A disadvantageous amendment of an individual contractually agreed remuneration in accordance with collectively agreed principles through a works agreement is not permitted. Press release no. 18/18 on BAG 11.04.2018 - 4 AZR 119/17

The plaintiff has been employed as a masseur in a retirement and care center of the defendant and its legal predecessor since 1992. In December 1992, the plaintiff and the legal predecessor of the defendant, which was not bound by collective bargaining agreements, agreed that the plaintiff would be paid in accordance with the Federal Employees' Collective Agreement (BAT) as amended. In February 1993, the legal predecessor of the defendant and the existing works council concluded a works agreement. According to this works agreement, "the provisions of the wage and remuneration collective agreement BAT of January 11, 1961 agreed for federal and state employees" were to apply in its area of application. This works agreement was also to become part of the employment contracts concluded before February 1993. The plaintiff signed a corresponding addendum to the employment contract. The defendant acquired the retirement and care center from the legal predecessor by way of a transfer of business and terminated the works agreement on December 31, 2001. In March 2006, the parties agreed in connection with an increase in working hours that the salary would be "increased to EUR 1,933.90 in accordance with the 0.78 position" and that "all other components of the existing employment contract ... remain unchanged". The plaintiff brought an action against the defendant before the labor court for payment of the difference in salary. He took the view that he was entitled to remuneration in accordance with the collective agreement for the public service in the version applicable to municipal employers (TVöD/VKA) or the collective agreement for the public service of the federal states (TV-L) on the basis of a reference in the employment contract. The defendant is of the opinion that there is no dynamic reference to the collective agreements referred to by the plaintiff.

The Essen Labor Court dismissed the claim. The Düsseldorf Regional Labor Court also did not follow the plaintiff's argument and dismissed the appeal.

The Fourth Senate of the Federal Labor Court ruled in favor of the plaintiff: The defendant is obligated to pay the plaintiff according to the respective pay scale of the TVöD/VKA. The remuneration agreement in the employment contract could not be amended by a collective regulation because the agreement on remuneration was not a general business condition, but an individually agreed regulation of the main performance obligation.

Conclusion: The BAG's ruling strengthens employees' trust in employers' collective wage promises. The ruling could be expensive for employers who have taken over municipal companies: In future, they will have to adhere to individual, outdated collective wage commitments for employees they have taken over, even if they themselves are not subject to collective bargaining agreements. An adjustment to the remuneration of employees taken over can only be achieved through a corresponding agreement in the employment contract. This in turn is likely to involve further concessions and a high administrative burden.