Interview with the former works council chair and IWW-member Harald Stubbe on covert subcontracted labour, working conditions, his lawsuit against the district and the possibilities of works council work.
Harald, until your retirement at the beginning of 2021 you were employed by Kinderbetreuung im Taunus GmbH (KiT) as a school participation assistant. What kind of company is that?
The Kinderbetreuung im Taunus GmbH (KiT) is a company that runs daycare centers and care centers for children at over 50 locations. It also employs participation assistants or integration supporters that look after disabled children at over 50 schools in the Hochtaunus district. Moreover, there are kitchen and housekeeping staff. In total, more than 700 people are employed there.
In December, you filed a suit against your employer. What is that about?
The participation assistants work at the schools according to the instructions of the school management or the teachers.
Anyone who knows anything about labour law immediately suspects that this is temporary work.
What did you do in response? After all, until the end of 2020, you were chairman of the works council that was newly elected in May. Did that help you in uncovering the subcontracted labour?
As chairman, it’s easy to get information. So, I inquired at the Federal Employment Agency. They said that in this case, it was a transfer of workers that required a permit. They thought I came from the company’s management and recommended urgently to register the temporary working relationships immediately because else the firm makes itself liable to prosecution.
Then I researched that with the temporary work. I had the German Employee Leasing Act as a reference point. To be sure, you can find the legal texts on the internet, but there you don’t have any comments. If you’re a works council member, you can get all the books – the employer has to pay for them. We have a proper library now, it already fills a whole cabinet. There you can look up if you are interested in something. The comments as well, because without those all the legal texts are of no use to you.
What did your research reveal in concrete terms?
According to my employment contract, I was hired by Kinderbetreuung im Taunus GmbH (KiT) as an “integration helper”. In fact, however, Kinderbetreuung im Taunus GmbH gave me to the Helene Keller School in Oberursel to perform work in accordance with the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG).
Contrary to what was stated in the employment contract, it was not KiT but the school management of the Helene-Keller-Schule who acted as the superior authorised to issue instructions. For example, agreements on deployment and sick notes were only made internally at the school, without the contract employer, Kinderbetreuung im Taunus.
I also had the job interview with the school management and not with KiT.
In their daily work, integration assistants are fully integrated into the work organisation of the school.
In principle, it is the task of integration assistants to accompany and support children and young people with mental disorders or mental or physical disabilities individually in their everyday school life.
In practice, the integration assistants are not only responsible for one child, but they take over support activities for the whole class. Their tasks include making tea, preparing fruit, setting up the chair circle, picking up pupils from the bus, supporting pupils in toileting, organising the class breakfast, checking the shelf life of food, replenishing paper and soap, providing disposable gloves and disinfectants, as well as disinfecting tables and door handles.
The school management also holds regular conferences for all integration assistants/participation assistants and provides them with their own timesheets to record their hours. These are further indications that integration assistants have a de facto employment relationship with the school where they are employed – and not with their alleged employer, the KiT.
In the first two years of my employment, my only contacts with KiT were that I sent my application documents there, received my employment contract from there and my payrolls were issued by them.
So I was employed as a subcontracted worker at the Helene Keller School, to which my employee services were made available – i.e. lent – by the KiT where I had signed the employment contract.
And that is illegal?
It can be expected that Kinderbetreuung im Taunus GmbH does not have a permit to hire out workers according to § 1 of the Employee Leasing Act (AÜG). It is therefore obviously “impermissible personnel leasing”.
However, according to § 9 AÜG (Employee Leasing Act), both the hiring out of workers without the legal permission as well as employment contracts without the explicit designation as contracts for the hiring out of workers lead to the invalidity of the subcontracted employment relationship.
What does this mean in consequence?
In German legalese, this means that as a legal consequence of the invalidity according to § 10 AÜG, an employment relationship exists between the hirer and the employee. This means, firstly, that the participation assistants are entitled to payment of the standard wage at public schools. Secondly, if they have worked at a school for more than 18 months, they are employees of the school. Potentially, the standard wage may also be awarded retroactively.
Considering the fact that integration assistants only earn just above the minimum wage, for more than 300 previously precariously employed this would mean a considerable increase in income in one swoop!
How did the management of KiT react?
We had the advantage that the manager had no clue about the facts. She was principally just as ignorant as the Works Council at first. After I had researched the case, it was pretty clear. The manager then kept calling me and asking what she should do to get out of the situation. She didn’t know that the KiT was doing something there that was actually illegal.
You did not file a complaint against your employer, KiT, but against the Hochtaunuskreis. Why is that?
KiT is to 100% owned by the Hochtaunuskreis. The district is the sole shareholder of this company, i.e. it is the owner of the KiT. The Helen Keller School is also a district-owned school. The clients of KiT GmbH are the Youth Welfare Office and the district’s disabled care program. The Hochtaunuskreis is therefore both the owner and the customer of KiT GmbH. The construct was created because the Hochtaunuskreis is subject to the tariff obligation. KiT was founded by the Hochtaunuskreis, one of the richest counties in Germany, partly with the intention of circumventing wage-policy regulations, i.e. to not have to pay standard wages. This means for the integration assistants, that they make it possible for many children to attend school, thereby doing valuable work for their families and for society as a whole. In return, they are paid just above the legal minimum wage. That in itself is a huge scandal. For people who were hired by the KiT 20 years ago and who received, for example, 12 euros and thus more than the later introduced minimum wage of 9.50 an hour, this means that they have not had a wage increase for 20 years. Because there are only wage increases when the minimum wage increases. So the people who are above the minimum wage have never had a wage increase. This is a perverse story.
Besides, it is of course a scandal, because both the company hiring out the workers (KiT) and the company hiring them (Helen-Keller-Schule), which both belong to the Hochtaunuskreis, have committed a criminal offence.
Where do we go from here?
On 9 June there will be a hearing in the Labour Court. If I win, I will advise all my colleagues to take legal action as well. This would lead to a real flood of lawsuits and, if successful, to significant increases in income for the participation assistants and integration assistants.
Did public actions also take place?
On 26 February there was a conciliation hearing at the Frankfurt Labour Court. The following week an article was published in the Taunus Zeitung in which the case was presented comprehensively – very positively from the employees’ point of view.1
On 8 March, the International Women’s Day, at 3.30 p.m. a demonstration, registered by me, took place on Waisenhausplatz in Bad Homburg according to the motto: “Why don’t you pay the people who look after your children the same as those who look after your money“ for significantly higher wages and a collective agreement for the participation assistants. Even the vice-chairperson of the GEW Hessen gave a speech. We were thus able to publicly reinforce our demands. The press was also present at this demonstration. This made the scandalous conditions at KiT and the justified demands of the employees public.2
Did the demonstration have any concrete effect?
It did indeed! Just three days later, the KiT offered collective negotiations! Of course, these must now be conducted consistently in the interests of the workers. We have to put pressure on the GEW and continue to publicise the matter.
That doesn’t sound bad at all. Looking back at your time as works council chairmen, what improvements have you been able to achieve for the colleagues since the works council election at the end of April 20203?
The very first thing we did at the Kinderbetreuung im Taunus in the works council: we demanded an internal job advertisement. And if the works council demands that, then that has to be done. This means that if people who work at whatever school where they were placed read in an internal job advertisement that there is a vacancy at a school near their home, they can apply internally and save the travel costs. That was already a signal: suddenly we get the internal job advertisement. Otherwise, it was just luck when you read about a suitable position in the newspaper.
As chair of the works council, I also immediately concluded a company agreement on health safety for my colleagues. This was particularly important because we participation assistants cannot keep any distance from the children we look after – Corona or not. Since then, the employees are provided with medical masks by the employer – originally they were supposed to buy them themselves, or tie cloths around their heads. Every 70 minutes, they are then entitled to a break, during which they can also remove the masks. In addition, the employer must provide protective clothing for certain activities.
As the next step, the works council advised employees to send overwork notices to the employer.
What do you mean by overwork notice?
At times there were extreme shortages in the staffing level due to illnesses etc. There were often situations in which some colleagues had to look after 60 children at the same time. You can’t possibly do that. Most people don’t even dare to complain to the management. If something happens then – if in the worst case a child dies – because you weren’t paying attention – couldn’t pay attention! – then the prosecutor says ‘You as a professional should have known that you cannot look after 40 to 60 children on your own. Why didn’t you do anything about it?’ Then, as a caregiver, you are fully responsible for violating your duty of supervision. The works council advised people to send overwork notices to the employer. If you, as an employee, write an overwork notice and send it to the employer, you are telling him that you are overloaded and cannot perform the work properly. If the employer doesn’t react, if he doesn’t end the situation, then he is responsible if something happens. Otherwise, they can simply say ‘We didn’t know you were overburdened’.
Most people don’t even know that. Especially in the care and nursing sector, workers always have one foot in prison. Because there is a works council, people complain to the works council, because most of them don’t dare to complain to the management. When the works council points out the possible consequences of overwork, their fear of that becomes greater than their fear of the management. Then they send the employer an overload report and are off the hook if something happens.
Overwork and increasing workload are widespread problems – especially in the social sector. What else have you been able to achieve in the works council to improve the situation of the employees?
Another problem was the duty rosters. They were often changed four times a week by the management without any consideration for the workers. The works council was able to stop this because of its co-determination rights.
In several cases, I have accompanied colleagues to talks with superiors. In almost all cases, conflicts could be resolved in the interest of the colleagues. One colleague was working in the kitchen at another school and she was not feeling well there. The management wanted to suspend her and I said, ‘No, the colleague will not be suspended, she can be transferred to another position’. Now she works as a participation assistant; she likes working with the children much better.
The works council finds out what is going on at the different schools where colleagues from the childcare department are working. Often you don’t even know what’s going on in another department in a company – you usually don’t even know the people. The works council, on the other hand, has information rights. The company, the firm, has to inform you. Every recruitment, every dismissal is invalid if the works council is not heard beforehand.
These are all things that you can do as a works council. Many small things, but those are very important for the individual. If you can only prevent one dismissal, that alone is worth it.
At Kinderbetreuung im Taunus we have very different wages. We then inspected the gross wage list. You have that right as a works council. We found out that there are serious differences. And then the works council has the right to establish principles for the payment of salaries. You can say to the employers: “If you want to pay unequally, you have to justify it.” If someone starts freshly, he/she might earn less, but after two years he/she will get more – and not simply according to the motto: “I like his nose, I don’t like her nose”.
The last thing I initiated – I hope that my successors will follow through now – was that 10 euros a month should be paid for account maintenance charges. I then said that the 10 euros should not be paid per month, but that people should get 120 euros in November – like a kind of Christmas bonus. That’s not much either, but it’s better than nothing – especially when wages are low anyway.
In May 2020, short-time work was introduced at KiT due to the officially ordered school closures. This was before the works council’s constituent meeting. So you could not yet exercise your right of co-determination on this issue. Were you nevertheless able to achieve something for the affected colleagues?
When short-time work was introduced in May 2020, we immediately went to the press, publicised it and demanded that the district pay 80% instead of the stipulated 60% as short-time work benefits.
Were you also able to achieve something for the 450-euro employees in connection with the school closures? They are not even entitled to short-time allowance and would therefore get nothing. After all, at KiT this affects about 300 people, almost half of the staff.
We managed to ensure that the colleagues employed on a 450-euro basis were not dismissed during the school closures. This meant that they had to continue to be paid. Otherwise, they would have had to be duly dismissed in accordance with the legal notice periods and of course continue to be paid until the dismissal was effective. I communicated this to the management. If the employer does not give proper notice, he is in “default of acceptance” and must continue to pay the people.
Then you have been able to achieve a lot in these difficult times when workers’ rights are being dismantled in many cases. So you would strongly advise workers, if they have the opportunity, to found a works council?
By all means! A works council has so many rights and opportunities that you should never do without! To put it bluntly, you could say: if someone doesn’t want a works council, they don’t really want to do anything for the people. They want to distinguish themselves and be celebrated, and if they really do something, they will be thrown out. If you consistently use the possibilities that a works council has, then you will also get something out of it.
Local branch Bochum/Ruhrgebiet
Local branch Frankfurt
The questions were asked by: gregor (GMB Bochum/Ruhrgebiet)
Contact: firstname.lastname@example.org or email@example.com
»Next date: June 9th, Hearing in the Laour Court Frankfurt on Harald Stubbes suit on concealed subcontracting«
Note 1: „Früherer Integrationshelfer klagt gegen den Kreis“ (Taunus Zeitung 02.03.2021)
Note 2: Under the headline “Für eine gerechte Bezahlung” (For fair pay), the Taunus Zeitung reported on the individual lawsuit of the colleague and its significance for hundreds of employees, on the protest action on 8 March, as well as on the fact that the district refuses to make a public statement on the lawsuit and the conditions in the district-owned KIT GmbH. (Source: Taunus Zeitung,) Another article on the demonstration appeared under the title „KiT-Mitarbeiter demonstrieren für mehr Lohn“ (KiT employees demonstrate for more pay) on the same day in the Bad Homburger Kurier.
Note 3: In this interview (only in German), Harald Stubbe explains the circumstances surrounding the establishment of the works council in spring 2020:
- October 27 @ 8:00 pm - 10:00 pm
- October 29 @ 6:00 pm - 8:00 pm
- November 1 @ 8:00 pm - 10:00 pm
- November 9 @ 8:00 pm - 10:00 pm
- November 15 @ 6:30 am - 8:30 pm