The operating agreement is a contract between the employer and the works council, but the reason is not only the rights and obligations of these operating parties, but also ( like a law or collective agreement ) sets out binding standards for all employees of a company.
The term of the operating agreement in the German labor law is not defined in the Act. The labor lawyer Wolfgang Däubler it as a kind of " collective agreement in miniature ". The Works Constitution Act sets this legal institution governing the employer and the works council, the operational and operational constitutional order and individual legal relations between employers and workers, as yet ahead. It assigns ( the same wording as the corresponding provisions of § 4 TVG ) the direct and binding effect of the operating agreement ( = " normative effect " ) for the benefit of employees of an establishment to ( § 77 paragraph 4 sentence 2 WCA). Only to the extent an individual contract for the employee favorable provisions are agreed, this agreement before the operation ( favourability ).
In the public sector, the scope of the staff representation rights corresponding agreements between Staff and service are referred to as service agreement.
The territorial scope of an operating agreement, the respective operation for which it was completed. The Group and operating agreements shall apply, if at all, a responsibility of the entire or the Group Works Council consists, company or group- wide. § 50 Section 1 Sentence 1 2nd clause Works Constitution Act provides that the general works within its jurisdiction, and establishments of a company represents, who have not elected a works. This can be seen as a concern, because the general works lack the democratic legitimacy of representation of the local workforce.
Personally, operating agreements apply to all employees of the establishment, where it does not matter whether the employment relationship had already existed at the time the operating agreement. Employer and the works but it is in principle free to agree operating agreements with a limited personal scope ( for individual departments or groups of employees ). Since § 5 paragraph 3 WCA expressly excludes from the scope of Officers of the Works Constitution Act, see operating agreements do not apply.
Contents of an operating agreement may be all issues where the council have a statutory right of participation. Distinction must be made between enforceable operating agreements and voluntary collective agreements. A compulsory employee participation law has that with a lack of agreement between the employer and the works council of the award of the conciliation shall take the place of the operating agreement parties in all matters in which the law expressly provides the works. The core area of this enforceable regulations is the participation in social issues gem. § 87 WCA. They also include the economic participation rights ( § 111 to § 112a WCA), which give the works council under legally defined circumstances, the right to demand from the employer in case of any changes to the completion of a social plan. In these cases, the employer is a matter not settle without the works. They do not agree, both sides can call the conciliation board. Their decision ( " spell " ) then has the effect of operating agreement.
But if already a ( final ) statutory or collective agreement is in so far as such matters or matters even usually in the context of collective agreements are regulated, they can not be subject to an operating agreement. Unless the collective agreement expressly allows ( supplementary) Operational rules shall be ( clause ). For example, an operating agreement for the amount of compensation or for the duration of the working week is basically void because it violates this blocking effect of the " Tarifüblichkeit " of § 77 para 3 WCA. According to the area of social participation. § 87 WCA (ie, for example, questions of the distribution of daily and weekly working hours) are operating agreements but only inadmissible if a collective agreement is directly and necessarily applicable to the operation, so at least the employer is bound tariff. Mere " Tarifüblichkeit " is not enough here to exclude the possibility of control by operating agreement, if 87 I Input sentence WCA against § 77 III WCA recognizes after the ruling theory priority § lex specials. The so-called two - barrier theory can also contrast mere Tarifüblichkeit sufficient, since, according to this view, the two standards side by side with equal rights, § 77 III WCA is therefore applicable.
Relation to employment
An operating agreement is normative and mandatory for workers. Any other contractual employment agreements are, however, only if they are more favorable to the employee than the operating agreement ( indicated by § 28 II p 2 SprAuG ). This favourability is thus secured that individual contractual waiver of claims under an operating agreement effective only with the consent of the works council (§ 77 para 4 WCA). However, it remains to consider were, whether an operating agreement may withstand a "collective Günstigkeitsvergleich " (BAG ). This is true if all of the workers is not worse off by the operating agreement. Requirement is that it is in the regulation is a benefit of the employer, which is quantitative and quantifiable collective reference has.
Relation to collective agreements
In a collision between provisions of a collective agreement and an operating agreement, however, is not the most favorable for the application. Rather, the principle of collective primacy. After the determination of § 77 para 3 WCA " working conditions, which are governed by a collective agreement (...) not be subject to an operating agreement. " Can Only through a so-called clause in the collective agreement of the completion of additional operating agreements is possible. This has the consequence that an operating agreement, for example, contains a provision relating to a year-end bonus, is ineffective when operating in a collective agreement applied, which also contains a provision for payment of a year -end bonus. This is true even if the collective agreement is less favorable than the ( ineffective ) operating agreement. Also ineffective are agreements in an operating agreement, if they are only common tariff ( § 77 para 3 WCA). The most common example of this is the collision of an operating agreement with a collective agreement after-effects.
Existence and form
Operating agreements come about by matching decisions by the employer and the works council. On the part of the Works an effective resolution of the entire body is always required. The agreement only about the works council chairman is not enough. Because of the notice required for the effectiveness of operating agreements must be in writing and signed by the employer and the works council chairman on a certificate. Under certain circumstances, operating agreements may also retroactively be put into effect (even to the detriment of workers) when doing the banning of " genuine retroactive effect " is observed.
In contrast to the operating agreement, a so-called " control agreement " informally (including oral) be agreed. However, a control agreement unfolds none of the operating agreement comparable legislative effect. In contrast to the operating agreement but the scheme can deny not only general ( collective ) contain provisions but also individual.
The implementation of the operating agreements rests exclusively with the employer. The works council has no authority in the field of co-determination, subject matters, to interfere in the management of the establishment. However, the council may enforce its claim that the employer abides by the operating agreement and does it for you by putting in a labor court decision procedure. Serious offenses may require the employer to refrain from carrying out a collective adverse operating agreement under the law of the Federal Labour Court also a union.
The operating agreement is terminated by
- A subsequent operation agreement on the same subject ( " collision time " rule ),
- Termination ( absent an agreement: notice period of three months),
- Time when it has been temporarily closed, or
- Termination agreement.
After its completion, the operating agreement looses its binding effect, but in the field of enforceable co-determination to act according to ( § 77 para 6 WCA). This means that their rules continue to apply until they are replaced by another agreement, the case law under the term " other arrangement" also understands redeploying individual contract. Since the binding effect eliminated with the termination, including less favorable individual contractual arrangements are permitted in the aftermath period. But volunteers operating agreements produce no aftereffect, unless the aftereffect would be expressly agreed in the contract.