Privately autonomous preclusive periods in labor law (Germany)

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Private Autonomous exclusion periods in labor are labor exclusion limits that are not in a law, but in a collective agreement , in an operating arrangement or in a contract are regulated.

When one speaks of "preclusive periods" in labor law, one often means above all the collective bargaining and employment contract preclusive periods. For legal preclusive periods, see: Statutory preclusive periods in labor law (Germany) .

Exclusion periods are periods after which a claim expires if it is not asserted within the period.

Instead of a preclusive period, one also speaks of expiry period, forfeiture period, preclusion period, preclusive period. The clause that contains a limitation period is called an exclusion clause, expiration clause or forfeiture clause.

The importance of deadlines is often underestimated by employees. Often they do not know that there is a preclusive period to be observed and many are unaware that preclusive periods are much shorter than the three-year limitation period .

A distinction is made between "single-stage exclusion periods" and "two-stage exclusion periods". In the case of a two-stage preclusive period, the "first stage" of a simple (mostly written) assertion is also subject to the obligation to file a lawsuit after rejection and / or expiry of a certain period after assertion.

Agreement on a deadline

Limitation periods can be justified by a collective agreement, a works agreement or an employment contract.

Collective bargaining deadlines

A collective bargaining deadline applies in the case of collective bargaining (Sections 3, 5, Paragraph 4 TVG) or the general applicability of the collective agreement, or individual law in the case of (effective) reference to a collective agreement.

Exclusion periods are included in almost every blanket or framework collective agreement. In the first stage , these provide for a period of two to six months. Possibly shorter deadlines than two months.

  • Example 1: § 37 TVöD (typical single-stage exclusion period in the public service):
"Section 37 limitation period
(1) 1Claims from the employment relationship lapse if they are not asserted in writing by the employee or the employer within a preclusive period of six months after the due date. 2For the same situation, a one-time assertion of the claim is also sufficient for benefits due later.
(2) Paragraph 1 does not apply to claims from a social plan. "
  • Example 2: § 22 RTV building cleaning (from January 1, 2012: § 23) (short two-stage exclusion period of a generally binding collective agreement):
"All mutual claims arising from the employment relationship and those related to the employment relationship expire if they are not asserted in writing within 2 months of the due date.
If a counterparty rejects the claim or does not declare itself within 2 months after the assertion of the claim, it will expire if it is not asserted in court within 2 months after the rejection or the expiry of the deadline. "
  • Example 3: § 15 BRTV construction industry (two-stage exclusion period in the construction industry):
"§ 15 Limitation Periods
1. All mutual claims arising from the employment relationship and those related to the employment relationship shall lapse if they are not made in writing to the other contracting party within two months of the due date; if the employee has a working time credit when the employee leaves the company, the period for this working time credit is 6 months.
2. If the other party rejects the claim or does not declare itself within two weeks after the assertion of the claim, it will expire if it is not asserted in court within two months after the rejection or the expiry of the deadline. This does not apply to employee payment claims that become due during dismissal protection proceedings and that depend on the outcome. For these claims, the expiry period of two months begins after the legally binding termination of the dismissal protection proceedings. "

A (seldom) possibly more favorable individual contractual regulation of preclusive periods takes precedence over a collective bargaining agreement in accordance with Section 4 (3) TVG.

According to the case law of the Federal Labor Court (BAG), collective bargaining deadlines are also to be observed if the employer has not complied with his obligation under Section 8 TVG to publicize a collective bargaining agreement.

According to Section 2, Paragraph 1, Sentence 1 of the Evidence Act (NachwG), an employer must set down the essential working conditions in writing. According to Section 2 Paragraph 1 Sentence 2 No. 10 NachwG, this also includes a reference to the applicable collective agreements. According to the BAG, collective bargaining deadlines must also be proven, but reference to the applicable collective bargaining agreement is considered sufficient. If a preclusive period has not been proven, the employee can have a claim for damages against the employer that he is made as if he had been informed of the preclusive period and the claim would not have lapsed. For this, however, the failure to provide evidence must be causal for the non-compliance with the deadline.

Limitation periods in a company agreement

Limitation periods are generally also permitted in company agreements, but rarely. A works agreement must observe the collective bargaining precedence according to § 77 Abs. 3 BetrVG, so that exclusion periods in a works agreement may not extend to collective bargaining claims.

Contractual preclusive periods

The inclusion of preclusive periods in an employment contract is widespread. A collective agreement and its preclusive periods are often referred to. Due to their customary nature in working life, preclusion periods are not considered surprising from the outset i. S. d. § 305c BGB. However, this is an individual question. In terms of content, individual contractual exclusion periods are usually subject to a general terms and conditions control according to §§ 305 ff. BGB (see below).

Effectively agreed deadlines also apply to the legal successor. This is of practical importance in the event of a transfer of entitlement to the Federal Employment Agency in the event that benefits are granted .

Effectiveness of a limitation period

Collective agreement deadline

Even if there can be ineffective collective bargaining deadlines in exceptional cases, these are legally effective as a rule.

According to § 310 Abs. 4 S. 1 BGB there is no control of the general terms and conditions according to §§ 305 ff. BGB.

A collective agreement preclusion period of 2 months after the due date is effective.

According to the BAG, collective bargaining deadlines also apply if the publication obligation pursuant to Section 8 TVG has been violated.

In individual, rare collective agreements, the validity of preclusive periods is expressly made dependent on the collective agreement being posted. Then this is a question of fact.

A collective bargaining deadline can be ineffective because of a violation of the principle of equality according to Article 3, Paragraph 1 of the Basic Law. However, the wide scope of regulation of the parties to the collective bargaining agreement must be observed. Unilateral exclusion periods, d. H. Exclusion periods, which only apply to the employees, are already effective if there is an "objectively justifiable reason".

In a sensational decision, the Federal Constitutional Court set a two-stage collective bargaining deadline for a violation of Art. 2 Para. 1 GG i. V. m. with the rule of law (here: requirement of effective legal protection) declared ineffective, insofar as it imposed on the employee to sue for his default wage claims with a corresponding cost burden before the outcome of his dismissal protection process.

Individual contractual preclusion periods

Individual contractual exclusion periods are not fundamental, but may be ineffective in individual cases. The focus is on checking the terms and conditions .

Ineffectiveness according to §§ 305 ff. BGB (general terms and conditions control)

applicability
General terms and conditions or consumer contract without influence

A general terms and conditions control according to §§ 305 ff. BGB only takes place if the preclusive period has been agreed in a general terms and conditions and there is no priority individual agreement. That is the rule.

General terms and conditions are any pre-formulated contractual conditions for a large number of contracts, which one contracting party provides for the other when the contract is concluded, Section 305 (1) BGB. For a large number of contracts, contractual terms and conditions are already formulated if they are intended to be used three times.

Even if (as an exception) there are no general terms and conditions, the employment contract is a consumer contract, so that, according to Section 310 Paragraph 3 No. 2 BGB, the provisions on interpretation ( Section 305c Paragraph 2 BGB) and the legal consequences in the event of ineffectiveness ( Section 306 BGB) as well as the content control to be carried out (Sections 307 to 309 BGB) are to be applied if the employee (the consumer) was unable to influence the content of the contractual clause (as is usually the case) due to their pre-formulation.

Priority of the individual agreement (§ 305b BGB)

The agreement of a preclusive period on the basis of a (rarest) individual agreement excludes a general terms and conditions control according to § 305b BGB.

Control of the agreed deadline (§ 310 Paragraph 4 Sentence 1 BGB)?

According to § 310 Abs. 4 S. 1 BGB are subject to collective agreements , i. H. in particular collective agreements do not control the terms and conditions. According to the BAG, Section 310 (4) sentence 1 BGB does not apply to general employment contract guidelines of the churches , not even by analogy. However, the particularities applicable in labor law must be adequately taken into account (Section 310 Paragraph 4 Sentence 2 BGB). In order to prevent indirect wage censorship, individual contractual preclusion periods are not subject to any general terms and conditions control if they refer to collective bargaining agreements and their preclusive periods. However, the privilege with regard to the assumed correctness of collective bargaining regulations only applies to the collective bargaining agreement as an "overall package", so that a general terms and conditions check takes place in the event of only partial reference to collective bargaining deadlines.

Formal control
  • According to § 305c Abs. 1 BGB surprising terms and conditions clauses are ineffective.
Disclaimer clauses are not surprising simply because they appear at all or because they are included in a referenced collective agreement.
  • According to Section 305c (2) BGB, ambiguities are at the expense of the user of the form.
  • According to § 307 Abs. 1 S. 2 BGB, non-transparent clauses are ineffective ( transparency requirement ).
Exclusion periods do not become part of the contract if they are included in a written employment contract "without special reference and without typographical emphasis under incorrect or ambiguous heading"
Content control

For the general major clauses, reference is made to the above statements on the control of the general terms and conditions. Only the results of the case law are presented here:

Duration of the individual contractual exclusion period at least 3 months

Individual contractual exclusion periods - insofar as they are not based on a (global) reference to collective agreements with a shorter exclusion period - are ineffective if they provide for a period shorter than three months.

Unilateral exclusion period ineffective

Unilateral exclusion periods to the detriment of the employee are an unreasonable disadvantage i. S. d. Section 307 (1) sentence 1 BGB

Regulations for the start of the period

The start of a preclusive period must be made dependent on the due date of a claim and not on the mere termination of the employment relationship.

According to a widespread opinion, a preclusive period may not begin regardless of the employee's knowledge.

Two-stage preclusive periods

Based on common collective bargaining agreements, a so-called two-stage preclusion period can also be agreed in employment contracts. A two-stage preclusive period is a preclusive period that is linked to the unsuccessful expiry of the first stage - the (written) assertion - and requires a lawsuit to be filed within a certain period, otherwise a claim has expired.

Individual contractual two-stage preclusive periods are generally considered to be permissible.

The minimum period for the judicial assertion of claims is 3 months.

The decision of the Federal Constitutional Court, according to which a two-stage collective bargaining deadline due to a violation of Art. 2 Para. 1 GG i. V. m. with the rule of law (here: requirement of effective legal protection) is ineffective, insofar as it imposes on the employee to sue for default wage claims with a corresponding cost burden before the outcome of his dismissal protection process, it applies only to individual contractual preclusion periods.

Other reasons for ineffectiveness

Violation of a legal prohibition

The extent to which individual contractual exclusion periods cover statutory, indispensable claims or whether this violates a legal prohibition ( Section 134 BGB) is controversial.

In some cases, it is argued that this is not permissible, even if the individual contractual preclusion period consists of reference to a collective agreement period.

No forfeiture of claims for damages due to deadlines in the event of willful damage (§§ 134, 202 BGB)

"According to § 202 Abs. 1 BGB, the statute of limitations for liability due to intent cannot be eased in advance by legal transaction . The regulation complements the general principle of § 276 Abs. 3 BGB, according to which liability for intent cannot be waived for the debtor in advance Section 276 (3) of the German Civil Code (BGB) is only fully effective through Section 202 (1) of the German Civil Code (BGB). The law aims to provide comprehensive protection against previously agreed restrictions on liability claims from intentional damage. Therefore, Section 202 (1) BGB does not only prohibit agreements on the statute of limitations , but also about deadlines. "

An exclusion clause is to be interpreted as to whether it should even cover claims for damages from willful breaches of contract and willful unlawful acts . If this is the case, an exclusion clause is null and void. In the opinion of the BAG, however, the clause is only "partially void", which is not intended to be a (circumvention of the prohibition) reduction in force.

§§ 2,3 NachwG?

A violation of the obligation to provide evidence according to the Evidence Act (NachwG) does not lead to the ineffectiveness of an employment contract limitation period. Possibly, however, to a claim for damages.

Compliance with the deadline

No need to adhere to the deadline

A preclusive period no longer has to be adhered to if the contractual partner has made the claim without dispute.

This is the case if the employer unconditionally (and without deductions) shows the employee's claims in a pay slip. A certificate of earnings to an authority is not sufficient for this.

First stage limitation period

Due date

If the preclusive period begins with the due date , this means - subject to any other effective regulation - a due date within the meaning of Section 271 sentence 1 BGB. In the case of the cut-off period, however, this due date is subject to a specific interpretation by the BAG. "The term of maturity is interpreted by the courts for labor matters, taking into account the creditor's level of knowledge and subjective aspects of attribution ... A claim is usually only due within the preclusive period when the creditor can approximately quantify it"

Assertion

Deadlines usually require assertion . That is more than a polite questioning: "To assert in the sense of collective deadlines includes asking the other side to fulfill a certain claim. The claimant must make it clear that he is the owner of a specific claim and insists on its fulfillment .. .. This presupposes that the reason for the claim is sufficiently clear and that the amount of the claim and the period for which it is pursued is made evident with the clarity necessary for the debtor .... The type of claim and the The facts on which this is based must be recognizable. "

written form

Deadlines usually provide for a written assertion. Compliance with the written form is then a requirement for effectiveness. Even with a written form required by the collective bargaining agreement, the BAG allows a text form within the meaning of Section 126b BGB to suffice. So not only a fax, but also an e-mail is in writing.

A deadline can also be asserted in writing by filing a lawsuit. According to previous jurisprudence of the BAG, the deadline, contrary to § 167 ZPO, is not only met by the receipt of the complaint by the court, but only when it is served on the defendant, i. H. the plaintiff runs the risk that the claim (or any other pleading) will only be served on the defendant after the preclusive period has expired.

This also applies to an action for protection against dismissal. However, the case law of the BAG on this is complicated and, at least in the case of the two-stage preclusion period, with regard to the decision of the Federal Constitutional Court cited above, is currently uncertain.

If the employer wants to assert claims for damages in writing within a preclusive period, deductions from wages on an unsigned pay slip are not sufficient

Access

An assertion of writing to safeguard an exclusion period, although no declaration of intent, but a business similar action, but it must similarly § 130 BGB go .

In the event of a dispute, the person who cites it must prove access.

Second stage preclusion period

The more recent jurisprudence of the BAG tends to make a dismissal protection suit sufficient for compliance with the second stage preclusion period for claims that depend on the effectiveness of the dismissed termination. For example, the BAG already saw an action for protection against dismissal as a required "complaint" and probably also a "judicial assertion" of claims for late payment.

In the past, the BAG only allowed a dismissal protection suit for the first stage. This leads to complicated questions about when exactly the second stage deadline starts.

The case law of the BAG is likely to change as a result of the above-mentioned decision of the Federal Constitutional Court. Until then, however, the previous complicated, dangerous and costly case law of the BAG should be observed. Details can be found in the special literature.

No unfaithful appeal to a deadline (§ 242 BGB)

According to Section 242 of the German Civil Code (BGB ) , it may be contrary to good faith to invoke failure to comply with a deadline.

This is particularly assumed if "the inaction leading to the forfeiture of the claim was caused by the behavior of the other party". This is the case, for example, if the employer has prevented the employee from filing a complaint in due time.

Procedural matters

In contrast to the statute of limitations, a preclusive period does not justify a mere objection , but a legally destructive objection that has to be considered by the court ex officio. If it is clear that a preclusive period is to be applied, it is part of the conclusiveness of the plaintiff's submission to present compliance with the preclusive period.

Individual questions

minimum wage

Exclusion periods for the assertion of minimum wages can only be regulated in a collective agreement that has been declared generally binding in accordance with Section 9 Clause 3 of the Employee Posting Act; the period here must be at least six months.

Vacation compensation entitlement

According to the established case law of the Federal Labor Court, agreed exclusion periods were not applicable to statutory and collectively agreed vacation because of the independent time regime to which it is subject.

After the partial abandonment of the surrogate theory in vacation law caused by the ECJ with the Schultz-Hoff decision , several state labor courts have now, contrary to the old case law of the BAG, affirmed the applicability of preclusive periods and allowed the appeal to the BAG.

In a ruling on August 9, 2011, the BAG determined that the entitlement to compensation for the statutory minimum leave after a long period of incapacity for work could expire due to statutory exclusion periods, since the entitlement to compensation is not a substitute for the holiday entitlement, but a pure monetary entitlement that does not exist differentiate more from other remuneration claims from the employment relationship.

In a decision of March 23, 2011, the BAG was able to leave open whether preclusive periods are also to be applied to the vacation entitlement, as the collective agreement provided for an "independent time regime" for vacation entitlements in the decision.

See also

literature

  • Eisemann, in: Wolfdieter Küttner: Personalbuch 2011 , keyword: Exclusion period , 18th edition. Beck, Munich 2011.
  • Thomas Dieterich u. a. (Ed.): Erfurt Commentary on Labor Law , 11th edition, Munich 2010, Publisher: CH Beck, ISBN 978-3-406-60876-6
  • Martin Henssler, Heinz Josef Willemsen, Heinz-Jürgen Kalb: Labor law comment . 2nd Edition. O. Schmidt, Cologne 2006, ISBN 3-504-42658-6 .

Individual evidence

  1. ↑ The current one is only valid until December 31, 2011. The successor collective agreement, which will certainly not contain any changes in this regard, has already been announced, cf. Archived copy ( memento of the original from September 24, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.gebaeudereiniger-berlin.de
  2. ↑ generally binding federal framework collective agreement for the construction industry of July 4, 2002
  3. ↑ See BAG, judgment of August 8, 1979 - 5 AZR 660/77 - AP No. 67 on § 4 TVG preclusive periods
  4. ↑ BAG, judgment of September 22, 1999 - 10 AZR 839/98 - NZA 2000, 551 (554)
  5. ↑ BAG, judgment of 6 May 2009 - 10 AZR 390/08 - Rn. 41f. - NZA-RR 2009, 593
  6. ↑ BAG, judgment of 6 May 2009 - 10 AZR 390/08 - Rn. 40 - NZA-RR 2009, 593
  7. ↑ See BVerfG, decision of December 1, 2010 - 1 BvR 1682/07 - NZA 2011, 354
  8. ↑ BAG, judgment of 23 September 2010 - 8 AZR 897/08 - Rn. 14th
  9. ↑ BAG, judgment of 23 September 2010 - 8 AZR 897/08 - Rn. 15th
  10. ↑ ZB BAG, judgment of January 11, 1995 - 10 AZR 5/94
  11. ^ Küttner / Eisemann, Personalbuch 2008, 15th edition 2008 / cut-off period, marginal no. 2 mwN
  12. ↑ BAG, judgment of September 28, 2005 - 5 AZR 52/05 - NZA 2006, 149 (153) with detailed justification and further evidence
  13. ↑ BAG, judgment of August 31, 2005 - 5 AZR 545/04 - NZA 2006, 324 (326) [29] with further references
  14. ↑ BAG, judgment of March 1, 2006 - 5 AZR 511/05 - NZA 2006, 783 (784)
  15. ^ So Lakies, NZA 2004, 569 (574); s. a. BGH, judgment of April 3, 1996 - VIII ZR 3/95 - NJW 1996, 2097 (2099)
  16. ↑ BAG, judgment of March 12, 2008 - 10 AZR 152/07 - NZA 2008, 699 Rn. 24
  17. ↑ BAG, judgment of May 25, 2005 - 5 AZR 572/04 - NZA 2005, 1111 = NJW 2005, 3305 Ls .; BAG, judgment of March 12, 2008 - 10 AZR 152/07 - NZA 2008, 699 Rn. 24
  18. ↑ See BVerfG, decision of December 1, 2010 - 1 BvR 1682/07 - NZA 2011, 354
  19. ^ So Küttner / Eisemann, Personalbuch 2008, 15th edition [2008] / Exclusion period, Rn. 6th
  20. ↑ BAG, judgment of May 25, 2005 - 5 AZR 572/04 - NZA 2005, 1111 (1112); according to BAG, judgment of September 28, 2005 - 5 AZR 52/05 - NZA 2006, 149 (151)
  21. ↑ See BAG [25. May 2005] - 5 AZR 572/04 - NZA 2005, 1111 (1112)
  22. ↑ BAG, judgment of November 5, 2003 - 5 AZR 676/02 - NZA 2005, 64 Rn. 19th
  23. ↑ BAG, judgment of September 28, 2005 - 5 AZR 52/05 - NZA 2006, 149 (153); also BAG [27. October 2005] - 8 AZR 3/05 - NZA 2006, 257 (258) Rn. 19th
  24. ↑ BAG, judgment of August 3, 2005 - 10 AZR 559/04 - juris Rn. 20th
  25. ↑ BAG, judgment of January 27, 2010 - 4 AZR 549/08 (A) - NZA 2010, 645 [Os.]
  26. ↑ Cf. Groeger, NZA 2000, 793 (795)
  27. ^ LAG Düsseldorf, judgment of August 9, 1999 - 18 Sa 575/99 - juris Rn. 60 ff.
  28. ↑ BAG, judgment of August 14, 2002 - 5 AZR 169/01 - NZA 2003, 158 (159); BAG, judgment of April 9, 2008 - 4 AZR 104/07 - NZA-RR 2009, 79 Rn. 55
  29. ↑ BAG, judgment of March 19, 2008 - 5 AZR 429/07 - NZA 2008, 757 (759 f.)
  30. ↑ See now BAG, judgment of May 18, 2010 - 3 AZR 373/08 - NZA 2010, 935 Rn. 31
  31. ↑ Good presentation in Küttner / Eisemann, Personalbuch 2011. 18th edition. Beck, Munich 2011: Exclusion period margin no. 25 ff.
  32. ↑ BAG, judgment of December 13, 2007 - 6 AZR 222/07 - NZA 2008, 478 Rn. 32
  33. ↑ BAG, judgment of December 13, 2007 - 6 AZR 222/07 - NZA 2008, 478 Rn. 32
  34. ↑ BAG, judgment of November 24, 1992, 9 AZR 549/91 , judgment of March 23, 2011 - 10 AZR 661/09 - Rn. 22 mwN
  35. ^ Federal Labor Court, judgment of August 9, 2011, 9 AZR 352/10
  36. ↑ BAG, judgment of March 23, 2011 - 10 AZR 661/09 - Rn. 22 mwN