for determining the remuneration are essentially possible:

Remuneration according to unit prices

This type of remuneration calculation is often the usual one. A certain price per service unit (per piece, per running meter or per square meter) is agreed, for example in the case of an order to erect 8 m² plasterboard wall at a price of 25.40 € / m². An essential part of the contract is the definition of the unit prices, which the contractor calculates on the basis of the collective wage of his workers, the estimated time required per unit of work, the material costs , general business costs and a surcharge for risk and profit.

This means that the remuneration is independent of the duration of the service provision. It is easier for the client to estimate than the time required, does not have to be controlled in terms of timing and does not increase if the contractor works slowly or uses unskilled personnel. In the contract, a more or less precisely determined expenditure (the number of service units) is usually provisionally taken as a basis. The final remuneration then results from an exact measurement made after the service has been provided. This can ultimately result in a higher or lower work wage that deviates from the preliminary assumptions in the contract.

Remuneration based on time spent

The time required is determined and reimbursed here. In the contract, it is agreed which hourly rates are to be used, whether travel times to the place of use or for material procurement are remunerated and at what prices required material is billed.

Remuneration based on a flat rate

The service to be provided is specified in detail or only in general according to the service target to be achieved and a flat-rate price is agreed for this. If the effort for the specified service is higher than expected, the price therefore usually does not change.

Payment due date

According to § 641 BGB, the remuneration is to be paid upon acceptance of the work. The entrepreneur therefore has to pay ahead and receives his remuneration only after completion in accordance with the contract without significant defects and acceptance by the customer. In certain cases, however, according to the law ( § 632a BGB) or contractual agreements, there is a right to payment on account for parts of the service already provided.

Cost estimate

The remuneration for the work is regulated in § 632 . The cost estimate is not part of the work. If the customer is to bear the cost of the cost estimate, this must be agreed. The cost estimate is a preliminary calculation by the entrepreneur of the costs incurred for the work.

Guarantee

If the work is defective , the rights of the purchaser arise from § 634 BGB. In addition to the warranty in the purchase contract , the customer's self-performance is also expressly regulated ( § 634 No. 2, § 637 BGB).

termination

The free termination of a work contract is regulated in § 648 . The contract can be terminated by the customer until it is completed. In the event of termination, the entrepreneur is entitled to demand the agreed remuneration - however, minus what he saves by canceling the contract or acquires through other use of his labor. The entrepreneur must also allow possible savings that are neglected with bad intent to be deducted from the agreed remuneration.

In addition, there is the termination regulated in Section 648a for an important reason. An important reason exists if the contract partner cannot be expected to continue the contract until the work has been completed. A frequent case in practice is that it is already foreseeable for the customer that the work will be grossly inadequate and the entrepreneur is not prepared to remedy the situation. The entrepreneur is only entitled to demand the remuneration that applies to the part of the work performed up to the termination.

Sham contract

Contracts for work and services are also used to circumvent more expensive or more strictly regulated forms of contract such as an employment contract or temporary employment .

Historical development of bogus contracts

Work contracts as an instrument to circumvent the 1973 recruitment ban

After the recruitment stop in 1973 , work contracts were used to briefly post foreign workers to the FRG. By concluding a contract for work and services with a foreign contract partner, German companies were able to benefit from the gap between federal German collective wages and the lower wages that a foreign contractor paid the workers he hired. In this way, the German economy was given “temporary and flexible access to foreign labor potential”. Since neither the domestic tariffs nor the standards of German labor and social law applied to the foreign work contract workers, but those of their countries of origin, the establishment of this wage form resulted in the coexistence of different labor and social standards in one company. According to the then Federal Labor Office , contract workers from Yugoslavia, Poland and Hungary were deployed on the German labor market in the 1970s.

State efforts to “repatriate” foreign workers from 1981

With a view to the rise in mass unemployment and ostensibly to prevent “ xenophobia ”, the federal cabinet headed by Helmut Schmidt decided in November 1981 to reduce the number of foreigners working in the Federal Republic. In the course of the following restrictions in the “ foreigner policy ”, the number of contract workers from non- EC countries fell between 1981 and 1985 from 26,300 to 8,830. With the economic recovery, the corresponding number rose again to almost 14,500 by 1988.

Contracts for work and services with CEE countries from the end of the 1980s

From the end of the 1980s , the Federal Republic of Germany concluded a number of contracts for work and services with Central and Eastern European countries such as Yugoslavia , Hungary , Poland , Czechoslovakia , Romania , Bulgaria , Latvia , Bosnia-Herzegovina and Macedonia , but also with Turkey . The contingents of contract workers agreed in these agreements ensured, among other things, that the construction industry, which was booming as a result of reunification, was supplied with inexpensive labor. In the so-called " Aufbau Ost ", but also on the construction sites of Berlin formed by the conclusion of contracts for non-transparent and difficult to control subcontracting chains , which mainly served the purpose of general contractors and building owners the social security taxes to spare for the employed personnel.

Crisis in the construction industry and reduction in service contract quotas from the mid-1990s

When the boom in the construction industry came to an end in the mid-1990s , the rise in the unemployment rate in the construction sector also led to public problems relating to contracts for work and services. Illegal practices of temporary employment through bogus contracts, but also systematic violations of applicable collective bargaining standards through real contracts for work and services were the focus of criticism. The federal government then tightened the procedure for approving work contracts, but also the controls and sanctions.

Work contracts in the wake of labor market reforms and EU expansion to the east in 2004

The labor market reforms of the red-green federal government under Gerhard Schröder made the use of temporary workers the preferred instrument for reducing wage costs for a few years and let the award of work contracts, which had previously performed this function, take a back seat. The award of work contracts did not come to a standstill. The eastward expansion of the EU, which came into force on May 1, 2004, increased the scope of the freedom to provide services by ten acceding countries . This also gave industries outside of the construction sector the opportunity to take advantage of interstate differences in wage levels by awarding work contracts. Among other things, under pressure from the food-gourmet restaurant union, the use of low-paid Eastern European contract workers in German slaughterhouses was discussed more broadly. Apart from this, large and medium-sized companies are increasingly concluding work contracts through outsourcing in order to have the work in canteens, in building cleaning, in monitoring as well as in vehicle fleets, warehouses and call centers done by contractors working under the tariff.

Work contracts as a substitute for temporary work in the wake of the BAG decision 2010

On December 14, 2010, the Federal Labor Court declared all collective agreements negotiated by the collective bargaining community of Christian Unions for Temporary Work and Personnel Service Agencies (CGZP) since 2003 in the context of temporary employment to be invalid. With the decision published in May 2011, the court gave temporary workers the opportunity to sue for the same wages for the same work . After this court ruling, Siemens' interest shifted from using temporary workers back to concluding work contracts, for example in production and administration . This enables Siemens, for example, to bypass the works council in the case of co-determination rights. Since the end of 2011, this change in strategy has been accompanied by a broad political debate about the “abuse” of contracts for work and services. What is new about this development is that contracts for work and services are no longer just a matter of multiple disadvantaged groups of employees ( unskilled , women or migrants ), but are also finding their way into those core areas of industrial production that were long considered by the public to be relatively well-protected "high-wage sectors".

Positions

Position of entrepreneurs

Business associations such as the BDA , the Central Association of German Crafts and the German Trade Association saw no legal need for action in the practice of awarding contracts for work in 2012 . Rather, orders in the form of work contracts belong to the core area of ​​entrepreneurial freedom of choice and are thus protected by the property guarantee of the Basic Law . “Contracts for work and services secure jobs in the contractors and in the employers. There is therefore no reason whatsoever to discredit, question or change the law of the instrument of contracts for work and services. Such a restriction of work contracts can hinder the positive effects of industry-related services, which are an expression of the increasing division of labor and specialization not only in the manufacturing industry, and thus endanger employment opportunities. "

In 2017, the Chamber of Commerce and Industry for Munich and Upper Bavaria admonished its members in anticipation of changes in temporary employment and new regulations against the abuse of contracts for work on April 1, 2017, in their own interest to strictly ensure that the boundary between their core workforce and not is not obscured by the company itself, since the company would otherwise run the risk of being confronted with accusations of bogus self-employment or concealed temporary employment. Above all, this means that routine work should generally not be carried out by external parties.

Position of the unions

The DGB unions criticize the fact that work contracts are abused in many companies and industries for the purpose of reducing wage costs. The misuse of contracts for work and services would also have deepened the lines of division within the workforce. The two-class system of permanent staff and temporary workers has expanded to a multi-class system of permanent staff, temporary workers, contract workers and temporary workers from contract companies. To prevent the misuse of contracts for work and services, the DGB campaigned in 2012 for a clear legal differentiation between work contract work and temporary employment , for better co-determination , a strengthening of the financial control of illegal work and for a general statutory minimum wage .

Positions of the political parties in the Bundestag

Position of the CDU / CSU

In a Bundestag debate on June 28, 2012, speakers from the CDU / CSU parliamentary group warned the opposition parties not to dramatize the problems that may be associated with work contracts. Due to the clear legal regulation of work contracts and the functionality of the social partnership, the relatively small number of employees concerned is anything but defenseless. In its response to a small inquiry from the left-wing parliamentary group on July 28, 2011, the federal government denied that there was a need for legislative action to regulate contracts for work and services. In the 2013 primary campaign, however , the CDU and CSU changed their positions and spoke out in favor of specific measures to prevent the abuse of contracts for work and services. In the grand coalition with the SPD, the Union parties, together with the SPD, took up the fight against bogus contracts and covert temporary employment , so that on October 21, 2016, the Temporary Employment Act was amended with the votes of the parties supporting the federal government . The changes were confirmed by the Federal Council on November 25, 2016. They come into force on April 1, 2017. In November 2015, however, Chancellor Angela Merkel said at the employers' day that the Federal Labor Minister Andrea Nahles (SPD) had gone too far in terms of “combating the abuse of work contracts”.

Position of the SPD

In line with the trade union standpoint, the SPD, as the opposition party , spoke out in 2013 in favor of combating the abuse of work contracts. One must speak of abuse because contracts for work and services would undermine existing collective bargaining standards. Many companies use legal tricks to use temporary work under the guise of work contracts. The Temporary Employment Act should therefore define bogus contracts more precisely. In addition, the co-determination rights of works councils are to be extended when it comes to the use of external personnel in their company.

Position of the FDP

The FDP generally strongly opposes plans to “reform the reform”, i. H. of Agenda 2010 to tackle. “The planned law on temporary employment and work contracts is now another, unexpected low point, even for die-hard observers. In the shadow of the refugee crisis, a draft is presented that at the core mistrusts one of the roots of human prosperity: the division of labor. The law would have disastrous effects. Mainly because one has established an extremely problematic legal definition of the employment relationship. The entrepreneurial decision to do something yourself or to buy from specialized experts as a service thus becomes a gamble in terms of personnel policy. It seems doubtful, if not impossible, that an independent service provider will be able to operate the company canteen in the future or that external IT experts will be able to work effectively with their own IT department. That in itself is nonsense. In the age of digitization, which promotes and requires specialization and the division of labor equally, it is madness. "

Position of the party Die Linke

The parliamentary group of the party Die Linke considers the award of contracts for work and services to be a “strategic means of deregulation ”. This instrument would undermine collective bargaining agreements, divide workforces and undermine participation opportunities. The abuse of work contracts for the purpose of wage and social dumping must be countered by a consistent implementation of the principle of "equal pay for equal work", not least in the Temporary Employment Act .

Position of Alliance 90 / The Greens

Members of Bündnis 90 / Die Grünen complain that by awarding work contracts, companies have found a new means of increasing their profits at the expense of employees. The two-class society that already exists in the company in the form of the coexistence of permanent workforces and temporary workers would thereby be supplemented by a third class of contract workers. In order to put a stop to wage dumping, the Bundestag parliamentary group Bündnis 90 / Die Grünen called for the introduction of a general minimum wage , better financial resources for the financial control of undeclared work and, with it, an effective prevention of illegal forms of temporary work.

literature

  • Ulrich Sick: Contracts in the project and system business , Verlag Recht und Wirtschaft Heidelberg, 2nd edition (2004), ISBN 3-8005-1370-6

Web links

Individual evidence

  1. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 251 f.
  2. ↑ Hansjürgen Tuengerthal / Michael Rothenhöfer: A lance for the work contract, in: Betriebs-Berater 1–2 / 2013, p. 53.
  3. ↑ ver.di Federal Commission for the Self-Employed: Contracts for work and services - a clarification, o. O. 16./17. May 2013.
  4. ↑ Michael H. Meub: Introduction to the law on contracts for work and services, §§ 631 ff. BGB 2011
  5. ↑ jura-basic.de; Basic legal knowledge: work contract
  6. ↑ BGH, judgment of October 26, 2000 - VII ZR 239/98 NJW 2001, 151 = DB 2001, 432
  7. ↑ The right to payment on account expires, of course, if a final invoice has already been issued in the case of a terminated work contract (LG Cologne, judgment of June 15, 2012 - 32 O 48/12 -.)
  8. ↑ Info on the cost estimate
  9. ^ Michael H. Meub: Work contract law: Warranty, statute of limitations, guarantees 2011
  10. ↑ Uwe Reim / Stefan Sandbrink: The work contract agreement as a posting regulation for employees from the states of Central and Eastern Europe, Bremen 1996, p. 6.
  11. ↑ Uwe Reim / Stefan Sandbrink: The work contract agreement as a posting regulation for employees from the states of Central and Eastern Europe, Bremen 1996, p. 26.
  12. ^ Ulrich Herbert: History of the policy on foreigners in Germany. Seasonal workers, forced laborers, guest workers, refugees, Munich 2001, p. 247.
  13. ↑ Uwe Reim / Stefan Sandbrink: The work contract agreement as a posting regulation for employees from the states of Central and Eastern Europe, Bremen 1996, pp. 26-27.
  14. ^ Hans Böckler Foundation (ed.): Subcontractors and contracts for work. Documentation of a conference of IG Bau-Steine-Erden and the Hans-Böckler-Foundation on February 2, 1994 in Bonn, Düsseldorf 1994
  15. ^ Inge Lippert: Low wage strategies in the high wage sector. Opening of the labor market and employment of CEE workers in the metal and electrical industry, Düsseldorf 2006, p. 7.
  16. ↑ Wolfgang Däubler: Regulation options in connection with work contracts. An expertise commissioned by the parliamentary group Die Linke, Berlin 2011, pp. 3–4.
  17. ^ Wiesenhof: The fate of contract workers and temporary workers . NDR.de, April 12, 2016
  18. ↑ CGZP collective agreements for temporary work invalid: Information for employees on dgb.de, May 31, 2011
  19. ↑ Siemens nullifies temporary work agreement. by Gudrun Bayer on nordbayern.de , as of March 29, 2010
  20. ↑ Contracts for work and services - It can be even cheaper "The rules of temporary work have become stricter. Companies from trade and industry know how to bypass them." by Massimo Bognanni and Johannes Pennekamp on zeit.de , as of December 8, 2011
  21. ↑ Participation in the use of work contracts - works council and work contracts on dgb.de , as of October 7, 2013
  22. ↑ Position paper of the DGB Federal Executive Committee against the improper use of contracts for work and services ( PDF , 66 kB), as of December 30, 2013
  23. ↑ See Philipp Lorig: Work contracts - The new wage dumping strategy ?! Study on behalf of the Rosa Luxemburg Foundation, Berlin 2012, pp. 5–6.
  24. ^ BDA: Written statement on the public hearing of experts in Berlin on April 23, 2012. German Bundestag. Committee for Labor and Social Affairs, Committee printed matter 17 (11) 853, p. 4.
  25. ↑ IHK for Munich and Upper Bavaria: distinction between work contracts and temporary employment
  26. ↑ NGG: Few rights - little wages. How companies (from) use contracts for work and services, Hamburg 2012, pp. 9–11.
  27. ↑ IG Metall NRW (ed.): Dossier work contracts 2013, Darmstadt 2013, p. 6.
  28. ↑ DGB Labor Market Policy Department: Work contracts - stop abuse! Arbeitsmarkt aktuell 5/2012: pp. 8–10.
  29. ↑ Documents - Controversy about the Effect of Work Contracts bundestag.de, accessed on June 23, 2017.
  30. ↑ German Bundestag: Answer of the Federal Government to the minor question from the MPs Jutta Krellmann, Diana Golze, Matthias W. Birkwald, other MPs and the DIE LINKE parliamentary group, printed matter 17/6714 of August 1, 2011.
  31. ↑ Dorothea Siems, Flora Wisdorff: Fight against the trick with work contracts welt.de, February 3, 2013, accessed on June 23, 2017.
  32. ^ The Federal Government: Federal Council for New Regulations. More rights for temporary workers . November 25, 2016
  33. ↑ Frank Specht: Merkel slows down Labor Minister Nahles . Handelsblatt . November 24, 2015
  34. ^ SPD parliamentary group: Fight abuse of work contracts . German Bundestag. Printed matter 17/12378. 19th February 2013
  35. ↑ liberale.de .: Developing the world of work instead of petrifying it . December 22, 2015
  36. ↑ DIE LINKE parliamentary group: Preventing abuse of contracts for work and services - curbing wage dumping, German Bundestag printed matter 17/12378 of 29 September 2011, p. 1.
  37. ^ Parliamentary group Bündnis 90 / Die Grünen: delimit temporary work and work contracts - intensify controls. German Bundestag printed matter 17/7482 of October 26, 2011, p. 2.
  38. ^ Parliamentary group Bündnis 90 / Die Grünen: delimit temporary work and work contracts - intensify controls. German Bundestag printed matter 17/7482 of October 26, 2011, pp. 2–3.