company agreement

The works agreement is a contract between the employer and the works council , which not only establishes the rights and obligations of these company parties, but also (like a law or collective agreement) formulates binding standards for all employees in a company.

The term of the works agreement in German labor law is not defined in the law . The labor law expert Wolfgang Däubler describes it as a kind of “collective agreement in miniature”. The Works Constitution Act presupposes that this legal institution, with which the employer and works council regulate the operational and works constitution law and individual legal relationships between employer and employees, is in place. It maps (word equal to the corresponding control of the § 4 TVG) the direct and binding action of the service agreement (= "normative effect") for workers on an operation ( § 77Para. 4 sentence 2 BetrVG). Only insofar as more favorable regulations have been agreed in individual contracts for the employee, these take precedence over the works agreement ( favorability principle ).

In the public service , the area of application of staff representation law , corresponding agreements between the staff council and the department are referred to as service agreements .

scope

The spatial scope of a company agreement is the respective company for which it was concluded. General and group works agreements apply company-wide or group-wide, insofar as the general or group works council is responsible at all. Section 50, Paragraph 1, Clause 1, 2nd half-sentence of the Works Constitution Act provides that the general works council also represents companies within a company that have not elected a works council within the scope of its responsibilities . This can be seen as alarming because the general works council lacks the democratic legitimation to represent the workforce there .

In personal terms, company agreements apply to all employees of the company, whereby it does not matter whether the employment relationship had already existed when the company agreement was concluded. However, the employer and works council are basically free to agree company agreements with a restricted personal scope (for individual departments or groups of employees). Since section 5 (3) of the BetrVG expressly excludes executive employees from the scope of the Works Constitution Act, works agreements do not apply to them.

Subject matter

The content of a works agreement can include all questions in which the works council has a statutory right of co-determination . A distinction must be made between enforceable company agreements and voluntary company agreements. The works council has a mandatory right of co-determination in all questions in which the law expressly provides that, in the event of a lack of agreement between the employer and the works council, the decision of the arbitration body replaces the agreement of the parties to the works. The core area of these enforceable regulations is the participation in social issues according to Section 87 BetrVG. This also includes economic co-determination rights ( § 111 to § 112a BetrVG), which, under legally defined circumstances, grant the works council the right to require the employer to conclude a social plan in the event of operational changes . In these cases the employer cannot settle a matter without the works council. If they do not come to an agreement, both sides can call the conciliation office. Their decision ("Spruch") then has the effect of a works agreement.

However, insofar as a (final) statutory or collective agreement already exists in matters or insofar as such matters are usually regulated within the framework of collective agreements, they cannot be the subject of a works agreement. Unless the collective agreement expressly allows (supplementary) company regulations ( opening clause ). For example, a company agreement on the amount of remuneration or the duration of the weekly working hours is fundamentally null and void because it violates this blocking effect of the “collective bargaining practice” of Section 77 (3) BetrVG. In the area of social participation according to Section 87 BetrVG (i.e., for example, regarding the distribution of daily and weekly working hours), company agreements are only inadmissible if a collective agreement is directly and compulsorily applicable to the company, i.e. at least the employer is bound by collective bargaining agreements. Mere "customary collective bargaining" is not sufficient here to exclude the possibility of regulation through a works agreement if, according to the prevailing priority theory, § 87 I introductory clause BetrVG compared to § 77 III BetrVG is recognized as lex specials. In contrast, the so-called two-limit theory allows mere customary collective bargaining to be sufficient, since, according to this view, both norms stand side by side on an equal footing, so § 77 III BetrVG is applicable.

Relationship to the employment contract

A works agreement is normative and mandatory for employees . Employment agreements that differ from this, however, only apply if they are more favorable to the employee than the works agreement (indicated by Section 28 II sentence 2 SprAuG). This favourability principle is safeguarded by the fact that an individual contractual waiver of claims from a works agreement is only effective with the consent of the works council ( Section 77 (4) BetrVG).
At the same time, however, it remains to be checked whether a works agreement can withstand a “collective comparison of benefits” ( Federal Labor Court ). This applies if all employees are not put in a worse position by the works agreement. The prerequisite is that the regulation is a social benefit from the employer that can be quantified and has collective benefits.

Relationship to collective agreements

In the event of a collision between the provisions of a collective agreement and a works agreement, however, the favourability principle does not apply. Rather, Section 77 (3) BetrVG guarantees collective bargaining autonomy by giving the collective bargaining parties priority to collectively regulate material working conditions, with the result that where the collective bargaining parties have made use of their standard-setting authority, the Company partner does not apply. ”This also applies to employers who are not bound by collective bargaining agreements, as“ competition regulations ”in the form of company agreements could also disrupt the functionality of collective bargaining autonomy. Violations, however, lead to the ineffectiveness of the company agreement, which, however , can still take effect through reinterpretation .

The conclusion of supplementary works agreements is only possible through a so-called opening clause in the collective agreement. As a result, a company agreement that contains, for example, a regulation on end-of- year remuneration is ineffective if a collective agreement is applied in the company that also contains a provision on the payment of end-of-year remuneration. This also applies if the collective bargaining agreement is less favorable than the (ineffective) company agreement.

Creation and form

Works agreements come about through mutual resolutions of the employer and works council. On the part of the works council, an effective decision by the entire committee is always required. The approval of the chairman of the works council is not enough. Because of the written form required to be effective , works agreements must be put in writing and signed by the employer and the works council chairman on a document. Under certain circumstances, company agreements can also be put into effect retrospectively (also to the detriment of the employees) if the prohibition of “ genuine retroactive effect ” is observed.

In contrast to the works agreement, a so-called "regulatory agreement" can be made informally (i.e. also verbally). However, a regulation agreement does not have a normative effect comparable to that of the works agreement. In contrast to the works agreement, the regulation agreement can contain not only general (collective) regulations, but also individual ones.

execution

Implementation of the company agreements is the sole responsibility of the employer. The works council is also not authorized to interfere in the management of the company in matters of co-determination. The works council can, however, enforce its claim that the employer should adhere to the works agreement and implement it in a labor court decision- making process . In the event of gross violations, according to the case law of the Federal Labor Court, a trade union can also demand that the employer refrain from implementing a company agreement that is contrary to the collective bargaining agreement.

termination

The company agreement is terminated by

a subsequent company agreement on the same subject ("time collision rule"),
Termination (if there is no agreement: notice period three months),
Lapse of time if it was concluded for a limited period, or
Termination Agreement .

Aftermath

After its termination, the company agreement loses its mandatory effect, but it continues to have an effect in the area of enforceable co-determination ( Section 77 (6) BetrVG). This means that their regulations continue to apply until they are replaced by another agreement , whereby the case law understands the term “other agreement” to mean a different individual contractual regulation. Since the mandatory effect no longer applies with the termination, less favorable individual contractual provisions are also permissible in the subsequent period. However, voluntary works agreements do not have any after-effects unless the after-effects have been expressly contractually agreed.

literature

Michael Bachner, Micha Heilmann: The company agreement. Manual with model agreements on CD-ROM . 5th, completely revised edition. Bund-Verlag, Frankfurt am Main 2011, ISBN 978-3-7663-6002-1 .
Nathalie Oberthür, Stefan Seitz: Company agreements . 2nd Edition. CH Beck, Munich 2014, ISBN 978-3-406-65276-9 .

Web links

Wiktionary: Company agreement - explanations of meanings, word origins, synonyms, translations

Works Constitution Act , Section 77 Implementation of joint resolutions, works agreements
Operating agreements - operating and maintenance agreements, analysis, design aids and trends from the archive Company agreements of the Hans Böckler Foundation
Company and service agreements - extensive collection of various company and service agreements
Agreements focusing on the use of technology and management methods

Individual evidence

↑ Wolfgang Däubler: Labor law 1. Guide for employees . 16th edition Rowohlt, Reinbek 2006, p. 594.
↑ BAG, decision of February 24, 1987 - 1 ABR 18/85, Rn. 37 - BAGE 54, 191-210.
↑ BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 21-, BAGE 82, 89-101 = NZA 1996, 948.
↑ BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 19 f. -, BAGE 82, 89-101 = NZA 1996, 948.
↑ BAG, judgment of 23 August 1989 - 5 AZR 391/88 -, juris, 1st principle.

[1] Wolfgang Däubler: Labor law 1. Guide for employees . 16th edition Rowohlt, Reinbek 2006, p. 594.

[2] BAG, decision of February 24, 1987 - 1 ABR 18/85, Rn. 37 - BAGE 54, 191-210.

[3] BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 21-, BAGE 82, 89-101 = NZA 1996, 948.

[4] BAG, judgment of January 24, 1996 - 1 AZR 597/95, Rn. 19 f. -, BAGE 82, 89-101 = NZA 1996, 948.

[5] BAG, judgment of 23 August 1989 - 5 AZR 391/88 -, juris, 1st principle.