BAG, ruling dated 18 March 2020, 5 AZR 36/19

FACTS OF THE CASE

The plaintiff is employed as a service technician in the field service. The defendant company is bound by the collective bargaining agreements of the wholesale and foreign trade of Lower Saxony due to its membership in the employers' association. The plaintiff drives from his home to the first customer every working day and returns there from the last customer.

According to the collective bargaining agreement (hereinafter referred to as "MTV"), all activities which an employee performs in fulfilment of his or her main contractual obligations are to be compensated with the basic remuneration agreed in the collective bargaining agreement. There is no explicit regulation on travel times. The collective bargaining agreement does not contain an opening clause in favour of deviating company agreements either. The plaintiff's employment contract contains a dynamic reference clause according to which the relevant collective bargaining agreements apply to the employment relationship.

In addition to the collective bargaining agreement, the defendant has had a company agreement relating to the "introduction and implementation of flexible working hours for service technicians" (hereinafter referred to as "BV") since 2001. The following is regulated in Para. 8 of the BV in regard to arrival and departure times:

"Journey times to the first and departure times from the last customer do not count as working time, if they do not exceed 20 minutes. As soon as the arrival or departure takes longer than 20 minutes, the travel time exceeding 20 minutes counts as working time. In this respect, the customer service technician can be reasonably expected to travel 20 minutes to and from the customer.”

In the lawsuit, the plaintiff seeks compensation or credit to the working time account in the amount of 68 hours and 40 minutes which he spent on arrivals and departures and which have so far gone unnoticed because they have not exceeded the 20 minute limit.

DECISION

Contrary to the previous instances, the Federal Labor Court (“Bundesarbeitsgericht”, hereinafter referred to as “BAG”) considers the action to be well-founded and sets aside the judgment of the Düsseldorf Higher Labor Court (“Landesarbeitsgericht”, hereinafter referred to as “LAG Düsseldorf”) - referring the case back for renewed hearing and decision.

Para. 8 of the BV does not - contrary to the view of the LAG Düsseldorf - supplant the provisions of the collective agreement. In this respect the tariff block of Para. 77 sec. 3 sentence 1 German Works Constitution Act (“Betriebsverfassungsgesetz”, hereinafter referred to as “BetrVG”) applies. According to the MTV, the BV excludes working time, which is subject to remuneration, from the obligation to pay remuneration.

If the employee carries out his work outside the company´s site, driving to the external workplaces is also one of the main contractual obligations. The economic objective of the plaintiff's employment is to visit customers - whether for services or business transactions. The related travel times must be seen as a unit with the service and therefore constitutes services subject to remuneration within the meaning of Para. 611, 611a German Civil Code (“Bürgerliches Gesetzbuch”, hereinafter referred as “BGB”) just like the actual service (see also BAG, ruling dated 17 October 2018, 5 AZR 553/17).

Irrespective to this question, the BAG then assesses the question of whether and how such distances have to be compensated. Thus, fundamentally deviating regulations in the employment or collective bargaining agreement are conceivable, up to the complete exclusion of remuneration as long as the remuneration for work performed does not undercut the rulings of the Minimum Wage Act (“Mindestlohngesetz”).

The defendant cannot invoke an exclusion of remuneration up to a limit of 20 minutes according to para 8 BV. The applicability of para. 8 BV would be opposed by the internal barriers of the BetrVG. According to para. 77 sec. 3 sentence 1 BetrVG, wages and other working conditions that are regulated by collective bargaining agreements or are usually regulated by collective bargaining agreements could not be the subject of a works agreement. The MTV regulates the remuneration for work performed comprehensively and conclusively. This would not have required an explicit regulation of travel times. An overall view of the regulations shows that a comprehensive regulation of the obligation to pay remuneration should be made.

The parties of the collective bargaining agreement have not provided an opening clause in favour of deviating works agreements. With para. 8 of the BV, the parties of the works agreement also pursued a regulation of the remuneration by removing times that fall below the 20-minute limit from the synallagma of performance and consideration and thus from the claim for remuneration of the plaintiff. Para 8 of the BV was therefore partially void pursuant to para. 139 BGB. This is also not contradicted by the fact that the regulatory matter of para. 8 of the BV is a matter of mandatory codetermination pursuant to para. 87 sec. 1 No. 10 BetrVG. The collective bargaining reservation of para. 77 sec. 3 sentence 1 BetrVG leads also in the area of application of para. 87 sec. 1 BetrVG to the invalidity of the regulation, which contradicts the collective bargaining regulation, since the defendant is bounded to collective bargaining agreements.

EVALUATION / PRACTICAL ADVICE

The case-law makes a fundamental distinction between periods completed by the employee "for his own benefit" and those completed in the exercise of his activity outside the company´s site. Periods completed for selfish reasons, such as the journey from home to the business, do not constitute work for the employer and don’t have to be remunerated. The situation is different for journeys to and from work in the exercise of the activity for the company. These must be remunerated (see BAG, ruling dated 17 October 2018, 5 AZR 553/17; ruling dated 18 March 2020, 5 AZR 36/19).

Employers have a great interest in exempting driving times, which cannot be passed on to customers, from the obligation to pay remuneration. In this context, the parties of the agreement often have opposing negotiating positions. The works council is interested in a remuneration as comprehensive as possible, whereas the employer wants to pay as little "idle time" as possible. The result is often a works agreement which - as in the case of the BAG - represents a compromise (20 minutes not to be remunerated, time in excess of this is remunerated or similar).

The BAG's decision is initially a case-by-case decision for the companies in the Federal State of Lower Saxony, which are subject to collective bargaining agreements. Nevertheless, companies in other states should also review the collective bargaining and works constitution regulations that apply to them. If there is a comprehensive regulation of remuneration in the collective bargaining agreement regulations without a corresponding opening clause for the parties to the company agreement, these cannot deviate from the collective bargaining agreement regulations by means of a company agreement. A comprehensive regulation can - in accordance with the BAG's case law - be assumed even if the travel times are not explicitly regulated, but an overall view of the regulations indicates that a comprehensive regulation has been made.

Against this background, when employment contracts refer to collective bargaining agreements, their provisions should first be reviewed by the employer bound by the collective agreement. According to the case law of the BAG, a corresponding collective bargaining agreement does not have to contain an explicit provision on travel times in order to make them nevertheless subject to remuneration. Depending on the frequency and quantity of the field staff deployed, considerable financial traps lurk here for employers bound by collective bargaining agreements.

The special feature of the decision is that the employer was bound by a collective bargaining agreement due to its membership in the employers' association and thus "existed" an opposing collective bargaining agreement pursuant to para. 87 sec.1 BetrVG. This characteristic is only fulfilled if the employer is bound by a collective bargaining agreement. This provision is in contrast to para. 77 sec. 3 BetrVG, within whose scope of application it is sufficient that the companies falls within the scope of application of a TV; tariff commitment is not required. In companies not bound by collective bargaining agreements, a deviating works agreement can therefore take place, as far as - as here - it concerns objects of the mandatory operational co-determination in accordance with para. 87 sec. 1 no. 10 BetrVG. An opposing collective bargaining agreement regulation does not "exist" then. The regulation block of para. 77 sec. 3 BetrVG does not apply ("priority theory" of the BAG and the prevailing doctrine, see Kania in Erfurter Kommentar zum Arbeitsrecht, 20th Edition 2020, para. 77 BetrVG, marginal no. 53).