Calculation of the duration of a worker’s employment in Germany
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Section 13c of the Posted Workers Act (Arbeitnehmer-Entsendegesetz - AEntG) stipulates the method for calculating the period during which a worker is deemed to be posted to Germany. These calculation methods serve as the basis for determining whether a posting counts as a long-term posting and additional terms and conditions of employment are therefore to be observed.
Case examples
The method used to determine the period of employment within Germany depends on the contractual basis on which the worker works in Germany:
1. Employment of a worker in the framework of contracts for work or service
If the employer has entered into a contract (or multiple contracts) over the delivery of services or work to one or several contract partners in Germany, and if the employer posts a worker to Germany in order to do this work or deliver these services, the duration of employment in Germany is calculated by adding up all times during which the worker works in Germany for the purpose of fulfilling the respective contracts.
A client in German has awarded a contract over electrical installations for 40 buildings in a new development zone to a foreign-domiciled company. The buildings are raised during different construction phases. The contractor posts an electrician to Germany to do this work. The worker needs two weeks per building. The duration of employment in German is thus 40 x 14 days = 560 days.
2. Employment within the framework of an intra-group posting
If a worker is temporarily posted to an enterprise in Germany that belongs to the employer, or to an enterprise in Germany that is affiliated with the employer in the sense of Section 15 of the Stock Corporation Act (Aktiengesetz, AktG), the duration of employment in Germany is calculated by adding up all times during which the worker works at the affiliated enterprise in Germany.
"Affiliated enterprises" are defined as
- enterprises where one is the majority interest owner of the other,
- controlled and controlling enterprises,
- enterprises belonging to the same group,
- cross-shareholding enterprises, or
- parties to an inter-company agreement.
A German company owns a subsidiary outside Germany. Within the framework of an intra-group project, workers employed by the subsidiary are to be posted to the German company for a longer period of time. The duration of employment in Germany includes all times during which a given worker works at the German company.
3. Posting in the framework of hiring-out of workers (temporary work)
If a temporary worker is posted to Germany, two cases must be distinguished:
Hiring out a worker to an enterprise in Germany
If the employer hires out a worker to an enterprise domiciled in Germany, the duration of employment in Germany is deemed to be the sum of all times during which the worker works in Germany in the framework of the labour supply agreement.
A temporary employment undertaking or placement agency domiciled outside Germany hires out an IT specialist to an enterprise domiciled in Germany. In order to determine the duration of employment in Germany, all times are added up during which the IT specialist works at the German enterprise in the framework of the labour supply agreement.
Posting to Germany of a temporary worker hired out to a foreign-domiciled enterprise
If an employer hires a temporary worker outside Germany and then posts said temporary worker to Germany, the duration of employment in Germany is calculated in the same way as if the temporary worker were an employee of the hiring enterprise. This means that the employer must observe the rules under 1 and 2.
A manufacturer of machines domiciled in another Member State temporarily hires an IT specialist from a temporary work undertaking or placement agency in that country. The manufacturer wins a contract over work to be carried out in Germany. In order to fulfil the contract, the manufacturer posts said hired IT specialist to Germany. The duration of employment in Germany is the sum total of all times during which the IT specialist works in Germany for the purpose of fulfilling the contract.
4. Interruption of work
If a worker is posted to Germany according to the conditions exemplified above and work is temporarily interrupted, the interruption is not deemed to be a termination of work in Germany. The calculation of the duration of employment in Germany thus does not start anew once the worker resumes his or her work in Germany.
Generally, the time during which the worker temporarily interrupts work in Germany is counted fully towards the duration of employment. The following list contains some examples of non-working periods that are counted fully towards the duration of employment:
- free days of a worker working part-time (free days are counted),
- interruption due to weekends or public holidays (weekends and public holidays are counted),
- interruption due to sickness (sick days are counted),
- interruption due to vacation (vacation days are counted).
As an exception to this rule, the following periods during which work is interrupted are not counted towards the duration of employment in Germany:
- Interruptions during which the worker works outside Germany. If the period during which the worker works in Germany is interrupted because the worker works in a different country, such periods are not counted towards the duration of employment in Germany.
A foreign-domiciled employer sends several workers to Germany in order to work on a major contract. Some of these workers are called back temporarily because they are needed at the company headquarters outside Germany. After a few weeks, they return to Germany to continue working in the framework of the above contract. The weeks during which the respective workers work at the company headquarters are not counted towards the duration of employment in Germany. However, the times during which a worker works in Germany before and after the interruption for the purpose of work at the company headquarters are added up.
- The obligations arising from the employment relationship will be suspended during the interruption.
- If work is interrupted and the mutual obligations arising from the employment relationship are suspended, the period during which work is interrupted is not counted towards the duration of employment in Germany. Examples for such periods during which mutual obligations are suspended are: maternity leave, parental or caregiver leave (provided that the worker is on full leave of absence), unpaid special leave.
For important personal reasons, a worker temporarily posted to Germany asks his or her foreign-domiciled employer for four weeks of unpaid special leave beyond his or her contractual leave entitlement. The employer agrees. The time during which the worker is not working because he or she is on unpaid special leave is not counted towards the duration of employment in Germany.
5. Continued employment in Germany immediately after a posting according to cases 1 to 3 above
If a worker continues to work in Germany immediately after a posting in accordance with the cases outlined under items 1 to 3 above, the periods of both employments are added up. An immediately connection exists, when there is no employment of the worker in another Member State between the two jobs in Germany.
A foreign-domiciled employer posts a worker to Germany in order to work on a specific contract. Shortly before the work under this contract is completed, the employer is awarded a different contract by a different client in Germany. The employer asks the worker to go on to work on the next contract immediately after completing work under the first contract. The duration of employment in Germany is calculated by adding up the periods under both contracts.
6. Work in Germany that does not fall under cases 1 to 3 above
If a worker is posted to Germany due to a circumstance not exemplified by cases 1 to 3, the duration of employment in Germany is deemed to be the entire time during which the worker works in Germany without interruption. When the worker stops working in Germany, for example because he or she is posted to a different country, the calculation of the duration of employment ends. If the worker is then posted to Germany again, the calculation starts anew ("from zero").
A foreign-domiciled employer posts a worker to Germany in order to acquire clients for the employer. After ten months, the worker is called back to the company headquarters in the foreign country, where he or she works for three months. After that, the employer sends the worker to Germany again for another ten months in order to work on a contract. In this case, both employment times would not be added up, as the first posting was not a deployment in the framework of the fulfilment of a contract for service or work.
7. Adding employment times if the worker posted to Germany is replaced by another worker
If an employer replaces a worker temporarily posted to Germany by another worker, both employment times may be added up. According to Section 13c (7) Clause 1 of the Posted Workers Act this is the case if the replacing worker performs
- the same activities
- in the same place.
"Same Activities"
According to Section 13c (7) Clause 2 of the Posted Workers Act workers perform the “same activities” if they essentially carry out the same tasks and one of the following conditions applies:
- The work is carried out in the framework of the same contract for work or service,
or - the work is carried out in the same operation or affiliated enterprise of the employer in Germany,
or - the worker works at the same German-domiciled enterprise hiring a temporary worker.
"Same place"
According to Section 13c (7) Clause 3 of the Posted Workers Act workers are deemed to perform their activities in the “same place” if one of the following conditions applies:
- The workers perform their activities at the same address or in the immediate vicinity of the same address,
or - the workers perform their activities in the framework of the same contracts for work or service and work at addresses to which these contracts apply.
If you send a worker to Germany to work on a post on which you have previously employed several other workers, all working times of the workers who previously worked on this post will be added to the duration of employment of the last worker who worked on this post.
Worker A works on a post for 10 months. Worker B then works on the same post for 8 months. Finally, Worker C works on this post. The periods of employment in Germany of Worker A (10 months) and Worker B (8 months) are added to the period of employment in Germany of Worker C. From the first day of his or her posting, Worker C is thus treated as if he or she had been working in Germany for 18 months already.
