On June 23, 2022, the german Bundestag a draft law to implement the EU Directive on transparent and predictable working conditions (hereinafter also: Working Conditions Directive; (EU) 2019/1152)) adopted. Parts of the law (see also the notes of Ministry of Labor and Social Affairs) bring about changes in practice that are of considerable importance. The following short article (from the series “short articles“) is intended to provide an overview of the most important changes as well as concrete recommendations for action.
The law comes into force on August 1, 2022. It looks in NachwG among other things, extensions to the employer's obligation for written transcription the essential working conditions (hereinafter under section 1). Furthermore, in addition to other changes in other laws, there were changes in particular to the Temporary Employment Act (AÜG, below under point 2.) as well as in the part-time and fixed-term employment law (TzBfG, below under point 3.).
1. CHANGES TO THE EVIDENCE ACT (AFTERWG)
The Evidence Act underwent the most significant changes. In addition to a comprehensive expansion of the employer's obligations to provide evidence, a fine was also introduced for the first time in the event that the obligations to provide evidence are not fulfilled correctly or on time.
1.1. Extended proof requirements (§ 2 NachwG)
A comprehensive and far-reaching expansion initially took place § 2 NachwG. The catalog of evidence has been expanded to include the following points:
- Indication of the end date for temporary employment relationships
- workplace
- probation
- Composition and amount of the fee
- Rest breaks/shift work
- Work on demand
- Overtime order
- training
- Company pension scheme
- Termination
- Applicability of further regulations
- stay abroad
The most important of these points will be briefly presented below:
The temporary employment relationships must in the future the end date or the foreseeable duration of the employment relationship can be proven. Furthermore, the employer's obligation to provide proof regarding the place of work (Section 2 Paragraph 1 Sentence 2 No. 4 NachwG) expanded: In the future, the employer will also have to prove that the employee has their Can freely choose the place of work. In this respect, it is advisable to specify the place of work in the “basic” employment contract and, if mobile work/home office is granted, one written conclude a supplementary contract. This is sufficient evidence within the meaning of the regulation mentioned. In addition, the employer must also inform employees in the future Duration of a possible probationary period teach. But this can also happen, for example, through a reference to a collective agreement. What is also new is the obligation to provide information regarding the Composition and amount of wages also Dthe compensation for overtime to specify. In addition, employers are obliged the components of the remuneration in the future to be stated separately. If the employer provides the employee with one Company pension provision via an external pension provider granted, he has at least that Name and address of the pension provider within the deadlines of § 2 NachwG to call. In addition, the employer has to Deadlines for termination of the employment relationship too Information on the procedure to be followed to call. At least the employer will therefore notice periods, and the Written form requirement for termination as well as the Deadline for bringing an action for protection against unfair dismissal have to name.
1.2. Reference to law, collective agreement or works agreement
In addition, the possibility of making a reference (to the law, collective agreement or works agreement) has been newly regulated (see Section 2 Paragraph 4 NachwG). It is then possible, as before, to replace the evidence with references for certain information. This can be done in particular through references to the relevant collective agreements or works agreements applicable to the employment relationship. However, a so-called global reference will not be sufficient. It is therefore advisable to state the terms of the contract in the reference itself. So for example: “The duration of the probationary period depends on the collective bargaining regulations“. It is therefore recommended alone concrete references to work.
1.3. Form of proof – unfortunately in writing! ( Section 2 Paragraph 1 Sentence 1 and 3 NachwG)
The 90s called and wanted the law back. Unfortunately, this part of the law is no joke, it is a law from 2022 that will cause significant costs for companies! While the directive gives the national legislature the opportunity to provide evidence in electronic form, the national legislature did not make use of this. A signed transcript must therefore be handed over. Electronic form is excluded. As a result, proof is not possible with a qualified electronic signature. However, only the employer has to provide proof in writing. Therefore, the employee's signature is not required. The requirement of the new Section 2 NachwG has no legal impact on employment contracts. These can still be completed without any formalities. However, some companies will consider whether they should switch to written employment contracts again in order to fulfill the documentation requirements. Also provides Section 2 Paragraph 5 NachwG It is clear that the obligation to provide evidence does not apply as long as the contents in a written employment contract Are included.
1.4. Fines
The fine introduced in Section 4 NachwG is completely new. According to this, an employer acts unlawfully if, among other things, he does not fulfill the verification obligations correctly, not completely or not in a timely manner. There is currently a fine of up to EUR 2000 for an administrative offense described above.
1.5. Old contracts
The proof requirements only apply to new contracts that come into force from August 1.8.2022, 2. For employment relationships that already existed, the obligation to provide proof only applies upon request. For these old employment relationships, the evidence must be provided upon request as follows: Information in accordance with Section 1 Nos. 10 to 2 NachwG on the seventh day after receipt of the request. Otherwise, information in accordance with Section 1 Paragraph 2 Sentence XNUMX NachwG no later than one month after receipt of the request. It is advisable to provide all evidence within seven days, if possible.
2. EMPLOYEE RENTAL ACT (AÜG)
Among other things, the previous ones were supplemented The lender's notification obligations (Section 11 AÜG). In the future, in addition to a leaflet from the licensing authority about the essential content of the Temporary Employment Act, the lender will also have to provide information about the company and address of the hirer to whom it is being leased. This notification must be made at least in text form before each transfer.
The “employer” (=hirer) must already comply with Section 13a Paragraph 1 AÜG Inform the temporary worker about jobs that need to be filled. In the future, the employer must respond to an employee's request to conclude an employment contract as follows: If the temporary employment has already lasted for more than six months The employer must provide a reasoned response to a job request within one month give. It is advisable to establish an internal process here. Both the advertisement and the response can be submitted in text form.
3. PART-TIME AND FERTILIZATION LAW (TZBFG)
The part-time and fixed-term employment law has also undergone significant changes. First was Section 7 Paragraph 2 TzBfGsupplemented by an addition. In the future, the employer will have an employee who has one Desire to change the duration and/or location of his working hours has indicated about corresponding workplaces in the company to inform. It was also redrafted Section 7 Paragraph 3 TzBfG. In the future, employers will have to respond to a change request from an employee (employed longer than 6 months) within respond within a month with a reasoned answer. In addition, Section 15 Paragraph 3 TzBfG provides for the possibility of Agreement on a probationary period in a fixed-term employment relationship is restricted. In the future, the agreed probationary period must be in proportion to the expected duration of the fixed-term contract and the type of activity. Finally it was Section 12 TzBfG (work on call) has been tightened. In the future, employers will be obliged to have one Period determined by reference hours and days. This is intended to make on-call work more predictable for the employees affected.
4. CONCLUSION
Since the obligations also apply to employment relationships that already existed before the new regulations came into force, companies face a “certain challenge”. It does not help to denounce the obvious legislative poor performance with regard to the written form requirement. The fact is: All companies will either have to change their model contracts or come up with something else for new contracts (from August 1.8.2022, XNUMX). This could, for example, be an information sheet with the additional new evidence. However, this can also be a completely new contract, although in our opinion certain information (e.g. deadline for filing a claim for protection against dismissal) is better contained in the “package insert” mentioned.
