Daniel Hammes

Many companies utilise the option of making their workers available to other companies or employing workers from other companies themselves in order to economically balance out the ups and downs of their workload or meet their flexible need for special skills. FPS therefore advises companies that loan and borrow temporary workers on all aspects of temporary employment (known as subcontracted work). Our expertise ranges from dealing with the official approval procedures for meeting the permit requirement to making the distinction between a contract for work and a contract for services. We also specialise in matters relating to the equal pay principle, according to which the loaning company is obliged to pay the same amount earned by subcontracted workers and permanent staff at the borrowing company.

Although our advice is aimed at preventing conflicts, legal disputes in the context of employment law are often unavoidable. FPS represents clients before all German courts and the European Court of Justice. In particular, we represent companies in proceedings concerning the legitimacy of trade union industrial action. Besides collective cases, representation also extends to individual dismissal protection proceedings as well as disputes in the areas of remuneration, the Employee Inventions Act, non-compete clauses and discrimination. We also support our clients in works council hearings and in approval procedures before the Integration Office. In addition, our mediators have considerable experience in out-of-court dispute resolution to avoid court proceedings.

Drawing up employment contracts for managing directors and board members as well as work contracts for employees at individual contract law level is one of our main focal areas in the field of employment law. This particularly includes the structuring of bonus and target agreements as well as other special allowances or employee share schemes (stock options, stock appreciation rights, etc.). In addition, we sit down with our clients to come up with tailored, innovative solutions to make working time models more flexible – by way of part-time contracts, working time accounts or fixed-term contracts, for example – and we are also very experienced in handling the termination of employment relationships, whether through dismissal or termination/settlement agreements, and dealing with the resulting issues regarding severance packages, holiday pay or preclusion periods.

FPS offers comprehensive advice on drafting and negotiating works agreements as well as proceedings held before the arbitration committee. We negotiate enforceable and voluntary works agreements, including provisions for working hours and benefits above the collectively agreed rate and with regard to holiday principles or provisions for operational integration management (OIM). 
In the event of any imminent operational changes, we are on hand to support our clients and help them to draw up fair arrangements and find the right social plan for both parties to reconcile the interests of all concerned. In addition, we devise transfer social plans, including provisions for the transition of employees to what is referred to as a transfer company. Our day-to-day consulting services therefore cover all matters relating to the impact of a works agreement, such as its scope, effective period, continuing effect, the concept of collectively agreed pension provision taking precedence over private provision (Tarifvorbehalt) and the applicability of what is known as the favourability principle.

FPS provides comprehensive advice on matters concerning works constitution law and employee representation law. Our expertise ranges from verifying the effectiveness of a works council election to dissolving the works council. We inform our clients about the responsibilities and authority of the works council as well as the consequences of failing to participate or incorrectly participating. In addition, we draw up legally compliant letters on a case-by-case basis concerning the involvement of the works council – in cases where there is a works council hearing, for example, in the event of dismissals or when the works council is approving the recruitment or redeployment of employees. In order to avoid the imposing of sanctions as set out in the Works Constitution Act, we also offer training courses on the correct way of dealing with the works council. In doing so, we provide guidance on the relevant standards for the various sections of the works council involved. Furthermore, we are on hand to support the preparation and conducting of proceedings before the arbitration committee.

FPS is the right partner for all restructuring and reorganisation measures, particularly for start-ups. In the planning phase, we find effective solutions in line with employment law, regardless of whether it involves reducing the size of the workforce, avoiding or effecting the transfer of an undertaking or consolidating companies. We conduct negotiations on reconciliation of interests as well as social plans and advise on the establishment of transfer companies together with a corresponding transfer social plan. In addition to providing comprehensive advice on the legal requirements for all measures, we also support the implementation of restructuring plans and advise on all ensuing matters, such as notification of mass redundancies, reduced working hours, redeployments and dismissals with the option of changes to employment conditions. Finally, we also conduct any dismissal protection proceedings.
 

Collective bargaining law raises many questions that we answer for our clients. For example, we advise on the applicability of collective agreements to employment relationships by means of reference clauses (Bezugnahmeklausel) or universal validity (Allgemeinverbindlichkeit). Our range of advisory services also includes matters concerning terminability, the option of withdrawing from collective agreements and membership of an employers’ association not bound to a collective agreement, and issues relating to the continued validity and continuing effect of collective agreements. We also advise and assist our clients in collective bargaining processes, weigh up the pros and cons of company agreements or master agreements and provide support in the event of industrial action such as strikes and lockouts – in court, if necessary, within the framework of preliminary injunction proceedings.