The protective regulations under labor law generally only apply to employees. According to the established case law of the Federal Labor Court, an employee is someone who, on the basis of a contract under private law in the service of another, is obliged to carry out externally determined work in personal dependence, subject to instructions. The contractually owed service must be provided within the framework of a work organization determined by a third party. Integration into the external work organization is particularly evident in the fact that the employee is subject to the right to issue instructions from his contractual partner (employer). The right to issue instructions can concern the content, implementation, time, duration and location of the activity. An employee is an employee who is not essentially free to organize their work and determine their working hours. On the other hand, anyone who is essentially free to organize their work and determine their working hours is self-employed (Section 84 Paragraph 1 Sentence 2 HGB). All circumstances of the individual case must be taken into account and assessed in their entirety.

In a decision of May 25, 2005 (- 5 AZR 347/04 -) the Fifth Senate denied the employee status of the head of an outdoor residential group for the care of minors. The work carried out by the manager was essentially free from instructions from her contractual partner, the Free and Hanseatic City of Hamburg. She was not bound to any care concept specified by them. She was essentially able to organize her working hours freely. She was not subject to any right to give instructions regarding the choice of location for the outdoor living group. To the extent that it was obliged under the service contract to comply with instructions from the supervisory authority, this does not result in any dependence on instructions. The obligation to comply with public law orders of the supervisory authority in youth welfare law applies to everyone. It is not a feature of being bound by instructions in an employment contract. What is irrelevant to the employee status is that the manager of the outdoor living group had hardly any economic opportunities and did not have to bear any entrepreneurial risks. The economic dependence that may result from this makes them appear at best as an employee-like person.

The provisions of labor law apply to employees-like persons if they so require. Section 12a TVG stipulates that also for the circle of

Collective agreements can be concluded with similar employees. In § 12 a Abs. 1 No. 1 introductory sentence TVG, the legislature defines employee-like persons.

sons as people who are economically dependent and in need of social protection comparable to an employee. According to a ruling by the Ninth Senate of February 15, 2005 (- 9 AZR 51/04 -), the collective bargaining parties are authorized to determine the scope of collective agreements for employees-like persons themselves, as long as they are guided by the guiding principle of Section 12 a TVG. The legislature has defined the group of employee-like persons using vague legal terms. It is the responsibility of the collective bargaining parties to fill in these vague legal terms. Here, as with other legislation, they have some scope for judgment. In the para. 2. and 3. of the collective agreement on employee-like persons of July 1, 1996 concluded between the IG Media, Printing and Paper, Journalism and Art, the German Employees’ Union and the German Journalists’ Association, the parties to the collective agreement recognized the economic dependence and need for social protection in the sense of effectively defined in more detail by Section 12a TVG. The Ninth Senate further decided that broadcasting fee representatives also fall within the scope of this collective agreement and that they are entitled to the transitional allowance stipulated in the collective agreement.