a) Classification

In a decision of December 6, 2006 ( 4 AZR 659/05 ), the Fourth Senate decided that the interpretation of an activity characteristic of a collectively agreed remuneration group that relates to a specific technical standard depends on the conditions at the time of the collective bargaining agreement . Tariff standards may not be interpreted in a restrictive or expansive manner because of new technical developments. If a collective agreement no longer appears to be appropriate due to technical developments, it is the responsibility of the parties to the collective agreement to take the advanced technical development into account through appropriate standards. The courts would inadmissibly interfere with the collective bargaining autonomy protected by the Basic Law if they interpreted collective bargaining standards in a restrictive or expansive manner due to new technical developments, even if the wording and overall context of the collective bargaining regulation do not provide any possibility for this.

In its judgment of January 24, 2007 ( 4 AZR 629/06 ), the Fourth Senate dealt with the classification of primary school teachers in the Free State of Saxony. In accordance with the Free State’s teaching guidelines, this is based on the principles applicable to the promotion of civil servants and requires, among other things, a vacancy that has been identified in the budget and intended to be filled. According to the teacher guidelines, the public employer is obliged to fill the vacant positions that are available for a higher grouping based on the results of official assessments. He is not obliged to fill the positions with applicants who are rated best in a nationwide comparison. Due to the budgetary authority to manage personnel, it can also allocate the positions on a contingent basis to the regional education authorities, which are then tied to the results of the official assessments of the applicants from their area of responsibility when filling them. As a result, this can mean that a better assessment for higher grouping is required in the district of one regional school authority than in the district of another regional school authority.

The obligation to select based on suitability, ability and professional performance in accordance with. Art. 33 Abs. 2 GG does not go so far as to say that promotion positions must always be assigned to the department where the best-rated employees work. Even with the claim that the official assessment is incorrect and that a certain better assessment is necessary, the plaintiff employee cannot achieve the desired higher grouping. Labor courts are generally prohibited from replacing the official assessment prepared by the public employer with their own assessment with a specific result. If the assessment is incorrect, the employee is generally entitled to a new assessment. During the reporting period, the Fourth Senate was faced with the question of the classification of a building cleaner in a wage group in the framework collective agreement for commercial employees in building cleaning of October 4, 2003 (RTV 2003). In his judgment of May 9, 2007 ( 4 AZR 757/06 ), he decided that the job characteristic of wage group 7 RTV 2003 does not require the successful completion of training as a building cleaner. However, a journeyman building cleaner cannot be classified in this wage group regardless of the work he actually performs.

Rather, the classification requires the predominant actual performance of activities for which at least three years of professional training is required. For this purpose, it is sufficient that the employee carries out such an activity in only one work area, i.e. in a sub-area of building cleaning. There is no requirement for them to be “all-rounders” in all areas of the building cleaning profession. The Senate has thus responded to the fundamental reorientation of the classification rules in the building cleaning trade compared to the previous provisions.

b) Delay in acceptance

According to Section 615 Sentence 1 BGB, the employee can demand the agreed remuneration from the employer who has defaulted on acceptance without being obliged to make additional payments. However, according to Section 615 Sentence 2 of the German Civil Code (BGB), the employee must have other acquisitions and the value of what he maliciously fails to acquire taken into account. Credit can also be taken into consideration if the employee declines reasonable employment with the employer who is in arrears with accepting the services. With its judgment of February 7, 2007 ( 5 AZR 422/06 ), the Fifth Senate, abandoning the opinion expressed in the Senate judgment of December 3, 1980 ( 5 AZR 477/78 ), decided that in the undisputed employment relationship, the employer’s obligations to the employee Any work assigned beyond the person’s right to give instructions cannot simply be viewed as unreasonable. § 615 Sentence 2 BGB includes the case where the employer offers work that violates the contract, because offering work in accordance with the contract for the purpose of fulfilling the existing employment contract would end the delay in acceptance.

According to the principle, unreasonableness in an undisputed existing employment relationship, i.e. during the period of notice, may not be assessed differently than in a potentially terminated employment relationship, i.e. after the notice period has expired. The law also makes no fundamental distinction as to whether the opportunity to work exists with the previous employer or with another employer. Therefore, all circumstances of the individual case must also be taken into account here. In addition to the type of work and other working conditions, it must be examined why the employer does not offer work in accordance with the contract and the employee refuses the assigned work. With its judgment of September 26, 2007 ( 5 AZR 870/06 ), the Fifth Senate continued its case law on the malicious failure to acquire something else during the delay in acceptance. The employee can then maliciously fail to accept reasonable work simply by not accepting, with reservations, an offer of change declared in connection with a termination in accordance with Section 2 of the KSchG. This can also affect the obligation to accept reasonable work in accordance with. § 11 Sentence 1 No. 2 KSchG, § 615 Sentence 2 BGB, as it is not aimed at a final change to the contract. Rather, there is a provisional opportunity to work because the employee can accept the offer subject to Section 2 KSchG with the possible consequence of Section 8 KSchG. The employer does not have to specifically express the provisional nature; it follows from the law. If the employee rejects the offer, there is no need for a new offer aimed at so-called process employment. The employee who does not take advantage of the option under Section 2 KSchG acts at his own risk if it turns out that the work offered was reasonable. The reasonable work opportunity for the employee associated with a change of notice usually ends with a subsequent termination notice from the employer. The employee who has rejected the offer of a change will then no longer refrain from accepting work that is reasonable.

c) Freiwilligkeitsvorbehalt

According to a decision of the Fifth Senate of April 25, 2007 ( 5 AZR 627/06 ), a clause contained in an employment contract pre-formulated by the employer, which provides for a monthly performance bonus to be paid to the exclusion of any legal claim, is invalid. The contractually agreed exclusion of a legal claim in the event of ongoing remuneration puts the employee at an unreasonable disadvantage contrary to the requirements of good faith and is in accordance with. § 307 Abs. 1 sentence 1 BGB ineffective. In the past, the Federal Labor Court has only recognized the effectiveness of so-called voluntary reservations with regard to special remuneration (such as Christmas bonuses and gratuities). If current wages were affected, the exclusion of legal claims was interpreted as a reservation of revocation. However, this is no longer possible after Section 308 No. 4 BGB comes into force. A supplementary contract interpretation to be carried out if the invalid clause is no longer valid requires that it can be determined which regulation the parties would have made if they had known that the clause was ineffective and had their interests been properly weighed up. If a payment from the employer is simply described as a performance bonus without any further information, this does not allow sufficient conclusions to be drawn about the reasons for revocation within the meaning of Section 308 No. 4 BGB. The requirements and scope of the reserved changes are then not specified in the contract.

d) Principle of equal treatment

According to a judgment of the Fifth Senate of March 14, 2007 ( 5 AZR 420/06 ), the general principle of equal treatment applies if the employer grants a salary increase in accordance with what he knows violates Section 77 (1). 3 BetrVG only makes payments to its core workforce, but not to the employees taken on as a result of a business transfer. This does not conflict with the fact that the different remuneration systems are based on the provision of Section 613a Paragraph. 1 sentence 1, 2 BGB and do not insist on the employer forming a group. Building on this when granting benefits represents an independent group formation. Different employment contracts and remuneration systems between the permanent workforce on the one hand and the transferred employees on the other hand do not in themselves justify different treatment when it comes to salary increases. The validity of different contract models is a formal consideration and does not replace the objective reason for the differentiation. Group formation is only justified if the distinction serves a legitimate purpose and is necessary and appropriate to achieve that purpose.

An objective reason for the differentiation may lie in the harmonization of working conditions. The creation of uniform working conditions by compensating for disadvantages and aligning them with the conditions of the transferred workforce justifies differentiated treatment of the different groups. This does not stand in the way of the fact that the wage increase represents compensation for the monetary devaluation that affects all employees. Compensation for the inflation-related price increase does not have to be granted equally to all employees if there are objective reasons for a differentiation.

e) Special payment

In its judgment of April 25, 2007 ( 10 AZR 634/06 ), the Tenth Senate dealt with the control of the content of repayment clauses agreed in individual contracts. If the parties agree in a form employment contract that a collective agreement that regulates, among other things, the employee’s entitlement to a benefit (TV benefit) does not apply, but the employer still pays the employee a “non-tariff benefit” “in accordance with this collective agreement”. The TV grant is not contractually referred to with the note that this does not give rise to any claims to the grant in subsequent years.

If in such a case the employer ties the payment of the grant to the repayment conditions of the TV grant, the repayment clause is subject to the repayment clause despite the provisions in Section 310 Para. 4 Sentence 3 BGB, equalization of collective agreements with legal provisions within the meaning of Section 307 Para. 3 BGB a content control according to § 307 para. 1 BGB. The decisive factor here is that the employee’s entitlement should not be based entirely and permanently on the TV allowance. Individual contractual binding and repayment clauses associated with special payments must not impermissibly impede an employee’s freedom of occupation and are therefore subject to a content control in accordance with. § 307 BGB.

A gratuity paid at the end of the year that is over one hundred euros but less than one month’s salary can only bind the employee until March 31 of the following year as part of an individual contractual repayment clause. A further binding is according to § 307 Abs. 1 Sentence 1 BGB is ineffective and therefore does not lead to a claim for repayment by the employer. According to a decision of the Tenth Senate on October 24, 2007, the employer violated the pre-formulated employment contract in Section 307 Para. The transparency requirement is anchored in Section 1 Sentence 2 of the German Civil Code (BGB) and is ineffective if it unreasonably disadvantages the employee contrary to the requirements of good faith. If the employer undertakes to pay a bonus to an employee in a pre-formulated employment contract, a clause according to which the bonus is paid voluntarily and there is no legal right to its payment puts the employee at an unreasonable disadvantage. There is a risk that the employee will not assert his right to the bonus payment due to this contractual clause. In such a case, the bonus regulation is not ineffective as a whole, but only to the extent that the employee is disadvantaged by the exclusion of a legal right to the bonus payment.

In the judgment, the Senate also dealt with the control of the content of pre-formulated binding clauses (cut-off date regulations or repayment clauses) for special payments. Accordingly, a clause pre-formulated by the employer, which links the employee’s entitlement to a profit- and performance-related bonus payment to the fact that the employment relationship exists without termination on a specific date, is also subject to content control in accordance with Sections 305 ff. of the German Civil Code (BGB). A deadline regulation that binds the employee until September 30 of the following year, regardless of the amount of the bonus payment, is too broad, puts the employee at an unreasonable disadvantage contrary to the requirements of good faith within the meaning of Section 307 of the German Civil Code (BGB) and is therefore ineffective. In old cases, i.e. in contracts concluded before the Law of Obligations Modernization Act came into force, the gap created by the elimination of the invalidity clause can be closed by means of supplementary contract interpretation.

The answer to the question of what the parties would have agreed if they had been aware of the legally mandated ineffectiveness of the binding clause must be sought within the framework set by the contract itself. The result of a supplementary contract interpretation must not contradict the parties’ intentions expressed in the contract. The Senate has left it open whether, when reviewing the content of binding clauses, a distinction should be made between deadlines and repayment clauses, whether there is unreasonable disadvantage to the employee if binding clauses for special payments do not differentiate according to whether terminations are the responsibility of the employee or the employer, and Whether key dates or repayment clauses are permissible for special payments that make up at least 25 percent of the employee’s total remuneration.

f) Local surcharge

As of October 1, 2005, the employees of the federal government and local employers had to be transferred to the new collective agreement for the public service (TVöD) by assigning them to one of the new pay groups and, within the pay groups, to a level in the TVöD pay table. For the allocation, a so-called comparison salary was formed for each individual employee on the basis of the last remuneration received according to the BAT. However, in the TVöD, marital status and child-related remuneration components such as the local surcharge in accordance with. § 29 para. B BAT no longer provided. The collective agreement on the transfer of employees of municipal employers to the TVöD and on the regulation of the transitional law of September 13, 2005 (TVÜVKA) determines the extent to which the individual components of the “old” local surcharge are to be taken into account when forming the comparison wage. It also stipulates that when calculating the comparison salary, only the local level 1 supplement is to be used as a basis if the spouse of the employee to be transferred to management is entitled to the local supplement or family supplement and is not transferred to the TVöD by October 1, 2005. The background to this regulation is that the spouse who remains within the scope of the BAT is in principle fully entitled to the family-related part of the local allowance from the time of the transfer.

Since this according to § 29 para. B Abs. 5 BAT should generally only be paid in full once to each married couple, it should not be taken into account for the employee to be transferred. The TVÜVKA regulation does not differentiate according to whether the spouse of the employee being transferred is employed full-time or part-time. In its judgment of October 25, 2007 ( 6 AZR 95/07 ), the Sixth Senate decided that only the local surcharge of level 1 is to be used when forming the comparison pay even if the spouse of the extra person who remains within the scope of application of the BAT Managerial employees only have the acc. to part-time employment. § 34 BAT can claim the reduced local surcharge. In its decision of March 28, 2007 ( 10 AZR 707/05 ), the Tenth Senate dealt with the question under which conditions a care allowance is to be paid according to a protocol declaration on the remuneration regulations for employees in the care service of the Arbeiterwohlfahrt.

Unlike previous decisions on these care allowances, he assumed that it was not necessary for the nursing staff to provide both basic and treatment care. It is sufficient if one of the two types of care is carried out. This results in the interpretation of the protocol declaration. The purpose of the allowance is to compensate for difficulties in the care of certain groups of patients under certain circumstances, which occur in both basic and treatment care. The allowance is not due due to the accumulation of types of care. h) Exclusion period Collective agreements often contain exclusion periods, the failure of which leads to the forfeiture of claims from the employment relationship.

In einer Entscheidung vom 13. Dezember 2007 ( 6 AZR 222/07 ) war der Sechste Senat mit der Frage befasst, ob sich ein Arbeitgeber auf eine tarifliche Ausschlussfrist auch dann berufen kann, wenn selbst eine fristgerechte Erhebung der Ansprüche nach damaliger Einschätzung der Rechts lage keine Aussicht auf Erfolg gehabt hätte. The Sixth Senate has decided that relying on the exclusion period in relation to the employee’s claim to additional payment of the child-related part of the local allowance for previous years does not violate good faith, although only a decision of the Federal Constitutional Court of June 11, 2005 ( 2 BvR 167/ 02 ) about the requirements for child benefit claims also brought about a change in the prospects of success for the collection of the collective bargaining claim for local supplement. The legal position originally taken by the employer appeared to be justifiable. It was not unreasonable for the employee to assert his claim within the exclusion period in the form of a simple letter of claim.