Retail and Consumer Goods29.09.2020 Newsletter
Act to Improve the Enforcement of Occupational Health and Safety: new minimum requirements which not only concern the meat industry
The meat industry has long been in the spotlight because of the precarious working and living conditions of the external Eastern European personnel frequently employed in it. For this reason, the Federal Government had already adopted a key issues paper on occupational health and safety in the meat industry in May 2020. As a result of the recent pandemic outbreaks in meat factories such as those in NRW, Baden-Württemberg and Schleswig-Holstein, the meat industry is considered to be a new corona hotspot. In consequence, the occupational health and safety initiative has gained further momentum. The Federal Cabinet approved the new German Act to Improve the Enforcement of Occupational Health and Safety Measures [Arbeitsschutzkontrollgesetz] on 29 July 2020 and introduced it into the legislative process. This Act is to come into force as early as 1 January 2021, but still has to be passed by the Bundesrat.
The focus of criticism is not only the significant use of what are often foreign contracting companies and temporary workers, but also their working and living conditions. According to German Federal Employment Minister Hubertus Heil, in future "16-hour days and cramped living in shared accommodation will no longer be accepted". He criticises not only the overcrowding of living space, but also usurious rents, violations of hygiene, distancing and occupational health and safety regulations due to the lack of protective equipment, the lack of occupational health care and inadequate safety distancing at work, as well as violations of the German Minimum Wage Act [Mindestlohngesetz] and German Working Hours Act [Arbeitszeitgesetz].
The draft law therefore envisages numerous stricter measures, not just for companies in the meat industry, but also in other sectors. This will trigger a need for action for many employers.
The core element of the German Act to Improve the Enforcement of Occupational Health and Safety Measures is that, with effect from 1 January 2021, it will no longer be possible to employ external personnel in the meat industry. From 1 April 2021 onwards, temporary work will also be banned for this sector. Slaughter, meat cutting and meat processing may in future only be carried out by the entrepreneur's own permanent staff. The joint management of a business or an overlapping organisation by two or more entrepreneurs (e.g. through inter-company production associations) will also be prohibited in future under the draft law. The prohibition does not apply to firms in the butcher's trade, i.e. whenever (i) activities in the meat industry are carried out on an craft-oriented basis, (ii) the company is entered in the Register of Qualified Craftsmen [Handwerksrolle] or in the Register of Non-Licensable Crafts or Craft-like Trades [Verzeichnis des zulassungsfreien Handwerks oder handwerksähnlichen Gewerbes] and (iii) no more than 49 persons are regularly employed there. In practice, its purpose is to exempt local butchers from the strict new regulations.
Furthermore, the German Workplace Ordinance [Arbeitsstättenverordnung] will in future define minimum requirements for shared accommodation for employees, which will affect not only the meat industry but all sectors. In future, employers will therefore be obliged to provide appropriate accommodation both on and off company premises, insofar as this is "required" for reasons of safety, health protection or for the humane organisation of the work. The requirements for equipping such accommodation will also depend on the duration of the housing of employees. It remains unclear when such a requirement can be assumed and what the practical implications will be for employers in all sectors.
In response to the corona pandemic, the German National Accident Insurance Association [Deutsche gesetzliche Unfallversicherung, “DGUV”] has also stipulated – albeit only in respect of the meat industry - that, in order to guarantee protection against infection in shared accommodation bedrooms must always be occupied by only one person, rooms must be ventilated regularly and cleaned daily, and kitchens must be equipped with dishwashers with cleaning programmes of 60° plus.
In addition, employers who provide shared accommodation will in future be subject to documentation obligations. Here, they will have to document the addresses of the lodgings, the accommodation capacities, the allocation of the housed workers to the shared accommodation and the corresponding term of their accommodation. This documentation must already be available at the time of providing the accommodation and must be kept for at least four weeks after the end of the accommodation.
Violation of the minimum requirements for lodgings and the associated documentation obligations may in future be punished as an administrative offence with a fine of up to EUR 5,000. Worse still: anyone who endangers the life or health of an employee through an intentional violation is liable to a prison sentence of up to one year or a fine.
Furthermore, concretisations in the relevant Technical Rules for Workplaces [Technische Regeln fürArbeitsstätten, “ASR”] are planned, with it being understood that, in view of the current pandemic situation, distinctly stricter measures can be expected. In the future, entrepreneurs in the meat industry in particular will be subject to even more obligations to cooperate and tolerate. May we point out, for example, the employer's obligation to electronically record and electronically store the beginning, end and duration of the daily working time of employees. The fines for infringements are to be increased from the current EUR 15,000 to EUR 30,000.
In order to safeguard workers' rights to occupational safety and health protection, the occupational safety authorities of the federal states will inspect businesses more frequently in future. Every year at least 5% of all businesses are to be checked for compliance with the regulations of the Occupational Health and Safety Act. This minimum inspection rate concerns not only the meat industry, but all sectors, in order to ensure that uniform occupational health and safety standards are observed.
Employers must therefore prepare themselves for the measures planned with effect from 1 January 2021 and adapt their work processes accordingly. Although the new Act to Improve the Enforcement of Occupational Health and Safety is under criticism for being unconstitutional and contrary to European law, since the ban on temporary work in the meat industry is seen as being a significant encroachment on the freedom of occupation according to Article 12 (1) of the German Constitution [Grundgesetz, “GG”] or as incompatible with the European Temporary Employment Directive and the freedom to provide services and freedom of establishment, the employers concerned should nevertheless review their current work processes, especially in view of the threat of sanctions, to ensure that they are compatible with the planned changes in legislation and to adapt them in good time.