a) Classification

During the reporting period, the Fourth Senate dealt with the classification of an employee in pay group 1 of the collective agreement for the public service (TVöD) in two resolutions. According to the decision of January 28, 2009 (4 ABR 92/07), the assessment is whether a simplest activity in the sense of. Pay group 1 TVöD is exercised based on an overall assessment. The job examples listed in pay group 1 TVöD are not a comprehensive catalogue. The decisive criteria for assessing whether the simplest activity is carried out are, in addition to no necessary previous training or training, a very short introduction or training phase in the activity undertaken, an essentially uniform and similar activity, the performance of which does not require any significant individual considerations and the lack of an independent, not entirely insignificant area of decision-making and responsibility. Wage group 1 TVöD is an independent new regulation without reference to the district wage group lists agreed on the basis of Section 2 of the Framework TV to Section 20 of the BMTG II. Cleaning work in a building does not fall under any of the examples of activities mentioned in pay group 1. However, it can be a simplest activity. collective collective bargaining agreement for pay group 1. Cleaning work in a nursing home, in which hygiene regulations for which the employees have been trained for several hours as well as an extensive disinfection plan must be observed, do not constitute “the simplest activities”. According to the resolution of May 20, 2009 ( 4 ABR 99/08 ). The classification of an employee in pay group 1 TVöD does not prevent the fact that his overall activity is made up of several partial activities in the collective agreement sense, not all of which can be assessed according to pay group 1 TVöD. In accordance with Section 17 Paragraph 1 of the collective agreement for the transfer of employees of municipal employers to the TVöD and for the regulation of transitional law (TVÜVKA), the classification principles of the framework TV based on Section 2 Paragraph 1 Sentence 2 of the Framework TV to Section 20 BMTG still apply According to the district collective agreements agreed in II II, the decisive factor for the classification is which pay group the sum of the partial activities to be carried out at least half of the time is assigned. It is not possible to form an overall activity that can be assessed uniformly. When grouping, work processes must be assigned to an activity characteristic in Appendix 1a to the Federal Collective Bargaining Agreement for Eastern Employees in the version applicable to the Association of Municipal Employers’ Associations (BAT O/VKA). According to a decision of the Fourth Senate of January 28, 2009 (4 AZR 13/08), in cases in which the assignment of several work processes involves the fulfillment of job characteristics that are set out in different collective agreements in Annex 1a to the BATO /VKA have been added so that each individual work process can be assessed based on the specific activity characteristic that is relevant for it. The entire activity of the employee cannot initially be assigned to a collective agreement or a section of a collective agreement with the job characteristics regulated therein. This is dictated by the principle of specialty. The term “technical employee” represents an integral part of the job characteristic, which must also be present if the employee only performs a minority of his overall work as a “technical employee” and otherwise in the sense of. general job characteristics is contractually employed. If the activity characteristics of the special case group are fulfilled, recourse to the general activity characteristics of Appendix 1a is excluded.

b) Increase in salary due to periods of work as a doctor in internship (AiP)

c§ 16 des Tarifvertrags für Ärztinnen und Ärzte an Universitätskliniken (TVÄrzte/TdL) sieht für Ärztinnen und Ärzte eine Eingruppierung in fünf Entgeltgruppen mit jeweils mehreren Entgeltstufen vor. Der Stufenaufstieg innerhalb einer Entgeltgruppe erfolgt nach den „Zeiten ärztlicher Tätigkeit“. Nach einer Entscheidung des Vierten Senats vom 23. September 2009 (4 AZR 382/08) zählen Tätigkeitszeiten als Arzt im Prak tikum (AiP) nicht zu den Zeiten ärztlicher Tätigkeit. Das AiP war nach der Gesetzeslage zwischen 1985 und September 2004 Voraussetzung für die Erlangung der ärztlichen Approbation. Zu den Zeiten ärztlicher Tätigkeit zählen nur solche, die als approbierte Ärzte zurückgelegt worden sind. Bei der im Rahmen der Ausbildung zum approbierten Arzt zurückgelegten Zeit handelt es sich auch nicht um Zeiten von Berufserfahrung aus nichtärztlicher Tätigkeit, die nach § 16 Abs. 2 TVÄrzte/TdL bei der Stufenfindung be rücksichtigt werden können. Die Tarifvertragsparteien sind für den von ihnen geregelten Bereich darin frei zu bestimmen, nach welchen Regeln sich die Entgeltfindung vollzieht.

c) Volunteer judges’ remuneration for flexitime

According to Section 29 Paragraph 2 Sentence 1 TVöD, employees employed in the public service should, as far as possible, fulfill their general civic duties outside of working hours. If this is not possible, the employee must attempt to change working hours. Against this background, the Sixth Senate decided in its judgment of January 22, 2009 ( 6 AZR 78/08 ) that employers in the public service should not allow employees who exercise their office as honorary judges at a time when they are subject to a law that applies to the employment relationship Flexible working time model allows you to take advantage of flexitime and do not have to grant you a time credit. Such a time credit must only be made for work as an honorary judge that falls within core working hours. The collective agreement obligation to use flexitime to carry out the office as a volunteer judge does not violate the prohibitions on discrimination in Section 26 Paragraph 1 ArbGG, Section 45 Paragraph 1a Sentence 2 DRiG. These provisions do not contain any independent regulation regarding the remuneration of honorary judges. Section 29 Paragraph 2 Sentence 1 TVöD is also consistent with Section 616 Sentence 1 BGB, since the employee is not obliged to perform work outside of core working hours. Ultimately, the regulation does not violate the prohibition of discrimination against part-time employees in accordance with Section 4 Paragraph 1 TzBfG. Unjustified unequal treatment due to part-time employment would only exist if the proportion of core working hours in relation to normal working hours was regularly lower for part-time employees with flexible working hours than for employees employed full-time within the framework of the same flexitime arrangement.

d) Remuneration during short-time work in the construction industry

According to Section 4 No. 6.1 of the Federal Framework Collective Agreement for the Construction Industry, the entitlement to wages no longer applies if the work becomes impossible either for compelling weather reasons or for economic reasons during the statutory period of bad weather. If the loss of wages during the statutory period of bad weather cannot be compensated for by canceling working time credits, the employer is obliged to pay the seasonal short-time working allowance at the statutory rate with the next payslip. According to a decision of the Fifth Senate of April 22, 2009 ( 5 AZR 310/08 ), the employer’s obligation to pay according to the collective bargaining agreement exists regardless of whether the personal approval requirements for short-time work allowance in accordance with Sections 169, 172 SGB III are met. The employer therefore has to pay the seasonal short-time working allowance even if the employment agency does not approve short-time working allowance. The requirements regulated in Section 172 Paragraph 13 SGB III concern the special circumstances of the insured person in relation to the insured community and do not have sufficient reference to Section 615 BGB.

e) Default of acceptance

The creditor is in default if he does not accept the service offered to him. According to Section 297 of the German Civil Code (BGB), the employer is not in default if the employee is unable to perform the work. An employee is unable to perform. § 297 BGB if, for personal reasons, he can no longer carry out the contractually agreed activities without exception. In a decision of March 18, 2009 ( 5 AZR 192/08 ), the Fifth Senate made it clear that a legal employment ban that makes it impossible to perform work requires a clear regulation regarding the requirements and legal consequences. According to § 5 para. 5 of the North Rhine-Westphalian law on rescue services and emergency rescue and patient transport by entrepreneurs (RettG NRW) of November 24, 1992, non-medical personnel employed in emergency rescue and patient transport must take part in at least 30 hours of task-related training every year and provide evidence of this. However, violating the mandatory training requirement does not automatically lead to a ban on employment. It is an obligation owed by the employee to the employer. The employer can therefore consider non-compliance with the training obligation to be contrary to the employee’s employment entitlement in accordance with. § 273 Abs. 1 BGB as an objection. However, it is not possible to subsequently assert the right of retention if work has not been performed for other reasons.

f) Lohnwucher

Nach § 138 Abs. 2 BGB, a legal transaction is void by which someone, by exploiting the predicament, inexperience or lack of judgment of another, is granted financial advantages for a service that are conspicuously disproportionate to the service. The regulation also applies to the noticeable disproportion between the value of the work and the level of wages in an employment relationship.

In its judgment of April 22, 2009 ( 5 AZR 436/08 ), the Fifth Senate decided that there is a striking disproportion between performance and consideration if the remuneration for work is not even two-thirds of the standard wage usually paid in the relevant industry and economic region reached. In the decision, the Senate made it clear again that a remuneration agreement can still be effective when the contract is concluded, but over time if it is not adjusted to the general wage and salary development, it can violate Section 138 of the German Civil Code (BGB). The immorality of a remuneration agreement cannot be judged solely on the basis of the agreed remuneration amount. The decisive factor is the comparison with the collectively agreed hourly or monthly remuneration without allowances and surcharges, since such services fundamentally determine neither the fair market value of the work as such nor the character of the employment relationship.

However, special individual circumstances can influence the assessment of immoral exploitation as well as the determination of the value of the work and may lead to a correction of the 2/3 limit. Collective bargaining can be assumed to be common if more than fifty percent of the employers in an economic area are bound by collective agreements or if the organized employers employ more than fifty percent of the employees in an economic area. From a subjective point of view, wage usury and usury-like legal transactions presuppose that the beneficiary party is aware of the disparity in the performance of both parties. In the employment relationship, it can usually be assumed that the relevant collective wages are known to the employers. Whether the usual standard wage is known or at least has to be imposed depends on the respective circumstances.

g) Principle of equal treatment

Wage increase The principle of equal treatment under labor law prohibits the unimportant disadvantageous treatment of employees compared to other employees in a comparable situation. In the area of remuneration, the requirement of equal treatment applies if the employer grants benefits based on a general regulation, in particular if it specifies certain requirements or purposes. In any case, if a distributive decision by the employer is not limited to a single company, but rather relates to all or several of the company’s companies, according to the decision of the Fifth Senate of December 3, 2008 ( 5 AZR 74/08 ). To ensure equal treatment across companies.

A distinction between individual companies is only permitted if there are objective reasons for this. In the case of voluntary wage increases, the employer may differentiate between companies based on their economic performance and the existing wage level. Appropriate criteria include, for example, the work requirements of the employees, the earnings situation of the company in general or in specific respects, the wage development in the past and the absolute wage level. This requires a company-wide comparison of all companies, including the reasons for the existing differences.

h) Special payment

The employer can prevent the employee from becoming entitled to the benefit for future reference periods by making special payments voluntary. This also applies after the law to modernize the law of obligations came into force on January 1, 2002, with which the area exception to Section 23 Para. 1 AGBG was abandoned. However, if an employer expressly promises an employee in an employment contract that he has pre-formulated that he will pay a Christmas bonus of a certain amount every year, according to a decision of the Tenth Senate of December 10, 2008 ( 10 AZR 1/08 ), it is contradictory if the employer the payment of the Christmas bonus in the same or another contractual clause is subject to a voluntary reservation. Conflicting clauses are not clear and understandable in the sense. Transparency requirement of Section 307 Para. 1 sentence 2 BGB.

The ineffective voluntary reservation no longer applies. Maintaining the invalid clause with different content is opposed to the corresponding application of the so-called ambiguity rule. This is now in Section 305c Para. 2 BGB was already generally recognized before the AGBG came into force and also applied to formal employment contracts. If doubts regarding the interpretation of general terms and conditions are already to the detriment of the clause user, it is justified to assume that it is also to the detriment of the clause user if the regulations formulated by him contradict each other in terms of content and are therefore not clear and understandable. The Senate has left it open whether a supplementary contract interpretation in “old cases” requires that the clause user has attempted to adapt the clauses, which no longer comply with Sections 305 ff. BGB, to the new legal situation.

There is much to suggest that the granting of the one-year transitional period in Article 229 § 5 Sentence 2 EGBGB satisfies the protection of legitimate expectations and that a supplementary contract interpretation is not possible if the employer, as the user of the clause, has not attempted to use the clauses that do not pass a general terms and conditions check adapt to the new legal situation. According to a decision of the Tenth Senate of January 21, 2009 ( 10 AZR 219/08 ), if there is a voluntary reservation, there is no entitlement to the special payment from operational practice, even if the employee has received a Christmas bonus of half a gross monthly salary for years. In the case of a clearly and understandably formulated voluntary reservation that excludes any legal right of the employee to the special payment, there is no promised benefit in the sense. § 308 No. 4 BGB.

In such a case, if the employee is not entitled to the special payment, there is no need for the employer to announce that he will not pay a Christmas bonus, nor for the employer to give reasons as to why he is now no longer paying Christmas bonuses. An obligation of the employer to make the special payment is not established from the outset, regardless of the purpose of the special payment. With its ruling of March 18, 2009 ( 10 AZR 281/08 ), the Tenth Senate abandoned its previous case law on contrary operational practice.

After the law modernizing the law of obligations came into force on January 1, 2002, a payment can be accepted three times without objection, in which the employer unequivocally declares that the previous operational practice of an unconditional Christmas bonus payment should be ended and replaced by a performance There is no longer any legal entitlement in the future, this will no longer result in the loss of entitlement to the Christmas bonus. According to § 308 No. 5 BGB, a provision is ineffective, according to which a declaration by the user’s contractual partner is deemed to have been made or not made by the user when a specific action is taken or omitted, unless the contractual partner is given a reasonable period of time to expressly do so Declaration has been granted and the user undertakes to specifically point out the intended meaning of his behavior to the contractual partner at the start of the period. In this light, accepting a gratuity paid three times without objection by the employer under the proviso that it is voluntary is not sufficient to end the employer’s contractual obligation to pay the gratuity.

If the employment contract parties make a wage-relevant target agreement and jointly agree on goals for each financial year, the employee will not be unreasonably treated in accordance with a decision of the Tenth Senate of May 6, 2009 ( 10 AZR 443/08 ). § 307 Abs. 1 Sentence 1 BGB if the entitlement to the bonus payment is tied to the fact that the employment relationship still exists at the end of the financial year. As a rule, it can only be determined after the end of the target period whether and to what extent the employee is entitled to the bonus promised if the target is achieved. In the event of a dispute, the existing clause linked the entitlement to the bonus payment not only to an employment relationship, but also to an unterminated employment relationship at the end of the financial year. However, there was no need to decide whether the requirement of an unterminated employment relationship at the end of the financial year due to the associated commitment beyond the financial year and because of the amount of the bonus payment constituted an unreasonable disadvantage in the sense of: § 307 Abs. 1 sentence 1 BGB represents.

If a clause in a standard employment contract is linguistically divisible and the ineffective part of the clause is deleted “with a blue pencil” (bluepenciltest), the remaining regulation must be maintained if it is understandable and effective. If the word “unterminated” is deleted from the clause, the payment of the bonus only requires the existence of an employment relationship at the end of the financial year. The clause is therefore linguistically divisible, although the rest of the regulation remains understandable. According to a decision of the Tenth Senate of August 5, 2009 ( 10 AZR 483/08 ), compensation claims from operational practice are not subject to the tacit reservation of a superseding company agreement. If an employer has paid its employees a certain percentage of their respective gross monthly remuneration as a Christmas bonus for more than ten years without any reservation, the contractual entitlement to a Christmas bonus arising from operational practice will not be canceled for one year by a works agreement that regulates this No Christmas bonus is paid this year. If an employer wants to prevent the principle of favorability from applying in relation to a works agreement and from giving the employee more favorable individual contractual agreements on a special payment than the provisions made in a works agreement, he may not make the special payment for years without any reservation.

If the employer wants to make a special payment to its employees subject to a replacement works agreement, this reservation, as well as a revocation or voluntary reservation, must comply with the transparency requirement of Section 307 Paragraph. 1 sentence 2 BGB is sufficient. If the employer does not express sufficiently clearly and comprehensibly that he wants to make the special payment “open to the company agreement”, an “average”, reasonable employee cannot recognize this. If an employer is not obliged to make special payments either contractually or due to collective regulations, he is free to decide whether and under what conditions he grants his employees additional benefits.

However, he is bound to the labor law principle of equal treatment. He may only withhold a special payment from individual employees based on objective criteria. Employees are not discriminated against inappropriately if the purpose of the benefit gives rise to reasons which, taking all the circumstances into account, justify withholding from these employees the benefit granted to other employees. According to a decision of the Tenth Senate of August 5, 2009 (10 AZR 666), if the employer takes into account the different working conditions of employees when making a special payment and if he intends to use the special payment to partially or completely compensate for the lower ongoing remuneration of a group of employees, he is violating this /08 ) does not violate the labor law principle of equal treatment and the prohibition of retaliation in Section 612a of the German Civil Code (BGB) if he withholds the special payment from the group of employees who were not prepared to conclude change contracts with working conditions that were less favorable for them as part of a location security concept. If the purpose of the special payment is not limited to partial compensation for the disadvantages associated with the change in contracts for the employees, but if the employer also pursues other goals, such as rewarding past and future loyalty to the company, it is not objectively justified to exclude the group of employees who had rejected the employer’s offers of change with working conditions that were less favorable for her, to be excluded from the special payment.

i) Transfer of workers and employees to the TVöD

According to § 5 para. 1 of the collective agreement for the transfer of the employees of municipal employers into the collective agreement for the public service and for the regulation of the transitional law (TVÜVKA), a comparative wage is to be awarded for the assignment of employees to the levels of the TVöD pay table based on the remuneration received in September 2005 form. The determined comparative salary should be paid to the employee in accordance with § 6 Abs. 1 TVÜVKA maintains the existing status after the transfer to TVöD. According to § 5 para. 2 Sentence 2 TVÜVKA, the local allowance of level 1 is to be used as a basis if the spouse is still entitled to the local allowance due to work in the public service.

According to the decision of the Sixth Senate of June 25, 2009 ( 6 AZR 384/08 ), the spouse’s work in a hospital run by Caritas is basically the same. The guidelines for employment contracts in the facilities of the German Caritas Association (AVR) contain regulations comparable to the BAT with regard to the local surcharge. According to the AVR, the church employer was released from the obligation to pay the marital status-related portion of the local supplement if the employee’s spouse, who works for a non-church employer, received the level 2 local supplement. However, this is no longer the case for employees of municipal employers from the date of transfer of employment relationships from the BAT to the TVöD, so that from this point onwards the spouse employed under the AVR Caritas is entitled to level 2 local supplement.

If the level 2 local surcharge were to be used as a basis for calculating the settlement salary, the spouses would be in a better financial position than before the transfer. However, this would contradict the purpose of Section 5 Paragraph. 2 sentence 2 1st half. TVÜ VKA, which is intended to ensure that the spouses’ working community receives the level 2 local supplement in principle in full. According to a decision of the Sixth Senate of December 17, 2009 (6 AZR 665/08), the assessment of individual activities by the collective bargaining parties in terms of remuneration is an integral part of the regulation set out in Article 9 Para. 3 GG guaranteed collective bargaining autonomy.

This particularly applies in connection with the transfer of employees to a new remuneration system, through which the previously different remuneration structures for blue-collar and white-collar workers will be dissolved. When regulating such mass phenomena, hardships that arise in exceptional cases must generally be accepted. By securing the earnings earned in the previous remuneration system, the collective bargaining parties have guaranteed sufficient protection of the existing status. It therefore does not constitute a violation of Article 3 para. 1 GG if the collective bargaining regulations for the transfer of employment relationships to the TVöD result in an employed master craftsman receiving lower remuneration than the apprentices subordinate to him.

j) Level advancement of public sector workers

The remuneration according to the TVöD depends on the pay group in which the employee is classified. Within the pay group, the amount of remuneration is determined according to the pay level to which the employee is assigned. For workers, the previous period of employment with their employer is taken into account when transferring to the TVöD in accordance with Section 7 Paragraph. 1 Sentence 1 TVÜVKA is only to be taken into account when initially assigned to a pay level of the new TVöD pay system. According to § 7 para. 1 Sentence 2 TVÜVKA, further advancement within this pay group will only take place if the workers have completed the entire phase period required by the TVöD after October 1, 2005. The length of employment completed under the previous collective bargaining system no longer plays a role. Something different applies according to Section 7 Paragraph. 3 TVÜVKA only if the worker would receive a lower salary than before if he were transferred to the TVöD based on his previous period of employment with his employer.

In this case, he will be assigned to an individual intermediate level in which he will continue to receive his previous salary. From this intermediate level, he is promoted to the next higher, regular level of his pay group at the point at which he has completed the required period of time for the level, taking into account his entire period of employment with his employer. According to a ruling by the Sixth Senate of August 13, 2009 ( 6 AZR 177/08 ), the regulation does not violate the principle of equality in Article 3 paragraph. 1 GG. If the typical consideration was permissible, the level advancement of workers who could not yet be classified into the TVöD’s regular level system for reasons of existing status could be regulated differently. The efficient implementation of a new collective agreement, which fundamentally redesigns the current collective bargaining system, is a legitimate goal of the collective bargaining parties.

The regulation also does not violate the rule of law principle of Article 20 paragraph. 3 GG following prohibition of retroactivity. Collective bargaining parties are allowed to comprehensively redesign collective bargaining structures. This power is in accordance with Article 9 Para. 3 GG protected collective bargaining autonomy is mandatory. In doing so, they do not just have to take into account the prospects that exist under the current tariff system.

k) Property allowance for child-related location allowance

An employee employed within the scope of the guidelines for employment contracts in the facilities of the German Caritas Association (AVR) has, based on the counter-competition clause in Annex 1, Section V (i), paragraph. 2 AVR is generally not entitled to a child-related local allowance if his spouse is employed by a municipal employer and his employment relationship was transferred from the BAT to the TVöD on October 1, 2005. According to the decision of the Sixth Senate of August 13, 2009 ( 6 AZR 319/08 ), this also applies if the spouse employed within the scope of the AVR receives child benefit for their children based on an agreement with their spouse. In this case, too, the spouse working for the municipal employer was entitled to the child-related local allowance in September 2005, as he remained materially entitled to child benefit. According to § 11 para. 1 Sentence 1 TVÜVKA, the municipal employer must continue to pay the child-related salary components of the BAT as a vested allowance. This is a benefit equivalent to the child-related local allowance.