Transfer (German labor law)

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In German labor law in the private sector, a transfer is, according to the legal definition of Section 95 (3) BetrVG, the assignment of another work area that is likely to exceed one month or that involves a significant change in the circumstances under which the work is to be performed is. In the public service , a transfer is the assignment of a permanent job with another agency or another company of the same employer while continuing the existing employment relationship .

General

Transfers are personnel measures, just as hiring , training , further training , in- company training , employee evaluation , promotion , demotion , retirement and dismissal are personnel measures.

Organizationally, regularly having a dislocation a change jobs connected, which is characterized by altered work content , other tasks , a new place of work or other inclusion in the hierarchy can show.

Legal issues

In the legal assessment of a transfer, a distinction must be made between the law of the employment contract (individual labor law ) and the works constitution law ( collective labor law ).

Relocations are among the personnel measures or matters that require the co-determination ( consent ) of the works council ( Section 99 (1) BVG ) or staff council ( Section 75 (1) No. 3 BPersVG , Section 72 (1) LPVG NRW ). In the case of managerial staff , the speaker committee must be informed in good time ( Section 31 (1) SprAuG ). The legal definition of Section 95 (3) BetrVG understands the transfer to be "the assignment of another work area that is likely to exceed a month or that involves a significant change in the circumstances under which the work is to be performed". The work area includes the work task and the classification in the process of the company spatially, technically and organizationally. Not every change in the activity of a worker means their transfer. If the previous work area is expanded or reduced, for example by assigning or removing partial functions, without creating a task area that is fundamentally different from the previous one and thus a new area of ​​responsibility, then the work area is not changed. The withdrawal of a work task can, however, be a transfer if this task significantly shaped the overall picture of the activity. A change in type of employment is a transfer.

If, depending on the nature of their employment relationship, employees are not permanently employed at a certain job (e.g. in the construction industry or assembly ), the determination of the respective job does not count as a transfer. A change of place of work for more than a month, which is atypical for the employment relationship, is usually a transfer requiring co-determination. The change to a (different) branch , branch , branch or branch is usually a transfer. The mere change in the position of working hours is generally not considered a transfer within the meaning of the BetrVG.

The works council can also refuse consent within the framework of the reasons for refusing consent in accordance with Section 99 (2) BetrVG if the transfer is of benefit to the employee concerned, for example if a promotion harms the peace of the company. Denied council approval, which can employers a consent replacement procedures before the Labor Court apply. Before the works council gives its consent or if the works council refuses to give its consent, the employer can - if the prerequisites are met - carry out the transfer as a provisional personnel measure in accordance with Section 100 BetrVG.

In individual labor law, it must be checked whether the transfer is covered by the employment contract or not. The lawful, effective instruction under the employment contract must be followed immediately. If the instruction goes beyond the employment contract, the employment contract must be amended. This amendment to the contract requires the consent of the employee (amendment agreement) or with a change notice , if necessary with observance of the notice period . Many employment contracts contain so-called transfer clauses, according to which the employer can unilaterally change the employment contract, in particular the place of work. The legality of these clauses is judged according to the law of the general terms and conditions .

The working conditions are regularly described in general in the employment contract and the employer specifies them by means of work instructions within the framework of his right of instruction ("right of direction ") in accordance with Section 106 of the Trade Regulations (GewO). Any instruction must be in equitable discretion , regardless of whether it is a transfer. The employer must therefore weigh up his interests in the transfer against those of the employees or the interests of the employees against each other, for example by changing working hours due to family obligations due to daycare opening hours. The employer's discretionary discretion can be reviewed in court by means of an appropriateness review.

species

With regard to the hierarchy, a distinction is made between horizontal and vertical displacements . A horizontal move is a change of job at the same level; a vertical move is associated with an increase or decrease in the hierarchy. Vertical transfers in particular often result in further transfers within the organization ( internal recruitment ), so that in this case we speak of chain transfers . The gap that ultimately arises is then usually closed through new hires ( external recruitment ).

Transfers can be initiated by the employer if, for example, organizational changes take place ( reorganization ) or new positions or departments are to be created and filled. However, they can also be based on the employee if he applies for an internal job advertisement and is accepted.

There are also transfers with regard to the work task and spatial transfers with regard to the place of work. A task-related displacement against the will of the employee requires the compatibility with the job description of the employee and must be within the previous job description are. Relocation is permitted if the employment contract does not specifically limit the place of work to the current location. In the case of companies with a branch network in particular , the employment contracts usually do not provide for any restriction on the place of work.

Civil service law

According to Section 28 (1) BBG , a transfer is a permanent transfer of another office to another office with the same or a different employer . If the final basic salary is at least the same , the approval of the civil servant in accordance with Section 28 (2) BBG is not required.

Web links

Wiktionary: Displacement  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Protocol declaration No. 2 on § 4 Paragraph 1 TVöD
  2. ↑ Lexicon for daily works council work. Institute for the training of works councils KG, September 2, 2015, accessed on April 15, 2018 .
  3. ^ LAG Hamm, judgment of July 15, 2008, Az .: 14 Sa 1957/07
  4. ^ BAG, judgment of March 27, 1980, Az .: 2 AZR 506/78
  5. ^ Ulrich Büdenbender / Hans Strutz, Gabler Lexikon Personal , 1996, p. 380
  6. ^ BAG, judgment of November 14, 1989, Az .: 1 ABR 87/88
  7. ^ BAG, judgment of November 14, 1989, Az .: 1 ABR 87/88
  8. ^ BAG, judgment of April 11, 2004, Az .: 9 AZR 557/05
  9. ↑ BAG, judgment of 23 September 2004, Az .: 6 AZR 567/03
  10. ↑ Ruth Stock-Homburg, Personnel Management: Theories - Concepts - Instruments , 2010, p. 299
  11. ↑ Ralf Selig, Legal Problems of the General Equal Treatment Act (AGG) with special consideration of personnel recruitment , 2010, p. 89 f.