Fixed term contracts (from now on FTC) regulations in Germany
40% of all new contracts in Berlin are FTC (2014); in 2010 it was 50%: some branches are now struggling to find workers who do FT: no nurse would do this because of the good job offer; this is the case because of the rest of Europe is suffering.
What Germany does in terms of FTC is the bare minimum of what EU allows (fix term regulation from 1995): parts of the German part-time and FT contracts were even illegal according to the EU (particularly for the elder people).
There are two main different legal types of FTC:
- FT contracts with a specific reasons
- FT contracts without a specific reasons
Fixed term with a reason
If you are employed to replace somebody else (for maternity leave, or sick) then you have a specific reason. Using this contract, employers have to be very specific: the more they are specific, the higher is their capability to justify the temporary aspect of the contract and therefore to utilise it; if properly motivated, employees can have this contract for an incredible amount of time (es: in Hamburg a case of maternity leave substitution was repeated for 7 years).
Usually, employers do not have the possibility to employ this contract too often (even if it is not strictly regulated):
- “project option:” operational need is only temporary; the employer has to pay attention because it is his/her role to demonstrate the project relation of the job; the employee has to work on a specific project for the majority of the time, without mixing more than project;
- “apprentice:” contract follows ausbildung/azubi and facilitates the subsequent job;
- the employee is hired to fill another employee (maternity, sickness, etc.);
- the type of work involved justifies a fix term (asparagus pickers); this has to be clearly proved, and it cannot be justified through working peaks; there has to be no need for a specific work only in certain months (it works for a hotel concierge working in the Alps, not in Berlin); however, it also works for exhibitions and theatre actions;
- “probezeit:” overlapping with other regulations, so clause not really important;
- personal reasons: the employee specifically asks for a FTC;
- project option, but only applicable in public services (same as 1.);
- based on court dismissal (50% of labour court cases are about dismissals);
There are other specific forms, which work for universities and hospitals, for instance (Wissenschaftzeitvetragsgesetz, 6+6 years, no more renewable).
The employer can go on with this kind of contracts almost forever, but it is not so easy to employ them. If an employer does a massive use of FTCs, s/he does not use this kind of contracts, but rather the ones without a reason.
Fixed term without a reason
Vast majority of FTCs. No reason needs to motivate them, but they have a stronger rule set:
- you can have a FTC up to two years; this refers obviously to one company, however it does not happen too often that employees are passed among different companies to avoid this condition: it happens often in airports, for instance, not in supermarkets, where FTC is more expansive than having a minimum wage contract;
- (within the two years) are available up to three extensions; extension is possible only if it is extending the same contract, including the pay, the task and so on – the only thing that may be subject to change is working hours; if an employer makes a mistake about that and changes something of these conditions, even in the employee’s benefit, this brings to a long-term contract for the employee, without any probezeit;
- you can have only one FTC with the same company;
- FTC have always to be in writing; if the employee started working, even for just one day, without a written FTC, this is going to become a long term contract;
- if you work after the end of the FT period; if the employee worked, even for just one day, after the end of the FTC, this is going to become a long term contract.
Discrimination aspect: one of the worst problems is that it is impossible to use normal labour rights as a FT employee;
– strikes/pregnancy/work-council: nobody can be dismissed for these reasons, but the employer can decide not to extend your contract, that’s why FTC workers do not take part in strikes, work-councils or do not take maternity leaves: legally you can do this, technically you can’t.
In theory, there is a legal way to overcome this: if there is a “control group” who can confirm the discrimination. If a big group has a contract extended and just the discriminated one does not, discrimination will be clear and the employee can have his/her position back (because of the EU law); in this case, it is the employer who has to prove why this was not a discrimination; however, this is very rare: only 3 cases in the last 10 years.