Occupational health in slaughterhouses in Germany: translating political claims into Legal Language during the COVID-19 pandemic

2.1 Knowledge translation

Translation as a concept and keyword has emerged in several disciplines (D’hulst/Gambier 2018: 85). In the early 2000s, it became an institutionalised concept in health studies, leading to the introduction of so-called knowledge translation (KT) (D’hulst/Gambier 2018: 85). KT plays a fundamental role in hegemonic discourses of global health as it entails the transfer of scientific knowledge across innumerable socio-cultural sites to target human bodies through medical practices and health policies (D’hulst/Gambier 2018: 87). Social sciences and humanities emphasise the importance of cultural contexts in KT processes of health policies production (Engebretsen et al. 2022: 29–30). The concept of KT, then, amounts to a critical reflection about what ought to be considered knowledge and evidence (ways of knowing) and how the cultural context actively shapes knowledge production (Engebretsen et al. 2022).

In our analysis of disciplinary translations, we use the concept of KT to trace how civil society actors, in particular labour unions, channel knowledge of occupational health problems into political and legal claims. Through this lens, we examine how the specific cultural context of precarity prevailing in slaughterhouse work directly affects knowledge production and thus attempts to regulate occupational health (infra subsection 3.2). We observe that political claims are based on the production of knowledge, specifically empirical descriptions of social phenomena. These empirical descriptions and knowledge production are already largely shaped by legal rules and legal practices leading to a hierarchy of knowledges (quantitative knowledge being of greater importance than qualitative knowledge), making it necessary to understand the legal framework and practices within which social interactions in slaughterhouses occur. Hence, political claims to change a specific social situation need to be translated into legal propositions: what would an improved “law in the books” look like for this situation, and how does this alter the “law in action” as experienced in social interactions (Pound 1910: 25)?

Using translation as a focal point allows us to observe both the dynamics of knowledge production and the shift in language from political to legal. Thus becomes apparent the need for disciplinary proficiency among those involved to ensure mutual understanding. While translation as a concept is relevant for analysing law from different origins (Mangold 2014), our focus is on knowledge translations between different disciplines. When examining a legislative process, we discover the autonomy of both legal language and legal processes ordering knowledge hierarchically. However, this legal autonomy is not to be understood as an abstraction from social reality, but rather as an argumentative form to channel social, economic and political claims. In illuminating these processes, the relevance of disciplinary and knowledge translations becomes visible.

2.2 Interviews

In assessing the role of civil society actors in the legislative process of the ArbSchKG, we conducted semi-structured in-depth interviews with two representatives of the specialised German Food, Beverages and Catering Union,^[4] and one representative of the Faire Mobilität counselling centre for workers from Central and Eastern Europe. Faire Mobilität is partly funded by the German Trade Union Confederation^[5]. Faire Mobilität is a union-oriented key partner of the NGG, particularly in gathering empirical evidence (knowledge production).

The interviews allow us to adequately analyse the complex policy processes. Semi-structured interviews enable researchers to understand policy processes by focusing on the perspectives of relevant stakeholders. Minichiello, Aroni, Timewell and Alexander (1995) argued that interviews are a favourable choice when it comes to bridging knowledge gaps, particularly regarding complex processes. Lynch (2013) added that interviews provide an avenue to acquire insights into the personal experiences and motivations of the interviewees that might not be accessible through public sources or merely through their answers in surveys or questionnaires. Interviews offer a level of understanding regarding opinions and thought processes that surveys often struggle to achieve. Moreover, interviews can supplement macro-level observations by offering micro-level perceptions of events or phenomena.

We selected interviewees based on their expertise. From the NGG, we interviewed the head of the legal department (herein: Interviewee A) and the head of the NGG’s Berlin office (herein: Interviewee B). As a lawyer, interviewee A is involved in representing the union’s legal claims and translating its social and political claims into legal language, including the NGG’s interests during the legislative process of the ArbSchKG. Interviewee B, a political scientist represents the NGG in Berlin, particularly vis-à-vis members of parliament. Although interviewee B formally joined the NGG only after the ArbSchKG was enacted, they worked closely with the NGG during this period due to their previous position at the DGB. Finally, we interviewed a labour counsellor at Faire Mobilität (herein: Interviewee C). Interviewee C has a background in economics and counsels slaughterhouse workers in their language of origin. Interviewee C helped us to understand the process of gathering empirical evidence needed by labour unions to develop their claims.

2.3 Policy cycle and the study of the legislative procedure

We examine state practice using methods from both law and political science to describe the legislative procedure leading to the enactment of the ArbSchKG, following Schulze-Fielitz (1988). We use a loosely chronological analysis of events following the policy cycle framework described by Jann and Wegrich (2006: 43). We focus on agenda-setting (subsection 3); policy formulation and decision-making (subsection 4); and implementation and evaluation (subsection 5). The German constitution only prescribes few procedural steps, mainly rights of participation (Hesse 1999: marg. no. 510). Violations of these rules may lead to the invalidity of a subsequent act. Such violations may be reviewed by the German Federal Constitutional Court,^[6] as happened in our case, and a judicial decision gives legal validity to the policy decision (subsection 4.3).

The legislative procedure is also governed by internal procedural rules of the institutions involved. Apart from legal rules, we also identify common informal procedures during the legislative procedure. These informal procedures allow for coordination within parliament, or between federal government and state governments (Gallon 2023). Violations of informal procedure do not invalidate a draft bill nor do they lead to unconstitutionality of an act; therefore, they usually fall outside the interest of legal analyses. However, they are tremendously important for the political decision-making process, and thus warrant scrutiny.

For our analysis of the legislative procedure, we qualitatively evaluated approximately 100 different documents, originating from the German federal government and parliament, which the German federal government provided in response to requests based on the Federal Freedom of Information Act,^[7] and from the NGG. These documents were keyworded according to sender, recipient, content and references to other documents. This allowed us to formulate hypotheses about political practices in informal negotiations that, in turn, shape the contents of the formalised legislative procedure.

3.1 Root causes of the problems in slaughterhouses: contracts, practices and path-dependencies

German civil law distinguishes between contracts to produce a specific piece of work (Werkvertrag)^[8] and labour contracts (Arbeitsvertrag).^[9] Temporary agency work (Leiharbeit) is a special form of the Arbeitsvertrag.

The Arbeitsvertrag is the standard employment contract: an employee agrees to work “bound by instructions and determined by others in personal dependence.”^[10] An Arbeitsvertrag obliges the employee to spend time at work, regardless of work success. It obliges the employer to pay a contractually agreed salary;^[11] a statutory minimum wage is legally prescribed.^[12] What legally matters are the actual circumstances, not the wording of the contract.^[13] An Arbeitsvertrag may exist even if the contract wording does not say so. Arbeitsverträge are strictly regulated by law, and for example occupational health and safety measures, a right to paid holidays and co-determination apply to an Arbeitsvertrag (Kamanabrou 2017: § 16 and §§ 32–34).

Leiharbeit, “lent work” in German^[14], was developed under a three-party contract model to increase workforce flexibility (Kamanabrou 2017, marg. no. 207). Under Leiharbeit, a standard Arbeitsvertrag is concluded between an employee and an employer who then hires out the worker to a third party. The third party is entitled to instruct and receive work services from the employee, but their salary must be provided by the employer (Kamanabrou 2017, marg. no. 217). Leiharbeit allows for flexible use of a workforce and enables the employer and the third party to nebulise occupational health duties, particularly in the meat industry (Kohte/Raabe-Rosendahl 2020: 331–332). In 2010, the regulations for Leiharbeit were revised in European and national law, resulting in a highly complex, opaque and controversial area of labour law (Waltermann 2021, marg. no. 435).

German civil law also provides for a Werkvertrag. Here, the worker agrees to produce “a work”,^[15] owing successful completion of a work project – for instance, the carving of a pig. The employer is only obliged to pay contractually agreed remuneration if the worker successfully completes the job.^[16] In contrast to regular employment, the Werkvertrag is only minimally regulated. The BGB mainly regulates issues of termination and non-performance or poor performance (Looschelders 2022: §§ 33–35).

Until the 1990s, workers in slaughterhouses usually had standard Arbeitsverträge (Schulten/Specht 2021: 36–37). In the explanatory memorandum to the ArbSchKG, BMAS assumes that the number of people ordinarily employed in the meat industry fell by 25 % between 1999 and 2019, while turnover rose by three quarters (BR-Drs. 426/20, 13–14). Interviewee B explained that Werkvertrag contracts were common in slaughterhouses, while Leiharbeit was prevalent in the meat processing sector.

Although employee contracts in the meat industry were called Werkverträge, legally most of them really were Arbeitsverträge. The workers holding these contracts should have benefited from strict labour law regulations, not least in occupational health and safety; in practice, however, the proper legal framework for employment contracts was not applied to precarious employment structures (Kohte 2021: 39).

As interviewees A and B explain, the use of Werkverträge in slaughterhouses turned out to be highly problematic for both slaughterhouse workers and labour unions. In particular, the responsibility for working conditions was diluted to the point of being legally indiscernible, especially in occupational health and safety. The interviews helped us to identify three reasons for this: (1) fragmentation of legal responsibility of a single corporate body into several subcontractors claiming responsibility only for a small number of workers – a setup that undermines the bargaining power of workers and labour unions; (2) poor corporate culture among subcontractors often offering verbal contracts instead of written ones. Also, many subcontractors simply ignore workers’ claims because the workers themselves tend not to pursue legal action; and (3) structural disadvantages of slaughterhouse workers in factories with poor occupational health and safety standards (infra subsection 3.2.).

Some of these problems have been known to labour protection authorities since 2013 (Siekmeyer/Arndt-Zygar 2013: 21–24). Federal policymakers have tried different policy approaches to improve working conditions in slaughterhouses, with limited success. In 2015, the meat industry signed a non-binding agreement with the Federal Ministry for Economic Affairs,^[17] followed by the Act to Secure Workers’ Rights in the Meat Industry, which was introduced in 2017.^[18] In its original version, the Act introduced liability for social security contributions and formalised the obligation to provide certain work equipment free of charge and to pay wages in euros.^[19] None of these policy approaches improved the working conditions in slaughterhouses (Hans-Böckler-Stiftung 2019; Kohte/Rabe-Rosendahl 2020: 330; Schulten/Specht 2021: 38; Kohte 2021: 38). In 2019, the occupational health and safety authorities in NRW^[20] under Minister Karl-Josef Laumann (Christian Democratic Union^[21]) carried out a special slaughterhouse control programme (MAGS NRW 2019). In 30 in-depth controls, public authorities investigated roughly 8,752 legal violations, more than 2,400 of which represented violations of occupational health and safety standards (MAGS NRW 2019: 6). The authorities identified the pervasive use of Werkverträge (MAGS NRW 2019: 10) as the main reason for violations.

3.2 Knowledge production and translations into legal claims

The NGG pushed for legal changes. For labour unions, the process of translating political claims into legal claims starts with the realisation that the “law in the books” and the “law in action” may differ, and such a difference can only be proven through empirical evidence (interviewee A). Our study shows that only empirical evidence (knowledge production) has sufficient leverage to ensure more vigilant oversight and enforcement of existing laws or create better, more problem-focused legislation. Knowledge production is already shaped by legal rules, which implies the existence of underlying knowledge and disciplinary translation mechanisms. As interviewee A noted, documenting the presence of irregularities in social reality requires describing the (non)implementation of existing laws. The interviews identified two main dynamics that hindered labour unions’ knowledge production about grievances in slaughterhouses: first, the specific profile of slaughterhouse workers, who face structural disadvantages making them a particularly vulnerable group; second, the specific legal construction of the Werkvertrag and Leiharbeit, which are particularly vulnerable to employer malpractice (supra 3.1).

Most slaughterhouse workers in Germany come from Eastern Europe (interviewees A and C). A workforce of mainly migrants coupled with precarious working conditions places workers at a structural disadvantage. This hampers the knowledge production of labour unions. Structural disadvantages include (1) language barriers, (2) specific culture-related attitudes towards labour unions and (3) state institutions as well as (4) a fragmentation of the workforce due to high fluctuation. The language barrier prevents workers from directly communicating any grievances or problems to employers, labour authorities or support structures. As interviewee A explained, the language barrier impedes labour unions’ efforts to reach workers and report their problems. All interviewees explained that dysfunctional or non-existent labour union representation in workers’ home countries tends to breed mistrust towards German unions. Thus, many workers refrain from joining a labour union. Those who do take such action often hesitate to fully disclose their grievances, fearing repercussions. Regarding cultural attitudes towards state institutions such as courts, workers who feel that their only recourse is through the judicial system often choose not to follow through with their claims, perceiving courts as intimidating and inaccessible institutions (interviewee C). Finally, constant workforce flux in slaughterhouses and the resultant fragmentation of the workforce pose a significant challenge for both workers and union representation. The precarious working conditions in slaughterhouses cause most employees to seek other work elsewhere within a short time, preventing long-term cooperation among workers. This dynamic hinders slaughterhouse workers – and labour unions representing them – from building bargaining power in negotiations with employers and in legislative procedures (interviewees B and C).

The legislative procedure leading to the ArbSchKG was built on years of groundwork by labour unions, civil society and public authorities. Such preparatory work is rooted in knowledge production about grievances and formulating legal demands for either improved implementation and monitoring of existing laws (de lege lata) or for the establishment of new laws (de lege ferenda). The NGG had been reporting on the abuses in slaughterhouses for years without success (interviewees A and B). However, the outbreak of COVID-19 in slaughterhouses provided the NGG with a window of opportunity to amplify its claims to both the public and policymakers. Thus, it was necessary to formulate political claims that would resonate with society, argumentatively based on lack of oversight of existing law and the need for new regulation. Therefore, it was important not only to provide disciplinary translations but also to translate empirical findings and political claims into an accessible language that could fuel public discussion (interviewee A).

3.3 Political momentum: major outbreaks of COVID-19

In early May 2020, multiple outbreaks of COVID-19 in industrial slaughterhouses in Germany drew attention to the appalling working conditions in slaughterhouses, sparking the necessary political momentum to introduce a new law. At that time, the federal government was still seeking to control the pandemic within the workforce through non-binding soft law measures (Creutzburg et al. 2020). As further outbreaks occurred, regulating working conditions in slaughterhouses became a priority and was seen as an integral part of broader pandemic control measures in the workplace.

During this period, labour unions and industry associations engaged in intense lobbying efforts. As the political opportunity arose, the NGG quickly set up a crisis team, internally and externally, mainly with partners such as Faire Mobilität and the DGB. On 12 May 2020, the NGG sent a letter to all members of parliament and responsible ministries, outlining the issues faced by workers in slaughterhouses and advocating for a ban on Werkvertrag contracts in that sector (BMAS 2020a: 3–4). Subsequently, several informal meetings took place with members of parliament and government representatives.

On 13 May 2020, the events morphed into political action as parliament deliberated over working conditions in slaughterhouses. During this initial debate, both coalition and opposition MPs began using legal terminology to describe the legal relationships between employers and workers. During a regular government enquiry, Chancellor Angela Merkel (CDU) announced the federal government’s intention to implement changes in the legal framework which Hubertus Heil (Social Democrats^[22]), head of BMAS and the responsible minister, would present the following week (BT-Plenarprotokoll 19/159: 19697). Later that day, parliament again addressed the topic in a special session (BT-Plenarprotokoll 19/159: 19721), highlighting its political importance. The debate focused on workers’ accommodation and precarious working conditions, along with the legal relationships between workers and employers. Minister Heil (SPD) proposed tightening the legal framework to prevent using Werkverträge to circumvent labour protections (BT-Plenarprotokoll 19/159: 19726). While the opposition campaigned for stricter regulations (BT-Plenarprotokoll 19/159: 19728, 19730, 19733), MPs from the conservative government coalition parties expressed their disagreement (BT-Plenarprotokoll 19/159: 19723, 19729, 19734, 19732).

A week after the commencement of the political debate, BMAS presented a policy paper entitled “Programme for Safe Working Conditions in the Meat Industry”^[23] (BMAS 2020). The programme proposed a formal ban on Werkverträge and Leiharbeit for companies in the meat industry. This cabinet decision garnered immediately attention in media and legal literature (Bayreuther 2020: 773), indicating significant public interest in the unfolding political process. The NGG again wrote to Minister Heil, expressing its support for the proposed amendments, offering assistance in drafting a legally sound bill and providing sector-specific information (BMAS 2020a: 5).

Lobbying was unrelenting in the weeks that followed, but interactions with policymakers were unevenly distributed. While labour unions primarily engaged with BMAS, industry associations also liaised with the BMWi and the Federal Ministry of Food and Agriculture^[24] (BT-Drs. 19/22997: 9–12). On 18 May 2020, the Meat Industry Association^[25] suggested some minor changes in the legal framework, which included enhancing social security for employers offering Leiharbeit contracts and setting requirements for worker accommodation (VDF 2020).

4.1 Policy formulation: drafting the bill

The preparation of a draft bill can be divided into several phases (Busse 2010: 225–230; Smeddinck 2006: 158). Predominantly the federal government drives the drafting of legislative proposals (Deutscher Bundestag 2022: Kap. 10.1; Gallon 2023). The drafting process is not constitutionally formalised. Government actions are organised by federal procedural rules, mainly the Rules of Procedure of the Federal Government^[27] and the Joint Rules of Procedure of the Federal Ministries^[28] (Busse 2018, Einleitung Rn. 10–12). The importance of these rules varies: some procedures and bodies are not fully legally constituted (Seckelmann 2021: 80–83), some provisions are not fully implemented in everyday government practice (Smeddinck 2006: 159–176).

The phases of drafting roughly mirror phases of a policy cycle: political momentum (agenda setting), development of a draft bill by the responsible ministry in charge (policy formulation), consultancy with the public, special interest groups and the Länder as well as political coordination inside the federal government and with parliamentary groups. At the end of a drafting process, cabinet reaches a decision (first decision-making).

Following the political momentum phase (subsection 3.3), a draft bill is developed by the responsible ministry. A draft usually proposes legal amendments, already in the form of a legal text that could be promulgated in the BGBl, supported by a non-binding explanatory memorandum. In the case of the ArbSchKG, BMAS prepared the draft. To coordinate the process, a steering committee was set up within the federal government, its members included the Chancellery,^[29] the Ministry of Finance,^[30] the BMWi, the BMEL, the Ministry for Health,^[31] the Ministry of Justice^[32] and the Ministry of the Interior^[33] (BMAS 2020b: 5). As legally required,^[34] an exchange with Länder governments took place (BT-Drs. 19/22997: 9 et seq.). The draft was presented to the public on 21 July 2020, two months after the first cabinet decision.

The draft contained a comprehensive ban on Leiharbeit and Werkverträge in the meat industry. The explanatory memorandum of the draft relied heavily on empirical findings to explain the importance of the ban (BMAS 2020c). From a constitutional perspective, such argumentation was important to justify the need to encroach on employers’ fundamental rights, which later was reviewed by the BVerfG. In explaining the general situation, the draft bill referred to the empirical findings of the Occupational Safety and Health Administration on violations in NRW, and to other empirical descriptions of the labour structure in the meat industry (BMAS 2020c: 18–22). For a description of employees’ working conditions, the ministry referred to findings of Faire Mobilität and the Employers’ Liability Insurance Association (Berufsgenossenschaft) (BMAS 2020c: 23).

Government documents show that several civil and industrial associations contacted the ministry during the drafting phase (BT-Drs. 12/22297). Minister Heil discussed the planned new regulation with the DGB (BMAS 2020b). Even before publication of the draft and the official consultation process, an association of Bavarian butchers with the help of a law firm submitted a statement on the allegedly constitutionally required exclusion of artisan butchers from the planned regulation (BMAS 2020d).

Legal analysis of the documents shows that a possible constitutional review by the BVerfG already had an impact during the drafting phase. Parliament’s Scientific Service was commissioned to prepare an expert legal opinion. By mid-June 2020, its assessment identifying no fundamental constitutional problems had been published (Deutscher Bundestag 2020). The Ministry of Labour, Health and Social Affairs of NRW^[35] commissioned a law professor to analyse several issues of constitutionality of the proposed ban. The assessment was published in July 2020, arguing for constitutionality of the ban (Deinert 2020).

After the draft is prepared by the responsible ministry, an official public consultation regularly follows.^[36] BMAS published the draft in July 2020 and consulted several civil society actors, with only one day as deadline to respond (BT-Drs. 19/22997: 11). More than 20 associations submitted comments, including some which had not been directly invited. Larger associations, such as the Confederation of Germans Employers’ Association^[37] (BMAS 2020e), commented on various legal aspects of the bill, while smaller ones like the Federal Employers’ Association of Personnel Service Providers^[38] (BMAS 2020 f) only commented on the wording of the explanatory memorandum. Other industry associations, representing bakers (BMAS 2020g) or the construction industry (BMAS 2020h), sharply criticised the draft bill, possibly due to its potential to serve as a legislative blueprint. The NGG welcomed the draft but argued for stricter regulation of artisan butchers (BMAS 2020i). The DGB commented more comprehensively on the draft (BMAS 2020j). The proposed comprehensive ban met with opposition within the coalition, especially from Christian Social Union^[39] representatives who contacted BMAS to argue for softer regulations and major exceptions (BMAS 2020k).

The specialised form and legal language of the draft requires special legal capabilities and knowledge already during this initial stage of public deliberation. The legal language of the comments varies. Short deadlines require legally trained personnel to comment on a draft bill. Commentators need to understand the legal language of the draft, identify the legal changes and their societal implications, compare the proposals with the policy of the association, formulate their own position and relate it to the draft.

The responsible ministry is also obligated to formally involve the other federal ministries.^[40] BMAS executed this process simultaneously to the public consultation, setting also a deadline of slightly more than a day. The Federal Ministry for Justice commented on the legal technique of the draft bill (BMAS 2020l). Several Ministries led by CDU and CSU ministers argued that artisan butchers should be exempt from the new regulation of the meat industry and the ban on Leiharbeit (BMAS 2020l).

Within a week, BMAS had processed these comments. Industrial associations continued with their lobbying efforts. Head of BMWi Peter Altmaier (CDU) sent Minister Heil (SPD) a letter outlining his concerns based on “critical feedback” on the Leiharbeit ban and the definition of artisanal butchers (BMAS 2020l). A similar letter arrived from the BMEL (BMAS 2020l). Minister Altmeier (CDU) also conducted a telephone conference with the BDA and a conservative labour law professor (BT-Drs. 19/22997). It was not possible to reconstruct the final informal compromise-finding process between BMAS, BMWi and BMEL in late July 2020. However, during these days, the draft bill was amended in preparation for the cabinet meeting in late July 2020 (BMAS 2020n). Among other things, a transitional regulation for the continued use of Leiharbeit until 1 April 2021 was introduced. In addition, the scope of application of the ban was reduced for artisanal butchers. The amended draft was passed by the federal cabinet on 29 July 2020, marking the end of the first phase of the legislative process.

4.2 Decision-making: legislative procedure

The constitutionally formalised legislative procedure starts with formal introduction of the bill, Art. 76 para. 1 Basic Law^[41]. In early August 2020, Olaf Scholz (SPD), the Vice Federal Chancellor, formally sent the bill to the Federal Council^[42] (BR-Drs. 426/20). After receipt of a bill, the Bundesrat can comment on it.^[43] The federal government marked the bill as urgent, initiating a three-week deadline for the Federal Council’s comments before the bill could be sent to parliament.^[44] In September 2020, the Federal Council exercised its constitutional right to comment and propose amendments (BRat-Drs. 426/20). At that time, parliament had already begun its internal legislative procedure. The ArbSchKG had been formally introduced by Chancellor Angela Merkel (CDU) on behalf of the German federal government to the German Parliament in late August 2020 (BT-Drs. 19/21978: 7).

Parliament is the major legislative body under the German constitution (Art. 77 para. 1 GG). Parliamentary procedure is only partly formally constitutionalised, mainly concerning the vote at the end of the procedure (Reimer 2019: 85–87; Gallon 2023). The steps and procedures before the final vote are governed by the legal rules of parliamentary procedure. In general, a bill is referred to a committee after the first plenary reading. The first plenary reading of the ArbSchKG took place in mid-September 2020, with a speech by Minister Heil (SPD) and a debate lasting for an hour (BT-Plenarprotokoll 19/173: 21648–21666), illustrating the great political importance attributed to the ArbSchKG. Later, the bill was referred to several standing parliamentary committees. The Committee on Labour and Social Affairs was appointed as lead committee.

The Committees immediately began their work in which social society actors were heavily invested. In early October 2020, the Committee on Labour and Social Affairs held a public hearing with five male law professors and representatives of two labour unions and three industrial associations (BT-Ausschussdrs. 19[11]778). Three law professors argued in favour of the constitutionality of the draft, one had some “political and regulatory concerns” and one held the law to be unconstitutional (BT-Ausschussdrs. 19[11]779). Seven industrial associations, including the VDF, sent their comments without being asked to do so (Bundestag 2020). All these associations lobbied against the prohibition of Werkvertragsarbeit and Leiharbeit in the meat industry, some arguing the unconstitutionality of the proposed amendments. Even the Federal Solicitors’ Association^[45] gave its opinion expressing “constitutional concerns” (BT-Ausschussdrs. 19[11]782). The NGG argued for the constitutionality of the amendments, campaigning for a stricter determination of artisanal butchers and a comprehensive ban on Leiharbeit (BT-Ausschussdrs. 19[11]767). In this hearing, the NGG was particularly asked for empirical data. The NGG had general knowledge but few statistics to present. To highlight the conditions, the NGG referred to data collected by Faire Mobilität and the control study in NRW (interviewee A).

In the following weeks, the draft law was negotiated in different parliamentary committees. In informal procedures, the coalition parties agreed on amendments to the government bill. Opposition parties presented their own proposals for amendments, without success (BT-Drs. 19/25141: 24). In late October 2020, the chairman of the NGG sent a letter to all Members of Parliament belonging to CDU/CSU, arguing for the prohibition of Leiharbeit in the meat industry (NGG 2020). Finally, in December 2020, the coalition parliamentary groups agreed on amendments to the bill. The ban on Leiharbeit was softened. It should be allowed if it was foreseen in a collective agreement and did not exceed 8 % of the total working time volume. The Committee on Labour and Social Affairs decided on these amendments at its meeting in the second week of December 2020 (BT-Drs. 19/25141: 21) and proposed them to the plenary (BT-Drs. 19/25141).

After these negotiations ended, the rest of the legislative procedure held no surprises. In a named vote in the middle of December, the law was passed by parliament (BT-Plenarprotokoll 19/201: 25258–25261). The president of the parliament forwarded the law immediately to the Federal Council (BRat-Drs. 745/20). The ArbSchKG required approval by the Federal Council according to Art. 87 para. 3 sent. 3 GG. After the political compromise with CDU/CSU to ban Leiharbeit, the NGG foresaw a majority in the Federal Council and did not campaign further (interviewee B). Then, the ArbSchKG was approved. The Act was certified by the Federal President just before Christmas 2020 in accordance with Art. 82 para. 1 GG, and promulgated one day before New Year’s Eve 2020 (BGBl. I 3334), entering into force on 1 January 2021.

4.3 Legal validation: judicial review at the federal constitutional court

Under German constitutional law, the BVerfG can declare a law null and void if it violates fundamental rights. Slaughterhouse owners and operators perceived their fundamental rights as being violated. The constitutional complaints had been argumentatively prepared since the original idea of the regulation was presented in May 2020. Both in opinions of the employer-affiliated associations and in legal literature, arguments were exchanged about the constitutionality of the new regulations (see Bayreuther 2020: 773; Boemke et al. 2020: 1160; Kohte/Raabe-Rosendahl 2020). By the end of December 2020, the BVerfG had already dismissed six interim complaints to suspend the entry into force of the ArbSchKG (B. v. 29.12.2020, 1 BvQ 152/20 u. a.). A chamber of the court did not hold that the constitutional requirements to suspend the act’s entry into force were fulfilled. Despite the significant impact on the business models of temporary employment agencies and slaughterhouses, the protective interests pursued by the legal regulation were judged to outweigh them (BVerfG, B. v. 29.12.2020, 1 BvQ 152/20 u. a.: marg. no. 33). In June 2022, the BVerfG ruled in the main proceedings, rejecting the complaints on procedural grounds (BVerfG, B. v. 01.06.2022, 1 BvR 2888/20 u. a.: marg. no. 27 f.).

5.1 Law in the books: the ArbSchKG

The ArbSchKG introduced a comprehensive ban on the use of Werkverträge in larger (more than 49 workers) companies in the meat industry.^[46] Since April 2021, the use of Leiharbeit is limited to certain cases.^[47] These bans only apply to the core area of slaughterhouses, with the federal customs administration^[48] being responsible for monitoring their implementation.^[49] The prohibition of Leiharbeit and Werkverträge now obliges companies to sign standard employment contracts with their staff. Consequently, core working areas in slaughterhouses are now fully protected by statutory occupational health and safety rules (Kohte 2021: 41). Moreover, the ArbSchKG includes minimum inspection quotas for occupational health authorities and a general competence^[50] for BMAS regarding COVID-19 regulation. From January 2021 to May 2022, BMAS enacted several SARS-CoV-2 occupational health and safety regulations.^[51]

5.2 Law in action

The assessment of the ArbSchKG hinges on its implementation. The legal base for general occupational health and safety measures in the workplace regarding COVID-19 has played a decisive role for pandemic control (Schlegel 2022: marg. no. 62–64). The ArbSchKG itself obliges BMAS to evaluate the effectiveness of the ban on Werkverträge and Leiharbeit in slaughterhouses and the exceptions for artisanal butchers in 2023.^[52] The responsible administration explained that several proceedings (63 in 2021; 42 until November 2022) had already been initiated due to violations of the ArbSchKG. Controlling the implementation of the ArbSchKG is part of regular controls within the meat industry (707 controls in 2021; 565 controls until November 2022).

Our interviewees pointed to the importance of implementing law. “You don’t change a law and that makes the world good” (interviewee B). As all interviewees pointed out, late 2022 was still too early to definitively assess the ArbSchKG in action. Nevertheless, the interviewees make two key observations. First, the new legislation appears to have addressed the core issue regarding legal responsibilities for occupational health and safety of slaughterhouse workers. With the ban on Werkverträge and Leiharbeit, the meat industry is now directly responsibility for its workers (interviewees A and B). If a worker is harmed on the job, it is now clear who the employer is (interviewees A and C). This clarity enables a straightforward determination of the employer’s legal responsibility without the confusion of subcontractors. These changes mean that basic work rules have also been set for slaughterhouse workers (interviewee A). Second, the ArbSchKG has not resolved all structural problems. One of these is workers’ dependency on the foremen, a problem not addressed in the ArbSchKG. As interviewees A, B and C explain, foremen play a central role as linguistic, cultural and administrative intermediaries between employers and employees. Under the former legal construction of Werkverträge und Leiharbeit, foremen served as intermediaries both in practice and in law. This created negative dependencies that still exist today (interviewee B).