Interesting Parallels in Germany – part twelve

26 04 2010

Continuing with our Parallels in Germany series, here’s something that was emailed to me by my ‘informant’, about the current state of the German legal system ( some of the formatting has been lost, unfortunately ):

The Federal Employment Court upheld the law on the payment of shift allowances in the case of an employee of a private employer. They quoted the actual law which is:
 
According to § 6 sub 5 of the ArbZG (Work Allowances Law) the employer is to give the night shift worker, in those cases where no contractual tariff compensation ruling exists, for the duration of the hours worked at night, an appropriate number of days in paid leave or an appropriate allowance on top of the gross final pay to which he was entitled. Within this context the employer has the right to choose between the alternatives laid down by this law.
 
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The judge in the case I was involved in decided not to mention the relevant law above, she decided the following:

To be precise, the Chamber is of the opinion, that the plaintiff’s activity took place within the immediate living area of the unit’s accommodation. A distance between place of work and accommodation of 300 metres does not invalidate “immediate vicinity” because this is an integrated site, and the distance can be covered in a few minutes.

So as you can see her decision totally changed the law on shift allowances for government employees at least.
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Dr. Lewis Moonie MP at the MoD(UK) when asked to define a suitable maximum distance it is possible to walk to  work and, therefore, claim shift allowances over that, decided to ignore the court verdict that they had got with this statement:

Turning now to Mr ******’s specific questions, he asked for a definition of the distance that he would be required to live away from his place of duty to qualify for a shift allowance. Shift allowances are covered by Paragraph 8 of the Appendix. You will see that employees listed in paragraph 12b and 12c are not entitled to shift allowances. This includes watchmen, no matter where they live.
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To make this more interesting I was on a supervisors course at Paderborn Garrison in Germany and we were given a document on various laws in Germany.

The following is from the law on Tariff Agreements:

The wording of sub para 4 is as follows:
 
A waiver of arisen rights resulting from a tariff are admissible only if the tariff partners conclude an appropriate arrangement. The forfeiture of tariff rights is excluded. A preclusive period during which claims are to be raised may be concluded in the tariff agreement only.
 
This means that neither an employee nor the employer may waive his rights. For example an employee cannot waive his entitlements to payment of Supplements, overtime, days off, etc. Even if the employee and the employer conclude such an agreement, such an agreement is legally invalid by law and the employee may raise an appropriate claim later on. This may result in financial disadvantages if for instance, an employee is given time off instead of payment for night work. He may later claim the night supplement and the employer would not be able to request the employee to work the time off he initially had been granted.

The part in blue is direct from the law, the paragraph below is what Paderborn Garrison added to explain the section of the law.

As you can see shift allowances cannot be waived and they have to be paid.

I think you can see that the German Legal System and Courts are anything but Democratic with the consent of the EU.

As ever all quoted statements are available in the documents they were written in.

More to come…

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3 05 2010
Interesting parallels in Germany – the road so far « Defend Geert Wilders

[…] Interesting Parallels in Germany – part twelve […]

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