Posted Workers Act

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Basic data
Title: Law on mandatory working conditions for cross-border posted workers and for workers who are regularly employed in Germany
Short title: Posted Workers Act
Abbreviation: AEntG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Employment Law
References : 810-20
Original version from: February 26, 1996
( BGBl. I p. 227 )
Entry into force on: March 1, 1996
Last revision from: April 20, 2009
( BGBl. I p. 799 )
Entry into force of the
new version on: 		April 24, 2009
Last change by: Art. 1 G of 10 July 2020
( Federal Law Gazette I p. 1657 )
Effective date of the
last change: 		July 30, 2020
(Art. 3 G of July 10, 2020)
GESTA : G033
Weblink: Text of the AEntG
Please note the note on the applicable legal version.

The Posted Workers Act (AEntG) is a law on the basis of which minimum standards for working conditions in certain industries can be set in Germany. The aim of the law is to stipulate mandatory working conditions for employees who are posted to Germany by employers based abroad for the cross-border provision of services , especially in the main and ancillary construction trades . In addition, the law also offers a legal option to enforce minimum working conditions for all employees working in Germany.

The mandatory working conditions must in an after § 5 Tarifvertragsgesetz (TVG) generally binding or by ordinance of the Federal Ministry of Labor and Social Affairs because of the AEntG to declared collective agreement have been fixed. For the care sector, generally binding minimum working conditions can also be laid down in a statutory ordinance if the working conditions are not regulated in a collective agreement but have been proposed by a commission pursuant to Section 12 AEntG.

The mandatory working conditions relate in particular to wages ( minimum wages ), vacation entitlement, occupational health and safety and conditions for the provision of workers.

Change of law

The AEntG was originally a purely protectionist law that was intended to protect German building contractors and construction workers (and the numerically marginal maritime assistants) from cheap foreign competition. According to the law, foreign construction companies had to (and must) pay their workers posted to Germany a remuneration according to the German (minimum wage) collective agreement for the construction industry, if this collective agreement was declared generally binding in Germany.

When the AEntG was created, the general binding force of a collective bargaining agreement could only be achieved under the conditions of § 5 TVG, according to which u. a. the umbrella organizations of the employers have to agree to the general application.

After the general binding declaration of the minimum wage collective agreement that the collective bargaining parties in the construction industry had concluded with regard to the AEntG failed due to resistance from the Federation of German Employers' Associations (BDA), the AEntG was expanded to include the possibility of making a collective agreement generally binding in a different way than after to constitute the TVG. On the basis of Section 1  (3a) AEntG 1996, which was added to the law in 1998 , the Federal Minister of Labor and Social Affairs was now also able to establish the general binding effect of a collective agreement by means of a statutory ordinance. This can also happen against the will of the top employers' organizations. In addition, it is not necessary that the employers bound by the collective agreement employ at least half of the employees working within the scope of the collective agreement. Finally, the Federal Council does not have to approve the statutory ordinance and thus the general binding effect of the collective agreement.

Initially, the scope of the AEntG was limited to the construction industry. In mid-2007 the building cleaning trade was added, which was also faced with increased competition from abroad.

On the politically interested side, however, it was quickly recognized that the new Section 1 (3a) AEntG 1996 opened up a legal possibility to enforce minimum working conditions, in particular a minimum wage in Germany, whereby protection against foreign competition only played a subordinate role. It is crucial that a generally binding (minimum) wage can be achieved for an industry, even against the will of certain parts of the employers and without the employers bound by collective bargaining having to employ at least half of the employees in the industry.

However, the scope of the AEntG first had to be extended to the industry for which a minimum wage was to be introduced. In addition, the parties to the collective bargaining agreement in the relevant sector had to agree on a minimum wage, which can then be made generally binding by means of an ordinance. This was achieved at the end of 2007 for the mail service sector.

The law was reformed and revised in 2009. A further six sectors were included, in which minimum working conditions can be determined by ordinance.

Industries to which the AEntG applies

Currently (as of August 1, 2012) there are mandatory working conditions in the following areas:

An industry minimum wage is binding for:

  • all employers based in Germany and their employees within the scope of the collective agreement,
  • all employers based abroad and their employees in Germany within the scope of the collective agreement
  • all rental employers and temporary workers, if the hirer employs the temporary worker with activities that fall within the scope of the collective agreement.

A minimum wage is also legally possible in the following industries, but not currently given:

The legislator did not take up the demand to include the temporary work sector in the Posted Workers Act; for this but was 2,011 in Employment Act provides for the possibility of a wage floor. The maritime shipping assistance ( dock workers ) has been removed from the scope of the law since July 1, 2007. The generally binding minimum wage in the demolition industry expired on December 31, 2008, so that the minimum wage in this sector no longer applies.

Implementation of the European Posting of Workers Directive

The German Posting of Employees Act was passed before the European Directive 96/71 / EC on the posting of workers and was adapted in 1998 to the requirements of European law. However, it is controversial whether the AEntG has implemented the directive to the required extent in national German law, because the scope of the AEntG is limited to only a few industries.

New version of the Posted Workers Act 2009

With the new version of the AEntG, which came into force on April 24, 2009, the law, which had previously been amended several times, was made clearer. What is new is that in the future, a collective bargaining committee will initially have to deal with an application from sectors that are seeking inclusion in the law establishing binding sector minimum wages for the first time ( Section 7 (5) AEntG 2009). In contrast to the AEntG 1996, a collective agreement may only be declared generally binding by means of a statutory ordinance based on the AEntG if there is a public interest in it (Section 7 (1) sentence 2 AEntG 2009). Because of the increasing differentiation of the collective bargaining landscape, the legislator must take into account whether the collective agreement is representative in the event of competing collective agreements. In particular, the number of employers bound by collective bargaining agreements and the employees they work for as well as the number of members of the union that concludes the collective bargaining agreement must be taken into account (Section 7 (2) AEntG 2009). If there are several applications for a declaration of general applicability, the conflicting fundamental rights interests of the parties to the collective bargaining agreement must be gently balanced (Section 7 (3) AEntG 2009).

A special regulation was made for the care sector. This includes companies or independent company departments in the field of outpatient, semi-inpatient or inpatient care and outpatient nursing, but not hospitals and facilities for the disabled. Church employers who do not want to submit to any collective agreement are active in the care sector to a large extent, since they see this as an interference with their right to self-determination and have therefore created special church labor regulations. In order to do justice to this, a so-called commission solution was devised ( § 12 AEntG 2009). In a commission with equal representation, which is set up at the request of a collective bargaining party or the church employers or employees, minimum working conditions can be agreed upon, which can then become binding for the entire care sector by ordinance. In addition to the non-church care employers and the unions responsible for the care sector, the church care employers (employers) and church workers (employees) each have two members.

The committee is only quorate if all members are present or represented. Due to the voting modalities stipulated in Section 12 (5) AEntG, each of the four parties involved can ultimately prevent a resolution and thus a minimum wage if both committee members of the side vote against a resolution proposal. If one member of one side votes for and the other against, the members of the other sides must vote together for a proposal in order for a resolution to be reached. A commission decision, for example, only comes about if it is supported by at least three quarters of the church employers and church employees.

Expiry of a right to a minimum wage according to the AEntG (as of 12/16)

overview

A claim to a minimum wage according to the AEntG can in particular expire through

  • Waiver
  • forfeiture
  • Limitation periods
  • Statute of limitations.

With regard to the limitation period, the usual three-year limitation period applies. For waiver, forfeiture and exclusion periods, § 9 AEntG contains special regulations that are a prohibition law within the meaning of § 134 BGB, i.e. H. deviating regulations are ineffective.

Waiver

According to § 9 sentence 1 AEntG: "A waiver of the resulting claim to the minimum wage according to § 8 is only permissible through a court settlement; otherwise a waiver is excluded."

forfeiture

Section 9 sentence 2 AEntG excludes the legal possibility of (rather rarely) forfeiting a claim to a minimum wage according to Section 8 AEntG.

Limitation periods

The extensive prohibition of exclusion periods in § 9 sentence 3 AEntG is important in practice . A distinction must be made between regulations in collective agreements and employment contracts.

Collective bargaining deadlines

According to § 9 sentence 3 AEntG, exclusion periods for minimum wage claims can only be regulated in collective agreements and this only within the framework of the provisions of § 9 sentence 3 AEntG: "Exclusion periods for the assertion of the claim can only be specified in the collective agreement according to §§ 4 bis 6 or the collective agreement on which the statutory ordinance is based according to Section 7 ; the period must be at least six months. "

Contractual preclusive periods

According to § 9 sentence 3 AEntG, exclusion periods for minimum wage claims under the AEntG cannot be effectively agreed in an employment contract. In practice, however, there are many employment contracts with preclusive periods in the industries subject to the minimum wage according to the AEntG. In its judgment of August 24, 2016 - 5 AZR 703/15 = NZA 2016, 1539, the BAG decided that, in any case, the question of whether contractual preclusion periods - if they would otherwise be effective - at least cover the claims not relating to the minimum wage In the case of "new contracts" (= contracts after the entry into force of the respective minimum wage ordinance), a general (flat-rate) employment contract preclusion period regulation is ineffective if its validity for the minimum wage is not clearly excluded. In other words: if the ordinary employee cannot infer from the preclusive period rule that it does not apply to the minimum wage, it does not apply at all (only to the detriment of the employer), i. H. not even for other claims. For "old contracts", the BAG provides the option of "restricting the minimum wage and thus satisfying the requirements of Section 9 Clause 3 AEntG" without having to make a decision in a specific case.

It is disputed and unclear whether the aforementioned BAG decision applies to minimum wage claims under the Minimum Wage Act. It should be noted that the prohibition of exclusion periods according to the Minimum Wage Act is formulated somewhat differently than that according to § 9 AEntG.

Statute of limitations

The general provisions of the BGB apply to the limitation period .

  • Example: A claim to minimum wage due on July 15, 2015 expires on December 31, 2018.

literature

  • Ulrich Sittard: Requirements and effects of the extension of the tariff standard according to § 5 TVG and the AEntG . Munich 2010.
  • Gregor Thüsing: AEntG. Comment . 1st edition. Verlag CH Beck, Munich 2010, ISBN 978-3-406-58936-2 .
  • Jürgen Ulber: Employee Posting Act. Basic commentary on the AEntG . Bund-Verlag, Frankfurt am Main 2009, ISBN 978-3-7663-3947-8 .

Footnotes

  1. ↑ a b by changing § 1 AEntG
  2. ↑ http://www.boeckler.de/pdf/ta_mindestloehne_aentg.pdf
  3. ↑ Judgment of January 29, 2010, 8 C 19.09
  4. ↑ Third Ordinance on Mandatory Working Conditions in the Demolition Industry, Federal Gazette Edition No. 48 of March 28, 2008, p. 1103
  5. ↑ Directive 96/71 / EC (PDF) on the posting of workers in the context of the provision of services
  6. ↑ Article 10 of the Act on Corrections in Social Insurance and Securing Employee Rights of December 19, 1998 ( Federal Law Gazette I, pp. 3843, 3850 ).
  7. ↑ See resolution recommendation and report of the Committee on Labor and Social Affairs of January 21, 2009, Bundestag printed matter 16/11669 (PDF; 397 kB), p. 25
  8. ↑ 24.08.2016 - 5 AZR 703/15 = NZA 2016, 1539

See also

Web links