On 23 June 2022, the German Bundestag passed a bill to implement the EU Directive on Transparent and Foreseeable Working Conditions (hereinafter also: Working Conditions Directive;(EU) 2019/1152)). Parts of the law (see also the BMAS notes) entail changes for 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 Act enters into force on 1 August 2022. Among other things, it provides for extensions to the employer's obligation to record the essential terms and conditions of employment in writing in the NachwG(see section 1 below). In addition, there have been amendments to other laws, in particular to the Temporary Employment Agency Act(AÜG, see section 2 below) and the Part-Time Work and Fixed-Term Employment Act(TzBfG, see section 3 below).
1. Amendments to the Verification Act (NachwG)
The most significant changes were made to the law on evidence. In addition to a comprehensive extension of the employer's obligation to provide evidence, a fine was introduced for the first time in the event of incorrect or untimely fulfilment of the obligation to provide evidence.
1.1 Extended obligations to provide evidence (§ 2 NachwG)
A comprehensive and far-reaching extension was initially made to § 2 NachwG. The following points were added to the catalogue of proofs:
- Indication of the end date for fixed-term employment relationships
- Place of work
- Probationary period
- Composition and amount of the remuneration
- Rest breaks/shift work
- Work on call
- Overtime order
- Further training
- Company pension scheme
- Applicability of further regulations
- Stay abroad
The most important of these points will be briefly described below:
In the case of fixed-term employment relationships, the end date or the foreseeable duration of the employment relationship must be proven in future. Furthermore, the employer's obligation to provide evidence regarding the place of work (section 2(1) sentence 2 no. 4 NachwG) has been extended: In future, the employer must also provide evidence if the employee is free to choose his or her place of work. In this respect, it is advisable to state the place of work in the "basic" employment contract and to conclude a written supplementary contract in case mobile work / home office is granted. This is sufficient as proof in the sense of the aforementioned provision. In addition, in future the employer must also inform the employee about the duration of a possible probationary period . However, this can also be done, for example, by referring to a collective agreement. Another new provision is the obligation to includeovertime pay in the information on the composition and amount of remuneration. In addition, employers are obliged in future to indicate the components of remuneration separately. If the employer grants employees an occupational pension through an external pension provider, it must at least disclose the name and address of the pension provider within the time limits of section 2 of the NachwG. Furthermore, in addition to the deadlines for terminating the employment relationship, the employer must also provide information on the procedure to be followed . Consequently, the employer must at least state the notice periods, the written form requirement for a notice of termination and the period for bringing an action for unfair dismissal.
1.2 Reference to law, collective agreement or company agreement
In addition, the possibility to refer (to the law, collective agreement or company agreement) has been newly regulated(cf. section 2 (4) NachwG). As before, it is possible to replace the proof of certain information with references. This can be done in particular by referring 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 contractual terms in the reference itself. For example: "The duration of the probationary period is governed by the provisions of the collective agreement". It is therefore advisable to work with concrete references alone.
1.3 Form of proof - unfortunately in writing! ( § 2 Para. 1 S. 1 and 3 NachwG)
The 90's called and wanted the law back. Unfortunately, this part of the law is no fun, but a law from the year 2022, which will cause considerable costs for companies! While the directive gives the national legislator the possibility to provide the evidence in electronic form, the national legislator did not make use of this. Therefore, a signed transcript must be provided. The electronic form is excluded. Consequently, the evidence cannot be provided with a qualified electronic signature. However, only the employer must provide proof in writing. Therefore, the signature of the employee is not required. From a legal point of view, the provision of the new Section 2 NachwG has no effect on employment contracts. These can continue to be concluded without any formal requirements. However, some companies will consider switching back to written employment contracts in order to fulfill the verification requirements. In addition, Section 2 (5) NachwG clarifies that the obligations to provide evidence do not apply if the contents are contained in a written employment contract.
A completely new element is the fine introduced in section 4 of the NachwG. According to this, an employer commits an administrative offence if, among other things, he does not fulfil the obligations to provide evidence correctly, completely or in time. Currently, a fine of up to EUR 2,000 is provided for the above-mentioned administrative offence.
1.5 Old contracts
The verification requirements only apply to new contracts that come into force on or after 1.8.2022. For employment relationships that already existed before, the obligation to provide evidence only applies upon request. For these old employment relationships, the evidence must be provided upon request as follows: Information pursuant to Section 2 No. 1 to 10 NachwG on the seventh day after receipt of the request. Information in accordance with Section 2 (1) sentence 2 NachwG must be provided no later than one month after receipt of the request. It is recommended to provide all evidence within the seven days, if possible.
2. Temporary Employment Act (AÜG)
Among other things, the previous notification obligations of the hiring agency (section 11 AÜG) have been supplemented. In future, in addition to a leaflet from the licensing authority on the essential content of the Temporary Employment Act, the hirer must also notify the company and address of the hirer to whom he is hired out. This notification must be made at least in text form before each hiring out.
The "employer" (= hirer) must already inform the temporary worker about jobs to be filled in accordance with Section 13a (1) AÜG. In the future, the employer must respond to an employee's request to conclude an employment contract as follows: If the temporary assignment has already lasted for more than six months, the employer must provide a reasoned response to a job request within one month. It is advisable to establish an internal process here. Both the notification and the response can be submitted in text form.
3. Part-Time and Fixed-term Employment Act (TzBfG)
The Part-Time Work and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz) has also undergone significant changes. First of all, section 7 (2) TzBfGwas amended to include an addition. In future, the employer must inform an employee who has indicated a wish to change the duration and/or location of his or her working hours about corresponding jobs in the company. Section 7 (3) of the TzBfG was also amended. In future, employers must respond to a request for change by an employee (employed for more than 6 months) within one month with a reasoned reply. In addition, section 15 (3) TzBfG restricts the possibility of agreeing a probationary period in a fixed-term employment relationship. In future, the agreed probationary period must be in proportion to the expected duration of the fixed-term contract and the nature of the work. Finally, section 12 of the TzBfG (work on call) was tightened. In future, employers are obliged to specify a period determined by reference hours and days. This is intended to make on-call work more predictable for the employees concerned.
Since the obligations also apply to employment relationships that already existed before the new regulation came into force, companies face a "certain challenge". It does not help to denounce the obvious legislative malfeasance with regard to the written form requirement. The fact is: all companies will either have to change their model contracts or otherwise come up with something for new contracts (from 1.8.2022). This can be, for example, a notice sheet with the supplementary new evidence ("instruction leaflet" - you can find a sample here). It can also be a completely new contract, but in our opinion certain information (e.g. deadline for filing an action for protection against dismissal) would be better included in the "instruction leaflet" mentioned above(a sample can be found here).