Vocational training relationship (Germany)

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The vocational training relationship is regulated in Germany by the Vocational Training Act (BBiG). Instead of the vocational training relationship , one simply speaks of an apprenticeship relationship .

term

The legal nature of the vocational training relationship is controversial. The dispute is mostly insignificant since, according to Section 10 (2) BBiG, the vocational training contract is largely on the same level as the employment contract.

Delimitations

Employment relationship

According to the relevant case law of the Federal Labor Court (BAG), a vocational training relationship is not an employment relationship. Finally, it says: "Vocational training relationships and employment relationships are generally not to be equated because both contractual relationships have different obligations (...). The content of an employment relationship is, according to § 611 BGB, the provision of the contractually owed service against payment of remuneration. In contrast, the trainee owes himself while the main duty of the trainee according to § 14 BBiG is to provide the trainee with the knowledge and skills required to achieve the training objective. In contrast to an employee, the trainee does not owe any work against payment of remuneration, but has according to § 13 sentence 1 BBiG to endeavor to acquire the professional ability to act that is necessary to achieve the training objective ".

"other contractual relationships" within the meaning of § 26 BBiG

A vocational training relationship differs from other contractual relationships within the meaning of Section 26 BBiG. Section 26 BBiG regulates contractual relationships that are not designed as employment relationships and affect people who are hired in order to acquire professional skills, knowledge, skills or professional experience (apprentices, volunteers or interns). According to Section 4 (2) BBiG, training in a "recognized training occupation" may only take place within the framework of a professional training relationship.

Reference to labor law

According to § 10 Abs. 2 BBiG, the legal norms for employment contracts apply to the vocational training contract, "insofar as nothing else results from its [the vocational training contract] and from the BBiG" (§ 10 Abs. 2 BBiG). This means that Section 10 (2) BBiG is the central reference norm for all labor law. In each individual case, it must then be checked whether equality applies or not. For example, for the question of whether the Employment Protection Act (KSchG) is to be applied, according to Section 23 Paragraph 1 Clause 2 KSchG, "employees in their professional training" do not count.

Reason

Vocational training contract

A vocational training relationship is established through the conclusion of a vocational training contract (Section 10 (1) BBiG) between the training person and the trainee . By means of a vocational training contract, the trainee undertakes to train the trainee in a specific training occupation and the trainee undertakes to learn in this training occupation .

The concept of the trainer is to be distinguished from that of the trainer .

In order to establish a training contract, minors must be represented by their legal representative (Section 10 (3) BBiG).

Association training

According to Section 10 (5) BBiG, joint training by several trainers is also permitted.

shape

A vocational training contract can also be concluded informally. According to § 11 BBiG, the trainer is obliged to define the essential content in accordance with § 11 BBiG in a written contract .

Vocational training directory

The trainee must register the vocational training contract for entry in the vocational training directory (§§ 24 ff. BBiG).

authorization

Apprentices may only employ those who are personally suitable (Section 28 (1) sentence 1 BBiG). Only those who are personally and professionally qualified are allowed to train (Section 28 (1) sentence 2 BBiG). Personal suitability is regulated in Section 29 BBiG, and professional suitability in Section 30 BBiG. This is monitored in accordance with § 32 BBiG. A training facility must meet the requirements of Section 27 BBiG.

Content of the training contract

Duration of training

According to Section 5 (1) No. 2 BBiG, the duration of the training should not be more than three or less than two years. The specific duration of the training is based on the specific training regulations . According to Section 8 (1) and (2) BBiG, the responsible body can extend or shorten the duration of the training in individual cases.

According to Section 21 (3) BBiG, if the trainee does not pass the final examination , an apprenticeship relationship is extended "at the request of the trainee" to the next possible repeat examination ", by a maximum of one year. The same applies if the trainee cannot take the first exam due to illness. The extension also occurs if it can be expected "with certainty" that the trainee will also fail the repeat examination. If the trainee does not pass the first repeat examination either, the apprenticeship relationship will be extended one more time at his request if the maximum period of one year is not exceeded

Crediting of previous training periods to shorten the duration of training is permitted in accordance with a statutory ordinance in accordance with Section 7 (1) BBiG.

Probationary period

According to section 20 sentence 1 BBiG, a vocational training relationship begins with a trial period . The probationary period must (mandatory) according to § 20 sentence 2 BBiG at least one month and may last up to a maximum of four months. Previous periods of employment as part of an employment relationship or internship are not taken into account. Previous training relationships also not. Except: "A new trial period is only inadmissible if there is such a close factual relationship between the new vocational training relationship and the previous training relationship of the same parties that it is factually a vocational training relationship."

Training regulations

The respective training regulations according to § 5 BBiG determine the content of the training relationship.

Duties of the instructor

  • education

The duties of the trainer consist in the training according to § 14 BBiG.

  • professional school

According to Section 14, Paragraph 1, No. 4 of the BBiG, the trainer must enable the trainee to attend the vocational school and stop them to keep records and to check them.

  • exemption

The trainee has to release the trainee according to § 15 sentence 1 BBiG for participation in vocational school lessons and exams. The same applies if training measures are to be carried out outside of the training facility (Section 15 sentence 2 BBiG).

  • compensation

The trainee's claim to remuneration is based on §§ 17-19 BBiG: The trainee has to grant the trainee an "appropriate" remuneration (§ 17 Paragraph 1 Clause 1 BBiG), which must increase at least annually as the professional training progresses (§ 17 Para 1 sentence 2 BBiG). The remuneration must continue to be paid in accordance with Section 19 BBiG.

Duties of the trainee

The duties of the trainee are regulated in § 13 BBiG. According to Section 13 Clause 1 BBiG, the trainee must endeavor to acquire the professional ability to act that is necessary to achieve the training objective. According to § 13 sentence 2 BBiG, the trainee has, among other things

  • "Carefully carry out the tasks assigned to them in the course of their vocational training" (Section 13 sentence 2 No. 1 BBiG)
  • "to participate in training measures for which they are exempted according to § 15 BBiG (§ 13 sentence 2 no. 2 BBiG), i.e. to take part in vocational school lessons, examinations and external training measures
  • to follow the instructions given to them in the context of vocational training by trainers, trainers or other persons authorized to train (§ 13 sentence 2 No. 3 BBiG)
  • "to observe the regulations applicable to the training facility" (§ 13 sentence 2 no. 4 BBiG)
  • "To treat tools, machines and other equipment with care" (§ 13 sentence 2 no. 5 BBiG)
  • "To maintain secrecy about company and business secrets" (§ 13 sentence 2 No. 6 BBiG).

Termination of the apprenticeship

The employment relationship can end for various reasons (§§ 21 f. BBiG). In the event of premature termination, a claim for damages may exist under certain circumstances (Section 23 BBiG). If the employment relationship is terminated, a certificate must be issued (Section 16 BBiG).

Reasons for termination

Reasons for termination include, in particular, termination due to the passage of time (Section 21 (1) BBiG), termination due to passing the final examination (Section 22 (2) BBiG), termination (Section 22 BBiG, Section 113 (1) InsO) or a Termination Agreement .

Termination due to the passage of time (Section 21 (1) BBiG)

The apprenticeship relationship ends when the apprenticeship period ends. This also applies if the training period has been extended or shortened in accordance with Section 29 Paragraphs 2 and 3 BBiG. The apprenticeship relationship also ends if the final exam is only taken after the end of the apprenticeship period.

Completion by passing the final examination (§ 21 Abs. 2 BBiG)

If the trainee passes before the end of the apprenticeship period, the apprenticeship relationship ends according to § 21 Paragraph 2 BBiG "with the announcement of the result by the examination board". To extend the apprenticeship relationship if the exam is not passed (Section 21 Paragraph 3 BBiG), see above on the duration of the training .

Termination of the apprenticeship relationship (§ 22 BBiG)

Main article: Termination of a vocational training relationship
Notice of termination

The declaration of termination in an apprenticeship relationship must be made in writing (Section 22 (3) BBiG) and, in the case of termination according to Section 22 (2) BBiG (see below), "stating the reasons for termination". Underage trainees can only terminate the contract through their legal representatives. The notice of termination of a minor trainee must reach his legal representative. As with an employee, the special protection against dismissal and the co-determination rights of the works council are to be observed according to § 102 BetrVG, possibly also according to § 103 BetrVG.

Termination during the probationary period (Section 22 (1) BBiG)

During the probationary period (Section 20 BBiG) the training relationship can be "terminated at any time without observing a period of notice" (Section 22 (1) BBiG).

Termination of job assignment by the trainee (Section 22 Paragraph 2 No. 2 BBiG)

After the probationary period has expired, the trainee can terminate the apprenticeship contract with a notice period of four weeks if he wants to "give up the vocational training or be trained for another occupation".

Termination for good cause (Section 22 (2) No. 1 BBiG)

After the probationary period has expired, the apprenticeship can only be granted "for an important reason" (Article 22, Paragraph 1 of the InsO), with the exception of the trainee resigning from their job in accordance with Section 22 (2) No. 2 BBiG and termination in the event of insolvency pursuant to Section 113 (1) InsO. 2 No. 1 BBiG) - in compliance with the two-week period in accordance with Section 22 (4) BBiG - can be terminated. The term "important reason" in Section 22 (2) No. 1 BBiG corresponds to the "important reason" within the meaning of Section 626 (1) BGB and exists "if there are facts on the basis of which the terminating party, taking into account all the circumstances of the In individual cases and taking into account the interests of both parties to the contract, the continuation of the vocational training relationship until the end of the training period cannot be expected.

Arbitration committee according to § 111 ArbGG

If the competent chamber or guild has a parity arbitration committee (as is usually the case), the negotiation prescribed in Section 111 (2) sentence 5 ArbGG is inadmissible under the BAG process requirement and a procedure directly before the labor court. If a trainee is unsure whether an arbitration committee exists or does exist, but is perhaps not responsible, and deadlines must be observed, it is advisable to take precautionary action before the labor court and to suspend the proceedings before the labor court until the conclusion of the arbitration procedure.

The procedure before the arbitration committee can be ended by a settlement or an arbitrator's verdict. In the case of a verdict, it only becomes binding and acts like a judgment if both parties acknowledge the verdict within one week after the arbitration negotiation. If this is not the case, a lawsuit can be filed with the responsible labor court within two weeks of the verdict. There is no time limit for initiating proceedings before the committee, only the limit of forfeiture.

Deadline for action according to §§ 4, 13 KSchG

If there is no arbitration committee, the trainee must observe the three-week period for filing legal action under §§ 4, 13 KSchG in the event of termination without notice by the trainee - otherwise the effectiveness of the termination is fictitious.

damages

If the apprenticeship relationship is terminated after the probationary period has expired, each contractual partner can claim damages from the other contractual partner if "the other person is responsible for the reason for the termination" (Section 23 (1) sentence 1 BBiG), but not if the apprenticeship relationship is based on has ended when the trainee gave up his job (Section 23 (1) sentence 2 BBiG). This claim expires if it is not asserted within three months of termination (Section 23 (2) BBiG).

Right to takeover?

In principle, the trainee has no right to be taken on by the trainee in an employment relationship .

  • Only the members of the works council and staff representative bodies have a legal right to take over (see also: Youth and trainee representatives ).
  • Sometimes exists for a collective agreement temporary backstop (about one year) in accordance with the relevant tariff contract.
  • Individual contractual obligations to establish an employment relationship after the apprenticeship are only binding for the trainee if the trainee entered into this obligation within the last six months of the apprenticeship relationship (Section 12 (1) sentence 2 BBiG). Otherwise, only the employer, not the trainee, is bound by it (Section 12 (1) sentence 1 BBiG).
  • According to § 24 BBiG, an open-ended employment relationship is established if the trainee "is employed following the vocational training relationship without anything having been expressly agreed on" (§ 24 BBiG).

testimony

Upon termination of the employment relationship, the trainee has the right to be issued a written certificate (Section 16, Paragraph 1, Clause 1, 2 BBiG), stating that the trainer should also sign (Section 16, Para. 1 sentence 3 BBiG). The trainee receives a simple certificate (Section 16 (2) sentence 1 BBiG), and a qualified job reference (Section 16 (2) sentence 2 BBiG) only on request. This in addition to the diploma according to § 37 Abs. 2 Satz 1 BBiG.

See also

literature

  • Küttner: Personalbuch 2015. 22nd edition. 2015. Beck, Munich. Keyword: apprenticeship relationship.

Individual evidence

  1. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 37 = NZA 2015, 741
  2. ↑ For details, see BAG of November 19, 2015 - 6 AZR 844/14 - juris Rn. 20 ff. = NZA 2016, 228
  3. ↑ Kania Küttner: Personalbuch 2015. 22nd edition. 2015: apprenticeship. A. Labor law. Marg. 6 mwN
  4. ↑ BAG of September 30, 1998 - 5 AZR 58/98
  5. ↑ Kania Küttner: Personalbuch 2015. 22nd edition. 2015: apprenticeship. A. Labor law. Marg. 14th
  6. ↑ BAG of March 15, 2000 - 5 AZR 622/98
  7. ↑ BAG of November 19, 2015 - 6 AZR 844/14 - juris Rn. 18 ff. = NZA 2016, 228
  8. ↑ from November 19, 2015 - 6 AZR 844/14 - juris Rn. 14 = NZA 2016, 228
  9. ↑ Kania Küttner: Personalbuch 2015. 22nd edition. 2015: apprenticeship. A. Labor law. Marg. 42
  10. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 38 = NZA 2015, 741
  11. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 38 = NZA 2015, 741