Part-time and fixed-term employment law
|Title:||Part-Time Work and Fixed-Term Contracts Act|
|Short title:||Part-time and fixed-term employment law|
|Scope:||Federal Republic of Germany|
|Issued on the basis of:||GG|
|Legal matter:||Employment Law|
|Issued on:||December 21, 2000
( Federal Law Gazette I, p. 1966 )
|Entry into force on:||January 1, 2001|
|Last change by:||
Art. 10 G of November 22, 2019
( Federal Law Gazette I p. 1746, 1749 )
|Effective date of the
|January 1, 2020
(Art. 16 G of November 22, 2019)
|Please note the note on the applicable legal version.|
The Part-Time and Temporary Employment Act (TzBfG) regulates the law of part-time employment and temporary employment in German labor law . According to Section 1, the aim of the law is to “promote part-time work, define the conditions for the admissibility of fixed-term employment contracts and prevent discrimination against part-time and fixed-term employees”.
The part-time and fixed-term employment law replaced the law on labor law regulations on employment promotion ( BGBl. 1985 I p. 710 ) on January 1, 2001.
The background for the amendment to the law was, on the one hand, the growing importance of fixed-term employment and part-time work, and, on the other hand, the case law of the labor courts that was increasingly perceived by employers as hindering employment . Until the Employment Promotion Act came into force, the labor courts checked at each time limit whether this was intended to circumvent the protection against dismissal under the Protection against Employment Act . In particular in the case of several consecutive fixed-term employment relationships (so-called chain employment relationships ), the courts assumed that the law was being circumvented unlawfully if there was no objective justification for the limitation.
This employee-friendly jurisprudence was assessed as an obstacle to hiring because the risk of a fixed-term hiring leading to a permanent employment relationship was apparently too great for many employers. The fixed-term regulations of the TzBfG should promote employment through a secure legal framework and thus enable broader access to the labor market.
The Part-Time and Temporary Employment Act is divided into four sections.
The first section (Sections 1–5 TzBfG) contains general provisions such as the setting of objectives, definitions of part-time work and fixed-term contracts as well as prohibitions on discrimination and disadvantage. Among other things, part-time wages must be at least proportionate to working hours.(1) sentence 2 TzBfG stipulates that
The second section (Sections 6–13 TzBfG) regulates part-time work, i.e. the employee's legal right to work less than normal working hours under certain circumstances, and sets minimum standards.TzBfG includes the employee's right to the employer's consent to a reduction in the contractually agreed working hours, provided this reduction is unlimited; there is no legal right to return to full-time work.
The third section (§§ 14–21 TzBfG) deals with fixed-term employment contracts. This is understood to mean any employment relationship that is not entered into for an indefinite period of time, but is limited in time or according to the meaning and purpose. Differs according to the proper groundless limitation (time limit) and the objective reason limitation .
Finally, in the fourth section (Sections 22 and 23 TzBfG), common provisions are included, such as protection against circumvention and reference to other statutory and collective bargaining provisions.
part time jobs
With Section 8 TzBfG, a general right of employees to work part-time was introduced for the first time.
The BAG expanded the term by decision of November 13, 2012. There it says in the guiding principle:
- An employee's right to a reduction in his regular working hours does not conflict with the fact that he is already working part-time at the time he requests the reduction.
- With the concept of operational reasons that entitle the employer to reject the reduction request, Section 8 (4) sentence 1 TzBfG refers to the company as an organizational unit, not to the individual workplace that the employer has assigned the employee.
According toTzBfG, the employer must give preference to the part-time employee's request for an extension of his contractually agreed working hours when filling a corresponding vacant position with equal suitability, unless operational reasons or working time requests from other part-time employees oppose this. In addition, the employee has priority over external applicants if they are equally qualified. The priority is independent of the length of employment and the amount of previous working hours.
Temporary employment contracts
Unfounded time limit
The regulation of fixed fixed-term contracts gives employers the opportunity to try out employees for longer (up to two years instead of the usual maximum six-month probationary period ). This is particularly relevant for applicants with characteristics that could prevent employers from being hired, for example particularly incomplete CVs, extremely poor references, frequent dismissals , including those with no notice , short and irregular employment, stays in prison , previous convictions or apparently poor performance. Since then, employers have also been able to hire applicants whose recruitment previously seemed too risky to them. The time limit is only effective if it has been agreed in writing (Section 14 (4) TzBfG in conjunction with Section 126 BGB).
The non-objective time limit is regulated in law on fixed-term employment contracts in science is also often applied in the higher education sector, which allows more generous fixed-term periods compared to the TzBfG.(2). According to this, fixed-term employment relationships are permitted if the employee has not previously been employed by the same employer and the employment period does not exceed 2 years. This is often problematic for large employers, but especially in the public service of the federal states. After such fixed-term employment contracts have expired, employment in another office of the same corporation (again without any objective) is no longer permitted. In practice, this means that after a fixed-term employment relationship with a state office, for example, no other authority in this country can enter into another fixed-term employment contract for no reason. In the field of universities and (technical) colleges, a change from one institution to another in such fixed-term employment relationships is not possible, because here the state often acts as a common employer for all state universities, not the individual institution. This means that employees are often barred from career paths across several institutions, although this is often in the interests of the employees. However, the
Material basic time limit
Furthermore, z. B. Representations (for example in the case of parental leave , maternity leave , longer incapacity for work ) can be set up in a legally secure manner, as this represents a material reason according to the TzBfG. Previously, employers felt exposed to the risk that the representation could assert an enforceable claim to permanent employment after the employee represented had returned. A fixed-term employment contract is generally not extended by pregnancy or parental leave ; it expires at the originally agreed time. Thus, maternity protection regulations do not apply here.
Section 14 (1) does not list the most important substantive reasons. These are:
- the operational need for work is only temporary,
- the fixed term follows after training or studying to facilitate the transition of the employee to subsequent employment,
- the employee is employed to represent another employee,
- the nature of the work justifies the time limit,
- the time limit for testing takes place,
- reasons inherent in the person of the employee justify the time limit,
- the employee is remunerated from budget funds that are budgeted for fixed-term employment and he is employed accordingly or
- the time limit is based on a court settlement.
Frequently used material reasons are temporary substitutions due to parental leave , maternity leave or illness of another employee or project-related work. The numbers 6 and 7, however, no longer play a role in practice today.
If there is a material reason, the time limit can also exceed 2 years and (with a new material reason) can be extended indefinitely up to the limit of the abuse of law. The factual reason does not have to be expressly stated in the employment contract.
More recently, aspects of protection against discrimination and the prevention of disadvantage have become more central.
Some recent legal changes have pushed the original purpose of promoting employment somewhat into the background. This applies in particular to the regulation ofTzBfG, according to which a fixed term without any objective reason is not permitted if there was previously an employment relationship with the same employer, regardless of how insignificant and regardless of how long ago it was.
The following further development of part-time law is provided for in the coalition agreement for the 18th parliamentary term :
- For employees who have decided to work part-time for a limited period, for example because of bringing up children or caring for relatives, we want to ensure that they can return to their previous working hours. To this end, we will further develop part-time law and create a right to temporary part-time work (right of return).
- For existing part-time employment relationships, we will transfer the burden of disclosure in the Part-Time and Temporary Employment Act to the employer. We want to eliminate existing disadvantages for part-time workers.
It was planned to enshrine a legal entitlement to limited part-time work in the Part-Time and Temporary Employment Act in order to prevent poverty in old age; Business representatives had criticized that they would be forced to create unnecessary jobs.
The law on the further development of part-time law - introduction of bridge part-time work introduced the right to temporary part-time work (bridge part-time) on January 1, 2019.
The latest literature also calls for changes to long-term employment contracts with professional athletes (see LAG Rhineland-Palatinate, ruling of February 17, 2016 - 4 Sa 202/15). For example, it is argued that the "peculiarity of work performance", Section 14 Paragraph 1 Sentence 2 No. 4 TzBfG, should be specified more precisely by the legislature for border areas and thus areas assigned to special labor law. The BAG did not take up this criticism in its decision of January 16, 2018 and in the case decided here considered the fixed term of the employment contract of a professional footballer to be effective.
- Winfried Boecken , Jacob Joussen : Part-time and fixed-term law. Hand comment . 6th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-5669-8 .
- Joachim Holwe, Michael Kossens, Cornelia Pielenz, Evelyn wheels: Part-time and fixed -term law. Basic comment on the TzBfG . 4th edition. Bund-Verlag, Frankfurt am Main 2014, ISBN 978-3-7663-6239-1 .
- Gernod Meinel, Judith Heyn, Sascha Herms: TzBfG part-time and fixed-term law. Comment . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-68310-7 .
- LAG Rhineland-Palatinate, ruling from February 17, 2016 - 4 Sat 202/15
- Brochure from the Federal Ministry of Labor and Social Affairs (BMAS) on part-time work (status: January 2013) (note: can also be ordered there as a print version).
- Part-time calculator from the Federal Ministry of Labor and Social Affairs (BMAS) can be ordered as a DVD (as of February 2014).
- cf. Individual aspects of the basic fixed term of employment relationships Scientific services of the German Bundestag , status of March 18, 2018
- BAG, judgment of November 13, 2012 - 9 AZR 259/11 (lexetius.com/2012,6542)
- Federal Labor Court, judgment of the 9th Senate of May 8, 2007 - 9 AZR 874/06 - . See also the BAG press release No. 30/07 of May 8, 2007: “ Right of a part-time employee to extend his working hours ” .
- However, the BAG recently interpreted the prohibition of previous employment for a limited period: it does not apply if the previous employment was more than three years ago. See Federal Labor Court, judgment of the Seventh Senate of April 6, 2011 - 7 AZR 716/09 - . See also the press release No. 25/11 of the BAG of April 6, 2011: “ Fixed-term contracts without any objectivity and 'previous employment' ” . Federal Labor Court, judgment of the Seventh Senate of April 6, 2011 - 7 AZR 716/09 -. Retrieved March 17, 2014 .
- Coalition negotiations: Union and SPD for the right to temporary part-time work. BRF Nachrichten, November 5, 2013, accessed March 19, 2016 .
- LTO: ArbG Mainz: Goalkeeper employment contract wrongly limited . In: Legal Tribune Online . ( lto.de [accessed on January 27, 2018]).
- Andreas Just: Federal Labor Court. Retrieved January 27, 2018 .