Chain contract
Chain contract , even chain limit or limit chain is in labor , a design form in which several time temporary employment contracts with workers be completed sequentially.
General
In the past, employers have used chain contracts to formally make permanent employment relationships more flexible by offering an employee multiple extensions of fixed-term employment contracts and providing an objective justification. Before the deadline expired, the employers could check whether an employment relationship was still operationally necessary or not. The termination barriers for an open-ended employment relationship were not observed. In addition to the termination, the time limit is an independent termination of an employment relationship. This practice was particularly common in the public sector It is common for purely representative tasks, while chain contracts in the private sector tend to be rare.
Jurisprudence
One case had aroused public interest . A woman who had been employed by the Cologne District Court since July 1996 had spent her entire career as a representative on the basis of 13 chain contracts until she was refused a further contract extension in December 2007. Her action for permanent employment went to the Federal Labor Court , which referred the case to the European Court of Justice as part of a preliminary ruling under Art. 267 TFEU . In the case, the latter had considered the practice of chain contracts to be permissible in principle.
The European Court of Justice was of the opinion that a repeated fixed term of an employment contract due to representation cases could be objectively justified even if there was a permanent need for representation, which theoretically could also be covered by the permanent hiring of an employee. He pointed out that the national courts have to carry out an abuse control on a case-by-case basis. In this abuse control, "including the number and total duration of fixed-term contracts concluded with the same employer" are to be examined by the national courts. At the same time, the ECJ made it clear that the extension of fixed-term employment relationships to cover a permanent need is not in the sense of EU law for fixed-term contracts and that open-ended employment contracts are the usual form of employment.
Due to this ruling, the BArbG had to deal with the case again. It decided on July 19, 2012 that in the future, an employer must justify why the employment relationship should not be converted into a permanent one in the event of very long chain fixed-term contracts. The fixed term of an employment contract can exceptionally be illegal and therefore ineffective despite the existence of a material reason due to the special circumstances of the individual case . It was of the opinion that a permanent fixed-term employment relationship could be ineffective in individual cases, despite a valid reason, if there was a very long total duration or an exceptionally high number of consecutive fixed-term contracts with the same employer. The BArbG has not yet been able to allow the claim; Rather, the legal dispute had to be referred back to the Cologne Regional Labor Court in order to give the defendant the opportunity to present special circumstances that stand in the way of the assumption of the abuse of law indicated in itself.
In June 2018, the First Senate of the Federal Constitutional Court ruled that the prohibition of multiple fixed time limits for no reason was fundamentally constitutional; the interpretation of this prohibition should not ignore the clearly recognizable will of the legislature. Exceptions are only possible if there is no risk of a chain term, previous employment was a long time ago or was of short duration.
In October 2018, the European Court of Justice ruled that dancers and musicians at public cultural institutions, like other employees, are protected from repeatedly only getting fixed-term contracts.
Legal consequences
According to Section 14, Paragraph 1, Sentence 1 of the TzBfG , an employment contract may be limited in time if it is justified by an objective reason. Section 14 (1) sentence 2 TzBfG gives examples of such factual reasons. According to Section 14, Paragraph 1, Clause 2, No. 3 TzBfG, there is an objective reason if the employee is employed to represent another employee. According to the case law of the BArbG, a larger number of fixed-term contracts concluded with an employee does not conflict with the factual basis of representation. In order to be ineffective, it must be proven that the fixed-term contract was made with the intention of depriving the employee of the extended rights of permanent employment. As a legal consequence of a chain contract, the contract is considered uniform and open-ended if it meets the requirements of the above highest court judgments.
Case law in Switzerland
Chain contracts are generally not permitted under Swiss labor law. Chain employment contracts are always viewed as a continuous employment relationship, with the corresponding protective provisions regarding notice periods, continued payment of wages in the event of accident / illness, etc. Chain employment contracts are only permitted for special employment relationships, e.g. B. in engagements of actors.
See also
Individual evidence
- ↑ EUGH, judgment of January 26, 2012, Az .: C-586/10
- ↑ BArbG, judgment of July 19, 2012, Az .: 7 AZR 443/09
- ↑ bundesverfassungsgericht.de: Press release No. 47/2018 of June 13, 2018
- ↑ Case C-331/17, see spiegel.de October 25, 2018: ECJ prohibits chain time limits for dancers and musicians
