Agreement between CDU/CSU and SPD

After a tough battle, the parliamentary groups of coalition parties CDU/CSU (Union) and SPD finally reached an agreement with respect to the envisaged occupational health and safety monitoring act (Arbeitsschutzkontrollgesetz) on 27 November 2020. As a result, there will be an end to agency work and contracts for work and services (Werkverträge) in the meat industry from 2021.

I. Background

With the development of several German administrative districts into “coronavirus hotspots” around the middle of this year, which was stemming from individual meat industry establishments, the entire industry suddenly found itself in a “hotspot” of media coverage. The resulting pressure on political players and the special situation caused by the pandemic are very likely to be the reason why the government in Berlin decided as early as on 20 May 2020 on the key points of an “Occupational health and safety programme for the meat industry” (Arbeitsschutzprogramms für die Fleischwirtschaft) in a hurry previously unheard of.

It was not long until the Ministry headed by Social Democrat Hubertus Heil (SPD), Federal Minister of Labour, came up with a corresponding draft bill. The core of the announced legislative act – at least judged by the degree of media attention – is a broad ban on the deployment of agency workers and third-party staff through contracts for work and services in the meat industry’s core business. These forms of employment were believed to have contributed to a significant degree to the spread of infections at the time, even though this assumption can certainly not be upheld beyond all doubt.

In the course of the lively discussions about the project, and probably not insignificantly encouraged by the willingness to act on the part of the Berlin government, there were soon voices claiming that the initiative indicated a general approach. The fear was that the ban in the meat industry would only be a first test and that more bans would follow. However, the federal government’s reply to a brief enquiry by the “Die Linke” parliamentary group took the wind out of the sails of those voicing such assumptions.

Then, however, things became quiet around this legislative initiative. Reportedly, there have been differences in opinion between Union and the SPD as to the content of the act. While the members of the Union parliamentary groups shied away from too far-reaching restrictions, the SPD group was afraid of the act becoming diluted. It appears, that the existing differences have now been resolved. Last Friday, there was news of an agreement: the occupational safety health and safety monitoring act (Arbeitsschutzkontrollgesetz) is on the way.

II. Main aspects of the occupational health and safety monitoring act

To tackle the working conditions in the meat industry which had already been condemned in pre-coronavirus times and to end the exploitation which has become a business model, the occupational health and safety monitoring act will be adopted by the German Bundestag even before Christmas (according to the statements of Labour Minister Heil in a press conference held on 27 November 2020).

Key points are:

• Expansion of checks: There will be comprehensive quotas for checking compliance with the rules on health and safety in the workplace. As a result, the competent regulatory authorities of the federal states will check compliance with health and safety measures in an establishment more often than before.
  
  
• Time recording: Manipulations of working time records is to be prevented to protect workers. In the future, working times in meat industry establishments will have to be recorded digitally and in a tamperproof manner. Increased fines of up to €30,000 will be imposed for violations.
  
  
• Accommodation: The provisions of the German Workplace Ordinance (Arbeitsstättenverordnung) are to be supplemented to establish higher minimum requirements for group accommodation of seasonal workers employed in agriculture and workers in the meat industry, even if such accommodation is located off-premises or at a construction site. For example, accommodation intended for extended stays has to be equipped with facilities for washing and drying clothes and dining areas have to feature facilities for preparing and storing food and for washing dishes.
  
  
• Ban on agency work and contracts for work and services: Furthermore, there will be a complete ban on the deployment of third-party staff in the meat industry’s core business. Deploying third-party staff though contracts for work and services will already be prohibited from 1 January 2021, while the ban on deploying agency workers will apply only from 1 April 2021. A permanent exception applies to companies which usually have no more than 49 persons working for them.

In addition to this exception which already existed at the beginning of the legislative procedure, the differences in opinion between the Union parties and the SPD in terms of content have led to the inclusion of another exception. According to Labour Minister Heil, deploying agency workers in meat-processing establishments is intended to still be generally allowed for up to three additional years. However, this requires the existence of a collective arrangement. Agency workers may also be deployed only up to a certain quota in this case (8% of all staff) and only for a specific period (four months maximum). Furthermore, deployed agency workers will have to be granted the same working conditions as permanent staff from day one of their assignments.

III. Outlook

Even though these developments provide clarity as to the completion of the legislative procedure, this is just the beginning of the real discussions regarding the content of the reform.

We already referred to – partly justified – critical statements in literature on the constitutional conformity of essential parts of the reform in an earlier article. The still critical position of a large number of players is another reason why the discussions are not expected to end in the near future. It is therefore presently highly likely that the occupational health and safety monitoring act will sooner or later be dealt with in a case before the German Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe.

Even beyond this core aspect, the reform has the potential to change the work environment in Germany with lasting effect. In view of the manifold issues relating to working time law it is not hard to imagine other legislative initiatives to enhance employee protection if it turns out to be both possible and practicable for an entire industry to digitally record staff working times in a tamperproof manner. The Act could be a first tentative advance in this respect.

In the light of the above it is almost negligible, but of course the implications of the occupational health and safety monitoring act will have to be implemented in the meat industry and other industries primarily affected. This will in some cases involve no less than a realignment of entire business strategies.