With labour law, we here consider the rules applicable to the employment relationship; it is intimately linked to the industrial relations system which structures the collective bargaining system. The working conditions in an individual employment relationship are governed both by individual and collective labour law. Instruments of labour law in this sense are only applicable to relationships based on private contract, thus excluding e.g. career civil servants (Beamte), which are covered by public law.

The origins of German labour law date back to the late 19th century, when the first trade unions emerged; they often organised works committees to demand the right of workers to represent their demands in their workplaces (especially factories).2 With the founding of the Weimar Republic in November 1918, the signing of the Stinnes-Legien3 Agreement between a number of employers’ associations and trade unions in the same month laid the foundation for what was then called the new labour constitution (Arbeitsverfassung).4 With the agreement, the employers’ associations and trade unions laid the foundation, among other things, for the regulation of working conditions through collective agreements, the regulation of which was then further implemented in December 1918 in the Ordinance on Collective Agreements, Workers’ and Employees’ Committees and Arbitration of Labour Disputes (Verordnung über Tarifverträge, Arbeiter- und Angestellten-Ausschüsse und Schlichtung von Arbeitsstreitigkeiten).

At the same time, the agreement created the conditions for the establishment of works councils (Betriebsräte) in companies, which was officially incorporated into legislation with the passing of the Works Councils Act (Betriebsrätegesetz, BRG) in 1920.5 While collective bargaining and works councils were abolished during the Nazi dictatorship (1933–1945), in the Federal Republic of Germany collective agreements have been reintroduced and ratified in the Collective Agreements Act (Tarifvertragsgesetz, TVG) since 1949; works councils are regulated in the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) since 1952 (revised, in particular, in 1972)—since 1990 expanded to the territories of the former German Democratic Republic.6

Germany has a dual system of employee representation. While trade unions are organised based on the principle of freedom of association and generally operate at the supra-company level, Works Councils are regulated by law in the BetrVG and operate on the level of undertaking.

Collective bargaining system: Unlike tripartite industrial relations system, the government in Germany is largely excluded from the collective bargaining; Art. 9 (3) German Constitution (Grundgesetz, GG) guarantees “collective bargaining autonomy” of social partners (Tarifautonomie). There are no formally regulated rules on union representativeness in Germany. However, longstanding jurisprudence establishes that in order to have the legal capacity to take part in collective bargaining (“Tariffähigkeit”), a trade union must not only meet formal conditions as to the internal statute, but also show that it can be effective and put the other side under pressure (social power, “soziale Mächtigkeit”). Courts acknowledge social power mostly according to membership and organisational strength.7

Industry agreements are typically negotiated at regional rather than national level. Only those collective agreements that are intended for general application on the basis of the Posted Workers Act (Arbeitnehmerentsendegesetz, AEntG) (see 2.3.3. & 3.1.2.) have to be negotiated on national level.

Works Council system: Works councils are elected in companies with normally five or more permanent employees (Sec. 1 BetrVG), and represent the interests of all employees to the employer, whether or not the workers are union members or have taken part in the election. It can conclude binding collective agreement with the employer (works agreements) (see 3.1.3.). A works council consists of a single person in small firms with up to 20 employees and grows in numbers commensurate with the size of the company (Sec. 9 BetrVG).

Corporate codetermination system: At the company level there is also a system of corporate codetermination (Unternehmensmitbestimmung), in which employees are involved in company decisions through representation on company supervisory boards. This system is restricted to large companies—firms with more than 500 employees must have worker representatives on their supervisory boards, alongside shareholder representatives. Employee representatives can be employees of the firm, but also external trade-union representatives.8 The proportion of employee representation on the supervisory board changes depends on the number of employees and on the sector:

This system of corporate codetermination is important for understanding the German cooperative industrial relations system. However, it relates to company law and corporate governance, and does not come with specific rules in labour law and on working conditions; that’s why it will not be covered further in this report.

According to Art. 20 (1) GG, Germany is a democratic and social state. Its social insurance system is based on the so-called “Bismarck model”. In the era of the German Reich, Chancellor Otto von Bismarck in the 1890s, welfare policies were implemented in the form of compulsory, state-regulated insurance systems, such as health insurance, accident insurance, and pensions. These policies were at the time also intended to push back against the growing influence of social democracy and socialist movements.

In the Bismarckian social insurance model of social security, benefits are not universal but connected to employment status or similar, with financial contributions shared between employers and employees.9 As a consequence, neither self-employed, non-workers nor career civil servants are included in this system. In this model, social insurance institutions (Sozialversicherungsträger) are self-governed, the Verwaltungsrat (administrative board/supervisory board) being elected in equal parts by workers/insured persons and employers. Elections (Sozialwahlen) take place every six years (see 7.1.).

There are five social insurance schemes, regulated by the Social Security Code (Sozialgesetzbuch, SGB) in several books. In 1995, Germany introduced long-term care insurance as the fifth and currently final pillar of the German social insurance system. Today, five branches are covered: Health (SGB V), long-term care (SGB XI), pension (SGB VI), unemployment (SGB III) and accident insurance (SGB VII, covering employers’ liablity for injuries at work). Social insurances are supplemented by numerous tax-financed state welfare programmes, such as income support (Sozialhilfe, SGB XII), but also parental allowance (Elterngeld) and other benefits.

In Esping-Andersen’s (1990) typology of modern Western welfare state models, Germany is classified as belonging to what he calls the conservative welfare model, as opposed to the liberal and social democratic.10 The conservative model tends to value traditional ideas of family responsibility, based on the idea of the male breadwinner and the woman as caretaker, prioritizing, for example, home-based long-term care for the elderly. According to this model, care work is largely privately organized, with women bearing the main burden of unpaid care work.11

Although labour law and in some instance social security today in many aspects also represent double earner models,12 the normative regulation of long-term care still largely reflects the familiaristic conservative model. For example, Sec. 3 SGB XI states that

Short-term care and outpatient care are prioritized over stationary inpatient care (Sec. 3 SGB XI).

The care sector in Germany is characterized by a mix of public, private non-profit (including church), and private commercial providers of inpatient (including hospitals) and outpatient care services.

Publicly owned facilities in the care sector are mainly operated by municipal bodies as well as by the federal states (Länder).

Charitable organisations of protestant (Diakonie) and catholic churches (Caritas) together with other private non-profit organisations such as Arbeiterwohlfahrt (AWO, Workers’ Welfare), Deutsches Rotes Kreuz (DRK, German Red Cross), Zentralwohlfahrtsstelle der Juden in Deutschland (ZWST, Central Welfare Office of the Jews in Germany) make up the sector “Freie Wohlfahrtspflege” in Germany (represented by Bundesarbeitsgemeinschaft der Freien Wohlfahrtspflege, BAGFW (Federal Working Group of the Freie Wohlfahrtspflege). Part of this network of non-profit institutions is also „Der Paritätische Wohlfahrtsverband”, an umbrella organisation for over 10.000 independent organisations in social and health sectors, among them Volkssolidarität (East-German welfare organisation), Arbeiter-Samariter-Bund Deutschland (Workers’ Samaritan Federation), Deutsche AIDS-Hilfe (Aids support), Sozialverband VdK Deutschland. In 2017, these organizations employed around 4% of all workers in Germany (2016: around 1.9 million).17

In addition, there are private commercial providers. Most of these organize care work in small-scale structures. But there are also commercial companies, such as Asklepios, Rhön, Helios und Sana, that organise large hospitals.

There are currently 1.887 hospitals operating in Germany, out of which 29% are publicly operated, 32% are operated by private non-profit organisations, and almost 38% are operated by private commercial providers.18 Hospitals employed around 686,000 out of almost 1,700,000 care workers in inpatient and outpatient care in 2021.19

Nationwide, there were around 16,100 fully or partially inpatient nursing homes licensed under SGB XI in December 2021. The majority of the homes (53% or 8,500) were run by non-profit organizations (e.g., Diakonie or Caritas); the share of commercial operators was 43%, with public providers having the smallest share at 5%. Of the total of 15,400 licensed outpatient nursing and care services, the majority were operated commercially (10,400 or 68%); the share of non-profit providers was 31% and public providers of only 1%.20 Particularly important is the role of the protestant and catholic churches with their charitable organizations Diakonie and Caritas, respectively, which collectively employ around two thirds of all employees in the non-profit sector; between 1960 and 1980, their numbers more than doubled, and grew at around 50% again between 1990 and 2000.21

Paid Care work has become an important part of the labour market in Germany and a sector in its own right, mainly due to the continuing need for care resulting from demographic factors (increasing life expectancy), social factors (increased labor market participation of women, decreasing disposition of women to take on private informal care), and work-related factors (decreasing willingness to work in care due to bad working conditions), the recognition of care as an independent part of social insurance, state-regulated and recognised training programmes for care workers, and specific labour law regulations governing various forms of care work.

Care work can be analysed and categorised as part of the so called SAHGE occupations, an acronym which refers to social work, household-related services, health and care, and education (Soziale Arbeit, Haushaltsnahe Dienstleistungen, Gesundheit und Erziehung).22 In labour market policy, the term “person-related services” (personenbezogene Dienstleistungen) is also used for care activities.23 The SAHGE occupations can be analysed (in part) with the help of the 8th occupational domain of the Classification of Occupations (Klassifikation der Berufe KldB 2010),24 a standardized classification system that was developed under the leadership of the Federal Employment Agency and its Institute for Employment Research (Institut für Arbeitsmarkt- und Berufsforschung, IAB) with the participation of the Federal Statistical Office and federal ministries as well as experts in occupational and empirical (social) research. It categorizes occupations according to their field of activity, realistically represents the current occupational landscape in Germany and at the same time offers a high degree of compatibility with the international occupational classification (ISCO-08, International Standard Classification of Occupations 2008). This system separates care work from academically trained health professions (such as physicians etc.).25 Similarly, Germany’s Federal Statistical Office categorizes care work under the heading of health care workers, but separates it from academically trained physicians.26

For the purposes of this report, we divide care workers in Germany into two main groups in order to analyse their position in the labour market and the labour regulations that apply to them: nursing staff and domestic workers. The former can be employed in different care settings such as hospitals, health clinics, nursing homes, and home care services, but perform different tasks and undergo different levels of training. Live-in workers, a sub-category of domestic workers, perform work exclusively in domestic households.

In the table below, we break down the two main groups of care workers into occupational categories (nursing assistants, nursing professionals, and health care professionals in nursing, domestic workers). These occupational categories partially correspond to the categories mentioned in the European Commission’s Communication on the European Care Strategy (home-based personal care workers, nursing associate professionals, and nursing professionals).27 We further divide them based on their function and level of training. We align these categories with the ones used by the report of the German Federal Employment Agency to better analyse the labour market characteristics in the German care sector later (see Section 2.1.4. for more details). For the sake of comparison with other EU countries, we use the European Qualifications Framework (EQF) 28 to which the German Qualifications Framework (Deutscher Qualifikationsrahmen, DQR) is adapted.29

The columns A1-A3 refer to functions: care/assistance to people with disability (physical and mental) (A1), elderly people (A2) and/or sick people (A3).

Table 1.

The German care sector is framed by social policy and, at least in part, financed by social insurance institutions (Sozialversicherungsträger) in accordance with the Social Security Code (SGB). Services are carried out by care service providers (Leistungsträger) who are employers of care workers. Patients (as insured persons) are entitled to benefits from insurance institutions, but (as customers) conclude contracts with the care service providers they choose. Thereby, a trilateral/triangular contractual structure is at the basis of care services. This design leads to the establishment of “quasi-markets”.30 In this triangular contractual structure, the risks are often shifted to customers and/or employees.

Long-term care insurance only establishes partial financing of care costs (Teilleistungsversicherung). Social security law places informal and formal care as well as non-profit and private service providers on an equal footing and into competition with each other (e.g. Sec. 3 SGB XI). Since working conditions in care are also decisively influenced by the scope of the legally regulated financing systems and personnel costs account for a high proportion of total costs, they are used in quasi-market economy systems as almost the only way to reduce costs.

The funding system can be explained with the example of long-term care: In order to be eligible for long-term care coverage, an individual has to be in need of care for at least six months (Sec. 14 (1) SGB XI) and have a degree of severity (“Pflegegrad”) specified in a legally defined five-point scale (Sec. 15 of the SGB XI).

In Germany, around 5 million people are beneficiaries of long-term care coverage, out of which 4.2 million are taken care of at home, mainly only by their relatives (2.553.000), followed by relatives assisted by outpatient care services (1.046.000), and 793.000 in full-inpatient care facilities.31 The familiaristic, “conservative” features of the German long-term care system is reflected in the way private care by family members or other persons is being promoted and partially financed by care insurance. Insured persons in need of care are entitled to the so-called “care allowance” (Pflegegeld, Sec. 37 SGB XI), the amount of which depends on the degree of severity of the condition of the person in need of care (“Pflegegrad”, from 316 Euro monthly in degree 2 to 901 Euro monthly in degree 5) (Sec. 37 (1) SGB XI). This allowance can but need not be used to employ care workers.32 Persons who are cared for at home can also use the additional benefits provided by Secs. 45a and 45b SGB XI for professional support in daily life (between 290 Euro (degree 2) to 800 Euro (degree 5), plus 125 Euro monthly). However, only the federal state Nordrhein-Westfalen has so far established criteria for the quality assurance of such services via the “Anerkennungs- und Förderungsverordnung” (AnFöVO (NRW) 2019).33

Another example is the funding of sick care in hospitals. Different laws regulate the funding of inpatient care: Nursing Workforce Strengthening Act (Pflegepersonal-Stärkungsgesetz, PpSG), Hospital Financing Act (Krankenhausfinanzierungsgesetz, KHG), Hospital Reimbursement Act (Krankenhausentgeltgesetz, KHEntgG), and Hospital Rate Ordinance (Bundespflegesatzverordnung, BPflV). Hospital reimbursement is based on a combination of per-case flat rates and a nursing staff cost allowance. Secs. 137i-k SGB V now set sublimits to improve nursing staffing, for example via the Nursing Staff Lower Limits Ordinance (Pflegepersonaluntergrenzen-Verordnung, PpUGV) which regulates the establishment of nursing staff sublimits in nursing-sensitive areas in hospitals. A government commission (Regierungskommission für eine moderne und bedarfsgerechte Krankenhausversorgung) proposed in December 202234 to change the system and reimburse hospitals based on criteria of retention services, levels of care, and service groups. The system of per-case flat rates would then be abolished. At the moment (summer 2023), the federal government is implementing these proposals in agreement with federal states and actors of the health sector.35 According to the Federal Health Ministry’s plans, 60% of clinics’ costs would in the future be covered by retention fees.

For the Nursing Professions Act (Pflegeberufegesetz, PflBG) see below 6.4.

Germany does not have a comprehensive Labour Code. Instead, labour law is regulated by the Civil Code (Bürgerliches Gesetzbuch, BGB) which regulates the employment contract (secs. 611a BGB), and numerous special acts, such as the Minimum Wage Act (Mindestlohngesetz – MiLoG), Federal Paid Leave Act (Bundesurlaubsgesetz – BUrlG), etc. (see 4–6). At the top of the hierarchy of labour law sources are the German Constitution and European Union law. Collective agreements as well as works agreements have binding effect and are therefore also sources of labour law. There is a special jurisdiction for labour law disputes, regulated by the Labour Courts Act (Arbeitsgerichtsgesetz, ArbGG).

There is hardly any specific statutory labour law regulation for the care sector. (Specific rules on working time are discussed under 6.1., specific rules for live-in-workers are discussed under 2.3.3.) Otherwise, specific rules are established by collective bargaining: While statutory laws serve as the base for minimum standards of all employees, further collectively established legal frameworks exist for care workers who work in the public sector or for church organisations. For instance, care workers who work in facilities operated by municipalities or other public-law institutions such as public hospitals are covered by the collective agreements for the public sector (see 3.2.2.).

As for church institutions, including Caritas and Diakonie, the constitution (Art. 140 GG, referring to Art. 137 (3) of the Weimar Constitution) is largely understood as granting rights of self-determination to the Christian churches, including the freedom to regulate employment relationships. In other words, the protestant and catholic (regionally organised) churches have established their own labour law in Germany (for care see below 3.2.2.). Due to the important role of these employers in the care sector, a specific mechanism for the general applicability of collectively established minimum standards has been regulated (see 3.2.3.).

After the attempt of using this mechanism for extending a collective agreement for minimum conditions in care failed in 2021 (see 3.2.3.), the legislator opted for an indirect regulation of working conditions in long-term care, via incentives in social security law. In particular, since September 2022, service contracts funded by social insurance institutions can only be concluded with providers who guarantee the minimum standards of a collective agreement (or a respective church regulation, see 3.2.2.) (Sec. 72 Abs. 3 Satz 1 Nr. 2, Abs. 3a, Abs. 3b SGB XI, so-called compliance with collective agreements (Tariftreue)).36 According to Sec. 82c Abs. 1 und 2 SGB XI, social insurance institutions are now no longer allowed to decline funding for the economic consequences of collective bargaining.

According to the 2021 report of the German Federal Statistical Office,37 which also includes marginally employed care workers, more than 1.2 million people were employed in inpatient (excluding hospitals) and outpatient care. Inpatient care employed 814.042 people, with nearly two-thirds (63%) or 577.144 working part-time and less than one-third (27%) or 236.898 working full-time. 82% of the employed were women. The most common age group is 50–60 years old (28.9%), followed by 40–50 years old (20.4%), 30–40 years old (18.7%), 20–30 years old (14.9%), 60–65 years old (11.2%), 65+ years old (3%), and under 20 years old (2.8%). Outpatient care, on the other hand, employed 443,000 people, most of them part-time (279.090 or 68%) and 124,040 (28%) full-time. 85% of the employees were women. The most common age group is 50–60 (27.8%), followed by 40–50 (23%), 30–40 (22.4%), 20–30 (12.4%), 60–65 (9.7%), 65+ (3.5%) and under 20 (1.2%).

On the other hand, the recent report of the Federal Employment Agency (BA Report) offers the most comprehensive analysis of the labour market situation in the German care sector to date.38 It distinguishes nursing staff according to their professional training: health professionals in nursing, nursing professionals, and nursing assistants, and their workplace (hospitals, inpatient care, and outpatient care). These categories are equivalent to the units of analysis outlined in 2.1.2.

The BA report shows that in 2021 there were 1.7 million employees39 working in inpatient (including hospitals) and outpatient care, which corresponds to 23% of the total 6 million employees in the German health sector. Out of 1.7 million employees in nursing occupations, nursing professionals are most represented with 1.1 million employees (63%), followed by nursing assistants with 448.000 employees (29%); the remaining 8% (about 20.000) are health professionals in nursing.

In terms of workplace setting, 686.000 (40%) care workers were employed in hospitals, 506.000 (30%) in inpatient care (including full and partial inpatient care), and 280.000 (17%) in outpatient care, totalling 1.500.000. The rest of 200.000 are most likely employed through agencies and not directly by care providers. Out of the 1.5 million employed in the three workplace settings, nursing professionals are most prevalent, with 79% (541.940 out of 686.000) working in hospitals, 49% (247.940 out of 506.000) in inpatient care, and 55% in outpatient care (154.000 out of 280.000). In the same order, nursing assistants make up 11% (hospitals) (75.460), 47% (inpatient care) (237.820), and 39% (outpatient care) (109.200) of the nursing workforce, while health professionals in nursing make up only 10% (68.600), 4% (20.240), and 6% (16.800) of the nursing workforce, respectively.

According to the BA report,40 the number of unemployed nursing staff has been declining over the longer term, and the Corona pandemic-related increase in unemployment has been below average. The unemployment rate in nursing occupations (2.6%) in 2021 was significantly lower than the rate across all occupations (about 5.5%). On average, 46.000 nursing staff were registered as unemployed in Germany in 2021, compared to 42.000 in 2017, 40.000 in 2018, 40.000 in 2019, and 42.000 in 2020.

Unemployment particularly affects nurses who are looking for a job at the assistant level. For instance, in 2021 out of 46.000 registered unemployed nursing staff, 37.000 (81%) were nursing assistants against an average of 7.000 (16%) nursing professionals and 1.000 (3%) of health professionals in nursing. This ratio has not significantly changed in the past ten years. Two-thirds of unemployed nursing assistants do not have any completed vocational training (25,000), 8,000 have training outside their field, and only 4,000 have completed training in nursing.

Considering long-term unemployment among nursing staff, in 2016 the share of long-term unemployed among all unemployed nursing staff was 30% (37% in the whole labour market); it fell to 25% in 2020 (30% in the whole labour market). Of the unemployed nursing professionals, only 15% were long-term unemployed. Over the course of the Corona pandemic, however, there was a marked increase in long-term unemployment—as across all occupations. After an increase of seven percentage points, the share of long-term unemployed nursing staff averaged 32% in 2021, still seven percentage points lower than across all occupations (39%). The reason for this is likely to be the Corona pandemic-related restricted job filling processes that affected other professions more.

In 2021, nursing staff were unemployed for an average of 202 days, 68 days less than all unemployed persons (270 days) in the overall German labour market. The unemployment period for nursing professionals was on average 128 days, while for nursing assistants it was 226 days. Unemployment thus primarily affects nursing assistants without a finished nursing qualification. By contrast, nursing professionals and nursing assistants who have completed nursing assistant training are generally much less likely to be affected by unemployment or can end it within a short period of time.

Against the backdrop of growing demand for nursing staff in recent years, an average of 36.000 vacancies for nursing staff were registered at the Federal Employment Agency in 2021. The number and proportion of unemployed persons for jobs in this area (46.000) considerably exceeded the number of vacancies reported (36.000 or 80%). The clear majority of job offers were directed at nursing professionals (24.000). Only a good quarter of the job offers were directed at unemployed persons with an assistant (9.000) and 7% to the health professionals in nursing (3.000). There are only 31 unemployed nursing professionals compared with 100 registered vacancies for nursing professionals. In the case of nursing assistants, on the other hand, the picture is quite different: Here, the number of unemployed nursing assistants outweighs the number of jobs, and there are 405 unemployed compared to 100 registered jobs.

Half of the nursing vacancies registered at the Federal Employment Agency in 2021 were offered by inpatient (25%) and outpatient care facilities (25%). 12% of all nursing jobs reported as vacant to the Federal Employment Agency were available in hospitals. The proportion of vacancies reported by temporary employment agencies was at 24%.

According to the BA report, nursing occupations are predominantly carried out by women. While there were more men (54%) than women (46%) in the German labour market as a whole, 83% of employees in the care sector were women, with only 17% men. Given that more women (83%) than men take nursing professions, the unemployment rate is higher among women in these professions. While in 2016, women composed 80% (45% in the entire labour market) of all registered unemployed nursing staff, their percentage slightly fell to 78% in 2021 (44% in the entire labour market).

The BA report further indicates that around 66% of nursing staff is younger than 50, and the average for all employees in the German labour market as a whole is only slightly lower (64%). Even beyond 50, there is no difference in the age distribution, and the share of employees who have passed the age of 60 is at about the same amount of 9% in the care sector and in employment in general. There is only a noticeable difference in the proportion of nurses under 25, which at 13% in 2021 was significantly higher than across all occupations (10%). The proportion of employees with dual vocational training is above average in nursing, while that of university graduates is below average—the BA report does not provide any figures. Unemployed nurses are younger on average than the unemployed in the whole labour market. In 2021, the proportion of unemployed nurses younger than 50 was 78%, compared with only 66% across all occupations.

To alleviate the shortage of skilled workers, the care sector is increasingly relying on foreign workers, even though the language barrier and professional recognition are major hurdles in some cases. All of this is reflected in a growing proportion of employees without German citizenship. While the proportion of foreigners among employed care workers was still a good 7% in 2016, it rose to a good 13% by 2021 (+108.000 employees to 218.000) and to 16% (270.460) by March 2023.41 This means that the proportion of foreigners in the care sector is roughly on a par with the German labour market as a whole (for live-in workers, see 2.3.1.).

By residency status, third-country nationals make up the majority of foreigners working as nursing staff with 120.000, followed by EU citizens with 88.000, and asylum seekers with about 16.000. The number of asylum seekers in the care sector increased significantly after 2015 (when only 2.000 asylum seekers were employed in the care sector); in this year the number of asylum seekers increased sharply (so-called “refugee crises”) (in 2015 there were only). The top five countries of origin of foreign nursing staff employed in Germany have not changed between 2016 and 2021: Most foreign care workers came from Poland, Bosnia and Herzegovina, Turkey, Romania, and Croatia. Foreigners constituted 20% registered as unemployed nursing staff in 2016 and rose to 28% in 2021 (13.000; 33.000 unemployed German nationals)—one third (around 4.333) came from one of the eight main countries of origin of the refugees.

There is a difference between Germans and foreigners in the level of their professional training working in the care sector: while almost two-thirds of employed Germans are nursing professionals, the figure for foreign employees is half.

The exact number of live-in workers in Germany is hard to determine. On the one hand, because home care is not financed (directly) from long-term care insurance benefits (see 2.1.4.), and on the other hand, because of the high number of undeclared and irregular employment of live-in workers, most of whom commute from abroad. Estimates range from about 160.000 German households employing migrant caregivers to about 500,000 migrant caregivers.46 Similarly, estimates from non-governmental organizations suggest that between 300,000 and 700,000 live-in workers were working in Germany in 2020/2021.47

Slightly more than 90% are supposed to be female. Their average age is around 50 years old.48 As a rule, they do not have their own household in Germany. They usually work for two to three months in a private household in Germany and then return to their country of origin for several weeks (commuter/pendulum/circular migration).49 The majority commute from Central and Eastern EU countries, especially Poland (almost 50%),50 and about 133,000 come from non-EU countries, mainly from Southern and Eastern European countries (Serbia, Ukraine, etc.).51

Most of the live-in-workers are posted by agencies from other EU countries.52 According to research by Minor, in 2007, there were 28 agencies in “24-hour care” employment in Germany; in 2017, there were already around 400 agencies, and in February 2022, the online comparison portal “24h-Pflege-Check” listed 784 German providers working together with providers from other EU countries who do the posting.53

It used to be common to summarize the possible contractual forms for live-in work as employment, self-employment, and posting of workers.54 This categorising is however slightly misleading. Employment contracts and civil-law contracts (self-employment) are the only contractual forms available for this kind of work (see 4.1.). Agencies who are in most cases involved as intermediaries between household and live-in worker and which often post live-in workers to Germany from other EU-countries conclude or broker employment contracts or civil-law contracts (self-employment).55

Scholars who have assessed the typical live-in situation in employment law terms usually conclude that the typical live-in work relationship is one of employment or bogus self-employment.56

The transnational character of this employment entails the question which law is applicable to the employment relationship. This concerns both labour law and social security law (EU social security coordination regulations 883/2004 and 987/2009). Many agencies rely on posting rules, although in practice the live-in worker only ever works in Germany. Agencies tend to obscure the fact that the contract is concluded for work in Germany by contractually establishing additional and minor service obligations in the host country (such as recruiting of co-workers). Closer looks show that these are mostly just on paper, leading to what one could call bogus posting.57

In the case of a posting, the employment relationship is generally governed by the law of the country of origin (Art. 8 Rome I Regulation). In addition, the posting of workers regulation superimposes another legal system by establishing the application of minimum standards of the host country. According to Sec. 2 AEntG (which implements the Posting of Workers Directive 96/71/EC in German law), most minimum standards under German law must be applied to the employment relationship—provided the workers can be classified as “employees” (Sec. 611a BGB) (see 4.1.).

There are no specific legal rules for this type of work in Germany. However, according to Sec. 1 (2) 1 Occupational Safety and Health Act (Arbeitsschutzgesetz, ArbSchG), domestic workers are excluded from health and safety law. Nevertheless, they are included in the Working Time Act (Arbeitszeitgesetz, ArbZG). In June 2021, the Federal Labour Court (Bundesarbeitsgericht, BAG) decided on the understanding of on-call work in these cases and held that most of the on-call time of the live-in-worker concerned had to be considered working time for which minimum wage had to be paid (BAG, decision of June 24, 2021 – 5 AZR 505/20).58

Sec. 10 (1) ArbZG allows for exceptions to the prohibition of work on Sundays in cases of “treatment, care and supervision of persons” (Sec. 10 (1) 3 ArbZG) or for activities “in the household” “insofar as the work” “cannot be performed on working days” (Sec. 10 (1) 4 ArbZG). There is a doctrinal debate as to the application of Sec. 18 (1) 3 ArbZG to live-in-work.59 According to this provision, employees who live in a household with the persons entrusted to them and who raise, care for, or look after them autonomously, do not fall within the scope of working time protection. The prevailing expert opinion is that the exemption (that was created in view of SOS children’s villages) does not apply to live-in employees in private households.60 Moreover, an extension of the scope of application to live-in workers would be highly problematic from a constitutional point of view because the legislator has a constitutional mandate and obligation to protect health and safety even of “self-employed” persons working in strong power imbalances.61

In the event of labour law violations, live-ins can assert their rights before German labour courts (for posted workers, see Sec. 15 AEntG), but they encounter numerous hurdles. The landmark case of a Bulgarian live-in worker posted to Germany, which was decided by the German Federal Labour Court in June 2021 (see above BAG, decision of June 24, 2021 – 5 AZR 505/20), was supported and represented by the trade union organisation “Faire Mobilität”. However, live-ins seem to prefer to enforce their rights in Polish courts, with little success.62

Germany ratified ILO Convention No. 189 on “Decent Work for Domestic Workers” in 2013; it became effective in September 2014.63

As a signatory to the Convention, Germany is subject to a regular review according to ILO rules which takes place every five years by the ILO’s Committee of Experts for the Implementation of the Conventions and Recommendations (Sachverständigenausschuss für die Durchführung der Übereinkommen und Empfehlungen). In the first review in 2020, the committee called on Germany to outline how domestic workers are informed about their rights. In addition, the German government has to outline how domestic workers are protected from abuse, harassment, and violence in the workplace and how they are informed of the protections in place. It invites the German government to consider incorporating definitions of domestic work and domestic worker into national legislation or collective agreements that take into account the specific characteristics of domestic work and domestic workers. The Committee also called on the German government to provide information for the upcoming State Report on the fact that measures have been taken to include the workers mentioned in Sec. 18 (3) ArbZG within the scope of protection of ILO Convention No. 189. The number and nature of related complaints should be recorded and reported to the Committee (Domestic Workers Convention, 2011 [No. 189] - Germany, Direct Request’ (adopted 2020, published 109th ILC session [2021]).

Freedom of association and collective bargaining autonomy are guaranteed in Art. 9 (3) GG. Freedom of association on the one hand establishes the individual freedom of association of workers, on the other hand it also grants rights for coalitions themselves, including both trade unions and employers’ associations.86 These rights include “collective bargaining autonomy” of social partners (Tarifautonomie) (see above 1.1.2.). It also guarantees the right to strike and collective action (without expressly mentioning it).

Trade unions must be formed freely and voluntarily with the purpose of improving working conditions, including engaging in labour disputes. They are independent of third parties in terms of personnel, financial, and organizational matters. In order to be able to take part in collective bargaining, they must also own some “social power” (above 1.1.2.).

The TVG regulates collective bargaining which can take place on the sectorial level between trade unions and employer associations, or on company level between trade unions and individual employers/firms. The resulting collective agreement (TV) governs the rights and obligations of the parties to the TV (Sec. 1 (1) TVG) and the employment contracts of their members. According to Sec. 4 (1) TVG, normative clauses only cover employment contracts between trade union members and an employer who is a member of the employer’s association that signed the respective collective agreement (or has signed the collective agreement himself). However, each employer may individually decide to make standards of collective agreements binding on the level of the individual employment contract by means of a reference clause.

Collective agreements take precedence over employment contracts and works agreements (Secs. 77, 87 BetrVG).87 While collective agreements are often time limited, their legal provisions continue to apply until they are replaced by another agreement (Sec. 4 (5) TVG; similarly Sec. 77 (6) BetrVG).

Collective bargaining standards can be made binding within their scope by a declaration of general applicability which binds employers not bound by collective agreements and their employees (so-called “outsiders”). The following instruments exist in order to extend the normative effect of a collective agreement to outsiders:

a) Under Sec. 5 TVG the Federal Ministry of Labour and Social Affairs may declare a collective agreement to be generally binding (Allgemeinverbindlicherklärung) at the joint request of the parties to the collective agreement if the declaration of general applicability appears to be in the public interest. A committee consisting of three representatives of each of the central organizations of employers and employees on federal level (“Tarifausschuss”, collective bargaining committee) has to agree. Due to changes in the general policy of the Confederation of German Employers (Bundesvereinigung der Deutschen Arbeitgeberverbände, BDA), it used its de facto veto position in this committee since the 2000s; few agreements have been declared generally binding since.88

b) To compensate for the weaknesses of the veto position of social partners in the Tarifausschuss, Secs. 7, 7a AEntG enable the Federal Ministry of Labour and Social Affairs to make the legal standards of a collective agreement binding for all employers and employees within the scope of the collective agreement by means of a statutory order/Ordinance. Here, too, the prerequisite is a joint application by the parties to the collective agreement. The collective bargaining commission has to be consulted, but its agreement is not required. The collective agreement must have nationwide scope to be eligible for this instrument. This instrument only allows for the extension of “minimum standards”, in contrast to Sec. 5 TVG, which also allows for the general applicability of “adequate” standards.

c) For trade unions and employers’ associations with members who are active in the temporary employment sector and who have agreed on minimum hourly wages in the area of temporary employment that are subject to nationwide collective bargaining agreements, Sec. 3a AÜG provides for a special regulation. Procedures are similar to those of the AEntG.

Ver.di is the largest trade union in the care sector, with a high level of collective bargaining activity and all together 1.955.080 members.89 It is associated to the DGB (which in turn is a member of ETUC). ver.di also represents employees in the following sectors: transport, public services, retail, finance, post, telecommunications, the graphical and media sector. The trade union komba represents employees on the municipal and regional levels and is a sectorial organisation of the association “dbb beamtenbund und tarifunion”; it is of minor importance in the care sector. The newly (2020) founded Bochumer Bund specialises in professional carer workers.90 The trade union Public Service and Services Union (Gewerkschaft Öffentlicher Dienst und Dienstleistungen, GÖD), a member of the Christian Trade Union Federation of Germany (Christlicher Gewerkschaftsbund Deutschlands, CGB), also organises workers in the care sector. Both, the dbb and the CGB, are members of the Confédération Européenne des Syndicats Indépendants (CESI), but not of the ETUC.

The unions do not publish their respective degree of organization to avoid drawing conclusions about their concrete ability to action. Only estimates are possible. Ver.di is estimated to have an organisation rate in the care sector of approx. 9–12% (2017).91 Ver.di is also committed to the interests of care workers through its trade union organization “Berliner Krankenhausbewegung” (Berlin Hospital Movement). The low level of organization is the main challenge of the trade unions in the care sector. For example, workers in metal industry are much more organized, with an average level of organization of 21.9%.92

When ver.di concluded a collective agreement on minimum conditions with an employers’ association in 2021 and requested that it be declared generally binding (see 3.2.3.), the Arbeitgeberverband Pflege e. V. (Employer association for care work) questioned whether ver.di had sufficient “social power” in the care sector to enter into a collective agreement, i.e. whether ver.di was a “trade union” at all in this sector. However, the BAG ruled that social power and thus the ability to conclude collective agreements is not sector-specific, but must be established for the union as a whole.93 Therefore, ver.di is legally considered to be a trade union for all its members and for all the sectors it covers, including the care sector. On the other hand, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in 1964 recognized an organization of catholic domestic workers as a party to a collective bargaining agreement, even though the organization had expressly declared that it neither wanted nor was able to take industrial action. The decision assumed that the “natural antagonisms that otherwise exist between employers and employees” would not work in this sector.94

Representation of employers in the care sector is highly fragmented. Details on the provider structure can be found under 2.1.1. The three largest employers’ associations in the care sector are: Arbeitgeberverband Pflege e.V. (AGVP), bpa Arbeitgeberverband, and Vereinigung der kommunalen Arbeitgeberverbände (VKA). AGVP has published figures according to which it represents 955 member companies with 80,000 employees. Also bpa Arbeitgeberverband has published figures: It represents 6000 member companies with 230,000 employees. An association of providers of elderly care (Bundesvereinigung Arbeitgeber in der Pflegebranche (BVAP)) has been formed exclusively with the aim to establish a representative collective agreement in elderly care that could in the future be declared generally applicable (see 3.2.3.).

Furthermore, the interests of care workers are represented by non-governmental organisations. The following NGOs are committed to care workers:

Table 2 – NGOs committed to care workers.

The composition of the nursing commission (Sec. 12 AEntG, 8 members) gives an idea of the importance of these organisations in the care sector (excluding hospitals). Represented are on the employees’ side are one representative each of Caritas and Diakonie employees, two representatives of ver.di, and on the employers’ side, one representative each of Caritas and Diakonie, one representative of bpa-Argeitgeberverband, and one representative for a coalition of DRK, VKA, and AGVP.

Nursing chambers (Pflegekammern), public institutions with an obligatory membership of professional care workers, are other public actors that have been established in the federal states Rheinland-Pfalz (2016) and Nordrhein-Westfalen (2022); Baden-Württemberg is in the planning phase. It is an institution for the professional self-governed representation that is meant to contribute to the development and distribution of quality standards in care work. A Federal Nursing chamber which represents the existing nursing chambers on state level, exists since 2019. The nursing chambers in Schleswig-Holstein and Niedersachsen were abolished in 2021.95 In both states a clear majority of the members voted for the dissolution of the chambers (70.6%96 in Niedersachsen, 91,8%97 in Schleswig-Holstein).

Because of different statuses of service providers, the care sector is highly fragmented when it comes to setting collective working conditions. Accordingly, working conditions and wages are heterogeneous, both in comparisons between branches and between providers/companies.

In the public sector, mainly the TVöD applies, differentiated according to the public services on the federal and municipal levels level (TVöD-B and TVöD-K) (see 5.2). Also, in public sector collective bargaining, there are still some differences between the “Western” collective agreement area (that covers former West Germany) in contrast to the “Eastern” collective agreement area (that covers former East Germany.

The sector of private non-profit organisations (“freie Wohlfahrtspflege”), with the exception of church organisations, is also mainly covered by collective agreements, such as the company agreement for the German Red Cross (TVÜ-DRK), for AWO (TV AWO), or for some hospitals (TV GS (Gesundheitsschutz und Demographie – health protection and demography). For the large number of small non-profit institutions organised in the Paritätische Wohlfahrtsverband (see 2.1.1.), the organisation proposes general conditions for employment contracts (Arbeitsvertragsbedingungen, AVB).98 Many non-profit and private-sector organizations have long been modelling their employment contracts on the collective agreements of the public sector, mostly by means of references in their employment contracts.

As far as the Christian churches and their organizations (Diakonie and Caritas) are concerned, many of them reject the conclusion of collective agreements in the sense of the TVG (“Second Way”). Instead, with reference to the church autonomy constitutionally guaranteed (see 2.1.4.), they establish working conditions based on church law, through their own labour law commissions (Arbeitsrechtliche Kommissionen). These commissions (in which trade unions are represented) elaborate general conditions for employment contract, so-called guidelines, (Arbeitsvertragsrichtlinien, AVR) which are then included in the individual employment contracts (“Third Way”). These guidelines are modelled on the TVöD. The BAG approved the “third way” in principle in 2012, stating that church institutions may replace the right to strike with their own “cooperative” conflict resolution procedures if these meet certain minimum requirements as to trade union participation.99

In 2022, 55% of care workers in Germany worked in a company covered by a collective agreement, in comparison to 51% in the German labour market as a whole. At the same time, only 28% of companies in Germany’s healthcare and social services sector are bound by collective agreements, in comparison to 25% in the German labour market as a whole.100 This can be explained by the fact that large companies with large workforces in particular are bound by collective agreements, both in the healthcare and social services sectors and cross-sectorial.

Against the background of the fragmented structure of collective bargaining in the care sector, and the difficulties of integrating the Christian churches in collective bargaining autonomy, the statutory mechanism of AEntG for the setting of minimum standards on the basis of collective agreements does not work in the care sector. Therefore, special rules were introduced for this sector.

Firstly, according to Secs. 10–13 AEntG, the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, BMAS) can declare minimum working conditions to be generally applicable, if they are recommended by a Nursing Commission (Pflegekommission) set up specifically for this purpose. This applies to care workers in outpatient, day-care or inpatient care services, but not to employees in hospitals (Sec. 10 AEntG). The Commission is composed of employee and employer representatives of non-church and church service providers as well as representatives of the employers’ association and the trade union ver.di. On this basis, ordinances on mandatory working conditions for the care sector (PflegeArbbV) have been regularly issued. At the moment (spring 2024), the minimum wage in the German care sector is set via the Sixth Nursing Working Conditions Ordinance (6. Pflegearbeitsbedingungenverordnung, 6. PflegeArbbV) which will be in force until June 30, 2026.

Secondly, in the event of an extension of a collective agreement, Sec. 7a (1a) AEntG determines that in the care sector, such declaration of general applicability needs the written consent of the church organizations that have established working conditions according to the “third way” (with the help of labour law commissions, see 3.2.2.). In 2021, ver.di and BVAP concluded a collective agreement on minimum wages for the sector of elderly care.101 The attempt, however, failed in 2021, due to the rejection by Caritas’ labour commission.102

Shortly after this failed attempted, the rules on “compliance with collective agreements” in long-term-care were established by law (see 2.1.4. and 5.4.).

Although there is no specific legislation on collective labour law with regard to care workers, general rules may affect them in particular ways. However—and although demands for a more restrictive law on industrial action are regularly voiced103—there is no general proportionality principle in German strike law.104 Also, no general restrictions of strikes in “essential services” or specific sectors as permitted by international law105 are recognized in German law.

The employer may not unilaterally order emergency work during a strike. However, the need to conclude emergency service agreements (“Notdienstvereinbarung”) that specify which workers have to work during a strike in order to carry out the necessary emergency work, may restrict the right to strike. Although emergency service agreements are not in principle a requirement for the lawfulness of collective action, in the event of disagreement over emergency services one of the two sides may apply to the labour court.106 The labour court shall issue an emergency regulation if the principle of proportionality, which balances the competing fundamental rights and requires the least possible interference, so requires. Usually, employer and trade-union conclude an emergency service agreement before the strike begins. However, in the sector of elderly care, usual staffing levels are already so precarious that an emergency staffing may correspond to them and therefore make a strike run empty.107

There have been several strikes by ver.di in hospitals in the last years, mostly on the question of staffing levels (see below 6.2.3.). In 2021, there was a strike in Berlin. In 2022, in the context of a strike at six university hospitals in North Rhine-Westphalia, the Regional Labour Court held that the strike was lawful.108

In the following summary, we only mention examples taken from TVöD-B at the municipal and federal level as example for collective agreements in the German care sector. Annex 1, Part B Nr. XI TVöD-B regulates the Entgeltgruppen for employees in healthcare professions: Nursing assistants without a degree are classified in P 5 or P 6 (with at least one year training) (2,376 euros – 2,473 euros)131 and nursing professionals with three-year training who graduate with a state examination in P 7 or P 8 (2,932 euros – 3,108 euros). The Entgeltgruppen E 9b to E 12 are reserved for employees with a university degree (Sec. 1 TVöD-B, Annex 1 Part B Sec. XI; Annex E). Nurses with further specialized training are classified in P 9 up to P 16 (3,373 euros – 4,490 euros).

The Entgeltstufen, in turn, are based on the length of service with the employer. Relevant professional experience with other employers is taken into account. In the case of care workers, there are special provisions on the waiting time to the next Entgeltstufe in Sec. 16. Accordingly, care workers reach Entgeltstufe 2 after one year in Entgeltstufe 1, Entgeltstufe 3 after three years in Entgeltstufe 2, Entgeltstufe 4 after four years in Entgeltstufe 3, Entgeltstufe 5 after four years in Entgeltstufe 4 and Entgeltstufe 6 after five years in Entgeltstufe 5. In order to reach Entgeltstufe 3 and Entgeltstufe 4, care workers without state exam (P 5, P 6, P 9) must work one year longer than other employees within the scope of the TVöD-B. However, the terms of the Entgeltstufen may be shortened or extended in exceptional cases if the employees’ performance is significantly above or below the average.

In 2022, compared to other employees in the public sector, the collective wage for nursing staff with three years of education and maximum work experience (3,654 euros, P7 Entgeltstufe 6) were higher in the care sector than the average monthly gross salaries of public sector employees with three years of professional training and maximum work experience (3,421 euros, E7 Entgeltstufe 6). However, the situation is different for nursing assistants without professional training but with maximum work experience, whose minimum salary (3,042 euros, P5 Entgeltstufe 6) is lower than that of public sector employees with a similar level of training and maximum work experience (3,184 euros, E5 Entgeltstufe 6). Nursing assistants with one year of vocational training and maximum work experience earn slightly more (3,392 euros, P6 Entgeltstufe 6) than public sector employees with a similar level of training and maximum work experience (3,314 euros, E6 Entgeltstufe 6). By way of comparison, according to the Employment Contract Guidelines for Diakonie Institutions (Arbeitsvertrags Richtlinien für Einrichtungen der Diakonie 2022, AVR, belonging to the protestant churches)132 which has its own pay scale, nurses with maximum professional experience earn euros 3,217 gross per month in Entgeltgruppe 5 (EG 5, Entgeltstufe 4) and euros 3,845 in Entgeltgruppe 7 (EG 7, Entgeltstufe 5).

Inconvenience pay is generally regulated by collective agreements or works agreements. For the limitation of working time, see 6.1. Here are the rules of TVöD as an example:

1) Overtime: Sec. 7 (7) TVöD defines overtime as hours worked at the employer’s request which exceed the regular working hours of full-time employees. While employees should not work beyond the working hours agreed upon in their contract with the employer, employers may include a special clause in the contract specifying a certain number of overtime hours that may already be included in the salary (for limits on overtime, see 6.1.).133 Whether overtime is remunerated or converted into time off depends on which collective, company or individual contractual regulations apply. Overtime surcharges are regulated, for example, in Sec. 8 (1) TVöD.

2) Sunday and holiday rest remuneration: As compensation, employees who work on these days receive a compensatory day off (Sec. 11 (3) ArbZG), or remuneration by collective agreement (e.g. Sec. 8 (1) TVöD: 25% Sunday work; 35% for holiday work that has been compensated by days off; 135% for holiday without time compensation). Sec. 8 (1) TVöD also stipulates a benefit of 20% for work on Saturdays. On the limits on sunday work, see 6.1.

3) For night work (for the definition, see 6.1.), the employer has to give the employees an appropriate number of days off or a wage supplement (Sec. 6 (5) ArbZG). A wage supplement is normally given as a surcharge on the respective gross hourly wage (usually this is 25%–30%).134 Sec. 8 (1) TVöD provides for 20%.

4) On-call work (for limits, see 6.1.): Sec. 8 (3) TVöD: A daily flat rate per pay group is paid for on-call at home (Rufbereitschaft).135 This amounts to twice the collectively agreed hourly rate of pay for the days Monday to Friday, and four times the collectively agreed hourly rate of pay for Saturday, Sunday and public holidays. If the on-call at home is interrupted in less than twelve hours, then 12.5% of the collectively agreed hourly pay is paid for each hour of on-call at home in accordance with the pay scale. Moreover, for employees whose work regularly and to a not insignificant extent includes on-call time (Arbeitsbereitschaft), half of the on-call time shall be counted as working time (Sec. 9 (1) TVöD).

5) Shift work: Employees who constantly perform alternating shift work receive an alternating shift allowance of 105 euros per month. Employees who do not constantly perform alternating shift work receive an alternating shift allowance of 0.63 euros per hour (Sec. 8 (5) TVöD). In addition, Employees who constantly perform shift work receive a shift allowance of 40 euros per month. Employees who do not perform shift work continuously receive a shift allowance of 0.24 euros per hour.

6) Hardship allowances: Nursing staff can benefit from special hardship allowances due to the nature of their work. These allowances are usually regulated in collective agreements are paid as surcharges insofar as the exceptional hardship is not adequately taken into account by suitable precautions, in particular with regard to occupational health and safety. As a rule, the surcharges amount to 5% (121 euros) to 15% (365 euros) of the hourly portion of the monthly table remuneration of Entgeltstufe 2 of Entgeltgruppe 2 (Sec. 19 (4) TVöD). For nursing staff employed as civil servants (if that still exists), allowances are regulated in the Sec. 21 Hardship Allowance Ordinance (Erschwerniszulagenverordnung, EZulV).

Other wage supplement and bonuses or other additional payments are generally set out in individual employment contracts or regulated by collective agreements and works agreements. As an example, here are the rules of TVöD:

1) Special Annual Payment (Jahressonderzahlung) (Sec. 20 TVöD): employees who are in an employment relationship on December 1 are entitled to an annual special payment. For employees covered by the Western collective agreement area, this amounts to 90% of the basic salary in Entgeltgruppen 1 to 8, 80% in Entgeltgruppen 9 to 12, and 60% in Entgeltgruppen 13 to 15. For employees to whom the regulations of the Eastern collective agreement area apply, the annual special payment amounts to 75% of the percentages specified for the Western collective agreement area.

2) Other special payments (Besondere Zahlungen) (Sec. 23 TVöD): (1) In accordance with the German Capital Formation Act (Vermögensbildungsgesetz, VermBG), as amended, employees whose employment is expected to last at least six months are entitled to capital-forming benefits. For full-time employees, the capital-forming benefit amounts to 6.65 euros for each full calendar month (Sec. 23 (1) TVöD). According to Sec. 23 (2) TVöD, employees receive an anniversary bonus (Jubiläumsgeld) upon completion of a period of employment: for 25 years the amount of 350 euros, and for 40 years the amount of 500 euros. Part-time employees receive the anniversary bonus in full. And Sec. 23 (3) TVöD establishes that in the event of the death of an employee, a grant is paid to the spouse or civil partner within the meaning of the Civil Partnership Act (Lebenspartnerschaftsgesetz, LPartG) or to the children.

The Occupational Safety and Health Act (ArbSchG) implements EU-Directive 89/391/EEC.

According to Sec. 3 ArbSchG, the employer is obliged to take the necessary occupational health and safety measures, taking into account the circumstances that affect the safety and health of employees at work. He must check the effectiveness of the measures and, if necessary, adapt them to changing circumstances. All measures to be taken must be based on the principles laid down in Sec. 4 ArbSchG (e.g. hazard reduction, structural measures before individual measures, consideration of scientific findings, non-discrimination, special protection needs).143 Sec. 4 No. 1 ArbSchG also covers hazards to mental health.

The framework regulations of the Act are concretized by legal ordinances, which prescribe which measures the employer and other responsible persons must take and how employees must behave in order to fulfill their respective obligations arising from the Act (Sec. 18 (1) ArbSchG). Specific committees can be formed to advise the Federal Government or the competent Federal Ministry on the application of the statutory instruments, of determining rules and other established occupational science findings corresponding to the state of the art, occupational medicine and hygiene, and of determining rules on how the requirements set out in the statutory instruments can be met (Sec. 18 (2) No. 5 ArbSchG).

The works council also has a right of say and co-determination in the setting of regulations for the prevention of occupational accidents and illnesses and for health protection within the framework of statutory regulations or accident prevention regulations (Sec. 87 (1) No. 7 BetrVG). The requirements of Art. 11 OHS Framework Directive 89/391/EEC is implemented in Secs. 80 (1), 87 (1), 89 (1) BetrVG.

There is also an Occupational Safety Act (Arbeitssicherheitsgesetz, ASiG) that obliges the employer to appoint company physicians and occupational safety specialists that support him in occupational safety and accident prevention (Sec.1 ASiG). The occupational safety specialists and the company doctors advise the works council on this (Sec. 9 (1, 2) ASiG).

Germany ratified ILO Convention 190 concerning the elimination of violence and harassment in the world of work in April 2023; it will come into force in July 2024.144 The German government considers labour law already being in accordance with the Directive.

Apart from general health and safety protection which is supposed to cover risks of violence and harassment, Sec. 3 (3) and (4) AGG ban discrimination by sexual harassment or discriminatory harassment, implementing Directives 2000/43/EC, 2000/78/EC and 2006/54/EC.

Health and safety, relief in case of high workloads and the prevention of stress has been the most important subject of new collective bargaining initiatives in the care sector for the last years. Already in 2015, the employees of the Charité hospital (Berlin) went successfully on strike for relief.145 They demanded regulations that would specify a certain minimum staffing level for shifts, either in the form of a specification of a minimum number of employees per shift (quantitative staffing regulation) or in the form of a specification of the minimum qualification that must be present among the employees in each shift in any case (e.g. a minimum number of registered nurses; qualitative staffing regulation).

The first collective agreement in this respect (Tarifvertrag Gesundheitsschutz und Demografie, TV GS) has been concluded between ver.di and Charité Berlin in 2016; collective agreements at other university hospitals in Germany followed.146

However, such regulations are often not complied with. Trade unions’ collective bargaining initiatives are therefore increasingly calling for “consequence management” in the event of breaches of staffing regulations. The main issue here is compensation in the event of non-compliance with staffing regulations.147 In this regard, the collective agreement between ver.di and Charité was amended in 2021 following a strike that year.148 The resulting collective agreement “Charité Health Professions” (TV Gesundheitsfachberufe), which is valid from Jan. 1, 2022, to Dec. 31, 2024, not only regulates the staffing levels on the individual wards of the university hospital, but also individual compensation in case of non-compliance. If the staffing levels fall below the limits set by the collective agreement, the care workers concerned receive relief points. With these relief points, care workers can invest in recreational allowances, childcare allowances, partial retirement accounts and sabbaticals or receive compensatory time off. Similar strikes have spread to other public health care companies in Berlin (e.g. Vivantes hospital group) and hospitals in other German states; in particular, employees of university hospitals in North Rhine-Westphalia organized a strike in 2022, and a similar collective agreement (Tarifvertrag Entlastung) was concluded.

Some doubted whether strikes for this kind of norms in a collective agreement would be permissible—considering existing norms on health and safety in the TVÖD and the resulting peace obligation. However, this view has not prevailed so far.149