Digital workplace meets analog Employment Law

By Alexander Klier Oct 2, 2015
Digital workplace meets analog Employment Law

Translation of the Original Article by Alexander Klier

As honorary labor judge, I got the invitation to participate at the 3rd place conference of the German Labour Court Association on 09.29.2015 in Regensburg under the title "Work 4.0 Anytime - Anywhere: How will the legal framework for the digital workplace of the future be designed? “. A conference that was very analogous and was carried also out that way. There was no single hashtag and no Wireless LAN for the conference participants. In addition, a follow-up via Blog & Co., as far as I see it, was not provided. The conference was anything but at the level of the digital age. For most of those present, this didn’t seem to have been a problem. And I don’t mean that derogatory, but rather realize it with amazement. There was a separate special issue of NZA (New Magazine for labor law), where a few of the quotations in this blog come from. The contradiction of an analog discussion about digital concerns not only shaped the conference, it made it remarkable and worth blogging in a special way: Because many of the mentioned and discussed points actually had nothing to do with the digital work. At least not in the sense of originary problem definition. Nevertheless, there were some interesting areas and remarks relating to digital transformation. Without a doubt, the conference hit an important point, because the following question was already asked in the Invitation: "How can we avoid that the 'Anytime - Anyplace' turns into a dictated ‘Always and Everywhere’, when the use of new media blur the clear boundaries between work and leisure ". The explosive nature of the topic was proven by the many registrations. About 100 participants from all interest groups with regard to Labor Jurisdiction (judges, lawyers, works councils, personnel managers, trade unions, etc.), who were welcome by Dieter Moeller, president of LAG Munich.

 

Labor law and the 4th Industrial Revolution

"The fourth industrial revolution has long been the world of work [...] These developments will leave their mark on employment law [...] It is clear that labor law must set limits to the outgrowths of the fourth industrial revolution [...]Otherwise, the digitization will also demand changes of the labor law" (NZA - New Journal of Labor Law 17/2015, Editorial.)

 

The starting point of the meeting were enormous discrepancies, which showed the 4th industrial revolution in terms of their labor regulation. Therefore, the corresponding issue of NZA also formulated the challenges for a labor law 4.0, as the above quote shows. They define the 4 different revolutions, following the Green Book of the Federal Ministry of Labor, as follows:

1.     Revolution – Mechanical production equipment, powered by water and steam

2.     Labor-divided mass production through the use of the assembly line and electric power

3.     Data processing, massive use of electronics and information technologies

4.     Networking, Internet of Things (IoT), Smart Factory and Industry 4.0 

 "Labor proves as the central interface of change" (Green Book, pg. 6). For Dieter Moeller it is clear therefore, that labor law also needs to change fundamentally, if a step back to the "Stone Age" is to be avoided. He made this clear with the following points:

·        The availability of staff is expected and – in most cases –is met by the staff.

·        The traditional definition of the worker will be put to the test, as you can see in that the Directorial Rights according to the BGB will no longer have a special role!

·        The term of the employer will also be put to the question in regards to the digital collaboration.

·        Inevitably, this will have an impact on the corporate constitution.

Overall, he cannot be all about to prevent new technologies, but the concern must be to make misuse impossible. But before this was even discussed, it was time for the various speakers - with quite disparate content regarding the topic.

Practical (digital) Examples

"Therefore work 4.0 is not limited to the direct consequences of the smart factory in the world of work, but also includes the expectations of employees in terms of time sovereignty and work-life balance“(NZA 17/2015, pg. 1026).

 

 

Thilo Schmidt of Continental AG dealt most with the technological conditions of the digital work environment. At Continental AG (Conti), he runs the HR Consultancy in Regensburg, and explained first of all the basic connection of the historical development with the current challenges. For Conti as a company, the international communication and cooperation the biggest challenge, that is to be mastered digitally. In this respect, he also presented the collaboration platform ConNext with impressive figures, which was specifically introduced to meet this challenge (and is technically operated by us).

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Picture: Thilo Schmidt presents ConNext, the collaboration platform of Continental AG. The numbers presented on the slides are quite impressive. By now, there are about 12,800 ConNext blogs, over 10,000 forums and 3,400 wikis. More than 90,000 members operate transnationally and digitally via the platform. Photo: Alexander Klier under the terms of the Creative Commons (BY-SA).

 

Besides that, there was the presentation of collaborative robots, i.e. a human-robot cooperation in direct contact with the immediate execution of common tasks. These robots promise a relief in unfavorable gripping areas (Ergonomics). What also mattered to him was the presentation of the Pilot-Company agreement on the subject of "Mobile Computing", called concept "free space". His promise (and that from Conti) was clear: in the digital context, people should become competent Operators of the technology, and not represent a “resource” (anymore). And for that, you can already positively apply and adapt existing agreements, in this case a company agreement.

Prof. Frank Maschmann, who in his chair acted as host of the meeting, initially emphasized that it would indeed be about the issue of delimitation in the digital world of work. However, according to a recent BITKOM study, 75% of employees still face mandatory attendance at an immobile workplace. This contradicts at least the BITKOM study from 2013 (Work 3.0 - Work in the digital world), where already 45% of the employees reported of working in the home office at least in some cases. It was also a given fact to him that work is increasingly done on mobile devices. Usually, mobile working from home happens for reasons of better reconciliation of work and family. This means for the future, that physical presence is less and less necessary. Now, how does employment law respond? Classic, still with the largely static concept of the workplace, with supervisors and a fixed job tenure. However, the resulting problems are a relatively "old" phenomenon and not necessarily owed to the digital work. A digital peculiarity - and its own problem - would arise for him, if, for example, there were "virtual superiors" in the context of digital cooperation. So for example, supervisors who are not physically located at the Company, but possibly in completely other countries, but (can) give instructions digitally. In general, this kind of problem is therefore blamed on the (geographic and temporally) mobile work. This example clearly shows that there is a major problem for the employment law to adequately grasp the phenomenon of virtual work. Overall, for him the old legal framework is too simplistic, because it knows, for example, only work and leisure and that usually it is no longer worked behind the (private) doorstep.

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Picture: Prof. Frank Maschmann explains the difficulties of adequate application of the current employment law to the digital work, especially on the example of mobile work and the working time question. Photo: Alexander Klier under the terms of the Creative Commons (BY-SA) 

 

Christian Dietl presented, as Regional Managing Director of the DGB Region Regensburg, also fairly analogous (and without slides) the performances of the trade unions on the subject. With the 100th anniversary of Frederick Taylor’s death, he pointed to the Background Slide of the entire Delimitation Discussion: Taylorism with the aim of adapting and "dressing" of people to the machinery. Labor 4.0 could now help him to put the cart before the horse. Specifically: It can serve to (re) adjust production processes to the people. Trade Unions would not close themselves off to such undertakings. But: they are careful to avoid, for example, an emergence of a digital precariat. And: Labor 4.0 for him is not doable without Occupational Safety 4.0.

Hermann Brandl explained their positions on the conference theme for the vbw Upper Palatinate (Bavarian Business Association). He drew heavily on his own experience as an employer and entrepreneur. The organization of work will be very different from today for him in the future. Just as the nature of the products, the business processes and finally also the value chains will change. His plea was to the circumstance to create increasingly binding frameworks and to abolish too detailed provisions. Or to hand over the details to the operational organization. Finally, in the end stands for him the principle that a free decision (for example, regarding the length of working time) of employees should not be spoon-feed by too many (public and / or collective agreements) regulations. The question whether legislation for the protection of individuals are to be necessarily enforced and can, also provided a seamless transition into the final discussion of the meeting. 

A borderless Discussion...

"The Employment Law has inasmuch the challenge to allow flexibility through modern media for the benefit of companies and the workforce, while ensuring good working conditions despite the dividing line between work and private life" (NZA 17/2015, pg. 1028).

 

... based on sound open questions. This is how I would characterize the nevertheless very diverse verbal contributions during the ensuing discussion. The discussion was indeed preceded by an introduction of many presentations that asked more questions than they could provide answers for. That clearly showed once again the problem of the conference. The context and major reason for the discussion certainly were the topics of delimitation and permanent availability. But, these were or are already effectively independent of the digital revolution. The discussion was of course about the "correct" application of labor law regulations. Most of the contributions to the discussion went back to the revised performance standards through indirect forms of governance in companies, for example, via agreements on objectives. For this reason, the specific component of the digital work was clearly neither in the discussion papers, nor in the answers.

The only "real" digital portion of the discussion was on the issue of voluntariness of employees in the context of networking: In the dynamics of groups, there is no longer the always-stressed freedom or autonomy of choice, because it means a strong individual integration into dependencies and correlations. In other words: Networking, for example, Company Facebook Groups to exchange views on, works differently. Freedom of choice as an individual option remains an illusion there. To this extent, a virtuous self-restraint is not sufficient with respect to working time issues. At the end, Prof. Maschmann therefore again asks the question: How can you really grasp these new problems? There is supposed to be another conference next year – on the same subject. Maybe it will be possible during the course of that, to appreciate the digital work separately, in order to find solutions. I would offer two suggestions already in advance.

Expanding the limited legal framework

„Changed organizational structures provide the German Industrial Constitution Law, which aligns with the classic operating concept, with new challenges„ (NZA 17/2015, pg. 1027).

 

We have already often blogged about what the digital revolution really means for enterprises (examples here, here and here). It has been proven even scientifically that the challenge has arrived in the economy. Thus, companies are looking for a new blueprint to handle the digital work sensibly. Which also means to overcome the old blueprint of a tayloristic Labor and Company organization. Such a development relates essentially to labor law, which has of course gotten its specific character just by the "old" blueprint. In this, he may benefit from his "Unsystematics": employment law consists of very different components such as the Operation Constitutional Law, the Contract Autonomy, the Law on working time and - not infrequently - spoken (judges) law (especially in the form of judgments of the Federal Labor Court). In the specific application, it must be interpreted in each case how the various measures shall be applied in order to exert their protective function.

Two areas stand out for me, especially when it comes to a further development (which in our context always means development towards a social collaboration):

  1. "Different Employee representation structures“ according to the Works Constitution Act (§ 3 para. 1 no. 3 BetrVG) and a
  2. more flexible working time legislation

 

Ad 1) Not only within the Wing meeting on 06 May 2015 in Munich did Thomas Sattelberger emphasize (our reports about it are here and here) that ) "new players" have come into the field of operation and in the focus of the Works Constitution, especially in the context of collaborative cooperation (Social Collaboration): the employees and their communities (teams). This could also be an approach to the development of co-determination in the sense of "different employee structures", as discussed, for example, in the above NZA (pg. 1027). Communities will play a major role, at least for the concretization or detailed design of framework agreements in the context of collaboration. It would be only logical to consider them legally. Just as it would be helpful to have works councils to organize and work as committees in the form of communities.

Ad 2) The different dimensions of the removal of boundaries between work and leisure time show that even the concept of work has become a problem. Or, that the specific understanding of Tayloristic employment (along with the Fordist organized state social insurance) enormously stands in the way of development. The delimitation basically knows two directions. The extremely dangerous development of an increasing delimitation of working time into leisure was discussed at the conference.

However, the reverse is also possible, and should even be encouraged and protected by law: the Dissolution of working time to the effect that while working, private time can and may again play a role. And this does not just mean to browse Facebook during working time.

In my eyes, a further development of the legal framework is only possible if the terms of work are differentiated and not only include leisure time as remonstrance. We have already written several blogs about this.