Text 4496, 110 rader
Skriven 2007-07-16 07:11:36 av Robert Bashe (2:2448/44)
   Kommentar till text 4476 av Ross Cassell (1:123/456)
Ärende: Labor laws (was: CIA's Family Jewels)
=============================================
Ross Cassell wrote to Michiel van der Vlist on Sunday July 15 2007 at 17:28:

The following applies only to Germany, as I have no knowledge of the labor laws
in other EU countries.

RC> Assuming the employee isnt under contract, can the employee leave at
RC> will?

The employee can leave for any reason, but must give proper notice as defined
either by law (in Germany, I believe the minimum notice period is two weeks) or
by the pertinent industry-wide labor contract (if one exists). In the case of
employees with a written contract - this generally includes all white-collar
employees - the notice period in the contract applies to both employer and
employee, but may not be shorter than the legal minimum.

In many industries, the industry-wide labor contract is binding for both
employers and employees, regardless of whether a formal (personal) labor
contract exists (except for "aussertarifliche" employees, who are genrally
middle to top management and do not fall under the industry-wide contract).

This is one of the major differences between the US and German labor practice,
that in the US labor contracts are generally negotiated for single companies
between company management and one or more labor unions, whereas in Germany
there are "blanket" unions for an entire industry (for example metalworkers),
and they negotiate industry-wide labor contracts with an employers' association
for that industry.

RC> If so, then the relationship should be both ways.

It isn't for the reason that a majority of the German population, and
consequently the government, consider the employee to be the weaker party,
requiring legal protection, whereas the employer or company is considered
stronger. Without outside legal protection, an employee would be at the mercy
of the stronger party, i.e. his/her company.

In Germany, labor unions don't deal with individual terminations, since these
are governed by the laws and are often quite difficult to invoke even when the
reasons are - at least on first sight - quite reasonable. However, you
definitely can be fired for threatening a supervisor or fellow worker, or for
privately surfing the Internet on the job (when company policy forbids this).
Firing someone for "non-performance" is harder, since you're expected to be
able to demonstrate this objectively in court. But it's also possible.

Here in Germany, labor unions are more interested in getting wage increases on
an industry-wide basis, sometimes (for example) accepting lower wage increases
in return for a pledge to forgo involuntary terminations for a certain period
of time in the case of industries that are in difficulty. Or the union might
accept lower wage increases for higher-paid employees in return for a "lump
sum" to lower-paid employees (which would, in effect, be a higher percentage
increase).

So the situation in the States and Germany is totally different. The German
labor market is highly regulated, whereas the American labor market is fairly
free of government regulation. Both systems have their advantages and
disadvantages...

The German system gives the employees more rights and security, but tends to
prevent hiring of new people (particularly marginal employees with little
training/intelligence or a handicap) unless this is absolutely unavoidable.
Lower-paid jobs go by the wayside, since machines are cheaper and can't sue an
employer for improper termination.

The American system is flexible and enables even marginal employees to get a
job. It generates a great deal more new employment on an economic upturn than
the German system, so the economy in general tends to "boom" more quickly on
recovery from a recession than in Germany. Unfortunately, the downside is that
there are very few employee rights (except those negotiated for labor union
members in individual companies) and very little security.

In both cases, the general population is in favor of its own system, and
considers the system of the other "exploitation" (Germans to the American
system) or "socialism" (Americans to the German system). If people thought
differently, the systems would change.

RC> Places I have worked for, they had the ability to terminate "at will"
RC> but in every case, they all practiced the method of documenting the
RC> reasons. Reasons could be attendance, job performance, disruption of
RC> workplace, failure to follow direction, drug and alchohol usage,
RC> violating company policies, stealing etc.

Some of these would be grounds for involuntary termination in Germany as well,
but not all - and most would still end up in court with a suit for illegal
termination. What then generally happens is either that the employer pays the
(former) employee a certain sum of money in return for the employee agreeing to
the termination (common), or that the court finds that the termination was
illegal and directs the employer to retract it (less common, and even in this
case the employee is often paid a sum of money to accept termination). However,
courts have also been known to declare involuntary terminations legal when the
grounds provided by the employer are legally valid and convincing. So it's not
a one-way street, even if the question of terminations is heavily loaded in
favor of the employee.

RC> Other reasons could be job elimination, closing the location, layoffs.

These are grounds that generally do not justify involuntary terminations in
Germany. What normally would happen is that company management would negotiate
with the employee "works council" (Betriebsrat) to reach an agreement on such
terminations: how many, when, under what conditions (retraining, help with job
applications, notice period), and possibly a pledge not to implement further
involuntary terminations for a specific period in return for agreement to a
specific number of terminations for the reasons you cite. If the works council
and employer cannot reach an agreement, the industry-wide labor union and
employers' association might step in and try to act as mediators. But except in
really critical cases (large numbers of terminations in major companies), such
things are generally settled within the company itself - by negotiation.

Cheers, Bob

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