1. Working time
If employees are employed on a public holiday that falls on a working day, they must comply with § 11 Abs. 3 Sentence 2 ArbZG have a replacement day of rest, which must be granted within a period of eight weeks including the day of employment. According to Section 12 Sentence 1 No. 2 ArbZG, a collective agreement may deviate from Section 11 Para. 3 ArbZG, the elimination of substitute rest days for public holidays falling on working days can be agreed. According to a decision of the Sixth Senate of September 22, 2005 (- 6 AZR 579/04 -), the collective bargaining parties in Section 16 Para. 1 of the collective agreement for musicians in cultural orchestras of July 1, 1971 (TVK) stipulates such an elimination. This results in the tariff interpretation. According to Section 16 Para. 1 TVK applies to the musicians a six-day week. Since the division of duties is independent of any distinction between working days on the one hand and Sundays and public holidays on the other, it is the clear intention of the collective bargaining parties that all musicians should be entitled to one day off per calendar week and not those who – by chance – worked on a weekday holiday further. The Sixth Senate further decided that according to Section 16 Para. 5 TVK in the current season, i.e. outside of the theater and concert holidays, eight Sundays must be left unemployed.
During this time the musician must also not be available in accordance with. of Section 14 TVK. § 14 TVK stipulates that the musician who is not off duty is obliged to ensure that he can be reached three hours before the start of the performance. The obligation to be accessible according to Section 14 TVK is not a typical one
On-call duty, but it also does not meet the tariff criterion “unemployed” in the sense of of Section 16 Para. 5 TVK. The musician who is obliged to be accessible according to § 14 TVK can spend the day in question largely undisturbed, but must remain “fit to play”. As a result, the musician, who may have to be available for the evening performance, cannot freely plan the afternoon and evening for his leisure activities. The Sixth Senate had to decide on the number of compulsory hours to be worked by a teacher at a school for the hearing impaired in the state of North Rhine-Westphalia (NRW). By agreement and collective agreement, the Federal Employee Collective Agreement (BAT) and the collective agreements supplementing and amending it apply to the employment relationship. § 15 Abs. 1 BAT sets a weekly working time of 38.5 hours for employees. According to No. 3 of the special regulation for employees as teachers (SR 2l I BAT), the working hours of employed teachers are based on the regulations for the corresponding civil servants. The regular annual average permissible working hours for civil servants in North Rhine-Westphalia increased to 41 hours per week on January 1, 2004, and on February 1, 2004 the compulsory number of hours for civil servant teachers was increased by one hour to 27.5 hours per week. In its judgment of December 15, 2005 (- 6 AZR 227/05 -) the Sixth Senate decided that because of No. 3 SR 2l I BAT, § 15 BAT does not apply to the working hours of employed teachers. Even if the weekly working hours of other employees differ from the weekly working hours of civil servants, the regulations of the relevant civil servants apply to employed teachers. The weekly compulsory number of hours for employed teachers at special schools has therefore increased in accordance with Section 2 Para. 1 Sentence 1 No. 7 of the regulation implementing Section 5 of the North Rhine-Westphalia School Finance Act increased to 27.5 hours.
2. Right to part-time work
An employee who has taken parental leave is permitted to work if the agreed weekly working hours do not exceed 30 hours. According to § 15 Abs. 6 and 7 BErzGG, employees whose employment relationship lasted longer than six months can request a reduction in their working hours from their employer – provided the employer usually employs more than 15 employees – during parental leave, provided there are no urgent operational reasons to the contrary.
In its judgment of April 19, 2005 (- 9 AZR 233/04 -), the Ninth Senate decided that the employee is entitled to take parental leave from the outset until the child reaches the age of three. § 16 Abs. 1 Sentence 1 BErzGG, according to which the employee must declare the periods for which he will take parental leave “within two years”, does not contradict this. The provision does not indicate that such a request is invalid or only binds the employee for two years. The employee is bound by general law to the declaration made to the employer about the duration of parental leave. However, an application for parental leave is permitted even after mandatory parental leave has begun. This does not have to be submitted at the same time as you take parental leave. Only this interpretation does justice to the regulatory purpose of making part-time employment easier. Their admission serves the socio-political goal of combining family and career. It corresponds to this intention of the legislature to grant an employee who initially only claimed parental leave and no parental leave the right to subsequently assert his entitlement to parental leave.
This flexibility, which still allows applications for part-time work in the event of unforeseen family or economic developments during parental leave, leads to a greater willingness of fathers and mothers to take parental leave. However, a claim to parental leave asserted during the entire duration of parental leave is usually opposed by urgent operational reasons if the employer has hired a parental leave representative for a limited period and both the latter and employees comparable to the employee on parental leave have refused a temporary reduction in their contractual working hours. The employer is not obliged to employ the applicant despite the lack of work capacity on parental leave or to issue notices of dismissal or change to other employees in order to “free up” work capacity for the employee on parental leave.
3. Limitation of individual working conditions
In its judgment of July 27, 2005 (- 7 AZR 486/04 -), the Seventh Senate decided that the one-year increase in regular working hours, which was formally agreed with a large number of employees after December 31, 2001, is a general terms and conditions of the Subject to content control in accordance with Section 307 of the German Civil Code (BGB) in the version applicable from January 1, 2002. From this point on, no objective reason is required in order for the limitation of the increase in working hours to be effective. the previous case law more. The content control of the limitation of the increase in working hours does not control the main service that the contracting parties themselves must determine. It is not the extent of the work to be performed by the employee that is subject to control, but rather the time limitation due to the fixed-term contract. If the time limit is ineffective, the scope of working hours is agreed for an indefinite period of time. The special features applicable to labor law (Section 310 Paragraph 4 Sentence 2 BGB) do not prevent a content check.
The limitation of the increase in working hours is in accordance with Section 307 Para. 1 Sentence 1 BGB is invalid if it unreasonably disadvantages the affected employees contrary to the requirements of good faith. This can be determined based on a comprehensive consideration and assessment of the legally recognized interests of the contractual partners. A general, typical standard that is independent of the individual case must be applied. In principle, the uncertainty about future labor requirements alone is not enough to justify limiting the increase in working hours. This uncertainty is part of entrepreneurial risk that cannot be shifted to employees. However, this does not apply without exception. If – as in the case in dispute – a new federal state, in which there is a surplus of teachers due to declining student numbers, agrees on the basis of a coalition agreement with the Education and Science Union and, among other things, educators’ associations with a large number of part-time teachers, the temporary increase in the hourly load for the duration of a school year, The peculiarities existing in the state’s school sector can mean that the limitation of the increase in working hours does not result in unreasonable disadvantage for the teachers concerned in the sense of of Section 307 Para. 1 sentence 1 BGB represents. The school sector differs from the private sector in that, in contrast to a private sector company, the school administration does not have the opportunity to influence the employment needs for teachers through acquisition on the market. This depends solely on the number of students, over which the defendant country has no influence.