Workers in Austria also wage earners or employees , in Switzerland Employees are individuals who in the course of employment due to a labor contract obligation , their labor power bound by instructions pay their employers to provide.
An employee is someone who is essentially personally dependent and who is subject to instructions with regard to working hours , place of work or work content . There are employees where there are employers. Employees and employers are therefore complementary terms with which the employment relationship and the employment contract only work. Workers are people who a work activity perceive, while the arrangements are dependent on an employer. Employees make their labor available for the purpose of performing work and receive remuneration from the employer for this in return .
Until the second half of the 18th century, employees in German-speaking countries were referred to as servants, servants, servants, etc. Their clients and masters were the lordship, householder, employer, servant or servant. There were a number of different legal relationships. The redesign and standardization of service law required new, comprehensive terms. The term “service contract” has now been introduced in connection with employment relationships. In the German-speaking part of the Austro-Hungarian Empire, the contracting parties were first referred to as "employers" and "employees" around 1800. Serving the master was a grace granted to the subordinate - the master gave the service, the subordinate accepted the service. With the emergence of a capitalist industrial society , the terms changed and were also used to describe the wage employment relationship. They found their way into legal sources and ordinances in German-speaking countries in the middle of the 19th century in the form of the corresponding pair of words employer and employee . According to the German dictionary of the Brothers Grimm from 1854, an employee is whoever accepts the work assigned to him in relation to the employer.
The main contractual obligation of the employee is to make working hours and manpower available to the employer. However, he does not owe the employer any success, but merely action, because the employment contract is a service contract and not a work contract . The employer owes the employee the remuneration for this, even if the expected quality of work or the expected volume of work does not occur or if the employer does not have sufficient employment ( underemployment ) for the employee. Unlike the entrepreneur 's wages, wages are paid independently of the entrepreneur's success. If the employer makes losses , the wages must be paid regardless. In return, the employee bears the job risk - except in the case of non - dismissal - with the risk of losing his job due to dismissal or the insolvency of the employer. The higher the job risk, the higher the wages and vice versa. The employee also bears the suffering of work .
Through the employment contract, the employee is obliged to perform instructions-bound, externally determined work in the service of another in personal dependence. Those who are not essentially free to organize their activities and determine their working hours are bound by instructions. The degree of personal dependency also depends on the nature of the respective activity. To determine whether there is an employment contract, an overall view of all circumstances must be made. If the actual implementation of the contractual relationship shows that it is an employment relationship, the designation in the contract is irrelevant.
An employment contract is characterized by the personal dependency of the employee on the employer as well as being bound by instructions. He has to adhere to specified working hours, he performs work at a certain place of work and is involved in work organization . The contract for the service contract can generally be concluded informally, whereas the employment contract must be handed over to the employee in writing no later than one month after the agreed start of the contract .
The term “employee” in EC Treaty is decisive . Employees within the meaning of the case law of the European Court of Justice are every dependent employee who carries out an activity that is bound by instructions and receives remuneration for this that cannot be described as completely insignificant. It is not necessary that the employee can use it to deny his existence. It may be enough if z. B. Accommodation and meals can be given to an intern .(1) of the
Since April 2017, employment contract in the service of another to perform instructions-bound , externally determined work in personal dependence. This is indicated by the fact that someone is not essentially free to organize their activities and determine their working hours.Paragraph 1 of the German Civil Code (BGB) has defined that the employee is obliged by the
No employees are:
- Children and adolescents who still go to school, not even with child labor ;
- Unemployed ;
- Self-employed ( tradespeople and freelancers );
- Civil servants , judges , soldiers (public service );
- Retirees ;
- Prisoners , not even when working in prisoners according to Abs. 1 StVollzG ;
- Association members (act in the interest of promoting the association's purpose);
- Shareholder , managing director (controversial legal question );
- Employed for charitable or religious purposes (e.g. monks , Red Cross sisters );
- spiritual officials and church officials (not private law, but labor law of the churches ).
Although they are not employees, employee-like persons are treated on an equal footing with employees on some issues. Self-employed persons who are economically dependent (usually on a client) and in need of comparable protection to an employee are deemed to be employees ( TVG ). The regulations of the TVG apply to them and the labor courts are exclusively responsible for disputes between them and their employers ( ArbGG ). They are usually subject to compulsory pension insurance .
Employees within the meaning of the Works Constitution Act (WCA) are workers and employees , officials , soldiers and employees of the public service , including their vocational training workers regardless of whether they are in operation , in the field or telecommuting / home working are employed ( WCA) . Employees within the meaning of (1) ArbGG are workers and employees as well as those employed for their vocational training. Employees are also those who work from home and their equals, as well as other persons who are to be regarded as similar to employees due to their economic dependency . Personal dependency requires subordination to the employer's right to give instructions with regard to time, duration, place and type of work. However, the right to issue instructions can be considerably restricted. In the case of services of a higher kind, for example with a chief physician employed in the hospital , it is sufficient to integrate the service into a company structure specified by another party. A similar legal definition is contained in the tax law (Germany) Income Tax Implementation Ordinance (LStDV).
The activity of the board of directors or managing directors does not fall under the general definition of an employee's employment contract, but is to be viewed as a service contract within the meaning of BGB . The status of the executive board / managing director is determined by the two functions that he performs. On the one hand, as an organ of the company , he is an employee; on the other hand, he has the highest position of all employees internally and exercises the right of direction as an employer .
Management board members of a stock corporation are generally not employees within the meaning of (1) SGB IV . The Board is authorized to manage and the committed organ and assumes business management on own responsibility true. When making decisions about goals and guidelines of the company and regarding questions of business policy, he acts independently and, in particular, independent of instructions. The Supervisory Board monitors and controls the management in accordance with AktG , without being authorized to manage the company itself (Section 111, Paragraph 4, Clause 1 of the AktG). At the general meeting, the shareholders only decide on management measures if requested by the management board ( (2) AktG). The management is the responsibility of the board of directors, the supervision of the management is the responsibility of the supervisory board, fundamental decisions are the responsibility of the general meeting.
Obligations of the employee
The main duty of the employee is to do the agreed work ( duty to work ). In accordance with German Civil Code, the employee is obliged to make advance payments ; the principle “first the work, then the wages” applies. Ancillary duties of the employee include the duty of loyalty , confidentiality , careful handling of materials and tools, non-competition , non- solicitation , mutual consideration and protection obligations .
The main right of the employee is to receive the agreed remuneration. If the employer makes use of the employee's working time, he shares responsibility for how effectively it is used by the employee. Further rights of the employee: The employer's duty of loyalty and confidentiality, materials and tools that comply with the applicable provisions relating to safety for life and limb ( employer's duty of care ). In addition, he has the right to a work reference after leaving the company. Furthermore, the employee still has rights that do not result from the employment contract: freedom of association (the right to join a trade union and to be unionized and to strike in the company, rights from the works constitution and right of co-determination (e.g. active and passive voting rights when electing a works council )). Right to rest leave according to the Federal Holiday Act , right to work breaks according to the Working Hours Act , right to continued payment in the event of illness according to the Continued Remuneration Act .
In Germany and all democratic states, employees have the limited right to freely choose their profession and work place ( freedom of occupation according to Basic Law ), freedom of association and limited right to strike ( Paragraph 3 of the Basic Law) and can form trade unions . These rights are restricted, for example, by compulsory military service (restricted occupational freedom) and the ban on general strikes .
A special group, the assignment of which has triggered a lot of discussion, are the executives , who perform management functions in the company below the level of the entrepreneur . Special rules apply to them in terms of protection against dismissal , and they are not subject to the Works Constitution Act , although the definition of the term “managerial staff” is different in these two areas of law ( KSchG on the one hand and BetrVG on the other). Representing the interests of managerial staff for the Speaker's Committee . Its participation rights are regulated in the Speaker Committee Act.
Temporary workers and marginally employed
So-called. Temporary workers , marginal employees and working students (see also: student jobs , mini- jobs ) are also regular employees with the same rights and obligations. The differentiation is only necessary because of special regulations with regard to taxes and social security contributions. There are no differences to other employees in terms of employee law. So are both the dismissal and about continued pay in case of illness , for maternity or the statutory holiday and these workers to unrestricted. Differentiations that used to be common have long since been eliminated as a violation of the principle of equal treatment.
The state's labor market policy and HR specialists often address “older workers”. The term is neither legally nor scientifically defined; it is usually used to describe employees over the age of 44, and occasionally from the age of 40. The hiring practice in the sectors fluctuates depending on the requirement profile and the number of staff. In some fields it can be difficult to find a suitable job much earlier, or particularly often from the age of 35.
No employees are civil servants . Your working conditions are laid down in civil service law, which - for historical reasons - is not part of labor law, but rather administrative law . However, it should be noted that civil servants in the sense of Union law can be employees.
Under civil law, employees are vicarious agents of the employer in accordance with German Civil Code . In doing so, they work with the knowledge and will of their employer, who must accept all actions and omissions of his employees against him. If the employee violates his obligations towards third parties (such as customers or suppliers ) and is at fault in doing so , the employer must be responsible for this violation of obligations . This also applies in accordance with German Commercial Code (HGB) for employees in a shop or in an open warehouse who are authorized to sell and receive. Workers are no agents for temporary workers , temporary work or temporary work .
In Austria , too , the employee (“employee”) has to perform the services in person; the entitlement to the services is not transferable ( ABGB). The continued payment of wages for six weeks with illness or accident at work is in Civil Code regulated. The employer's duty of care (“employer”) for the life and health of the employee results from ABGB, the entitlement of the employee to a job reference from ABGB.
In Swiss labor law , Paragraph 1 of the Swiss Code of Obligations stipulates that the employee is obliged to perform work in the employer's service for a definite or indefinite period, and that the employer is obliged to pay a wage based on periods of time ( time wages ) or according to the time worked Work ( piecework wages ) is measured. The employee has to perform the contractually accepted work in person ( OR), to carry out the work assigned to him carefully and to safeguard the legitimate interests of the employer in good faith ( OR). He has machines , tools , technical facilities and equipment as well as vehicles of the employer properly to use and to treat this as well as materials that are provided to him to perform the work available, carefully.
The rights of workers in the United States ( English employees ) are OSH severely limited compared to European standards. This applies above all to protection against dismissal , which is not regulated by law. Because of the employment contract ( English contract employment ), the employer ( english e mployer ) have the right to dismiss workers at all times ( English hire and fire (), this groundless dismissal English at termination will ) allows for a permanent employment relationship at all times dismissal without notice of termination reasons. The usual notice period is two weeks. The principle of “hire and fire” is only limited in the case of companies with union membership , executives and skilled workers due to their qualifications . Collective agreements only allow termination for a special reason ( English just cause ). There are also restrictions in the case of mass layoffs due to the Worker Adjustment and Retraining Notification Act (1989), according to which companies with more than 100 full-time employees must give a notice period of 2 months in the event of closings or mass layoffs . On the basis of common law , courts increasingly recognize that the employment relationship as a continuing obligation should not be terminated without cause.
Demographic Development in Western Europe
The female participation rates, which have risen for years, and the demographic development will increase the employment rate of older people in the coming years if the need for work in the respective country does not decrease significantly. Germany currently has an “inverse” age structure in the labor market : the population group of 60 to 65 year olds is larger than the group of 50 to 59 year olds. Since the labor force participation of 60 to 64 year olds is generally lower than that of 50 to 59 year olds, this has a negative effect on the labor force participation of older people in Germany. 51-year-olds and older people who become unemployed have lower chances of being re-employed if a human resources department ensures that the workforce has a balanced “age mix”. This demographic peculiarity in the Federal Republic of Germany will lose its significance for the employment situation of older people in the next few years - the baby boomers up to 1943 will then be pensioners.
The population statistics are already predicting how many young people and older people could be available on the labor market in 10-15 years. However, other factors make predictions difficult. However, this is initially irrelevant, as it could not have any consequences on the individual level - except for the tried and tested: training and further education .
Criticism of the term
In modern macroeconomics , workers provide the “work” factor that companies demand.
“It could not occur to me to introduce into 'capital' the common jargon in which German economists use to express themselves, that gibberish in which z. B. the one who lets others do their work for cash payment, who is called the employer , and the employee the one whose work is taken from him for wages. In French, too, travail is used in ordinary life in the sense of 'occupation'. But the French would rightly consider the economist crazy who wanted to call the capitalist French donneur de travail and the worker French receveur de travail . "
In this sense, the term “employee” appears to be misleading, since the worker who is referred to as an employee does not receive work, but wages in return for making their labor available to the contractual partner. In this respect, the term “employer” would be more appropriate for an employee.
The term “workers” obscures the fact that we are dealing with people who (have to) sell their labor to secure their livelihood, because they have no means of production themselves . The term also obscures the fact that this is a socially conditioned dependence that has historically resulted from the progressive process of the division of labor and that the workers make this society possible in the first place.
Furthermore, the linguistic relationship between employer and employee suggests that the employer gives something, the employee takes something. In this respect, the term employer has a patronizing connotation , the term employee an exploitative connotation . However, this linguistic relationship reflects the state that the labor market sometimes has, namely that a large supply of labor meets a considerably smaller demand . Against this background, it is sometimes felt to be advantageous to have demand for one's own work , i.e. to be allowed to be an employee.
In the national accounts , employees were referred to as "dependent employees" until the introduction of the European System of National Accounts in 1995 ( ESA ) in 1999. In economics , the “employees” are providers of the production factor labor , the “employers” are those who demand the production factor labor.
- Working class
- Employee data protection
- Posted Workers Act
- Employee invention
- Employee savings allowance
- Temporary employment
- Employment Type
- Basic concepts of labor law
- Hartz concept
- Domestic staff
- Roland Karassek: “Employees” and “Employers” - a conceptual historical search for traces . In: Work - Movement - History . Volume II, 2017, pp. 106–127.
- Ralf Brinkmann: Job-related achievement motivation of older employees . Logos Berlin, Berlin 2009, ISBN 978-3-8325-2088-5 .
- Markus Sprenger: The labor law prohibition of age discrimination according to Directive 2000/78 / EC . Hartung-Gorre, 2006, ISBN 3-86628-103-X .
- Demographic change - (not) a problem! Tools for company personnel work . (PDF; 1.36 MB) Federal Ministry of Education and Research
- Rocco Jula: The GmbH managing director in labor and social security law. 2003, ISBN 3-923763-88-3 , p. 31. (books.google.de)
- Roland Karassek: "Employees" and "Employers" - a conceptual historical search for clues . In: Work - Movement - History . Issue II / 2017, pp. 106–127. (Arbeiterbewigung-jahrbuch.de)
- Brothers Grimm: German Dictionary. Volume I, 1854, Sp. 543. (books.google.de)
- Walter Brugger: Introduction to Business Law. 2016, ISBN 978-3-7412-4128-4 , p. 52. (books.google.de)
- BSGE 51, 164 , 167
- BSGE 38, 53 , 57
- Claus Niemann: Information asymmetries in company sales. 1995, p. 97. (books.google.de)
- Monika Anders: The Civil Code: §§ 611–620. Volume 2, 1997, § 611 Rn. 1086. (books.google.de)
- DM Kaiser: The implications of at-will versus just-cause employment. 2005, p. 33 f.
- Nikolaus Buch, Sven C. Oehme, Robert Punkenhofer: Company foundation in the USA. 2004, p. 108. (books.google.de)
- Claus Ott, Hans-Bernd Schäfer (Ed.): Economic analysis of labor law. 2001, p. 100. (books.google.de)
- Friedrich Engels : Foreword to the third edition of Das Kapital . In: Marx / Engels works. Volume 23, Berlin (GDR) 1968, p. 34.