According to a judgment of the Fourth Senate of July 5, 2006 ( 4 AZR 381/05 ), a preliminary agreement can be concluded between the parties to the collective agreement, which gives rise to an enforceable right to sign a collective agreement that corresponds to the pre-contractual agreements. This is the case when the parties to the collective agreement make a binding negotiation result and this result is expressly approved by the responsible bodies of the employers and the trade union side. Whether the preliminary contract already complies with the written form requirement of Section 1 Para. 2 TVG, the Senate has expressly left it open.
If a pre-contractual agreement has accidentally been implemented only partially but not completely in one or more collective agreements, both parties are entitled to have the implementation supplemented by the collective agreement. The obligation to conclude such a supplementary collective agreement does not conflict with its retroactive entry into force. This also applies if collective agreements that are related to the intended collective agreement have been terminated in the meantime. Even retroactive interference with employees’ collectively agreed rights is permissible if this does not conflict with special protection of legitimate expectations.
According to a judgment of the Fourth Senate of January 25, 2006 ( 4 AZR 552/04 ), a collective agreement can also result in the obligation of a central organization to influence its regional member associations to fulfill the obligation to conclude collective wage agreements within of their respective regional area. A request to this effect is then also sufficiently specific within the meaning of of Section 253 Para. 2 ZPO, if the type of impact is not specified because the debtor has a right to choose in this respect. If the regional collective bargaining parties are obliged by a supra-regional collective agreement to conclude supplementary collective agreements, the collective agreements can also be concluded with retroactive effect if the conclusion is delayed due to a dispute over the content of the obligation. The protection of the trust of those subject to collective bargaining does not conflict with a retroactive collective agreement if they had to expect a corresponding regulation.
This is already the case if the obligation to conclude a regional collective agreement is expressly regulated in the supra-regional collective agreement. The Fourth Senate also dealt with the retroactive interference with collective bargaining rights through collective agreements in a decision of October 11, 2006 ( 4 AZR 486/05 ). According to this decision, collective bargaining parties can retroactively change a collective agreement during its term and interfere with collective bargaining rights. This scope for design is limited by the trust worthy of protection of those subject to the norms. Whether and, if so, at what point in time those subject to the collective bargaining agreement must expect a retroactive regulation, i.e. they cannot rely on it as a trust worth protecting, is a question of the individual case. As a rule, employees do not have to expect that claims that have already arisen will be interfered with, even if they have not yet been fulfilled or are not yet due. This is only different if, before the claim arises, there are sufficient indications that the parties to the collective agreement will interfere with this claim in a detrimental manner. These principles also apply to a restructuring collective agreement that retroactively impairs collective bargaining entitlements. Continuing its previous case law, the Fourth Senate confirmed in its judgment of May 3, 2006 ( 4 AZR 795/05 ) that a collective agreement can generally only be terminated as a whole.
Partial termination of a collective agreement is permitted if it is expressly permitted therein. It is controversial in the literature whether partial dismissal is also permissible without a corresponding collective agreement regulation. In a decision of December 3, 1985 ( 4 ABR 7/85 ), the Fourth Senate stated that there was a significant practical need for the possibility of partial termination given the elasticity of collective bargaining law. In doing so, the Senate indicated the possibility of partially terminating a collective agreement even without expressly agreeing to this in the collective agreement. The Senate expressly left the question open in its decision of May 3, 2006. The Senate further decided that an ineffective partial termination of a collective agreement cannot be interpreted as the termination of the entire collective agreement. The reinterpretation of a void legal transaction into a substitute transaction whose effects go beyond the void transaction is not permitted.