Section 7. Worker Rights
The constitution, federal legislation, and government regulations provide for the right of employees to form and join independent unions, bargain collectively, and conduct legal strikes. The law prohibits antiunion discrimination and offers legal remedies to claim damages, including the reinstatement of unlawfully dismissed workers. The government generally respected these rights.
No laws or regulations limit these labor rights. In addition while civil servants are free to form or join unions, their wages and working conditions are determined by legislation and not by collective bargaining. All civil servants (including some teachers, postal workers, railroad employees, and police), and members of the armed forces are prohibited from striking. All employees, whether trade union members or not, usually benefit from the provisions of the bargained collective agreement.
Employers are generally free to decide whether to be a party to a collective bargaining agreement; however, companies need to apply the provisions of a collective agreement if the Ministry of Labor and Social Affairs declares a collective bargaining agreement as generally binding. Employers not legally bound by collective bargaining agreements also often made use of them to determine part or all employment conditions of their employees. Employers may contest in court a strike’s proportionality and a trade union’s right to take strike actions. Legislation fails to establish clear criteria, but case law provides specific measures on strike matters.
The government enforced the applicable laws with adequate resources. Actions and measures by employers to limit or violate freedom of association and the right to collective bargaining are considered unlawful and void and lead to fines. Penalties were adequate and remediation efforts were sufficient.
The government and employers respected freedom of association and the right to collective bargaining. There were reports that a few employers–primarily owner-managed companies–interfered in the work council elections, in which employees in companies with five or more employees elect representatives to participate in discussions and cooperation with the company’s management. Laws regulate cooperation between management and work councils, including the right of the workers to information about company operations that could affect them. The penalty for employers who interfere in work councils’ elections and operations is up to one year in prison or a fine. Work councils are independent from labor unions but often have close ties to the sector’s labor movement.
The constitution and federal law prohibit all forms of forced or compulsory labor; nevertheless, there were reports of forced labor. Penalties for forced labor range from six months to 10 years in prison and were sufficiently stringent to deter violations.
The government effectively enforced the law when companies were discovered employing forced labor, but NGOs questioned the adequacy of resources to investigate and prosecute forced labor, and courts at times failed to impose appropriate sentences. Some traffickers received suspended sentences which limited the effectiveness of government enforcement efforts.
There were reports of forced labor involving adults, mainly in agriculture and construction. There were also reports in restaurants, hotels, meat-processing plants, seasonal industries, and domestic households. In 2015, the latest year for which statistics were available, police completed 19 labor-trafficking investigations which identified 54 victims, mostly from Bulgaria (63 percent) followed by Romania (7 percent), and Hungary (7 percent).
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
The law prohibits the employment of children younger than 15 years of age with a few exceptions: Children aged 13 or 14 may perform farm work for up to three hours per day or perform services such as delivering newspapers, babysitting, and dog walking for up to two hours per day. Children of these ages may not work during school hours, before 8 a.m., or after 6 p.m. The type of work must not pose any risk to the security, health, or development of the child and must not prevent the child from obtaining schooling and training. Children are not allowed to work with hazardous materials, carry or handle items weighing more than 22 pounds, perform work requiring an unsuitable posture, or work that exposes them to the risk of an accident (especially by machine operation or animal care). Children between three and 14 years of age may take part in cultural performances, but there are strict limits on the kind of activity, number of hours, and time of day.
The government effectively enforced these laws. Courts may punish violators with fines of up to 15,000 euros ($16,500) and a prison sentence of up to one year for severe cases that intentionally cause serious risk to the child’s health and employability. These penalties were adequate to deter violations.
Isolated cases of child labor might have occurred in small, family-owned businesses, such as cafes, restaurants, family farms, and grocery stores. Inspections by the regional inspection agencies and the resources and remediation available to them were adequate to ensure broad compliance.
The Equal Treatment Law, which focuses on equal treatment with respect to employment and occupation, prohibits discrimination based on ethnic origin or race (including skin color and language), age, sex, religion or belief or world view (including political opinion), sexual orientation and gender identity, disability, and HIV positive status or other communicable diseases. The law protects against discrimination in all areas of occupation and employment, from recruitment, self-employment, and promotion, to career advancement. Although social origin and citizenship are not explicitly listed as grounds of discrimination in the Equal Treatment Law, persons who fell victim of such discrimination have other means to assert legal claims.
The government effectively enforced these laws and regulations. The law obliges employers to protect employees from discrimination at work. Employees who believe they are victims of discrimination have a right to file an official complaint and to have the complaint heard. If an employer remains inactive or fails to protect the employee effectively, employees may remove themselves from places and situations of discrimination without losing employment or pay. In cases of violations of the Equal Treatment Law, victims of discrimination are entitled to injunctions, removal, and material or nonmaterial damages set by court decision. Penalties were sufficient to deter violations. According to a 2015 FADA survey, almost half of all discrimination cases took place in a work environment or during the recruitment process. The most common grounds of employment-related discrimination were age, sex, and gender identity. Persons of foreign origin and persons with disabilities faced particular difficulties finding employment.
According to a study conducted by the Hans-Boeckler Foundation, the unemployment rate among immigrants–particularly those from Turkey, former Yugoslavia, and non-European countries–was twice as high as that of the general population. Immigrants were also more likely to have temporary or marginal employment with fewer prospects for career and wage advancement, regardless of their qualification level. According to FADA, job applicants with foreign-sounding names were up to 24 percent less likely to receive a job interview than equally qualified applicants with German names. The public sector sometimes conducted similar studies using anonymized applications, but it was not yet a widespread practice.
A 2015 study by the German Statistics Office found that women’s wages were on average 21 percent less than those of men, and women less frequently held managerial and executive positions. The gap was considerably larger in the western part of the country (23 percent) than in the east (8 percent). The survey also found that the gender pay gap increased with age. Based on 2010 data, the latest to include structural adjustments, the gap narrowed to 7 percent when adjusted for structural differences (such as profession or sector, education, part-time and full-time employment). FADA reported that women were at a disadvantage regarding promotions, often due to interruptions for child rearing.
In 2015 women occupied 6 percent of the positions on management boards and 20 percent of positions on supervisory boards in the country’s top 200 companies. The law imposes a gender quota of 30 percent for supervisory boards of certain publicly traded corporations. The law also requires approximately 3,500 companies to set and publish self-determined targets for increasing the share of women in leading positions (executive boards and management) by 2017 and to report on their performance.
In July the NRW state parliament passed a law that removes structural disadvantages faced by women in civil service. The law gives women with essentially equal qualifications for leadership positions preferential treatment over men until a 50-percent quota is reached for the specific hierarchical level. The law was strongly debated and might face court challenges. On September 5, the Duesseldorf administrational court ruled this passage of the service law unconstitutional. A police officer took legal action against the promotion of several female police officers. This judgment was the first in an expected wave of lawsuits. The judges argued that such provisions are not within the state jurisdiction and according to the federal law promotions were strictly by skills and not by sex. On September 12, Minister President Hannelore Kraft announced that the NRW government would appeal the verdict.
There were also reports of employment discrimination against persons with disabilities. The unemployment rate among persons with disabilities was 13.9 percent in 2015, considerably higher than that of the general population. The government undertook a number of measures to promote the employment of persons with disabilities. Employers with 20 or more employees must hire persons with more significant disabilities to fill at least 5 percent of all positions. There are special provisions for companies with 20-40 employees (one position for persons with disabilities) and 40-60 (two positions for persons with disabilities). Companies that fail to meet these quotas face a monthly fine of 105-260 euros ($116-$286) for each required position not filled by a person with disabilities.
In May the Federal Constitutional Court ruled in favor of two teachers who sued NRW because the state denied them permanent civil servant status due to age. The court ruled the age limit to be unjustified and a massive infringement of the fundamental right of freedom to pursue a professional activity.
In 2015 the NRW government raised the age limit to enter permanent civil service status from 40 to 42 years old. In other states the age limits are 45 years (Bavaria), 47 years (Thuringia), or 50 years (Hesse). In response, the Protective Association of Employed Teachers filed a complaint with the EU Commission in Brussels for violation of the ban on age discrimination. The proceedings are expected to take approximately one year.
The law provides for equal treatment of foreign workers, although foreign workers faced some wage discrimination. For example, employers, particularly in the construction sector, sometimes paid lower wages to seasonal workers from Eastern Europe who were in the country on temporary work permits. According to a 2013 study by the Institute of Labor Market Research, the wage gap between foreign workers and other workers narrowed as the foreign workers’ stay in the country lengthened; nevertheless, information from 2008 indicated that, after eight years working in the country, foreign workers earned 28 percent less than the average worker.
e. Acceptable Conditions of Work
In January 2015 the country’s first statutory countrywide minimum wage of 8.50 euros ($9.35) per hour (before tax) entered into effect. The law exempts young persons under 18 and the long-term unemployed during their first six months in a new job. The remaining four sectors with existing collective agreements that include minimum wages below the statutory minimum wage level have until January 2017 to transition. Sectors that set their own minimum wages include electrical trades, painting, scaffolding, roofing, waste management, large-scale laundries, cleaning services, nursing care, hairdressing, meat processing, special mining services, and temporary employment agencies. Sector-wide minimum wages, which were generally lower in the eastern parts of the country than in the west, ranged from 7.90 euros ($8.69) per hour in agriculture and forestry (in the East) to 15.73 euros ($17.30) per hour in the money processing and valuables transportation industries in the western state of NRW. The national statutory minimum wage of 8.50 euros ($9.35) per hour is 48 percent of the median hourly wage for full-time employees in the country, putting it below the internationally defined “low-wage” level of two-thirds of the national median wage. According to the EU Statistical Office, in 2015 persons living in a single household in the country with an income of less than 12,396 euros ($13,636) per year (60 percent of the national median income) were at risk of poverty. More than 13 million persons (16.7 percent of the population) fell below this threshold.
Federal regulations set the standard workday at eight hours, with a maximum of 10 hours, and limit the average workweek to 48 hours. Collective bargaining agreements, which directly or indirectly affect 79 percent of the working population, regulate the number of weekly working hours and the average maximum workweek under current agreements is 37.7 hours. According to the Federal Statistical Office, the average workweek of full-time employees was 41.5 hours in 2015. The law requires a break after no more than six hours of work, stipulates regular breaks totaling at least 30 minutes, and sets a minimum of 24 days of paid annual leave in addition to official holidays. Provisions for overtime, holiday, and weekend pay varied, depending upon the applicable collective bargaining agreement. Such agreements or individual contracts prohibited excessive compulsory overtime and protected workers against arbitrary employer requests.
The Customs Office’s Financial Control Illicit Work Unit (FKS) is responsible for monitoring compliance with the statutory and sector-wide minimum wages and hours of work. The FKS conducted checks on 43,000 companies and 360,000 individuals in 2015 and completed 104,000 criminal proceedings. Employees may sue companies if employers fail to comply with the Minimum Wage Act. Courts may sentence employers who violate the provisions to pay a fine of up to 500,000 euros ($550,000).
An extensive set of laws and regulations govern occupational safety and health. A comprehensive system of worker insurance carriers enforced safety requirements in the workplace. Workers may remove themselves from situations that endanger their health or safety without jeopardizing their employment, and authorities effectively protected employees in this situation.
The Federal Ministry of Labor and Social Affairs and its counterparts in the states effectively monitored and enforced occupational safety and health standards through a network of government bodies, including the Federal Agency for Occupational Safety and Health. At the local level, professional and trade associations–self-governing public corporations with delegates representing both employers and unions–as well as work councils oversaw worker safety.
The number of inspectors declined in recent years, but there were enough to ensure compliance. In 2014, 2,538 inspectors visited approximately 286,000 companies to examine working conditions and compliance with occupational safety and health regulations. In 2014 there were 409,702 complaints. Employees may sue employers who do not comply with occupational safety and health regulations. In cases in which the employer culpably infringed the duty to have regard for the welfare of its employees, a court may sentence the company to pay compensation to the affected employees and a fine of up to 25,000 euros ($27,500). In severe cases offenders the law provides for prison sentences of up to one year. These penalties were adequate.
During 2015 the number of reported work accidents decreased to approximately 866,000 incidents despite growing employment numbers. There were fewer than 22 accidents in the workplace for every 1,000 full-time workers–the lowest level since reunification of the country. Most accidents occurred in the construction, wood and metalworking, and transportation industries. The number of workplace fatalities also decreased to 470.