Billing (German labor law)
Under settlement is in labor , the pay slip of the differences between especially traditionally understood, by eliminating workers and employees the summary payroll of salary by the employer . In addition, the employee can also have a reporting obligation vis-à-vis the employer with regard to the funds entrusted to him. The following is exclusively about the settlement of the employee's remuneration.
Substantive legal situation
The general billing claim according to § 108 GewO
In § 108 GewO a billing obligation applicable to every employer is determined and regulated in detail.
Existence of a billing claim
According to Section 108, Paragraph 1, Clause 1 of the GewO, a statement must be issued when the remuneration is paid .
In practice, the purpose of § 108 GewO is often misunderstood. According to § 108 GewO, the employee has no claim to billing for the preparation of a payment claim. He has a billing claim only “on” (or after) payment: “According to this standard (§ 108 GewO), if the employee is entitled to payment of wages, he is to be given a bill“ on payment ”. The purpose of billing is to provide information about the payment made. The regulation serves the purpose of transparency. The employee should be able to see why he is currently receiving the amount paid out. On the other hand, § 108 GewO does not regulate an independent billing claim for the preparation of a payment claim (...). In the case of back payments, Section 108 (1) sentence 1 GewO also does not grant any entitlement to "correction" of statements that have already been issued, but only a right to a separate statement of the additional payment. "
According to Section 108 (2) GewO, there is only a legal claim to billing if the information has changed since the last proper billing. The employer does not have to issue the same statement every month if nothing changes.
Fulfillment of a billing claim
The invoice must be issued in text form (Section 108 (1) sentence 1 GewO). There is no compulsory form.
The statement must contain at least information about the entitlement period and the composition of the wages (Section 108 (1) sentence 2 GewO), in particular information about the type and amount of supplements , allowances , other remuneration, the type and amount of deductions, payments on account and advances (Section 108, subs 1 sentence 3 GewO).
The billing claim for deadlines
In labor often (especially in collective agreements) apply limitation periods .
The cut-off period for a payment does not run as long as the employer fails to "make a necessary settlement". However, the run of the preclusive period is no longer blocked if the billing claim itself has not been asserted within the preclusive period.
The employee does not have to observe a deadline for claims that are unconditionally shown by the employer in a pay slip. However, this applies if the employer shows a claim - at the same time - only with reservation: “If the employer declares a set-off with counterclaims at the same time as sending a statement, the statement is not issued unconditionally. In order to maintain a preclusive period, the claims contained in the statement must be asserted. ”A subsequent reservation is irrelevant, that is, the once unconditionally settled wages do not have to be asserted within a preclusive period.
The right to explanation according to § 82 Abs. 2 BetrVG
According to Section 82 (2) sentence 1 Hs. 1 BetrVG , every employee can request that the calculation and composition of the wages be explained to him. This right of explanation also exists if there is no works council . If there is a works council, the employee can call in a member of the works council (Section 82 (2) sentence 2 BetrVG) who is obliged to maintain secrecy (Section 82 (2) sentence 3 BetrVG).
The commission accounting claim according to § 87c HGB
Section 87c HGB grants the commercial agent four auxiliary rights to enforce his commission claims: accounting, book excerpt, book inspection and information.
Procedural enforcement
Certainty
Often the enforcement of a title on account fails because the title is sufficiently specific. It is necessary to determine for which period which amount is to be billed.
- A title only on "proper accounting" has no enforceable content.
- The agreement “the defendant has to pay the plaintiff the net amount resulting from x € gross” is too indefinite and not enforceable. It is even more indefinite with the addition “as far as not yet done”.
Lawsuit for future billing
If the employee files a lawsuit for a payment still to be made by the employer and settlement of the payment, this must be interpreted and, if in doubt, understood as a lawsuit for future performance. This is basically possible. “An application for settlement for future payments is only permissible if the circumstances justify the concern that the debtor will evade timely performance. For this, the plaintiff bears the burden of assertion and proof. "
Lawsuit
If the employee cannot calculate the amount of the remuneration himself (example: commission ), he must file a step action ( § 254 ZPO ) against the employer in order to enforce his remuneration claims .
foreclosure
The type of enforcement in the case of payroll is seen differently.
In the opinion of the Federal Labor Court (BAG), the foreclosure has to be carried out on the issue of a statement according to § 888 ZPO, i. H. is subject to the rules of enforcement for unjustifiable acts:
“The employer's obligation under Section 108 GewO to issue a statement to the employee is an unjustifiable act. The possibility that a third party who has access to the employer's documents might also be able to prepare this statement does not change this. The decisive factor is whether a third party can carry out the act independently without the involvement of the debtor. This is not the case with a statement of deductions and payments actually made. A titled claim to issue of the settlement is to be enforced according to § 888 ZPO. "
If the employer refuses to issue an account, the principle of proportionality is fundamentally opposed to the issuance of an arrest warrant according to § 901 ZPO: “The enforcement creditor is dependent on the judicial process to enforce his rights and, because of the state monopoly of force, on the enforcement process. In contrast, it is easily possible for the enforcement debtor to perform the act incumbent on him (issuing an account). These considerations stand in opposition to considering the enforcement of a judicial title to be unreasonable for the enforcement debtor. "
The case is different with a settlement before payment (commission) and if the necessary documents are available. Then the foreclosure takes place according to the rules for justifiable acts (§ 880 ZPO), which enables the possibility of a substitute performance at the expense of the employer.
A "conviction for the creation of a book excerpt within the meaning of § 87c Paragraph 2 HGB is to be enforced in principle according to § 887 ZPO if the book extract - as here - can be created not only by the debtor but also by a third party on the basis of existing documents."
Individual evidence
- ↑ BAG, judgment of December 9, 2015, Az .: 10 AZR 731/14 - Rn. 40 mwN = AP No. 35 to Section 1 TVG collective bargaining agreements: aviation
- ↑ BAG, judgment of 10 August 1994, Az .: 10 AZR 937/93 = BAG NZA 1995, 742 ; re II 1 d of the reasons = AP § 4 TVG cut-off periods No. 126.
- ↑ BAG, judgment of July 28, 2010, Az .: 5 AZR 521/09 - Rn. 18 = NZA 2010, 1241.
- ↑ BAG, judgment of October 27, 2005, Az .: 8 AZR 546/03 - NZA 2006, 259 Os.
- ↑ BAG, judgment of April 21, 1993, Az .: 5 AZR 399/92 = AP § 4 TVG cut-off periods No. 124.
- ^ LAG Schleswig-Holstein, judgment of December 23, 2005, Az .: 1 Ta 187/05 - juris - Ls.
- ↑ a b LAG Bremen, judgment of September 12, 2006, Az .: 3 Ta 85/06 - NZA-RR 2006, 654 (655).
- ↑ BAG, judgment of December 9, 2015, Az .: 10 AZR 731/14 - Rn. 42 = AP No. 35 to § 1 TVG collective agreements: aviation
- ↑ a b BAG, decision of September 7, 2009, Az .: 3 AZB 19/09 - juris Os. = NZA 2010, 61.
- ↑ As far as can be seen, there is no decision by the BAG on this, but the court decision of September 7, 2009 ( BAG NZA 2010, 61 ) is largely based on the fact that only the employer knows what he has paid. However, this argument does not apply in the case of commission settlement before payment.
- ↑ Richard Zöller / Kurt Stöber (inter alia), Commentary ZPO , 30th edition 2014, § 887 Rn. 3 - billing; LAG Bremen, decision of September 12, 2006, Az .: 3 Ta 85/06 - NZA-RR 2006, 654 (655).
- ↑ BGH, decision of January 20, 2011, Az .: I ZB 67/09 - juris Rn. 10 = NJW-RR 2011, 470.
