Setting up a business or working on a contract abroad can mean complying with a very different legal system. Burkhard Fabritius offers an introduction to working within German health and safety regulations, and looks at how the country is adapting its existing regulations to accommodate changes from the European Commission.
As a British firm setting up to do business in Germany, you will need to comply with a system of health and safety regulations with which you may be unfamiliar.
The good news is, even though the legal system might be quite different, you will find that many of the requirements and results will be similar to what you are used to. Fundamentally — as in the UK — negligence may lead to the imposition of fines. However, there are some important differences to bear in mind.
A different approach
Firstly, although health and safety regulations are controlled by public authorities in Germany, they are not considered to be a separate field of law, but a part of employment law, whose primary objective is to protect employees.
Health and safety regulations are enforced in a dual system, with a statutory area on one side, and a self-governing area on the other. In general, the statutory laws outline general principles, whereas the guidelines of the self-governing area give much more detailed instructions.
A few examples of statutory regulations are: the Act on Safety and Health at Work (Arbeitsschutzgesetz), the Decree on Work at Computer Monitors (Bildschirmarbeitsverordnung), or the Hours of Employment Act (Arbeitszeitgesetz).
Of major importance to providing employees with financial support in case of an accident is the Social Security Code Book No. VII (Sozialgesetzbuch VII). This states that every employee must be insured for accidents in the workplace — this includes travelling to and from work. The insurance is covered by the Accident Prevention and Insurance Association (APIA — Berufsgenossenschaften). The APIA is financed by contributions paid by employers.
An example from the self-governing area of law are the Basic Principles of Accident Prevention (Unfallverhuetungsvorschrift Grundsaetze der Praevention — BGV A 1). These include first aid requirements. Under the Principles, one person has to be trained in first aid if the company employs up to 20 employees. Depending on the nature of the business, five per cent of all employees in office-based companies need to be first-aid trained, whereas this figure rises to 10 per cent in all other enterprises. Furthermore, a first-aider’s knowledge has to be refreshed every two years, a first-aid room has to be provided if a company employs more than 1000 employees at its premises, and a nurse is required for companies with more than 1500 employees.
Collective labour agreements
Part of the self-governing area also includes collective labour agreements — or agreements between the employer and the Works Council regarding safety in the workplace.
According to paragraph 80 of the Works Council Constitution Act (Betriebsverfassungsgesetz), the Works Council has the duty to make sure that health and safety regulations are obeyed. The employer has to inform the Works Council about the actions being taken to ensure health and safety in the workplace. The Works Council also reserves the right to take part in decision-making on health and safety measures.
These statutory regulations are enforced, either by statutory authorities, or by the local federal authorities. The self-governing area is enforced by the APIA, and the authorities have extensive rights to inspect companies’ premises, especially after accidents or reported breaches of the law. They also have the power to perform preventive inspections on workplace premises.
Hours of Employment Act
The Hours of Employment Act is an example of a typical statutory regulation. According to s1, the Act aims to ensure the health and safety of employees, and sets in place hours of employment that enhance flexibility, and protect days of rest.
The Act covers any employee working in Germany. This includes foreigners, people working for foreign companies, and employees of foreign troops. Those not covered include: managerial employees; heads of government agencies, and their representatives; as well as public servants that are authorised to make independent decisions in personnel matters. Special regulations are being made for minors, and the crews of ships.
However, the Hours of Employment law is set to undergo changes in order to accommodate the requirements of EC directive 2003/88. These changes will include a limit on the number of hours worked a week, which will be capped at 48 hours. In Germany, it is planned that these 48 hours will be during ‘working days’ only, and exclude Sunday.
In addition, daily working time will not be allowed to exceed eight hours. This may be extended to 10 hours (if the average shift within six calendar months — or 24 weeks — does not exceed eight hours per working day).
These changes will lead to more flexibility of the hours of employment. For example, under the changes it will be possible to work 115 10-hour days, one two-hour day, and then have 29 days off.
Further flexibility can be achieved by collective bargaining agreements. For example, a regular working time of 10 hours a day — without any balance — might be agreed if these hours of employment include ‘standby’ time (e.g. those working in hospitals).
Travelling time during business trips is not to be considered working time, unless the employee fulfils their duties while travelling, e.g. a bus driver. The Federal Labour Court (Bundesarbeitsgericht) decided that business trips on trains or planes are not working time, if the employer does not demand work to be performed while travelling. Even if the employee decides to work, e.g. read documents or answer e-mails, that time is not considered working time (decision dated 11 July 2006-9 AZR 519/05). The Federal Labour Court decided that the employee was free to undertake leisure activities while travelling, instead of working.
In general, employees may not be scheduled to work on Sundays or holidays, except those working in the emergency and rescue services, hospitals, restaurants, at live sports events, leisure establishments, and to maintain public safety and the function of the courts and governmental agencies.
No general restrictions are given for the temporal situation of working hours. Nevertheless, night shifts on working days may only be up to 10 hours (if the average shift within one calendar month, or four weeks, does not exceed eight hours on working days).
For part-time employees, s12 of the Part-Time and Fixed-Term Act (Teilzeit- und Befristungsgesetz) allows even further flexibility when setting hours of employment. According to s12, an employer may call off working time according to the actual volume of work. The time allowed to be called off, in addition to the working hours agreed upon, is restricted to 25 per cent of that agreed. The time agreed upon may not be shortened to less than 20 per cent (Federal Labour Court, decision dated 7 December, 2005-5 AZR 535/04). The Federal Labour Court reasoned that this restriction is necessary because the employer has to bear the risk if they are unable to keep the employer occupied, or in work.
A breach of the Hours of Employment Act may be fined as an administrative offence. It is punished with a fine of up to €15,000. In cases of persistent offences, an employer can be imprisoned for up to a year, or fined.
Liability
An interesting difference between German and British regulations is the fact that in Germany a company cannot be prosecuted under criminal and administrative law. In Germany, only a person — not a legal body — can be prosecuted under criminal and administrative law. This means the responsible manager or director will be prosecuted him/herself. The responsible manager may minimise this risk by delegating his duties.
Some time before the UK government enacted the Corporate Manslaughter and Corporate Homicide Act in the UK (the Act became law earlier this year), Germany had its own way of dealing with corporate negligence. In 1973 the German government stated it was almost impossible for responsible managers to obey all health and safety regulations, owing to their complexity and number. Therefore, the legislator provided the possibility to name and assign specialists to observe health and safety regulations.
By assigning such specialists, managers can reduce their liability. In case of a breach, the responsible managers are released from liability if they have selected and instructed their safety specialist carefully. If the manager is judged to have organised and supervised compliance with safety regulations accordingly, liability passes to the specialist.
Fines
A fine might be imposed if a health and safety regulation was breached deliberately or carelessly. The maximum fine allowed by law is €1.8m. In exception to the principle that a legal body can not be prosecuted, a fine might be imposed on a company if a manager commits a criminal act or administrative offence which causes them to neglect the duties of the legal body, or leads to enrichment of the company. In this case, the maximum fine for a company would be €1m. Liability under civil law may meet the company or the responsible manager.
Conclusion
Running a business in Germany, just as much as in the UK, you will have to do anything necessary to prevent employees from coming to harm. It is strongly advised that if you want to undertake any significant enterprise in Germany, you contact the responsible authorities, and the APIA. Both will provide practical information about which regulations to keep in mind, and how to meet their requirements.
The APIA offers plenty of guidance and resources (in German) for employers. For more information, visit its website
The Safety Conversation with SHP (previously the Safety and Health Podcast) aims to bring you the latest news, insights and legislation updates in the form of interviews, discussions and panel debates from leading figures within the profession.
Find us on Apple Podcasts, Spotify and Google Podcasts, subscribe and join the conversation today!
