Bill Mobile Work Act - MAG halted – what is next?
The further consultation of the draft of a Mobile Work Act presented by the Federal Minister of Labor Hubertus Heil was initially blocked by the Federal Chancellery. The subject of the political debate is in particular the claim to home office. We present the contents of the draft Act in more detail and give an outlook on foreseeable further developments.
On April 26, 2020, the Federal Ministry of Labor and Social Affairs under the leadership of Hubertus Heil (SPD) announced for the first time that the employment of employees in the home office - or, as per the terminology of § 2 para. 7 German Workplace Ordinance (Arbeitsstättenverordnung) - at the "teleworking place" should be legally reorganized. The focus of a new Act should be a claim of the individual employee to a certain number of home office working days per year.
According to the current legal situation, the employer cannot request the employee to work from the home office by means of giving a corresponding directive. On the other hand, the employee, for his part, is not entitled to work from home, unless this is contractually regulated or subject to a works agreement or collective bargaining agreement.
Legislative initiative halted
Barely had the draft Act been completed for further inter-ministerial consultation, the Chancellor's Office blocked the further way of proceeding on October 7, 2020: Even within the Federal Government, there is a lack of support in terms of finalizing this Act. “A legal regulation is not necessary. If employees and employers agree, this would be sufficient”, said Ralph Brinkhaus, leader of the parliamentary group. It was also objected that there is no corresponding regulation in the coalition agreement.
Without a consultation process in the departments of the ministries, the legislative proposal has no chance of success. This is because when the Federal Government presents a legislative proposal, a formal decision of the Federal Cabinet always precedes such a consultation.
Is this the end of the MAG?
It is, however, not unlikely that this is not yet the end of the debate. It is therefore conceivable that individual new regulations, which have originally been intended to become part of the MAG, will be incorporated into already existing statutory provisions. It is therefore worth taking a look at the relevant parts of the draft Act also in future.
The significant new regulations of the MAG
Amongst other aspects, the key changes to be brought about by the MAG are as follows:
- employees should be entitled to (at least) 24 days of home office or mobile working per year;
- employers may only object to this claim for "compelling operational reasons";
- trade unions, works councils and members of staff councils should have a right of co-determination related to decisions on mobile working;
- working times should be recorded digitally;
- insurance coverage (statutory accident insurance) should be improved or its scope should be clarified.
The Federal Ministry of Labor is now counting on talks and negotiations. Businesses and employees will now have to wait and see whether compromises or alternative proposals will be made. From a labor law view, the Mobile Work Act might trigger a difficult interference with the liberty of contract and entrepreneurship of the employer, thus into an area protected by basic rights. Whether such an interference is actually necessary remains to examine critically. Not to mention the financial consequences for employer. It would be good if as part of revisions to the Bill, the Federal Ministry also critically reviewed the Bill’s technical quality.