a) Wage tax / social security contributions
The employer is obliged to withhold and deduct income tax. In addition, he must pay the total social security contribution to the collection agency. By deducting and paying salary components, the employer fulfills its payment obligation towards the employee. According to a decision of the Fifth Senate of April 30, 2008 ( 5 AZR 725/07 ), the payment of taxes and social security contributions constitutes a special objection to compliance. There is no need for offsetting. Since the employer fulfills public law duties in this respect, the labor courts are not authorized to review the legitimacy of the deductions. If the employer clearly demonstrates that he has withheld and paid certain deductions for taxes or social security contributions, the employee cannot, in his opinion, assert the amounts that he believes were wrongly withheld and paid in a remuneration claim. Er ist vielmehr auf die steuer- und sozialrechtlichen Rechtsbehelfe beschränkt, es sei denn, für den Arbeitgeber wäre auf eindeutig erkennbar gewesen, dass eine Verpflichtung zum Abzug nicht bestand.
b) Unemployment benefits and arrears
If an employee receives unemployment benefit while the employer is in default of acceptance, the unemployment benefit actually received must be deducted from the monthly gross remuneration because in this respect the employee’s claim has been transferred to the Federal Employment Agency in accordance with Section 115 SGB X. In its judgment of March 19, 2008 ( 5 AZR 429/07 ), the Fifth Senate once again made it clear that the unemployment benefit received by the employee is to be excluded from interest on the gross debt from the time of the actual payment. In addition, the debtor’s default and the employer’s obligation to pay interest end if he pays the remuneration awarded to the employee after a provisionally enforceable judgment has been issued to avert compulsory enforcement. The Fifth Senate also pointed out that the employment courts cannot determine whether an amount is subject to tax or not with binding effect on the tax authorities and health insurance companies. A sentence to make a net payment is only possible if the employer is obliged, for reasons of labor law, to pay all taxes that are due on a cash payment owed by him.
c) Delay in acceptance
The Fifth Senate has commented on the requirements and legal consequences of the employer’s delay in acceptance in several decisions. The creditor is in default if he does not accept the service offered to him. The provision of § 296 BGB, according to which an offer of the service is unnecessary under certain conditions, does not generally apply to the existing employment relationship because the employer does not determine a time according to the calendar for the division of work, but rather the situation of the employer In principle, you can determine working hours at any time. If there is a dispute between the parties to the employment contract as to which worker is suitable for the job, there is no need to actually offer the work that the employer has already classified as unsuitable.
In a decision of April 30, 2008 ( 5 AZR 502/07 ), the Senate stated that the specification of the work obligation according to Section 106 Sentence 1 in conjunction with. § 6 Abs. 2 GewO is the responsibility of the employer. Therefore, if the employer demands certain work in a legally sound manner, he will not be in default of acceptance if the employee rejects this work and instead offers another job that is also in accordance with the contract. If there is a dispute between the parties to the employment contract as to which work the employee can still carry out due to illness-related restrictions and the employee has refused a specific job, he cannot demand remuneration for late acceptance on the grounds that the employer should have offered this work.
According to a judgment of August 27, 2008 (5 AZR 16/08), this also applies if a termination notice by the employer has been legally declared ineffective on the grounds that the employer would have prevented the corresponding work despite the employee’s rejection have to offer notice of change. In such a case, the employee must regularly offer at least the type of work that does not comply with the contract. A general job offer is usually not enough (§ 294 BGB) because the employer needs to know what changes the employee is prepared to make. However, if the employer culpably violates an obligation to employ the employee for work other than that specified in the contract for special reasons, he is liable in accordance with Section 280 Para. 1 BGB Compensation for loss of remuneration in the amount of the remuneration for the breach of duty.
With regard to the amount of remuneration due to delay in acceptance after notice of termination, the Fifth Senate stated in its judgment of March 19, 2008 ( 5 AZR 432/07 ) that it is the employer’s responsibility to explain how the short-time work lawfully ordered in his company specifically affects the remuneration of the employee in the employment relationship that had not been terminated. § 615 sentence 1, sentence 2 BGB apply according to sentence 3 of the regulation in cases in which the employer bears the risk of loss of work. By inserting sentence 3, the legislature intended to deviate from Sections 275 and 326 Paragraphs in certain cases in accordance with the operational risk theory developed by case law. 1, 615 sentences 1 and 2 BGB impose the risk of loss of work on the employer. With its judgment of July 9, 2008 (5 AZR 810/07), the Fifth Senate decided that it was impossible to perform work in the sense of: § 275 Abs. 1 BGB also applies if the employer can only maintain work using economically inappropriate and therefore unreasonable means.
However, the employer bears the risk of loss of work in accordance with Section 615 Sentence 3 of the German Civil Code (BGB) if he restricts or shuts down operations for reasons that lie within his operational or economic area of responsibility. If an employment contract to which § 305 ff. BGB applies assumes that remuneration is only paid for work performed, this does not constitute a waiver of the claims in accordance with § 615 BGB. In addition, there is an exclusion of claims in accordance with Section 307 Paragraph. 1 Sentence 1 BGB is ineffective if the obligation to work continues and the employee must generally expect a call-off at any time. It is then unreasonable to deny the employee claims for several months.
d) Above-tariff allowances
Whether a collective wage increase can be counted towards above-tariff remuneration under individual law depends on the underlying remuneration agreement. In its judgment of August 27, 2008 ( 5 AZR 820/07 ), the Fifth Senate pointed out that a contractual condition that is verbal or based on operational practice and that the employer uses for a variety of employment relationships is also a general contractual condition is. Unless otherwise agreed, the employer can also retroactively offset an above-tariff allowance in the event of collective wage increases.
The interpretation that an above-tariff allowance is a wage component against which collective wage increases can be offset is subject to no doubt. § 305 c Abs. 2 BGB. The reservation of a subsequent repayment provision does not violate the transparency requirement of Section 307 (1). 1 sentence 2 BGB. This does not require that the above-tariff allowance be expressly designated as such a salary component. Rather, this emerges sufficiently clearly from the agreement as an “above-tariff allowance”.
e) Teacher grouping
The equal treatment of employed and civil servant teachers as required by the guidelines of the Collective Bargaining Association of German States on the classification of salaried teachers (East) precludes the use of automatic collective bargaining for salaried teachers.
According to a decision of the Fourth Senate of March 12, 2008 ( 4 AZR 93/07 ), the conditions under which corresponding unilateral measures would be possible for the employer, including civil servants, must be taken into account both when upgrading and downgrading. Automatic collective bargaining is foreign to civil service law. The salary of a civil servant depends on the salary group of the office awarded to him.
This is the office that was given to him for the first time by way of status justification or last after a promotion. In order to establish this status, there must be a vacant position in addition to the career requirements. If an employed teacher has been “finally” appointed head of a school with a certain size relevant to the classification with the participation of the staff representative, this is tantamount to a change in the employment contract and can no longer be reversed unilaterally, especially not by downgrading, if the actual conditions are met , under which the order was made (e.g. exceeding a certain number of students), are no longer given.
f) Alternating shift allowance according to TVöD
According to the collective agreement for the public service (TVöD), which came into force on October 1, 2005, employees who constantly work alternating shifts receive an allowance of 105 euros per month. On-call times for paramedics iSd. Appendix to Section 9. B Abs. 1 TVöD specifies the regular working hours as defined. § 6 TVöD. If such standby times occur during alternating work shifts, the employees work “uninterrupted” within the meaning of Section 7 Paragraph. 1 TVöD and are therefore entitled to the rotating shift allowance.
Rotating shifts occur when work is carried out “around the clock” on all calendar days in the work area. It doesn’t matter how many shifts the 24-hour day is divided into. Zu der fast wortgleichen Vorschrift des § 15 Abs. 8 subparagraph 6 BAT, the Tenth Senate had declared that there was a lack of uninterrupted work performance in the employee’s company or area of work if no work was performed at all by employees at certain times. If all employees in a certain work area are only required to be on standby or on call, there is no alternating shift, as there is then a period of time in which no work is carried out in the work area at all, thus interrupting the alternating work shifts.
According to a ruling from September 24, 2008 ( 10 AZR 770/07 ) regarding the on-call service, this also applies to the TVöD. However, according to another ruling by the Tenth Senate of September 24, 2008 (10 AZR 669/07), this can apply to standby times in the sense of. Appendix to § 9 Section. B TVöD does not apply. They must be distinguished from other special forms of work in accordance with Section 7 TVöD, in particular from on-call duty.
On-call times differ from on-call service, on the one hand, in the degree of strain on the employees and, on the other hand, in the fact that on-call service is outside regular working hours and is paid separately.
g) Home allowance according to BAT
Anlage 1a Eine monatliche Zulage erhält ein Angestellter nach der Protokollnotiz Nr. 1 zum Ab schnitt G des Teils II der Anlage 1a zum BAT für die Dauer der Tätigkeit in einem Erziehungs-, einem Kinder- oder einem Jugendwohnheim oder einer vergleichbaren Einrichtung (Heim), wenn in dem Heim überwiegend Behinderte im Sinne des § 39 BSHG oder Kinder oder Jugendliche mit wesentlichen Erziehungsschwierigkeiten zum Zwecke der Erziehung, Ausbildung oder Pflege ständig untergebracht sind. Assisted living communities in which four to six, a maximum of seven mentally disabled people are accommodated can also be facilities comparable to a home.
Not every place of residence meets the requirements of the protocol note, but only a facility that is comparable to educational homes or children’s and youth homes. By using the concept of a facility comparable to a home, the collective bargaining parties wanted to express that it must pursue a purpose that goes beyond simply providing accommodation. With its judgment of February 20, 2008 ( 10 AZR 597/06 ), the Tenth Senate maintained that the decisive criterion for this is the order typically set by a home management. Such an order need not be explicitly stated as such, but may emerge from a mosaic of regulations and restrictions found in various sources.
h) Special payment
The effects of a collective agreement only arise when you join one of the contracting associations. What matters is not when the claim became due, but when it arose. If the entitlement only arises after collective bargaining has taken place, it must be fulfilled if the requirements are met. Against this background, the Tenth Senate, in its judgment of April 23, 2008 (10 AZR 258/07), interpreted Section 18 “Special payment” of the federal framework collective agreement for pharmacy employees concluded between the ADEXA pharmacy union and the collective agreement of pharmacy managers in North Rhine-Westphalia. The entitlement to the special payment regulated in § 18 BRTV does not arise pro rata for each completed month of employment, but rather in the event of termination at this point in time, and is due with the payment of the last salary.
If the collective bargaining agreement occurs before the time at which it arises through joining one of the collective bargaining associations, the claim arises in full. Collective agreement binding during the course of the calendar year is not required. The employer can prevent the employee from becoming entitled to the benefit for future reference periods by making special payments voluntary. The employer does not have to combine every special payment with a voluntary reservation if it wants to exclude the employee’s legal claim to the benefit for future reference periods. A clear and understandable note in the employment contract form is sufficient.
According to a decision of the Tenth 35 Senate of July 30, 2008 ( 10 AZR 606/07 ), the effectiveness of such a voluntary reservation does not depend on the purpose pursued by the employer with the special payment. Voluntary reservations for special services are also permitted if they serve to provide additional compensation for the work performed during the reference period. If the employer expressly promises the employee a certain special payment in the form employment contract and the amount of the promised special payment is also precisely determined, the required transparency is lacking if another contractual clause contradicts this and states that the employee has no legal right to the special payment.
The regulation is then ineffective to the extent that a legal claim to the special payment is excluded. The combination of a voluntary agreement and a reservation of revocation is also contradictory.
i) Transfer of employees from the BAT to the TVöD
According to § 5 para. 1 of the collective agreement on the transfer of employees of municipal employers to the collective agreement for the public service (TVöD) and on the regulation of the transitional law (TVÜVKA) is a comparison wage for the assignment of employees to the levels of the TVöD pay table based on the September emoluments received in 2005. The determined comparative salary should be paid to the employees in accordance with Section 6 Para. 1 Protect TVÜVKA from being paid less than before after the transition to TVöD.
It guarantees that the existing status will be maintained even after the employment relationship has been transferred. § 5 Abs. 2 TVÜVKA, according to which when the employee is transferred from the BAT to the TVöD, level 1 of the local supplement is to be used as a basis when calculating the comparison pay if the employee is married to a person who receives a family supplement according to the principles of civil service law, is violated a decision of the Sixth Senate of October 30, 2008 ( 6 AZR 682/07 ) neither violates Art. 3 para. 1 still violates Art. 6 para. 1 GG. With regard to the payment of the Level 2 local supplement, the spouses’ joint employment is treated in essentially the same way as for a public sector employee whose spouse works in a private company; the employee receives the full level 2 local allowance. The parties to the collective agreement are not constitutionally obliged to agree on family-related remuneration components.
Rather, they are free to decide whether and to what extent they want to provide social, family-related compensation through an additional remuneration component in addition to the purely work-related remuneration. Collective agreements may not differentiate based on marital status in a way that violates equality. Since the spouses’ property rights were essentially preserved during the transfer, there is no unequal treatment based on marital status. According to its § 1 paragraph. 1 Sentence 1 of the TVÜVKA applies to employees whose employment relationship with an employer bound by a collective agreement continues beyond September 30, 2005 and who fall under the scope of TVöD on October 1, 2005, for the duration of the uninterrupted employment relationship.
According to a protocol statement by the collective bargaining parties, interruptions of up to one month are harmless. The collective bargaining parties have thus created an independent regulation of the term interruption, which is not based on a close temporal and factual connection, but only on the duration of the interruption. According to a ruling by the Sixth Senate of November 27, 2008 (6 AZR 632/08), the regulation does not violate the prohibition of discrimination against fixed-term employees in accordance with Section 4 Paragraph. 2 Sentence 1 TzBfG. This provision does not prohibit fixed-term contracts as such, but only unequal treatment during the duration of the fixed-term contract. It does not protect employees who enter into a new employment relationship with changed working conditions following a fixed-term employment relationship from a deterioration in working conditions.
There is also no indirect discrimination due to gender. It is neither established nor obvious that there are significantly more women than men in “intermittent employment relationships” in the public service. § 1 para. 1 set 1 TVÜ VKA stand. Furthermore, indirect discrimination based on gender would be justified because the regulation appropriately pursues a legitimate aim. If an employer only offers a new employment relationship after one month and one day and pays remuneration in the new employment relationship without taking the TVÜVKA into account, this does not constitute an abusive legal circumvention of the collective agreement transition regulations (§ 242 BGB). § 11 TVÜVKA initially granted employees who did not receive any wages in September 2005 any entitlement to a vested allowance for the child-related wage components paid in accordance with the previous collective bargaining law in the public service.
Only since an amendment to § 11 TVÜVKA has been made, among other things. Employees who were on parental leave in September 2005 were paid such a vesting allowance from June 1, 2008 under certain conditions. Insofar as § 11 TVÜVKA aF excluded employees who took parental leave in September 2005 from the vested rights regulation, the collective bargaining standard violated Art. 3 GG in conjunction with a decision of the Sixth Senate of December 18, 2008 ( 6 AZR 287/07). Art. 6 Abs. 1 GG and was therefore ineffective. The exception disregarded the constitutionally protected interests of marriage and family of the affected employees in a way that violated equality. The plaintiff educator, who was on parental leave until January 8, 2006, is therefore entitled to payment of the vesting allowance for the period from January 2006 to May 2008.