In its judgment of April 15, 2008 ( 1 AZR 86/07 ), the First Senate had to decide on the effectiveness of a provision of a site security agreement that had been signed jointly by the employer, union and works council. The provision was ineffective because the authorship of the individual regulations could not be determined with the necessary clarity.
When concluding a collective normative agreement, the character and authorship of the standard must be clearly identifiable in the interest of legal certainty and legal clarity. The written form requirements in Section 1 Abc. 2 TVG and in Section 77 Para. 2 Sentence 1 and 2 BetrVG also serve to ensure legal certainty and the attribution of the regulations to specific standard providers. If agreements are signed jointly by the employer, trade union and works council, it must be clear and clear who is the author of the individual sets of regulations and which legal sources are involved.
Otherwise the agreement is ineffective; At most, those regulatory complexes are effective that can be independently distinguished from the others and whose authors are readily identifiable. The First Senate decided on the effectiveness of a conciliation board decision to introduce video surveillance in a resolution of August 26, 2008 ( 1 ABR 16/07 ). The ineffectiveness of individual provisions of a conciliation board’s decision does not lead to its total invalidity if the remaining part still represents a self-contained and sensible regulation. In principle, a conciliation body must resolve an issue assigned to it completely and conclusively.
However, it may be appropriate to only define the relevant principles in an abstract general manner in order to reserve the regulation of the specific individual case that must be made in compliance with them to the operating parties and, if necessary, to a new conciliation body. The composition of this future conciliation body cannot be determined by decision. Die Betriebsparteien sind grundsätzlich zur Einführung einer Videoüberwachung im Betrieb befugt. In doing so, according to § 75 Abs. 2 Sentence 1 BetrVG that is defined by Art. 2 Para. 1 iVm. Art. 1 Abs. 1 GG must observe the general personal rights of employees guaranteed. Interventions in this right must be justified by the legitimate interests of the employer or other legal entities. The principle of proportionality applies. This requires that the regulation adopted is suitable, necessary and appropriate, taking into account the guaranteed civil liberties, in order to achieve the desired purpose. The appropriateness of video surveillance measures depends largely on the intensity of the intervention.
Diese ist unter anderem von der Anzahl der beobachteten Personen, der Dauer der Überwachung sowie davon abhängig, ob die Betroffenen einen zurechenbaren Anlass für ihre Beobachtung gesetzt haben. The requirement for the works council’s consent to a specific monitoring measure is suitable for additional procedurally ensuring that any possible interference with the personal rights of employees is limited in terms of content. However, consent cannot replace missing restrictions on the content of video surveillance. When using video surveillance in publicly accessible rooms, Section 6b BDSG must be observed. According to a decision of the First Senate of July 22, 2008 ( 1 ABR 40/07 ), the works council has decided in accordance with Section 87 Para. 1 No. 1 BetrVG if the employer wants to regulate the so-called orderly behavior of the employees through ethics guidelines in a code of conduct. The right of co-determination does not necessarily require that there are binding rules of conduct.
It is sufficient that the employer’s measure is aimed at controlling the behavior of employees or ensuring order in the company. The right to co-determination in individual regulations does not necessarily constitute a right to co-determination in the entire work. The general obligation to report all violations of the Code of Conduct, which in itself requires co-determination, does not constitute a right to co-determination in the entire work. Regulations that merely specify the work owed, or the announcement of the “corporate philosophy” and the description of corporate goals are not subject to co-determination. Foreign regulations are not legal regulations in the sense. § 87 Abs. 1 Entry half sentence BetrVG and do not exclude a right of co-determination. § 87 Abs. 1 No. 1 BetrVG does not entitle the company parties to intervene in the private lives of employees.
However, regulations regarding private relationships in the company are not exempt from co-determination from the outset. An intended general ban on romantic relationships in the company would generally be inadmissible because of the serious interference with the general personal rights of employees. However, a corresponding order from the employer would in any case require co-determination. As part of co-determination, the works council should ensure that the regulation does not violate the personal rights of employees. If a code of conduct is intended to implement a group-wide “corporate philosophy” and to ensure an “ethically and morally uniform appearance” and a group-wide identity, the right of co-determination pursuant to Section 87 Para. 1 BetrVG in accordance with. § 58 Abs. 1 BetrVG to the group works council.
According to § 87 para. 1 No. 10 BetrVG, the works council has a say in questions of company wage structure, in particular in the establishment of remuneration principles and in the introduction and application of new remuneration methods. The subject of the right of co-determination is not the specific amount of wages, but rather the structural forms of wages including their more detailed forms of implementation. Changes to existing remuneration principles by the employer are also subject to regulation, regardless of the legal basis on which the previous remuneration principles were applied. The right of co-determination relates, among other things, to: on employer contributions that are subsequently granted for employee services. This does not apply if the employer has no leeway when making certain changes.
The fact that the employer could have demanded a change from the point of view of disrupting the basis of the transaction does not exclude the right to co-determination. Betrifft die Änderung alle Außendienstmitarbeiter eines Konzerns, ist nach einem Urteil des Dritten Senats vom 29. Januar 2008 ( 3 AZR 42/06 ) grundsätzlich der Konzernbetriebsrat zustän dig, weil sich bei vernünftiger Würdigung eine sachliche Notwendigkeit für eine einheit liche Regelung innerhalb des Konzerns ergibt. The right of co-determination according to Section 87 BetrVG is not a right of veto; The silence of the works council cannot be viewed as consent. It is not sufficient if the responsible works constitution body simply states that it does not consider a right of co-determination to exist. The employer bears the burden of demonstrating and proving that the right of co-determination was preserved in a change agreement, unless there are special circumstances. If there is a disruption to the basis of the contract to the detriment of the employees, the employer has a unilateral right to determine performance, which it must exercise at its reasonable discretion.
The beneficiary must allow the exercise of this right to exercise this right when asserting claims. Regardless of this, he cannot assert any further rights as a result of the disruption than are required by adapting to the principles of the original agreement. According to the judgment of the First Senate of April 15, 2008 ( 1 AZR 65/07 ), the collective bargaining principles already constitute the wage principles applicable in the company or an office in the sense of. § 87 Abs. 1 No. 10 BetrVG or Section 85 Para. 1 No. 10 PersVG Berlin but. After collective bargaining is no longer applicable, it is possible to change it, but requires the approval of the company or staff council. It represents a change in remuneration principles if an employer pays its employees from a certain point in time in the form of the same monthly installments instead of different amounts twice a year until then. The abolition of holiday pay that is the same for the different salary groups will not only change the current principle for breaking down the total annual remuneration, but also the relative distance between the total remuneration.
Individual wage agreements must be fulfilled by the employer in accordance with the applicable collective wage principles, as far as possible. This can result in the employer having to provide services that do not contradict agreements in the employment contract but are not specifically provided for there. A setting iSv. § 99 Abs. 1 Sentence 1 of the BetrVG occurs when people are integrated into the employer’s business in order to achieve the work-technical purpose of the employer through activity bound to instructions, together with the employees employed there. The legal relationship between these people and the business owner is irrelevant. The use of temporary workers in the hiring company is also considered a discontinuation.
According to the resolution of the First Senate of January 23, 2008 ( 1 ABR 74/06 ), the inclusion of temporary workers in a job pool from which the lender selects workers for work in the borrower’s company at the request of the borrower is not an afterthought § 99 para. 1 BetrVG takeover subject to co-determination iSv. § 14 Abs. 3 Sentence 1 AÜG. Only the specific use of temporary workers in the hiring company is subject to co-determination. An application from the employer in accordance with Section 99 Para. 4 BetrVG on replacing the works council’s consent to a recruitment presupposes that the measure to which the consent is to be replaced is a recruitment in the sense of. § 99 Abs. 1 Sentence 1 and 2 BetrVG. Otherwise the application will be ineffective and unfounded. To the works council in accordance with Section 99 Para. 1 Sentence 1 BetrVG, the application documents to be submitted generally also include documents that the employer itself prepared on the occasion of an application about the applicant.
Dies sind vor allem Schriftstücke, die er allein oder zusammen mit dem jeweiligen Bewerber erstellt hat, um (auch) auf ihrer Grundlage seine Auswahlentscheidung zu treffen, wie etwa Personalfragebögen, standardisierte Interview oder Prüfungsergebnisse oder schriftli che Protokolle über Bewerbungsgespräche. The employer does not have to submit records that are not important for the selection decision, such as informal, unstructured notes from conversations. According to Section 81 Para. 1 Sentence 1 SGB IX, employers are obliged to check whether vacant positions can be filled by severely disabled people, in particular those who are registered as unemployed or looking for work with the employment agency. The obligation to examine is specified in Section 81 Para. 1 sentence 2 SGB IX standardized obligation of the employer to contact the employment agency at an early stage.
An employer violates these obligations if he hires a non-severely disabled employee for a vacant position without checking whether the position could be filled by a severely disabled person. In its resolution of June 17, 2008 ( 1 ABR 20/07 ), the First Senate left the question open as to whether Section 81 Para. 1 Sentence 1 and 2 SGB IX also applies if an employer, when filling a vacant or newly created job, decides from the outset that the position will be filled internally by means of transfer and excludes the hiring of possible external applicants. The employer’s obligations according to Section 81 Para. 1 Sentence 1 and 2 SGB IX apply in any case if he seriously considers filling a position with an external applicant.
The reason for refusal of consent in Section 99 Para. However, Section 2 No. 1 BetrVG only applies if the aim of the prohibition can only be achieved by not carrying out the transfer. That’s not the case. A breach by the employer of his obligations under Section 81 Para. 1 Sentence 1 and 2 SGB IX therefore establishes the works council’s right to refuse consent in accordance with Section 99 Paragraph. 2 No. 1 BetrVG applies to hiring, but not to transfers. According to Section 112 Paragraph, social plans have 1 Sentence 2 BetrVG a future-oriented compensation and bridging function. The First Senate adhered to this with judgments of September 30, 2008 ( 1 AZR 684/07 ) and November 11, 2008 ( 1 AZR 475/07 ).
When drawing up social plans, the company parties have some scope for assessing the economic disadvantages that the employees are likely to suffer as a result of the change in the company. You can consider mitigating the disadvantages associated with unemployment and pension insurance benefits as well as company pension schemes. Based on this, the operating parties have freedom to decide whether, to what extent and how they compensate for the disadvantages they have forecast. They may provide for typified and generalized designs. However, they must observe the principle of equal treatment under the works constitution as well as constitutional, community law and simple statutory bans on discrimination. The group formations must be based on the function of the social plan. Against this background, the company parties can provide for lower severance payments in social plans for employees who are entitled to early retirement pensions following termination of the employment relationship.