Service regulations (social insurance)

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A service regulation ( DO ) is the basis of a - expiring - special form of the employment relationship with the German social insurance carriers. The order of service below employees ( Dienstordnung employees ; DO-employees ) are in a private law employment relationship , the service subordinate relationship , but due to the employment contract principles of civil service legislation apply as salary , allowance and pension . DO employees are not employees subject to social security contributions . The service regulations were conceived at the beginning of the 20th century for the social security agencies and are autonomous statutes .

Closure of official regulations

Most of the employees in the social security system in Germany are employees in the public sector . Until 1993, contracts with employees who were to be subject to service regulations were only allowed to be concluded with statutory health insurances (GKV) and professional associations as the statutory accident insurance providers in Germany . Since 1993 this has no longer been allowed with the GKV ( § 358 RVO ), for the professional associations from Template: future / in 2 yearsJanuary 1, 2023 no longer allowed. The existing service regulations remain unaffected and can still be changed. With the closure of service regulations as a special form of employment in the public service , public service law will be standardized. In return, the employers' liability insurance association is given the capacity to be an employer ( Section 147 (2) SGB ​​VII ). In principle, they may employ up to 20 percent of their employees as civil servants , because they also perform sovereign tasks ( intervention management ) and these tasks are generally reserved for civil servants.

Legal status

Officials have freedom of insurance like civil servants and they do not have to pay any contributions to statutory health, long-term care, pension or unemployment insurance . Instead of the employer's contribution to social security, the employer's duty of care comes in the form of allowances and pensions. Instead of the employee's share, there is self-provision in the form of private insurance, which the employee himself z. B. must ensure through private insurance. Therefore, the wages of collective bargaining employees and DO employees (as well as the real civil servants) are not comparable, because their gross wages do not include any social security contributions from the outset. This continues into retirement insofar as the retiree only receives partial coverage and has to secure the remainder privately. In contrast to statutory health insurance, family members are not insured free of charge in health and long-term care insurance; they too must be covered separately by private insurance in the event of illness for the part of the partial allowance.

Federal social security institutions are obliged to comply with the requirements of the Federal Salary Act and the Civil Service Providers Act when drawing up their service regulations ( Art. VIII § 1 of the Second Act on the Standardization and New Regulation of Salary Law in the Federal Government and the States - 2nd BesVNG ). This means that both the pay as well as the retirement benefits of their civil servants must correspond to the salaries and benefits of federal civil servants and may not go beyond this. The employers' liability insurance associations and larger statutory health insurances are among the direct federal social insurance carriers.

For state-direct social insurance institutions, the service regulations for the remuneration and provision of the service-order employees must be designed in line with the respective state law ( Art. VIII § 2 2nd BesVNG).

These are mandatory legal requirements from which the social security agency may not deviate - not even in favor of the official staff.

The official regulations of the social insurance institutions therefore do not make their own salary and pension regulations, but refer to the salary and pension law applicable to federal and state officials. This means that officials are paid like civil servants, even though they are legally employees.

Unlike a civil servant , the DO employee is not in an employment relationship under public law , but in an employment relationship under private law. In contrast to civil servants, he is not appointed , but instead concludes an employment contract, the subject of which is civil servant law and the respective service regulations. The employment relationship with his employer is of a private law nature. Legal disputes between a civil servant and his employer are therefore decided by the labor courts and not by the administrative courts .

The contents of collective agreements do not apply to the employment regulations, unless the individual employment regulations expressly provide for the validity of the collective agreement more favorable regulations.

The service regulations are the autonomous law of the respective social insurance carriers, which is issued on the basis of a statutory authorization. Authorization bases are §§ 351–358 Reichsversicherungsordnung (RVO) and §§ 144–147 Seventh Book of the Social Code (SGB VII).

Accident insurance carrier

Sections 144–147 SGB ​​VII are the legal basis for the statutory regulations of the accident insurance institutions .

§ 144 SGB ​​VII obliges the meeting of representatives of the accident insurance institutions to regulate the terms and conditions of employment and the legal relationships of the employees, as far as the employees are not employed according to the collective agreement or not. Before the service regulations are drawn up, the staff representatives of the accident insurance companymust beheard ( Section 144 (1) SGB ​​VII). The service regulations require the approval of the supervisory authority ( Section 144 (2) SGB ​​VII).

A comparable regulation was already contained in the Commercial Accident Insurance Act of July 5, 1900. Section 48 of the law stipulated that the “Cooperative Assembly […] [has] to adopt service regulations by which the legal relationships and general terms and conditions of employment of the cooperative officials are regulated. These service regulations require confirmation by the Reich Insurance Office . "

The service regulations of the employers' liability insurance association include a position plan and guidelines for the employers liability insurance association service. The number and value of the available positions are specified in the position plan. The guidelines describe the careers of the middle, upper and higher service. In addition, the guidelines regulate which personal and professional requirements must be met for employment as an official.

For the service regulations of the social insurance for agriculture, forestry and horticulture founded in 2013, §§ 144–147 SGB ​​VII apply accordingly ( § 5 sentence 2 of the law establishing social insurance for agriculture, forestry and horticulture).

Statutory health insurance

The service regulations of the health insurance companies regulate the legal relationships of employees, in particular proof of their professional qualifications, the type of employment, termination or dismissal and the consequences of non-fulfillment of duties ( Section 352 sentence 1 RVO). They contain an establishment plan and regulate the conditions under which promotions take place ( Section 353 RVO).

The service regulations are drawn up by the board of the health insurance company. It requires the approval of the meeting of representatives . The competent supervisory authority - in the case of direct federal health insurances, this is the Federal Social Security Office - must approve the service regulations. The same applies to changes to the service regulations ( Section 355 RVO).

Since 1993, the health insurances have not been allowed to establish any new employment regulations ( Section 358 RVO). New employment relationships are therefore always concluded on the basis of a collective agreement. Sections 349–358 of the Reich Insurance Code apply to DO employees who are still employed by the health insurance companies .

literature

  • Manfred Benz: Service regulations and service regulations employee in the statutory accident insurance . In: The social justice . No. 2 , 2000, pp. 53-60 .
  • Hilmar Sander: The position of the employees of social security institutions in the light of Article 33, Paragraph 4 of the Basic Law . 1st edition. Cuvillier, Göttingen 2000, ISBN 3-89873-070-0 .
  • Theo Siebeck: The service law of insurance carriers (=  advanced training and practice, series of publications of the magazine "Ways to social insurance" . Volume 44 ). 2nd Edition. Asgard Verlag Hippe, Sankt Augustin 1986, ISBN 978-3-537-34402-1 .
  • Theo Siebeck: Service regulations and civil service law . 1st edition. Asgard Verlag Hippe, Sankt Augustin 1987, ISBN 978-3-537-77001-1 .
  • Theo Siebeck: Service regulations and civil service law . In: Ways to Social Security . 1987, ISSN  0043-2059 , pp. 65-84 and 129-151 .

Web links

Individual evidence

  1. ^ Draft of a seventh law to amend the fourth book of the Social Security Code and other laws (7th SGB IV-AmendmentG). Federal Ministry of Labor and Social Affairs , accessed on May 12, 2020 (with ministerial and government draft as well as statements from organizations).
  2. ↑ Consultation process Seventh law amending the fourth book of the social security code and other laws. German Bundestag , accessed on May 12, 2020 (in particular BT-Drs. 19/17586 and 19/19037).
  3. ↑ Federal Labor Court: judgment of October 16, 2018 - 3 AZR 319/17 - margin no. 22. Retrieved January 25, 2019 .
  4. ↑ Federal Labor Court: judgment of October 16, 2018 - 3 AZR 319/17 - margin no. 17. Retrieved January 25, 2019 .
  5. ↑ Herbert Lauterbach, Friedrich Watermann, Joachim Breuer (eds.): Accident Insurance Social Code VII. Commentary on Book 7 of the Social Code and on other laws relating to accident insurance. Volume 3. Kohlhammer, 4th edition, 58th delivery, as of July 2015. Section 144 margin no. 14th