The clause with which reference is made to a collective agreement in a form employment contract used by the employer is subject to judicial review of general terms and conditions as a general terms and conditions (GTC) in accordance with Sections 305 ff. of the German Civil Code (BGB). Concerns about the effectiveness of the inclusion of the collective agreement do not arise from the employee’s possibly insufficient opportunity to become aware of the content of the collective agreement. According to Section 310 Para. 4 Sentence 2 BGB contains the provision of Section 305 Paragraph. 2 BGB does not apply when checking pre-formulated contractual conditions in labor law. In view of the clear legislative decision, an analogous application of Section 305 Para. 2 BGB.
According to a decision of the Ninth Senate of September 18, 2007 ( 9 AZR 822/06 ), a clause that refers without restriction to a specific collective agreement is not unclear or incomprehensible in the sense of. § 307 Abs. 1 sentence 2 BGB. If, on the other hand, the collective agreement referred to refers to a different set of regulations, this clause is considered part of the collective agreement in accordance with Section 310 Paragraph. 4 Sentence 1 BGB of the judicial General Terms and Conditions withdrawn from control. This applies both to Section 4 Para. 1 TVG applies normatively as well as collective agreements referred to in the contract. In its judgment of September 24, 2008 ( 6 AZR 76/07 ) on the question of general terms and conditions control of reference clauses, the Sixth Senate stated that dynamic references to relevant collective agreements are so widespread in working life as a design tool that their inclusion in standard contracts is not surprising Within the meaning of Section 305c paragraph. 1 BGB.
However, he expressly left it open as to whether the reference, which in itself was not surprising, would also include tariff provisions that were simply not foreseeable for the contractual partners when the contract was concluded. If the change to the collective agreement referred to only contains provisions such as are common in restructuring and rationalization protection collective agreements, an employee must take them into account in the event of a dynamic reference. General terms and conditions are to be interpreted uniformly according to their objective content and typical meaning, as they are understood by reasonable and honest contractual partners, taking into account the interests of the public normally involved. The understanding of the average contractual partner of the user must be taken into account. If it is possible to establish that the parties have a consistent understanding of the content of a clause, this takes precedence over the differing results of an objective interpretation, just like an individual agreement.
If the interpretation result is clear, the ambiguity rule in Section 305c para. 2 BGB kein Raum. According to the decision of the Sixth Senate, the ambiguity rule is generally not applicable to employment contract clauses that refer to a collective agreement because the question of favorability for the employee cannot be answered clearly. The application of the collective agreement in question, depending on the type of claim in dispute and the time at which it was raised, is prevented by the fact that the scope of the reference and the applicability of a collective agreement are made the subject of an (interim) declaratory action and the corresponding determination is then made in could become legally binding. A clause in an employment contract concluded by a collectively agreed employer before January 1, 2002, which refers to the collective agreements relevant to the company, is generally to be interpreted as an equal opportunity agreement. According to a decision of the Fourth Senate of January 23, 2008 ( 4 AZR 602/06 ), the reference to the collective agreements of a specific industry also regularly includes any in-house collective agreements (here: restructuring collective agreement).
By referring to the collective agreements of the relevant industry, the employer regularly wants to refer to the material and operational collective agreements in this industry and replace any missing normative commitment of the employee to these collective agreements. If several competing collective agreements are covered by the employment contract reference in this way, the conflict must be resolved in favor of the more specific collective agreement, here the company collective agreement. This results from the equality purpose of the referral clause. The same rule for resolving collisions should apply to non-organized employees as to union members who are legally bound. In the case of a transfer of part of a business, the equal opportunity agreement applies in accordance with Section 613a Paragraph. 1 Sentence 1 BGB into the employment relationship with the purchaser. According to this, the employee is now treated as if he, as a member of the responsible union, was bound to the sectoral collective agreements referred to. The (restructuring) collective agreement concluded by the seller would also no longer apply to a union member after the transfer of the business. The displacement or replacement of those per se pursuant to Section 613a Para. 1 Sentence 2 BGB the collective agreements that become the content of the employment relationship through the collective agreements in force with the new owner presuppose that the employee is also normatively bound to these collective agreements and that the same regulatory subjects are affected.
This can be determined by design. The priority of the regulations applicable to the purchaser regarding the same subject matter applies regardless of which regulations are more favorable for the employee. 14 In its judgment of October 22, 2008 (4 AZR 793/07), the Fourth Senate confirmed its 15 case law that for “new contracts” concluded after January 1, 2002, a mere agreement on equal opportunities cannot be assumed if the employer is bound by tariffs. If such a new contract refers to the relevant collective agreements in their current version, the employer is obliged to apply the current collective agreements even after leaving the collective bargaining association. This applies in any case if the wording of the contract and the circumstances of the conclusion of the contract do not provide any indication of the intention of the parties that only non-organized employees should be treated equally with organized employees and that the agreed dynamic should no longer apply if the employer ceases to be bound by collective bargaining agreements.