Working in Germany

Employment law

Do German employment law and German collective agreements apply to EU citizens, working in Germany, the same way as to Germans?

Yes, generally the regulations of German employment law apply to the employment of an EU citizen with a German employer. This includes for example the regulations on continued remuneration in case of illness, on holidays, on protection against dismissal, on working hours and on work protection provisions. The German employment law does not differentiate between domestic and foreign employees. In particular, the employer has the duty to the foreign employees to issue the essential terms of the contract in writing and to hand out a signed version to the employee not later than one month from the beginning of employment. The working conditions of the employees are regulated in the German collective agreements. They define salaries or holiday entitlements that exceed the minimum statutory leave, for instance. The collective agreements are valid for German and foreign workers in the same way. The norms of a German collective agreement hold directly for EU citizens if the employer is bound to a collective agreement of a workers union, the EU citizen is a member of.

Even if the EU citizen is not a member of the particular workers union, terms of the collective agreement apply, if agreed upon in the work contract. In case of such a reference from the work contract to the collective agreement, the EU citizens must not be underprivileged and be treated differently by the employer compared to German employees. This is a consequence of the obligation to national treatment by EU law as well as the general principle of equality in employment law. Collective agreement provisions also apply, if the employment is subject to a generally obligatory collective agreement.

Minimum wage

Which minimum wage levels exist in general and for temporary employment?

The Posted Workers Act (AEntG) establishes specific minimum wages for all temporary workers in the sectors exclusively protected by this law.

An employee has a right to a sector-specific minimum wage, if
- the respective sector is listed in the Posted Workers Act,
- a collective agreement on the minimum wage has been concluded and
- it covers all employers and employees of this sector by declaration of universal application (Allgemeinverbindlicherklärung) or statutory regulations.

Special rules apply to the care provision sector as an ordinance based on the proposal of a care commission may set the minimum wage.

Sector-specific minimum wages exist in particular for the construction industry, for industrial cleaning and for the care provision sector.

All currently prevailing sector-specific minimum wages are published on the web page of the Federal Ministry of Labour and Social Affairs.

Minimum wage in temporary employment

Furthermore, there is an absolute minimum wage level in temporary employment established by ordinance. After 1. January 2012, it is € 7.50 for the federal states Berlin, Brandenburg, Mecklenburg-West Pomerania, Saxony, Saxony-Anhalt and Thuringia and € 8.19 for all other federal states. The minimum wage level applies to all temporary workers employed in Germany, regardless of whether the employer is placed inside or outside of Germany. The ordinance is limited until 31. October 2013.

Therefore, temporary workers receive during periods of assignment and periods without assignment at least this agreed minimum wage introduced by ordinance.

Regardless of the sector, the ban on immoral remuneration applies for all employments. According to the Federal Labour Court, the remuneration is immorally low, if it goes below a collective agreement relevant to the sector or, if no collective agreement is applicable, below the locally accepted remuneration by more than a third.

Which legal consequences does a violation of the minimum wage have?

If the employer violates his obligation to pay the minimum wage or to grant the minimum leave as specified in the Posted Workers Act, this is punishable by a fine of up to € 500,000. If the employer violates his obligation to cooperate in inspections, e.g. by failing to provide information or documents, this is punishable by a fine of up to € 30,000. Additionally, the employer who has been fined a minimum of € 2,500 for an administrative offence according to the Posted Workers Act may be excluded from the awarding of public contracts. If the German employer does not provide the EU citizens with the sector-specific working conditions established by the Posted Workers Act, the employee may claim these from the contractor of the employer as well. The contractor is liable without own guilt like a surety, who is liable as principal.

Immoral remuneration may also constitute the offence of usury (§ 291 German Criminal Code).

Control of remuneration standards

The employer's compliance with the applicable sector-specific working conditions according to the Posted Workers Act, is monitored by the German Customs Administration ( FKS - financial control of undeclared employment).

The monitoring authority is entitled to view documents, to question persons (employer, contractor, employee) and to enter business premises. Employers that are obliged to pay minimum wages according to the Posted Workers Act are legally obliged to record start, end and duration of the daily working hours and to keep these records for a minimum of two years. The employer has to keep these documents available on German territory as well as any other documents required for inspection (such as the work contract, the record on working hours and pay slips).

How can EU citizens enforce their rights?

Labour Court

EU citizens can just like German employees take legal action against German employers at the responsible labour court to enforce their rights provided by employment law. They can refer to their directly applicable

rights from EU law on equal treatment with German employees.

The foreign employee can file the lawsuit at the courts of the member state of the employer's place of residence or at a court at the employee's usual or recent place of employment.

If the claimant in the labour court procedure is not able to speak the German language, the court orders an interpreter.

In German labour courts of first instance, representation by a lawyer is compulsory. One can represent oneself during proceedings or authorize a proxy, e.g. a lawyer or employment law expert of the trade union for representation. However, there is no right to the successful party to get the proxy's charges repaid. Even if the case is won, there is no restitution for the lawyer's fee.

Yet, if the employee is not able to raise the cost of proceedings without effects on the necessary financial support for him and his family, a lawyer can be requested, if the opposing party, i.e. the employer, is represented by a lawyer.

The court fees are generally paid by the losing party. In case of partial success, the costs of proceedings are split pro-rata between the parties. Fees for interpreters and translators are usually not paid by the legal parties. If the own financial and personal circumstances do not permit to raise all or part of the labour court expenses and if the procedure at labour court is promising enough, the employee can request financial help (Prozesskostenhilfe) at the labour court or cross-border financial help according to the EC Prozesskostenhilfegesetz (EC Regulation on legal financial help) at the Local Court (Amtsgericht).

If financial help is granted, the employee is either exempted of the court fees and lawyer's fee, in case of a requested lawyer, or can pay the costs by instalments.

Work council

Next to - or rather prior to - the lawsuit at labour court, every employee can complain at the business' responsible department, if he feels discriminated against or treated unfairly by the employer or another employee at the business.

If a works council exists, the employer can approach the council for support or mediation.

The works council has the task to support the integration of the business' foreign employees. Furthermore, the council has to pay attention that all individuals employed at the business are treated equally.

Discrimination of an individual based on nationality, race, descent or ethnical or other origin, religion or ideology is also intolerable at work.

Temporary employment

Special regulations apply to the employment of EU foreigners in German temporary employment agencies.

EU foreigners, who are temporarily employed in Germany, have a right to full equal treatment with the German employees of the temporary employment agency.

The regulations of the German employment law, applicable for temporary workers and in particular the Temporary Employment Act (AÜG) apply regardless of whether a German temporary employment agency engages German or foreign employees.

Employees without German citizenship have a right to receive on demand the information sheet for temporary workers published by the Federal Employment Agency and a documentation of the basic working conditions in their native language from the temporary employer. The information sheet of the Employment Agency contains the important rights and duties for temporary workers for reading.

Trade Union

Are EU citizens in Germany allowed to join trade unions and participate in business determination?

EU citizens may join German trade unions. As member of a trade union they have the same rights and duties as German unionists. According to European Union law (Art. 8 (1) Regulation (EEC) No. 1612/68 on the freedom of movement for workers) EU citizens employed in other member states have to be treated equally with nationals regarding the membership in trade unions and the exercise of trade union rights.

Consequently, EU citizens have the active and passive right to vote as well as access to the administration of trade unions in Germany.

Concerning codetermination, businesses in Germany do not differentiate between German and foreign employees.