a) Amount of remuneration
In a judgment of April 26, 2006 (- 5 AZR 549/05 -), the Fifth Senate dealt with the amount of remuneration for a headmaster of a state-recognized technical school in Brandenburg. The principal received a salary of less than 75% of the salary of comparable public sector teachers. The Senate has decided that this constitutes a violation of morality and that the remuneration agreement is therefore in accordance with Section 138 Paragraph. 1 BGB is void. A legal transaction violates Section 138 Para. 1 BGB if, according to its overall character as can be seen from the summary of content, motive and purpose, it is incompatible with good morals. What is permissible by morality emerges from the overall context of the legal system. The relevant standards include the evaluations of the Basic Law and simple legal regulations. Rejecting the previous case law of the Federal Labor Court, the Fifth Senate decided that the concept of good morals is largely determined by the constitutional assessments of Article 7 Paragraph. 4 GG and the state law regulations that fill this fundamental right are defined in more detail. The approval requirement for private schools according to Art. 7 Para. 4 Sentence 4 GG not only serves the public interest in proper school operations, but also the protection of teachers. Therefore, to the extent that the regulations of the state of Brandenburg oblige the providers of a recognized private alternative school to grant teachers remuneration of at least 75% of the salary of a comparable teacher in the public service, the lower limit for remuneration of privately employed teachers provided for by the legal system also applies Replacement schools marked. Legal consequences of the violation of Section 138 Para. 1 BGB is the employee’s right to the usual remuneration in accordance with Section 612 Paragraph. 2 BGB. The usual remuneration in the comparable economic circle is decisive. For teachers at recognized private substitute schools in Brandenburg, this is the scope of the substitute school approval ordinance of June 30, 1997 (GVBl. II p. 608) in the version of August 15, 2001 (GVBl. II p. 539).
In its judgment of June 14, 2006 (- 5 AZR 584/05 -), the Fifth Senate decided on the question of a higher claim to remuneration in accordance with the principles of equal treatment under labor law. The principle of equal treatment under labor law prohibits both the unimportant disadvantageous treatment of individual employees compared to other employees in a comparable situation and the unimportant differentiation between employees of a certain class. A differentiation is irrelevant if there are no justifiable reasons for the different treatment. The Fifth Senate considered it compatible with the principle of equal treatment under labor law for a company supported by the Federal Republic of Germany to apply public service collective bargaining law, including the different starting points for the validity of BAT and BAT-O, regardless of mutual collective agreement. Starting with the place where the employment relationship was established is justified as a starting point because of the differences in the collective bargaining areas and for reasons of preserving the existing status quo. If the employee claims that such a remuneration system is non-transparent and is not consistently applied, this does not constitute a conclusive allegation of a violation of the principle of equal treatment. In the judgment, the Fifth Senate further stated that a non-beneficiary employee cannot derive any claim from the principle of equal treatment if, in the event of a group formation that is not objectively justified, the number of benefited employees is very small in relation to the total number of affected employees. This can be assumed for fewer than percent of better-off employees. This principle applies not only to voluntary services provided by the employer, but also to the agreement on remuneration for work.
According to a decision of the Sixth Senate of October 26, 2006 (- 6 AZR 307/06 -), the marital status-related tiered system of the local allowance according to BAT-KF has subsequently become incomplete due to the introduction of the legal institution of the civil partnership and its family law structure through the Civil Partnership Act. In contrast to the Senate’s decision of April 29, 2004 (- 6 AZR 101/03 -), in which it assumed sufficient indications of the presumed will of the collective agreement parties for the scope of application of the federal employee collective agreement (BAT), the resulting collective bargaining gap was due to the for In order to conclude the regulation applicable to married employees, the Senate was unable to accept such a presumed will of the responsible Rhenish-Westphalian-Lippian Labor Law Commission on the basis of the previous factual findings. The State Labor Court will now have to clarify whether it is the unanimous opinion of all the Protestant churches involved in the scope of application of the BAT-KF that employees who live in a registered civil partnership should not be treated differently in the church sector than state employees.
b) Calculation of net compensation
Under labor law, the employer is regularly required to use the characteristics entered on the payroll tax card, in particular the payroll tax class, when calculating net wage-related benefits. However, according to the established case law of the Federal Labor Court, the employer is not obliged to take into account every choice of tax class permitted under tax law when calculating a benefit that is measured based on the net salary. He can raise the objection of abuse of law (§ 242 BGB) against the employee. A change in wage tax class, which specifically shifts the assessment basis of “net pay” to the advantage of the employee and thus inevitably to the detriment of the employer, regularly gives rise to an examination as to whether the employee has acquired his higher entitlement in a manner that violates good faith. In addition to the additional financial burden on the employer, this requires the existence of other circumstances that characterize the exercise of the law as dishonest. In a judgment of June 13, 2006 (- 9 AZR 423/05 -), the Ninth Senate decided on the calculation of a minimum net amount for top-up benefits within the framework of a partial retirement agreement that the choice of the income tax class combination IV/IV cannot be objected to as abuse even if the gross salary of one spouse is significantly higher than that of the other. This also applies if both had previously chosen the more tax-efficient combination III/V for many years. An employee’s decision to have at least a pro rata salary corresponding to his gross income is not an abuse of law in relation to the employer burdened by it, even if it is not optimal from a tax perspective in relation to the spouses’ total income. When choosing the income tax class, the employee has the right to choose the basic and standard tax that is more favorable to him. The employer is not without protection. He is free to contractually specify the tax class for the assessment of net salary-related benefits.
c) Classification
The Tenth Senate had to decide on the classification of an employee in the remuneration group of a collective wage agreement, according to which the employees are to be grouped according to their overall activity. In its judgment of March 8, 2006 (- 10 AZR 129/05 -), the Tenth Senate decided that an employee cannot unilaterally change his overall activity as the basis for his classification by carrying out activities that the employer has not stipulated to him employment contract within the contractually defined limits by virtue of his right of direction and the execution of which is not expressly or tacitly approved by the employer. If an employee claims remuneration according to a higher pay group, he must therefore not only explain the activities he actually carried out as part of an action for a declaratory classification, but also state when and in what form the employer assigned him the higher-value tasks. The Tenth Senate has confirmed its previous case law that the job characteristics of a pay group are to be regarded as fulfilled if the employee does not only temporarily carry out all the activities listed in a reference example of a pay group. This is based on the fact that the parties to the collective agreement can, within the scope of their legal options, assign frequently occurring, typical tasks to a specific remuneration group. Guideline, rule or activity examples only have this significance for classification in a collective bargaining system if they only appear once as an example in a specific compensation group.
The question of classifying an employee into a wage group in the collective wage agreement for wholesale and foreign trade in Lower Saxony of June 9, 2000 (LTV Wholesale) was before the Fourth Senate for decision. The employee is employed as a warehouse worker in a warehouse maintained by the employer. The employer developed a concept to build a chain of stores operated under her name, offering all kinds of special and remaining items. It concludes commission agreements with other entrepreneurs in which they undertake to operate a market in which they sell goods from a range put together by the principal under their own name on behalf of others. According to a judgment of the Fourth Senate of January 25, 2006 (- 4 AZR 622/04 -), the employer falls under the technical scope of the LTV Wholesale because it is a wholesale company in the sense of. § 1 LTV wholesale.
The market concept developed by the employer does mean that ownership of the goods is transferred directly from the employer to the buyer/consumer. However, it is not to be viewed as a retail company. The structure of the commission contracts, in which the dealers run the markets on their own responsibility as independent merchants, justifies the assignment of the commissioner to the wholesale sector. In confirmation of previous case law, the Fourth Senate further decided that a generic term assigned to the pay group is no longer relevant in the context of classification if the activity of an employee meets the activity example of a pay group. The parties to the collective agreement use examples of activities to clearly express their view that if the example is fulfilled, the general characteristics of the remuneration group are met. The courts are bound by this when interpreting it.
In its judgment of August 23, 2006 (- 4 AZR 417/05 -) the Fourth Senate decided that the repeated corrective regrouping of an employee is generally inadmissible for reasons of trust worthy of protection. According to the principle of the prohibition of contradictory behavior, behavior is to be viewed as an abuse of law if special circumstances make the exercise of the law appear to be contrary to good faith. This is particularly the case if the behavior of one side – consciously or unconsciously – has created trust for the other that is worthy of protection in the continued existence of the previous situation. From the perspective of the employee concerned, an employer who corrects regrouping claims to have checked the previous classification with particular care and to have come to a result with a higher degree of accuracy than his original collective bargaining assessment, which has now been recognized as incorrect agreed activity. The employee does not have to expect that the employer will question this correction again without the employment contractual activity or the collective bargaining law situation having changed. Der Arbeitnehmer muss nicht damit rechnen, dass der Arbeitgeber diese Korrektur selbst erneut in Frage stellt, ohne dass sich die arbeitsvertragliche Tätigkeit oder die Tarifrechtslage geändert haben. It is not necessary for the employer to have positive knowledge of the error in the first corrective regrouping.
d) Reservation of credit
In its judgment of March 1, 2006 (- 5 AZR 363/05 -) the Fifth Senate decided that a clause contained in the general terms and conditions stating that an allowance can be taken into account gives the employer the right to reduce the allowance if the standard salary increases. Such a reservation can withstand a content check according to §§ 307 ff. BGB, even without the reasons for taking into account being specified in more detail. The clause is not ineffective according to Section 308 No. 4 BGB, even if the agreed allowance is intended to compensate for special services provided by the employee. Unlike revoking an allowance, counting it towards collective bargaining increases does not lead to a reduction in the employee’s overall earnings. Only changing the amount of the allowance is reasonable for the employee. The wording does not violate the transparency requirement of Section 307 (1). 1 sentence 2 BGB. For an average employee, it can be seen that if the wage owed according to the collective agreement increases, the allowance can be reduced up to the amount of the collective wage increase. The Fifth Senate has recognized the reservation of credit to be assessed as a general terms and conditions in the sense of. § 305 para. 1 BGB qualified. According to Section 305 Para. 1 BGB, general terms and conditions are all pre-formulated contractual conditions for a large number of contracts that one contracting party provides to the other when the contract is concluded. 1 BGB, general terms and conditions are all pre-formulated contractual conditions for a large number of contracts that one contracting party provides to the other when the contract is concluded. Contractual conditions are already pre-formulated for a large number of contracts if they are intended to be used three times. This intention is also proven if the user agrees the clause three times with the same contractual partner. “Negotiated” iSv. § 305 para. 1 Sentence 3 BGB is only a contractual condition if the user seriously challenges the content of the clause in question and grants the negotiating partner freedom of design to protect their own interests with the real possibility of influencing the content of the contractual conditions. This requires that the user clearly and seriously declares his willingness to make desired changes to the agreement to be made.
e) Weekend fare
With a judgment of January 25, 2006 (- 4 AZR 432/04 -) the Fourth Senate decided that an employee is entitled to a collective weekend travel allowance in accordance with Section 6.3 of the Federal Collective Agreement for the special working conditions of assembly workers in the iron, metal and electrical industries including of catenary, overhead line, local network and cable construction from December 17, 1997 as amended from June 20, 2001 as part of the so-called small remote assembly, regardless of whether he actually makes a weekend trip home. This results in the interpretation of the tariff provision mentioned. According to the wording of the regulation, the actual completion of the weekend journey home is not a positive prerequisite for entitlement to weekend travel allowance.
In addition, the overall collective bargaining context shows that the weekend fare for small remote assembly represents compensation for the exclusion of the right to claim for the non-working days of the weekend. In contrast to large remote assembly, the regular assembly worker does not receive any allowance for the weekend days on small remote assembly, so that he alone would have to bear the additional expenses that he typically incurs as a result of remaining at the assembly site. Contrary to the assumption of the term, the purpose of the fare is to compensate for these typical additional expenses.
f) Delay in acceptance
Section 11 KSchG stipulates what the employee must have offset against the remuneration that the employer owes him for the period between the actual termination of the employment relationship and the resumption of work. If the employment relationship continues after a decision by the court, the employee must, in accordance with Section 11 Sentence 1 No. 2 KSchG, have what he could have earned if he had not maliciously failed to do so credited to the wages owed for the period after dismissal. accept a job that is acceptable to him. According to the established case law of the Fifth Senate, it must be examined whether the employee could reasonably be expected to take up other work in good faith (§ 242 BGB) and in compliance with the fundamental right to free choice of job (Article 12 GG).
The employee maliciously fails to earn money elsewhere if he intentionally refuses work without sufficient reason or intentionally prevents work from being offered to him. If the employee receives unemployment benefit during the delay in acceptance, he must, in accordance with Section 11 Sentence 1 No. 3 KSchG, have this benefit from the employment agency offset against the wages owed to him by the employer.
According to a judgment of the Fifth Senate of January 11, 2006 (- 5 AZR 98/05 -), it cannot be concluded from Section 11 Sentence 1 No. 2 KSchG that the employee may in any case wait for a job offer. Rather, he must not remain idle when a realistic job opportunity presents itself to him. This can include submitting your own offers. The acceptance of a job iSv. Section 11 Sentence 1 No. 2 KSchG is not the same as accepting an offer and does not require an offer. However, if it is about a job opportunity with the previous employer, the employee can regularly wait to see whether he or she is offered reasonable work. In principle, the employee cannot be expected to take their own initiative. However, he may be subject to an obligation to inform or inquire if the employer has made an offer within a deadline and the deadline had already expired when the offer was received. The obligation of Section 11 Sentence 1 No. 2 KSchG can, in good faith (Section 242 BGB), point out the late receipt of a reasonable offer and ask whether the opportunity to earn money still exists. The Senate further decided that work for the previous employer was only reasonable in the sense of. Section 11 Sentence 1 No. 2 KSchG is if it is aimed at acquiring interim income. The employee does not need to agree to a permanent change to the employment contract with regard to the protection of the contents of the contract.
Continuing its previous case law on delay in acceptance, the Fifth Senate decided in a further judgment of January 11, 2006 (- 5 AZR 125/05 -) that the proportional allocation of the crediting of maliciously omitted earnings and unemployment benefits in accordance with Section 11 Sentence 1 No. 2 and 3 KSchG takes place in two steps: First, the gross earnings that the employee maliciously failed to earn must be deducted from the gross wages owed by the employer. From the difference calculated in this way, the employee must have the portion of the unemployment benefit received offset against it, which corresponds to the portion of the gross remuneration that the employer still has to pay to the employee after taking into account the malicious failure to earn. Up to the amount of the contribution assessment limit, the total unemployment benefit is equivalent to the total gross salary, so that a proportional allocation must be made. Due to the pro-rata crediting, the unemployment benefit received does not remain unrestricted to the employee in addition to the remuneration owed by the employer. On the other hand, the employment agency’s services do not completely relieve the employer of his employment contractual obligation to pay a portion of the gross remuneration and the resulting net amount. This proportional allocation results from the purpose of Section 11 KSchG. While the regulation in Section 11 Sentence 1 No. 3 KSchG is intended to ensure that the employee, after an ineffective termination by the employer, is not better off financially, but also not worse off than if the employment relationship had been carried out without termination, Section 11 Sentence 1 No. 2 KSchG imposes an obligation to take appropriate consideration of the employer’s interests.
g) Exclusion periods
Employment and collective agreements often contain exclusion deadlines, which, if missed, lead to the forfeiture of claims from the employment relationship. In a decision of December 14, 2005 (- 10 AZR 70/05 -), the Tenth Senate interpreted a two-stage exclusion period according to Section 16 of the Federal Framework Collective Agreement for the Construction Industry (BRTV) of February 3, 1981 in the version of May 15, 2001 deals. According to the established case law of the Federal Labor Court, the filing of a claim for protection against dismissal is generally suitable for fulfilling the written out-of-court assertion provided for in the exclusion period regulations, as far as claims are concerned that depend on the outcome of the protection against dismissal procedure. This also applies to two-stage exclusion periods for the first stage. Against this background, the collective bargaining parties in the construction industry have made their own collective definition of the claims covered by the filing of a dismissal protection claim.
According to Section 16 No. 1 BRTV, the filing of an action for protection against dismissal preserves the first stage of the exclusion period for the employee’s payment claims, which become due during a process for protection against dismissal and depend on its outcome. The Tenth Senate has decided that this only covers claims that are clearly linked to the continued existence of the employment relationship by the employer. These are claims for remuneration to the extent that they were fulfilled before the dismissal protection action was brought. Claims that are based on deviations from the previous procedure practiced between the parties to the employment contract are not subject to the time-preserving effect of the dismissal protection action. If the employee therefore also bases payment claims on incorrect classification, he is asserting a new legal ground that deviates from the previous continuity of past wage payments. These payment claims are not covered by the time-keeping effect of the dismissal protection action even if they become due during the dismissal dispute.
These payment claims are not covered by the time-keeping effect of the dismissal protection action even if they become due during the dismissal dispute. The employer does not have to rely on missing the deadline. Non-compliance with deadlines is – unlike the statute of limitations on a claim – an objection that must be taken into account ex officio. In individual cases, the applicability of the limitation period regulation may conflict with Section 242 of the German Civil Code (BGB) if the debtor has caused the creditor not to take the steps to meet the deadline, for example by assuring him that the performance obligation will be fulfilled if the other requirements exist, even without formal assertion. If the employer has “waived” compliance with an exclusion period, this can be a unilateral binding declaration by the debtor of a claim that a fact giving rise to the claim is to be deemed to exist. This means that the court considers the requirement of timely filing of the claim to be met.
In its judgment of September 6, 2006 (- 5 AZR 684/05 -), the Fifth Senate decided on the question of forfeiture of repayment claims due to wage overpayments in accordance with Section 70 BAT. The principle of good faith (§ 242 BGB) does not only conflict with the forfeiture of claims if the employee actively prevents the employer from adhering to the exclusion period. The same applies if he breaches his duty and fails to report circumstances that would cause the employer to comply with the exclusion period. A breach of duty can usually be assumed if the employee does not report a significant overpayment, even though he recognizes that the employer made an error when calculating the remuneration. However, the employee’s breach of duty must be the cause of the employer’s inaction. Causation only exists as long as the employer does not otherwise become aware of the overpayment.
As with Section 814 of the German Civil Code (BGB), it depends on positive knowledge of not being guilty. The person performing the work must know, possibly based on a “parallel assessment in the layman’s sphere,” that he or she does not owe what has been done according to the legal situation.