Legal innovations

Amended regulations apply to this year’s works council elections taking place from March 1 to May 31, 2022. Pursuant to Section 24 (2) of the Election Regulations of October 8, 2021 (BGBl. I 4640/2021), HR departments are required to provide, in addition to the typical employee data used to draw up the electoral list (surname, first name, date of birth, etc.), details of those employees who are expected to be absent from the workplace after  the election committee letter has been issued and prior to  the election for non-work related reasons (“in particular due to suspension or incapacity for work”). This refers in particular to employees on long-term sick leave and employees on care or parental leave. Furthermore, meetings of the election committee may in future also be held by video or telephone conference subject to are solution by the election committee agreeing to this. However, certain tasks, such as checking lists of candidates or processing absentee ballots must be carried out in person.

The pandemic-related special provisions for holding virtual works meetings and meetings of executive employees in speaker committees and for holding meetings of the conciliation committee shall continue to apply up until March 19, 2022. A one-time extension by resolution of the German Bundestag is possible.

From July 1, 2022, employees will no longer have to physically present a medical certificate of incapacity to work to the employer. Instead, health insurers will make the relevant incapacity to work data available electronically. Implementation is likely to still involve some effort for companies.

By August 1, 2022, the EU Directive 2019/1152/EU on transparent and predictable working conditions must be transposed into national law. It replaces the existing Directive 91/533/EEC, which was transposed into German law by the Act on Proof of the Existence of an Employment Relationship (Nachweisgesetz). The Directive establishes minimum standards under labor law, including on call work and the duration of probationary periods, and contains far-reaching obligations to provide information on the essential terms and conditions of the employment relationship, which in future will also include the formal requirements for terminating the relationship (Article 4 (2) lit. j). In particular, the employer’s previous obligation to provide evidence of essential working conditions is upgraded to a right to information for the employee (Article 4). Essential working conditions within the meaning of the Directive also include, where applicable, expenses incurred by the employer in relation to a company pension scheme (Article 4 (2) lit. k). Directives do not apply directly in the individual member states, but must first be transposed into national law. National legislators have a certain degree of flexibility in this respect. Nevertheless, implementation could mean a considerable additional administrative, financial and legal burden for employers.

The Whistleblower Directive (RL 2019/1937/EU) should have been transposed into German law as early as December 17, 2021. Whistleblowers are to be protected from legal disadvantages not only when reporting breaches of EU law, but also significant breaches of regulations or other significant misconduct, the disclosure of which is in the particular public interest. It remains to be seen when a corresponding draft of the legislation will be presented and to what extent it will be based on the existing draft bill.

From January 1, 2023, the Works Constitution Act will be amended to include a provision on supply chain due diligence. Under the new Section 106 (3) no. 5b German Works Constitution Act, issues relating to due diligence in the supply chain will in future be discussed by the economic committee. This committee has the task of discussing economic issues with the company management and informing the works council. These already include manufacturing and working methods or in-house environmental protection. The Supply Chain Act expressly extends the rights of participation: In the future, the HR department must provide the members of the economic committee with meaningful documents in good time to form a picture of any human rights violations by the company or direct suppliers so that they can inform the works council. An economic committee must be established in companies that generally employ more than 100 employees on a permanent basis.

Case law

This year, we can expect some interesting decisions from the Federal Labor Court, for example on the right to information under the GDPR and on the mandatory disclosures in mass dismissal notices.

Legal politics: The new German coalition government

The coalition agreement of the new German government parties has the potential to bring about considerable changes in the area of labor law and may therefore also entail a corresponding need for employers to make adjustments.

The statutory regulation relating to working hours is to remain essentially unchanged, particularly with regard to the regular working time of eight hours per day. However, in 2022 (for a limited period) more flexible working time arrangements are to be made possible “within the framework of collective agreements”. In addition, a deviation from the maximum daily working hours in the Working Hours Act is to be permitted by collective agreement or works agreements. To this end, the recording of working time is to be reviewed against the background of current ECJ rulings. Furthermore, flexible working time models (e.g., trust-based working time) should continue to be possible and mobile work should be granted without problems throughout Europe.

Employment contracts may be limited to six years for objectively justified reasons. This possibility should be limited and exceptions should only be possible in narrowly defined cases.

According to a draft bill by German Labor Minister Hubertus Heil, the statutory minimum wage in Germany is to rise to twelve euros on October 1, 2022. Employers see this as a violation of constitutionally protected collective bargaining autonomy. The regular increase, from € 9.82 to € 10.45 will continue to apply from July 1, 2022.

The already much-discussed right to work from home and mobile work for employees in suitable jobs could now be enshrined in law. According to the coalition agreement, employers should only be able to object to an employee’s request if operational concerns conflict with it. However, there should still be room for collective and company regulations.

In the area of occupational health and safety, companies of small and medium-sized enterprises (SMEs) are to be supported in implementing occupational health and safety. The German government also wants to draw up a report on bullying in the workplace.

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