Too few shifts: What now?

21.09.2018

Attention, if days on which you are deployed fall below a certain limit!

Three conditions should be kept in mind when working freelance:

1.) Within half a year at least 42 working days including holidays (sick days do not count!) should be reached at DW or other ARD institutions.

 

What happens if this number is not reached?


  • One then no longer falls under the "Tarifvertrag Arbeitnehmerähnliche TVAP"

    Entitlements for holiday pay, sick pay, childcare allowance, etc. are lost.

     

  • What to do?

    A pragmatic solution could be to "fill" the missing days with holidays. Especially non programm enployees (e.g. technicians, but also translators or speakers) could also consider a status lawsuit. Because if it is established in court that in reality it is a permanent employment relationship, the "melting off of shifts" may not be legal. This way has however hurdles, legal advice is urgently recommended. ver.di members receive legal protection.

     

 

 2.) In the immediately preceding or current calendar year at least 72 days of employment (i.e. days of at least 3 hours) including holidays should be reached.

 

What happens if this number is not reached?


  • One then no longer falls under the "Tarifvertrag Arbeitnehmerähnliche TVAP"

    ...and important claims under collective bargaining agreements are lost.

     

  • What to do?

    In the event of a significant restriction: If the number of employment days falls below or threatens to fall, the employee may demand a decision from DW either to grant him/her the 72 days or to terminate the employment. Termination usually entails transitional payments (= severance pay for freelance employees).

     



3.) The average monthly remuneration may not be more than 20% lower than that of the previous year, i.e. to 80% of the previous year's remuneration, freelance employees may only be "melted down" - on condition that 72 days of employment are paid in the current or previous calendar year. If more than 20% has been lowered, this is referred to as a "significant limitation" ("wesentliche Einschränkung").

A significant limitation can occur under two conditions:

(a) with notification of restriction ("Einschränkungsmitteilung")

If Deutsche Welle intends to significantly restrict the activity and thus the employee's fee, the employee must be informed in advance in writing, taking into account the deadlines (see below), by means of a "notification of restriction" (Einschränkungsmitteilung).

b) without "Einschränkungsmitteilung"

If there is no notification and the remuneration is nevertheless more than 20% lower than in the previous year, there is also a significant limitation. If a reduction in the remuneration is suspected or determined, the employee should submit an application in the first quarter of the year following the restriction to check whether there is a significant limitation.

Depending on the length of employment, notification deadlines come into play (see box below).

 

In the event of a material limitation, there is a right to compensation.


  • Example without notice of restriction ("Einschränkungsmitteilung") and duration of employment 6 years

    Application for review in the 1st quarter 2019. 2017 total fees amounted to € 36000. In 2018 it was 24000€.

    The difference is 4800 €. The compensation claim is 4800 / 12 € = 400 € per month.

    After 6 years, the notification period is 6 months. Therefore, the compensation claim is 6 x 400 € = 2400 €.

     

  • Example with restriction notice 1 April 2018 and 6 years of employment

    In the period from April 1, 2017 to March 31, 2018, €36000 was earned. That is on the monthly average 3000 €.

    In the 6 months following receipt of the restriction notice, 12000 € was earned, which is an average of 2000 € per month.

    Fees may be reduced by a maximum of 20%, i.e. 2400€ per month.

    The difference of 400 € multiplied by 6 results in the compensation claim of 2400 €.

     

 

By the way:

The effect of an "Einschränkungsmitteilung" expires if neither during the notification period nor within a period of 6 months after expiry of the notification period an actual material limitation occurs.

And:

 If the employee rejects the work opportunities offered and restricts cooperation on his/her part, there is no entitlement to compensation..

               

 

NOTIFICATION PERIODS

The notification period is

  • two calendar months after two consecutive years of employment,
  • three calendar months after three consecutive years of employment,
  • six calendar months after six consecutive years of employment and
  • twelve calendar months after ten consecutive years of employment.

 

Begrenzung der Berechnungsgrundlage / Limited basis of calculation

Bei Bestandsschutzansprüchen (Ausgleichs- und Übergangsgeldern) und Urlaubsentgelt wird das dafür als Berechnungsgrundlage herangezogene Gesamtentgelt auf derzeit 65000 € pro Jahr begrenzt. Über 65000 € erwachsen somit keine zusätzlichen finanziellen Ansprüche mehr an die DW.

In the case of compensatory and transitional payments in the event of restriction and termination and in the case of holiday pay, the total remuneration used as the basis for calculation is currently limited to € 65,000 per year. Over 65000 € no more additional financial claims accrue to DW.