C A LE Discu ssio n Pa p e r No .1 0
Ju n e , 2 0 1 4

Non-regular Employment
in Germany and in Japan

Prof. Dr. Rolf WankNa g o ya Un ive r sity
C e n t e r fo r Asia n L e g a l Exch a n g eCenter for Asian Legal Exchange (CALE)

Nagoya University, Japan

Non-regular Employment in Germany and in Japan

Prof. (em.) Dr. Rolf Wank

Ruhr-Universität Bochum, Germany

1Non-regular Employment in Germany and in Japan
Rolf Wank1

CONTENTSABSTRACT…………………………………………………………………….………. 5
ABBREVIATIONS…………………………………………………………….………. 6

I.

Non-regular Employment……………………………………….……….… 9II.

Standard Employment Relationship and Atypical Employment….…… 10
1. Atypical Employment in a Strict Sense………………………………… 11
2. The System of Non-regular Employment…….………………………… 13a) Atypical Employeesb) Employees Endangered of Discriminationc) Especially Protected Groups of Persons (“Sozialer Arbeitsschutz”)

III.

Interests…………………………………….………………………….…… 16
1. Employer……………………………….………………….……….…… 17a) Atypical Employmentaa) Flexibilitybb) Organization of Workcc) Rules of Protectiondd) Costsb) Employees Endangered of Discriminationc) Especially Protected Groups of Employees
2. Employees…………………………….………………….….…….…… 19a) Atypical Employmentb) Employees Endangered of Discriminationc) Especially Protected Groups of Employees
3. Public Interests……………………….………………….….……...…… 21
4. Employment Law, Social Security Law and Tax Law….….……....…… 22
5. Weighing of Interests and Flexicurity…………………….…..…...…… 23

1

Professor emeritus at the Ruhr-Universität Bochum, Germany

1

IV.

Legal Basis……………………….………………………….….……...…… 23
1. Germany……………………….………………...……….….……...…… 24a) Atypical Employmentb) Antidiscrimination Lawc) Especially Protected Groups of Employees
2. Japan……………………….…………...…...…..….……...….…...…..… 25a) Atypical Employmentb) Antidiscrimination Lawc) Especially Protected Groups of Employees

V.

Rules for Atypical Employment in Detail……...……….…......……...…… 27

1. Germany……………………….…………….......……….….……...…… 27a) Part-Time Workaa) Legal Factsbb) Interestscc) Definitiondd) Prohibition of Discriminationee) Legal Policyff) Other Itemsgg) Sanctionshh) Labour Lawb) Fixed-Term Workaa) Legal Factsbb) Interestscc) Definitiondd) Prohibition of Discriminationee) Other Itemsff) Fixed-term Employment with Grounds and without Groundsgg) Termination with Groundshh) Sanctionsii) Labour Lawc) Temporary Agency Workaa) Legal Factsbb) Interestscc) Definitiondd) Administrative Lawee) Legal Status of Temporary Agency Workersff) Prohibition of Discrimination2gg) Other Itemshh) Sanctionsii) Labour Lawjj) Proposals for Reforms
2. Japan……………………….…………...…...…..….……...….…...…..… 57a) Part-Time Workaa) Legal Factsbb) Interestscc) Definitiondd) Prohibition of Discriminationee) Other Itemsff) Sanctionsb) Fixed-Term Workaa) Legal Factsbb) Interestscc) Definitiondd) Prohibition of Discriminationee) Other Itemsff) Sanctionsc) Temporary Agency Workaa) Legal Factsbb) Interestscc) Definitiondd) Administrative Lawee) Legal Status of Temporary Agency Workersff) Prohibition of Discriminationgg) Other Itemshh) Sanctionsii) Labour Law

VI.

Special Kinds of Employment other than Atypical Employment...…...… 72
1. Germany……………………….…………….......……….….……...…… 72a) Womenb) Children and Youthsc) Older Employeesd) Other Groups
2. Japan……………………….…………...…...…..….……...….…...…..… 76a) Womenb) Children and Youthsc) Older Employees

3

VII.

Comparison……………….…….……...…...…..….……...….…...…........… 79
1.

General…………….…………...…...............…..….……...….…...…..… 79a) Legal Basisb) Different Groups of Employeesc) Prohibition of Discriminationd) Requirement of a Grounde) Justificationf) Integrationg) Soft Lawh) Collective Representationi) Reformsj) Summary
2. The Separate Areas of Non-regular Work...…..….……...….…......…..… 87a) Part-Time Workb) Fixed-Term Workc) Temporary Agency Workd) Employees Endangered of Discriminatione) Especially Protected Groups of Employees

BIBLIOGRAPHY…………….…………...…...............…..….……...….…...…........… 91

4

ABSTRACTIn Germany as well as in Japan recent years showed a continuously rising number of nonregular work. As the problems and the solutions are similar in both countries, a comparison
seems to be useful. Employment law did not start with the figure of an „employee“, but bydifferent kinds of professions. Only later the abstract figure of an employee was created, andemployment law was orientated at this figure. Meanwhile the idea has gained acceptance that
non-regular work needs now full attention. First of all there are three types of atypicalemployees, part-time workers, fixed-term workers and temporary agency workers. There are
special rules for their protection. The most important one is the prohibition to discriminate
against them in comparison with the corresponding comparable regular employee – withdifferent attitudes in Germany and Japan.
Another type of non-regular employees are those that are typically endangered of being
discriminated against. Whereas typical and atypical work refers tot he kind of employment
contract, this group - and the next one, too – refers to characteristics of the person. In
Germany there are eight items of forbidden grounds; one of them corresponds with Japaneselaw, equal treatment of men and women.
Finally there is a group of employees that need special protection, like pregnant women,mothers, old age employees, children and youths. Both legal systems provide special rules fortheir protection.
This paper wants to give a first overview on all kinds of non-regular work in both countries.
What is desirable are further studies how these different ways of protection comply with eachother and what solutions in one of the two countries give reason to reflections for the legal
system of the other country.

5

ABBREVIATIONSAGGAllgemeines Gleichbehandlungsgesetz

AP

Nachschlagewerk des Bundesarbeitsgerichts (Arbeitsrechtliche Praxis)

ASEOE

Act for the Stabilization of the Emploment of Older Employees

Aufl.

Auflage

AuR

Arbeit und Recht (Zeitschrift)AÜGArbeitnehmerüberlassungsgesetz

BAG

Bundesarbeitsgericht

BeckRS

Beck online Rechtsprechung

BEEG

Bundeselterngeld- und Elternzeitgesetz

BetrVG

Betriebsverfassungsgesetz

BGB

Bürgerliches Gesetzbuch

BGBl.

Bundesgesetzblatt

DB

Der Betrieb (Zeitschrift)

DJT

Deutscher Juristentag

ECJ

Court of Justice of the European Union

ErfK

Erfurter Kommentar zum Arbeitsrecht

EU

Europäische Union

EuZA

Europäische Zeitschrift für Arbeitsrecht

EuZW

Europäische Zeitschrift für Wirtschaftsrecht

6

Forschung & Lehre (Zeitschrift)

GG

Grundgesetz

Hrsg.

Herausgeber

IAB

Institut für Arbeitsmarkt- und Berufsforschung

JArbSchG

Jugendarbeitsschutzgesetz

JILPT

Japan Institute for Labor Policy and Training

JZ

Juristenzeitung

KSchG

Kündigungsschutzgesetz

LAG

Landesarbeitsgericht

LCA

Labor Contract Act

LSA

Labor Standard Act

Mitbestimmung

Die Mitbestimmung (Zeitschrift)

MittAB

Mitteilungen aus der Arbeitsmarkt- und Berufsforschung

NJW

Neue Juristische Wochenschrift

NJW-Spezial(Zeitschrift)

NZA

Neue Zeitschrift für Arbeitsrecht

PWA

Part-time Work Act

7

RdA

Recht der Arbeit

Rn.

Randnummer

S.

Seite

SAE

Sammlung arbeitsrechtlicher Entscheidungen

TAEA

Temporary Agency Employment Act

TFEU

Treaty on the Functioning of the EU

TVG

Tarifvertragsgesetz

TzBfG

Teilzeit- und Befristungsgesetz

WSI

Wirtschaft- und sozialwissenschaftliches Institut des Deutschen
Gewerkschaftbundes

ZESAR

Zeitschrift für europäisches Sozial- und Arbeitsrecht

ZfA

Zeitschrift für Arbeitsrecht

ZIAS

Zeitschrift für ausländisches und internationales Arbeits- undSozialrecht

8

I.

Non-regular Employment

At the beginning of the development of an employment law2 of its own from of the civil law
in general it was necessary to abstract from different professions and different legal rules tothe terms of employee and employment law. The differences between employees andworkers,3 which still existed in the beginning, were more and more reduced.
As a consequence of the development during the last years there must be more differentiation
between regular employment on the one hand and other kinds of employment on the otherhand.4 Employment law is still orientates itself at the regular employment, viz. the worker
who is engaged for his whole life in the same enterprise and works fulltime. In Japan, thismodel has in the past been more vivid, as the model of lifelong employment.5
To make differences inside of employment law became necessary from several reasons.
Enterprises tend more than before to use their work craft more flexible.6 One possible way is
to make redundancy dismissals easier.7 In the United States of America still exists - adopted
from British law - the principle of “employment at will” or of “hire and fire”. A reason for
dismissal is as unnecessary as to keep long termination periods.8 Another way would be toprotect the maintenance of the employment relationship, but to admit changes in theconditions of the employment contract.9 If that leads to major changes it opposes the principleof “pacta sunt servanda”. Finally the legal system may allow new kinds of employment
relationships.
This is especially the case with “atypical employment”. It is to be found EU-wide namely
concerning the following kinds of employees: Women, youths - especially pupils, students
and apprentices -, older employees, members of minorities and disabled persons.10 Employees
no longer stay their whole life in the same enterprise, but change the employer, often several
times.11 The biography of working life, especially with women, is often composed of fulltime
work for a non-definite period, interruption of employment, part-time and fulltime work for a2

In this paper, as in American law, „employment law“ means the law of the relationship between employer
and employee,“ labour law“ means the law of the collective relationship between the organisations of tradeunions and employers´associations and that of works councils.
3
In English law, the term „worker“ has three meanings: first, the opposite of an employee, meaning blue collar
worker opposite to white collar worker; second, meaning an employee in general; third, meaning an
economically dependent self-employed. In the following text „worker“ is synonym to „employee“.
4For Europe Behrens/Richter, NZA 2002, 138.
5
Araki, Labor Law and Employment Law in Japan, p. 18; J. Junker, Arbeitnehmerüberlassung, S. 45 ff.; Labor
Situation 2013/2014, p. 77.
6
Davies, EU Labour Law, p. 178.
7
Wank, Nihon Rodo Kenkyu Zasshi 2001, 1.
8
Kittner/Kohler, BB 2000, Beilage 4, S. 1.
9
A comparison between Germany and Japan at Wank, RdA 2005, 271.
10Workinglives, p. 438; regarding Germany p. 72.
11
Rhein/Stöber, IAB-Kurzbericht 3/2014.

9

non-definite period again.12 This can happen voluntarily, to achieve better working
conditions, or because of a change of the residence or from other personal reasons. It may also
be caused by the fact that only part-time work is offered. This is acceptable as long as itcomplies with a special demand of the enterprise, but not if it characterizes the labour market
in general.
Part-time work corresponds to entrepreneurial flexibility, and to a great extend it is also
demanded by employees, especially by women.
Temporary agency work finally is also used to cover a peremptory demand of an enterprise here again it becomes doubtful when it is used as a permanent instrument to replace the core
employees, to reduce costs.
In Germany as well as in Japan the legal system has reacted by gradually creating an own
regime for atypical work. Topics are antidiscrimination law, the restriction of the use of
atypical work for certain demands and the promotion of the integration of atypically
employed in the staff.
Another reason for different rules for atypically employed arises from antidiscrimination law.
The movement started in America, dealing at first with race discrimination. Later other kindsof discrimination were also banned, followed by special laws for each. A similarfragmentation of law is also to be found in some countries of the EU, like Great Britain.13 In
Germany the most important cases have been compiled in one statute, the Allgemeines
Gleichbehandlungsgesetz, AGG. In Japan the prohibition of discrimination is spread overdifferent statutes. The most important topic is the prohibition of discrimination. But this isoften not sufficient and must be accompanied by special statutes for special groups of
employees, especially women, older employees and youths. For these groups there areparallel rulings in Germany and Japan.

II.

Standard Employment Relationship and Atypical Employment

This study compares – for a certain part of employment law – the legal situation of nonregular work in Germany and Japan.14 In both countries there is a great and actual interest inpolitics and in jurisprudence in the research of the legal situation and in possible reforms. One
reason is that atypical employment is regarded as disadvantageous for labour conditions,especially as regards the amount of salary and the security of the workplace. In both countries
the share of atypically employed in the whole number of the workforce amounts to more than

12

Waltermann, Gutachten B zum 68. DJT, S. 12.
Howes/Wank, International Journal of Comparative Law and Industrial Relations 21 (2005), p. 571.
14
The legitimacy of such a comparison is justified by Seifert, Atypical employment, JILPT Research Reports,
Reports by Visiting Researchers, 2010, p. 1.
13

10

one third.15 The increase is due to a tendency of enterprises to become more flexible and to atrend towards service-based industries.16
In both countries the share of women among atypical work is very high.17 This should notlead to the hasty conclusion that atypical employment is generally work done by women
procuring a disadvantage of women compared with men. Among fixed-term work and amongtemporary agency work the share of men and women does not differ significantly; but it isremarkable as regards part-time work. On the other hand part-time work often complies with
the interest of women and is demanded by them.

1. Atypical Employment in a Strict Sense
The topic of employment law is how to improve the situation of employees by taking into
account the legitimate interests of employers. For a long period in Japan as well as inGermany the so called regular employment relationship (= Normalarbeitsverhältnis) was in
the focus.18 It is characterized by three items:- The employment relationship is not terminated.
- It is a fulltime employment relationship.19- The employee works for the enterprise that has concluded the employment contract.
In Japan, too, as in EU law,20 this is the opposite term to the three kinds of atypical work
named before.21
Some authors include further criteria, like if the person is protected by the social security
system, or if all rules of employment law and social security law are to be applied on thesepeople, or if they have regular working time or if they are monthly paid.22 Even new articles
do not only refer to the three criteria named above for atypical work, but also to the protection
by the social security system. 23

15

JILPT Research Report No. 132, p. 4: part-time 15 %, fixed-term 15 %, entrusted workers 2 %, temporary
agency work 3 %; Labor Situation 2013/2014, p. 29: part-time 14 %, temporary agency work 1.4 %, fixed-term,
contract employees and entrusted workers: 11.3 %; Seifert, Atypical employment, p. 12 : Germany 2008: 37 %,Japan 200: 34 % (diagrams 1 and 2); similar figures in other countries, Waltermann, Gutachten B zum 68. DJT, S.
9.
16
Labor Situation 2013/2014, p. 27, 37.
17
Neal, RdA 1992, 115, 116; Seifert, Atypical employment, p. 17 (diagram 3).
18
The „farewell to regular employment relationship“ was subject of the 68. Deutscher Juristentag 2010 in
Berlin; see Gutachten B by Waltermann; Waltermann, NJW-Beilage 210, 1 ff.; Joussen, JZ 2010, 812 ff.; Wank,
RdA 2010, 193 ff.; before: Zachert, AuR 1988, 132.
19
Some authors include a part-time employment relationship with at least half of the usual working time; seee.g. Waltermann, Gutachten B zum 68. DJT, S. 11; contrary: § 2 TzBfG.
20
Davies, EU Labour Law, p. 173, 178.
21
Wada, Nagoya University Journal of Law and Politics, No. 251, p. 553-557; Araki, New Labour Policies.
22
Mückenberger, Zeitschrift für Sozialreform 31 (1985), 415 ff., 457.
23
Seifert, Atypical employment, p. 6; Waltermann, Gutachten B zum 68. DJT, S. 11.

11

As far as a big number of criteria is named these criteria are neither characteristic nor of
information in law.24 They may be appropriate for a sociological study, but in law it ispreferable to concentrate on certain legal aspects. E. g. seasonal work is simply a kind of
fixed-term work, which is also the case for work on demand; homework is a kind of
employee-like employment.25 The green book of the commission26 names no-hours-contracts
and contracts of freelancers which do also not belong in this context. It is the same with“small own contractors”. The inclusion in the social security system should not be mixed withcategories of employment law, although for an overall view – with separate approach, but
combining view – they should be seen together (see below III 4). Therefore it is preferable tokeep to the common mostly used definition.27 It can be understood with reference to thefollowing opposite terms28 characterizing atypical work:29- fixed-term employment- part-time employment- temporary agency work.

As regards the word typical it does not refer to a statistic relationship of regular employment
and atypical employment. The question, if the typical employment relationship is not only afact but denotes also an “average standard”, must be answered differently for different kindsof employment.30
In Japanese law, too, there exists the “regular employee” (seishain). The official statistics
concerning atypical employment are to be used with caution; there is not one statistic
encompassing all three groups, but there are separate statistics for the group fulltime/part-timeand non-fixed term /fixed term, and for temporary agency work.31 Besides, employees are
asked to name the qualification of their contract, which may not correspond with the legal
category.

24

Critique by Wada, Nagoya University Journal of Law and Politics No. 251.
Different opinion at Waltermann, Gutachten B zum 68. DJT, S. 12.
26
COM (2006) 708 final, p. 8.
27
E.g. Davies, EU Labour Law, p. 178; Thüsing, Europäisches Arbeitsrecht, S. 142 ff.; Waltermann, NJW-Beilage
2010, 81, 82 ff.
28
On opposite terms see Wank, Die juristische Begriffsbildung, 1985, S. 39 ff.
29
Thüsing, Europäisches Arbeitsrecht, S. 44; Wank, RdA 2010, 193, 197 f.; Statisches Bundesamt (Hrsg.),
Sachverständigenrat zur Begutachtung der gesamtwirtschaftlichen Entwicklung, Jahresgutachten 2007/2008,
2007, S. 192 ff.
30
Pfarr, WSI-Mitteilungen 2000, 279; Zachert, AuR 1988, 129.
31
Kambayashi, Japan Labor Review Vol. 10 (2013), No. 4, p. 55.
25

12

From a labour law point of view, within employment law because of some specialties somekinds of employment might be called atypical employment,32 like telework33 or homework.
But as said before, they can be understood by the standard categories.
As long as the focus is on the regular employment relationship, atypical employment seems to
be a second class employment. At first glance it seems as if it is allowed with these toconclude working conditions that are worse than with regular employment. In fact, this has
been the case in Germany, and in Japan this point of view is still more vivid. It was only whenatypically employed were regarded as in need of protection, their situation was adapted to thatof regular employment, especially by the prohibition of discrimination.

2.

The System of Non-regular Employment

Things would be easy if there was only the difference between a typical employee in a typicalemployment relationship (Japanese: seishain) and the atypical employee (hiseishain). In fact,
not only the German and the Japanese legal system, but also that of other countries oppose to
the “typical employee” not only the atypical employee, but also other groups of employeesthat enjoy a special protection in labour law out of other reasons.
To these groups belong:- employees endangered of discrimination- especially protected employees (in Germany “sozialer Arbeitsschutz”, employees protectedfrom social reasons)- employees with special official tasks (office bearers)

The last group, to which belong e. g. representatives of a works council, are not dealt withhere, because their protection is not connected with their person or their job, but with a special
position in the enterprise. Then the following system can be stated: 34

32

Davies, EU Labour Law, p. 178; Neal, RdA 1992, 115; Riesenhuber, Europäisches Arbeitsrecht, S. 298 f.
Barnard, EU Employment Law, p. 450; Wank, Telearbeit, 1997; there is an EU framework agreement,
published in RdA 2003, 55.
34
See also Thüsing, Europäisches Arbeitsrecht, S. 142 ff.
33

13

employee

regular employee

non-regular employee

atypicaldiscriminatedsocially protected

employeeemployeeemployee

part-time

fixed-term

workerworkergeneral protection

temporaryagency worker

special protection

The following is characteristic for the whole area of non-regular work: Employment law isbasically a special part of civil law with the special aim of protecting employees.35 For thethree areas named above there are further reasons for protection: for atypically employedbecause of the special kind of their employment contract, for others because there is a higher
danger for them to be discriminated against, for a third group because they deserve special
protection because of their personal status; these three reasons and three areas can overlap. In
the group of discrimination it is possible that several kinds of discrimination are combined tothe disadvantage of one person.36
All these groups shall be analyzed in the following study.

a)Atypical Employees

As regards atypical employees the starting-point is not in their person, but in a specialty of theperformance of their job.

35

Düwell/Löwisch/Waltermann/Wank (Hrsg.), Das Verhältnis von Arbeitsrecht und Zivilrecht in Japan undDeutschland, 2013; Wank, Auslegung und Rechtsfortbildung im Arbeitsrecht, 2013, S. 31 ff.
36
S. Philipp, Intersektionelle Benachteiligung und Diskriminierung, 2014.

14

b)

Employees Endangered of Discrimination

There is no special term for this group, neither in Germany nor in Japan. Reference is only
made to the criteria, not to the persons. In Germany they are called “forbidden criteria” whichmeans it is forbidden to use this criteria for different treatment. In German employment law
those are the employees in § 6 complying with one of the forbidden criteria in § 1Allgemeines Gleichbehandlungsgesetz (AGG). It would be incorrect to call them“discriminated employees”, because they are only employees for whom there is a higher
probability that they are discriminated against. In the following text they are called employees
in danger of discrimination. The law refers to a special quality that causes the fear that these
persons will be discriminated against in working life.
A protection may be realized by two ways, either by antidiscrimination law or by special
varieties of the general principle of equal treatment.37

c)Specially Protected Groups of Persons (“Sozialer Arbeitsschutz”)38

In employment law some groups of persons enjoy a special protection. Whereas atypical workin a strict sense is characterized by the kind of employment relationship, these groups arecharacterized by special criteria making them more in need of protection. Thos groups are:- women in general- pregnant women- mothers- parents- children and youths- older employees- disabled persons.

37

As regards the difference see Wiedemann, Die Gleichbehandlungsgebote im Arbeitsrecht, 2001, S. 59;
Thüsing, Europäisches Arbeitsrecht, S. 145 f.
38
Details in Schaub, Arbeitsrechts-Handbuch, §§ 37 ff., 43, 120; Münchener Handbuch zum Arbeitsrecht, §§ 45
f., 95, 317 ff.

15

As regards these groups there are two ways to give them a special protection. One is byantidiscrimination law, i.e. that these persons may not be disadvantaged compared with“typical employees” (see above 2 b).
Another way is to create a complete legal regime of its own with different rules from normal
employment law, generally meaning a better treatment or higher duties of the employer.
All in all our subject of non-regular work has three aspects, 39 namely- special rules for atypically employed in a strict sense,- special rules concerning antidiscrimination- special rules for especially protected groups,- using prohibition of discrimination or- special law regimes

In a broader sense especially solo-self-employed (“Einmannbetriebe”)40 and employee-likes41
also belong to our subject. On the one hand these are either employees or self-employed; if
the latter, they are not included in the category of employees. But on the other hand they are
economically dependent, so that some rules for employees are applicable on them.

III.

Interests

The subject of non-regular employment encourages to provide first a view over the legal
facts, to draw the correct interpretation of rules and to find the right legal consequences.42
This must be combined with the idea of the legislator of the legal facts and with the aims of
the legislator, following from this idea. Regarding the separate kinds of atypical work reveals
great differences among them.

39

See also Günther, Arbeitsrechtlicher Diskriminierungsschutz und Diversity Management, 2013.
Waltermann, Gutachten B zum 68. DJT; Leighton/Brown, Future Working, The rise of Europe´s independent
performers (iPros), 2014.
41
Wank, Arbeitnehmer und Selbständige, 1988, S. 235 ff.; Wank, in Wiedemann, TVG, § 12 a Rn. 71.
42
Gutachten Waltermann, 68. DJT.
40

16

1. Employera)Atypical Employmentaa) For Employers it may be of advantage to engage atypical employees in a strict sense.
These advantages encompass:43- flexibility- the organization of work
- less protection for employees- costs.

In the regular employment relationship there may be unproductiveness at work. The employee
is engaged for the whole period of a day, a week or a month and is paid for this time, §§ 611,
615 BGB. That the employer bears the risk of paying without corresponding work is acharacteristic of the employment relationship. The employee offers his being prepared towork and the employer pays him for this presence. In department stores e. g. there is a run ofcustomers only at certain times; in an enterprise of production there may be unproductivenessbecause at the moment there are no orders. Atypical employment relationships allow theemployer to bring in employees at the time when they are needed; he achieves more
flexibility.44
In times of a crisis employers tend to use atypically employed as buffer: Fixed-term contracts
or contracts with temporary agencies are not prolonged.45
bb)
The employment relationship requires from the employer a lot of organizational
duties. They start with the recruitment of personnel, with advertisements for the job,
presentations of the applicants, information of the works council, and conclusion of
employment contracts. They continue with payroll accounting and plans of the organization.
By engaging atypical employees the employer can free himself from some of these duties. 46

43

Hohendanner /Walwei, WSI-Mitteilungen 2013, 239, 242; JILPT Research Report No. 132, p. 10; Nienhüser inKeller/Seifert, Atypische Beschäftigung, 2007, S. 51, 55 ff.; Seifert, Atypical employment, p. 9, 14; TakeuchiOkuno, in JILPT, Labor Policy, p. 69, 73.
44
Laux/Schlachter, TzBfG, Einführung Rn. 19, 21.
45
Araki, Labor and Employment Law in Japan, p. 34: „shock absorbers“.
46Laux/Schlachter, TzBfG, Einführung Rn. 19, 21.

17

cc)
The typical employee gets sickness pay, mother protection law, leave and protection
regarding dismissals, to name only a few rights of employees. Meanwhile, in Germany theengagement of part-time employees or of fixed-term employees is no longer of muchadvantage in these respects, ad by changed law they are in an equal position as typicalemployees.
It is still different with temporary agency work. In German law the agent is responsible for theprotection in employment law as he is his employer, the user company is free from observing
most of this protective law – as long as it does not concern health and safety law.
dd)
From these reasons there may be a reduction of costs, e. g. by using well-directed
part-time employees or fixed-term employees payment without corresponding work may be
avoided, or by taking advantage of temporary agency work the costs of organization and thecosts e. g. of continued payment of wages are transferred to the temp agency.47b)

Employees Endangered of Discrimination

With regard to discrimination in employment there is often a moralistic view. The employer
who among the applicants tends not to engage women or disabled, is morally criticized. But
for an employer employees are not only persons, but also factors of cost. If women or
disabled persons stay more often away from work than others, then the employer acts
economically rational if he prefers other applicants. It is therefore a duty of politic to maketheir engagement easier; otherwise the assumed protection creates contrary results.48 There
could be nudges like subsidies by the state or by the social security system; but often law
makes the engagement unnecessarily complicated: in Germany e.g. before a disabled person
can be dismissed, the employer must not only ask the works council but also the integration
office, and the employee may sue him before labour courts and simultaneously before
administrative courts.
A legal system should rather not be based on moral but on practicable and performablemandatory law, and besides provide nudges49 for activities complying with ethics. If e.g. theaim is to introduce more women in leading positions, it may be helpful to demonstrate theadvantages of a change.

c)Especially Protected Groups of Employees

As regards the engagement of persons under special employment law protection the interestsof employers are similar as with persons in danger of discrimination. Whereas employers
engage atypically employed foremost from their own interest, they are less interested in47

Laux/Schlachter, TzBfG, Einführung Rn. 19, 21.
On contrary results see Wank, Das Recht auf Arbeit, 1980, S. 82 ff.
49
Richard H. Thaler/Cass R. Sunstein, Nudge, 3. Aufl. 2009.
48

18

engaging persons with a discrimination criterion or who are members of the specially
protected groups. There are two reasons for this: First, employers fear that these persons may
produce a lesser amount of work, second, special protective law produces additional costs,
like with maternity leave or with additional leave for disabled.
Besides, in some cases it is necessary to call in authorities for employments or measures ofthe employer for which no authority is needed for regular employees.
So here again the existence of special protective law may lead to contrary results: Just because
special groups of employees enjoy a higher protection, they are not engaged at all or are notpromoted.

2. Employeesa)Atypical Employment

To reach an appropriate interpretation of labour law in atypical employment scrutinizeddifferences are required as regards the interests of employees.50
Maybe just the atypical employment comes up to the interest of an employee, as may be thecase with part-time work, partially also with temporary agency work.51 On the other hand,sometimes an atypical employment is imposed to employees who would prefer a regular job.
For Japan can be stated that atypical employment was originally taken mostly by pupils andhousewives in their second job. As the number of jobs in typical employment has become
reduced and as enterprises do no longer offer, as in former times, all workplaces with thepromise of lifelong engagement, atypical employment is today also chosen by those who
would prefer a regular employment.52
As regards working time, a prominent aim of employees is the harmonization of work andfamily, which results in the possibility to work less and in different times from regular
employees.53 A typical situation looks like this: The husband has a fulltime job. The wife
reduces her working time to work in the morning as a result of childcare, and is at home when
the children are back from Kindergarten or school.
When looking at the protection of employees in atypical employment, it is necessary to differ
according to the need of protection. This is often not done, leading to distorted attitude and50

Kronauer/Linne, in Kronauer/Linne, Flexicurity, 2005, S. 9, 15.
Waltermann, Gutachten B zum 68. DJT, S. 13.
52
Araki, New labour policies, sub 6.
53
Barnard, EU Employment Law, p. 426 regards this – doubtfully – as the main criterion for atypical work.
51

19

legal judgment. Atypical employment is then – especially by trade unions – generally looked
at as suspicious and named as “precarious”, which is not correct.54
On the other hand there are employees whose income is secured by other means, like by amain occupation or by old age pension. In these cases it may be asked, if these employees
need exactly the same protection as those who rely on the job as their only income. Perhaps insuch a case a minor job (“geringfügige Beschäftigung” = small amount job) means areasonable addition to the main job and its income.
Atypical work shall also serve the aim to be a springboard for regular employment.55
Unemployment is avoided, qualities can be maintained and an involvement in society remains
possible.
To avoid a general disqualification of atypical employment, negative connotations like“precarious jobs” 56 should not be used.
As critique there can be stated that atypical employment leads – compared with regular
employment – to- lower salaries57- insecurity as regards the maintenance of the job.58
The result may be that the employee cannot leave the status of atypical employment and thatnecessary training is not taken care of.59b)

Employees Endangered of Discrimination

Employees with certain characteristics in their person often are disadvantaged in the labour
world. The cause may be prejudices of the employer or of the colleagues or of customers, butalso, as stated above, economical reasons. It is necessary that these persons get an easier way
to prove the connection between their characteristic and a disadvantageous treatment and thatthose discriminations are forbidden.

54

Waltermann, Gutachten B zum 68. DJT, S. 13.
Hohendanner/Walwei, WSI-Mitteilungen 2003, 239, 240; JILPT Research Report No. 132, p. 5; Riesenhuber,
Europäisches Arbeitsrecht, S. 299.
56
E. g. Thüsing, Europäisches Arbeitsrecht, § 4.
57
Araki, New labour policies, sub 7; Waltermann, NJW-Beilage 2010, 81; Waltermann, Gutachten B zum 68.
DJT, S. 18 f.
58
Brehmer/Seifert, Zeitschrift für Arbeitsmarktforschung 2008, 501 ff.; Dörre in Kronauer/Linne, Flexicurity,
2005, S. 9; Hanami/Komiya, Labour Law in Japan, p. 7.
59
JILPT Research Report No. 132, p. 5.
55

20

c)

Especially Protected Groups of Employees

For members of these groups there is also the danger that because of belonging to this groupthey are not engaged or are disadvantaged during their employment relationship or do notreceive the kinds of protection that is necessary for them.
As important as prohibition of discrimination are here duties to support and consideration. E.
g. there is especially with disabled persons a duty of the employer to provide special
conditions at the working place, like entrances without barriers or special devices to operate amachine.
As regards mothers it is necessary to enable them to manage the working time in a flexible
way to make sure they can combine job and family. 60

3.

Public Interests

The state is not only interested in the fair balancing between employers and employees, butalso in the labour market, the employment policy. For this reason sometimes the legal
positions of employees are reduced to promote more employment;61 this happens significantly
in times of an economic crisis.62 A high degree of protection of employees is of disadvantage
for a national economy in global competition.63
The working conditions of employees do not only meet with the interest of employers andemployees, but also with that of the state which is due to create social justice and a faircompromise of interests. The state must avoid the creation of a second class employment law,
but must develop the appropriate law and regard employment law, social security law and tax
law as a unity with regard of employment. Therefore the state must care for a special
protection of those groups of the labour market that have special difficulties. The state mustalso take care that employees do not choose present advantages that lead to a lack ofprotection in old age and a burden for society.
By promoting atypical employment the state wants to improve the labour market. The idea isthat by allowing employers more flexible conditions they will sooner be ready to engage more
workforce.64

60

For Germany see Wank in Klammer/Motz (Hrsg.), Neue Wege - gleiche Chancen, 2011, S. 125 ff.; for Japan
see Kawada in Gedächtnisschrift für Zachert, S. 412, 418 Fn. 14.
61
Waltermann, Gutachten B zum 68. DJT, S. 14 referring to the Agenda 2010 of the Federal Government.
62
As regards Greece in times of the economic crisis see Wank, RdA 2013, 383.
63
Waltermann, Gutachten B zum 68. DJT, S. 15.
64
Waltermann, Gutachten B zum 68. DJT, S. 14; Begründung zum Gesetzentwurf des TzBfG, BundestagsDrucksache 14/4374, S. 1; Boecken/Joussen, § 1 TzBfG Rn. 7 f.; Meinel/Heyn/Herms, § 1 TzBfG Rn. 11.

21

A special aspect is the labour market in times of an economical crisis. In Germany as well asin Japan atypically employed - especially temporary agency workers – serve as a buffer, tocomply with a reduction of demand for workforce.65
What cannot be found out so far is whether atypical employment causes substitution effects,
i.e. if they repress regular employees from the labour market or whether they create
additional jobs.66

4.

Employment Law, Social Security Law and Tax Law

In statements about non-regular work there is typically a division inasmuch as labour law
scholars deal with the labour law aspect and scholars of social security law and of tax law
with their special aspects. Seen from the view of an employee all three areas must be looked
at together. If e. g. the question is how much an atypically employed earns from his job, what
interests him is the net income, meaning the gross income minus social security premium andtax. Regarding employment law under the aspect of securing the existence of an employee,
this question cannot be blended out. Especially with so called “geringfügige Beschäftigung”
in Germany this connection is evident.67
There is also a connection as the exemption from social security premiums on the one handleads to more jobs, but on the other hand it leads to a greater burden of the social security
system. Furthermore times of small income jobs cause low old age pensions.68
The connection between employment law and social security law also becomes apparent
regarding the question where pregnant women get their income from. As there is no innerconnection with the employment relationship, this should logically be paid by the social
security system, i. e. by the health insurance. Instead the state has in Germany transferred thismainly on the employers and has cynically called this a “subsidy” to the payments of thehealth insurance. 69 So the state has a share of the responsibility to the result that employers
try to avoid the engagement of pregnant women.
As regards the treatment of atypically employed the state does not give a good example.
Fixed-term employments are to be found with the state as employer to the same amount as infree economy.70 Last year school authorities were blamed because they engage new teachers
only on fixed-term jobs and newly engage the teachers they prefer at the end of the summer
vacations, although there is a permanent demand for more teachers.

65

Seifert, Atypical Employment, p. 15.
Hohendanner/Walwei, WSI-Mitteilungen 2013, 239, 243.
67
Waltermann, Gutachten B zum 68. DJT and V 1 a cc.
68
Waltermann, Gutachten B zum 68. DJT, S. 10 f.
69
Wank, Arbeitnehmer und Selbständige, 1988, S. 89 f.
70
It is a general fact that the state does itself not comply with duties that it imposes on employers; Wank,
Forschung & Lehre 2013, 738.
66

22

There is another connection between employment law and social security law inasmuch, as
the regular age limit is only legitimate referring to the time when the employee is secured by asocial security old age pension.71
The EU directives on atypical work blend out social security; the German law follows this.72

5.

Weighing of Interests and Flexicurity

The directives on atypical employment try to harmonize the two aims, protection of
employees and flexibility of enterprises73, so called flexicurity.74 In antidiscrimination law,however, the ECJ sometimes forgets the fact that these are rules for an economic entity; e. g.
it thinks to be just that an employer must pay the substitute for a substitute for an absent
pregnant employee without getting any work in return for months.75 Different from this in thelaw of especially protected persons there is a weighing of interests inasmuch as the employer
can order an employee that is prevented by pregnancy to fulfill her regular job to do other, but
appropriate work.76 This is also valid for pregnant part-time workers.

IV.

Legal Basis

It is characteristic for Germany and Japan as well as for other countries that the threesystematic aspects of non-regular employment are without order spread over different laws
and that these rules sometimes complete each other, sometimes they overlap and sometimes
they are contrary. Rules concerning mothers working in part-time e.g. are to be found inGerman law in- atypical employment (TzBfG)- antidiscrimination law (AGG) and- law for the protection of mothers (Mutterschutzgesetz).77

71

ECJ 16.10.2007 case C-411/05 – Palacios de la Villa, Slg. 2007 I-08531; 12.10.2010 case C-45/09 –Rosenbladt,
NZA 2010, 1167; see Wank, Festschrift Bepler, S. 585, 596.
72
It was different in the first drafts of directives; see Wank, RdA 1992, 103, 106 f.
73
Historical view by Stöhr, to be published in RdA 2014.
74
Davies, EU Labour Law, p. 180; Bitburger Gespräche, Unternehmerische Entscheidungsfreiheit, 2014.
75
Critique by Wank, Festschrift Richardi, 2007, S. 441, 454 ff.
76
Buchner/Becker, Mutterschutzgesetz, 8. Aufl. 2008, vor §§ 23 – 8 Rn. 27 ff.
77
See also VI 1 a.

23

1. Germanya)Atypical Employment

In Germany the law of atypical employment is to a great extend based on the law of the EU.78
So this report on German law is at the same time a report on EU law.
In the beginning the EU (at that time EEC = European Economic Community, later EC)
planned three separate directives for the three kinds of atypical employment. Consultations
with the member states showed that an agreement could not be reached. Therefore the EC
transferred the task to create a legal basis on the social partners on EC level. They concluded
a framework agreement on fixed-term work and on part-time work. These agreements became
the contents of corresponding directives, so that fixed-term employment is today ruled in the
directive on fixed-term employment, directive 99/70/EC, and part-time in the directive on
part-time employment, directive 97/81/EC.
There was a separate way for temporary agency work. Already a long time ago there was aspecial directive for a certain aspect of this work, health and safety at work, the directive on
health and safety of temporary agency workers. But it was impossible to reach an agreementof the social partners on temporary agency work in general. Meanwhile the commission has
created the directive 2008/104/EC on this subject.79
All four directives have meanwhile been transformed into German law. The law of part-timework and that of fixed-term work were combined in one statute, the act on part-time andfixed-term work, Teilzeit- und Befristungsgesetz, TzBfG. The law of temporary agency work
is ruled in the Arbeitnehmerüberlassungsgesetz, AÜG.80 In its newest version the directive on
health and safety as well as the general directive have been adopted.

b)

Antidiscrimination Law

Antidiscrimination is ruled in Germany in a special act, the Allgemeines
Gleichbehandlungsgesetz, AGG.81 It encompasses three different areas,- employment law, §§ 1-18,- civil law, §§ 19 - 21,- law of civil servants, § 24 in connection with §§ 6 – 18.

78

The development is shown in Michael Schmidt, Die Richtlinienvorschläge; Thüsing, Europäisches
Arbeitsrecht, S. 145 f.; Wank, RdA 1992, 303.
79
ErfK-Wank, AÜG, Einleitung Rn. 3.
80
Boemke/Lembke (Hrsg.), AÜG, 3. Aufl. 2013; ErfK-Wank, AÜG, 14. Aufl. 2014; Schüren/Hamann, AÜG, 4.
Aufl. 2010; Thüsing, AÜG, 3. Aufl. 2012; Ulber, AÜG, 4. Aufl. 2011.
81
Commentaries: Adomeit/Mohr, 2. Aufl. 2011; Bauer/Göpfert/Krieger, 3. Aufl. 2011; Däubler/Bertzbach, 2.
Aufl. 2008; Wendeling-Schröder/Stein, 2008.

24

Some criteria are only to be found here, others as well here as in the law for especially
protected groups. E. g. employees that are discriminated from religious reasons are only
protected here; there is no special law on the protection of religion.
Disabled persons, however, are as well protected by the AGG as by Sozialgesetzbuch IX(SGB IX, former Schwerbehindertengesetz), women as well by the AGG as by
Mutterschutzgesetz and BEEG.82
Antidiscrimination law in the AGG only deals with the eight criteria named there. As regards
other criteria the employer is bound by the allgemeiner arbeitsrechtlicher
Gleichbehandlungsgrundsatz (general principle of equal treatment in employment law).83 It is
not written law, but generally accepted. It transforms the principle laid down in Article 3 ofthe constitution into employment law. As justification, any plausible reason is sufficient.

c)

Especially Protected Groups of Employees

For the different groups named here there are special laws, mostly based on EU law.
The dual way of antidiscrimination law and social protection like in Germany is alsocharacteristic for EU law. On the one hand there are prohibitions of discrimination for theespecially protected. The three central directives of the EU do not refer to atypical work, but
to employees in general, directive 2000/42/EC, directive 2000/78/EC and directive
2006/54/EC. It is forbidden to choose sexual orientation, sex, race or ethnic origin, religion or
belief, disablement or age as criteria in any measures in employment law. These aspects are
not dealt with in the following study.
As regards women in general in relation to men, or mothers or parents or young employees orold employees or disabled persons, there are as well prohibitions of discrimination as generalrules of protection. Due to this dual way there are sometimes fractures in German law. So a
special rule obliging employers to provide special working conditions for disabled persons is
ruled in antidiscrimination law and not in the law of disabled persons. On the other hand a
special rule about applications of disabled persons, different from the AGG, is ruled in the lawof disabled persons and not in the AGG.

2. Japana)Atypical Employment

In Japan there is no combination of the law of atypical employment. The general principle ofequal treatment is stated in Art. 3 Labour Standard Act (LSA); but no consequences for the82
83

See VI 1 a.
Thüsing, Europäisches Arbeitsrecht, S. 147.

25

law of atypical employment is deducted from this. By systematic interpretation rules like Art.
8 of the Part-Time Act (PTA) are special in comparison with the general principle.
Part-time employment is ruled in the Act for the Improvement of the Management of
Employment of Part-time Employees.84
For fixed-term employment85 there is in sec. 14 paragraph 1 LSA a time limit of three years.
For highly qualified employees or for employees older than 60 years it may be prolonged up
to five years. Besides, prolongations are allowed without limit.
Based on Art. 14 paragraph 2 LSA the minister of labour and social affairs has in 2003 ruledthat an employer must declare, when concluding an employment contract, if after the end of
the period a prolongation is planned.
In August 2012 there were important changes in the law of fixed-term employees. They referto- the transformation by law from a fixed-term contract to a non-fixed term contract, Art. 18
LSA,- the end of a fixed-term employment contract, Art. 19 LSA,
- the prohibition to create too great a difference between the employment conditions of
employees without fixed term and fixed-term employees, Art. 20 LSA.
As well as in Germany and other countries, the law of dismissal and the law of fixed-term
employment must be seen in connection. Employers tend to avoid restrictions of the law of
dismissals by concluding fixed-term contracts. They need not give notice, but the contract
ends by itself. In Japan for a long time, like still in the US, the principle of “employment atwill” was valid, meaning that the employer could dismiss his employees at any time without
reason. De facto the Japanese courts have controlled dismissals, and they ruled dismissals
without a reasonable cause as abuse of rights. Meanwhile the requirement of a reasonablecause for ordinary dismissals has been adopted in written law, at first in Art. 23 LSA and now
in Art. 16 Labour Contract Act (LCA).86
In Japan as in Germany it is more profitable for employers to engage applicants - in times
when the future economy is uncertain - for a fixed term. They serve as buffer for economic
swaying.
Japanese law of temporary agency work is based on German law.87 It is ruled in the Act for
the Protection of Appropriate Performance of Temporary Agency Business and for the84

Act No. 76 of 1933, amended by Act No. 72 of 2007 (here as PWA); before there was the act of 1988; see
Kawada, Gedächtnisschrift Zachert, 2010, S. 412.
85
Hashimoto, Bulletin der Japanisch-deutschen Gesellschaft für Arbeitsrecht No. 12 (2011), S. 61.
86
A comparison of German and Japanese law of dismissals at Wank, Nagoya University Journal of Law and
Politics No. 248, March 2013, p. 204.
87
Nishitani, Vergleichende Einführung in das japanische Arbeitsrecht, 2003, S. 305 f.

26

Protection of Temporary Agency Employees.88 The last change of this act was in 2012.89 At
the moment no translation in English exists.90
The understanding of English texts on the Japanese temporary agency law is difficult by thefact that they name the employee “dispatched worker”. But this is due to the “entsandter
Arbeitnehmer” in the German Arbeitnehmerentsendegesetz (AEntG)91, based on the directive
on dispatched workers, meaning employees sent into a country from an employer withresidence abroad.

b)

Antidiscrimination Law

Although the general principle of equal treatment is part of the Japanese constitution in Art.
14, in Japanese employment law there is no general transformation of this principle into a
special antidiscrimination law.

c)

Especially Protected Groups of Employees

In Japan, too, there are special acts for especially protected groups, for women in Art. 4 LSA
and in Art. 64 LSA, for children and youths in Art. 56 LSA, for older employees in the Act
for the Stabilization of the Employment of Older Employees.92

V.

Rules for Atypical Employment in Detail

Following this overview about the legal basis the rules shall now be analyzed in detail. In the
beginning the study refers to atypically employed in a strict sense.

1.

Germany

The German law concerning part-time and fixed-term work (TzBfG) as well as that on
temporary agency work is based on EU law.93 They are the part-time directive 97/81/EC, the88

Act of 28.3.2012; in the following text as Temporary Agency Employment Act, TAEA; see J. Junker,
Arbeitnehmerüberlassung, S. 96 ff.; Wank, Arbeitnehmerüberlassung in Deutschland und Japan, to be
published in Gakushuin Daigaku Law Journal 2014.
89
The version of the act before this change ist to be found in internet in English under www.cas.gojp/jp/seisaku/horei/data/aspo.pdf. As regards the actual version in English, there is only a brochure of the
Ministry of health, work and social affairs (see the following note).
90
There are explanations by the Ministry of work under www.mhlw.go.jp/english/policy/employlabour/employment-security/dl/act121113e. pdf.
91
Wank in Wiedemann, TVG, 7. Aufl., Arbeitnehmerentsendegesetz.
92
Act No. 68 of May 25, 1971 (in the following text ASEOE).
93
Waltermann, Gutachten B zum 68. DJT, S. 20.

27

directive on fixed-term employment 1999/70/EC and the directive on temporary agency work
2008/104/EC. The EU has a positive attitude to atypical employment, but wants it inconnection with the principle of equal treatment.
a)Part-time Work

Based on a framework agreement of the European social partners, the directive 97/81/EC waspromulgated. A central item is the prohibition of discrimination in Art. 1 of the directive inconnection with sec. 4 of the framework agreement.94 The German law exceeds in several
regards the requirements of the directive by more rights for employees.
aa)Legal Facts

Part-time employees represent one fourth of the whole number of employees.95 Every fifth
worki place newly installed in 2012 was a part-time job. In the whole of the EU the number ofpart-timers steadily increases.96 Of women working, more than half work in part-time.97

bb)

Interests

As far as the interests are concerned,98 the interests of employers and of employees are for agreat deal the same.99
In all statements concerning the different kinds of atypical employment it must be taken into
account that it is not the single income from this job, but the income of the family that counts.
That means that a fulltime job of one person and an atypical employment of the other may
result in an appropriate income. 100
By part-time work an employer has the chance as well regarding the working hours as well as
regarding the amount of work to adopt the employment contracts to his demands.101 Anotheradvantage is the higher motivation of part-timers, leading to a higher productivity.102
Of disadvantage may be higher costs for personnel and organization. The costs for benefits
often are bound to a person and not to a fulltime workplace and is therefore higher. 103

94

Waltermann, Gutachten B zum 68. DJT, S. 24.
Seifert, Atypical employment, p. 13 with diagram 2; Waltermann, Gutachten B zum 68. DJT, S. 23.
96
Workinglives, p. 22.
97
Waltermann, Gutachten B zum 68. DJT, S. 24.
98
Bundestags-Drucksache 14/4374, S. 11; Waltermann, Gutachten B zum 68. DJT, S. 25; Wank in Blanke u.a.,Handbuch Neue Beschäftigungsformen, 2. Teil Rn. 39 f.; see above III 1, 2.
99
Joussen, JZ 2010, 812, 815; Waltermann, Gutachten B zum 68. DJT, S. 26.
100
Waltermann, Gutachten B zum 68, DJT, S. 26.
101
Seifert, Atypical employment, p. 14.
102
Bertelsmann/Rust, RdA 1985, 146; Laux/Schlachter, TzBfG, Einführung Rn. 21 ff.; Waltermann, Gutachten B
zum 68. DJT, S. 25.
103
Laux/Schlachter, TzBfG, Einführung Rn. 18.
95

28

Among the part-timers it is necessary to distinguish.104 There are male and female employeesthat would prefer a fulltime job but get only offered a part-time job.105 If the offer of a parttime job complies in general with the interests of the employee,106 the question is if theposition of working time and the amount of hours also comply. Some part-timers would liketo reduce the amount of their working hours, part-time employed men by five hours, womenby 2, 5 hours.107
In other cases part-time work specially corresponds with the wishes of the employee.108 Thisis especially true for mothers who need time for childcare. Following a study by the SOKOInstitut für Sozialforschung in 2000, the motives for part-time work were as follows:- 41, 3 % more sovereignty in time
- 22, 5 % more free time
- 43, 7 % more free time activities- 9, 1 % professional training.
part-time work from employee´s view

voluntary part-time

involuntary part-time

In politics there is the question if an employer may at will offer only part-time jobs or if heneeds – like with fixed-term work – a reasonable cause. If this requirement should be
introduced it is important that necessary decisions about the organization of work are notobstructed.

cc)

Definition(1)The law about part-time work, the Teilzeit- und Befristungsgesetz, provides a definition in§ 2 TzBfG.109 As in the whole area of atypical employment, of antidiscrimination law and ofsocially protected groups there is always the problem to find the “comparable employee”,
104

Altendorf, Hindernisse, S. 221 ff.; Hohendanner/Walwei, WSI-Mitteilungen 2013, 239, 242; Wank, RdA
2010, 193, 197 f.
105
Kawada, Gedächtnisschrift Zachert, S. 412, 429 Fn. 15; Seifert, Atypical Employment, p. 15; Workinglives, p.
25.
106
Only a minority of employees in the EU regards part-time as something precarious, Workinglives, p. 22, 23.
107
Kölner Stadt-Anzeiger, 4. Februar 2014, S. 9.
108
Waltermann, Gutachten B zum 68. DJT, S. 25.
109
As regards the definition in the directive, see Thüsing, Europäisches Arbeitsrecht, S. 131.

29

with whom the employee in question can be compared; this problem should be solved for allcases in an equal or similar way. There might be a general definition of the “comparable
employee”. But this is neither the case in EU law nor in German law. Instead, the problem
must be solved anew for each single act and for each single group of employees. 110 There iseven the opinion, the comparable fulltime employee in § 2 TzBfG and that in § 4 TzBfG neednot be the same.111
The opposite term of a part-timer is the fulltime employee. So part-time employee is each
employee that works less than a fulltime employee, § 2 Abs. 1 Satz 1 TzBfG. He who works
35 hours instead of the usual 36 hours is a part-timer. So - without regarding the different
situation and different interests – the fulltime employee with slightly less hours is legally
regarded as in the same situation as an employee who works two hours a week in his second
job. Neither the part-time act nor the courts differ whether the part-time job is the main job ora second job or if it is due to grant the family income or is just an additional income.112
The comparable employee must be a fulltime employee. He must perform an equal or asimilar activity. § 2 Abs. 1 TzBfG provides several steps to determine this: a fulltime job inthe same enterprise; otherwise according to the collective bargaining agreement; otherwise
referring to such a job in the same industrial area.113

Different need of protection of employees

main jobsecond job(2)In employment law – different from social security law – there is no distinction between apart-time job in general and a geringfügige Beschäftigung (Minijob = small income job).114
As of March 2013 4.5 million women had a “Minijob” and 2.7 million men. For 3 million
women the Minijob was their only employment, for the others it was their second job.115
The difference which is also important for employment law, as the decision for a job for
employers as well as for employees depends on whether it is a normal part-time job or a
Minijob, is only named in social security law, § 8 Abs. 1 Nr. 1 Sozialgesetzbuch IV (SGB
IV); there is only a clarification in § 2 Abs. 2 TzBfG. With the model of a small income job
the law has created nudges to take a job with work only to a certain amount. The privilege is
110

See Lubisch, Der vergleichbare Arbeitnehmer, Dissertation Bochum, to be published in 2014.
Meinel/Heyn/Herms, § 2 TzBfG Rn. 3; opposite (and right) opinion by Boecken/Joussen, § 2 TzBfG Rn. 35.
112
Distinguishing: Wank, Arbeitnehmer und Selbständige, 1988, S. 225 ff.
113
Boecken/Joussen, § 2 TzBfG Rn. 20 ff.
114
Waltermann, Gutachten B zum 68. DJT, S. 27.
115
Frankfurter Allgemeine Zeitung Nr. 12, 15.1.2014, S. 9.
111

30

that employees partly do not need to pay social security premiums. There are two kinds ofsmall income jobs, one referring to the amount of salary and one referring to the amount ofworking time.
An “Entgeltgeringfügigkeit” (small income referring to salary) means that the salary out ofregular employment does not exceed 450 Euro. § 14 SGB IV says that salary encompasses all
kinds of income, including a one-off payment.
“Zeitgeringfügig” employed (small income referring to working time) are employees that are
engaged within one calendar year only for two months or on 50 work days.
Small income employed need not pay social security premiums, § 7 Abs. 1 Satz 1 SGB V, § 5
Abs. 2 Nr. 1 SGB VI, § 20 Abs. 1 Satz 1 SGB IX in connection with § 7 SGB V, § 27 Abs. 2
SGB III. The employers must pay flat rate premiums for sickness insurance and for old age
insurance, § 249 b SGB V, § 172 Abs. 3 SGB VI.
On the one hand it is advantageous for employees that they do not have to pay social security
premiums. On the other hand that excludes them from claims against the social security
system. This is doubtful in cases where the small income job is due to provide the existence ofthe employee. But it should be taken into account that 42 % of the Minijob employees arepupils, students or retired persons.116
Politically the institute of small income jobs is much criticized. One argument is that without
this nudge a lot of these working places would not be offered at all117 or they would be
performed in illicit work – a result that is generally disregarded by critics.118 Others criticize
that the privilege for Minijobs causes repressing effects against regular jobs119 and that these
persons later lack sufficient protection by old age pensions or that the state must take care ofthem. It is criticized that the intended function of a bridge to a regular job does not exist;120
the problem of sufficient old age pension is transferred to the next generation.121 Besides, thelimits for income cause that the salary per hour stays below the general development in thelabour market.122
There is a lot of proposals for a change of the legal situation.123 Some authors suggest that theexemption from social security premiums should be abolished,124 as this is declared to be a
singularity of German law. Perhaps it would be helpful to differ between main job and second
job and to find out the wishes of the Minijob employees themselves: Under what conditions
would they work and under what conditions the work is no longer worthwhile for them?

116

Deinert, RdA 2014, 65, 67; Hohendanner/Walwei, WSI-Mitteilungen 2013, 239, 241.
Hartz u. a., Moderne Dienstleistungen am Arbeitsmarkt, S. 170; Rolfs, NZA 2003, 65, 66.
118
Wank, Festschrift Buchner, 2009, S. 898.
119
Waltermann, Gutachten B zum 68. DJT, S. 36.
120
Waltermann, Gutachten B zum 68. DJT, SD. 35.
121
Deinert, RdA 2014,65, 66; Waltermann, Gutachten B zum 68. DJT, S. 37.
122
Griese/Preis/Kruchen, NZA 2013, 113, 120.
123
The latest one by Griese/Preis/Kruchen, NZA 2013, 113 ff.
124
Waltermann, Gutachten B zum 68. DJT, S. 40.
117

31

Working time

fulltime

part-time

part-time in general“geringfügige Beschäftigung

Contrary to a lot of political criticism the acceptance of a Minijob is no proof ofprecariousness.125 In view of the privileges it is of more advantage for many employees, toaccept a Minijob besides the main job than to add overtime in their main job.

dd)

Prohibition of Discrimination(1)
The central rule in the Teilzeit- und Befristungsgesetz is § 4 Abs. 1 TzBfG, theprohibition of discrimination.126 Already before the coming into force of the directive there
was such a prohibition by the jurisdiction of ECJ and Bundesarbeitsgericht. As part-time work
is mostly done by women, to discriminate a part-time employee was an indirectdiscrimination of women. Therefore these cases were at that time ruled by antidiscriminationlaw (today in Germany by the Allgemeines Gleichbehandlungsgesetz, AGG), and not by thelaw of atypical employment.127
When comparing the normal salary and additional payments one must distinguish. There
always needs to be a just cause for different treatment in comparison with fulltime employees.
Compared is same or similar work, but not: work of equal value, like in gender
discrimination.128
The principle of equal treatment can be applied in relation of fulltime work and part-time
work; it is not valid among different groups of part-time employees.129 E. g. the employees
working on Mondays or Thursdays have more often a holiday than those working on Tuesday,
because most of the holidays during the week are on these two days; this problem cannot be
solved by § 4 TzBfG, but by the general principle of equal treatment.

125

Hohendanner /Walwei, WSI-Mitteilungen 2013, 239, 241.
As regards the German rule see Kawada, Chuo-Gakuin University Review of Faculty of Law Vol. 15, No. 1 / 2(2002), p. 186.
127
Annuß/Thüsing, § 4 TzBfG Rn. 5 ff.; Davies, EU Labour Law, p. 183; Wank in Hanau/Steinmeyer/Wank,
Handbuch des Europäischen Arbeits- und Sozialrechts, S. 552 ff.
128
Annuß/Thüsing, § 4 TzBfG Rn. 25; Thüsing, Europäisches Arbeitsrecht, S. 150.
129
BAG 6.12.1990 AP BeschFG 1985 § 2 Nr. 12; Annuß/Thüsing, § 4 TzBfG Rn. 24; Boecken /Joussen, § 4 TzBfG
Rn. 24 ff.; Laux/Schlachter, § 4 TzBfG Rn. 17.
126

32

Forbidden is not only direct discrimination, but also indirect discrimination. 130 If thedisadvantage in one respect is balanced by a privilege in another respect, then in the end there
is no disadvantage.131
The principle of equal treatment refers to all kinds of working conditions. But it is necessary
to distinguish between money and a benefit worth money on the one hand and otherconditions of work on the other hand, and also between benefits that can be divided andothers. Regarding salary and benefits that can be divided the pro-rata-temporis principle isapplicable.132 As regards indivisible benefits part-time employees generally have a claim to
the whole benefit, but there can be a reasonable ground to exempt them.133
Generally disadvantages are justified if there is a reasonable cause. Judged by the wording of§ 4 Abs. 1 TzBfG there seems to be no reasonable cause for differences concerning money,
and some authors think so. The prevailing opinion, however, is - with good reason opposite.134 Reasonable causes are: occupational training, qualification, and experience inthe job or requirements to the performance of the job.135
If there is less work to be done, the employer may perform the adaption by primarily
dismissing of part-time workers. 136
Of special interest are the rules serving the integration of part-timers (§§ 7 and 10 TzBfG) andthe rules concerning the change from part-time to fulltime and vice versa (§§ 8 and 9 TzBfG).
Although the law demands equal treatment, part-timers often do not make use of theirrights.137(2)
As part-timers only spend a part of the operating time of the enterprise, they may be
excluded from information, and the employer may regard their work as less profitable andexclude them from further training measures. Therefore §§ 7 and 10 serve the integration ofpart-time employees in the staff and complete the principle of equal treatment by the duty ofcertain measures.
(3) (a) The German employment law enables an employee to keep his job and change froma fulltime status to a part-time status, § 8 TzBfG.138 Similar rules exist in § 15 BEEG, § 21
SGB IX and in § 63 Pflegezeitgesetz.139 The requirements are:130

Laux/Schlachter, § 4 TzBfG Rn. 31.
Laux/Schlachter, § 4 TzBfG Rn. 32.
132
Laux/Schlachter, § 4 TzBfG Rn. 47.
133
Laux/Schlachter, § 4 TzBfG Rn. 48 f.
134
Laux/Schlachter, § 4 TzBfG Rn. 55; Wank in Blanke u.a., Neue Beschäftigungsformen, Teil 2 Rn. 172.
135
Laux/Schlachter, § 4 TzBfG Rn. 62; Wank in Blanke u. a., Neue Beschäftigungsformen, Teil 2 Rn. 172.
136
Annuß/Thüsing, § 4 TzBfG Rn. 667 ff.
137
Griese/Preis/Kruchen, NZA 2013, 113 ff.
138
On EU law Thüsing, Europäisches Arbeitsrecht, S. 155.
139
Boecken/Joussen, § 8 TzBfG Rn. 197 ff.; Latzel, in Vielfalt oder Chaos, Hrsg. Uffmann/Dahm, 2013, S. 77, 87
ff.; Meinel/Heyn/Herms, § 8 TzBfG Rn. 3 ff.
131

33

- The employment relationship has existed longer than six months.140- The employer must inform the employer of his wish to reduce his working time and toarrange another distribution of his working time at least three months before the plannedchange.141- The employer has engaged in his enterprise regularly more than 15 employees.142- If the employer has consented to a reduction of working time or has refused it withjustification, a new reduction of working time can be demanded no sooner than after two
years.143
The employer is obliged to discuss with the employee his or her wish of reduction of working
time. He may only refuse this wish, if entrepreneurial reasons oppose it.144 There are threepossible reasons to justify a refusal:- the organization of the enterprise145 or- the course of work146 or- the safety of the enterpriseare severely restricted or
the change causes unproportional costs.147

Contrary to the wording and the history of the origins of the law148 the Bundesarbeitsgericht
has reduced the justification for refusing the offer of the employee de facto on “important
entrepreneurial reasons”.149 Recently the BAG has even intensified the requirements:
Opposite to the prevailing opinion the employer is obliged to search in his whole enterprisefor appropriate free part-time workplaces.150
Generally an employee can, together with his offer to reduce his working hours, demand a
new disposition of his hours. In a certain case this may be an abuse of rights; so when theemployee wants to use a small reduction of his working hours to obtain a bloc of free time
140

Annuß/Thüsing-Mengel, § 8 TzBfG Rn. 21 ff.; Laux/Schlachter, § 8 TzBfG Rn. 97 ff.
Annuß/Thüsing-Mengel, § 8 TzBfG Rn. 37 ff.
142
Laux/Schlachter, § 8 TzBfG Rn. 113 ff.
143
Laux/Schlachter, § 8 TzBfG Rn. 124 ff.
144
As regards the burden of proof see Boecken/Joussen, § 8 TzBfG Rn. 45 ff.; Salamon/Reuße, NZA 2013, 865.
145
Annuß/Thüsing-Mengel, § 8 TzBfG Rn. 151 ff.; Boecken/Joussen, § 8 TzBfG Rn. 45 ff.; Laux/Schlachter, § 8
TzBfG Rn. 166 ff.
146
Laux/Schlachter, § 8 TzBfG Rn. 192 ff.
147
Annuß/Thüsing-Mengel, § 8 TzBfG Rn. 156 ff.; Laux/Schlachter, § 8 TzBfG Rn. 194 ff.
148
Annuß/Thüsing-Mengel, § 8 TzBfG Rn. 134 ff.; Laux/Schlachter, § 8 TzBfG Rn. 140 ff.; Boecken/Joussen, § 8
TzBfG Rn. 36.
149
Wank, RdA 2010, 193, 198 f.
150
BAG AP TzBfG § 8 Nr. 31 with critical comment by Heyn.
141

34

before holidays.151 It is characteristic for the bad quality of the law if such a demand ispossible from the wording of the law.
If the employer has not informed the employee in writing at least one month before thebeginning of the planned reduction, the employment contract is changed by law in the way
asked by the employee.
There is hard critique against § 8 TzBfG:152- It requires no reason at all on the side of the employee,153- it contains no guidelines or restrictions regarding the amount of reduction,154- it contains no guidelines or restrictions regarding the disposition of the planned working
hours ,- it does not require writing (different from the refusal of the employer).155

This rule exceeds unnecessarily the rules of EU law.156 In spite of all this the prevailing
opinion regards it in compliance with the constitution.157(b)
If the employee wants to increase his working time,158 his position isremarkably weaker, § 9 TzBfG.
Of special interests are the rules concerning a change from fulltime to part-time. E. g. afemale employee wants to work in part-time some time after the birth of her child. She does
not know yet whether she will want to return to fulltime later on.
Other examples: An employee working part-time has bought a house and needs more money
and wants to increase his working hours. - A mother that had worked part-time because ofchildcare as long as her child was not yet in school wants to return to her fulltime job.
The notice by the employee need neither be in writing nor does he need to give any reason.159

151

BAG 11.6.2013 NZA 2013, 1074.
Wank, RdA 2010, 193, 198; also Joussen, JTZ 2010, 812, 815; Waltermann, Gutachten B zum 68 DJT, S. 27.
153
Boecken/Joussen, § 8 TzBfG Rn. 92.
154
Boecken/Joussen, § 8 TzBfG Rn. 92.
155
Boecken/Joussen, § 8 TzBfG Rn. 104.
156
Boecken/Joussen, § 8 TzBfG Rn. 2.
157
Boecken/Joussen, § 8 TzBfG Rn. 5; critical Bauer, NZA 2000, 1040; Rolfs, TzBfG, 2002, § 8 Rn. 2 f.; Schiefer,
DB 2000, 2118.
158
Davies, EU Labour Law, p. 188.
159
Meinel/Heyn/Herms, § 9 TzBfG Rn. 14.
152

35

The employer only needs to come up to the wish if an appropriate working place is free. He is
not obliged to create such a place.160 If such a place exists, it is possible that several
employees compete for this place. The part-time employee is – if he is equally able as thecompetitors 161– to be chosen with preference. But even then he does not get the fulltime job,if
- important entrepreneurial grounds162 or- concurring wishes of other part-time employees163
oppose it.

ee)Legal Policy

For the political discussion there are two questions:- Is an employer allowed to organize his personnel in such a way that for new working places
he only engages part-timers?
- Would a quota of part-time work help?164
Different from the law of fixed-term work, where a fixed term – apart from § 14 Abs. 2 and 3- is only allowed in case of a reasonable cause, § 14 Abs. 1 TzBfG, for a fixed term the
TzBfG does not require any reason. If a corresponding restriction would be created it would
heavily infringe the freedom of the job of employers, Art. 12 Grundgesetz (GG). But a quotaof part-time work seems to be allowed.
The Landesarbeitsgericht (LAG) Baden-Württemberg, however, thinks that if an employer
only engages part-timers the works council is allowed to oppose the engagement because of aviolation of law; the employer prevents, following this concept, the claim of increase ofworking time, § 9 TzBfG.165 The LAG fails to see that § 9 TzBfG concerns the change of an
existing employment contract and not the conclusion of a contract.
As regards the return to a fulltime job after childcare, the agreement of the coalition says thata solution shall be found.166 It will be difficult to find a solution in accordance with the
160

Annuß/Thüsing-Jacobs, § 9 TzBfG Rn. 14; Boecken/Joussen, § 9 TzBfG Rn. 19 ff.; Laux/Schlachter, § 9 TzBfG
Rn. 23; Meinel/Heyn/Herms, § 9 TzBfG Rn. 16.
161
Annuß/Thüsing-Jacobs, § 9 TzBfG Rn. 16 ff.; Boecken/Joussen, § 9 TzBfG Rn. 25 ff.; Laux/Schlachter, § 9
TzBfG Rn. 36 ff.
162
Annuß/Thüsing-Jacobs, § 9 TzBfG Rn. 22 ff.; Meinel/Heyn/Herms, § 9 TzBfG Rn. 23; Laux/Schlachter, § 9
TzBfG Rn. 46 ff.
163
Annuß/Thüsing-Jacobs, § 9 TzBfG Rn. 28 ff.; Laux/Schlachter, § 9 TzBfG Rn. 67 ff.; Meinel/Heyn/Herms, § 9
TzBfG Rn. 67 ff.
164
As regards part-time quotas in collective bargaining agreements see Däubler/Hensche/Heuschmidt, § 1 TVG
Rn. 763.
165
LAG Baden-Württemberg 21.3.2013 6 TaBV 9/12.
166
Deutschlands Zukunft gestalten, Koalitionsvertrag zwischen CDU, CSU und SPD, 18. Legislaturperiode,www.cdu.de/sites/default/files/media/dokumente/Koalitionsvertrag.pdf = NZA 23/2013, S. IX ff.

36

freedom of work of the employer. The most acceptable solution would be a right to return at adate fixed in advance. According to the existing laws an employee cannot demand a fixedterm reduction of his working hours; 167 he can only wait and later refer to § 9 TzBfG.

ff)

Other Items

In the second part of the TzBfG there are rules going beyond non-discrimination creating a
duty to support. Part-time work shall be promoted, § 6 TzBfG, the special kinds of work on
demand, § 12, and division of the workings place, § 13 TzBfG, found special rules.
Employers must inform their employees about free workplaces, part-timers have the right toparticipate in training measures, § 10 TzBfG.

gg)

Sanctions

A special sanction is in § 8 Abs. 5 Satz 3 TzBfG: A change of the contract arises under certain
circumstances by law. Generally violations of the law either lead to a claim of fulfillment or
to voidness of the measure. There is no special sanction as regards the salary. This gap has
been closed by the ECJ in its own way: if the payment of the part-timer falls below that of afull timer without justification, the employer is obliged to make an “adaption to the top”.168hh)Labour Law

The prohibition of discrimination, § 4 Abs. 1 TzBfG, does not only bind individual
employment contracts but also collective bargaining agreements. Those agreements must not
exclude part-timers from the validity of the collective bargaining agreement without a goodcause. 169
A right of the works council of codetermination may result from § 87 Abs. 1 Nr. 2 BetrVG.170§ 8 TzBfG does not restrict the application of § 87 BetrVG.171 In all cases of § 87 BetrVG acollective situation is required. 172 This is not the case if a single employee wants to reduce his
working time. § 99 BetrVG is not applicable on this, as the reduction of working time isneither a posting nor an engagement.

167

Laux/Schlachter, § 8 TzBfG Rn. 51.
Laux/Schlachter, § 4 TzBfG Rn. 180; critical Löwisch/Rieble, TVG, § 1 Rn. 833 ff.; Comment of Krebber on
BAG AP BetrVG 1972 § 75 Nr. 59.
169
BAG 28.3.1996 NZA 1996, 1280 on the one hand, BAG 25.4.2000 AP TzBfG Nr. 14 on the other hand;
Boecken/Joussen, § 4 TzBfG Rn. 56 f.
170
Meinel/Heyn/Herms, § 8 TzBfG Rn. 11.
171
BAG 24.6. 2008 NZA 2008, 1309, 1312.
172
Wank, Festschrift Kraft, 1998, S. 665.
168

37

a)

Fixed-Term Work

The law of fixed-term employment being for many years judge made law, theBeschäftigungsförderungsgesetz 1985 first implanted it in written law; today it is ruled,following the directive 199/70/EC on fixed-term employment, in the Teilzeit- undBefristungsgesetz, TzBfG.

aa)

Legal Facts

Almost every second new employment contract is meanwhile a fixed-term contract.173 Thiskind of contract has taken over the function of probationary period. In absolute figures 2.7
million employees have a fixed-term contract.174 72 % get afterwards a job in the enterprise
where they are working, namely 33 % a prolongation, 39 % an unlimited employment. 175 For
61 % of the employees with a fixed-term contract, collective bargaining agreements areapplicable (for employees with unlimited employment 53 %). The reason is on the one handthat in the civil service there is a widespread appliance of collective bargaining agreements
and on the other hand in the civil service a greater number of contracts are fixed-term
contracts.176 This is partly due to the fact that in universities a lot of fixed-term employments
exist.
Different from Japan, further work in the same enterprise is neither usual nor is it a subject ofauthors in employment law. 177 Only 4. 5 % of employees older than 65 continue their work
after retirement.178 A fixed-term employment without just cause at the former employer is
impossible because of § 14 Abs. 2 Satz 2 TzBfG. Perhaps it is possible to interpret thesituation as a reason in the person, § 14 Abs. 1Sartz 2 Nr. 6 TzBfG. Preferably there would be
an express clarifying in the act. Its contents should be that to continue work in the same
enterprise is possible and that the employer needs no good cause for a fixed-term contract.
Besides, the new employment contract should not contain any worsening compared with theold contract, other than containing the termination. With this idea a phrase in the Rosenbladt
case of the ECJ can better be understood where the ECJ said the plaintiff could, having
reached her retirement age, apply again at the former employer and he would be obliged todecide about the application without discrimination.179

173

Frankfurter Allgemeine Zeitung (FAZ) v. 23.3.2010, S. 13; see also Waltermann, Gutachten B zum 68. DJT, S.

64.
174

Hohendanner/Walwei, WSI-Mitteilungen 2013, 239.
Statement of the Bundesvereinigung der Deutschen Arbeitgeberverbände (BDA) v. 10.3.2014.
176
Frankfurter Allgemeine Zeitung v. 6.8.2013 Nr. 180, S. 11.
177
A. Junker, EuZA 2013, 3, 13.
178
Kraft, Mitbestimmung 1-2/2014, S. 28.
179
ECJ 12.10.2010 case C-45/09 – Rosenbladt NZA 2010, 1167.
175

38

bb)

Interests

The interests in case of fixed-term employment are rather different from that in the case ofpart-time employment. Only a few employees have an own interest in being engaged only fora fixed term;180 e.g. if they already have concluded a new employment contract and only wantto get through the period till then or if they have other reasons to get through a period. Most
employees engaged for a fixed term would prefer a contract without time limit. 61.7 % of
employees with fixed-term contract in Europe have chosen it because no work without fixed
term was offered to them.181 The disadvantage of fixed-term work is that it makes difficult toplan future life.182
A positive aspect is that a fixed-term job may provide a workplace first that can be switched
into an unlimited employment afterwards. The chance for this is greater for those with alimited employment than for those that have been unemployed before.183
For employers 184 the advantage of fixed-term work is that they can adopt e.g. the period of an
employment contract to the period of a special project. Most of all fixed-term work gives amuch easier chance to separate from an employee; the employer need no just cause for adismissal and need not hear the works council.
The ruling of fixed-term contracts was based on the idea that employers envisaging thedifficulties of dismissals would rather be willing to engage applicants on a fixed-term basis.185cc)

Definition

When defining a fixed-term employment, there are three possible ways:186- The employment contract can be concluded for a time fixed by the calendar, § 3 Abs. 1
TzBfG,
the end of the employment relationship may result from the kind, the aim or the
performance of the work, § 3 Abs. 1 TzBfG,
or the employment contract contains a condition of dissolution; this case is not ruled in
the definition in § 3 TzBfG, but results from § 21 TzBfG.

180

Davies, EU Labour Law, p. 182; Giesecke /Groß in Keller/Seifert, Atypische Beschäftigung, 2007, S. 83 f.
Workinglives, p. 16.
182
Workinglives, p. 20.
183
Hohendanner/Walwei, WSI-Mitteilungen 2013, 239, 240.
184
Giesecke/Groß in Keller/Seifert, Atypische Beschäftigung, S. 83, 103.
185
Bundestags-Drucksache 10/2012, S. 15 f.
186
Annuß/Thüsing, § 3 TzBfG Rn. 11 ff.; Boecken/Joussen, § 3 TzBfG Rn. 6 ff.
181

39

There is no minimum period. Even employment relationships for one day are possible.187
The problem how to find a comparable employee has been appreciably solved in § 3 Abs. 2
TzBfG.188 There is a three step procedure:
The comparable employee may be- an employee working in the same enterprise with the same or a similar work (realcomparable person),- an employee comparable by the collective bargaining agreement,- a real employee working in the same sector of industry.

There is a gap in this rule as it does not, as is usual nowadays, refer to a hypothetical
employee, i.e. the employee that would normally have been engaged under the usual
conditions, but always asked for a really existing person. By the way, the rule issystematically in the wrong place; it belongs to § 4 Abs. 2 TzBfG.189 But there is a discussion
about the application of § 4 Abs. 2 TzBfG (see below).190

dd)

Prohibition of Discrimination§ 4 Abs. 2 TzBfG forbids to discriminate against employees with a fixed-term contract.191 A
different treatment is allowed based on a good cause. 192 Different from discrimination
regarding part-time work there are no judgments before the TzBfG regarding an indirectdiscrimination of women.193 This is due to the fact that whereas part-time work is dominatedby women this is not the case with fixed-term work.
§ 4 Abs. 2 Satz 1 TzBfG does not only prohibit direct discrimination, but also – although thisis not expressively said – indirect discrimination.194 But in case of an indirect discrimination
the causality of a measure of fixed-term employed must separately be stated.195

187

BAG 16.5.2012, SAE 2013, 67 with comment by P. H. Müller.
Annuß/Thüsing, § 3 TzBfG Rn. 11 ff.; Boecken/Joussen, § 3 TzBfG Rn. 33 ff.; Meinel/Heyn/Herms, § 3 TzBfG
Rn. 12 ff.
189
Meinel/Heyn/Herms, § 3 TzBfG Rn. 12; Wank, Festschrift Schnapp, 2008, S. 839, 841.
190
Meinel/Heyn/Herms, § 4 TzBfG Rn. 125 f.
191
About EU law see Thüsing, Europäisches Arbeitsrecht, S. 163 f.
192
The good cause problem is dicussed above regarding part-time.
193
Annuß/Thüsing, § 4 TzBfG Rn. 9.
194
Annuß/Thüsing, § 4 TzBfG Rn. 18; Laux/Schlachter, § 4 TzBfG Rn. 241 f.; Meinel/Heyn/Herms, § 4 TzBfG Rn.
124.
195
Annuß/Thüsing, § 4 TzBfG Rn. 19; Laux/Schlachter, § 4 TzBfG Rn. 245; Meinel/Heyn/Herms, § 4 TzBfG Rn.
127.
188

40

Who is the comparable employee, § 4 TzBfG does not reveal, but – systematically in a wrong
place - § 3 Abs. 2 TzBfG. As far as employers are obliged to grant fixed-term employed thesame conditions as in the enterprises of competitors, this rule must be interpreted in a
restrictive way.196
Different treatment is justified by a good cause. Besides, the measure must be appropriate.
As far as money or benefits are concerned the pro-rata-temporis principle is applicable, § 4
Abs. 2 Satz 2 TzBfG. Although the EU has no competence concerning salary, Art. 157
paragraph 5 TFEU, the prevailing opinion is that it has a competence for rules with indirect
effect on the salary, like the prohibition of discrimination.197 The wording of § 2 Satz 2 does
not allow a discrimination because of a good cause, but the prevailing opinion is right toaccept this justification.198 A good cause may be that seniority shall be appreciated. 199 If theemployee is only engaged for a short period, the participation in further training can beuseless.200

ee)Other Items

The third part of the TzBfG contains rules concerning the employer´s duty of information, §§18 and 20 TzBfG, a rule about further training, § 19 TzBfG, and a special rule about the endof an employment relationship, § 15.

ff)

Fixed-term Employment with Grounds and without Grounds

This difference is of great importance for an understanding of the law of fixed-term
employment.201 Generally the employer needs a good cause to be allowed to conclude a fixedterm contract. If such a cause does not exist, the employment contract is by law a contract foran unlimited period. A similar rule is valid in France, Italy, and Spain. The accepted causes
named in § 14 Abs. 1 TzBfG have in common, that the reason for the employment only exists
for a temporary period.
But there are two exemptions: One is for newly founded enterprises, § 14 Abs. 2 a TzBfG.202
The other is that a limitation without cause is allowed up to two years, and during these twoyears a prolongation without cause is allowed up to three times, § 14 Abs. 2 TzBfG.

196

Laux/Schlachter, § 4 TzBfG Rn. 249.
ECJ 13.9.2007 case C-307/05 NZA 2007, 1223.
198
Laux/Schlachter, § 4 TzBfG Rn. 253; Meinel/Heyn/Herms, § 4 TzBfG Rn. 132.
199
BAG 28.3.2007 NZA 2007, 681.
200
Laux/Schlachter, § 4 TzBfG Rn. 251.
201
Greiner, ZESAR 2013, 305.
202
Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 79 a.
197

41

The rule can, however, only be applied if the same employee has not been employed by thesame employer before (“restriction of former occupation”).203 Taken in a strict sense, this ruleviolates the constitution, because it disproportionally excludes persons from getting a job. If e.
g. a student has worked four years ago during his semester vacations in one enterprise, itcannot engage him for a fixed term without good cause and will therefore engage others
without this restriction. Therefore the BAG has made a “teleological restriction” that thissection is not applicable if more than three years have passed since.204 Most authors regard
this judgment as illegal broad interpretation205 - but they don´t understand that every
restricting rule must obey the requirement of being proportional.- If two employers cooperate
in a certain way to avoid the restriction, the courts do not accept the abuse of rights.206
As far as prolongations are concerned, the following difference is important: Fixed-term
employment contracts without a cause can only be prolonged within a two year period, so thata fixed-term employment can at most last two years. Different rules are only allowed forcollective bargaining agreements, § 14 Abs. 2 Satz 3 TzBfG.207 During this period theemployer is rather free. He can conclude e. g. one contract for two years, but as well one
contract for three months and prolong it three times, up to altogether two years.
Contrary to this a contract with good cause can be prolonged as often as wanted, or they may
be a series of contracts for a fixed term, each based on another ground, but always among thesame partners of the contract (as regards the problem of a chain of contracts also see below
gg).

gg)

Termination with Grounds§ 14 Abs. 1 Satz 2 TzBfG names some good causes. When interpreting them the judgment of
the ECJ in the case Angelidaki must be observed.208 The BAG generally does not control aseries of fixed-term contracts, but, in accordance with EU law, only the last termination. 209
The employment contract need not state the reason for the termination if it is a termination by
the calendar, but must name it in case of a certain aim of the contract.210
As for temporary need (no. 1) a prognosis is necessary.211 In general the employer bears therisk of the future economic development. He must not transform it on the employee. A
203

Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 69 ff.
BAG 6.4.2011 with approving comment of Wank, RdA 2012, 361; opposite opinion by LAG BadenWürttemberg 26.9.2013 – 6 Sa 28/13, denying a violation of the constitution.
205
E. g. Lakies, AuR 2011, 190.
206
BAG 15.5.2013 NZA 2013, 1267..
207
LAG Düsseldorf 21.6.2013 – 10 Sa 1747/12.
208
ECJ 23.4.2009 case C-378/07 – Angelidaki, Slg. 2008, I-2483 = NZA 2008, 581.
209
BAG 22.4.1998 AP BGB § 611 Rundfunk Nr. 25; BAG 25.3.2009 NJW 2009, 3180; see ECJ 26.1.2012 case C586/10 - Kücük, NZA 2012, 135.
210
Meinel/Heyn/Herms, § 14 TzBfG Rn. 32 f.
211
Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 30, 33; Laux/Schlachter, § 14 TzBfG Rn. 14, 29.
20442

termination is only allowed if there is a certain prognosis212 that the demand for employment
will be dropped at a later time.213 Accepted cases are a limitation for a certain project or an
occupation dependent of money from a third party or a seasonal engagement.214
A fixed-term contract following an occupational training or a study (no. 2)215 is allowed, if
afterwards the employee gets a permanent employment, but not if the employer tries to build
up a personal reserve of employees that afterwards do not get a job. The engagement musttake place directly following the training, so that only the first job is meant.216
One of the most important good causes is deputizing of another employee (no. 3).217 Thismeans mostly cases of absence because of sickness or vacancies. The limitation is only
allowed with the prognosis that the replaced employee shall come back.218 Although there
must be a connection between the deputizing and the fixed-term employment, it is notnecessary that the deputy does directly the job of the other; an indirect deputizing issufficient.219 E. g. the direct or indirect deputizing of a core employee may give a goodcause.220 As regards schools the BAG deems it as sufficient if there is a need of deputizing in
general.221 But in the last judgment the BAG required a “chain of replacement”, meaning one
employee replaces another one who himself replaces a third one.222
A special problem is “chains of fixed-term contracts”. 223 According to the TzBfG an
employer may, with good cause, employ the same employee again and again. In the case of aplaintiff at the ECJ, Mrs. Kücük, she had been engaged at a German Amtsgericht (local court)
altogether thirteen times. The ECJ now demands that the courts control if there is an abuse ofrights and if in reality a permanent workplace was taken.224 Even after this judgment an
employer can still add one fixed-term contract to the other; still only the last termination iscontrolled. There are two ideas that must be weighed against each other. If employers wereforced to provide a personnel reserve of employees with no fixed term contracts for all casesof sickness or vacations, this would violate their freedom of organization. On the other handthe number and the duration of fixed-term contracts may indicate that such a workplace isneeded.225

212

Hard restrictions in BAG 11.9.2013 NJW 2014, 489 and 4.12.2013 – 7 AZR 277/12, not yet published.
Meinel/Heyn/Herms, § 14 TzBfG Rn. 48 ff.
214
Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 35.
215
Laux/Schlachter, § 14 TzBfG Rn. 38 ff.
216
Meinel/Heyn/Herms, § 14 TzBfG Rn. 66.
217
Laux/Schlachter, § 14 TzBfG Rn. 46 ff.
218
BAG 11.112.1990 AP BGB § 620 Befristetes Arbeitsverhältnis Nr. 141.
219
Meinel/Heyn/Herms, § 14 TzBfG Rn. 14, 79.
220
BAG 10.7.2013 NZA 2013, 1292.
221
Reference of the jurisdiction at Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 38.
222
BAG 16.11.2013 NZA 2013, 611.
223
Kiel in Jahrbuch des Arbeitsrechts 50 (2013); see Workinglives, p. 18.
224
ECJ 26.1.2012 case C-586/10 – Kücük, NZA 2012, 135; following it BAG 18.7.2012 NZA 2012, 135 and BAG
18.7.2012 NZA 2012, 1354; see Adam, AuR 2013, 1354; Bruns, NZA 2013, 769; A. Junker, EuZA 2013, 3, 6 ff.;
Kamanabrou in Vielfalt oder Chaos, Hrsg. Uffmann/Dahm, S. 1ff.
225
BAG 10.7.2013 NZA 2014, 26.
213

43

The characteristic of a special work (no. 4)226 refers to the interest of the employer specially
protected by the constitution, like the freedom of broadcast, Art. 5 Abs. 1 GG, but also forstages 227 and sports.228
The fixed term because of testing (no. 5)229 must be contrasted to the probationary time in an
unlimited employment relationship, § 622 Abs. 23 BGB. This clause leads to an automaticend of the contract. The duration of the testing must comply with the aim of the probation.230
A cause in the person of the employee (no. 6)231 is mostly regarded as given if the employee
himself wants the termination232, but also if the employee wants to get through a period.
No. 7 allows a termination because of the budget. 233 If the budget does no longer provide
workplaces for a special kind of work, this workplace can be taken by a fixed-term
employment until the end of financing. It is necessary that the rules in the budget law
themselves give the details of fixed-term contracts.234There is critique against this privilege
for the state referring to EU law and to constitutional law.235
The last named good cause is a court settlement, no 8.236
Besides these named good causes, unnamed good causes are justified “especially” if they are
similar to the named ones and of equal weight, § 14 Abs. 2 Satz 1 TzBfG.237
There is no convincing solution for those that want to continue their work when having
reached their retirement age (see above sub aa). As the legal situation is now, the normal lawof dismissal is to be applied, and a dismissal because of reduced abilities has hardly success inthe courts. The grounds in § 14 Abs. 2 TzBfG do not cover this case, and if the employer
wants a fixed-term contract without cause, § 14 Abs. 2 TzBfG, this is prevented by § 14 Abs.
2 Satz 2 TzBfG.238§ 14 Abs. 3 TzBfG allows a fixed-Term contract with applicants that had been unemployed
and who have finished their 52nd year.239

226

Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 39; Laux/Schlachter, § 14 TzBfG Rn. 543 ff.
Meinel/Heyn/Herms, § 14 TzBfG Rn. 96.
228
Meinel/Heyn/Herms, § 14 TzBfG Rn. 120 ff.
229
Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 48; Laux/Schlachter, § 14 TzBfG Rn. 62 ff.
230
Meinel/Heyn/Herms, § 14 TzBfG Rn. 133.
231
Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 52; Laux/Schlachter, § 14 TzBfG Rn. 68 ff.
232
Different: Münchener Handbuch zum Arbeitsrecht-Wank, § 95 Rn. 107: unnamed good cause.
233
Annuß/Thüsing-Maschmann, § 14 TzBfG Rn. 58.
234
BAG 18.10.2006 NZA 2007, 332.
235
Laux/Schlachter, § 14 TzBfG Rn. 90.
236
Laux/Schlachter, § 14 TzBfG Rn. 90.
237
BAG 9.12.2009 NZA 2010, 495.
238
Gräf in Neue Arbeitswelt, 3. Assistententagung im Arbeitsrecht, 2013.
239
Waltermann, Gutachten B zum 68. DJT, S. 68; Wiedemann, Festschrift Otto, 2008, S. 609.
227

44

hh)

Sanctions

Possible sanctions are the voidness of the rule, a right to the abatement or damages.240 The
sanction of the law in case of voidness of the termination clause is very effective: The
employee has by law a contract without termination, § 16 TzBfG. In cases of unjustified
fixed-term the BAG also acknowledges an “adjustment to the top”.241

ii)

Labour Law

If an employee is engaged with a fixed-term job, the works council has a right of codetermination, § 99 Betriebsverfassungsgesetz (BetrVG). 242 § 20 BetrVG demands of theemployer to inform the works council about the number of fixed-term employed. Usually incases of important changes in the organization fixed-term employees are exempted from
Sozialpläne ( = “severance schemes”); this is justified because severance schemes shall havethe “function of a bridge”.
Collective bargaining agreements must also apply the principle of non-discrimination.243b)

Temporary Agency Workaa)

Legal facts244

The actual version of the Arbeitnehmerüberlassungsgesetz (AÜG) is based on the temporary
agency work directive of the EU 2008/104/EC.245
The share of temporary agency workers among the whole number of employees covers in the
longtime average about 2 %.246 In times of economic upward trends it was even higher.
During the economic crisis it went down, because temporary agency workers were the first to
be dismissed. Correctly said: The enterprises ordered less temporary agency work, and theagencies could only engage less.247 At the moment the number increases again. In the year of2013 there were 852 000 temporary agency workers in Germany. Two thirds of them had

240

Laux/Schlachter, § 4 TzBfG Rn. 265 ff.
BAG 6.4.2011 NZA 2011, 970; critical Hartmann, Festschrift v. Hoyningen-Huene, 2014, S. 123, 129.
242
GK-BetrVG-Raab, § 99 BetrVG.
243
Meinel/Heyn/Herms, § 4 TzBfG Rn. 145 ff.
244
Regarding the share of temporary agency workers among the total number of employees see Ulber, AÜG,Einleitung E Rn. 1 ff.
245
As regards the transformation in the member states see Bericht der Kommission.
246
See Waltermann, Gutachten B zum 68. DJT, S. 44.
247
Zwölfter Bericht, S. 42 f., 47.
241

45

been unemployed before. Half of the temporary agency workers were only engaged for up to
three months.248
The salary of temporary agency workers were sometimes remarkably lower than that of core
workers.249
At the end of June 2013 there were about 18.000 temporary work agencies in Germany. 38 %among them were so called mixed enterprises that did not perform exclusively agency work,
but had mainly another activity.250

bb)

Interests

As regards the interests involved,251 temporary agency work is dominantly in the interest of
employers. 252 The energy for the organization of work is much reduced; the user enterprise
has only to observe health and safety law. As far as the reduction of costs is concerned, on the
one hand the temporary agency demands a plus on the salary for their costs and their profit;on the other hand the said advantages are worth the costs.253
Organizationally there is an advantage by the fact that the employer need not engage
employees himself; he need not place advertisements, to hold job interviews and need not
fulfill duties of an employer like continued payment in case of sickness.
Employees have an interest in temporary agency work, if they have no or little other chancesin the labour market, if they want to try the work in a special industrial sector, or if they hopethat the user company will afterwards engage them for a permanent job (“Klebeeffekt” =effect of gluing).254 There are advantages for starts in the labour market, or for those returning
into the labour market after a break. 255

248

Frankfurter Allgemeine Zeitung (FAZ) of 23.1.2014 Nr. 19 S. 10; see also Waltermann, Gutachten B zum 68.
DJT, S. 44 f.; Zwölfter Bericht, S. 44.
249
Waltermann, NJW Beilage 2010, 81.
250
Answer of the Federal Government to a „Kleine Anfrage , Bundestags-Drucksache 18/573; Zwölfter Bericht,
S. 39.
251
ErfK-Wank, § 1 AÜG Rn. 1.
252
Ulber, AÜG Einleitung C Rn. 1 ff.; Waltermann, Gutachten B zum 68. DJT, S. 49, 57.
253
Grünbuch der Kommission, KOM (2006) 708 endg.; Bayreuther, NZA 2007, 371; Wank, AuR 2007, 244.
254
Hohendanner/Walwei, WSI-Mitteilungen 2013, 239, 241.
255
Zwölfter Bericht, S. 48.

46

cc)

Definition

The definition of temporary agency work in Germany is based on the temporary agency
directive. It was transformed into German law in 2011.256
Temporary agency work must be distinguished from arrangement of employment. The(pivate) agency of arrangement of employment has no contractual relationship with theemployee.257
The directive describes temporary agency work as a “temporary” employment by a temporary
agency at a user company, Art. 1 Abs.1 1, 3 Abs. 1 lit. c) directive 2008/104/EC. Someauthors think that the wording of “temporary” only has a describing character. 258 But as wasstated by other authors259 and has meanwhile been confirmed by the BAG, it is a mandatory
requirement for legal temporary agency work.260 As far as the EU conformity of a time limit
is concerned there is a preliminary junction at the ECJ.261
There are still some questions. It is not clear, how long “temporary” is. The courts and theauthors suggest different solutions.262 Common is the idea that permanent demand of
workforce is not covered by temporary agency work. At the moment it is possible to take § 14
TzBfG as standard. The coalition government plans a legal maximum duration of 18
months.263
Another question is if temporary refers to the single employee264 - which would make itpossible to perform a permanent job by always sending new employees – or to theworkplace. 265
The temporary agency worker is covered by the general definition of an employee. His
partner of the contract is only the temporary agency, between them exists a “temporary
agency employment relationship”. The user company has to fulfill the duties of an employer
only if it is expressively said by law, like about health and safety; between the two exists an
occupational relationship.266

256

BGBl. I Nr. 18 v. 29.4.2011, S. 643; Böhm, DB 2011, 473; Hamann, RdA 2011, 321; Hamann, ZESAR 2012,
103; Lembke, NZA 2011, 319; Schüren/Wank, RdA 2011, 1, 2 ff.; Ulber, AuR 2010, 412; Waas, ZESAR 2012, 103;
Wank, Jahrbuch des Arbeitsrechts 49 (2012), S. 23 ff.
257
Boemke/Lembke, § 1 AÜG Rn. 157 ff.; ErfK-Wank, AÜG Einleitung Rn. 12 b.
258
Rieble/Vielmeier, EuZA 2011, 474, 2488; Boemke/Lembke, § 1 AÜG Rn. 115.
259
ErfK-Wank, § 1 AÜG Rn. 37 a.
260
BAG 10.7.2013 – 7 ABR 91/11 –NJW 2014, 331, to be published in AP with critical comment by Hamann.
261
ECJ case C-533/13 – Auto ja Kuljetusalan Työntekijäliitto AKT ry.
262
ErfK-Wank, § 1 AÜG Rn. 37 b; the latest being Nießen/Fabritius, NZA 2014, 263; Steinmeyer, DB 2013, 2740,
2742.
263
Supra note 166.
264
Steinmeyer, DB 2013, 2740, 2741.
265
Boemke/Lembke, § 1 AÜG Rn. 114; Deinert, RdA 2014,65, 71; Nießen/Fabritius, NJW 2014, 263.
266
ErfK-Wank, AÜG, Einleitung Rn. 32 ff.

47

In contrast to this clear arrangement the ECJ has lately – by violating EU law which reserves
the definition of the employer in a temporary agency relationship to national law – invented
the figure of an “employer outside the contract”.267 It is not clear, whether the ECJ will giveup this error.
A special problem is the transfer inside a group. Until the new act based on the directive thistransfer was exempted from the scope of the AÜG. As the directive does not contain such a
privilege, to preserve it would be a violation of EU law.268 It is necessary to distinguish somecases.
Companies in a group that only have a common office are not covered.
As long as an employee who has not been engaged for the purpose of being transferred has his
proper workplace at one member company of the group and - by keeping his working
conditions – is temporarily sent to another daughter, there is no temporary agency work.
But if an employee is engaged for the purpose of being transferred to another group member,the sending company now needs a license. If it has a license, it may restrict itself on transfer
only within the concern. The BAG saw no abuse in this construction. 269 The result is
doubtful. It is not sufficient to control each single case.270 The comparison with the status of acore employee leads to the conclusion that the employee cannot be dismissed if his workplacein the group member where he works is no longer needed, as long as there is work for him in
the other group member.
Another item that has newly been changed because of the directive is that the criterion of“gewerblich” (= commercial business) has been exchanged by “on business”.271 So now eventemporary agencies are covered that do not intend to make profits.272

dd)Administrative Law

The AÜG contains a mixture of employment law and administrative law. According to § 1AÜG an employer who wants to start business needs a license.273 No license is given in thebuilding sector, § 1 b AÜG. The license can be given under conditions, § 2 AÜG. It is not
given if the danger exists that the temporary agency will not come up to its duties as an
employer or cannot by lack of organization, § 3 AÜG. If the license had been given underviolation of law, it can be revoked, § 4 AÜG; it can also be revoked for the future, § 5 AÜG.

267

ECJ 21.10.2010 case C-242/09, Slg. 2010 I-10309 – Albron Catering; critical ErfK-Wank, AÜG, Einleitung Rn.
33 a.
268
Boemke/Lembke, § 1 AÜG Rn. 50; ErfK-Wank, § 1 AÜG Rn. 57.
269
BAG 15.5.2013 NZA 2013, 1214.
270
Forst, ZESAR 2011, 316; Thüsing, Europäisches Arbeitsrecht, S. 169.
271
Wank, Jahrbuch des Arbeitsrechts 49 (2012), S. 23, 25 f.
272
ErfK-Wank, § 1 AÜG Rn. 34; Thüsing-Waas, § 1 AÜG Rn. 101 a.
273
Zwölfter Bericht, S. 25.

48

ee)

Legal Status of Temporary Agency Workers

During recent years there have been many changes in the law of temporary agencies. The
present law results partly on the EU directive, partly on the so called Hartz law.274 To promote
more employment, the prohibition of a temporary agency contract parallel to being sent to one
user and the maximum period of transfer of 24 months were abolished (former § 3 Abs. 1 Nr.
4 – 6 and § 1 Abs. 3 Nr. 2 AÜG).
Temporary agency workers have a relationship to two “employers”, the temporary agency andthe user company. The question is to whom they may be assigned, to the temporary agency orto the user. There is a parallel question as regards the works council in both enterprises.
The idea of the AÜG is that they are employees of the temporary agency. In the user company
they work on a “Vertrag zugunsten Dritter” (= agreement in favour of a third party), meaning
a contract to the benefit of a third party.275 The user company has instead of the temporary
agency the right to give orders to the employees sent in its enterprise. It has only a few further
duties, like procuring access to common organizations, § 13 b AÜG), obeying health andsafety rules (§ 11 Abs. 6 AÜG) and to inform the employee about his conditions and of otherjobs (§ 11 Abs. 2, § 13, § 13 a AÜG).276
In the law of works councils the legislator has partially integrated temporary agency workers –besides their belonging to the works council of the temporary agency – into the enterprise of
the user company. They cannot be elected as members of the works council in the user
company, § 14 Abs. 2 Satz 1 AÜG; but after an employment of more than three months they
can participate in the election to the works council in the user company, § 7 Satz 2 BetrVG.
As far as engagements are concerned although temporary agency workers are no employeesof the user company, the works council of the user company has a right of co-determination it
has when own employees are engaged, § 14 AÜG. The temporary agency worker is allowed
to attend the consulting hours of the works council of the user company, § 14 Abs. 2 AÜG inconnection with the rules in the Betriebsverfassungsgesetz. Besides, there is - so far – no otherspecial rule; but the coalition agreement of the Federal Government intends to add a rulemaking temporary agency workers by definition part of the user´s staff.
So far beyond the wording of the law it is accepted that the works council of the user
company has a right of co-determination as far as rules valid for the organization of the user
enterprise are concerned, like start and end of working time, breaks or vacations. Furthermore
the BAG has in some new judgments counted temporary agency workers as members of theuser company in case of thresholds; like with the question how many employees are

274
275
276

Based on Hartz u, a., Moderne Dienstleistungen am Arbeitsmarkt.
ErfK-Wank, AÜG, Einleitung Rn. 33; Schüren/Hamann, AÜG, Einleitung Rn. 168.
ErfK-Wank, AÜG, Einleitung Rn. 35.

49

necessary that a member of the works council is exempt from work, §§ 9, 38 BetrVG277 or
which number makes a severance scheme necessary, § 111 BetrVG.278 Contrary to this theLandesarbeitsgerichte deny a temporary agency worker the taking into consideration of his
work in the user company if he gets a job in the user company later and needs half a year until
his protection by the Kündigungsschutzgesetz (dismissal protection act), § 1 Abs. 1 KSchG,
begins.279
In employment law the question is how is the status of temporary agency workers incomparison with the core employees of the user company? It is often suggested that in case ofa crisis the employer must at first cancel the contracts with agencies so that he has lesstemporary agency workers.280 In a recent judgment the BAG included temporary agency
workers when it had to decide how many employees were engaged in the enterprise; theKündigungsschutzgesetz is only applicable if there are at least ten employees.281
Contrary to the opinion of the BAG and of some authors the recent judgments concerning
thresholds are an illegally broad interpretation. The question is not, if
Kündigungsschutzgesetz and Betriebsverfassungsgesetz allow such a new interpretation, but
if the law of temporary agency work allows it. Although the directive would have allowed toinclude temporary agency workers, the legislator only wanted their inclusion in the cases henamed.282
There are no problems as regards the temporary agency workers in the agency. There they are
employees like any other employees. That means e. g. if there is a legally prescribed choice
between the employees that shall be dismissed, they are to be counted as the other employees
staying in the administration of the agency.283
According to the coalition agreement, the Federal Government plans a rule that in all rules ofworks council law – as long as it is not contrary to the sense of the rule – temporary agency
workers shall be counted as members of the user company;284

277

BAG 13.3.2013 NZA 2013, 789 = BAG AP BetrVG 1972 § 9 Nr. 15 (Reichold).
BAG 18.10.2011 NZA 2012, 221 = BAG AP BetrVG 1972 § 111 Nr. 70 (Hamann).
279
LAG Rheinland-Pfalz 8.5.2011 – 8 Sa 137/11 – BeckRS 2011, 76110; LAG Niedersachsen 5.4.2013 – 12 Sa
50/13 - .
280
Critical Hasler-Hagedorn, Die „Austauschkündigung“, S. 108 ff.; see Fuhlrott/Fabritius, NZA 2014, 122.
281
BAG 24.1.2013 NZA 2013, 726.
282
ErfK-Wank, AÜG, Einleitung Rn. 35 f.; Fandel/Zanotti, BB 2012, 969; Mosig, NZA 20212, 1411; Rieble, NZA
2012, 485; Tschöpe, NJW 2012, 2161; opposite opinion by the judges of the BAG Linsenmaier/Kiel, to be
published in RdA 2014.
283
BAG 20.6.2013 NZA 2013, 837.
284
Coalition agreement, supra note 166; critical Bauer, DB 2014, 60.
278

50

ff)

Prohibition of Discrimination

The law of temporary agency work also contains a prohibition of discrimination;285 the terms
are “equal pay” and “equal treatment”. If the same model would be applied as with part-timework and with fixed- term work it would mean that a temporary agency worker gets the sameworking conditions as a comparable employee in the user company. This is in fact thesolution valid in some European countries. 286 In Germany and in some other EU member
states, however, another model is applied. According to this model the temporary agency
workers have a permanent contract with the agency. Their salary must be paid also in times
when they cannot be sent to a user company.287 If a separate collective bargaining agreement
contains special working conditions for temporary agency work and if an employment
contract refers to it, then the principle of equal treatment is replaced. As by this way it ispossible with the help of employer friendly trade unions to reduce salaries, the presumption offair agreements that is usually valid for collective bargaining agreements cannot be applied
here.288
But the directive only allows such a replacement in the case that the national law respects the“overall protection of the employees”, Art. 5 of the directive.289 It seems as if the German
legislator thinks that by introducing § 3 a AÜG, a rule concerning minimum pay,290 it hascomplied with this rule. But this is a mistake; the AÜG should provide exact provisions as
regards temporary agency employment contracts.291
But anyway, as consequence of § 3 a AÜG and the “Verordnung über die Lohnuntergrenze inder Arbeitnehmerüberlassung” since January first 2014 there is a minimum salary of 8.50 € inWestern and of 7.86 € in Eastern Germany.292
In fact, the equal pay principle for temporary agency workers is not applied in Germany. The
agencies use their own collective bargaining agreements, different from agreements applied in
the user companies. The users are regularly not bound by these agreements by membership,
so that they are not bound by § 4 TVG. But they refer to the agreements in the special
collective bargaining agreements of temporary agencies so that these agreements areapplicable by reference.293
For a better protection of temporary agency workers the requirements for the
acknowledgement of trade unions in this sector of industry may be intensified and according
285

As regards the EU law see Thüsing, Europäisches Arbeitsrecht, S. 170 ff.
Wank, RdA 2003, 1 ff.
287
Wank, Jahrbuch des Arbeitsrechts 49 (2012), 23, 24.
288
Waltermann, Gutachten B zum 68. DJT, S. 60 f.
289
Deinert, RdA 2014, 65, 70; ErfK-Wank, § 3 AÜG Rn. 22; Wank, Jahrbuch des Arbeitsrechts 49 (2012), S. 23,
28.
290
Similar rules exist in other laws, Boemke/Lembke-Marseaut, § 3 a AÜG Rn. 19.
291
Boemke, RIW 2009, 177, 183; ErfK-Wank, § 3 AÜG Rn. 23 a, 23 b; Fuchs, NZA 2009, 57, 63; Waltermann,
Gutachten B zum 68. DJT, S. 52.
292
Zwölfter Bericht, S. 16 f.
293
Wank, Jahrbuch des Arbeitsrechts 49 (2012) S. 23, 30; as regards the conformity with EU law
Boemke/Lembke, § 9 AÜG Rn. 193 f.
286

51

to EU law there must be provisions concerning the contents of collective bargaining
agreements. But – in spite of proposals294 - the chance to refer to collective bargaining
agreements should not be abolished.295
The problem becomes less important as the strong trade unions have concluded collective
bargaining agreements with the associations of agency work, containing extra pay for
temporary agency employees for certain sectors of industry.296
The coalition agreement announces that after an occupation of nine months in the same
enterprise the principle of equal treatment shall be applied.297
Some trade unions, calling themselves Christian, have in the past concluded collective
bargaining agreements extremely profitable for employers. But the BAG declared theirholding organization as not having negotiation capacity.298 The result was that a reference tothe collective bargaining agreements of CGZP was invalid and that the principle of equal
treatment, § 10 AÜG, was to be applied instead. That meant that the temporary agency
employees had to be paid for the past the same – and normally much higher - salary as was
paid to the core employees of the user company. Salaries in this sense were all kinds of
payments that were paid in connection with the employment relationship.299
The BAG did not accept the argument that the user companies had trusted that the collective
bargaining agreements were valid.300 But many claims were unsuccessful because of
preclusive time limits301 or of limitation of claims.
If by chance 302 the principle of equal treatment is applicable, the temporary agency
employees must be given the same working conditions as the core workers in the user
company, they must be paid the same salary.303 This includes not only the regular salary but
also all benefits.304 They must either be given in real or transformed in money. Standard are
the working conditions of a comparable employee. If there are several comparable employees
the one is to be chosen whose work resembles most that of the temporary agency worker.305

294

Waltermann, Gutachten B zum 68. DJT, S. 62.
Joussen, JZ 2010, 812, 817; Schüren/Wank, RdA 2011, 1, 5.
296
Boemke/Lembke, § 9 AÜG Rn. 218 ff.; Deinert, RdA 2014, 65, 71; Krause, NZA 2012, 830; Zwölfter Bericht, S.
19.
297
Coalition agreement (supra note 166); Thüsing, NZA 2014, 10, 11.
298
BAG 14.12.2010 NZA 2011, 289; BAG 22.5.2012; BAG 23.5.2012; generally concerning Tariffähigkeit BAG
11.6.2013 – 1 ABR 33/12 – NZA-RR 2013, 64 (medsonet“).
299
BAG 13.3.2013 NZA 2013, 1226.
300
BAG 13.3.2013 NZA 2013, 680.
301
BAG 13.3.2013 NZA 2013, 680, 685; Deinert, RdA 2014, 65, 71 f.
302
Dieterich in Bieback, Tarifgestützte Mindestlöhne, S. 103, 106 ff.
303
Boemke/Lembke, § 3 AÜG Rn. 104 ff.
304
ErfK-Wank, § 3 AÜG Rn. 14; Ulber, § 9 AÜG Rn. 47 ff.
305
Boemke/Lembke, § 9 AÜG Rn. 114; ErfK-Wank, § 3 AÜG Rn. 15.
295

52

gg)

Other Items

The directive introduced a claim for information about the contents of the employment
contract, transformed in § 13 AÜG, and a claim for information about free workplaces as well
as a claim for access to common institutions, § 13 b AÜG.
The employer is obliged to an advertisement of those workplaces in his enterprise where heplans to engage temporary agency workers.306
The dismissal of a temporary agency worker follows general law of dismissal;307 but in timesof an economic crisis the contracts with agencies are cancelled first.308 In a case of dismissal
in the agency the temporary agency workers must be included in the “social choice” of thoseto be dismissed.309
Fixed-terms must comply, as all fixed-term contracts, the Teilzeit- und Befristungsgesetz.310
But as the ECJ says, the fixed-term directive of the EU is not applicable here.311

hh)

Sanctions

There is no convincing system of sanctions in the AÜG. Different from the directives about
part-time or fixed-term work the directive on temporary agency work demands in Art. 10
paragraph 1 expressively “appropriate measures” as sanction. This does not only refer toviolations of the principle of equal treatment312, but also to other violations of the directive,
like violation of the prohibition of more than transitory transfer.
(1) There are sanctions in four areas, in administrative law, in the law of fines, in
employment law and in labour law. In administrative law a license can be denied or be
combined with conditions or not be prolonged, §§ 1, 2, 3 AÜG. In those cases named in thelaw a fine is due, § 16 AÜG. In 2011 §§ 16 Abs. 1 Nr. 7a, 7b were introduced in the AÜG.313(2) In employment law § 10 AÜG as a hard sanction provides that if the contract between theagency and the user company is invalid, because the agency had no valid license, by law acontract exists between the user company and the temporary agency worker. For other casesof violation there is no corresponding sanction in employment law. Therefore some authors
discuss if an analogy to § 10 AÜG is possible. This includes especially the case that the306

BAG 15.10.2013 NZA 2014, 214..
ErfK-Wank, AÜG, Einleitung Rn. 17; Schüren/Hamann, AÜG, Einleitung Rn. 278 ff.
308
LAG Hamm, DB 2007, 1701; LAG Berlin-Brandenburg, DB 2009, 1353; Hamann, NZA 2010, 1211, 1214 f.;
critical Hasler-Hagedorn, Die „Austauschkündigung“, S. 108 ff.
309
BAG 20.6.2013 NZA 2013, 837.
310
ErfK-Wank, AÜG, Einleitung Rn. 6.
311
EuGH 11.4.2013 case C-290/12, NZA 2013, 495 – Della Rocca; Franzen, EuZA 6 (2013), 433.
312
Opinion of Thüsing, Europäisches Arbeitsrecht, S. 178.
313
Zwölfter Bericht, S. 16.
307

53

employee is engaged for more than a temporary time or that there is a pseudo contract forwork and services.
In the case of non temporary engagement some courts and authors say that in this case it is no
temporary agency work but an arrangement of employment;314 others say that then there is no
sanction.315 Others suggest a direct application of § 10 AÜG, others an analogy to § 10 AÜG
by interpretation of the German law.316 Other authors state that German law in itself does notprovide an analogy here, but because of Art. 10 of the directive it can be introduced as EU
law conform broad interpretation.317 The BAG decided recently that a broad interpretation or
analogy is not allowed because there is no gap in the law.318 The legislator had deliberately
renounced a sanction. The directive does not demand a certain sanction, but Art. 10 paragraph
2 sentence 1 of the directive leaves it to the member states to choose the appropriate sanction.
As the law of temporary agencies becomes more and more restrictive again – as it had been
before the “Hartz-laws” - , there is a growing trend to use contracts for work and service.319
Others call them “industry affine services”.320 If contrary to the description in the contract thecontractual relationship is in fact that of temporary agency work, then the real character of thework is decisive and the law of temporary agency work is applicable.
The difference is as follows: By a contract for work and service the partner of the contract
owes a result that he performs by the help of his employees as “Erfüllungsgehilfen”,(=accomplice) § 278 BGB. The temporary agency only owes to provide workforce as theirservice. Although it seems easy to state the difference by this basic idea, there are problems
caused by several ways how to conclude the contract. 321 E. g. the partner of the contract may
instead of offering one result offer a framework contract and then offer several partial
services. The payment may follow the hours that have been worked and not be a flat sum. The
kind of work may require that the employee works on the premises of the other and work
together with his employees etc.
The BAG uses the common criteria that it uses to differ between employees and selfemployed. Methodically that is not quite correct, because concerning the contract for workand service and a temporary agency contract, in both cases employees are involved, either
those of a contractor or those of an agency. So the comparison is to be made between two
314

Leuchten, NZA 2011, 608, 609.
LAG Düsseldorf BeckRS 2013, 71617; Boemke/Lembke, § 1 AÜG Rn. 115; Hamann, RdA 2011, 321, 327;
Krannich/Simon, BB 2012, 14114, 1418; Ralph Weber, Festschrift von Hoyningen-Huene, 2014, S. 581, 594.
316
LAG Berlin-Brandenburg 9.1.2013 BB 2013, 251; Brors, AuR 2013, 108, 113; Ulber/J. Ulber, § 1 AÜG Rn. 231
d.
317
ErfK-Wank, § 1 AÜG Rn. 37 d.
318
BAG 10.12.2013 NZA 2014, 196; critical J. Ulber, comment on this judgement to be published in AP.
319
BAG AP § 10 AÜG Nr. 19; LAG Berlin-Brandenburg 6.5.2013 BeckRS 2013, 71997; Boemke, Festschrift von
Hoyningen-Huene, 2014, S. 43 ff.; Boemke/Lembke, § 1 AÜG Rn. 84 ff., §§ 3 Rn. 127 ff.; Francken, NZA 2013,
985; Francken, NZA 2013, 1192; Greiner, NZA 2013, 697; Lembke, NZA 2013, 13212; Maschmann, NZA 2013,
1305; Reiserer, DB 2013, 20126; Rieble, ZfA 2013, 137 ff.; Schüren, NZA 2013, 176 ff.; Ulber, AÜG, Einleitung C
Rn. 34 ff.; Wank, Jahrbuch des Arbeitsrechts 49 (2012), S. 23, 35 ff.
320
See ErfK-Wank, § 1 AÜG Rn. 21 a.
321
ErfK-Wank, § 1 AÜG Rn. 12.
315

54

different types of self-employed, either a contractor or an agency. The BAG asks if theemployee is bound by the right to give orders of the other party of the contract and if he isintegrated into his organization.322 Among authors there are many different proposals how todiffer.323 Taken all in all the BAG uses the right criteria.324
In legal theory this is a matter of teleological definition.325 An inner connection must be
found between the criteria used on the side of application of a rule and the legal
consequences. The question is which facts have leaded the legislator to create the legal
consequences he has chosen.326 The reason is that an occupation at an agency bears more risks
than that at a “normal” employer.327
Before the last election for the “Bundestag” the state of Niedersachsen has made a draftcontaining a definition.328 As the coalition agreement says, the Federal Government plans tofind a definition for the AÜG.329(3) In labour law the works council can oppose the engagement of an employee that
violates law, § 99 BetrVG, like an engagement that is more than temporary.330

ii)

Labour Law

As temporary agency workers are mostly no members of a trade union, collective bargaining
agreements on temporary agency work do not bind them directly. But almost always thecontract with the agency refeers to such an agreement. This reference is, however, only valid
if the agency is a union in the sense of the Tarifvertragsgesetz.331
Most important is § 3 a AÜG saying that special collective bargaining agreements for
temporary agency work can be declared as generally binding for all temporary agency
contracts. Such an agreement was concluded in October 2013, causing a general minimum
salary for the whole sector.

322

BAG 10.7.2013 NZA 2013, 1296.
See ErfK-Wank, § 1 AÜG Rn. 17 ff.
324
ErfK-Wank, § 1 AÜG Rn. 19 ff.
325
Wank, Begriffsbildung, S. 79 ff.
326
ErfK-Wank, § 1 AÜG Rn. 44.
327
ErfK-Wank, § 1 AÜG Rn. 19 ff.; Fieberg, NZA 2014, 187, 189.
328
Bundestags-Drucksache 18/14 v. 28.10.2013.
329
Coalition agreement, supra note 166.
330
BAG 10.7.2013 NZA 2013, 1296.
331
This was not the case with the CGZP, see BAG 14.12.2010 NZA 2010, 289; reference of authors in ErfKWank, § 3 AÜG Rn. 22 ff.
323

55

Furthermore the trade unions have concluded collective bargaining agreements with big
enterprises that oblige them to pay additional benefits by these companies to the salary they
get by the agency.332

jj)

Proposals for Reforms

The coalition agreement of the Federal Government proposes some changes for the law of
temporary agency work.333 There shall be a definition to differ between a temporary agency
contract and a contract for work and service. After 18 months the genuine principle of equal
treatment shall come into force.
In an expert´s report for the Ministry of Labour in North-Rhine Westphalia Brors and
Schüren334 have some suggestions. They differ between fixed-term contracts and contracts
without time limit.335 With a fixed-term contract the agency bears no entrepreneurial risk, andtherefore the genuine principle of equal treatment shall be applicable from the first day on.
With other contracts and the risk of continued paying of salary even in cases of no transfer theagency can, as is usual now, refer to a special collective bargaining agreement for temporary
agency work (§ 9 Nr. 2 Entwurf). After nine months the temporary agency worker has a claimon the same salary as an employee in the user company (§ 3a Abs.2 Entwurf). 18 months are
the maximum period for legal temporary agency work (§ 1 Abs. 3 Satz 3 Entwurf).336
The term temporary shall refer to the demand of the third party and his workplace and not tothe single contract of an employee (§ 1 Abs. 2 und 3 Entwurf).337 After six months there shallbe a presumption that the work is not temporary.338 Generally if an employee works within
the organization of a third party, there shall be a presumption of temporary agency work (§ 1
Abs. 4 Entwurf). Criteria for a real contract of temporary agency work instead of a contract
for work and service shall be the liability of the agency and if the agency has a quality
management.339 In spite of a license for the agency a contract shall be void if the agency
pretends to have a contract for work and service, but, as the performance of the contract
shows, in fact does temporary agency work ( § 9 Nr. 1 Entwurf). The sanction in cases ofillegal temporary agency work shall be an employment contract with the user company. 340

332

Bayreuther, NZA Beilage 4/2012, 115; Krause, NZA 2012, 830.
Supra note 166.
334
Brors/Schüren, Missbrauch von Werkverträgen und Leiharbeit verhindern, 2014.
335
Brors/Schüren, l.c. S. 7; already in Schüren/Wank, RdA 2011, 1 ff.
336
Brors/Schüren, l.c. S. 9.
337
Brors/Schüren, l. c. S. 8, 15. ff
338
Brors/Schüren, l. c. S. 9.
339
Brors/Schüren, l. c. S. 11; Schüren, to be published in Festschrift Wank, 2014.
340
Brors/Schüren, l. c. S. 19
333

56

The works council shall get a right of information (§ 90 Abs. 3, § 99 a BetrVG Entwurf); if
the works council has not been informed correctly and in time, the temporary agency work isillegal341.

2. Japan
As in Germany in Japan the number of atypically employed has continually risen in recent
years.342 In the law of atypical work there is an elementary difference between the German
and the Japanese law. In German law atypically employed persons are employees, and thewhole of employment law is applicable on them. The Teilzeit- und Befristungsgesetz and theArbeitnehmerüberlassungsgesetz contain additional provision for protection, for all threekinds the principle of equal treatment is valid and at least for part-time work and fixed-termwork it is practiced, § 4 TzBfG. For temporary agency workers the principle is also valid; inreality, however, it has – because user companies are allowed to refer to special collective
bargaining agreements – little importance; but at least there is a minimum salary.
Opposite to this to be a non-regularly employed (hiseishain) in Japanese law means that agreat number and practices of employment law are not applied on these persons.343

a)aa)

Part-time Work
Legal Facts

Among the employees in 2010 23.3 % were part-time workers.344 Sectors with a great dealof part-time workers are “those of accommodations, eating and drinking services, followed bywholesale and retail trade, living-related and personal services and amusement services, andeducation and learning support.”345
bb)Interests

The interests in Japan are comparable to those in Germany.346 Perhaps there are even more
women in Japan that would prefer a fulltime job but are only offered a part-time job.347

341

Brors/Schüren, l. c., S. 13 f.
Araki, new labour policies, sub 2; Hashimoto, Bulletin der Japanisch-Deutschen Gesellschaft fürArbeitsrecht, Nr. 12 (2011), S. 61, 62.
343
Jennifer Junker, Arbeitnehmerüberlassung, S. 43 f.
344
Araki, New labour policies; Labor Situation 2013/2014, p. 29 gives a quota of part-time workers of 14.2 %.
345
Labor Situation 2013/2014, p. 44.
346
Details in Labor Situation 2013/2014, p. 50.
347
Kawada, Gedächtnisschrift Zachert, S. 420 Fußnote 15.
342

57

cc)

Definition

Art. 2 of the Japanese Part-Time Work Act (hereafter PWA) describes a part-timer as
someone who works less than there is usually worked in the enterprise, with reference to acomparable employee (“ordinary worker” in contrast to a “regular worker”348).
Independent from this definition Japanese employment law differs, especially between-(here so called) real part-time employees, working no more than 35 hours per week,349- (here so called) pseudo part-time employees (giji-paato).350 Even if they work in fact asmuch as a fulltime employee, this status is denied to them by definition and they are regarded
as part-time employees. That leads to lower payments and worse working conditions.
The courts judge differently. One court regarded this practice as tort; another one referred to
the freedom of contract and regarded it as legal.
The PWA of 2008 has forbidden different treatment compared with a fulltime employee, Art.
8 paragraph 1 PWA. But this is valid only under three conditions:-

The work must be identical to that of a regular employee,-

the performance of work must be identical and-the contract must not be a fixed-term contract.

As the rule is only applicable on employees without a fixed-term contract and not for fixedterm work – as is usual in Japan for part-timers - , the new act has no practical effect. It covers
only 0.1 % of the part-time employees.351
For legal theory this is an example for symbolic law. Generally in employment law – not onlyin Germany, but also in other countries, the wording of a contract does not matter, but thereality of the performance of a contract. Otherwise the employer as the stronger part of an
employment contract can enforce a contract to his liking simply by using other words.
Therefore usually there is in employment law a “mandatory kind of contract”. 352 But Art. 8
PWA gives with one hand (equal treatment) and takes with the other (not for fixed-term
contracts), which shows that this article has only a symbolic value. As the Japaneselegislation, courts and scholars accept this solution, it cannot be called illegal.

348

Labor Situation 2012/2013, p. 66 note 8.
Asao in JILPT (ed.), Non-regular-employment, p. 2.
350
Araki, Labor and Employment Law in Japan, p. 36; Kawada, Gedächtnisschrift Zachert, S. 412, 420;
Morozumi, Japan Labor Review Vol. 6 (2009), no. 2, p. 39, 41; Seifert, Atypical Employment, p. 7.
351
Hanami/Komiya, Labour Law in Japan, p. 67, 71.
352
Wank, Arbeitnehmer und Selbständige, S. 102 ff.
349

58

Anyway Art. 9 PWA forces the employers to endeavor equal treatment, referring to duties,
motivation, ability and experience. Besides, employers shall endeavor to transform thecontract into that of a regular occupation, Art. 12 PWA.
There are two special kinds of part-time work:
A contract of low income (teichingin) is a part-time job with an income below the tax free
limit.353 Arubaito are part-timers in a second job354, typically pupils as are usually seen in self
service shops.

dd)

Prohibition of Discrimination

As shown above an employer only needs to engage a part-timer by a fixed-term contract toavoid the application of equal treatment, and this is generally done. He even does not need agood cause for the limitation.

ee)Other Items

Part-timers in an enterprise shall be informed about job offers.There are guidelines as topromote part-time work by the ministry of employment. As Art. 25 PWA says the employer
shall install a company for the support of part-timers as in Art. 34 Civil Code.

ff)

Sanctions

There is a sanction only in case of violation of Art. 6 paragraph 1 (information about theworking conditions), as a “non-penal-fee”, Art. 47 PWA.

b)

Fixed-term Workaa)

Legal Facts

19 % of the total number of employees and two third of the atypically employed are fixedterm employees.355

353

Seifert, Atypical employment, p. 7.
Seifert, Atypical employment, p. 7.
355
Araki, New labour policies; Hashimoto, Bulletin, S. 61, 62.
354

59

bb)

Interests

The interests of Japanese employees with a fixed-term contract are not different from those inGermany. But as it becomes more and more difficult to get a regular workplace, applicants
are often bound to accept a fixed-term contract. Among the fixed-term employees are manyarubaito. About 40 % are pupils and students. 356

cc)

Definition

There is no legal definition of a fixed-term contract. In Japanese law there are different typesof fixed-term employees:357- contract employees- other employees with a fixed-term contract- daily workers- entrusted workers.

Contract employees (keiyaku shain) are engaged for a special project because of their special
qualities.358 41 % choose this kind of contract because a regular employment was not offeredto them.359
Other fixed-term employees (tanki keiyaku) may be engaged without a good cause; thetermination without cause is the normal type in Japan.360 Whereas in Germany the maximum
period of a termination refers to the relationship with the employer, in Japan the maximum
duration only refers to the single employment; prolongations are possible without
restriction.361
The problem of a chain of terminations also exists in Japan. Following a judgment of theSupreme Court in the Toshiba Yanagi Cho Kojo case, the courts must control if the principleof abuse of rights can be applied in analogy.362 The courts must consider

356

Hanami/Komiya, Japanese Labor Law, p. 154.
Sugeno, Japanese Labor Law, p. 154.
358
Asao, Japan Labor Review Vol. 7 (2010), no. 4, p. 85; Takeuchi-Okuno, The Regulation of fixed-term
Employment in Japan, in JILPT (ed.), Labour Policy in Fixed-term Employment Contracts, Tokyo 2010, p. 69, 72;
Labor Situation 2012/2013, p. 63.
359
Labour Situation 2012/2013, p. 63.
360
Takeuchi-Okuno, in JILPT, Labour Policy, p. 69, 80.
361
Takeuchi-Okuno, in JILPT, Labour Policy, p. 69, 74.
362
Supreme Court, 22.7.1974, Saiko Saibansho, Hanreishu, Vol. 28, no. 5, p. 927.
357

60

- the number of nenewals or the total duration of the contract,- how are other employees treated in a case of renewal,- if the employer has created an expectation of renewal.363

One-day-worker (hiyatoi) are sent by agents for arrangement of employment only for a few
days, mostly on building sites. Temporary agency work is not allowed for a period of lessthan thirty days.364
Entrusted employees (shokutaku shain) are a specialty of Japanese law. When an employee
does not retire from an enterprise when reaching the age limit, but continues to work there,
then this is not done by a prolongation of his employment contract, but by concluding a new,in half of the cases worse employment contract (see V 2 b cc).365

dd)

Prohibition of Discrimination

A prohibition of discrimination in the usual sense does not exist.366 One reason is that for
regular employees and for atypically employed there are completely different systems ofsalary. For the salary of regular employees what matters is age and qualification,367 but thesalary of the atypically employed is regulated by the actual market. When the Democratic
Party proposed in 2008 to introduce a prohibition of discrimination, this was refused. Fixedterm employees therefore get a remarkably lower salary; training measures are not offered tothem.
Anyway the reform of 2012 brought some improvements. Since then Art. 20 of the Labour
Contract Act (LCA) forbids a too great difference between the working conditions of an
employee with no fixed-term and a fixed-term employee. Different from Germany, Art. 20
does not demand a case of the same kind of labour.

ee)Other Items

Different from Germany the maximum duration of fixed-term contracts is of no great
importance, because fixed-term contracts can be prolonged as often as at will. Starting-point
for the maximum duration is the single employment, not the total employment relationshipbetween employer and employee.368
363

Takeuchi-Okuno, in JILPT, Labour Policy, p. 69, 78.
J. Junker, Arbeitnehmerüberlassung, S. 27.
365
Hanami/Komiya, Labour Law in Japan, p. 73.
366
Takeuchi-Okuno, in JILPT, Labour Policy, p. 69, 81.
367
About the Japanese wage system see Labor Situation 2013/2014, p. 97.
368
Takeuchi-Okuno, in JILPT, Labour Policy, p. 69, 74.
364

61

To prepare the latest reform of fixed-term employment law, several commissions had studied
the legal situation in Europe. They had come to the conclusion that the requirement of a goodcause would not be appropriate, but that the focus should be on prolongation and on
maximum duration.369 In Germany, however, the requirement of a good caused has beendeveloped long ago by the courts and has found broad acceptance. Another item, which is
discussed in politics now, is if a termination without good cause should be abolished or
restricted.370
The change in Japanese law in 2012 has left some problems. As before, no good cause for atermination is needed, whereas in Germany this is only possible during the first two years andfor newly founded enterprises. There is no maximum duration in the Teilzeit- undBefristungsgesetz, but the period must be in compliance with the reason for the termination.
In Japan there is a maximum period of three years, sec. 14 paragraph 1 Labour Standard Act(LSA). Under certain conditions it can be prolonged up to five years. As said before, this limit
is only given for the single employment relationship. Of great importance is an order of the
Ministry for labour and social affairs based on sec. 14 paragraph 2 LSA. Following this theemployer must inform the employee at the beginning of the employment relationship if andunder what conditions the contract shall be prolonged. A notice of no prolongation must atleast be given thirty days before the period ends.371 In Germany this kind of notice is known
for the engagement of actors, who usually only get an employment contract for one season.372
Some Japanese employers have, to avoid being bound by a promise, introduced a “nonprolongation clause” in their employment contract. This clause says that no prolongation isplanned. In the Kinki Coca Colla Bottling case the district court Osaka regarded this clause as
valid,373 different from the district court Tokyo in the Akashi Shoten case.374
In general, in Japan as well as in Germany fixed-term contracts can be concluded in a chain ofcontracts. An express prohibition exists neither in German nor in Japanese law. But the ECJ
has ruled that in such a case the courts must control if there is no abuse of rights. 375 This is
the case, if de facto a permanent workplace is taken again and again by fixed-term contract
employees. Similarly the Japanese Supreme Court has performed a control of abuse, if either
the fixed-term contract equals a contract without termination376 or if the employer had createdin the employee a special trust for prolongation,377 so called denied prolongation (yatoi
dome).

369

Araki, New Labour Policies.
See IAB-Stellungnahme 1/2014, Hohendanner, Befristete Beschäftigung.
371
Hashimoto, Bulletin S. 61, 63 f.
372
BAG 15.5.2013 – 7 AZR 665/11 – to be published in AP with comment of Pallasch.
373
District court Osaka 13.1.2005 Rodo Hanrei Vol. 893, p. 150.
374
District court Tokyo 30.7.2010, not yet published.
375
ECJ 26.1.2012 case C-586/10 – Kücük, NZA 2012, 135.
376
Supreme Court 22.7.1974, Minshu Vol. 28-5, p. 927 – Toshiba-Yanagi-cho-Kojo case; Araki, Labor and
Employment Law in Japan, p. 34.
377
Supreme Court 4.12.1986 Rodo Hanrei Vol. 486, p. 6 – Hitachi Medico case; see Hashimoto, Bulletin, S. 61,
64 f.; Takeuchi-Okuno, in JILPT, Labor Policy, p. 78.
370

62

A committee installed by the Ministry of employment and social affairs has in August 2010
presented a report on the reform of the law of fixed-term work. It proposes a duty formeasures enabling the employee to get an employment without a fixed term.378
The new Art. 18 LCA contains the five-year rule. It means: If a fixed-term contract exists
since at least five years, the employee may put in the application to continue this contract
without termination. If the employer has no reason to refuse this, he must accept the offer.
Compared with the former uncertainty the new law brings a progress. The necessary
conditions can clearly be realized. The legal consequences are better for the employee. By
judge made law the contract only had to be continued as a fixed-term contract, whereas by the
new law the employee gets an unlimited contract. Another improvement is that the sameworking conditions as before shall continue.379

ff)

SanctionsSec. 17 paragraph 1 LCA rules that a fixed-term employee may only be dismissed because ofan extraordinary reason. Sec. 17 paragraph 2 contains an appall: Employers shall endeavor to
prolong a fixed-term contract not more often than necessary.
There is no rule like § 14 Abs. 1 TzBfG in Germany which allows to control if there is a goodreason for the termination. The good reason only matters when a prolongation is concerned.380
If this is invalid, the law of dismissal is applied in analogy.381
If an employer does illegally not prolong a fixed-term contract, the sanction is not – as in § 16
TzBfG – a contract of unlimited time, but that a fixed –term contract comes into existence.

378

www.mhlw.go.jp/stf/houdou/2r-9852000000q2tz-img/2r9852000000qaxy.pdf; see Hashimoto, Bulletin, S.
61, 63.
379
Araki, New labour policy, sub 8.3.
380
Like in the Akashi-Shoten case, district court Tokyo 30.7.2010, not yet published, see Hashimoto, Bulletin.
381
A comparison of German and Japanese law of dismissal in Wank, Nagoya University Journal of Law and
Politics no. 248, p. 179; as regards dismissals and antidiscrimination see Labor Situation 2013/2014, p. 90.

63

c)

Temporary Agency Workaa)

Legal FactsAs the statistics of the Ministry of public administration say, the share of temporary agency
workers was 1.9 % in 2012 and about 2 % in 2013.382

bb)Interests

As in Germany, three aspects should be taken into account concerning temporary agency
work (rodoshahaken): First there is the interest of employers in more flexibility.383 Second is
the interest of temporary agency workers to get a workplace without discrimination incomparison with the employees of the user company. Finally there is the interest of theemployees of the user company not to be replaced by temporary agency workers.
As the principle of lifelong engagement is on its retreat, all kinds of atypical work haveincreased, among them temporary agency work, too.384

cc)

Definition

Art. 2 paragraph 1 of the Japanese law on temporary agency work (rodosha haken ho = TAEA
Temporary Agency Employment Act) defines a temporary agency worker as an employee385
of an agency. The temporary agency worker is engaged by somebody else and is sent to work
for another person following his orders. Between the employee and the company that has
engaged him exists an employment relationship (as regards two kinds of contract see below
dd).
The scope of TAEA refers, as in Germany, to employees according to the general definitionof an employee. The agency in Germany must be one with “economic activity” and no longer
a commercial business activity as before the last change of the law. In Japan there must be a

382

See also J. Junker, Arbeitnehmerüberlassung, S. 49; Takahashi, speech at ZAAR; Weathers, Social Science
Japan Journal Vol. 4 (2001), no. 2, p. 201.
383
J. Junker, Arbeitnehmerüberlassung, S. 49; Takahashi, speech at ZAAR; Weathers, Social Science Japan
Journal Vol. 4 (2001), no. 2, p. 201.
384
J. Junker, Arbeitnehmerüberlassung, S. 45 ff.
385
Cf. Art. 9 LSA.

64

“gyo”; that means, as in Germany, that there must be the intention of repetition. 386 The
agency is the employer of the employee.
Whereas in Germany temporary agency work is open for all kinds of jobs (excluding thebuilding sector), temporary agency work in Japan is forbidden for some sectors, like transportin harbours, building contractors, security companies, Art. 4 paragraph 1 TAEA. Besides, it isforbidden for persons of health care, ruled by a cabinet order.387 There is an exemption for
substitutes in cases of pregnancy or motherhood or for work in far off regions.

As in Germany it is difficult to differ between temporary agency work, arrangements of
employment, contracts for work and service and transfer within a group. The solutions are
similar. Work by a contract for work and service is done by ukeio. As long as the activity inthe other enterprise is still controlled by the enterprise that has engaged the employee, this is
no temporary agency work.388 In both countries a contract called a contract for work andservice which is in fact performed as a temporary agency contract (giso ukeoi), is in law atemporary agency work contract.389
The sanction in a case like that judged by the Supreme Court is not that a contract with theuser company is construed to be; this will only happen in 2015 when this clause of the Act
comes into force. It is the same legal consequence in Germany now, but without a planned orrealized change in the AÜG.390
Important is the ordinance no. 37 of the Ministry for labour and social affairs. Sec. 2 describes
how to find out if there is really a contract for work and service: The employer himself gives
orders to the employees and the employer is responsible in cases of mistakes.
The following schemes show the three situations to be found in Germany and in Japan: 391

386

J. Junker, Arbeitnehmerüberlassung, S. 100 ff.
J. Junker, Arbeitnehmerüberlassung, S. 139.
388
J. Junker, Arbeitnehmerüberlassung, S. 341 ff.; Sato, Japan Labor Bulletin, April 2003, p. 7.
389
Supreme Court 18.12.2009 www.courts.go.jp/english/judgments/text/2009.12.18.-Ja-.No,1240.html; J.
Junker, Arbeitnehmerüberlassung, S. 37 ff.
390
But in Brors/Schüren, Gutachten, proposal for a new AÜG, § 1 Abs. 4.
391
See also the brochure of the Japanese Ministry for labour and social affairs.
387

65

Types of bringing in personnel in third enterprises

contract for work and service392(ukeoi)contractor

customer

employment
contract,
orders by the contractor
employee

pseudo contract for work and service 393(giso ukeoi)

pseudo contractor

pseudo customer

employment

orders by thecontract

pseudo customer

employee392
393

J. Junker, Arbeitnehmerüberlassung, S. 34.
J. Junker, Arbeitnehmerüberlassung, S. 34.

66

temporary agency work

temporary work agency

user company

orders by theemployment

user company

contract
employee

Some enterprises had invented a construction in Japan as well as in Germany, to dismiss theiremployees and to engage them anew, with worth conditions, as temporary agency employees.
Sometimes they worked on the same workplaces as before. This was regarded as an abuse ofrights. In Germany this was prevented by a so called “revolving door clause” in the AÜG;394
in Japan a similar clause has been introduced in 2012.

dd)

Administrative Law

Different from Germany, there are two types of temporary agency work in Japan.
The administrative conditions for the two types are different. 395 For the registered typedispatching (general worker dispatching undertaking) the agency needs a license by the
Ministry of Labour, Art. 5 paragraph 1 TAEA. The agency must present a business plan and a

394
395

ErfK-Wank, § 3 AÜG Rn. 22 a.
J. Junker, Arbeitnehmerüberlassung, S. 108 ff.

67

business report. The reasons, why a license can be denied, are similar to those in Germany.
The first license is terminated on three years, a prolongation an five years.
For the regularly-employed-type dispatching (specified worker dispatching undertaking) nolicense is needed; a written message to the Ministry of Labour is sufficient, Art 16 paragraph
1 TAEA.396 De facto, as a result the administration controls the agency, so that in the end thecontrol equals each other.
Mixed enterprises, meaning those that do not provide only temporary agency work, need alicense, as in Germany.

ee)Legal Status of Temporary Agency Workers

When temporary agency work was first ruled in an act of 1985, it was restricted on 13
professions, the maximum period of transfer was one year. During the following years the lawof temporary agency work was changed several times.397 The actual law is called “Act on the
Procuring a performance according to the rules of temporary agency work and on betterworking conditions of temporary agency workers.” It came into force an March 28, 2012; therulings on an implied conclusion of an employment contract will come into force in 2015.

In Japan, too, there is an employment contract between the agency and the temporary agency
worker. As in Germany, there are also some duties of the user company concerning
employment law, Art 7 and 32 to 36 LSA.398
As in Germany, there is a difference between temporary agency work and arrangement of
employment.399 The agency for arrangement of employment does not conclude an
employment contract with the applicant.

ff)

Prohibition of Discrimination

There is no strict prohibition of discrimination concerning temporary agency work. As shown
for Germany, such a principle exists de iure, but de facto it only comes into force if there is novalid reference on a collective bargaining agreement or if the agency has no valid license. In
Japan such a prohibition exits, but only as soft law, Art. 30-2 TAEA. The agency is only
396

In Germany a notice is sufficient in the case of § 1 a AÜG.
J. Junker, Arbeitnehmerüberlassung, S. 68 - 96; Takahashi, report ZAAR.
398
J. Junker, Arbeitnehmerüberlassung, S. 152; Sugeno, Japanese Labor Law, p. 165.
399
J. Junker, Arbeitnehmerüberlassung, S. 41.
397

68

obliged to endeavor a balance between temporary agency workers and comparable workers of
the user company (principle of adapted treatment) as far as salary, occupational training andbenefits are concerned.
Although there are in Germany rules about where to find a comparable worker, § 3 TzBfG,
German law does not say which criteria make a worker comparable. Japanese law enumerates
the criteria:- duties of the employee,- result of the work,- enthusiasm of the worker,- abilities, experiences etc.

There would be a complete equal treatment, if temporary agency workers would get the samesalary as the comparable works of the user company. But even the duty to endeavor isrestricted: salary in the sense of Art. 9 paragraph 1 PWA – and the same is valid for
temporary agency workers – only comprises the regular salary. Among the benefits paid to thecore workers only those have to be paid that refer to additional duties of the worker, but noother benefits like flat rate for commuters or family friendly benefits.400

gg)

Other Items

Among the agencies Japanese law differs between general agencies (Art. 5 TAEA), withtemporary agency work following the principle of occupation (joyo gata), and special
agencies (Art. 16 to 22 TAEA), with temporary agency work following the registration
principle (toroku gata).401 Only joyo gata is comparable with German law: The agency must
conclude a contract independent from transfers and must pay a salary also in times without
occupation. With toroku gata the work seekers are at first only registered and get an
employment contract only when they are first sent. So the procedure consists of two steps, akind of arrangement of employment and later on temporary agency work. During the periodof registration the applicants may register with several agencies; the procedure is easy. The
difference between the two types consists in the fact that in joyo gata a salary is also paid intimes without employment and in toroku gata only if the applicant really has a job.

400

Morozumi, Japan Labor Review, Vol. 6 (2009), p. 39, 45.
Coe/John/Ward, Transforming the Japanese labor market, p.7; Hashimoto, Zeitschrift für japanisches
Recht, Bd. 17 (2004), S. 81.
401

69

In Germany temporary agency work is only forbidden in one sector, in the genuine building
sector.402 There are a number of sectors in Japan, where temporary agency work is forbidden,
like in harbour transport or with building contractors.
As far as a maximum duration of transfer is concerned, in Germany this is expressed by theword “temporary”, but there is no express time. 403 In Japan, in the 26 original sectors Art. 402 TAEA allows temporary agency work without limitation of the period. Those aretranslation, software-programming, broadcast, advertising, guides, recipe, research etc. In
other sectors there is a maximum duration of one year, Art. 40-2 No. 2 TAEA; under certain
circumstances it may be up to three years, Art. 40 – 2 paragraph 3 TAEA.
In Japan there is also a minimum duration of thirty days, Art. 35-3 TAEA. An exemption ispossible in certain cases. Before the changes in the law it was possible to have “one day
temporary agency workers”. In 2007 the Ministry of Labour stated that 70 % of these were
under 34 years, were engaged on average for fourteen days and earned about 1,000 €. 404
In Japan as well as in Germany temporary employment contracts can be concluded as fixedterm contracts or without a fixed term.
As in Germany meanwhile, the Japanese agency must inform the applicant before concluding
the contract about details of the working conditions, Art. 34 paragraph 1 no. 2 TAEA in
connection with Art. 26 TAEA and according to Art. 22 TAEA-Ordinance.405 Besides, theagency must control if the applicant is suitable al all. 406
Different from Germany the agency must take measures as well during the employment
relationship as in connection with a dismissal to provide another occupation for theemployee.407 As in Germany, the general rules of the law of dismissal are applied.
Temporary agency work inside a group (zaiseki shukko) means that the employment contract
with the sending enterprise keeps existing, but suspended, and during the period of sending tothe other enterprise a new employment contract with this enterprise is concluded.408 So two
employment contracts exist one besides the other.409 The employee must consent to thetransfer. This consent can already be written in the collective bargaining agreement or in thework rules of employment ( shugyo kisoku ). But it is an abuse of rights, if the working
conditions become much worse.

402

Which violates EU law, ErfK-Wank, § 1 b AÜG Rn. 5.
ErfK-Wank, § 1 AÜG Rn. 37 a.
404
Takahashi, report ZAAR.
405
J. Junker, Arbeitnehmerüberlassung, S. 123.
406
Note by the Ministry of labour, no. 244, chapter 2, No. 8/ 82.
407
J. Junker, Arbeitnehmerüberlassung, S. 123 ff.
408
J. Junker, Arbeitnehmerüberlassung, S. 162 ff.; about tenseki shukko S. 167 ff.
409
Nishitani, Vergleichend Einführung in das japanische Arbeitsrecht, 2003, S. 18, 173; Sugeno, Japanese Labor
Law, p. 380.
403

70

There is a discussion in Germany whether after the reform of the AÜG for the transfer withina group a license is needed.410 Besides, there are no restrictions in this case. A group member
may transfer all its employees to the other enterprise.
Recently the Bundesarbeitsgericht had to judge such a case and had to decide whether there
was an abuse of rights.411 It stated that an employee always bears the risk of being dismissed,
whether he is in a regular employment or employed by an agency. But this argument does notconvince. Not only the question of dismissal must be compared, but the legal status all in all.
Then it can be stated that for an employee this construction is of disadvantage; the enterprises
use it to save costs. Therefore in opposition to the BAG this should be regarded as abuse withthe consequence that the employee becomes a regular employee of the user company. It seems
that in this case the BAG missed to realize the construction of temporary agency work, as the
ECJ in the case Albron Catering.
Japanese law seems to solve the problem in a better way. Agencies are obliged not only totransfer to one group member, but also to enterprises outside the group. Otherwise they do not
get a license or their license is not prolonged.

hh)Sanctions

The protection of employees bases foremost on administrative law. For toroku gata theagency needs a license, Art. 5 TAEA. Different from Germany there is a sanction also in thecase when the transfer has not respected the time limit.
In 2015 a rule comes into force that in a case of illegal temporary employment work an
employment contract between the employer and the user company will come into life. Until
then the problem can be solved by referring to a judgment of the Supreme Court with thesame result.412

ii)

Labour Law

Labour law in Japan is based on another system as that in Germany.413 The interests of
temporary agency workers cannot be represented by works councils and trade unions. But
410

ErfK-Wank, § 1 AÜG Rn. 57.
BAG 15.5.2013 NZA 2013, 1214.
412
Saiko Saibansho 18.12.2009; J. Junker, Arbeitnehmerüberlassung, S. 37 ff.
413
A comparison of labour law in Germany and Japan Wank in Düwell u. a., Das Verhältnis von Arbeitsrecht
und Zivilrecht in Japan und Deutschland, 2013, S. 83 ff.
411

71

they understand their function as being the representative of the core workforce of the user
company and do not much engage for temporary agency work. There is a separate trade union
for temporary agency work, but it only has few members.414
So far the three kinds of atypical work were analyzed. The following text deals withespecially protected groups of persons.

VI.

Special Kinds of Employment other than Atypical Employment

1. Germany
a)

Women

During recent years the number of employees increased. That was mostly due to the fact that
more women were engaged. In spring 2013 13.5 million women had an employment coveredby social security; these were 46 % of the total number of employees. Whereas the quota of
employed women was 62 % in 2002, in 2012 72 % of women had a job. This rise happened
mostly with women at the age of over 50 years; there was a rise from 49 to almost 67 % from2002 to 2012. At the end of 2013 of the 7.5 million women covered by the social security
system, 6 million women worked in part-time. The corresponding figures for men are 14.2
million to 1.4 million.415
Women are protected by antidiscrimination law in comparison to men and also in their role aspregnant, as mother or (together with fathers) as parent.
Antidiscrimination law covers women by the criterion of sex, § 1 AGG. In the legal definitionin § 3 Abs. 1 Satz 2 AGG a worse treatment of a woman because of her being pregnant ormother is ruled as a case of direct discrimination.
The principle of equal pay is ruled in Art. 157 TFEU and in Art. 4 of the directive
2006/54/EC. It had been expressively ruled in the BGB, but because of bad legislation it is nolonger expressively written in the AGG, but results from interpretation.
Of great and actual interest is the subject of a gap in salary between men and women. In
public statements there is often named a difference of 22 %.416 This number results fromeither ignorance or deceit, because it names the unadjusted gap in salary. The gap is based on
the fact, that women prefer professions where less is earned anyway, their biography contains
gaps, mostly because of childcare, and they work more often in part-time.417 If e. g. in the
research and development department of an enterprise – with high wages - only a few female
414

J. Junker, Arbeitnehmerüberlassung, S. 191.
Frankfurter Allgemeine Zeitung Nr. 57, 8.3.2014, S. 18.
416
E. g. Kölner Stadtanzeiger 19.3.2014, S. 9.
417
Franzen, Festschrift Kempen, 2013, S. 123 ff.; Rieble, RdA 2011, 36 ff.
415

72

engineers are to be found, the reason is that the share of women in the study of engineering isvery low (in 2011 about 8 % of all absolvents of German universities).418 The gap is thehigher, the older female employees are419 - which indicates that the problem will disappear.
The adjusted gender gap, i.e. the gap that cannot be explained by reasons of sex, is at 8 %.
Even the Zweite Gleichstellungsbericht der Antidiskriminierungsstelle des Bundes must state,“that criteria for a work gender neutral and without discrimination are not at hand.”420
Perhaps it is not known that men in an occupational training or in a minijob or in part-time orin a job with a high share of women get on average fewer wages than women.421
As a sanction in cases of discrimination there is the right to complain, § 13, a right ofretention, § 14, and a claim for damages, meaning material damages, § 15 Ab. 1, and damages
for pain and suffering, § 15 Abs. 2 AGG.422 Violating basic principles of a state under therule of law the ECJ ruled in the case Draempaehl423 that an employer must pay damages even
if there is no fault on his side.424
The legal consequence of a violation is – contrary to the logic of the principle of equal
treatment, which only requires an equal, eventually a bad, but equal – treatment, following theECJ, an “adjustment to the top. 425
In the other area of protection, the protection of especially protected groups, women areprotected by the Mutterschutzgesetz (MuSchG) and the Gesetz zum Elterngeld und zur
Elternzeit (BEEG).
The actual discussion has three topics, besides the gender gap the share of women in
management positions, especially in the boards of public limited companies426, and work life
balance.
Guidelines of the Federal Government which will soon be followed by an act of parliament,from 2016 on all big public limited companies (about 110) must have in their “Aufsichtsrat”(board) have a quota of 30 %. Another 3,500 enterprises must give themselves mandatory
aims.427 The 30 % quota is counted separately on the owners‘side and on the side of theemployees in the board, indicating that the aim is not the quota as such, but a disciplinary
measure. It will be of no influence if in this sector of industry, like metal or engineering, there
are only few female employees. Besides, it would be logical to start at the basis and not on the418

Flothmann, Mitteilungen 1-2/2014, 41, 43.
www.boeckler.de/wsi_38965.htm.
420
Zweiter Gleichstellungsbericht, BT-Drucksache 17/14400, S. 269.
421
Frankfurter Allgemeine Sonntagszeitung 16.3.2014 Nr. 11, S. 23.
422
Latest article by Thüsing/Stiebert, Festschrift von Hoyningen-Huene, 2014, S. 487 ff.
423
ECJ 22.4.1997 NZA 1997, 644.
424
A similar violation of basic law was made by the Bundesverfassungsgericht, see Wank, Auslegung und
Rechtsfortbildung, S. 331 ff.
425
Critical Krebber, comment on BAG AP BetrVG 1972 Nr. 59.
426
Stöbener/Böhm, EuZW 2013, 371.
427
Frankfurter Allgemeine Zeitung 26.3.2014 Nr. 72, S. 17.
419

73

top, following the model of a cascade: The percentage of women in one lower level mustcorrespond with the percentage in the next level.
As far as the work life balance is concerned, the attitude today is that everyone must be able
to decide himself or herself about the biography of working life.428 An article concerning
women´s promotion in universities - whose results may be transferred in other areas – says:“The reasons for the under-representation of women are in first line not caused by theorganization of labour, but ly in their personal life.”429
Meanwhile the understanding increases that it is necessary to provide enough“Kindertagesstätten (Kitas)” and Kindergartens and a more family friendly organization ofworking time, for men, too. It is remarkable that the share of children, whose fathers have got“Elterngeld” (state subsidies for parents), has risen from 27.4 % in the year of 2009 to 29.3 %in the year of 2012. But in general the standard role model in the families remains.430b)Children and Youths

There is a legal definition of children and youths in § 2 Jugendarbeitsschutzgesetz(JArbSchG). “Children” are persons occupied at the age under 15 years, § 2 Abs. 1, “youths”
are those between 15 and 18 years, § 2 Abs. 3 JArbSchG.
In antidiscrimination law there might be claims for damages; but so far there have been nocases.
The sanctions in cases of violations of the Jugendarbeitsschutzgesetz are fines and criminal
punishments, § 58 JArbSchG.

c)

Older Employees

The number of old people still working increases in recent years.431 A reason is that theamount of older people increases and that possibilities of early retirement have beenabolished. The share of workers among those of 60 - 65 years has risen in 2012 to 42 %.432
The date when employees finish their working life according to employment law depends to ahigh degree on social security law. After an age of 65 years in social security law has
remained for many years, it will since 2012 continually rise to 67 years. If the employee
428

Kocher u.a., Das Recht auf selbstbestimmte Erwerbsbiographie, 2013.
Hirschauer, Forschung & Lehre 2012, 994.
430
Vorwerk Familienbericht 2013.
431
Sonntag, Potenziale Erwerbstätiger bei verlängerter Lebensarbeitszeit, 2014; Die Zukunft der Arbeitswelt,
Hrsg. Bosch-Stiftung, 2013.
432
Frankfurter Allgemeine Zeitung 16.8.2013 Nr. 189, S. 11.
429

74

wants to retire before, a deduction is made; besides there are limits regarding salary earned
after retirement.
The new Federal Government has decided on January 29th 2014 to introduce for those
employees that have worked for at least 45 years an earlier voluntary retirement age of 63.433
At the moment it is much discussed, if times of unemployment shall be taken into account;that may lead to an actual retirement age of 61 or less.
In antidiscrimination law the protection of old employees is reached by the prohibition of
discrimination in § 1 AGG. Different from the age discrimination law in the U.S., theprotection does not refer to old age, but to any age difference at any age. Also different fromthe U.S. there need not be a minimum difference of age, but any difference in age issufficient.
Discrimination may happen at the beginning, at the performance or at the end of theemployment relationship. In the past employers in Germany disliked engaging applicants
above a certain age, mostly 50 years. But as there is now a lack of qualified employees, thesituation has changed.
There are age limits in law, like for firemen in action.434 But it cannot be accepted to refuse
applicants for the job of a professor at a university if they are older than 42 years.435
Long discussed has been the mandatory retirement age, i.e the age when the employment
relationship ends by an act of parliament, a collective bargaining agreement or theemployment contract.436 The result of a chain of rulings by the ECJ is that a mandatory
retirement age is generally accepted; but there must be a control by the principle ofproportionality.437 It is doubtful if a discrimination can be seen even in those cases when
every employee will have the chance in his life to reach the same privilege, like longer annual
leave for older employees.438
The sanctions are the same for each case of violating § 1 AGG, so that I can refer to the
sanctions for sex discrimination.
There are no special rules in the law of especially protected groups. But in recent years there
have been collective bargaining agreements referring to the special problems of older
employees (demographic collective bargaining agreements).

433

Entwurf eines Rentenversicherungs-Leistungsverbesserungsgesetzes.
ECJ 12.1.2010 case C-2233/08 – Wolf, Slg. 2010 I-46; see also ECJ 13.9.2011 case C-447/09 – Prigge, Slg.
2011 I-8003.
435
Wank, Forschung & Lehre 2013, 738.
436
As regards the employment contract see BAG 5.3.2013 – 1 AZR 417/12; will be published in AP withcomment of Polloczek.
437
Reference of the rulings in Huber, Festschrift v. Hoyningen-Huene, 2014, S. 157 ff; Wank, Festschrift Bepler,
2012, S. 585 ff.
438
Kamanabrou, comment on BAG AP Richtlinie 2003/88/EG Nr. 6.
434

75

d)

Other Groups

Besides the groups named before there might be further groups which might get a special
protection by employment law, like those who have their origin or whose parents have their
origin in other countries than Germany (“persons with migration background”). E. g. Turkish
employees in Germany without a German passport are not protected by EU law in the same
way as citizens of another member state of the EU (but there is an extensive protection by aspecial association agreement between Germany and Turkey). A protection may be given byantidiscrimination law referring to a discrimination because of race or ethnic origin, § 1 AGG.

2. Japan

In Japanese employment law, too, it would be possible to name different kinds of employeeswith special problems on the labour market; but the following text will only deal with women,children and youths and older employees.

a)

Women

In recent years the number of women has increased to around 40 % of the total workforce.
One reason is that employment in the healthcare and welfare sector, where women are
numerous, has increased.439 Whereas men have a ratio of non-regular work of around 20 %, it
is more than 50 % with women.440
Art. 3 LSA contains the general principle of equal treatment for employment law. It does notcover also a discrimination of women compared to men, but there is a special rule in Art. 4
LSA. Whereas Art. 3 LSA demands equal treatment concerning salary, working time andother working conditions, Art. 4 only refers to wages.
There is a special act, the Equal Opportunity Act441, of 1985, changed in 2006. After anamendment in 2006 the prohibition of discrimination has been extended on change of
employee status, change to part-time work etc.442
Like in EU law and in German law direct discriminations are covered as well as indirectdiscriminations (Art. 6 EEOC). Different careers for men and women are forbidden, as
439

Labor Situation 2013/2014, p. 58.
Labor Situation 2013/2014, p. 59.
441
Equal Opportunity and Treatment between Men and Women in Employment.
442
Labor Situation 2012/2013, p. 30.
44076already stated in the EEOC of 1997.443 Whereas this had been soft law before, a duty toendeavor, it now became mandatory law.444
The definition of indirect discrimination is as unprofessional as in EU law and in German law.
What lacks is the statement that between the measure of the employer and the disadvantage
for women there must be an inner relationship.
There are special rules for pregnant and for young mothers, Art. 64 LSA. The protection
period for mothers is 6 weeks before giving birth, Art. 65 paragraph 1, and 8 weeks after
birth, Art. 65 paragraph 2 LSA. There are restrictions for overtime and night work. Following
the period after birth like in Art. 65 LSA, there is unpaid leave, Art. 12 paragraph 3 (ii) LSA,
and also for maternity leave and there is leave by the Child Care Act, Art. 12 paragraph 3 (iv)
LSA.445
In Japan, too, the topics equal pay, women in leadership positions446 and work-life-balance(shigoto to seikatsu no chouwa)447 are of great importance. The aims for the last topic arestated in the Work-Life-Balance Chart of 2007. In Japan, too, the understanding grows that asufficient number of kindergarten is needed.
In 2012 the Nihon Keizai Shimbun claimed that the average pay of Japanese women was only
70 % of that of men.448 Kawaguchi comes to the result, based on figures by the Ministry of
Health, Labour and Welfare, that the average pay per hour was 2,412 for men and 1,724 forwomen.449 The Japanese figures are statistically as little serious as those of the OECD or ofGermany, as they omit the question of adjusted gender gap.

b)Children and Youths

Children450 under the age of 13 years are only allowed under special conditions to work intheatre productions or movies, Art. 56 paragraph 2 LSA. In the age between 13 and 15 years
only easy work without danger for the health and with administrative permission may bedone, Art. 56 paragraph 1 LSA. There are special rules for the working time of minors, Art.
60 LSA.

443

Kawada, Gedächtnisschrift Zachert, S. 412, 415 f.
Sakuraba, in JILPT Report no. 6, p. 181, 187.
445
Act on the Protection of Employees caring for Children or Other Members of the Family, Act No. 76 of
1991.
446
Labor Situation 2013/2014, p. 64.
447
Labor Situation 2012/2013, p. 26, 35; Labor Situation 2013/2014, p. 167.
448
On the subject see Kawaguchi, Japan Labor Review Vol. 10 (2013) no. 4, p. 24.
449
See also Labor Situation 2013/2014, p. 61.
450
Legal facts about children and youth employment in Labor Situation 2013/2014, p. 52.
444

77

c)

Older Employees

The share of employees older than 60 years in Japan451 is the highest of all industriallydeveloped countries.452 The amendment of the Act on Measures in Employment Law forbids
an employer to differ when engaging applicants according to the age factor. Exemptions are
only allowed for those enterprises practicing the principle of lifelong employment, Art. 9
paragraph 2 ASEOE.453 In practice most employment contracts contain a certain age ofmandatory retirement (teinen). At the beginning of the 70ties it was 55 years and is now 60
years, Art. 8 ASEOE.454 It is planned that it shall rise until 2015 step by step up to 65 years.
455
The Act on the Protection of Old Age of Older Employees of 1985 expected of enterprises
to raise the retirement age to 60 years or more, a kind of soft law; since the amendment of1994 a lower retirement age than 60 years is forbidden. Usually when an employee reaches
the mandatory retirement age he gets compensation by the employer.
With people living longer, between the end of employment and the death of the employee
there is an income gap.456 In Japan it is common that employees work again in their former
enterprise,457 but almost half of them with a lower income than before.458 Where they get less,
it is 60 up to 80 % of their former income.459 15 % of employees over the age of 60 cannot
live from their salary if they do not get old age compensation by their former employer.460
The average age when men really retire is that of 70 years with men and 67 with women.461
The number of those continuing to work has been constant since 2006. Many older employees
want to continue work; they wish that the other employees would accept the different way ofwork according to age.462

451

Legal facts about older persons in Labor Situation 2013/2014, p. 55.
Labor Situation 2012/2013, p. 1.
453
Act on the Stabilisation of the Employment of Older Employees, in the following text ASEOE.
454
The mandatory retirement age of 60 years is practised in 90 % of the enterprises, Labor Situation
2012/2013, p. 2.
455
Actual figures in Labor Situation 2013/2014, p. 89.
456
As regards retirement benefits by the enterprises see Labor Situation 2013/2014, p. 109.
457
It is difficult to find a job in the open labour market, Labor Situation 2013/2014, p. 57.
458
Following a study in Labor Situation 2012/2013, p. 12, the share of employees after mandatory retirement
age getting the same or better working conditions was 56 %.
459
Labor Situation 2012/2013, p. 7.
460
Hamada, Japan Labor Review Vol. 9 (2012) no. 1, p. 103, 108; Labor Situation 2012/2013, p. 10.
461
Die Zeit 6.3.2014, S. 33.
462
Labor Situation 2012/2013, p. 4.
452

78

VII.

Comparison

1. Generala) Legal Basis
In Germany as well as in Japan there is the difference between the regular employment andnon-regular employment. In both countries there are three aspects. In both countries the three
aspects are regarded separately in legislation and in research, there is no overhead concept.
That has consequences for legislation: The same questions, like protection of women or of
disabled, are dealt with in one, two or three of these three areas, always independent from theothers. In research there are seldom accounts referring to the total legal situation of one group,
without respect to the different areas in law. The problem may be shown at the example of apregnant Muslim woman from France, working part-time in Germany.
In the law of atypical employment she is protected inasmuch as that she must not be
discriminated against compared with a comparable fulltime employee. As part-timers aremostly women, there may be an indirect discrimination of women, when part-time employed
women are treated worse than fulltime employed men. But this protection only starts when
she already has the job, not in the period of application. For different treatment it is sufficientif the employer has a good cause.
In antidiscrimination law the same woman is already protected when she applies. Being awoman, a direct discrimination is only accepted because of severe grounds; only in a case ofindirect discrimination a good cause is sufficient. As she is pregnant, discrimination becauseof pregnancy is no direct discrimination; but EU law and German law order to regard it asdirect discrimination. As she is a Muslim, she is also protected by antidiscrimination law inthis regard. As she is a French, she is not only protected by an EU directive because of ethnic
origin, and correspondingly by the German AGG, both being protection by secondary EU
law; but she enjoys the protection of the EU Treaty and therefore the stronger protection
because she is an EU citizen.
In the law of especially protected groups she belongs as pregnant woman to the especially
protected.
Now imagine the problems of weighing the arguments of an employer in the period of
application or during the performance of the employment contract or at its end, when thiswoman must be compared with a disabled Catholic employee from Italy with a fixed-term
contract.

79b)

Different Groups of Employees

As just shown, non-regular employment describes different groups of people that are regarded
in an isolated way in legislation, jurisdiction and in research. One aim of this article is on the
one hand to see non-regular work as the overhead idea and then analyze the different groups
on the other hand.
Model standard for all different kinds is the regular employment relationship. In a first circle
this is opposed to atypical employment, to which belong in Germany as well as in Japan parttime worker, fixed-term worker and temporary agency worker.
In a second circle are all employees that are protected by antidiscrimination law. Whereas in
the first circle the kind of employment contract matters, the starting-point are herecharacteristics of a person.
There is a third circle comprising partly the same group, with special rules concerning all
kinds of working conditions. These comprise e. g. extra benefits, better protection in case of
dismissals or to call in an authority.
This system is the same in Germany and in Japan.
Who have so far not been mentioned are pseudo self-employed.463 This refers especially tosolo self-employed.464 In many cases the three kinds of atypical work are avoided by
employing seeming self-employed, although the actual performance of the employment showsthat they are employees. Some enterprises use pseudo contracts for work and service whereas
in reality these are temporary agency workers. The employers want to integrate the employees
in their organization and to give them orders without being responsible for the duties of an
employer.
In Japan, too, pseudo contracts for work and service are not accepted. But different from
Germany it is possible in Japan simply to call some fulltime employees part-timers and to
give them worse working conditions; they may be called pseudo part-timers.

c)Prohibition of Discrimination

The best way to protect those not working in a regular employment relationship is to prohibit
discrimination.465 Each legal system knows a general principle of equal treatment. In
Germany for the whole legal system it is stated in Art. 3 Abs. 1 Grundgesetz and especially in
employment law in the unwritten “allgemeiner arbeitsrechtlicher

463

Dietrich and Wank, Empirische Befunde zur Scheinselbständigkeit.
Waltermann, Gutachten B zum 68. DJT, S. 101 f.
465
Riesenhuber, Europäisches Arbeitsrecht, S. 303; as regards the legal facts see Rotthleuthner/Mahlmann,
Diskriminierung in Deutschland, 2011.
464

80

Gleichbehandlungsgrundsatz.” Whereas prohibitions of discrimination refer to special aspects
and allow different treatment only because of certain grounds named in the law, the “generalprinciple of equal treatment in employment law” refers to any aspect and gives a justification
for any good cause.
In Germany in the first circle there are prohibitions of discrimination in favour of part-timeand of fixed-term employees. The EU directive on temporary agency work contains the same
principle also for temporary agency work, regarding the comparison of the temporary agency
worker with comparable workers in the user company. But the directive allows different
models, and that has been chosen in Germany. Temporary agency workers have special
collective bargaining agreements, and a protection is reached by administrative law andrecently also by a mandatory minimum wage.
In the second circle protection is given by antidiscrimination law in the AGG.
In the third circle there are especially protected groups; here a prohibition of discrimination is
not sufficient, but a number of protective laws is necessary. E. g. pregnant part-time
employees are protected as part-timers by the Teilzeit- und Befristungsgesetz, as women by
the Allgemeines Gleichbehandlungsgesetz and as pregnant by the Mutterschutzgesetz.

In Japan the Constitution contains the general principle of equal treatment in Art. 14.466 The
transformation into employment law was performed by Art. 3 and 4 LSA:
Article 3: An employer shall not engage in discriminatory treatment with respect to wages,
working hours or other working conditions by reason of nationality, creed or social status of
any worker.
Article 4: An employer shall not engage in discriminatory treatment of a woman comparedwith a man with respect to wages by reason of the worker being a woman.
Although it seems that the constitution rules all that is necessary for equal treatment in
employment law, special law only transforms this principle to a certain degree.
What makes the application of the principle of equal pay as part of the principle of equal
treatment so difficult in Japan is the fact that there are other methods of determining the salarythan in Germany. For those on whom the principle of lifelong employment is applicable,467
the system is completely different anyway.
But for others the system is also quite different in Japan and in Germany. In Germany 30 % of
the employees are directly bound by collective bargaining agreements, so that the conditionsof the agreement are mandatory for them. For most of the others the collective bargaining
agreements are applicable by reference in the employment contract; then they are notmandatory by the Tarifvertragsgesetz, but by the contract. The collective bargaining
466
467

Kawada, Gedächtnisschrift Zachert, S. 412, 413.
Araki, Labor and Employment Law in Japan, p. 18; Nishitani, Vergleichend Einführung, S. 3.

81

agreements contain detailed schemes which salary has to be paid for which activity. In Japan
there is no comparable model, but the salary is rather a matter of the single employment
contract.468 There are no standardized jobs with standardized salary. Besides, regular
employees are paid by the month, atypically employed by the hour.469 Taken all in all, theprinciple of equal pay is difficult to realize in Japan.
For part-time employees there is a prohibition of discrimination; but because it is only
applicable on employees without a fixed-term, in reality there is almost no appliance.
For fixed-term employees there is no genuine prohibition of discrimination, but a soft law rulein Art. 20 LCA.
There is a similar soft law rule for temporary agency workers in Art. 30-2 TAEA.
So for atypical work there are two types of prohibition of discrimination, a hard one for parttimers, but with no real appliance, and soft law470 for the two other types. The soft law does
not require equal treatment; but the employer must take into account if and how far a different
treatment is acceptable.
But even if the principle of equal pay is to be applied at all, there remains a disadvantage forpart-time employees and temporary agency workers inasmuch as a number of benefits neednot be paid for them.
In the law of antidiscrimination equal treatment of men and women meanwhile not only
covers the wages but all employment conditions.
A general prohibition of discrimination is valid for old employees. There is a difference inJapanese law from EU law and German law, as age is understood as “old age”, Art. 2
ASEOE, whereas in the other two legal systems it means any age difference. In spite of thegeneral rule, EU law, German law and Japanese law allow a mandatory retirement age.

d)Requirement of a Ground

Another way of protection in cases of non-regular work is the requirement to have a goodcause not to choose regular work.
In German law this is the way with fixed-term work: To conclude a fixed-term clause, one of
the enumerated grounds must be realized, § 14 TzBfG; but because it is possible for the first

468

Sakuraba, JILPT Report No. 6, p. 181, 182.
Araki, Labor and Employment Law in Japan, p. 37; Hanami/Komiya, Labour Law in Japan, p. 147.
470
Positive attitude to this soft law at Tidten, Gleichheitsorientierte Politik in Japan, 2012, S. 155; criticalcomment by Foljanty, Zeitschrift für japanisches Recht no. 35 (2013), S. 351, 353.
469

82

two years to conclude a fixed-term clause without any grounds, this restriction is only of
reduced value.
There is no corresponding requirement for part-time work; an employer may organize hisenterprise completely by part-time work. For temporary agency workers some protection isreached by the new requirement that the work must be a temporary one; besides, theGovernment plans that after 9 months the genuine principle of equal pay will come into force,
which means that temporary agency work cannot be chosen at will, but only for a good cause,a temporary need. What is still not changed is that the employer may engage as many
temporary agency workers as he likes. This can only be avoided, if the requirement of
temporary work is interpreted as meaning the job and not the single employment relationship.
As regards persons endangered of discrimination the requirement of a good cause is given by
the fact that as a justification the employer needs a genuine and necessary requirement for thejob to treat employees differently.
There are sometimes even more restrictions for employers of members of a specially
protected group. E. g. a pregnant women enjoys an almost unlimited protection fromdismissals, § 9 Mutterschutzgesetz. Disabled applicants for the civil service cannot be
exempted from a job interview if the employer does not think it necessary, but only if
objectively seen they are evidently unable for the job, § 82 SGB IX.

In Japanese law there are no corresponding requirements. An employer can conclude a fixedterm contract without having any good cause for this. A control is made only when theemployer does not prolong the contract. There is a similar problem in EU law, German law
and Japanese law concerning a fixed-term employment without a good cause. Even if this isadmitted, there is a judicial control regarding an abuse of rights when the contract is notprolonged.471

e)Justification

When a different treatment is generally forbidden, there may be a justification.
In German law the method is different as regards atypical work or antidiscrimination law. An
atypical worker must not be treated worse than a comparable typical worker, but for all three
types of atypical work a good cause is sufficient for a different treatment. In
antidiscrimination law as a general justification a good cause is not sufficient; the employer
must have a genuine and necessary reason for a different treatment, § 8 AGG, which is amuch stronger requirement. This is accompanied by special justifications for single criteria, as
for religion, § 9 AGG, for age § 10 AGG, for reverse discrimination § 5 AGG. This strong471

ECJ 26.1.2012 case C-586/10 – Kücük, NZA 2012, 135; Japanese Supreme Court 4.12.1986 Rodo Hanrei Vol.
486, p. 6 – Hitachi Medico case.

83reason is needed in cases of direct discrimination. In cases of indirect discrimination a goodcause (and proportionality) is sufficient, § 3 Abs. 2 AGG. Japanese law concerning equal
treatment of women is similar.472
As far as especially protected groups are concerned, the justification is different according to
the special group and the special kind of measure.

f)Integration

To realize the idea of equal treatment a formal attitude is not enough, like that in
antidiscrimination law. As important is a substantial equality meaning an equal chance, as isshown by extra rules concerning integration.
In Germany part-timers must be informed about free working places, so that they may apply
for them. They must get the chance to take part in vocational training, § 10 TzBfG.
Temporary agency workers are by the German model completely integrated in the enterpriseof the agency. But besides, the aim of the legislator and of the courts is a growing integrationin the enterprise of the user company, at least after being a certain period in this enterprise.
Temporary agency workers can ask the works council of the user company for help, they areallowed to use institutions of the user enterprise, after three months they can take part in theelections for the works council in the user company (but not be elected themselves). In recent
time this trend is being enforced: The Bundesarbeitsgericht has, in a number of rules, counted
temporary agency workers as employees of the user company when a law required a certain
number of employees, and the Government plans to change the law in such a way as to adopt
these rulings.
Japanese law contains a number of comparable rulings especially as concerns temporary
agency workers. As a collective protection by works councils is not possible in Japanese law
and as the trade unions are not eager to represent the interests of atypical workers, the idea of
integration and effective protection is realized by law and state institutions.
g)Soft Law

Most of the protective law named above is mandatory in German law; sometimes it isdispositive for collective bargaining agreements.
There has been soft law as regards the hope that enterprises would take more apprentices orthat they would increase the number of women in higher positions 473 (so called
Selbstverpflichtungserklärung, declaration of own duty). The duties were not mandatory, but

472

Sakuraba, JILPT Report no. 6, p. 181, 189.
See e. g. Bundesministerium für Familie, Senioren, Frauen und Jugend (Hrsg.), Fünfte Bilanz
Chancengleichheit, 2013.
473

84

were under the threat that if they were not fulfilled, a mandatory act would follow. This canbe seen by the actual plans of a mandatory women quota in higher positions.
In EU law of atypical employment, however, there are some rules that only ask the employer
to endeavor.474 Soft law has its place in the law of competition.475 It consists to a great part ofguidelines and informations by the Commission.476
Japanese law is characterized by a number of soft laws: Employers are not forced to a certain
measure, but they are expected a certain behavior. If such a kind of legislation is effective,
also depends on the legal culture of a country; if the addressees of law follow a rule even if
there is no sanction. The attitude of employers is also guided by the experience that after someyears the same rule may become mandatory anyway, so it allows them step by step to comply
with the rule while it is not yet compulsory; with the mandatory retirement age a duty toendeavor was followed by mandatory law some years later.

h)Collective Representation

German labour law is different from the labour law of most countries by the two lanes of therepresentation of employees.477 The interests of atypically employed are represented by tradeunions as well as by works councils. Especially the right of co-determination of the works
council in case of an engagement is an instrument of control. But in both countries the shareof members of trade unions among atypically employed is very low, and the trade unions inboth countries understand themselves primarily as representatives of the regular workers.478
Japanese employment law is determined by trade unions in the single enterprises and by workorders.479 As in Germany, the trade unions represent above all typical employees, and only
recently some trade unions have begun to accept atypically employed.480 The share oforganized employees among part-timers in 2010 was only 5.6 %.481 As the legislation is rather
reluctant, a representation by trade unions would be helpful.482

474

Barnard, EU Employment Law, p. 437; Riesenhuber, Europäisches Arbeitsrecht, S. 307, 317.
See clause no. 5 no. 3 directive 97/81/EC; Davies, EU Labor Law, p. 187; Riesenhuber, Europäisches
Arbeitsrecht, S. 307, 316.
476
von Graevenitz, EuZW 2013, 169; Soltesz, EuZW 2013, 881 f.
477
Krause, RdA 2009, 129 ff.; Wank in Düwell u.a., Verhältnis, S. 83 ff.
478
Waltermann, Gutachten B zum 68. DJT, S. 44.
479
Araki, Labor and Employment Law in Japan, p. 159; Araki, New labour policies; Nishitani, Vergleichende
Einführung, S. 104 ff.; Sugeno, Japanese Labor Law, p. 416; Takahashi, ZIAS 2012, 174, 183; Wank in Düwell u.
a., Verhältnis, S. 83, 94 f.
480
Fujimura, Japan Labor Review vol. 9 (2012), no. 1, p. 6, 10.
481
Shuichi Hashimoto, Japan Labor Review vol. 9 (2012), no. 1, p. 25, 26.
482
Hashimoto, l. c. p. 36.
475

85

i)

Reforms

It is typical for some ideas for reforms that they regard atypical work as per se negative. One
conclusion by the increase of atypical employment is that employees become poorer. There
should be a more accurate attitude. If e. g. in a family so far only the husband was employed
and the wife now starts a job with small income, the family income rises, although the wagesof the wife alone could not support the family. Whereas in social security law sometimes thefamily income is relevant, regarding atypical employment mostly the income of one person
alone is regarded.
The conclusion from atypical employment to discrimination is not generally justified. If e. g.
part-time work is mostly done in jobs with low salary and if part-time work is mostly
performed by women, the question is why in this job only low wages are paid and why dowomen prefer such a job. This is no matter of discrimination of part-timers but a general
problem of who decides which value has the jobs in a certain sector.
In Germany the agreement of the coalition announces some reforms, which have been
mentioned in the text. In the law of part-time work a right to return to fulltime after a periodof reduced time shall be introduced.483 The burden of proof in case of refusing part-time work
shall be transferred to the employer.484
In the law of temporary agency work the period of transfer shall be limited to 18 months;
exemptions shall be possible by collective bargaining agreements. At the latest after 9 months
the genuine principle of equal treatment shall be applicable. It shall be forbidden to use
temporary agency workers as substitutes in cases of strikes. In thresholds in the works council
law temporary agency workers shall be counted as employees of the user company. The
criteria to differ between contract for work and service and temporary agency work shall bedefined in a statute.
No changes are planned regarding fixed-term work.

j)Summary

In Germany as well as in Japan there are some groups of employment relationships that differ
from the regular employment relationship. In both countries it is recommendable to differ
between atypical employment (part-time employees, fixed-term employees and temporary
agency employees) on the one hand and persons endangered of discrimination and especially
protected groups (like women, older employees, and children) on the other hand. Different
from EU law and from German law there is no general antidiscrimination law in Japan. There
are special rules in separate laws, like in the Part-time Act. Different from EU law andGerman law Japanese law knows two kinds of antidiscrimination rules, strict law and soft
law. In soft law the employer must endeavor to perform equal treatment. Besides
483
484

Jöris, NJW-Spezial 2013, 754.
As regards the reform of the part-time law see SPD-Fraktion, Bundestags-Drucksache 17/13084, S. 3.

86

antidiscrimination law there are special laws for especially protected groups. The rules for
atypically employed and for members of special groups are accompanied by rules to promote
their integration.
The comparison between the different types of employment relationships other than theregular employment in Germany and in Japan has shown corresponding problems andsolutions. There is a difference regarding the principle of equal treatment; in Japan with its
tradition of lifelong employment and a different way of fixing wages, this principle is still indevelopment.

2.

a)

The Separate Areas of Non-regular Work

Part-time Employment

In Germany as well as in Japan the part-timer is defined in comparison with a full timer.
Among the group of part-time employees there is in Germany – not in employment law, but insocial security law – a special group of low income employees. Advantages regarding social
security premiums make this kind of employment attractive, with retroactive effect auf
employment law. In Japanese law there is a special phenomenon, the difference between
genuine part-time employees and so called part-time employees who may as well be fulltimers, but are not called so. For genuine part-time employees a prohibition of discrimination
has been introduced. But almost all part-time employees are fixed-term employees with theresult that this law has no effect. In the end part-time employees have a double disadvantage:
They only have fixed-term contracts and they have worse employment conditions as regular
employees.
Besides, in both legal systems there are rules promoting integration into the core staff. But inJapanese law there is no claim for a full timer to reduce his working hours.
In labour law in Japan, different from German law, there is no representation by a works
council.

b)

Fixed-term WorkIn Japan no good reason is needed for a fixed-term employment as such. A control refers to
the duration of the contract. In German law the duration as such is not controlled, but for a
fixed-term contract a good cause is needed; the duration must comply the reason. The fixedterm can refer to a calendar date or to a certain event as the end of the contract. Subject of thecontrol in German law is the relationship between the two parties, whereas in Japan only thesingle contract is regarded; as many prolongations as wanted are allowed.

87

In Germany the second way for a fixed-term contract is that for the first engagement no goodreason is needed; but then the maximum duration is two years (with three possible
prolongations during these three years). If a newly founded enterprise engages employees,
during the first two years no other good cause is necessary.
In both countries even if the single fixed-term contract complies with the law, it may bedifferent with a chain of fixed-term contracts. Both legal systems have the same solution:
Then it may be an abuse of rights. But the reasons for an abuse are different: In Germany the
fixed-term contracts may be an illegal substitute of a permanent job, in Japan the employer
may have disappointed the confidence of the employee that the contract will be prolonged.
In Germany it is forbidden to discriminate against a fixed-term employee in comparison witha comparable permanent employee. In Japan in 2012 a rule was introduced in Art. 20 LCA
forbidding too great a difference.
A specialty of Japan are the shokutaku shain, employees that continue to work in the same
enterprise as before, although in half of the cases with worse conditions.

c)Temporary Agency WorkIn Germany as well as in Japan temporary agency work has an administrative law and an
employment law aspect. In both countries agencies are specially controlled.
German law differs between temporary agency work and arrangement of employment. The
agency has an employment contract with the employee, the agency for arrangement of
employment only arranges a contact between the two parties of an employment contract. In
Japan there are two different kinds of temporary agency work; one of it is at the beginningsimilar to arrangement of employment.
The temporary agency employee has two “employers”. The agency has the main duties of an
employment contract, but in both countries the user company also has some duties of an
employer.
In Germany there is at least de iure a prohibition to discriminate. That would mean equal
treatment with the employees in the user company. But de facto there are special collective
bargaining agreements for temporary agency work, resulting in conditions worse than they
were by equal treatment. In both countries it is difficult to differ between temporary agency
work and a contract for work and service. Often pseudo contracts for work and service areused to avoid the restrictions of temporary agency work. But the courts in both countries lookat the real performance of the relationship and not at what the parties call it. The mostimportant clue is who gives orders to the employee, the employer or the third person.

If temporary agency law is violated, there are sanctions in Germany in administrative law, in
works council law and in employment law. In employment law the sanction if the agency
88

lacks a license is that by law a contract between the employee and the user exists. But thissanction is not applicable if the employee is engaged in the user company longer than“temporary”. In Japan there are – at the moment – only sanctions in administrative law. But
from 2015 on a sanction will be a contract with the user company.

d)

Employees Endangered of Discrimination

Employees are endangered of discrimination because of several reasons in their person. EU
Law provides a number of reasons that must not be taken to differ between employees, likereligion, age, raced etc. They have been transformed into § 1 AGG; in both countries a special
prohibition covers the difference between man and woman. This refers – in Japan meanwhile,
too – to all working conditions. De facto in spite of this there is a gender gap in salary. But inboth countries to get a serious view it is necessary to differ between the adjusted and theunadjusted gender gap. Another common problem of both countries is the work life balance.
But it seems as only in EU law and in German law there is the discussion about more womenin top positions in enterprises.

e)Especially Protected Groups of Employees

In both countries there are some groups of employees for whom the legal system provides anumber of special rules for their protection, like old age employees or children and youth.

89

90

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Rolf Wank, Prof. Dr.
Born in Kettwig, Germany, in 1943.
Dr. Rolf Wank was professor in Münster (1983 – 1985) and in
Bochum (1985 - 2011). His thesis was about the borders of judge
made law; his habilitation was on employees, the self-employed, andon their definitions in law. He wrote monographs and textbooks on
employment law, civil law, commercial law and legal theory, andpublished articles in commentaries, anthologies and law journals.
He was a visiting professor in Nagoya in 2004, and in St. Louis, USA,in 2005.
He is co-editor of AP (Arbeitsrechtliche Praxis) and RdA (Recht derArbeit).
In October and November 2013 he was invited to the Center for Asian
Legal Exchange (CALE) at Nagoya University, Japan, as a visiting
professor to conduct a research project on " Non-regular
Employment in Germany and in Japan ".

C ALE Discuss i on P ap er No. 10
Non-regular Employment in Germany and in Japan
AuthorRolf Wank, Prof. Dr.

Published byCenter for Asian Legal Exchange (CALE)
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Tel: +81 (0)52-789-2325
Fax: +81 (0)52-789-4902
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CALE Discussion Paper N o .1 0 ( June, 2 0 1 4 )Nagoya University
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