31. July 2020 – Government passes draft bill for Arbeitsschutzkontrollgesetz or Work Safety Monitoring Law

Following the outbreak of coronavirus at the Tönnies slaughtering business, Germany’s federal government promised quick and clear improvements on worker protection in the meat industry. By May they had resolved in a benchmark paper on a work health and safety programme involving ten measures. Of these ten, seven have made it through to the government’s draft passed this week by the federal cabinet.

Planned measures

The most radical measure is the ban on outside personnel working in the core business of the meat industry. Slaughtering, cutting up and processing meat will soon have to be done by an abattoir’s own staff, and nobody else. Contracts for work in these areas will be prohibited from 1 January 2021 onwards, and labour leasing will be disallowed from 1 April 2021. Butchery businesses with up to 49 employees will be exempt.

Germany’s Ordinance on Workplaces (Arbeitsstättenverordnung) will also soon stipulate how off-site shared accommodation for employees is to be equipped. And employers will be obliged to inform the relevant authorities about where all of their workers live and work.

Furthermore, employers are to be obliged to record the beginning and end of their workforce’s daily shifts electronically. Butchery businesses are exempt.

Contraventions of the Working Hours Act (Arbeitszeitgesetz) will carry heavier fines if the draft is passed; the legal framework for this will be raised from EUR 15,000 to EUR 30,000.

State work safety authorities will be monitoring businesses more frequently, in order to protect workers’ rights to health and safety at work more effectively. Standardised, binding monitoring quotas will be established for the federal states. There will also be focused monitoring in risk sectors.

Outlook

The comprehensive ban on the use of outside staff through contracts for work and labour leasing is harsher than anything that has come before. The current legal situation only entails far-reaching restrictions for labour leasing in the building industry under § 1b AÜG (Temporary Employment Act). Food production is certainly as important as the building industry when it comes to the provision of essential services.

Having said that, the milder limitations imposed by § 1b AÜG are mainly considered inadequate in the literature in view of the Directive on Temporary Agency Work (2008/104/EC). A similar assessment could surely be applied to the planned ban on outside personnel and to free enterprise pursuant to Art. 12 GG (German Basic Law). A feasible milder measure would be piercing the corporate veil on abattoirs, to get them to comply with industrial safety regulations on outside personnel on their premises and at off-site shared accommodation. Such a regulation could be formulated in a similar way to the subcontractor liability for social insurance contributions laid down in § 28e SGB IV (German Social Code IV) and for minimum wages pursuant to § 13 MiLoG (Minimum Wage Act) in the building industry.

In this sense, it is good news that the Ordinance on Workplaces will soon be imposing rules on shared accommodation away from business premises.

But the most sensible measures in the draft law are the plans to step up the monitoring of premises. As is so often the case, the problem lies not in a gap in the law, but in a lack of compliance with existing laws. Contracts for work are often illegally and improperly used within the existing legal framework. Monitoring contractual work more effectively, combined with piercing the corporate veil, would not only render blanket bans superfluous, it would better serve the aim of protecting employees. All the more so as it became known just one day after the government’s draft passed that the meat industry is apparently already working to circumvent the ban by setting up small enterprises.

We will have to wait and see whether the draft will be passed without amendments by the Bundestag, or whether they will change aspects of it. If an all-out prohibition on using outside personnel is imposed, the only avenue left to employers will be an appeal on constitutional grounds.