secondment

In Germany, delegation is a concept of service law and labor law in the public service . For civil servants and judges , secondment is the temporary, full or partial transfer of an activity to another agency of the same or another employer while retaining the affiliation to the previous agency ( Section 27 (1) BBG ; Section 14 (1) BeamtStG ). For employees in the public service (collective bargaining employees ), a secondment is defined as the assignment of temporary employment for official or operational reasons to another agency or another company of the same or another employer while continuing the existing employment relationship (Section 4 (1) TVöD and TV- L ). In the case of soldiers , commanding is the analogous legal institution to seconding. The transfer of civil servants from the federal states and municipalities without a change of employer is regulated in the respective state civil servant laws (e.g. § 24 LBG NRW ).

Requirements and form

The delegation must be in writing and is issued by the employer. In the secondment, the time frame, the activity at the receiving authority and the place of work or duty must be specified. The job description usually remains abstract, e.g. B. "To service".

Business reasons

The secondment is only permitted for official reasons :

for employees in the public service (also for operational reasons),
in the case of federal civil servants for an activity that does not correspond to the previous office , if the performance of the new activity is reasonable due to the previous education or professional training, also for an activity that does not correspond to an office with the same final basic salary,
in the case of civil servants of the federal states, municipalities and associations of municipalities as well as other bodies , institutions and foundations under public law ( Section 1 BeamtStG ) subject to the supervision of a state in the area of an employer from another state or the federal government

Within the area of an employer, the secondment is also fundamentally for reasons other than work-related, e.g. B. personal reasons permitted.

Secondment with the aim of transfer

A special case is the secondment with the aim of transferring civil servants . This enables the receiving authority to gain an impression of the suitability , qualifications and professional performance of an applicant for a transfer. As a rule, this delegation leads to a permanent transfer.

Consent requirements

In the case of civil servants, a secondment for official reasons is possible in whole or in part to an activity that does not correspond to the previous office if the performance of the new activity is reasonable due to the previous education or professional training. Secondment to an activity that does not correspond to an office with the same final basic salary is also permitted ( Section 27 (2) BBG; Section 14 (2)). In this case, or if it is sent to another employer, the secondment requires the approval of the official. The secondment to another employer is permitted without consent if the activity corresponds to an office with the same final basic salary and another career and does not last longer than five years ( Section 27 (3) BBG; Section 14 (3)).

The staff council has a say in personnel matters of civil servants and employees who are seconded for a period of more than three months ( Section 75, Paragraph 1, No. 4; Section 76, Paragraph 1, No. 5 of the BPersVG ; corresponding legal norm of the state employee representation laws ). If employees are to be transferred to an office or a company outside their previous place of work or are expected to be seconded for more than three months, they must be heard beforehand (Section 4 (1) sentence 2 TVöD and TV-L).

A judge for life or a judge for a certain period of time may only be seconded with his consent ( Section 37 (1) DRiG). To represent a judge, they may be seconded to other courts of the same branch of jurisdiction for a maximum of three months within a financial year without their consent ( Section 37 (3) DRiG).

Legal consequences

If civil servants are seconded to another employer, the provisions on the duties and rights of civil servants applicable to the host employer's area are to be applied accordingly, with the exception of the regulations on the oath of service, official title, payment of salaries, health care benefits and care ( Section 27 (5) BBG; Section 14 (4) BeamtStG).

Effects on managerial function

In the case of civil servants, if there are sufficient factual indications that justify the suspicion of an official offense, the obligation to initiate disciplinary proceedings with regard to the official offenses committed during the secondment is generally transferred to the new supervisor ( Section 17 (3) sentence 2 BDG ) . Otherwise, the superior remains responsible for the original superior. The superior of the service to whom the delegation was delegated may issue official orders to the delegated official ( Section 3 (3) BBG). The official is obliged to carry out these and to follow the general guidelines of the superior. You have to advise and support him ( § 62 Abs. 1 BBG).

Demarcation

In contrast to secondment, a transfer is the permanent transfer of another office or activity to another agency with the same or a different employer or employer ( Section 28 BBG).

The assignment corresponds to the secondment to a public institution without employer capacity or to another institution ( § 29 BBG).

One implementation is the transfer of a different office in the specific functional sense within the same department.

A business trip is a trip to carry out official business outside of the place of work ( Section 3 BRKG ). In contrast to the secondment, the business trip serves to carry out specific activities. If a business trip takes place in a different department, the business trip will not result in any new or different managerial relationships.

literature

Maximilian Baßlsperger: The delegation of the official . In: Journal for Civil Service Law . tape 64 , no. 1/2 , 2016, p. 14-26 .

Web links

Answer of the federal government to the minor question of the MPs Christine Scheel and the parliamentary group BÜNDNIS 90 / DIE GRÜNEN - Drucksache 13/2989 - Subsidy fraud in the transport sector. Printed matter 13/3558. In: https://dipbt.bundestag.de/ . German Bundestag, 13th electoral term, January 23, 1996, accessed on October 1, 2019 : “In the Federal Employees' Collective Agreement - as well as in civil service law - there are the instruments of transfer and secondment; however, there is no definition of the terms. Despite the terminology based on civil service law, the legal nature of the employment relationship and the case law of the labor courts on transfer and secondment must be observed. Thereafter, a transfer is only permitted to another agency of the same employer. A secondment to a department of another employer is possible; However, longer-term secondments meet legal concerns because the content of the employment relationship changes. "

Notes and individual references

↑ Defined in § 4 Para. 1 TV-H as follows: "Secondment is the temporary employment initiated by the employer at another agency or another company of the same or another employer while continuing the existing employment relationship."
↑ Guidelines on transfer, change of post and commanding soldiers from March 3, 1988 (VMBl p. 76) - P II 1 - Az 16-26-04 / 4 - last amended by decree of June 9, 2009 (VMBl . P. 86). beck-online, June 9, 2009, accessed December 9, 2018 .
↑ Fritjof Wagner, Sabine Leppek: Civil Service Law . 10th, completely revised edition. CF Müller, Heidelberg a. a. 2009, ISBN 978-3-8114-9614-9 , pp. 96 ( online ).

[1] Defined in § 4 Para. 1 TV-H as follows: "Secondment is the temporary employment initiated by the employer at another agency or another company of the same or another employer while continuing the existing employment relationship."

[2] Guidelines on transfer, change of post and commanding soldiers from March 3, 1988 (VMBl p. 76) - P II 1 - Az 16-26-04 / 4 - last amended by decree of June 9, 2009 (VMBl . P. 86). beck-online, June 9, 2009, accessed December 9, 2018 .

[3] Fritjof Wagner, Sabine Leppek: Civil Service Law . 10th, completely revised edition. CF Müller, Heidelberg a. a. 2009, ISBN 978-3-8114-9614-9 , pp. 96 ( online ).