Current issues in classification
On 1 September 2022, the National Institute for Public Administration Germany (NIPAG) held a workshop on contemporary issues of classification under the direction of Prof. Dr Constanze Janda and Milena Herbig. The workshop addressed ongoing legal issues and provided ample opportunity for discussion and exchange.
Prof. Dr Jürgen Treber, Chairman of the 4th Senate of the Federal Labour Court (Bundesarbeitsgericht - BAG), which is responsible for classification, began by giving an overview of the Senate's current case law on the subject. He specifically addressed the controversial decision on work processes in the activities of two legal assistants in a service unit, placing it in the context of long-standing developments in case law. He explained the importance of job descriptions and addressed the burden of proof in classification disputes.
In a world café format, the participants then discussed the topics of 'work process', 'uncertain legal concepts' and 'non-discriminatory classification'.
Dr Eberhard Natter, President of Baden-Württemberg State Labour Court (Landesarbeitsgericht - LAG), addressed the significance of work processes and the influence of the Federal Labour Court's case law on them. He also presented strategies to prevent a 'distorted' classification outcome, drawing on examples from the participants' experiences. The majority of participants agreed that an overly granular division of activities would not be a viable solution. The question was also raised as to whether problems could be solved on a departmental basis, rather than starting with the work process as the concept.
Simone Heim and Birgit Stegmann from Pirmasens Town Council led the group on the topic of 'uncertain legal concepts'. The group concurred that remuneration structures could encompass all roles, but not necessarily all competencies required for each role. The question arose as to whether, in cases where tasks required increased demands on the 'soft skills' of employees, these could influence the classification. One solution put forth was to subsume them under the concept of 'specialist knowledge'. There were concerns about the measurability of soft skills.
Prof. Dr Reingard Zimmer (Berlin School of Economics and Law - Hochschule für Wirtschaft und Recht Berlin - HWR Berlin) introduced the topic of 'non-discriminatory classification'. Prof. Dr Constanze Janda led the world café discussion on this topic, which focused on gender discrimination. Participants expressed differing views on whether collective agreements based on objective criteria could potentially lead to discriminatory outcomes. However, there was consensus that the social value of certain professions is reflected in their remuneration. In this context, the discussion also addressed the measurability of skills such as teamwork, communication and multitasking, which are often attributed to women.
Finally, Sebastian Günther, Deputy Managing Director of the Association of Local Authority Employers (Vereinigung der kommunalen Arbeitgeberverbände - VKA), provided commentary on the issues from the perspective of one of the social partners involved. Unfortunately, the planned contribution by ver.di from a trade union perspective was unable to proceed at the last minute. Sebastian Günther explained that the topic of work processes in particular is currently playing a less important role, although he sees a need for change here. On the whole, however, the collective agreements are proving to work well.