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Laborlaw-Magazine.Com No www.laborlaw-magazine.com No. 4 – December 4, 2017 Made in Germany In this issue EU law/labor law – Labor law & maternity protection – Labor law – LLMInternational labor law – Labor law & compliance 2 – Editorial/content – LLM – No. 4 – December 4, 2017 EU law/labor law Labor law International labor law Prof. Thomas Wegerich, 3_ Luxembourg is setting the decisive 13_ Businesses should take advantage 22_ Cutting through complexity Editor points of their opportunities International assignments in light Labor Law Magazine ECJ: Holiday right between Voluntary redundancy programs as of the revised Posting of Workers Germany and Europe – risks for an alternative to unilateral staff cuts Directive [email protected] employers By Dr. Wolfgang Lipinski By Sachka Stefanova-Behlert and By Dr. Bernd Borgmann and Tom Stiebert Dr. Thomas Wolf Labor Law Magazine: Works council elections and Posting of Workers Directive ahead Labor law Dear Readers, Labor law 16_ Achieving the impossible? Labor law & compliance 6_ Close observation of works council Information on mass layoffs in 25_ Guidelines for internal Our prestigious Advisory Board keeps growing: Today we would like to welcome York von Roenne, Global elections 2018 Germany and how to get it right investigations Director of Human Resources, Leica Camera AG, on Mistakes can be expensive for By Dr. Jan Tibor Lelley, LL.M. and Two landmark decisions by the board the ship. employers Dr. Julia Bruck German Federal Labor Court “Mistakes can be expensive for employers,” says our By Pauline Moritz By Dr. Daniel Klösel and author Pauline Moritz with regard to the German Dr. Thilo Mahnhold works council elections which are on next year’s International labor law agenda. You better find out what she means. Labor law & maternity protection 19_ Working towards an integrated The revised Posting of Workers Directive is high- 9_ A broader range of protection European labor market lighted in two articles in this edition of Labor Law The German Maternity Protection The posting of workers Magazine. Marc André Gimmy/Katja Schiffelholz and Act and and its current reform By Marc André Gimmy and Sachka Stefanova-Behlert/Dr. Thomas Wolf take a By Axel Braun Katja Schiffelholz look at the new law from different angles. Don’t miss out on the two objectives. Finally: My colleagues Karin Gangl, Stefan Dworschak and myself wish you a merry Christmas and a happy and successful New Year. Stay with us in 2018! Sincerely yours, Thomas Wegerich 28_ Advisory board 32_ Cooperation partners 30_ Strategic partners and imprint 3 – EU law/labor law – LLM – No. 4 – December 4, 2017 Looking to Luxembourg and the ECJ Vacation rights in Germany and Europe and the risks for employers By Dr. Bernd Borgmann and Tom Stiebert The legal frame From the point of view of the employee, vacations are usually a nice thing. Even from the point of view of a reasonable employer, there are no concerns about granting leave to workers as they gen- e r ally return to work more relaxed and often more motivated. From a legal point of view, it is also quite simple: The employee takes annual leave and is paid in full during that time. Vaca- tion entitlement cannot be bought or transferred to subsequent years. German law confirms this: Payment continues while the employee is on vacation (section 11 Federal Vacation Act [Bundesurlaubsgesetz, BUrlG]). In addi- tion, the vacation must be taken during the current year (section 7 (3) BUrlG). A transfer to subsequent years is generally inadmissible (section 7 (3) BUrlG). Only in special cases can it be transferred to the following year and must then be Sunny with a hint of looming uncertainty – vacationing can also have its legal pitfalls. taken within three months. However, © Wavebreakmedia Ltd/Wavebreak Media/Thinkstock/Getty Images employment contracts or collective –> 4 – EU law/labor law – LLM – No. 4 – December 4, 2017 agreements often provide for the pos- EU law in the last 10 years, which has leave of a worker who is unfit for work Thus, according to case law, there is a risk sibility of a longer transfer period into the meant that German jurisprudence has for several consecutive reference periods”. for the employer in special cases but this following year. If the leave is not taken, had to be modified accordingly. (judgement from November 22, 2011, KHS, is limited financially by the time limit compensation should only be granted if docket number C-214/10) imposed by the ECJ. the employment contract ends (section 7 It all started with the judgment in (4) BUrlG). the Schultz-Hoff case in 2009 (docket German law then had to react to this and Turnaround by ECJ judgment of number C-350/06). The ECJ emphasized interpret § 7 (3) BUrlG in accordance with November 29, 2017 However, more aspects came into play here: “Article 7(2) of Directive 2003/88 European law. through EU law. Directive 2003/88/EC must be interpreted as precluding national Surprisingly, the ECJ seems to see it dif- of the European Parliament and of the legislation or practices which provide The following principles then applied: ferently in a recent decision published Council of November 4, 2003 concerning that, on termination of the employment on November 29, 2017 (docket number certain aspects of the organization of relationship, no allowance in lieu of paid • If an employee has not taken up leave C-214/16). A bogus self-employed person working time states in Article 7: (1) Mem- annual leave not taken is to be paid to a although able to do so, the leave will – an employee who worked on the basis ber States shall take the measures neces- worker who has been on sick leave for the be canceled by the end of the year. of a self-employed, commission-only sary to ensure that every worker is entitled whole or part of the leave year and/or of contract not being entitled to the claims to paid annual leave of at least four weeks a carry-over period, which was the reason • If it was not possible to take leave, of a salaried employee (such as vaca- in accordance with the conditions for why he could not exercise his right to paid especially due to illness, the leave can tion) – had sued for compensation of the entitlement to, and granting of, such leave annual leave”. The excitement was great be transferred for another 15 months. vacation not granted to him from 1999 to laid down by national legislation and/or and many suspected that this should 2012. The ECJ would have been expected practice. (2) The minimum period of paid mean that an unlimited accumulation • This should also apply to the allow- to limit the compensation but this did annual leave may not be replaced by an of leave would be possible, which may ance in lieu – the remaining leave is not happen. allowance in lieu, except where the em- also lead to unlimited compensation. thus to be paid; if the leave entitle- ployment relationship is terminated. Shortly thereafter, the ECJ was forced to ment is lost, there is no claim for The ECJ emphasized: “Article 7 of Directive modify its decision, stressing: “Article 7(1) compensation. 2003/88 must be interpreted as preclu- The problem of transferring the leave of Directive 2003/88/EC of the European ding national provisions or practices that entitlement to subsequent years, how- Parliament and of the Council of 4 No- • Limitation regulations do not apply prevent a worker from carrying over and, ever, is not explicitly dealt with. Here, vember 2003 concerning certain aspects here either since the claim for allow- where appropriate, accumulating, until therefore, national law still seems to be of the organisation of working time must ance in lieu arises only at the end of termination of his employment relation- relevant. be interpreted as not precluding national the employment relationship. ship, paid annual leave rights not exercised provisions or practices, such as collective in respect of several consecutive reference The important judgments of the ECJ agreements, which limit, by a carry-over • Exclusion periods can indeed be fixed periods because his employer refused to period of 15 months on the expiry of which in principle, but these also do not remunerate that leave.” Nevertheless, for many, surprisingly, the the right to paid annual leave lapses, the begin until the employment relation- right to vacation has become a focus of accumulation of entitlement to such ship ends. –> 5 – EU law/labor law – LLM – No. 4 – December 4, 2017 There was no time limit here, with the always be preserved for the employee. before. Vacation rights continue to be a result that the employer has to finan- The interests of the employer, however, topic where fundamental changes are cially compensate a vacation entitlement can lead to this claim being cut. Surpris- always possible. Knowledge of German of 13 years (i.e., at least 13 x 20 = 260 days), ingly, the ECJ no longer refers to the law alone is no longer sufficient here; which is a significant cost. The ECJ did not recreational function of the vacation in its Luxembourg sets the course. <– rule on whether, had the employment re- argumentation, but turns it into a purely lationship continued, it would have been financial consideration. possible to claim the leave for 260 days as well. At first glance, however, this judg- Consequences in practice ment seems to be a negative departure from previous case law – at least from the It is always important to check the rights perspective of an employer. to which an employee is entitled. This includes strictly distinguishing between However – and this is also clear – the employees and the self-employed.
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