Senior Staff

The executive employee is an employee who is endowed with essential employer powers and performs managerial tasks.

Legal consequences of the position

Senior employee is a legal term from German labor law , more precisely the Works Constitution Act ( Section 5 Paragraphs 3 and 4 BetrVG) and the Co-Determination Act and the Protection against Employment Act . The BetrVG and the Working Hours Act do not apply to executive employees (as defined by the BetrVG) . According to the Codetermination Act (Section 15), senior executives are entitled to seats as employees on the supervisory board .

For executive employees (as defined in the KSchG), the Dismissal Protection Act is applicable to a limited extent (unfounded termination against severance pay , §§ 14 para. 2 KSchG, 9 para. 1 sentence 2 KSchG).

Delimitation and definition

The group of employees in managerial positions within a common company hierarchy, e.g. B. department heads , foremen , main department heads , operations managers , etc. is much larger than that of the executive staff. Mostly they are non-tariff employees , but vice versa these are not automatically executive employees.

Executive employees are characterized by the fact that they have been given significant employer powers. These are mainly hiring and dismissal powers , a not insignificant power of attorney or power of attorney , power of attorney or the transfer of other tasks in entrepreneurial function. If an employee is permanently entrusted with at least one of the three functions mentioned, he is a manager within the meaning of the Works Constitution Act . If there are doubts about this in individual cases, additional formal criteria can also be used for clarification, for example the management level or the regular annual wage.

Senior staff in the works constitution and termination protection terms are defined not identical, the definition of the Consumer Protection Act is narrower: While this necessarily implies the power to dismiss and / or setting, is following the WCA already officer, who tasks perceives that the basis of their importance for Companies have a significant influence. In current case law, a mere power to dismiss or hire is often insufficient to classify an employee as a managerial employee. He must also exercise this power regularly.

The relationship between national regulations and European law is becoming increasingly important. Various European directives set protection standards in favor of employees without excluding senior executives from this protection. In contrast, according to national law, senior employees are partially excluded from precisely these protective provisions, B. of the protection against collective redundancies provided by Directive 98/59 / EC. In the event of this conflict between national law and European law , the latter takes precedence, so that national regulations must either be interpreted in accordance with the directive, classified as ineffective, or claims for damages by those affected against the EU member state that has not implemented the EU requirements accordingly.

Executive employee according to the Works Constitution Act

According to § 5 (3) Works Constitution Act, a manager is

"Who by employment contract and position in the company or in the company

is entitled to independently hire and dismiss employees employed in the company or in the company department, or

Has general power of attorney or power of attorney and the power of attorney is not insignificant in relation to the employer or

regularly performs other tasks that are important for the existence and development of the company or a business and the fulfillment of which requires special experience and knowledge, if he either makes the decisions essentially free of instructions or has a significant influence on them; This can also be the case with specifications, in particular based on legal provisions, plans or guidelines, as well as when working with other executive employees. "

According to § 5 (4) after (3) No. 3 also executive employee

“When in doubt, who

on the occasion of the last election of the works council, the committee of speakers or of members of the supervisory board of the employees or by a final court decision to the executive employees or

belongs to a management level at which the company predominantly executes, or

receives regular annual wages that are customary for senior executives in the company, or,

if there are still doubts about the application of number 3, you will receive a regular annual wage that exceeds three times the reference value according to Section 18 of Book Four of the Social Security Code . "

Exemption for auditors

According to § 45 of the Wirtschaftsprüferordnung , salaried auditors with power of attorney are considered to be executive employees within the meaning of the Works Constitution Act, without the further conditions of the Works Constitution Act having to be met. There are no corresponding regulations for comparable professional groups such as employed tax consultants or lawyers . This status means that various employee rights (such as the Working Hours Act, collective bargaining agreements, works agreements, active and passive voting rights in works council elections) do not apply to these employed auditors. The Federal Labor Court ruled on June 29, 2011, 7 ABR 15/10, that § 45 sentence 2 WPO in conjunction with § 45 sentence 1 WPO is to be understood in a restrictive way, in accordance with the constitution, that the area exemption from the works constitution only applies to employed auditors with power of attorney.

The committees of the Wirtschaftsprüferkammer have proposed the deletion of section 45 sentence 2 WPO (salaried WP / vBP as managerial staff within the meaning of section 5 (3) BetrVG). This proposal was sent to the Federal Ministry of Economics as part of the WPO amendment proposals in a letter dated March 21, 2012.

literature

Stefan Kramer: Problems of the participation rights of the speaker committee . In: Neue Zeitschrift für Arbeitsrecht (NZA) 1993, 1024-1027.
Stefan Kramer: Legal issues of the executive assembly . In: Personal 1993, 386-390.

Web links

Social structure analysis final report ( Memento from December 14, 2007 in the Internet Archive )

Individual evidence

↑ here differentiate the requirements from § 14 Abs. 2 KSchG and § 5 Abs. 3 Nr. 1 BetrVG: § 14 Abs. 2 KSchG alternatively allows recruitment or dismissal authority, § 5 Abs. 3 Nr. 1 BetrVG requires both features cumulatively ; Cf. Martin Henssler / Stefan Lunk, Executives and Working Time Law - Considerations de lege lata and de lege ferenda , in: NZA 2016, 1425
↑ Ferdinand Brüggehagen, The executive employee in terms of works constitution law
↑ BAG, judgment of June 29, 2011, Az .: 7 ABR 15/10
↑ Reinhold Mauer, senior executives within the meaning of European labor law , January 31, 2018.
↑ BAG June 29, 2011
↑ cf. WPK Magazine 2/2012, p. 17 and p. 18, available at www.wpk.de

[1] re differentiate the requirements from § 14 Abs. 2 KSchG and § 5 Abs. 3 Nr. 1 BetrVG: § 14 Abs. 2 KSchG alternatively allows recruitment or dismissal authority, § 5 Abs. 3 Nr. 1 BetrVG requires both features cumulatively ; Cf. Martin Henssler / Stefan Lunk, Executives and Working Time Law - Considerations de lege lata and de lege ferenda , in: NZA 2016, 1425

[2] Ferdinand Brüggehagen, The executive employee in terms of works constitution law

[3] BAG, judgment of June 29, 2011, Az .: 7 ABR 15/10

[4] Reinhold Mauer, senior executives within the meaning of European labor law , January 31, 2018.

[5] BAG June 29, 2011

[6] . WPK Magazine 2/2012, p. 17 and p. 18, available at www.wpk.de