Reference clauses
According to the previous case law of the Fourth Senate, a dynamic reference agreed in an individual contract to a specific collective agreement relevant to the employer was generally to be interpreted as a so-called equal opportunity agreement if the employer was bound by collective bargaining agreements. This was based on the idea that such a contractual clause provided by an employer bound by a collective agreement was only intended to replace the employee’s possible lack of collective agreement. The employment relationship should participate in the dynamic developments of the collective agreement referred to as long as the employer himself was bound by the collective agreement. If the employer’s collective bargaining obligation to apply newly concluded collective agreements towards organized employees was no longer applicable, a contractual obligation to this effect towards unorganized employees was also no longer applicable. It should not matter whether there were indications of such an intention to regulate the unorganized employee’s employment contract in the wording of the contract or in the circumstances surrounding the conclusion of the contract.
With its judgment of December 14, 2005 ( 4 AZR 536/04 ), the Fourth Senate announced that it would adhere to this case law for reasons of protection of trust for contracts that were concluded before January 1, 2002 However, he will abandon the above-mentioned rule of interpretation for contracts concluded from this point onwards (“new contracts”) and will only accept a mere agreement on equal treatment if there are sufficient indications for this from the wording of the contract and/or the circumstances surrounding the conclusion of the contract. With its ruling of April 18, 2007 (4 AZR 652/05), the Fourth Senate implemented its announcement. A dynamic reference to a specific collective agreement agreed in an individual contract is, in any case, if the employer’s collective agreement to the collective agreement specified in the employment contract has not been made a condition subsequent to the agreement in a way that is recognizable to the employee, is a constitutive reference clause that is triggered by a withdrawal from the association of the employer or any other loss of his collective bargaining agreement is not affected (“unconditional time-dynamic referral”).
If an unconditional time-dynamic reference clause was agreed in an employment contract before the law of obligations reform came into force on January 1, 2002, it must be interpreted as an “equal opportunity agreement” in accordance with previous case law for reasons of protection of legitimate expectations. However, if the clause in question was agreed after December 31, 2001, the rule of interpretation in accordance with The previous case law no longer applies even if an identical or similar clause was already contained in an earlier employment contract between the parties that was concluded before the reference date. However, if the clause in question was agreed after December 31, 2001, the rule of interpretation in accordance with The previous case law no longer applies even if an identical or similar clause was already contained in an earlier employment contract between the parties that was concluded before the reference date. The risk of a change in case law regarding generally used contractual clauses initially only affects the user of the clause. However, a limitation of the retroactive effect is necessary if and to the extent that the party adversely affected by it could rely on the continuation of previous case law and the application of the changed opinion would mean unreasonable hardship, even taking into account the legitimate interests of the opposing party. With the entry into force of the reform of the law of obligations, an evaluation-relevant paradigm shift was made, which led to a different weighting of mutual interests in the following period and thus to the elimination of the assumption of unreasonable hardship for the employer. In a judgment of October 17, 2007 ( 4 AZR 778/06 ), the Fourth Senate dealt with the interpretation of an employment contract reference to both a collective agreement and a legal regulation. The decision was based on the employment contract of an employed university professor, in which reference was made to both the current version of the BATO and the State Higher Education Act.
How the contradiction between the two sets of regulations with regard to the working hours of the employed university professor is to be resolved must be determined by interpreting the contract. It must be assumed that the parties to the employment contract have sought a sensible regulation that is compatible with higher-ranking law. In the absence of any evidence to the contrary, it can be assumed that the parties to the employment contract wanted to give preference to the provisions of the State Higher Education Act as the more specific standards in the event of conflicting regulations. The question of specialty cannot be answered based on the legal nature of the regulations. There is no principle that a collective agreement is always more special than the law. Rather, the more specific set of rules must be determined taking into account the content of the regulations. It is the state higher education law that applies specifically to the employment relationships with full-time academic and artistic university staff. According to a decision of the Fifth Senate of March 14, 2007 ( 5 AZR 630/06 ), Sections 305 ff. of the German Civil Code (BGB) must be applied to reference clauses in formal employment contracts. The regulation on main performance obligations contained in the general terms and conditions is in accordance with. § 307 Abs. 3 i.V.m. § 307 Abs. 1 Sentence 2 BGB, however, can only be checked for a violation of the transparency requirement. Unrestricted content control in accordance with Section 307 Para. 3 Sentence 1 of the German Civil Code (BGB) applies if provisions in the general terms and conditions deviate from or supplement legal regulations. However, clauses that determine the scope of the contractual service owed by the parties are subject to limited control. In the employment relationship, these are primarily work performance and remuneration. By referring to the working hours applicable to civil servants, the parties determine the main obligation to perform. This also applies in the case of a dynamic reference. A violation of the transparency requirement of Section 307 (1) that must be examined in this case alone. 1 Sentence 2 BGB does not apply to a clause that refers to the working hours of comparable civil servants as regulated by legal regulations in order to determine the extent of the employee’s working time. Such a reference is not unclear.
References correspond to standard control technology and are common in labor law. Dynamic references also correspond to a common control technique and serve the interests of both parties. In its judgment of June 28, 2007 ( 6 AZR 750/06 ), the Sixth Senate decided that a collective agreement that applies to the employer by virtue of collective bargaining and which is fully referenced in a pre-formulated employment contract does not, even then, have to be subject to a transparency control in accordance with Section 307 Section. 1 sentence 2 BGB is subject to if the employee is not a member of the collective bargaining union. A transparency control would mean that individual provisions of the same collective agreement with the same employer, depending on whether the employee is a member of the collective bargaining union or not, would be applied one time and not the other time due to a lack of transparency. This is with the purpose of Section 310 Para. 4 Sentence 1 BGB, according to which Sections 305 ff. BGB do not apply to collective agreements, is not compatible. The legislature assumes that collective bargaining provisions create an overall appropriate balance in view of the conflicting interests of employees and employers.