What is the concept of labor law

416 WSI Announcements 8/2007 1 The Green Paper of the European Commission The Green Paper on labor law aims to initiate a discussion on the reform of labor law under the term flexicurity. In it, the European Commission asks questions and is considering models that should balance flexibility on labor markets with job security. Labor law and the applicable collective agreements would no longer meet the need for more flexible employment relationships on the part of companies and the greatest possible security on the part of employees. The reform should promote a labor market that is fairer, more responsive and more inclusive. The debates on this should lead to common principles for the flexicurity approach in the states of the European Union by the end of 2007. Flexicurity is a very promising approach, as it assumes a balance between two goals that have hitherto been seen as opposites and at least pursued in isolation. Flexicurity could make German labor law fit for the future. The initiative of the European Commission could, however, also be used - and the Green Paper itself feeds this suspicion to a considerable extent - that the “gap between insiders and outsiders” (Commission of the European Communities 2006, pp. 8, 11) can only be reduced by reducing Protective rights of employees are reduced, so flexibility is more easily enforced, the (1) employment insurance and protection of transitions: If people are to accept mobility and show it on their own, flexible and different forms of employment as well as non-employment may not lead to gaps in social security, namely lead in the insurance biography and in social protection. The compulsory insurance must be formulated with the aim of population-wide coverage for basic risks; its extent must guarantee all citizens at least independent pension entitlements in the amount of the socio-cultural minimum over the course of their lives. This includes broader access to all social security systems, regardless of the status of an employee. The transition to self-employment or dependent work must be insignificant from an insurance perspective. The type of employment - as an employee, under a service or work contract - must not lead to the avoidance or reduction of insurance obligations, neither for the employer nor for the employee. (2) Inclusion in “good work”: A policy of inclusion must address the question of how people can find their way into gainful employment and be kept in non-precarious gainful employment. Nobody is allowed to remain permanently unemployed and in precarious or involuntarily atypical employment relationships. Flexicurity - A concept for the labor law of the future? Heide Pfarr The legal-political discussion has labor law in its sights at national and European level. The Union and the FDP are calling for drastic changes both in individual labor law, in particular in terms of protection against dismissal, as well as in collective bargaining law and in co-determination. The European Commission has also contributed to the discussion with the Green Paper “Modern Labor Law for the Challenges of the 21st Century” on a flexicurity concept. How should these proposals be assessed? Do we need more deregulation? Or are there areas in which a different regulation or even more regulation is necessary for the benefit of social security? And what chances would such a flexicurity concept have in view of recent experiences with legal reforms and in view of the direction in which legal policy debates in Germany are going? Strengthening social security but a paper promise remains. There are therefore three questions: on the one hand about the specific content of a flexicurity concept, on the other hand, whether and where there are deficits in flexibility and security in labor law in Germany and, finally, which regulations can lead to a flexicurity law that supports it Deserves name. The legal matters have to be considered together, i.e. in addition to labor law, social law and tax law must be taken into account equally. 2 Contents of a flexicurity concept In the Green Paper, the European Commission did not make any specific requirements for a flexicurity concept, but in the communication dated June 27, 2007 (Commission of the European Communities 2007) it described the necessary components: flexible and secure contractual Agreements, comprehensive lifelong learning strategies, effective active labor market policies and modern social security systems. The strategies and measures would, however, have to take into account the extremely different situations in the individual EU Member States. For the Federal Republic of Germany, a flexicurity concept is to be put up for discussion in the following, which - in accordance with the approach - goes beyond the limits of labor law (cf. also Kronauer / Linne 2005): Heide Pfarr, Prof. Dr., Managing Director of Hans -Böckler Foundation and Scientific Director of the WSI. e-mail: [email protected] 417WSI Mitteilungen 8/2007 sen. Here, too, the transitions must be secured. The state preferential treatment for mini and midi jobs must be eliminated and temporary work restricted to temporary jobs. Lower limits must be set by law for wages. (3) Internal flexibility and employability: Companies are asked to prefer forms of internal flexibility to external ones. This requires them to deal proactively with training and further education, with lifelong learning, with age-appropriate and age-appropriate working conditions and with working time adjustments that secure jobs. To this end, inter-company labor markets and structures for inter-company job security must be developed and supported by the state. Continuing education is needed to maintain or establish employability. This is about regulated entitlements to time and financial support. (4) Life-course-oriented adjustment of employment times: The goals set in the European employment strategy of increasing the employment rate of women and older people, as well as the model of “adult workers”, require answers to the question of who, how and when performed those jobs that cannot be organized exclusively through the market: for example, bringing up children and caring for older relatives. To this end, guaranteed options must be granted, i.e. temporary rights that enable workers to adapt the extent of employment to their individual needs and living conditions, conditions that can change over the course of their lives. The key question here is how the loss of income resulting from interruptions or restrictions in employment should be financially secured. It is not enough to hand it over to those affected or their families. Because there are considerable differences: people have unequal needs for time off or on time off work and this at different times. For some z. B. Caring jobs while they are meaningless to others. The unequal impact of the sexes is evident. A social balance is therefore essential. This applies in any case to certain phases of life and circumstances that appear to be socially useful and worthy of support. A life-course-centered social policy must provide financial cushioning through collective systems that are adequately distributed intertemporally and interpersonal (Klammer 2005). 3 Regulatory requirements for a flexicurity concept The requirements for a German flexicurity concept are therefore high. Of course, it is possible and probably also appropriate not to dare to take the big hit all at once, but to approach the goal in steps, following the example of those European countries that have already implemented flexicurity approaches (Commission of the European Communities 2007, p. 23ff .). But even then, the following applies: The legislature would be faced with a daunting task if he wanted to take this claim seriously and cast it into standards. There is a significant political and regulatory imbalance: Deregulation is technically simple, flexibility and the curtailment of social protection are widely supported in the media. The beneficiary companies will ensure that they are implemented in practice. The situation is very different with new social security instruments. There will always be fierce and media-supported resistance from business. And what's more: it requires regulatory ingenuity to provide individuals with real enforceable rights. For example, what use is a statutory right to professional training for an employee, what are the chances of realization? Wouldn't it have the same fate as the claims under the advanced training laws of the federal states, which a good 1% of employees make use of (Brandner 2007)? In contrast to the flexibilization through deregulation, innovative support and several actors are required here. The state legislature would have to secure the instruments of social security and the individual claims in the law, but for the implementation in practice it would require collective agreements of the collective bargaining and company parties. The conditions for internal flexibility, for further training with lifelong learning, for the development of age-appropriate working conditions and for working time adjustments vary depending on the industry, company size and workforce. The same applies to the organization of inter-company labor markets and inter-company job security. Appropriate regulatory instruments here are collective agreements, in particular collective agreements, from which relevance and representation of interests would have to be expected. Expectations are spoken of with caution. For as natural reference to and trust in collective agreements was justified in the Federal Republic for decades, the collective bargaining landscape has changed a lot in the meantime - Dieterich has pointed this out (in this issue). It is fragmented, and not only in East Germany there is an abundance of collective agreements, the content of which is conclusively described with undercutting legal or collective bargaining standards. The DGB unions are also more often forced into a collective bargaining policy, the results of which they cannot really represent themselves. The diverse alliances for work, the expansion of temporary agency work and atypical and precarious employment relationships show the extent to which works councils have come under pressure. But all of them - assertive collective bargaining parties and a strong corporate interest group - are needed if a flexicurity concept worthy of the name is to be brought to life. 4 Legal reforms and legal policy debates on labor law If one wants to assess the chances of a flexicurity concept in legal policy in Germany, it can be helpful to ask in which direction the answers have gone that the legislation and the legal policy debate in Germany have so far found ( Seifert 2006). 418 WSI Announcements 8/2007 4.1 CLASSIFICATION OF THE LEGAL REFORMS Dieterich presented (in this issue) the developments in individual labor law and in collective bargaining law, which have already led to malfunctions and problems based on traditional German labor law. The legislature has not sought remedy here (or only temporarily as with bogus self-employment). On the other hand, it is noticeable that in the last 20 years the legal reforms have been driven primarily in the direction of more flexibility and the keyword deregulation determined the agenda - and that by politically diverse government coalitions. For example, the legislature relaxed the restrictions on fixed-term contracts and temporary work, shortened protection against dismissal, permitted extended working hours in the Working Hours Act and promoted a high degree of atypical and precarious employment through the conditions for marginal employment and the change in the framework conditions for transfer income in the Hartz laws . On the other hand, there was vehement resistance (especially from business and the BDA) to the legislative reforms of the last 20 years that can definitely be attributed to the strengthening of social security, for example the right to reduce working hours under the Part-Time and Fixed-Term Employment Act, the changes in the regulations Other reforms have been enforced by European law and do not reflect the will of the majority in the German Bundestag: For example, the prohibition of discrimination against part-time workers and the other prohibitions of discrimination up to and including the General Equal Treatment Act. If these legal reforms are assessed against the benchmark of flexicurity, a mixed picture emerges with predominantly negative effects and thus a pessimistic forecast for this concept. There are voices claiming that the Hartz laws have had a positive effect on the current reduction in unemployment. But they have certainly had a negative impact on the voluntary mobility of employees. The fear of possibly having to live under the conditions of Hartz IV makes employees more likely to cling to the existing. The other deregulating legal reforms have, as empirically proven, had no employment-promoting effects, although the first corresponding law in 1985 even had this aim in its name. However, the deregulations not only have far-reaching consequences for the unemployed and the margins of the labor market, they also affect the core workforce. They shook their trust in social security and ultimately also had a negative impact on wages. The reforms that serve to strengthen social security only hint at the point of view of solidarity-based financial cushioning for life-course-oriented needs. Overall, they are counteracted by state subsidies for mini and midi jobs, which inevitably lead to poverty in old age and endanger the social systems. In addition, it should be asked whether the enforceability of the claims is sufficiently secured (see Kocher's article in this issue). 4.2 THE LEGAL POLICY DEBATE COLLECTIVE LAW The greatest flexibilization, however, did not come from the legislature, but from the changed collective bargaining practice of the collective bargaining parties described in Dieterich's article (in this issue). A company-oriented and differentiated implementation of a flexicurity concept in collective agreements with obligations and realizable claims would be in good hands with you. But the legal policy debate goes in the opposite direction. It may be an expression of a changed relationship to the meaning and purpose of collective labor law - and also social security - that law and politics are looking openly and intensely for ways in which companies can shake off collective bargaining agreements completely without the annoyance of Negotiations with the parties to the collective bargaining agreement. Above all, two concepts are important that consistently pursue this goal: a modified interpretation of the principle of favorability and the abandonment of tariff priority. How are they to be assessed legally, what consequences would such a reform have and what does the ongoing debate say about the chances of implementing flexicurity? (1) Favorability principle and mandatory effect of the collective bargaining agreement: In scientific literature, the view is taken that no legal change is required in order to enforce further flexibility. The priority of collective bargaining agreements over company regulations can be avoided by changing the previous case law on the favorability principle (Buchner 1999, p. 901f. With further references). According to the Collective Agreement Act, agreements that deviate from the collective agreement are permissible insofar as they are permitted by the collective agreement itself or contain a change in favor of the employee. But what is "cheaper"? The law itself says nothing about this. The BAG has derived from the function of collective bargaining autonomy that a comparison of subject groups is to be made. In contrast to this, some authors want to take into account promises to secure employment within the framework of the comparison of benefits and allow them to compensate for benefits that are below the tariff. The Federal Labor Court is requested to correct its standards for comparing favoritism. Securing jobs is always more important for the workers concerned than minimum wages and working hours. When properly accounted for in evaluating the Work Alliances, all of the concerns collapsed. Such an interpretation of the principle of favourability would, however, have an effect that is contrary to the system, even system-breaking, as Dieterich (2002, p.14f.) Has convincingly demonstrated. The purpose of this principle is to release the individual employee from collective constraints, as long as he is not dependent on protection under collective law. However, this does not call into question the mandatory effect of the collective agreement as a safety net. It is even the prerequisite for the principle of favorability. When negotiating employment contracts, the collective bargaining standards should always form the basis. If this basis could be pushed aside by contractual uniform regulations with the blessing of the works council, only the regulatory authority would shift to another collective. A replacement 419WSI Communications 8/2007 would result from the favourability principle. The fierce and aggressive resistance on the part of the business community to the most tentative efforts to provide a little more social security through new laws suggests how much discretion and determination the legislature needs if it wants to tackle this. The ongoing discussion about protection against dismissal in the conservative part of the grand coalition has a negative effect on willingness to be mobile and trust in social security. The nature and extent of the current debates about the reforms of the social security systems raise doubts as to whether the federal German legislature in the current coalition would be willing and even more: able to guarantee the necessary degree of flexibility as well as social security through the extensive restructuring of these systems. The collective bargaining reform proposals of the Union and the FDP show that those actors who are indispensable for a lively and differentiated flexicurity concept - the trade unions as collective bargaining parties - should be disempowered and marginalized. These two parties are the only ones who invoke collective autonomy still used to prevent a statutory minimum wage - definitely part of a flexicurity concept. Flexicurity is a regulatory model that is worth supporting. The concept offers the opportunity to balance flexibility and security. However, not everything that is discussed under the label flexicurity deserves this name. In view of the culture of debate and the political majority in Germany, the current conditions for implementing flexicurity are rather poor. The suspicion arises that the discussion about flexicurity could serve to conceal and justify further deregulation projects. A good approach worth arguing for would be wasted. hostile and cannot be empirically proven, political parties (Union, FDP) as well as voices in law and economics continue to demand a relaxation or even complete elimination of the protection against dismissal (Expert Council 2007, p. 415ff .; Donges et al. 2004). The REGAM project of the WSI and further research by the Hans Böckler Foundation have dealt with this in detail. Their results are so clear that a renewed refutation is no longer necessary (Pfarr et al. 2005 with further references). The yardstick of the flexicurity concept requires that reform demands on protection against dismissal are also measured by whether they prefer internal flexibility over external flexibility - i.e. the exit option. The mere shortening of the protection against dismissal runs counter to this, because it makes it easier to terminate the employment relationship. The EU Commission also emphasizes that a successful flexicurity concept is based on trust in the system. At the same time, however, she shows a particular preference for regulatory models with little protection against dismissal. It should be borne in mind here that the needs of people in the EU and thus the conditions under which trust is created or endangered are quite different. In Germany - as studies have shown (Krause 2006, p. 105ff .; dies. 2007) - a relatively well-developed protection against dismissal is an essential component of trust in social security. Anyone who attacks the protection against dismissal in Germany with reference to Denmark, where longer operating periods are not considered desirable, removes the necessary basis of trust in a flexicurity concept from the employees. 5 Conclusion All of this cannot give reason for hope. The previous legislative reforms by various political coalitions do not at all correspond to the ideas that are based on a flexicurity concept. This is not possible under current law. (2) Legislative initiatives on the priority of company regulations: This knowledge has led to calls for the legislature. The priority of collective agreements over company regulations should generally be eliminated. This is the aim of legislative initiatives by the CDU / CSU and FDP (CDU / CSU parliamentary group in 2003; FDP parliamentary group in 2003). Such proposals fundamentally misjudge the concept of protection of collective bargaining autonomy. It is precisely the existential reliance on job opportunities that justifies the need for protection, which is to be absorbed by the collective safeguarding of interests and can only be secured with the help of mandatory regulations. If this effect could be generally broken precisely when the workplace risk is updated, collective agreements would become mere guidelines for “good weather times”. In terms of collective bargaining and organizational policy, such a devaluation of collective bargaining autonomy would have destructive preliminary effects. The whole effort of collective bargaining concepts and negotiations would hardly make sense; Flexibility models that had already been developed ran empty and lost their differentiating control function. The employers' associations could at least forego OT membership.1 The trade unions, on the other hand, would be deprived of the opportunity to exert a decisive influence on working and economic conditions. At the company level, they would also have to compete with a stronger, but non-contributory, compulsory representation - the works council. All of this would hardly have any resemblance to the freedom of association that Art. 9 III GG seeks to guarantee (Dieterich 2007, Art. 9 Rn. 63ff.). Whether it could really serve the interests of the companies seems highly doubtful. Decentralized regulation models are extremely useful for company-related flexicurity concepts, decentralized distribution battles are certainly not. TERMINATION PROTECTION Although the assertion that German dismissal protection is employment- 1 OT membership refers to the membership of an employer in an employers' association without any collective bargaining coverage. 420 WSI Mitteilungen 8/2007 Brandner, K. (2007): Politics for employees. For a lively culture of further education, download at: http://www.klausbrandner.de/.net//themen/10096/209601.html Buchner, H. (1999): The unions' claim to cease and desist - stabilization or the end of the collective agreement ?, in : Neue Zeitschrift für Arbeitsrecht 17, pp. 897–902 CDU / CSU parliamentary group (2003): Draft of a law for the modernization of labor law (ArbRModG), Bundestag printed paper 15/1182 Dieterich, T. (2007): in: Dieterich, T. / Müller-Glöge, R./Preis, U./Schaub, G .: Erfurter Commentary, 7th edition, Munich Dieterich, T. (2002): Flexible collective bargaining law and Basic Law, in: Law of Work 1, p. 1 –17 Donges, J./Eeckhoff, WF / Möschel, W./Neumann, M. (2004): Flexibler Kündigungsschutz am Arbeitsmarkt, publication series Stiftung Marktwirtschaft, Vol. 41, Berlin 2004, download at: http: //www.insm .de / Downloads / PDF_Dateien / Publications_Kostenlose_Downloads / Study-Kuendigungsschutz.pdf FDP parliamentary group (2003): Draft law to safeguard company alliances für Arbeit, Bundestag printed matter 15/1225 Klammer, U. (2005): Flexicurity from the perspective of the curriculum vitae, in: Kronauer, M./Linne, G .: Flexicurity. The search for security in flexibility, Berlin 2005, pp. 249–273 Commission of the European Communities (2006): Green Paper “A modern labor law for the challenges of the 21st century, download at: http://ec.europa.eu/ employment_social / labor_law / docs / 2006 / green_paper_de.pdf Commission of the European Communities (2007): Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Establishing common principles for the flexicurity approach : More and better jobs through flexibility and security, download from: http://ec.europa.eu/employment_social/employment_strategy/pdf/ flex_comm_de.pdf Krause, A. (2006): The attitude to dismissal protection - how important are justice norms and Dismissal experiences, in: Struck, O./Stephan, G./Köhler, Ch./Krause, A./Pfeifer, Ch./Sohr, T .: Work and Justice. Layoffs and wage cuts in the verdict of the population, Wiesbaden Krause, A. (2007): Protection against dismissal reforms and justice - attitudes of the working population, in: WSI-Mitteilungen 5, pp. 252-258 Kronauer, M./Linne, G. (2005): Flexicurity. The search for security in flexibility, Berlin 2005 Pfarr, H. / Ullmann, K./Bradtke, M./Schneider, J./Kimmich, M./Bothfeld, S. (2005): Protection against dismissal between perception and reality. Operational experience with the termination of employment relationships, Munich and Mering Advisory Council on the Assessment of Overall Economic Development (SVR) (2007): Annual Report 2006/07, Conflicting Interests - Unused Opportunities, Chapter 7, download at: http: //www.sachverstaendigenrat-wirtschaft .de / download / gutachten / ga06_vii.pdf Seifert, H. (2006): What has made the job market more flexible ?, in: WSI-Mitteilungen 11, pp. 601–608 LITERATURE


With its green paper "A modern labor law for the challenges of the 21st century", the EU Commission has now also taken up the concept of "flexicurity", which has been discussed in academia for a long time. When examining the Commission's proposals, however, the question arises as to whether there is more than a disguising formulation of further deregulation demands. The article presents a flexicurity concept for Germany and deals with the requirements that would result from this for consistent legislation. Based on the legal reforms on the labor market over the past 20 years and the legal policy debate, the current chances of realizing such a concept are being examined - with a thoroughly skeptical result.



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