Former title: Legal system for the protection of labor rights and interests of apprentices in Germany
At the beginning of the 20th century, Germany innovatively proposed and successfully practiced dual vocational education, which attracted attention. The essence of dual vocational education is a new form of apprenticeship that closely combines school education with job training. Because it meets the modern requirements of economic and social development, it is regarded as the "secret weapon" of Germany's rapid rise. Since the late 1980s, western countries have followed Germany's example and started the modernization reform of apprenticeship. The important way of reform is to provide institutional guarantee for the development of apprenticeship through special legislation for apprenticeship.
Apprenticeship training object and legal nature of training relationship
The modern apprenticeship legal system in Germany is a comprehensive system composed of the rights and obligations of apprentices, enterprises, vocational schools, administrative supervision agencies, trade unions and industrial organizations. Among them, the apprenticeship rights protection system occupies an important position.
In Germany, after the junior high school education stage, students are divided. Some students who prefer scientific theories will choose liberal arts and science secondary schools and enter universities through college entrance examinations; Students who are interested in practical skills will enter a practical middle school. After graduation from a practical middle school, they will apply for the enterprise's apprenticeship training position and carry out skills training for about three years in the way of combining work with learning. Therefore, most of the trainees of German apprenticeship system are practical middle school graduates who have reached the age of 15, but they also include liberal arts middle school graduates or college dropouts. Due to the low threshold for apprenticeship training, Germany's apprenticeship system has also been used as an effective way to solve the unemployment problem, especially to promote the employment of young people. According to the German Federal Bureau of Statistics, in 2022, the number of newly registered college students in Germany will be 475000, while the number of new apprentices will be 470000. At present, apprenticeship training is still an important choice for young people in Germany, so the protection system of apprenticeship rights has been highly valued by legislators in Germany.
Because apprentices are highly integrated into the production organization of enterprises in practice, the general labor legal system can be applied to apprentices, except for the special provisions of the German Vocational Education Law. According to the opinion of the German Federal Labor Court in recent years, the apprenticeship relationship is not considered as a labor relationship. The reason is that according to Paragraph 2 of Article 1 of the Vocational Education Law, the purpose of apprenticeship training is to enable apprentices to acquire the professional skills, knowledge and ability necessary for carrying out professional activities as well as the necessary work experience, which is obviously different from the purpose of establishing labor relations - to exchange labor for remuneration. Therefore, German apprentices are not employees in the sense of labor law norms. They can enjoy the same protection as ordinary employees in some aspects of labor rights, such as working hours, rest and vacation, labor safety and health and other matters involving personal health, but enjoy relatively low level of protection in some aspects of labor rights, such as labor remuneration Restrictions on signing fixed term labor contracts, etc.
Main contents of apprenticeship protection system
In Germany, the system of apprenticeship rights protection is relatively perfect. Article 10 of the German Vocational Education Law stipulates that, except for the special provisions of the law based on the nature and purpose of apprenticeship training, the relevant legal rules and principles applicable to labor contracts shall apply to apprenticeship training agreements. Therefore, in addition to the Vocational Education Law, which specifically regulates the apprenticeship system, the formal source of law also includes other general labor legal systems applicable to apprenticeship, such as the Working Hours Law, the Federal Vacation Law, the Protection Law for Juvenile Workers, and the Maternity Protection Law. In addition, the informal sources of law for the protection of the rights and interests of apprentices in Germany include the apprentice training collective contract and related enterprise agreements, which cover a wide range of areas.
Apprenticeship Agreement
In Germany, apprenticeship training agreements are generally signed by enterprises and apprentices, and minor apprentices are signed by their legal representatives and enterprises. The German Vocational Education Law stipulates that enterprises should determine in writing the important contents of the apprenticeship training agreement, such as working hours, probation period, labor remuneration, overtime pay or compensatory leave, paid leave, conditions for termination of the training relationship, etc. It is worth noting that the prohibitive provisions of the law on the contents of the apprenticeship training agreement are invalid if the training agreement restricts the apprentices to engage in professional activities after the termination of the training relationship. However, if the apprentice promises to establish a labor relationship with the enterprise after the end of the training in the last six months of the training relationship, the agreement is valid. Because legislators believe that the declaration of intention made by the apprentice before the end of the training relationship is more true. Such a system design can prevent enterprises from requiring apprentices to establish labor relations with them after the completion of training at the initial stage of apprenticeship training, thus limiting the freedom of apprentices' career choice; At the same time, it can also ensure that the true meaning of the apprentice and the enterprise is respected, so that the apprentice can achieve the seamless connection between the training relationship and the labor relationship.
Termination of cultivation relationship
In Germany, apprentices are subject to strict dismissal protection. Article 22 of the German Vocational Education Law stipulates that both parties have the right to terminate the training relationship at will only during the probation period. After the probation period, the enterprise can immediately terminate the cultivation relationship only when there are major reasons, and it does not have the right to terminate the cultivation relationship non immediately. However, in order to fully respect the freedom of choice of the apprentice, the law unilaterally gives the apprentice the right of non immediate termination, that is, if the apprentice wants to give up a training opportunity or decide to change the direction of training, he can propose to the enterprise to terminate the training relationship 4 weeks in advance.
The court also put forward higher requirements for the major reasons why the enterprise can exercise the right to immediate termination. For example, the local labor court in Magdeburg, Germany, pointed out in a case that only enterprises are allowed to terminate the cultivation relationship when the apprentice has a series of serious violations of obligations, and after exhausted all possible educational means, such as preaching, warning, etc., the apprentice still does not correct.
The German Vocational Education Law also clearly stipulates the obligations that apprentices may violate. According to Article 13 of the Law, apprentices should strive to acquire the professional skills necessary to achieve the training objectives of apprentices, for which they have the following obligations: (1) conscientiously complete the tasks within the framework of the training plan; (2) Participate in vocational school study or other training activities that can obtain special leave according to law; (3) Follow the instructions of the enterprise and the master; (4) Abide by the rules and regulations of the enterprise's workplace; (5) Prudent use of labor tools, machinery and other equipment of the enterprise; (6) Keep the business secrets of the enterprise; (7) The apprenticeship training process is recorded in written or electronic form.
Continuing employment after termination of cultivation relationship
In order to prevent enterprises from abusing their apprenticeship status and continuing to employ after the termination of the training relationship, Article 24 of the German Vocational Education Law stipulates that if an apprentice continues to work in the original enterprise after the termination of the training relationship, and the two parties do not clearly agree on this, it will be deemed to establish a labor relationship with no fixed term. Article 21 of the German Vocational Education Law stipulates that the apprenticeship training relationship is terminated when the apprenticeship training period expires. If the apprenticeship training is conducted in stages, the expiration date of the training period of the final stage shall be the termination time; If the apprentice passes the graduation examination before the expiry of the training period, the time of termination of the apprenticeship relationship shall be the date when the apprentice learns the examination results from the examination committee. However, the Federal Labor Court held in the relevant cases that even if the continuous employment lasts for a short time from the time when the examination results are known to the time when the examination certificate is obtained, it should be deemed to comply with the provisions of Article 24 of the Vocational Education Law.
Labor remuneration
In order to improve the enthusiasm of young people, Germany revised the Vocational Education Law in 2020 and introduced a minimum wage standard specifically for apprentices. Article 17 of the Vocational Education Law has formulated different salary standards according to different training start years. However, compared with the minimum wage for ordinary employees, the minimum wage for apprentices is still low. In practice, apprentice collective contracts in various industries in Germany play an important role in determining remuneration. Because in Germany, apprentices have the right to join trade unions, and the trade union, on behalf of apprentices, has signed collective agreements covering almost all regions and industries with the Enterprise Confederation. If both the enterprise and the apprentice are bound by the corresponding collective agreement, the actual labor remuneration of the apprentice shall be subject to the collective agreement, unless the enterprise and the apprentice agree on a higher remuneration in the training agreement. If the enterprise is not bound by any collective agreement, the salary standard of the corresponding industry collective agreement can also be used as a reference for apprentices and enterprises when signing training agreements.
Working hours, rest and vacation
In terms of working hours and rest system, apprentices and ordinary employees can apply the provisions of the Working Hours Act and the Federal Vacation Act. However, since most apprentices are minors, special attention should be paid to the relevant provisions of the Protection Act for Juvenile Workers. In addition, if there is an applicable collective agreement or enterprise agreement, it shall prevail. According to relevant data, most apprentices in Germany work five days a week, 35 to 40 hours a week. According to the provisions of the Working Hours Act, an apprentice shall not work more than 8 hours a day and not more than 5 days a week.
In terms of leave, according to the provisions of the Federal Leave Law, ordinary employees can enjoy at least 24 days of paid leave every year after six months of labor relations, which also applies to full-time adult apprentices. However, Article 19 of the Law on the Protection of Juvenile Workers stipulates that apprentices under the age of 16 can enjoy at least 30 days of paid leave per year. In addition, the Vocational Education Law gives apprentices special leave based on the learning needs of vocational schools. Article 15 of the Act stipulates that enterprises shall not arrange pre class work when apprentices have early classes before 9 o'clock. In addition, the enterprise shall not arrange apprenticeship under the following circumstances: (1) Class time for attending vocational school courses; (2) On the theoretical knowledge study day that requires to attend more than 5 courses (each class shall not be less than 45 minutes) once a week; (3) Arrange at least 5 days of theoretical knowledge learning week with a total class hour of no less than 25 hours in vocational colleges; (4) The time when the apprentice needs to take examinations or other training activities outside the training place according to public law or the training agreement; (5) One working day before the written final exam.
social insurance
The social insurance system in Germany consists of pension, medical care, nursing, unemployment and work-related injury insurance. Minors usually join the social insurance system through family joint insurance. In addition to family pooling insurance, Germany also stipulates the range of persons who join the social security system by compulsory or voluntary insurance. Before apprenticeship training, students generally participate in social security through family joint insurance, while after apprenticeship training, they are classified as compulsory insured. In Germany, apprentices must participate in all types of social insurance, and the obligation of social insurance payment should be shared by enterprises and apprentices. The social security expenses of the apprentices account for about 40% of their pre tax income, and 20% of the expenses are borne by the apprentices themselves.
（ Hou Haijun and Libit, Author's unit: Nanjing Normal University Law School; China Germany Labor and Social Security Law Research Center)
