According to Section 106 Sentence 1 GewO, the employer can determine the content, place and time of the work at its reasonable discretion, provided that these working conditions are not stipulated by an employment contract, provisions of a works agreement, an applicable collective agreement or legal regulations. A performance determination corresponds to reasonable discretion if the essential circumstances of the case have been weighed up and the interests of both sides have been taken into account. In its judgment of April 11, 2006 (- 9 AZR 557/05 -), the Ninth Senate decided that the employer, on the basis of a transfer clause in a pre-formulated employment contract, according to which he is responsible for protecting the interests of the employee (here: an editor ) reserves the right to assign another area of work, is entitled to transfer another department. For an editor, this can also include moving from a main editorial office to a local editorial office. Such a transfer clause does not conflict with the ban on clauses in accordance with Section 308 No. 4 of the German Civil Code (BGB). The legal regulation here covers unilateral determination rights only with regard to the performance of the user, but not with regard to the consideration owed to him, namely the work owed to the employer. A management rights clause, which corresponds materially to the regulation in Section 106 Sentence 1 GewO and places the transfer under the proviso that the interests of the employee are protected, is subject to a content check in accordance with Section 307 Paragraph. 1 sentence 1 BGB stood. Even if the specific reasons for the transfer are not mentioned in the employment contract, such a clause does not violate the transparency requirement according to Section 307 Paragraph. 1 sentence 2 BGB. According to this provision, users of general terms and conditions are obliged, in accordance with the principles of good faith, to present the rights and obligations of their contractual partners as clearly and transparently as possible. However, specifying the reasons for the transfer does not do justice to the need to be able to react to changes in the employment relationship that were not foreseeable at the time the contract was concluded. As § 106 Sentence 1 GewO already expresses, employment contracts can generally only contain a defined performance obligation. This is a special feature of labor law, which according to Section 310 Para. 4 Sentence 2 BGB must be taken into account.
The Fifth Senate had to decide on a revocation of an additional duty of flight attendants with effect on remuneration. The basis for the transfer of this additional task was a works agreement. According to her, the appointment of officials, which also included the additional task at issue, was subject to revocation. According to the judgment of the Fifth Senate of February 1, 2006 (- 5 AZR 187/05 -), a reservation of revocation regulated in a company agreement is in accordance with Section 310 Paragraph. 4 Sentence 1 BGB withdrawn from content control in accordance with Sections 305 ff. BGB. Such a reservation of revocation is only subject to a content check in accordance with Section 75 BetrVG.
The Senate has left it open whether and to what extent the principles applicable to the adequacy review of individual agreements can be transferred to this review. At least it is permissible to agree on a reservation of revocation if the revocable share of the total earnings is less than 25 to 30% and the collective wage is not fallen below. A revocation of an additional task declared on this basis is then subject to judicial review in accordance with Section 315 Paragraph. 3 BGB.