Work – Legal Definition and Comprehensive Perspective
The term “Work” (German: „Arbeit“ or „Werk“) has various meanings in different areas of law. In particular, in labor law, copyright law, contract law, and industrial property protection, “Work” plays a central role. The following paper provides a detailed analysis of the legal aspects of the term “Work” with a particular focus on the relevant legal fields of German and European law.
Conceptual Classification of Work in a Legal Context
1. Work in Labor Law
1.1. General Definition of Work
In the context of labor law, “Work” refers to the activity performed by a natural person for remuneration with the purpose of economic value creation within an employment relationship. The legal definition includes both dependent work (employee) and self-employed work (e.g., freelancers, service providers).
1.2. The Concept of Employee
According to § 611a of the German Civil Code (BGB), an employee is someone who, on the basis of a private-law contract, is obliged to perform work determined by others in a personal dependency and according to instructions from the employer in the service of another. The distinction from independent contractors and work contractors is based on the degree of personal dependency and integration into the employer’s work organization.
1.3. Obligations Arising from the Employment Relationship
The principal duty of the employee (“Work”) is to perform the contractually owed activity (duty to work). In return, the employer is obliged to pay remuneration. Breaches of the duty to work may have consequences under labor law, such as warnings or dismissals.
2. Work in Contract for Work and Services Law
2.1. Work (§§ 631 et seq. BGB)
In the law of contracts for work and services, “Work” refers to the product or service to be produced or rendered. According to § 631 BGB, the contractor undertakes to produce a specific work, while the customer is obliged to pay the agreed remuneration. The performance under a contract for work differs from the performance of work in employment law in particular by the fact that a specific result (that is, a concrete work) is owed.
2.2. Rights and Obligations in a Contract for Work
- Guarantee of Success: The contractor owes a specific result, not just an activity.
- Warranty Rights: In case of defects, the customer is entitled, among other things, to subsequent performance, reduction, withdrawal as well as to compensation for damages (§§ 634 et seq. BGB).
- Acceptance: Acceptance of the work is a central requirement for the claim of remuneration.
2.3. Distinction Between Service Contract and Employment Contract
A contract for work and services differs from a service contract (where an activity is owed) by the achievement of a result, and from an employment contract by the absence of a superior right to give instructions.
3. Work in Copyright Law
3.1. Concept of Work (§ 2 UrhG)
For the purposes of copyright law, “Work” (German: Werk) refers to a personal intellectual creation that achieves a certain level of originality and bears individual character. Protected works include, in particular, literary works, musical works, works of fine art, cinematographic works, and computer programs.
3.2. Subject Matter of Protection and Rights
- Copyright Protection Term: Generally 70 years after the death of the author (§ 64 UrhG).
- Exclusive Exploitation Rights: The author has the right to reproduce, distribute, and publicly communicate their “Work” (§§ 15 et seq. UrhG).
- Right to be Named and Protection from Distortion: The moral right of authorship (§ 13 UrhG).
3.3. Difference from Utility Models and Patents
Technical inventions cannot be protected as a “Work” within the meaning of copyright law, but may be protected under patent or utility model law.
4. Work in Industrial Property Protection
4.1. Industrial Property Rights
In the context of industrial property protection, “Work” especially refers to the results of creative activity that can be protected by trademarks, patents, design, or utility model rights. The requirements for protection and the scope of rights differ for each.
4.2. Employee Inventions
If a “Work” in the form of an invention is created within the scope of an employment relationship, the provisions of the Employee Inventions Act (ArbnErfG) apply. The rights to the invention can be claimed by the employer, for which the employee is entitled to appropriate compensation.
5. International Dimension of Work
5.1. European and International Law
The regulations regarding the term “Work” are significantly influenced by international treaties (e.g., Berne Convention for the Protection of Literary and Artistic Works) and European directives (e.g., InfoSoc Directive on copyright law).
5.2. Conflict of Laws
In cases of cross-border employment or work performances, private international law applies (e.g., Rome I Regulation for contractual relationships).
Summary and Outlook
The term “Work” in a legal context encompasses a wide variety of forms that are defined and protected differently depending on the field of law. In labor law, the concept of the employee and the associated duty to work are central, while in the law of contracts for work the term refers to the result to be produced. In copyright law, “Work” represents the protectable intellectual creation. Industrial property protection extends the concept to commercial works and inventions. Due to this complexity, a precise definition based on the relevant legal foundations is required in each individual case.
Note: The exact legal assessment and classification of the term “Work” always depends on the particular context and area of law. This must be taken into account when interpreting legal claims and obligations.
Frequently Asked Questions
What statutory regulations apply in German labor law regarding probationary periods?
The probationary period in German labor law is essentially regulated by § 622 (3) of the German Civil Code (BGB). During the probationary period, which may last no longer than six months, the employment relationship may be terminated by either the employer or the employee with a notice period of two weeks. The specific duration of the probationary period can be freely agreed upon in the employment contract but may not exceed the maximum duration. During the probationary period, essentially the same working conditions apply as for the remainder of the employment relationship, but statutory protection against dismissal under the Dismissal Protection Act (KSchG) usually does not apply yet, as this only takes effect after six months of employment. Exceptions exist in special cases, such as discrimination or violation of the Maternity Protection Act or the General Equal Treatment Act (AGG). During the probationary period, there is also an entitlement to continued payment of remuneration in the event of illness, provided the employment relationship has existed for more than four weeks (§ 3 EFZG). Note also that extending the probationary period beyond six months is not legally permissible. It is not mandatory to agree on a probationary period; it can be omitted.
Which working time models are permissible in German law and how are they regulated?
German working time law (Arbeitszeitgesetz, ArbZG) regulates permissible working hours and obliges employers and employees to observe certain limits. The classic model is full-time work, usually 40 hours per week over five working days. There is also part-time work, whose legal framework is set out in the Part-Time and Fixed-Term Employment Act (TzBfG), where employees may have the right to reduce their working hours. There are also flextime models, where employees can determine their working hours within certain limits, but the statutory maximum working hours per day (maximum eight hours, extendable up to ten hours with compensation, § 3 ArbZG) and break regulations (§ 4 ArbZG) must be observed. Night and shift work are governed by special protective regulations (§§ 6-7 ArbZG). In the case of trust-based working time, the employer does not strictly monitor exact working time, but legal requirements must still be met. Working time models must always comply with labor law, and—if applicable—with the provisions of any collective agreements.
What legal provisions exist for the limitation of employment contracts?
The limitation of employment contracts in Germany is governed by the Part-Time and Fixed-Term Employment Act (TzBfG). In principle, a distinction is made between limitations with and without objective justification. A limitation without objective justification is, according to § 14 (2) TzBfG, permissible for a maximum of two years and may only be extended up to three times. Employees who are newly hired on a fixed-term basis may be employed under this provision if there has been no previous employment relationship with the same employer. A limitation with objective justification, on the other hand, is not generally restricted in time if certain legal grounds exist, such as temporary need or replacement of another employee (§ 14 (1) TzBfG). Special rules apply for older employees and under collective agreements, where different regulations may apply. After expiry of the limitation, the employment relationship ends automatically without the need for termination. If the limitation is invalid, the employment relationship is considered to be indefinite. It is important that both the limitation and its objective reason be set out in writing in the contract (§ 14 (4) TzBfG).
What rights and obligations do employees have regarding leave under German law?
German leave law is primarily based on the Federal Leave Act (BUrlG). Every employee is entitled to paid recreational leave, which by law amounts to at least 24 working days per calendar year for a six-day work week, or at least 20 days for a five-day week. Collective bargaining agreements, works agreements or employment contracts may provide for more generous leave entitlements. The full entitlement arises after six months of employment; prior to that there is a proportional entitlement. The employee’s holiday wishes must be taken into account unless urgent operational concerns or leave requests of other employees with greater social priority conflict with them (§ 7 BUrlG). The employer may not unilaterally set or refuse leave. Payment in lieu of leave is only permitted if the leave could not be taken in whole or in part due to termination of employment. If an employee becomes ill during leave, those days are not counted toward leave entitlement (§ 9 BUrlG), provided a medical certificate is presented. Leave is generally to be taken in the current calendar year and can only be carried over to March 31 of the following year for urgent operational or personal reasons (§ 7 (3) BUrlG).
When is it advisable to bring an unfair dismissal claim and what is the legal procedure?
An unfair dismissal claim is advisable if an employee questions the validity of a termination issued by the employer, for example due to lack of social justification, formal errors or breach of special protection (e.g., for pregnant women or works council members). The claim must be filed with the competent labor court within three weeks after receipt of the written notice of dismissal (§ 4 KSchG). After this period, the dismissal is considered legally effective. During proceedings, the court examines, in particular, compliance with notice periods, existence of grounds for termination, and, where applicable, special protection against dismissal. Employees with more than six months’ service and in companies with more than ten employees enjoy general protection against dismissal (§ 1 KSchG). The outcome may be a settlement (severance pay) or judgment (reinstatement or confirmation of the termination). Importantly, if the employee is successful, they must expect to return to their workplace unless another agreement is reached.
What statutory provisions govern maternity protection and parental allowance?
Maternity protection is regulated in the Maternity Protection Act (MuSchG) and protects pregnant employees and young mothers from hazards at work, financial losses, and job loss. Central features include the employment ban six weeks before and eight weeks after childbirth, extended to twelve weeks for premature or multiple births (§ 3 MuSchG). During this time, there is an entitlement to maternity pay and an employer’s supplement (§ 19 MuSchG). In addition, a prohibition of dismissal applies (§ 17 MuSchG), from the beginning of pregnancy until four months after birth. Parental allowance is regulated in §§ 1 et seq. of the Federal Parental Allowance and Parental Leave Act (BEEG) and can be claimed by mothers and fathers who look after their child themselves after birth and therefore do not or do not fully work. The amount of parental allowance is based on previous net income, ranging from at least €300 up to a maximum of €1,800 per month. Parental leave, during which there is also protection against dismissal, may last up to three years. There is a right to return to comparable working conditions afterwards. The application for parental leave must be submitted in writing at least seven weeks before it begins (§ 16 BEEG).
What rights do employees have in case of illness, and what obligations exist towards the employer?
In cases of incapacity for work due to illness, the rights and obligations of employees and employers are primarily governed by the Continued Remuneration Act (EFZG). Employees must notify the employer without delay of the incapacity for work and its expected duration (§ 5 (1) EFZG). If the illness lasts longer than three calendar days, a medical certificate must be submitted no later than the following working day. The employer is obligated to continue to pay remuneration for up to six weeks provided the employment relationship has existed for at least four weeks (§ 3 EFZG). If incapacity persists, the health insurance fund is responsible for sick pay. The employee must refrain from anything that could hinder recovery. Repeated or prolonged illness may, under narrow conditions, constitute grounds for termination for personal reasons, especially if company reintegration management is unsuccessful (§ 167 (2) SGB IX). In the event of illness, leave is not counted against entitlement, provided a medical certificate is presented (§ 9 BUrlG). In case of suspected abuse, the employer can order an examination by the medical service. In case of suspected infectious disease, there is also a notification obligation under the Infection Protection Act (IfSG).
