Institute of Global Law

German Legal News - Labour & Social Law

The Hartz IV legislation might also cause problems for the judiciary. Michael Bertrams, the President of the Administrative Court of Appeal in North Rhine Westphalia, said in an interview that the potential unconstitutionality of the distribution of competences between the social and administrative courts would lead to delays in the appointment of lay judges (30.11.2004). Moreover, many administrative court judges are opposed to shifting all competences to the social courts.

The Federal Government agreed on some minor changes to one of the biggest reforms of the benefits system in recent years, the so-called Hartz IV (01.09.2004). Under the revised proposals, a merger of social security benefits and unemployment insurance will go ahead, but some administrative aspects (such as the date of payment and the calculation of expenses for children) will be altered.

The Federal Social Court held that the widow of a man who died following a traffic accident was not entitled to receive a widow’s pension because her husband’s death resulted from his refusal (for religions reasons) to receive a blood transfusion (11.05.2004). The judges held that the decision of the husband, a Jehovah’s Witness, broke the chain of causation.

Social security is only to be paid to German citizens residing in Germany unless they are prevented from returning for serious reasons (illness etc.). This is partly a reaction to a campaign run by tabloid newspaper Bild, which reported the case of a man (“Florida-Rolf”) who was living on benefits in sunny Florida.

The government plans to take further action against illegal employment (18.02.2004). When the plans were first mooted, there was some confusion as to whether babysitting and handiwork at home might be classified as illegal, but this point has now been clarified and these activities will be excluded from the legislation. Instead, the the main targets will be moonlight employment in the hospitality industry, cleaning services, taxis and amusement arcades.

With the implementation of the so-called “Agenda 2010”, a major reform project of the Federal Government, a package of new regulations became effective in 1 January 2004. Most of the changes are related to the national insurance system, but other areas such as tax law and crafts law were also affected.

The Labour Court in Weiden decided that provisions in the Civil Law Code (BGB) concerning consumer protection do not apply to employment contracts (31.10.2003). The ruling deals specifically with provisions about door-to-door-sales. This question is discussed widely in academic literature. The reform of the BGB in 2001 did not introduce explicit provisions in this regard.

The former German federal labour office (Bundesanstalt für Arbeit) was turned into an employment agency (13.08.2003). As part of the so-called Hartz-Programme the institution is now more intensely engaged in the creation of new jobs.

If an intranet is used as a regular means of communication in a company, employers have to allow work councils to make use of it (LAG Schleswig-Holstein, 28.01.2003).

The German Bar Association has produced drafts for a reform of labour law (security of tenure). The idea is to simplify the rules for dismissals radically by concentrating legal disputes on monetary compensation, but assuring the termination of the contract. According to the German Bar Association, it should be irrelevant for the level of compensation whether or not the former employee finds a new job (June 2003).

In a judgement handed down on 5 June 2003, the Federal Court of Labour (BAG) surprisingly did not consider standby duty of doctors as working time. It had been expected that the BAG would follow the European Court of Justice in the interpretation of Directive 93/104 and consider standby hours as working time. This would have made necessary severe changes in German hospitals’ shift system.

On 8 Mai 2003 the Labour Court of Berlin held that the State of Berlin’s withdrawal from the employers’ association – aiming at the invalidation of an agreement with trade unions – was void. The State argued with severe budgeting problems, but the Court reasoned that there was no obvious causal connection between the union agreement and an improvement of the financial situation of the State of Berlin.