Script E Flashcards
The Legal Sources of Labour Law
What are the (7) most important legal sources of the German Labour Law (hierarchical order)?
- The European Union Law
- The Basic Law (Constitution)
- Statutory Laws
- Collective Agreements
- Works Agreements
- Employment Contracts
- Employer’s Right to Issue Instructions
The various legal sources of German Labour Law relate to each other in a hierarchical order. What does this principle mean and in which provisions can it be found?
The principle of hierarchy states: “In the case of a conflict between a higher-ranking legal source and a lower-ranking legal source, the lower-ranking legal source, the lower-ranking legal source does not apply, the principle of hierarchy can be found in Section 105 Sentence 1 and Section 106 Sentence 1 TRA
EU Law can be divided into 2 categories. What are they?
1) Primary EU Law
2) Secondary EU Law
What are the characteristics of the Primary EU Law?
The Primary EU Law is based on the international treaties that all member States must conclude and sign. Insofar as general principles arise from the treaties, these also belong to the EU Law
What are the characteristics of the Secondary EU Law?
The Secondary EU Law consists of the legal acts, created by EU institutions. As a rule, it is a commission that makes a proposal for a legal act, and it is the council and parliament that must agree to the proposal
What are the (3) most important legal acts of the Primary EU Law?
- The EU treaties:
a) TEU (Treaties of EU)
b) TFEU (Treaties of fixed EU) - The EU Charter of fundamental rights
- General Principle of EU Law
What are the (3) most important legal acts of the Secondary EU Law?
- EU Regulations
- EU Directives
- EU Decisions
What are the (7) examples of the human rights (employer to employee)?
1) Human dignity, according to Article 1 Subsection 1 Sentence 1 BL
2) Personal freedoms, according to Article 2 Subsection 1 and 2 BL
3) Equality before the law, according to Article 3 Subsection 1 BL
4) Freedom of faith and conscience, according to Article 4 Subsection 1 BL
5) Freedom of expression, according to Article 5 Subsection 1 Sentence 1 BL
6) Freedom of association, according to Article 9 Subsection 3 Sentence 1 BL
7) Occupational freedom, according to Article 12 Subsection 1 Sentence 1 BL
What is the most important function of statutory law in the field of labour law?
To define minimum working conditions to protect the employee
What are the (3) examples of the minimum working conditions to protect the employee?
- The minimum wage, according to Section 1 Subsection 1 MWA
- The minimum days of holiday, according to Section 3 FVA
- The limit of working hours, according to Section 3 HEA
Who is an employee according to which provision?
Section 611a CC defines the employment contract: according to this provision, an employee is any person who, on the basis of a private contract, is obliged to perform services for another person in accordance with that person’s instructions and is entitled to receive remuneration in return
Who is an employer?
Every person that employs at least 1 employee
What is a collective agreement?
A written contract between the Trade Union and an employer or an Employers’ Association
What is a collective agreements’ legal effect according to which provision?
According to Section 4 Subsection 1 Sentence 1 CAA, a collective agreement applies directly and mandatorily between employers and employees, who are bound by the agreement
What is the case of being “bound by the agreement?”
It requires that the employee is a member of exactly the same Trade Union that has concluded a collective agreement with his employer of his employers’ association
What is a works agreement?
A written contract, concluded between an employer on the 1 side, and the works council on the other
What is a works agreement’s legal effect according to which provision?
According to Section 77 Subsection 4 Sentence 1 WCA, works agreements have direct and mandatory effect for the employer and the employees of the company
What are the (6) legal sources of labour law?
1) EU Law
2) Basic Law
3) Statutory Law
4) Collective Agreement
5) Works Agreement
6) Employment Contract
What is the relationship between collective agreements and work agreements according to which provision?
According to Section 77 Subsection 3 Sentence 1 WCA, working conditions, which are regulated or normally regulated by collective agreements, may not be the subject of the works agreement
Does the law prescribe any specific form for an employment contract?
NO. Section 611a CC does not require a specific form for an employment contract, thus, an employment contract can be concluded orally or in written form to be effective
Where is the obligation (recording the essential contractual conditions in writing, signing the written record, and handing it to the employee) of the employer laid down?
Section 2 Subsection 1 Documentation Act
What are the legal consequences of using standard employment contracts according to which provision?
According to Section 310 Subsection 4 Sentence 2 CC, the control of standard business terms, and, in particular, the control under Section 307 Subsection 1 CC, who apples to preformulated standard employment contract
What are the most important provisions for the content control of standard employment contracts?
What are (2) consequences according to which provisions if a single clause of a standard employment contract violates the law, in particular Section 307 Subsection 1 Sentence 1 or Sentence 2 CC?
- Section 306 Subsection 1 CC states: if standard business terms are ineffective, the remainder of the contract remains in effect
- Section 306 Subsection 2 CC states: to the extent that the terms are ineffective, the contents of the contract are determined by the statutory provisions
To which (3) aspects of the work can the employers’ right to issue directiveness refer, according to Section 106 Sentence 1 TRA (Trade Union Act)?
- Content
- Place
- The time of the work performance
