"Mobile Work Act" – an initial overview

The coalition agreement for the current legislative period already states that mobile work is to be promoted and a legal framework created. At the end of April this year, the Federal Labour Minister, Hubertus Heil, announced for the first time that there would be a draft law in the autumn. In an interview with the newspaper Bild am Sonntag (“BamS”) on 5 October 2020 entitled "More modern, more digital", Hubertus Heil made it widely publicly known that a draft law "Mobile Work Act" had been prepared by the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, “BMAS”).

The draft law already raises a number of questions even before its exact wording is known. A central point: the Dutch law on flexibility in the workplace (Wet flexibel werken of 9 June 2015, Statsblad No. 245/2015 of 25 June 2015), which was hailed as a "pioneer" just a few years ago, will be surpassed significantly. In the Netherlands, employees still have no claim to a home office.

On the basis of the interview and the subsequent echo in the press, we can present the known key points as follows:

Legal right to mobile work

The Act envisages a legal right to at least 24 days of mobile work per year. It also provides that the employer can refuse mobile work for operational reasons, in line with the provisions of the German Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz, “TzBfG").

The question that now arises is what exactly is mobile work? Most recently, the SARS-CoV-2 Occupational Health and Safety Regulation (SARS-CoV-2-Arbeitsschutzregel) published on 20 August 2020 in all events stated that the current wide practice of working from a home office is a form of mobile work. The legislator therefore has to clarify what it wishes to include under the term "mobile work". Another point to be clarified is how mobile work that is conducted on an hourly basis should be dealt with. Here, the question is whether it should be extrapolated to days according to the law.

Working Time

The draft law is to provide for the digital recording of working hours for mobile work; a digital time clock is required. Trust-based working hours in the home office would therefore no longer be feasible.

Subsequent to the judgement of the ECJ of 14 May 2020 (CCOO v.  Deutsche Bank Spain), a major discussion has flared up about the recording of working hours. Recently, diametrically opposed ideas were presented at a hearing of the Committee for Labour and Social Affairs on 14 September 2020. While some believe that the Working Time Act does not need to be adapted, others regard it as mandatory as a result of the ECJ ruling.

It is a fact that, if mobile work is to be anchored in law, the provisions on breaks and rest periods under the Working Hours Act will have to be discussed. Some collective agreements already contain a reduction of the rest period from eleven to nine hours if employees work from home.

Occupational health and safety

That special importance is being attached to occupational health and safety law in the statutory standardization of mobile work is evident on the basis of current corona-related publications of the BMAS, the occupational health and safety committees at the BMAS and the German Social Accident Insurance (Deutsche Gesetzliche Unfallversicherung, “DGUV”). Relevant in this context, namely, is the direct question of how mobile work, especially in a home office, is to be seen from the point of view of accident insurance. The German Federal Social Court (Bundessozialgericht) has remained resolute to date, and most recently showed in its judgement of 30 January 2020 (B 2 U 19/18 R) that accidents in connection with home offices are to be assigned to the private sector.

Co-determination

The draft law should enable trade unions, works councils and staff councils to co-determine the introduction and structuring of mobile work. The question arises whether this will lead to a further tightening of co-determination - which is very broadly defined in any case - with regard to working time regulations. Today, the introduction of any kind of remote working system is, strictly speaking, already subject to co-determination, as user data is collected and the monitoring of performance and conduct is objectively possible.

Conclusion

The draft law comes as no surprise, albeit that some of its contents does. A large number of questions have already been raised in the press by politicians as well as employer and employee representatives. Will this lead to a new kind of unequal treatment of workers and employees? Will the law weaken Germany as a business location due to the bureaucratic hurdles it involves? Conversely, is there a need to legally establish a right to a workplace within the company?

Mobile work is basically a good thing. However, if we now start to intervene by legislation, then we cannot disregard the fact that any and all mobile work outside the company shows that this work does not require a workplace in Germany. In this case, the work is ultimately mobile and can be performed from anywhere in the world.

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