Evidence Law in Germany Right of NachwG employees to know the working conditions
Real need for manageable adjustment
Yesterday the Bundestag adopted the law transposing Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ L 186 of 11 July 2019, p.105). (” Directive ”) adopted. Among other things, this provides for an amendment to the Evidence Act (NachwG), according to which employers must inform their employees in writing of the main working conditions. Companies will need additional information for their employees, but it is not necessary to change employment contracts in all areas. The clear rejection of digital employment contracts is more dramatic. An overview:
EVIDENCE ACT CHANGES
According to the current legal situation, the law on evidence already provides that the employer delivers the essential (more detailed) contractual conditions to the employee in writing and signed in original. The “electronic form”, whereby the written form can be replaced by a qualified electronic signature, is expressly excluded. As a rule, the requirements of the law on proof were satisfied by the handing over of the signed employment contract. In order to implement the directive (and unfortunately also beyond), the law on evidence must now be expanded and the documentation obligation should include the following in particular:
- The duration of the agreed trial period;
- Agreed breaks and hours of rest; in the case of agreed shift work, the shift system, the rhythm of shifts and the requirements for changing shifts;
- If the employee is not to work only at a specific workplace, an indication that he will be employed at different locations or that he will be able to freely choose his workplace;
- The composition and amount of compensation, including overtime pay, supplements, allowances, bonuses and special payments and other elements of compensation, each to be disclosed separately, together with the due date and how they are paid;
- In the event of on-call duty, the agreement according to which the employees must carry out their work according to the workload, the number of hours to be remunerated at least, the deadline (days and hours of reference) which is specified for the service working hours and the period within which the employer must give advance notice of the place of working hours;
- Certain information on, among other things, the country and remuneration if an employee is employed abroad for more than four consecutive weeks;
- The possibility of ordering overtime and its requirements;
- Any right to training provided by the employer;
- The name and address of the pension institution if the employer promises employees a company pension through a pension institution;
- The procedure to be followed by the employer and the employee when terminating the employment relationship (at least the requirement of written form, the deadlines for terminating the employment relationship and the deadline for lodging a action for protection against unfair dismissal).
Until now, the employer had until one month after the agreed start of the employment relationship to hand over the essential contractual conditions to the employee.
The legislator has now provided for a staggered period of time within which the employer must provide the employee with the minutes of certain contractual conditions at the latest. In the future, he will have to deliver some of the key terms of the contract (name and address of the contracting parties, amount of salary and agreed working hours) on the first day of work. This also applies to changes to these essential working conditions. The other contractual conditions must be submitted no later than the seventh calendar day or one month after the agreed start of the employment relationship.
Another novelty is an official sanction option for violations of NachwG duties, which can be punished with fines of up to 2,000 euros.
BUSINESS ADJUSTMENT NEEDS
First, most of the elements of the new requirements should already be included as standard in most employment contract templates. Hardly any company should only provide reference to the formal aspects of a termination. In future, a corresponding information sheet must be submitted with the employment contract. Otherwise, it has no effect on the effectiveness of a termination.
However, there is also a transitional regulation which provides that for all employment relationships that already exist on August 1, 2022, the documentation obligation only applies after a corresponding request from the employees. Existing employment contracts should therefore not be changed immediately.
END OF DIGITAL EMPLOYMENT CONTRACTS
So far, violations of the NachwG have had virtually no negative consequences for companies, except for conceivable probative disadvantages in particular constellations. For this reason, they were also able to conclude their employment contracts digitally (with or without a qualified electronic signature) and then file them digitally.
Such behavior is now punishable by a fine, which for many companies should mean the end of purely digital employment contracts. However, this does not mean that we should return to the path of the analog personal file: it is conceivable that companies manage employment contracts digitally even in application of the new regulations. At first, there is only an analog copy signed by both parties (possibly supplemented by a receipt, after which the employee confirms receipt of the signed original), which is scanned for the company and the original is then returned to the employee.
The reason why the German legislator did not make use of the possibility of concluding employment contracts in digital form and therefore went beyond the directive cannot be explained – also in view of the discussions within the framework of the legislative process. For some companies, it is therefore time to print employment contracts again.