a) Co-determination in social matters. § 87 para. 1 No. 10 BetrVG, the works council has a say in questions of company wage setting, in particular in the establishment of remuneration principles and in the introduction and application of new remuneration methods. According to the established case law of the Federal Labor Court, changes to existing remuneration principles by the employer are also subject to co-determination. Continuing its previous jurisprudence, the First Senate decided in its resolution of February 28, 2006 ( 1 ABR 4/05 ) that in the absence of a collective agreement, the employer must limit the future total amount of funds it makes available for employee remuneration, without prejudice to individual contracts Bindings can be reduced without co-determination. However, he must observe the applicable remuneration principles with regard to the remaining remuneration and, in the event of any changes, obtain the consent of the works council. If the non-collective employer has agreed with its employees in the employment contract that collective agreements on surcharges, allowances, holiday pay and an annual allowance apply, which provide for such benefits at the same level for different salary groups, these benefits are also to be completely canceled for all new hires Employees are subject to a change to the existing remuneration principles that require co-determination.
If the employer cancels an allowance or special payment, the amount of which corresponds to an equal share of all employees’ monthly remuneration, the relative difference between the respective total remuneration does not change. However, the change to existing remuneration principles lies in the fact that in future parts of the total remuneration will no longer be paid as an additional one-off payment on a specific date, but rather the total remuneration will be distributed into constant monthly amounts. In a judgment of July 18, 2006 ( 1 AZR 578/05 ), the First Senate dealt with the admissibility of the employer’s withholding of wages for the processing of wage garnishments, which was based on a works agreement. The employer regularly incurs costs associated with processing wage or salary garnishments. These are his own burden. He has neither a legal claim to reimbursement against the employee nor can such a claim be justified by a (voluntary) company agreement. The garnishment of wages concerns the employees’ behavior outside of the company, which is beyond the control of the company parties. A regulation on the distribution of costs in the event of wage garnishments does not affect any subject of mandatory co-determination pursuant to Section 87 (1). 1 BetrVG, § 88 BetrVG still permits the associated interference in the individual legal positions of employees.
In principle, the company parties have comprehensive regulatory authority in social matters, unless the subject matter is covered by Section 77 Para. 3 BetrVG is or is usually regulated by a collective agreement. However, the limits of the regulatory competence arise in particular from the regulation granted to them in accordance with Section 75 Paragraph. 2 BetrVG in conjunction with Art. 2 para. 1 GG obligation to protect and promote the free development of the personality of the employees employed in the company. Provisions on the use of wages that place an exclusive burden on the employee are generally inadmissible after the proportionality test has to be carried out.
b) Co-determination in personnel matters
With a resolution of May 30, 2006 ( 1 ABR 17/05 ), the First Senate dealt with the co-determination of the works council in the implementation of company training measures. According to § 98 para. 3. para. 4 BetrVG, the works council can, under certain conditions, make suggestions for the participation of employees in vocational training measures and, if the employer does not accept them, can also decide on the selection of participants. An enforceable right of co-determination regarding participation requires that the works council has made its own suggestions for the selection of participants and that the employer has rejected them. If a publishing company intends to send an editor to a vocational training program, co-determination must be enforced in accordance with Section 98 Para. 4 BetrVG due to the protection of tendencies according to Section 118 Paragraph. 1 Sentence 1 No. 2 BetrVG is generally excluded. According to Section 118 Para. 1 Sentence No. 2 BetrVG applies the provisions of the Works Constitution Act to companies and businesses that are directly and primarily for the purposes of reporting or expressing opinions within the meaning of of Art. 5 Para. 1 Sentence 2 GG does not apply if the nature of the company or business conflicts with this. It is the subject of Article 5 Para. 1 Sentence 2 of the Basic Law to determine which skills and knowledge its editors should have as tendencies to carry out their professional tasks. Only the works council’s right to make suggestions and be informed in accordance with Section 98 Paragraph. 3 BetrVG also remain in effect in the trend operation with regard to the selection of trend carriers. According to the established case law of the Federal Labor Court, classification is an act of applying the law in which the works council is involved in accordance with Section 99 BetrVG. According to the established case law of the Federal Labor Court, classification is an act of applying the law in which the works council is involved in accordance with Section 99 BetrVG. With its resolution of June 28, 2006 ( 10 ABR 42/05 ), the Tenth Senate confirmed this jurisprudence and decided that an increase in weekly working hours is irrelevant for the classification of the employee if, according to the collective bargaining agreement, only the The type of activity carried out by the employee or professional training required in certain remuneration groups are decisive. Increasing the hourly rate is not a reason for the works council to refuse to approve a classification planned by the employer if this corresponds to the collective bargaining agreement. After the expiry of a collective agreement, the employer can effectively agree on a longer working week than the collectively agreed weekly working time with a newly hired employee. Such an increase in the weekly hourly rate while maintaining the collectively agreed monthly remuneration leads to a lower hourly wage for the employee, but does not mean that the employee is incorrectly classified into a remuneration group that is independent of the hourly rate. The disadvantage resulting from the reduction in hourly wages does not entitle the works council to refuse its consent to the classification.
c) Social plan With its resolution of March 28, 2006 ( 1 ABR 5/05 ), the First Senate confirmed its previous case law, according to which an operational change within the meaning of According to Section 111 BetrVG, this can also be achieved by simply reducing the workforce, provided this affects a relevant number of employees. The figures in Section 17 KSchG are decisive in this respect, whereby in larger companies at least five percent of the workforce must be affected. The decisive starting point for the question of the existence of co-determination rights according to Sections 111 ff. BetrVG is the employer’s planning decision. If, according to the original planning, there are no operational changes within the meaning of of Section 111 BetrVG, the works council initially has no co-determination rights to information, advice and the conclusion of a social plan. If the employer changes its planning before it has carried out the initially planned measures, the new planning is decisive under co-determination law. However, if the employer has already carried out the initially planned measures at the time of the new planning, these and the now planned measures are generally not added together under co-determination law. A gradual reduction in personnel therefore only represents an operational change in the sense of: of Section 111 Sentence 3 No. 1 BetrVG if it is based on uniform business planning and the numerical values of Section 17 KSchG are achieved. A close temporal connection between several “waves of termination” can be an indication of uniform corporate planning. If there is a case of staff reductions within the meaning of of Section 111 Sentence 3 No. 1 BetrVG, the employer’s social plan obligation is governed by Section 112 a Para. 1 BetrVG further restricted. The regulation always applies if, without the reduction in personnel that constitutes a change in operations, the prerequisites for a change in operations within the meaning of of Section 111 BetrVG are not given. According to the legal system and the meaning and purpose of the regulation, its application does not prevent the employer from taking further measures in addition to the workforce reduction. Only if the further measures, alone or together with the reduction in personnel, represent a change in the company, Section 112 a para. 1 BetrVG inapplicable and therefore the applicability of Section 112 Para. 4 BetrVG opened.