Federal Labour Court, 16.04.2014, Ref.: 4 AZR 745/13
With the designation "Collective agreement for the public sector (TVöD)TVöD" refers to several collective agreements for employees in public administration organisations. The TVöD came into force on 1 October 2005 and replaced the Federal Employees' Collective Agreement (BAT).
The pay groups of the TVöD are shown as E 1 to E 15. Pay group E 1 is the lowest and pay group E 15 the highest group to be categorised. Public sector employees are categorised into one of the 15 pay groups when they commence employment.
Although the pay group is included in the employment contract, the public sector employee is generally not entitled to the pay group specified in the employment contract. The reason for this is the so-called automatic pay scale in the public sector.
In accordance with this automatic pay scale, the grouping inevitably follows from the respective activity of the employee. As a result, employees may be entitled to a higher grouping if their activities are expanded or for other reasons (although there is also the possibility that an employee will be downgraded).
If an employee is of the opinion that he or she is grouped too low, he or she can apply for a higher grouping and, if necessary, file an action to determine the grouping. The onus is on the employee to demonstrate and prove that their job fulfils the requirements stipulated by the job characteristics of the respective remuneration group.
In the Federal Labour Court case mentioned above, the court had to decide whether the manager of a day care centre was entitled to a higher pay grade.
Facts of the court case:
Plaintiff was the manager of a day care centre
The plaintiff was a social education worker and had been employed since September 1992 as head of the day care centre L by the defendant city, which was a member of the Bavarian Municipal Employers' Association (KAV).
The provisions of the collective agreement for the public sector for employees in the social and educational services (TVöD-BT-V) as amended by the Federation of Municipal Employers' Associations (VKA) applied to the parties' employment relationship.
Until 2009 and again from 2011, the plaintiff received remuneration in accordance with pay group S 15 TVöD-BT-V/VKA. In 2010, she received remuneration in accordance with pay group S 13 TVöD-BT-V/VKA, as fewer than 100 children, namely only 91 children - including three with disabilities - had been cared for in the day care centre she managed in the period from October to December 2009; no further children were registered.
An integration recommendation from the defendant city - "Planning steps for the admission of children with (potential) disabilities to day care centres in the city of A" - provided for a staggered reduction in the number of children in care for therapeutic and educational reasons if children with disabilities are admitted to the day care centre, e.g. if three to five children with disabilities are cared for, the number of children is reduced by ten.
Plaintiff sues for difference in remuneration between pay groups S13 and S15
After unsuccessfully asserting her claim, the plaintiff filed an action for payment of - arithmetically undisputed - monthly differences in remuneration between pay groups S 13 and S 15 TVöD-BT-V/VKA for the period January to December 2010.
It took the view that the number of children in the day care centre had been reduced in accordance with the integration recommendation of the defendant city. According to these guidelines, only a maximum of 90 children should have been admitted. Since three children with disabilities were also cared for in the integrative day care centre and at least two places were allocated, the required occupancy figures in the reference period of the fourth quarter of the previous year had to be adjusted not only for quality assurance, but also for therapeutic and educational reasons.
As a result, an average of at least 97.5 occupied places had to be assumed. In addition, the administrative district S had stipulated that an additional "counted child" should be calculated for each child with a disability, so that three places should be taken into account and calculated for this child.
Labour court and regional labour court dismissed lawsuit
The lower courts dismissed the claim. With the appeal allowed by the Regional Labour Court, the plaintiff pursued her claim further.
Federal Labor Court judgment:
The Federal Labour Court also saw no entitlement to a higher grouping
The Federal Labour Court followed the view of the lower courts and has now ruled that the plaintiff's appeal is also unsuccessful. The plaintiff was not entitled to remuneration in accordance with pay group S 15 TVöD-BT-V/VKA in 2010.
The collective agreements for the public sector in the area of the VKA would apply to the employment relationship between the parties. The classification of employees in the social and educational service in a children's centre as a dependent part of the municipal administration in accordance with Section 56 TVöD - Special Part Administration - (TVöD-BT-V) in conjunction with the associated Annex (Annex to Section VIII Special Regulations VKA to Section 56) would be based on the characteristics of the Annex to "Annex C (VKA)".
In deviation from § 15 Para. 2 TVöD, these employees received remuneration in accordance with Appendix C (VKA), to which they were transferred on 1 November 2009 in accordance with the provisions of § 28a TVÜ-VKA. As long as the TVöD does not yet contain its own classification regulations in Sections 12 and 13, Section 22 BAT continues to apply in accordance with Section 17 (1) sentence 1 TVÜ-VKA (see BAG 12 December 2012 - 4 AZR 199/11 - para. 29 with further references; 11 December 2013 - 4 AZR 493/12 - para. 12).
No entitlement after application of the TVöD-BT-V/VKA grouping regulations
Applying the grouping regulations of the TVöD-BT-V/VKA, the plaintiff would not have been entitled to remuneration in accordance with pay group S 15 TVöD-BT-V/VKA since 1 January 2010 and therefore also not entitled to the corresponding remuneration differences for the months of January to December 2010.
- The relevant tariff standards would be as follows:
"S 7
- Employees as managers of day-care centres.
(Declaration of protocol no. 8)
S 13
- Employees as managers of day-care centres with an average occupancy of at least 70 places.
(For this purpose, protocol declarations no. 8 and 9)
S 15
- Employees as managers of day-care centres with an average occupancy of at least 100 places.
(For this purpose, protocol declarations no. 8 and 9)
Statements for the minutes:
- Day care centres within the meaning of this tariff feature are crèches, kindergartens, after-school care centres, childcare centres, children's homes and day care facilities run by local child recreation services.
- The calculation of the average occupancy for the respective calendar year is generally based on the number of places allocated from 1 October to 31 December of the previous calendar year that can be occupied simultaneously per day. A shortfall of no more than 5 per cent of the relevant number of places that can be occupied simultaneously per day does not lead to a downgrading. A shortfall due to measures for which the employer is responsible (e.g. quality improvements) also does not lead to downgrading. Organisational measures due to demographic necessities remain unaffected by this."
- In 2010, the plaintiff's work did not fulfil the requirements of pay group S 15 TVöD-BT-V/VKA. In the relevant reference period from 1 October to 31 December 2009, the day-care centre L managed by her, with an average occupancy rate of 91 places, would no longer count as a day-care centre within the meaning of pay group S 15 TVöD-BT-V/VKA, even taking into account the scope for deviation pursuant to No. 9 sentence 2 of the protocol declaration of the Annex to Appendix C TVöD-BT-V/VKA. pay group S 15 TVöD-BT-V/VKA.
According to the provisions of the collective agreement (for the standards of interpretation of the normative part of a collective agreement, see e.g. BAG 28 January 2009 - 4 ABR 92/07 - para. 26 mwN, BAGE 129, 238), only the number of places actually occupied is decisive. The collective agreement does not provide for multiple counting of children in certain groups.
Pay grade S15 is linked to the occupancy of at least 100 places
According to the wording of the collective agreement, the pay scale for the management of day-care centres - which, according to Protocol Declaration No. 8 of the Annex to Appendix C TVöD-BT-V/VKA, includes the day-care centre in L without further ado - is based exclusively on the number of places allocated, e.g. for pay group S 15 TVöD-BT-V/VKA on the average occupancy of at least 100 places.
To determine this average occupancy, the number of places that can be occupied at the same time in the reference period (1 October to 31 December of the previous year) is to be used for the respective calendar year in accordance with Protocol Declaration No. 9 of the Annex to Appendix C TVöD-BT-V/VKA.
In Protocol Declaration No. 9 of the Annex to Appendix C TVöD-BT-V/VKA, the parties to the collective agreement had based the calculation on the "places that can be occupied simultaneously per day". With this flat-rate approach, they would assume that the requirements for the management of a day care centre and thus the collectively agreed value of the relevant activity increase the more children are cared for in the centre at the same time.
Tariff regulation excludes double counting and fictitious calculation
However, the tariff regulation not only excludes a double counting of places that are allocated to other children in the morning and afternoon, but also a fictitious calculation that is not based on the places actually allocated.
In the interests of clarity and manageability of the classification regulation, this standardising and flat-rate regulation in the collective agreement refrains from taking other circumstances of the individual case into account when determining the relevant average occupancy rate. The collective agreement standard does not mention any other criteria that could affect the classification of the management of a day care centre
Contrary to the opinion of the appeal, deviating assessment standards from other, non-tariff regulations would not change this calculation method.
A possible double counting due to municipal or federal state regulations that - for pedagogical or other reasons - formulate minimum requirements for the staffing of a day-care centre and, if applicable, take children under the age of three (cf. in this respect BAG 11 December 2013 - 4 AZR 493/12 - para. 18) or children with disabilities - such as the integration recommendation of the defendant city - into account twice, could not be transferred to the collective bargaining assessment and calculation standards. The provisions of the collective agreement would not be based on this.
Contrary to the plaintiff's opinion, a possible instruction of the S administrative district on the calculation of staffing levels, which would result in a different counting method for the care of children with disabilities, is therefore irrelevant for the collective agreement evaluation and classification.
There is also no harmless undercutting of the average occupancy rate within the meaning of Protocol Declaration No. 9 sentence 3 of the Annex to Appendix C TVöD-BT-V/VKA. There was no measure taken by the defendant within the meaning of the collective agreement.
According to the third sentence of Protocol Declaration No. 9 of the Annex to Appendix C TVöD-BT-V/VKA, a shortfall due to measures for which the employer is responsible (e.g. a "quality improvement") does not lead to a downgrading. However, according to sentence 4 of Protocol Declaration No. 9 of the Annex to Appendix C TVöD-BT-V/VKA, organisational measures due to demographic necessities remain unaffected by this.
The defendant had also not taken any organisational measures to reduce occupancy rates
The plaintiff had not shown that the shortfall in the required average occupancy was the result of a measure for which the defendant was responsible, in particular a measure to improve quality. What such a measure aimed at changing the existing situation and initiated by the defendant should consist of cannot be inferred from the plaintiff's submission. The mere admission of children with disabilities would not constitute such a measure.
In addition, only 91 places were occupied on average during the reference period and the admission of children with disabilities did not lead to the rejection of further children. This also suggests that the defendant had not taken any specific organisational measures to reduce the (average) occupancy figures.
Source: Federal Labor Court
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