Many Corona protection measures have largely been abolished since February 2023. The German government is thus pursuing the goal of restoring more normality to everyday life. This development is also reflected in labor market policy and jurisdiction: many of the current issues here have a focus away from corona protection measures. In order to present these developments for the mechanical and plant engineering sector in North Rhine-Westphalia, ProduktionNRW held a virtual information event on January 26, 2023 on the areas of labor market policy and case law in labor law.
Current labor market policy decisions
Fabian Seus, lawyer at the VDMA legal department and head of the Competence Center Labor Market, first presented the law of proof. Building on EU Directive 2019/1152, member states are encouraged to prescribe new information requirements for employers. The German legislature has transposed this directive into German law as of August 1, 2022. The obligations to provide evidence are not new, but have been supplemented by additional obligations to provide evidence. These changes apply automatically to employment contracts from August 1, 2022. For employment relationships prior to August 1, 2022, the new obligations to provide evidence only have to be fulfilled at the request of the employee.
The information requirements by the employer must be in writing. This means that an independent signature is required on the employment contract, for example. Additional information must also be handed over in the case of an assignment abroad, such as the destination country, the planned duration or the currency in which the remuneration is paid. Violations of the Verification Act can be sanctioned with up to 2,000 euros.
In addition, the drafts of the Act to Strengthen the Promotion of Education and Training and Introduce a Training Period and the Act to Further Develop the Immigration of Skilled Workers were discussed. Both laws are still being developed. The Further Education Act is to include the introduction of a so-called education (part) time in order to support employees in independently realizing their professional development opportunities.
In the area of skilled labor immigration, immigration is to be facilitated on the basis of assessment through three pillars (skilled labor pillar, experience pillar and potential pillar), with the skilled labor pillar remaining the central element of immigration – according to the current draft, this also includes the EU Blue Card for foreign university graduates and the national residence permit for foreign skilled workers with a German degree or a degree recognized in Germany.
Current judgments on labor law
Dr. Christian Hess, a lawyer in the VDMA’s legal department, then went on to discuss labor law rulings. The focus of judicial decisions has shifted and is again increasingly covering decisions away from Corona rulings. For example, on September 27, 2022, the Schleswig-Holstein Regional Labor Court (LAG) strengthened the right of employees to be digitally unavailable. According to the ruling, an employee is not obliged to inquire whether the duty roster has been changed during free time – corresponding calls or text messages are not to be accepted, according to the ruling.
The ruling of the German Federal Labor Court (Bundesarbeitsgericht, BAG) on the recording of working hours on September 13, 2022, is particularly surprising. Contrary to expectations, the court interpreted the recording of working hours in accordance with the Occupational Health and Safety Act. This decision has consequences for the interpretation of the law, as the Occupational Health and Safety Act also covers managerial employees, who would therefore also have to keep track of working hours – the ruling did not present a definition in this regard. According to the Federal Ministry of Labor and Social Affairs, a practical proposal for the design of working time recording in the Working Time Act will be prepared in the first quarter of 2023.
In the subsequent discussion, the question was addressed as to whether trust-based working time would have to be set off with the recording of working time. For example, trust-based working time was introduced at a company in the mechanical and plant engineering sector to motivate its own workforce. If this were to be withdrawn again, this would be difficult to communicate. Contrary to this fear, however, trust-based working time is given a central place in the German government’s coalition agreement – so it is unlikely that it will be dropped.
- FAQ of the Federal Ministry of Labor and Social Affairs on working time recording
- Information on short-time work and short-time allowance
The event was offered by ProduktionNRW. ProduktionNRW is the cluster of mechanical engineering and production technology in North Rhine-Westphalia and is organized by VDMA NRW. ProduktionNRW sees itself as a platform to connect, inform and market companies, institutions and networks among each other and along the value chain. Significant parts of the services provided by ProduktionNRW are funded by the Ministry of Economic Affairs, Industry, Climate Protection and Energy of the State of North Rhine-Westphalia.