Renewable Energies – Labor Law in Offshore Wind Farms

Offshore wind farms and the regulation of maritime zones

The following blog post will focus on the applicable labor law with regard to offshore wind farms and therefore especially those wind farms which are built at a considerable distance from the coast. According to the status of offshore wind energy expansion in Germany from 2022, German offshore wind farms are located on average 75 km away from the coast (so-called baseline). Thus, they are rarely located in the so-called territorial sea (12 nautical miles within the baseline), but mainly in the exclusive economic zone ("EEZ"), which begins after the 12-nautical mile zone of the territorial sea and may not extend further than 200 nautical miles from the baseline. As early as 1994, the Federal Republic of Germany established an EEZ in the North Sea and the Baltic Sea by proclamation, within which – in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) – power generation facilities and other constructions may now be erected. 

But which law and, in particular, which labor law standards apply here in principle?

General principles 

This question is easy to answer as far as the wind farms are still located in the territorial sea. Within the 12 nautical mile radius, the law of the coastal state and thus also German labor law applies in full. 

But which legal system applies to the wind farms located further outside? Intuitively, one might think that the Maritime Labor Act (Seearbeitsgesetz "SeeArbG") would apply here. However, this is a mistake; the scope of the Maritime Labor Act only extends to the working and living conditions of seafarers on board merchant vessels. Offshore wind farms, on the other hand, are not covered by the scope. 

Instead, German law applies to a limited extent in the EEZ, but only to the extent that according to Art. 56 para. 1 UNCLOS sovereign rights and sovereign powers are granted to coastal states only for specific purposes. According to the Convention on the Law of the Sea, the coastal state's sphere of competence with respect to the EEZ is limited to individual functions of economic use. In this context, according to Art. 60 para. 2 UNCLOS, the coastal state has exclusive sovereign powers over facilities within the EEZ, including those relating to customs and other financial, health, safety and immigration laws and other related regulations. However, UNCLOS does not provide for further specification of these sovereign powers, so there is considerable ambiguity and room for interpretation as to their scope. 

With the vast majority of opinions in the literature, it can probably be assumed that a state – insofar as it wishes to exercise its sovereign powers – must do so expressly. Both the reservation of the law as a result of the principle of democracy under Art. 20 para. 1 of the German Constitution (Grundgesetz "GG") and the requirement of legal certainty as a result of the principle of the rule of law under Art. 20 para. 3 of the German Constitution require that a parliamentary act clearly regulates the extent to which German laws extend to the EEZ. Accordingly, the legislator must first decide for the geographical area of the EEZ which extension of German laws it considers permissible and necessary – within the framework of the powers under UNCLOS. 

Working hours and Occupational Health and Safety Act

The legislator has made use of the possibility of extending the scope of application of parliamentary laws to the EEZ with regard to labor law in two cases. On the one hand, with regard to general occupational health and safety, through the regulation pursuant to Sec. 1 para. 1 sentence 2 of the Occupational Health and Safety Act (Arbeitsschutzgesetz "ArbSchG"), and on the other hand, with regard to working hours, through the regulation pursuant to Sec. 1 no. 1 of the Working Time Act (Arbeitszeitgesetz "ArbZG"). 

Accordingly, both the Occupational Health and Safety Act and the Working Time Act are applicable in principle to the employees of an offshore wind turbine, both during its construction and during its use. 

With regard to the Working Time Act, however, the legislator has granted the possibility of creating special regulations for this purpose. Sec. 15 para. 2a Working Time Act provides that the Federal Government, with the consent of the Bundesrat, can create exceptions with regard to working hours, rest breaks and rest periods, night work as well as work on Sundays and public holidays with regard to offshore activities. This possibility was used at the same time as Sec. 15a Working Time Act came into force, so that the Offshore Working Time Ordinance ("Offshore-ArbZV") came into force on the same day. This provides for extensive exceptions to the Working Time Act in the aforementioned cases, so that the occupational health and safety regulations with regard to working hours differ significantly from the regulations applicable on shore. 

No applicability of the Dismissal Protection Act

In contrast to the Occupational Health and Safety Act and Working Time Act, there is no corresponding extension clause in the Dismissal Protection Act (Kündigungsschutzgesetz "KSchG"). 

The scope of the Dismissal Protection Act is basically company-related and, in the absence of an extension clause, thus limited to domestic German companies. Assuming that an offshore wind farm constitutes a separate business, the scope of the Dismissal Protection Act would therefore be excluded. 

It should be noted here, however, that according to the usual working conditions on an offshore wind farm, it would have to be critically questioned whether this generally represents a separate operation according to the classic definition of operation. Thus, it can probably be assumed that the work within an offshore wind farm only rarely constitutes a self-contained unit for the pursuit of a work-related purpose. Also, the management in personal and social matters will probably rarely be located within the offshore facility itself, but will regularly be carried out from onshore location. In practice, therefore, it is more likely that the employees of an offshore wind facility will be assigned to a main operation located on the mainland. If this is located in German territory, it is obvious that the Dismissal Protection Act is also applicable via the affiliation with the German main operation. Supreme court decisions on this subject are not yet apparent, so that legal uncertainties remain.

The parties to the employment contract are free to declare the Dismissal Protection Act to be expressly applicable. 

No applicability of the Works Constitution Act 

Comparable to the Dismissal Protection Act, the Works Constitution Act (Betriebsverfassungsgesetz "BetrVG") also does not contain an extension clause to areas outside of the German national territory. 

Thus, although Sec. 114 Works Constitution Act provides for an extension of the scope of application to maritime shipping companies and their operations, the scope of application of Secs. 114 et seq. Works Constitution Act cannot be extended to the use of offshore wind farms, as these are not covered by the term maritime shipping. At this point, it is also not to be assumed that there is an unplanned regulatory gap; since the Works Constitution Act was reformed both in 2001 and in 2013 without the legislator providing for an explicit regulation of the working conditions of offshore employees. An analogous application of the provisions of the Works Constitution Act and also of Sec. 114 et seq. Works Constitution Act is therefore already prohibited for this reason. 

An extension of the Works Constitution Act to employees within the EEZ must therefore be viewed in a differentiated manner. 

Assuming that the offshore plants are independent operations within the meaning of the Works Constitution Act, the applicability of this Act is to be denied due to the lack of an extension clause – comparable to the Dismissal Protection Act. However, it is probably more practical to assume that, as a rule, such plants are not independent establishments within the meaning of the Works Constitution Act, but can be assigned to an establishment located on the mainland. In such a case, it would be quite conceivable to assume the applicability of the Works Constitution Act by applying the case law of the Federal Labor Court on establishments abroad. 

An applicability also arises for those employees who are in any case mainly active in the mainland operation and only work for short assignments on the offshore installations. As a rule, such short assignments do not lead to a separation from the original operation, so that the individual employees continue to fall within the scope of application of the Works Constitution Act and the area of responsibility of the works council of the mainland operation. 

Conclusion

Unless, as in the cases of the Working Time Act and Occupational Health and Safety Act, the applicability of labor law provisions has also been extended to the EEZ area, considerable legal uncertainties remain with regard to the working conditions of offshore employees. In view of the growing importance of offshore installations and the increased demand for labor, it is to be expected that the German courts will also have to deal with this issue in more detail in the future.