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MIL OSI Translation. Region: Germany / Deutschland –

Source: DGB – Federal Board21.12.2020CoronaDoes short-time work allow holidays to be reduced? And what about the “remaining vacation” in 2020? Is it legal to reduce the vacation entitlement if employees are on short-time work due to Corona? DGB and trade unions say: No. Different employers take the position: Employees who are on short-time work due to the Corona crisis, the right to vacation can be reduced. In plain language: fewer vacation days due to short-time work. The DGB and its member unions contradict this. The most important information for employees.

DGB / 123rf.com / lineartestpilot / P. M. Pelz / maglara

What is the background? The employers rely on the case law of the European Court of Justice (ECJ) in their position that vacation reductions due to short-time work are permissible. In fact, there are judgments of the ECJ stating that reducing vacation entitlement for short-time work does not violate European law. Is it therefore permissible in Germany to reduce vacation entitlement for short-time work? In a legal assessment (download below) say the German Trade Union Confederation (DGB ) and its member unions: The argumentation and the principles that the ECJ cites in the corresponding judgments cannot be transferred to “cases of cyclical short-time work”, as currently prevailing in Germany due to the Corona crisis. In addition, the European Court of Justice only defined “minimum requirements”. The EU member states can deviate from these “minimum requirements” in favor of employees. The ECJ has expressly confirmed this with regard to vacation entitlement for short-time work. What does the Federal Vacation Act say? Here, DGB and trade unions come to the conclusion in their assessment: The Federal Vacation Act does not indicate that a reduction in vacation entitlement is permissible for short-time work the one for employees and their vacation entitlement with short-time work in Germany? “According to the opinion of the DGB and its member unions, employers are not entitled to reduce the statutory minimum vacation entitlement due to the cyclical short-time work, as has increasingly occurred on the occasion of the Corona crisis”, says it in the evaluation of DGB and trade unions. This possibility of shortening is “neither to be found in the German vacation law nor in the relevant case law of the Federal Labor Court”. The ECJ developed its case law on the calculation of vacation entitlements in the event of short-time working on the basis of a “special constellation” with a leave of absence that can be planned and configured from the outset. The ability to plan and free time arrangements are usually not given during the cyclical short-time work during the Corona crisis and the principles of the ECJ are therefore not transferable. What about “remaining leave” that employees in short-time work did not take in 2020? The DGB and its Member unions are of the opinion that the right to vacation leave during short-time work arises in full and continues unabated. As for the expiry of the vacation entitlement of short-time workers, here, as with the vacation entitlement of other employees, the ECJ (ruling of 06.11. 2018, Az. C-684/16) and adopted by the BAG (judgment of February 19, 2019, 9 AZR 541/15). This means that the entitlement to statutory annual leave only expires automatically at the end of the calendar year (Section 7 (3) sentence 1 BurlG) or the transfer period (Section 7 (3) sentences 3 and 4 BurlG) if the employee actually does was able to take his / her annual paid leave. This is only to be assumed if the employer even asks the employee to take the vacation if necessary and informs him that the vacation not taken will expire at the end of the calendar year or the permitted transfer period. If the employer demands the employee does not specifically advise to take the vacation and if he does not point out clearly and in good time that the vacation otherwise expires at the end of the vacation year or transfer period, the vacation entitlement remains in the following year and is added to the vacation entitlement for the following year The BAG has developed standards that can be used for short-time work. The parties to the collective bargaining agreement are free to agree that the collectively agreed additional leave can be granted at the end of the calendar year or the transfer period regardless of a corresponding notification from the employer llt. If, however, there are no clear indications that the parties to the collective bargaining agreement wanted to come to a regulation deviating from the statutory provisions, it can be assumed that the statutory vacation entitlement and the entitlement to additional vacation according to the collective agreement are in sync (BAG judgment of February 19, 2019, 9 AZR 541 / 15, paras. 35-36). In this case, the principle remains that the employer must ask the employees to take vacation. If he neglects to do this, the collectively agreed additional vacation entitlements of the short-time workers do not expire at the end of the calendar year (or the transfer period), but persist in the following calendar year – cumulative to the vacation entitlements of the new calendar year.

DGB board member Anja Piel DGB / Simone M. Neumann

DGB board member Anja Piel: “Vacation is there for relaxation and must not be cut in times of short-time work” “Vacation is for relaxation and must not be cut in times of short-time work. After all, short-time work is not comparable to part-time work or a sabbatical, where employees can also use the free time, ”says DGB board member Anja Piel. On the contrary: “The employer can end short-time work early and at short notice, for example when he receives a new job. That is not even subject to codetermination by the works council. Anyone who is on short-time work must also fulfill their obligations towards the Federal Employment Agency – for example, to report personally to the Employment Agency or to take on other mediated work at short notice. Anyone who does not do this must expect sanctions up to and including short-time allowances. That is really anything but free time management. ”No vacation cut due to cyclical short-time work“ Employers are not entitled to reduce the statutory minimum vacation entitlement due to cyclical short-time work. That would also significantly disturb the peace of the company, ”said Piel. “After all, it cannot be that those who took their annual vacation before the crisis were lucky and that everyone else looked into the pipe. This is discriminatory and arbitrary and applies all the more because not all areas within a company are equally affected by short-time working. Now to punish those with less vacation who had to accept less income due to short-time working is doubly unfair. ”“ Employers want to cobble on the consequences of the pandemic to the employees ”“ By reducing the vacation days, the employers want to cobble on further consequences of the pandemic to the workers and In the end, they say goodbye to solidarity, ”criticizes Piel. “The times by which the annual vacation was then reduced would have to be made up for with the short-time work allowance. That would end up being financially at the expense of the Federal Employment Agency. That can not be.”

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EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure not be perfect.

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