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"Freelancers": Employees 2nd grade or employment model of the …

"Freelancers": Employees 2nd grade or employment model of the future?

In the film and media sector, precarious working conditions are commonplace. In public broadcasting, the erosion of workers' rights has matured into a soap opera. Despite other confessions in collective agreements, freelance work - even where it is legally questionable - has long since become a mainstay of public service broadcasting. Right at the top: the state-run foreign broadcasting service of the Federal Republic of Germany.


The use of freelance work in public service broadcasting has been a political issue for decades and fluctuates between business cycles and criticism. Since the beginning, the institutions have employed freelancers. Soon a cost-saving undertaking for them, because while the fees of the freelancers stagnated until 1970, wages and social benefits for permanent employees moved upwards. A wave of successful status suits at the beginning of the 1970s forced the broadcasters to take on permanent positions and increase their permanent staff. Section 12A of the 1974 Collective Agreement Act provided the legal basis for concluding collective agreements for "employee-like" freelancers that offered a certain level of social protection. Through the "12A - collective agreements", freelancers benefit from social regulations, which in some cases are similar to those of permanent employees, but which in some cases are lower in financial terms. These include holiday pay, sick pay, pregnancy benefit and childcare allowance, as well as transitional payments upon termination. Due to the cost factor, the latter are intended to dampen the willingness of the broadcasters to give notice.

But all this could not stop the onslaught of lawsuits at first. Further permanent positions had to be created as a result of legal compulsion. The stations were in a tight spot, but so were the remaining freelancers.

In 1982, the Federal Constitutional Court issued a ruling that is still influential today. It places freelance work in broadcasting companies in the area of conflict between freedom of broadcasting guaranteed by the Basic Law and German labour law. In the ruling, the labour courts were instructed to take into account the freedom of broadcasting guaranteed in Article 5 (1) sentence 2 of the Basic Law when bringing an action for the status of a permanent employment relationship. The freedom of broadcasting also extends to the selection, recruitment and employment of those who contribute to the content of the programmes. The judgment expressly excludes any reference to cooperation which only concern the technical realisation of the programme and which have no influence on its content.

Das Urteil ist eine wesentliche Hürde bei arbeitsrechtlichen Statusklagen. Die Wahrscheinlichkeit, vor Gericht zu obsiegen, sinkt damit für Mitarbeiter/innen, die programmgestaltend arbeiten, das heißt ihre eigene Auffassung zu politischen, wirtschaftlichen, künstlerischen oder anderen Sachfragen oder ihre individuelle künstlerische Befähigung in das Programm einbringen.

A second hurdle is the possible financial disadvantages of a successful status suit. If honoraria are significantly higher than the salaries of permanent employees, the losing broadcasters threaten with sometimes horrendous repayment claims.

But it was not only legal reasons that ensured that the number of status suits since the 1980s was kept within limits.

In the course of the spread of de-guaranteed working conditions in Germany, many freelancers perceive their status as normality. Some also appreciate the possibility of combining (boring) jobs in broadcasting with (mostly more interesting) projects outside. Others, on the other hand, distribute their manpower among several stations. This reduces the degree of attachment to a company, increases indifference to one's rights, and generally creates a "day labourer" awareness. Last but not least, the wish or necessity of individual time management to be able to deliver or swap shifts at short notice is met. There is also a certain flexibility with permanent employees, especially with part-time work, where an employer's objection to other secondary activities cannot usually be justified. Nevertheless, the guaranteed independence freelance work, at least on paper, seems attractive to some.

The positive desire to maintain the status quo is accompanied by negative motives that increase the inhibition threshold to stand up for one's own rights. In short, in some parts of public radio there is a working atmosphere characterised by envy and fear coupled with a feeling of lack of appreciation. In the case of Deutsche Welle, the fact that freelancers from foreign-language editorial departments are often tied to their mother tongue makes it difficult or impossible to switch to other (German-language) stations. Where, within the #MeToo campaign, sexual and sexist attacks are uncovered in public broadcasters, criticism of serious structural problems is not far away[1]. A decentralized organization gives department heads a power that sometimes turns into authoritarianism and takes on despotic forms. Without a noteworthy right to a reliable number of shifts, freelancers are existentially dependent on the allocation of work assignments and are under increased pressure to adapt, especially if not only the recruitment but also the disposition of freelance colleagues is in the hands of the bosses.

The motifs described characterise the majority of freelancers. They play and play into the hands of the precarization of employment relationships in public broadcasting, which has not been contradicted for a long time. Deutsche Welle, in particular, whose job and budget plan is a government matter and must be approved by the Bundestag, emerged as a prime example of establishing freelance work as the predominant model in personnel policy.

A closer look at DW's personnel figures reveals that the number of posts has been reduced from around 2134 in 1994 to 1212 at present. At the same time, honorarium payments rose, doubling between 2005 and 2015, for example. Since, with a few exceptions, honorarium payments in real terms were not increased by collective bargaining, the increase in total honorarium payments does not reflect a financial improvement for freelancers, but rather the quantitative reduction of permanent jobs in favour of freelance employment. At the end of 2016, 48.5% of all employees were freelancers, expressed as full-time equivalents. If one takes into account the fact that there are around 400 fixed-term employees among the permanent employees for around 1000 permanent employees (with a slight upward trend), it is clear that Deutsche Welle relies to a large extent on precarious employment.  

It can be assumed that this development is intended despite assertions to the contrary and temporary pseudo-fights [2] between politicians and management. The bottom line is that it makes programme production cheaper, is convenient for management and has an inwardly disciplining effect:

  • Program and technical changes can be carried out more easily if no or little consideration has to be given to the inventory rights of employees.
  • Day job planning can take place at shorter notice - depending on one's point of view one could also say more chaotic - if one can count on the free as a reserve always thirsting for services.
  • Risks and fluctuations in demand and financing are passed on to freelancers. Higher honorariums should not hide the fact that the payment through permanent employment is usually more lucrative for the employees and thus more expensive for the employer, especially over longer periods of time.
  • Freelance work is also cheaper for DW, as it saves on company pensions, money in the event of illness and on further training. In recent years, improvements have been achieved at many ARD institutions, but hardly at all at DW. It is increasingly coming last in comparison with other public broadcasters.

If one compares the current situation with that of 1974, it is frightening how little has happened since then. The legitimation of freelancers by the Federal Constitutional Court ruling in 1982 only applies to a limited group of people. In contrast, Deutsche Welle, in particular, behaves as if freelance work provided it with an instrument that could be used across all professional groups and would point the way to the future. Since task planning and budget must be confirmed by the Bundestag, it must be assumed that the management's point of view is supported, if not demanded, by politicians. Despite knowledge of the illegality of a large part of the employment relationships at DW, representatives of political parties, with the exception of the Greens and the Left, ignore existing laws and thus contribute their share to the erosion of credibility in politics[3] .

Meanwhile, the situation of freelancers remains precarious. Regular employment crises are distributed unevenly among the occupational groups as well as individual colleagues. This makes solidarity more difficult. In recent years, savings pressure [4] has led to rationalisation in many areas. At the same time, job profiles are changing due to technical innovations. Where entire occupations threaten to disappear, the positive aspects of flexibility and independence fade away in the minds of the freelancers concerned and give way to concern about the loss of job opportunities.

Status suits have therefore been increasingly seen as an option to avoid increasing fluctuations in employment or even the threat of dismissal for some years now. Thus the situation described at the beginning returns, this time with the state authority Deutsche Welle: the pressure on the station and remaining precarious employees grows - a chain reaction is not excluded. Would it not be time to find an answer to a conflict that has not been resolved for more than forty years?


Ways out of the crisis

In the eyes of many media representatives, trade unions were for a long time regarded as a cumbersome authority that was limited to the celebration of ritual collective bargaining rounds, at the end of which a well-tempered increase in salaries waited in each case - only for permanent employees. The proclaimed ideal of full-time permanent employment had and has a deterrent effect on many freelancers. When they reach retirement age at the latest, however, they notice that the financial differences between freelance work and permanent employment are serious: You have to be able to afford freelance work or suppress its social consequences. And: in rationalization measures, freelancers lack the instruments of collective bargaining that apply to permanent employees.

As long as employers are not prepared to offer a perspective to freelancers, most of whom have been with the company for many years, freelancers can only seek advice, have their chances of permanent employment checked and possibly appeal to the labour courts. As a rule, employees from technical areas, for example, win the lawsuits. The employers' personnel policy leeway is becoming narrower.

Trade unions such as ver.di are playing an increasingly important role, even in the media sector, which has so far tended to be far removed from trade unions. On the one hand, they offer legal protection and the necessary legal competence and advice. On the other hand, their bargaining committees form an interface with the employees, can articulate their needs and develop ideas on how to deal constructively with the conflict described. The number of members is rising. Above all freelancers provide input.

This could have medium-term consequences for permanent employees and freelancers alike. As already mentioned, freelance work provides a pool of positive experiences. This can provide valuable stimuli that are of interest to employers and employees alike. For example, extended time accounts, cooperation between ARD institutions in duty scheduling, temporary interruption or reduction of activities, increase in part-time work, exchange of services or standby times allow flexibility without having to resort to the dubious construct of freelance work. The same applies to a remuneration system that accompanies new occupations with job descriptions agreed in collective agreements.

Furthermore, at least the essential elements of the collective agreement, such as protection against rationalisation, training during working hours, continuity of earnings and employment, protection against dismissal, payment in the event of illness or pensions, should apply to everyone, including freelancers. The 12A collective agreements urgently need to be adapted accordingly. And: freelancers need representation on the staff council so that their rights can be monitored and enforced beyond the labour courts. Anything else would - and means - degrading "freelancers" to second-class employees.

There is much to be said for clearing up the lies with which the deployment of freelancers has been operated and legitimised so far. The approved posts of DW and presumably other ARD broadcasters do not in any way reflect the actual manpower requirements necessary to ensure broadcasting operations. Many freelancers who determine the programme content are in service for so long that the argument "need for variety" is obviously a pretext. At DW, 41 to 55 percent of those who do not determine programme content are employed on a freelance basis. Each individual would have a good chance of sueing for a permanent position. 

The erosion of workers' rights, which has been legitimised by the state and committees, must be brought to an end. A comprehensive change is still missing in large parts, but positive approaches can be found in some ARD institutions. At least for those who do not determine the content of the programme, ways have been found to avoid protracted lawsuits.

The tariff partners at Bayerischer Rundfunk negotiated a legally accurate solution. There, large parts of the collective agreement are valid for employees who do not determine the programme content. They are therefore employed on a permanent basis. A transitional collective agreement links collective bargaining rights with a court settlement. This gives the broadcaster legal certainty in return.

At rbb, an employment and remuneration guarantee was achieved for a roughly comparable group of people. In addition, some essential rights of the collective wage agreement apply to them. However, there is still no legal certainty about the status. These employees are still employed on a free-lance basis.

The same applies to the outcome of the SWR negotiations. In the future, all freelancers will receive a high level of employment guarantee after a certain period of employment (6 years for programme designers, otherwise 2 years). However, the 2 or 6 year limit and lower pay for career starters mean that there is a risk that a new precarious sector will emerge at SWR.

What about DW? This is where the management's previous blockade stance has left its mark. From ver.di there is a carefully elaborated draft on the table, which is based on a legally compliant solution. DW does not want to know anything about this, refers to the lack of approval of budgeted posts. Meanwhile it loses one status lawsuit after the other. Sit-out, silence, adjournment - a strategy that should soon fail.

[1]            In 2018, cases of sexual abuse were uncovered on WDR, the largest ARD channel. In a final report, Monika Wulf-Mathies, a former EU commissioner and trade unionist appointed as external expert, writes "that the issue of sexual harassment is the tip of the iceberg behind which abuse of power, experience of discrimination, but also only a general dissatisfaction or discomfort with the working atmosphere are hidden".

[2]            In 2000, the head of DW and the representative for culture and media fought a public battle of words. The occasion was a financial bloodletting planned by the then red-green coalition. As a result, the number of freelancers rose sharply while at the same time the number of permanent jobs was reduced: The cost reduction in the public service could thus be implemented in accordance with the doctrine of the " slim " state.

[3]      See Bundestag debate on DW's budget on 28.6.2018 and the previous deliberations on task planning in the Committee on Culture and the Media.

[4]      As part of the ARD structural reform, personnel costs are to be reduced, particularly in administration and production. Retraining and further training are essential in these areas, but not provided for freelancers and, if they are, usually in (unpaid) free time. At DW, the savings pressure is permanent and immanent.