Labor Law (Germany)
German labor law is a field of law that regulates the legal relationships between individual employees and employers ( individual labor law ) as well as between the coalitions and representative bodies of employees and the employer ( collective labor law ).
Work has been the subject of legal regulations since ancient times. In Roman law , however, the service contract ( locatio conductio operarum ) only played a subordinate role due to the widespread slave labor. In medieval Germany, employment relationships often have aspects of personnel law. Although there is already a real capitalization of labor in certain areas, the spread of the capitalist reification of labor from the second half of the 18th century is seen as the beginning of the history of labor law. The social grievances of industrialization in the 19th century were the result of private autonomy despite the imbalance in the power of the contractual partners . Recognizing this, for example, youth labor protection , the prohibition of child labor and social security law , as well as the departure from the ban on coalitions (1869). However, the Civil Code (BGB) of 1896 did not take this development into account, the service contract according to §§ 611 ff. BGB is regulated there as a normal exchange contract with extensive private autonomy, the personal legal impact of the employment relationship was not recognized.
With the Stinnes Legien Agreement in November 1918, the course was set for the further development of the labor constitution. In order to prevent a socialist republic founded according to the council system , the employers were ready to recognize the unions . Section 1 of the agreement regulates the priority of the collective agreement over the individual employment contract.
During the time of the Weimar Republic , further labor protection laws and some decisive developments of collective labor law emerged , such as the constitutionally guaranteed freedom of association (Article 159 of the Weimar Constitution ). In order to “absorb the revolutionary tendencies of the council movement”, a council article (Art. 165) was included in the constitution. He envisaged “a three-tier council system, the basis of which should be the works councils . As a result, the council movement, which had called for political and economic power in the state under the slogan 'All power to the councils ', was converted into an economic interest group and incorporated into the economic constitution. Since the unions were constitutionally guaranteed the authority to agree wage and working conditions, the workers' councils were marginalized in a core area of labor law. In addition, only the lowest level of the three-tier council system was implemented by the Works Council Act of February 4, 1920. "
During the time of National Socialism (1933–1945), collective labor law was abolished because it was incompatible with the Führer principle , but employment contract and occupational health and safety law were expanded.
After 1945 the unions were re-admitted. The Control Council Act No. 22 of April 10, 1946 allowed the formation of works councils . In addition to this framework law, state laws were enacted, so that, due to the fragmentation, a uniform federal regulation was necessary.
"The fight for the formulation of the Works Constitution Act of October 11, 1952 was fought with great bitterness, after the fight for co-determination in the mining and iron and steel-producing industries almost led to a state crisis the year before ." Trade unions could not prevail with their ideas for an "economic democracy".
In the Codetermination Act of 1976, codetermination in large companies was expanded.
Despite some efforts and the regulation in the Unification Treaty ( ) to create a labor code, there is still no uniform codification of labor law. Regulations are therefore fragmented among others in the following legal sources:
- European law (mostly as guidelines )
- German laws :
- Basic Law for the Federal Republic of Germany, especially Para. 3, freedom of association
- Civil code, especially , Service contract
- Law regulating a general minimum wage - Minimum Wage Act
- Posted Workers Act
- Dismissal Protection Act
- Works Constitution Act and Staff Representation Acts (PersVG - public service )
- Collective Agreement Act
- Co-determination laws ( Montan-MitbestG , MitbestG and Third Party Act ) regulate the participation of employees on the supervisory board
- Partial Retirement Act
- Trade regulations in particular
- Commercial Code, especially ( Sales assistants and sales apprentices)
- Part-time and fixed-term employment law
- Science Time Contract Act (WissZeitVG)
- Continued Payment Act
- Federal Leave Act
- Working Hours Act
- Temporary Employment Act
- Maternity Protection Act and Federal Parental Allowance Act
- Care Leave Act and Family Care Leave Act
- Evidence Act
- Workplace Protection Act
- Youth Labor Protection Act and Child Labor Protection Ordinance
- Vocational Training Act and training regulations for the individual professions
- Occupational Safety and Health Act , Workplace Ordinance and VDU Work Ordinance
- Law on company doctors, safety engineers and other specialists for occupational safety ( )
- Occupational Diseases Ordinance
- Fourth book of the Social Security Code in particular Minor Employment
- Ninth Book of the Social Security Code , Law for the Severely Disabled
- General Equal Treatment Act (AGG)
- Employee Inventions Act together with the Second Ordinance Implementing the Employee Inventions Act
- Law to Combat Undeclared Work and Illegal Employment ( SchwarzArbG )
- Labor Court Act
- Act on the Statistics of Earnings and Labor Costs (Earnings Statistics Act - VerdStatG)
- Criminal Code (usury according to BAG , judgment of March 24, 2004 - 5 AZR 303/03)
- Ordinance on the calculation, payment, forwarding, accounting and checking of the total social security contribution (Contribution Procedure Ordinance - BVV)
- various ordinances on minimum working conditions for individual industries
- Collective agreements for industries and sole proprietorships
- Company agreements and service agreements ( public service )
- Individual employment contracts
- not the so-called judge's law , as this is not legally binding and therefore not a legal source . In fact, judge law is of great importance in labor law, especially in labor dispute law, which is completely unregulated by law .
The starting point of labor law is the employment contract, through which the employment relationship is established in the first place. The employment contract is embedded in a complex system of labor law regulations through company agreements or service agreements (in the public sector ), collective agreements , national laws and regulations as well as supranational EU directives and EU regulations . The jurisprudence by the national courts and the European Court of Justice ( ECJ ) also has a limited legislative function.
According to German law, the employment contract, also known as a contract of employment, is a contract to establish a contractual obligation under private law for the paid and personal provision of a service . The employment contract is regulated in BGB and represents a subtype of the service contract. If employment contract conditions are pre-formulated for a large number of contracts, they are fundamentally subject to the law of the general terms and conditions according to Ff. BGB. In contrast to the free employment relationship, the employment relationship established by the employment contract is characterized by the personal dependence of the employee on the employer . In essence, the employee cannot organize his activities himself or determine his working hours . Rather, it is incorporated into the employer's work organization and is typically subject to the employer's instructions on the content, implementation, time, duration and location of the activity.
Collective labor law
Under the collective labor law means the law of labor coalitions ( trade unions and employers' associations ), the collective agreement right, the right to industrial action ( strikes and lockouts ) and the right of participation in companies and enterprises .
Collective agreement law
Collective bargaining law is regulated in the Collective Bargaining Act. The labor dispute law is predominantly judge law ; a legal standardization has not yet taken place. The legal basis of collective bargaining law is freedom of association, Article 9 (3) of the Basic Law and collective bargaining autonomy.
A distinction is the participation of employees in private companies and the participation in companies . A company is a legal entity (individual, company, legal person ) that can run one or more businesses. Businesses are organizational units by means of which the entrepreneur tries to fulfill a business purpose (e.g. production, service).
Co-determination in the supervisory board
The board-level representation in the Supervisory Board is in the Third Participation Act , the Co-Determination Act and the Coal and Steel Co-determination Act regulated. In 2004, the One-Third Participation Act replaced parts of the BetrVG from 1952, without any substantive changes.
Works council and comparable bodies
The corporate co-determination of employees in private companies is regulated in the Works Constitution Act and the Spokesperson Committee Act. It is exercised by works councils and, for senior executives, by speakers' committees that are determined by the employees in free and secret ballot .
In factories and offices of the public service are staff committees responsible, their working principles for the federal administration in Bundespersonalvertretungsgesetz , otherwise in staff representation laws contained the 16 states. In ecclesiastical tendency businesses are employee representatives due to ecclesiastical labor law operates.
In collective labor law, in addition to state laws, collective agreements exist as a mandatory legal basis for the employment relationships covered. These are once industry or company related the collective agreements and related operating the operating arrangements (or in the public service service agreements ).
- Statutory preclusive periods in labor law (Germany)
- Privately autonomous preclusive periods in labor law (Germany)
- Federal Ministry of Labor and Social Affairs : Overview of labor law / labor protection law . January 2008, ISBN 978-3-8214-7281-2 (book with CD).
- Michael Kittner, Bertram Zwanziger , Olaf Deinert (eds.): Labor law. Practical manual. 6th edition, Bund-Verlag, Frankfurt am Main 2011, ISBN 978-3-7663-6085-4 (book with CD).
- Heinrich Kiel, Stefan Lunk, Hartmut Oetker (eds.): Munich manual on labor law . 4th edition. CH Beck, Munich 2019, ISBN 978-3-406-71330-9 .
- Rolf Geffken : Dealing with labor law: Handbook for employees : New edition and old edition in one: 40 years of experience with labor law Cadenberg 2019, ISBN 978-3-924621-18-6
- Hans Brox , Bernd Rüthers , Martin Henssler : Labor law. 18th edition, Kohlhammer Verlag, Stuttgart 2010, ISBN 978-3-17-021515-3 .
- Wolfgang Däubler : Labor law - guide for work, practice and studies. 8th edition 2010, Bund-Verlag, Frankfurt a. M., ISBN 978-3-7663-3991-1 .
- Wilhelm Dütz & Gregor Thüsing : Labor Law. 20th edition, Beck Juristischer Verlag, Munich 2015, ISBN 978-3-406-60559-8 .
- Monika Hausmann: The reaction to a lack of will when concluding an employment contract. Herbert Utz Verlag, Munich 2008, ISBN 978-3-8316-0809-6 .
- Abbo Junker : Basic course in labor law. 14th edition, Verlag CH Beck, Munich 2015, ISBN 978-3-406-61585-6 .
- Günter Marschollek: Labor law. 18th edition, Alpmann Schmidt, Münster 2011, ISBN 978-3-86752-166-6 .
- Michael Wollenschläger : Labor Law. 3rd edition, Heymanns , Cologne 2010, ISBN 978-3-8006-4136-9 .
- Rudi Müller-Glöge , Ulrich Price , Ingrid Schmidt (ed.): Erfurt commentary on labor law . 19th edition. CH Beck, Munich 2019, ISBN 978-3-406-72471-8 .
- Martin Henssler, Heinz Josef Willemsen, Heinz-Jürgen Kalb: Labor law comment . 2nd Edition. O. Schmidt, Cologne 2006, ISBN 3-504-42658-6 .
- Küttner, Jürgen Röller (Hrsg.): Personalbuch 2010. Labor Law - Income Tax Law - Social Insurance Law (commentary by keywords), 17th edition, Munich 2010, Verlag CH Beck, ISBN 978-3-406-57813-7 .
- Wolfgang Däubler, Birger Bonin, Olaf Deinert: General terms and conditions control in labor law (commentary on §§ 305-310 BGB) , 3rd edition, Munich 2010, Verlag Franz Vahlen, ISBN 978-3-8006-3772-0 .
- Peter Wedde (Ed.): Labor Law. Compact commentary on individual labor law with references to collective law . 2nd Edition. Bund-Verlag, Frankfurt am Main 2010, ISBN 978-3-7663-3995-9 .
- Reinhard Richardi : Labor law through the ages - Chronicle of German labor law . Beck, Munich 2019, ISBN 978-3-406-74304-7 (194 pages).
- Labor and Labor Law (AuA), Journal for Personnel Management, Huss-Medien GmbH, .
- Labor and Law (AuR), German and European labor law. Bund-Verlag, .
- Labor law decisions , journal of the Labor Law Working Group of the German Lawyers' Association ,
- Specialist lawyer in labor law (FA), journal for advisory and judicial practice. Luchterhand, .
- New journal for labor law (NZA). Verlag CH Beck, .
- New journal for labor law - case law report labor law (NZA-RR). Verlag CH Beck, .
- Law of Labor (RdA), journal for the science and practice of all labor law. Verlag CH Beck, .
- Journal of Labor Law (ZFA). Carl Heymanns Verlag, .
- JuraWiki labor law
- The labor jurisdiction on the website of the Federal Labor Court
- Information on the subject of labor law on the website of the Federal Ministry of Labor and Social Affairs
- On labor law in the 19th century cf. Collection of sources on the history of German social policy from 1867 to 1914 , Department I: From the time when the Reich was founded to the Imperial Social Message (1867–1881), Volume 4: Workers' Law, edited by Wolfgang Ayaß , Karl Heinz Nickel and Heidi Winter, Darmstadt 1997; Collection of sources on the history of German social policy from 1867 to 1914, Section II: From the Imperial Social Message to the February Decrees of Wilhelm II (1881–1890), Volume 4: Workers' Law , edited by Wilfried Rudloff, Darmstadt 2008; Collection of sources on the history of German social policy from 1867 to 1914, III. Department: Expansion and differentiation of social policy since the beginning of the New Course (1890–1904), Volume 4, Labor Law , edited by Wilfried Rudloff, Darmstadt 2011.
- Richardi, Reinhard et al. (Ed.): Münchner Handbuch zum Arbeitsrecht., 3rd edition. Volume 1, CH Beck, Munich 2009, p. 10.
- Richardi, p. 15.
- Richardi, p. 19.
- Hermann Reichold: Arbeitsrecht , 3rd edition 2008, Verlag CH Beck , Munich, ISBN 978-3-406-57824-3 , § 3 Rn. 1.
- Reichold, § 3 Rn. 1, 36.