The statutory German “Right to Question” in a Job
Interview – an adoptable Model for Australia?

by

 Julli Markgraf

Table of Content

1 Introduction 3

2 Selection of Personnel 4

2.1 The Recruitment Process  4
2.2 Job Interview 7

3 Legal Basis of Selection of Personnel in Germany  8

3.1 German Constitution 8
3.2 Entitlements and Duties 10

3.2.1 Legal Relationship between the Parties 11
3.2.2 Employers Perspective  11
3.2.3 Employees Perspective  13

3.3 Legal Consequences of Default 16

3.3.1 General Effects  16
3.3.2 Specific Effects 20

3.4 Works Council Constitution Act  24

4 Adaptation to Australia  25

4.1 Overview of Australian Legal Environment  25
4.2 Examination  29

5 Conclusion  31

Bibliography 34

Table of Figures 36

1 Introduction

In the past three decades a rapid growth of internationalisation and globalisation has taken place in the business world. This development has had a significant effect on the labour market. Nowadays, recruitment, application and selection of personnel takes place in a global market. Consequently, Human Resources Management requires a cross-cultural assessment for hiring international employees. This also includes the different legal systems, which provide diverse rights and duties. Furthermore, human capital is regarded as a sensitive topic. Here, the gap between cost-consciousness and efficiency of conducting business might stand against the protective and supportive rights of the employee. Therefore, the selection of personnel plays a crucial role because employees can not be easily dismissed. 

One of the elementary steps within the application process is the job interview. At this stage, the employer aims to get a holistic image of his future employee by asking questions. However, not all questions have to be answered by the applicant truthfully. Thus, the future employer might be not able to gain a realistic picture of the candidate. Some legal systems, such as under the German law, provide the candidate with an implied “right to lie” which has no effect on the legal validity of a contract. Basically, three different question types exist: 1. questions with a duty of disclosure, 2. lawful questions and 3. unlawful questions.

This paper is primarily designed as a tool for applicants and Human Resources Managers from Germany and Australia, to familiarise them with the particular rights, duties and consequences of the “right to question” in a job interview, with a focus on the German legal system. In the first section , the paper focuses on the general topic of personnel selection with a particular focus on the recruitment process and the role of the job interview as a part of this procedure. The statutory German “right to question”¹ in a job interview will also be illustrated in the first section. The adaptability of the German model to the Australian legal system will then be examined; the outcome of which form the substantive conclusions provided in the final section.

2 Selection of Personnel

Selection of personnel is one of the most essential tasks of the Human Resources Department of each company. Human capital is the “heart” of each company, which has a major impact on the success of a company. Therefore, the topic of choosing personnel is crucial. As the introductory text mentioned, employees can not be dismissed easily. Thus, the selection procedure has to be conducted in a thoughtful and responsible manner. The following section aims to provide a short overview of the recruitment process. The role of the job interview will also be highlighted.

2.1 The Recruitment Process

The initial start of the recruitment procedure begins with the assessment of the employer’s needs. Technical development as well as executive decisions can have an impact on the requirement of human capital. Therefore, not all positions, which have become vacant, have to be replaced. Moreover, some positions have to be created newly by implementing a new department or introducing a specific project.²

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1 Fragerecht

2 Compton, R./Nankervis, A., Effective Recruitment & Selection Practices, p. 54-58.