Provisions in a works agreement which reduce the travel times subject to remuneration of a sales representative and other staff who regularly work outside of the office are invalid due to a violation of the collective bargaining block in sec. 77(3) sent. 1 of the German Works Constitution Act, if the times in question must be attributed to the paid working time in accordance with the provisions of the relevant collective bargaining agreement and are to be compensated with the basic remuneration under the collective bargaining agreement.
In the case on which the ruling is based, a sales representative demanded that all travel times to and from the customer, including the first and last journey, be credited to the working time account as working time, or alternatively, be counted towards his remuneration. The employer refused to do so, citing a works agreement in force in the company according to which journeys to and from the first and last customer under 20 minutes were not counted as working time. According to that works agreement, only travel times exceeding 20 minutes were to be considered working time. In this respect, the employer argued, 20 minutes of travel time were a reasonable inconvenience for the employee.
The employer was bound by the collective agreement of the wholesale and foreign trade sector of Lower Saxony (German: Tarifvertrag des Groß- und Außenhandels Niedersachsen) through its membership in the employers’ association.
While the lower courts had dismissed the action, the Federal Labor Court considered the appeal to be admissible and well-founded. According to the applicable collective bargaining agreement, all activities which an employee performs in fulfillment of his or her main contractual duty are to be compensated with the basic remuneration under the collective bargaining agreement. The times which a sales representative spends on journeys to and from customers in fulfilment of their contractually owed work obligations are to be included without exception in the paid working time and are to be remunerated with the collectively agreed basic remuneration. The collective bargaining agreement conclusively regulates the remuneration of employees’ work and does not contain an opening clause in favor of the parties to the agreement.
The exclusion of remuneration for 20 minutes of travel time to the first customer and from the last customer home, as provided for in the works agreement, affects the remuneration for work performed, which is conclusively regulated by the collective agreement. The wording of the relevant provision does not explicitly refer to the “remuneration” of certain working hours. However, a certain amount of working time in particular – up to 20 minutes of travel time to and from the first and last customer respectively – is not excluded from being working time by the provision. It is therefore not a regulation on the beginning and end of working time, but on the remuneration of certain travel times. The regulation in the works agreement thus violates the regulation block of sec. 77(3) sent. 1 of the Works Constitution Act.
In this context, the Federal Labor Court clarified that the regulation block was also not lifted by a mandatory co-determination right of the works council. Since the defendant is bound by the relevant collective bargaining agreement, which conclusively regulates the remuneration for work performed also with regard to travel times of the sales representatives, the works council has no right of co-determination in this respect.
In conclusion, the Federal Labor Court determined that the present ruling does not contradict an earlier ruling (Federal Labor Court ruling dated October 10, 2006 – 1 ABR 59/05) in which the Federal Labor Court denied that a violation of a provision in a works agreement against the bargaining block to the employee’s disadvantage existed. In the case to be decided at the time, the provision in a works agreement which was the subject of the dispute did not concern a matter which was conclusively regulated by a collective bargaining agreement – quite the contrary to what had happened in this case.