Operational exercise

from Wikipedia, the free encyclopedia

In labor law, an operational exercise is the fact that an employee may rightly deduce from the regular repetition of certain behaviors by the employer that the employer will also behave in this way in the future or in the long term - for example when granting benefits and Discounts - and thereby legal claims to such services are justified. As a result of company practice, voluntary services by the employer become mandatory, which the employer can no longer unilaterally withdraw.

scope of application

Claims from operational practice are conceivable wherever there is no other basis for the asserted right . However, the regulations are different in Germany and Austria. Frequent use cases are (if voluntary and not already owed and regulated according to the employment or collective bargaining agreement or the works agreement):

So that voluntary bonus payments , gratuities, performance bonuses or bonuses do not become a company practice, the employer must expressly emphasize their voluntariness in writing before the payment in such a way that the employee does not have a legal claim even if they are repeated .

Legal situation in Germany

Informal practices is in the German labor customary law recognized legal institution .

requirements

The emergence of individual, legally enforceable claims from operational practice always requires not only a circumstance factor (unconditional granting of a service) but also a time factor (regular repetition). In this way, company practice arises with the Christmas bonus if the employer pays it for three years in a row without any reservation of voluntariness . The employee can then trust that payments will continue in the fourth year. The occurrence of a company exercise is not excluded even if in the employment contract with a (simple) written form clause every change to the contract must be made in writing. Even by applying a double written form clause, according to the decision of the Federal Labor Court on May 20, 2008, a company practice can only be averted to a limited extent.

Operational exercise for the benefit of new employees

Newly joining employees have, according to Sections 133, 157 of the German Civil Code (BGB) are generally entitled to the operational exercises applicable at the time the contract is concluded. So you benefit equally regardless of their length of employment. An express agreement is not required for this. However, an individual contractual exclusion of new employees is permissible, provided this is objectively justified.

termination

A right that has arisen through operational practice cannot be removed by unilateral revocation or the employer's right of direction . He must issue a notice of change . However, should an existing company practice after the recent decisions of the Federal Labor Court , which has encountered versatile criticism, even without changing termination by a new, less favorable to the employee company practice superseded (example: two years under constant payment of Christmas bonuses, which so far due to Operational Exercise was paid without employee objections). The prerequisite, however, is that the employer clearly expresses his will to change the previous operational practice.

In a departure from its previous case law, the Federal Labor Court no longer allows a company exercise to be terminated by a so-called opposing company exercise due to a violation of Section 308 No. 5 BGB (BAG of March 18, 2009 10 AZR 281/08). The benefit to which the employee is actually entitled is only granted by the employer with the express reservation of voluntary and ultimately no longer granted.

Special case: customary law regarding working hours?

In 1998, the Hesse State Labor Court dismissed the action brought by an employee who had been working night shift for several years and was assigned to day shift. He justified the lawsuit on the basis of customary law , since he had always had the same working hours for years. This resulted in an employment contract entitlement to be assigned to the night shift.

The court rejected this view - because the prerequisite for the occurrence of an operational exercise is a mutual will of both contracting parties. In the present case, the employer did not show that he had agreed to the general assumption of a certain shift (LAG Hessen -9 Sa 1325/98).

An employment contract cannot be changed at the expense of the employee (so-called negative company practice). The opinion previously held by the BAG that this was possible, the BAG has repealed after the law of obligations reform 2002 with reference to the regulation in §§ 310 Abs. 4 S. 2, 308 Nr. 5 BGB.

Legal dogmatic classification

Trust theory

The trust theory prevailing in the literature justifies the legal binding of the company exercise with the trust aroused in the employee in the continuation of previous services or benefits. This fact of trust creates a bond with the employer in good faith (§ 242 BGB).

Contract theory

According to the contract theory, which is also represented by the BAG , the repeated behavior of the employer represents an implied contract offer to maintain or continue the behavior in the future, which the employee can also tacitly accept according to § 151 sentence 1 BGB. According to this, from an objective employee's point of view (§§ 133, 157 BGB), the repeated behavior must be a declaration of fact that, taking all circumstances into account, suggests a corresponding willingness to commit.

Legal situation in Austria

The company practice (also operating practice , rare operating customary law called) is contrary to the Federal Republic of Germany not have its own source of law , but the practical effect is similar.

In general, employment contracts can also be tacitly changed between the employee and the employer (Section 863 ABGB ). This also applies to the written form clauses, as the contracting parties remain masters of the employment contract and can therefore tacitly disregard the written form clause. The only requirement is that both parties agree.

In the case of company practice, the employer unilaterally makes a tacit offer to change the employment contract through certain behavior . By accepting this offer by the employee, the employment contract is supplemented. In terms of legal dogma, operational practice is nothing more than a tacit supplement to the contract . Only after the employment contract has been amended does the employee receive his or her legal right to the employer to receive the formerly voluntary remuneration.

requirements

From the construction of the tacit amendment to the contract, it can also be seen which prerequisites the operational practice must have in order for the employee to acquire a legal claim: the prerequisite is the agreement of will. The employer's offer must therefore show that the employer is willing to continue providing the service offered in the future. Because the employer would only like to change the employment contract if the prospect of service provision is also promised in the future; a will to change the employment contract cannot be assumed for a one-off voluntary service. For this reason, regularity is a prerequisite for the operational exercise , although this can already be given if it is granted twice.

The employer's offer may not be made conditionally . If he clearly expresses that he is only providing the voluntary service without wanting to change the applicable employment contract, i.e. clearly drawing attention to the voluntary nature of the service and pointing out that this voluntary service is subject to revocation , no company exercise can arise because no more agreement of will is possible. It is important, however, that the employer leaves no doubts about the revocability of the voluntary benefit. The mere reference to the voluntary nature of the service is not sufficient, however, since the word voluntary only means that the benefit goes back to the originally voluntary decision of the employer; it only expresses the distinction to the services owed according to the collective agreement (OGH judgment October 13, 1993, 9 ObA 265/93).

The employer's offer must be made with his knowledge . Services that are performed without the knowledge of the employer - for example in the work process - can in no way become operational practice, even if they have been practiced in the company for a long time.

Operational exercise in favor of new employees

As soon as the above requirements are met (i.e. a service is provided regularly and without reservation on the part of the employer), new employees can also benefit from the company exercise.

However, the employer can prevent the occurrence of the operational exercise for new entrants by clearly expressing his unwillingness to change the contract. This leads to a two-tier workforce : old employees, for whom the company exercise has already taken place, are entitled to the benefit, while new employees do not. This distinction alone does not lead to a violation of the principle of equal treatment .

termination

Claims from company exercises are nothing other than claims from the employment contract. It is therefore not possible for the employer to unilaterally remove the operational exercise that has arisen; so he cannot simply declare that he will no longer grant benefits in the future.

The operational exercise can only be eliminated by a (amicable) change in the contract . This always requires the employee's consent . Collective approval by the works council , for example, is not sufficient, since the change to the employment contract is the sole responsibility of the respective contractual partner. Although the employee's consent can again be tacit, it must be taken into account here that the employee's silence alone does not constitute consent - because his silence can also have reasons other than consent. Only if, after considering all the circumstances, there is no reasonable reason to doubt the consent of the employee, tacit consent is given (Section 863 ABGB), whereby the case law is quite restrictive here . A certain imbalance can be seen here: a company exercise tacitly arises relatively quickly, while it is tacitly hardly canceled. This imbalance is based on the social protection principle of labor law: It is more likely that the employer would like to commit to further benefits than that the employee waives the benefits granted.

A company exercise can also be eliminated by (unilateral) termination of the employment contract by the employer. But this ends the entire employment relationship. A partial termination , so the termination only of that part of the employment contract that includes the company practice is not permitted; however, a cancellation of changes is permitted . In both cases (termination and change termination), any general or special protection against dismissal must be observed.

Burden of proof

Since claims from the title of the company exercise are nothing other than claims from the employment contract, the employee is obliged to prove the existence of the company exercise (more precisely: the change in his employment contract).

literature

  • Forst, Gerrit: Company practice, custom and practice, usage d'entreprise - Is there a ius commune of company rules through regular behavior in Europe? - , in: Zeitschrift für Arbeitsrecht (ZfA) 2013, 167–211, ISSN  0342-328X .
  • Stefan Kramer: Avoiding / eliminating operational exercises , in: Arbeits und Arbeitsrecht (AuA) 2007, 142–145.

Web links

Individual evidence

  1. ↑ Christian Ostermaier: Double written form clause in the employment contract , Law Blog, October 9, 2008 [accessed October 17, 2011].
  2. ↑ Abbo Junker : Basic course in labor law , 7th edition, marginal no. 82.