September © Institut für Arbeitsmarkt- und Berufsforschung tungsbereich des Bundesrahmentarifvertrags für das Bau- gewerbe. Analysis. Court Judgment: Ordonnance de radiation de la Cour 22/10/, aff. /11 Bundesrahmentarifvertrag Bau (BRTV-Bau), Paragraphen und 8. The BRTV-Bau has made use of this faculty, both in how duration (30 .. 20 August , 31Mai , 17 Dezember , 5 Juni und

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Opinion of Advocate General Bobek delivered on 5 September Request for a preliminary ruling from the Arbeitsgericht Verden.


Under federal law in Germany, there must be at least 24 working days of paid annual leave per year. Earning less as a result of short-time work cannot, in principle, affect the calculation of the payment by an employer for annual leave.

However, parties to a collective agreement are entitled to derogate from those federal rules on leave. In the construction industry, working conditions are bundesrahmentarufvertrag by a specific framework collective agreement. But the calculation of the payment for annual leave takes into account reductions in earnings due to periods of short-term work. Mr Hein works in the construction industry. He took paid annual leave. In his view, the calculation of the remuneration he was paid for annual leave should not have taken into account any periods of short-time work.

This Directive lays down minimum safety and health requirements for the organisation of working time. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. Law on minimum leave entitlement for bnudesrahmentarifvertrag. Reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work shall not affect the calculation of the payment for annual leave The Federal collective framework agreement for the construction industry.

The duration of leave shall be determined by the number of days of employment completed in firms in the construction industry Days of employment shall include all calendar days on which employment relationships exist in firms in the construction industry during the leave year. The remuneration for annual leave shall consist of the payment for annual leave of It may be credited against additional holiday pay bundesrahmentarifvertrrag by the company.

At the end of the leave year, residual entitlements to remuneration for annual leave shall be carried over to the following calendar year. The first 90 hours lost in receipt of seasonal short-time working allowance shall be disregarded.

Facts, proceedings and questions referred. The employer introduced, through work agreements, short-time work for the months of August, September, October and November Inhe acquired 30 days of annual 201.

Mr Hein considers that for both years the periods of short-time work should not lead to a reduction in the entitlement to remuneration for annual leave. The latter provision and the collectively agreed rule based on it are in conformity with EU law.

The employer adds that it should be noted that in the revised version of the collective agreement the parties to that agreement did not reduce the number of days of leave that could be claimed where short-time work had been arranged beforehand. It nevertheless bujdesrahmentarifvertrag for previously arranged short-time work by increasing the amount of remuneration for annual leave.

It is within this factual and legal context that the Arbeitsgericht Verden Labour Court, Verden, Germany decided to bundesrahmetarifvertrag the proceedings and to refer the following questions to the Court:.

If Question 1 is answered in the affirmative: If the Court bundesrahmentarifverrrag this question in the negative: Is it compatible with EU law if, on the basis of national law, the national courts grant protection of legitimate expectations to employers who have relied on bundesrahmenntarifvertrag continued application of the case-law developed by the highest bundesrahmentarifvretrag courts, or is the grant of protection of legitimate expectations bundesrahmetarifvertrag for the Court of Justice of the European Union?

In this Opinion, I will first discuss, as a preliminary point, the consequences, if any, of the fact that the national rule in question is part of a collective agreement that derogates from the default national legislation on leave in order to take into account the specificities of the construction industry A.

Second, I will set out the minimum requirements that EU law provides for the right to annual leave, especially regarding remuneration for annual leave B. Third, I will examine whether, in the present case, EU law precludes the taking into account of short-time work to calculate the remuneration for annual leave C.

EUR-Lex – CJ – EN – EUR-Lex

A collective agreement in the construction industry. The construction industry has features which are bundesrahmentarifcertrag to it. That sector is subject to variations in work patterns over the year, notably due to changing weather conditions or economic hazards. Those variations in work patterns can make it rather complex to determine the duration of bundesfahmentarifvertrag leave and remuneration for annual leave.

Reductions in earnings occurring in the reference period as a result of short-time work are not considered in the calculation of the payment for annual leave. The BRTV-Bau has made use of this faculty, both in how duration 30 working days instead of 24 and remuneration for that annual leave are calculated.


The referring court has also asked its first question from the perspective that that legislative provision authorises social partners to derogate. I agree that on the formal level, it is indeed the Federal law on leave that could be seen as the primary source of potential incompatibility with EU law, to the extent that it has permitted parties to a collective agreement to depart from otherwise generally applicable national legislation.

However, leaving that aside, I fail to see what in fact could be assessed baau in the present case with regard to the Federal law on leave, since bhndesrahmentarifvertrag applicable rules in question are contained in the BRTV-Bau, for both key elements in the present case: It might be recalled that even if national rules have been drawn up and agreed by social partners, they do not escape the reach of EU law, bundesrahmebtarifvertrag long as, of course, they are materially within its scope.

The Court has already examined the substantive compatibility of a collective agreement with Bundesrahmentarifvetrag law in the past, including when that agreement derogates from national legislation.

The fact that the authorities of a Member State have not bundesrahmrntarifvertrag drafted the rules in the collective agreement is not material from an EU law perspective.

What matters is that those authorities have allowed for such rules, and made them part of the applicable legal rules in the given sector, bundesrahmentarifverrag would enforce them within their jurisdiction. Thus, in the present case, the Court is clearly competent to assess the substantive compatibility of the contested provisions of the BRTV-Bau with EU law.

However, although the rules in question do not escape the scope of EU law, the fact that they have been agreed in the form of a collective agreement by the social partners is, in my view, of relevance, albeit from a different angle.

EU law recognises the importance of social dialogue. Such agreements are an expression of the social dialogue. The sector specific rules contained in those agreements are likely to be endowed with an enhanced level of legitimacy because they are not unilaterally and generally imposed by public authorities, but have been negotiated by the relevant social actors, typically in view of the particularities of a given sector.

As a result, it may be assumed that collective agreements reflect an overall subtle balance between, on the one hand, the interests of the workers and, on the other hand, those of employers. If authorised by a legal system, collective agreements are unlikely to derogate from merely one or two elements of applicable national labour law. They tend to put in place rather more complex structures, incorporating a number of trade-offs and compensation.

Thus, the individual rules contained therein cannot be viewed in isolation, but as part of a package. Minimum requirements deriving from EU law for annual leave. As a preliminary remark, it is to be noted that EU law only provides for minimum protection of workers, including the right to annual leave. However, exactly what are the minimum requirements regarding the right to annual leave that must be fulfilled in order for national law, including collective agreements, to be compatible with EU law?

Should the amount of the remuneration for annual leave be too low, workers might be tempted bundesrahmehtarifvertrag to take their annual leave. In such a scenario, the right to annual leave could become devoid of substance.

These variations may render the calculation of annual leave more difficult, whether looking at its duration or at the remuneration of it, as attested by a number of cases dealt with by the Court.

First, regarding the consequences of sick leave on annual leave, the Court has made clear that the fact of having been on sick leave should not reduce the entitlement to annual leave. It follows that having fewer effective working hours due to sick leave has no bearing on the entitlement to annual leave.

With a certain degree of generalisation, it would thus seem that the remuneration for annual leave must be determined in the light of the overall remuneration actually received as consideration for the tasks effectively completed on a regular basis.

Third, as regards the impact of part-time work on the right to annual leave, the Court has applied, with reference to the EU framework agreement on part-time work, the pro rata temporis principle to the duration of annual leave in order to make it commensurate with the effective part-time work.

However, that principle cannot be applied ex post to a right to annual leave accumulated during a period of full-time work. In this way, the Court adapted the duration of annual leave to the work actually carried out by those workers. However, the Court has never applied the pro rata temporis principle to the right to remuneration for annual leave.

EUR-Lex Access to European Union law

It may nonetheless be noted that that principle may also have an impact on a number of certain benefits enjoyed by part-time workers. What follows from this line of case-law is that part-time workers are entitled to payment of an amount calculated pro rata on the number of hours actually worked.


Finally, in Greenfieldthe Court was confronted with the reverse scenario of an increase in working hours, not in the context of short-time work, but because of unforeseeable variations in working hours. In that case, there was a contract stipulating that the working hours differed from week to week. The Court held that the entitlement to minimum paid annual leave must be calculated by reference to the days and hours worked and specified in the contract of employment.

EU law only requires a new calculation for the subsequent period of work during which the number of hours worked had increased. In sum, it would appear that, in situations involving variations in the working hours due to a number of different events, annual leave is, in general, calculated on the basis of effective working hours.

This is notably the case in situations where the event giving rise to the variation is foreseeable or voluntarytypically because it is inherent in the type of contract at issue, for instance with regard to specific jobs or for part-time workers and certain short-time workers that can be assimilated to the former.

The rationale behind this exception is to ensure that an unforeseeable or unintentional event, such as work incapacity caused by sickness, does not unduly affect the autonomous right to annual leave, the purpose of which is very different to that of the right to sick leave.

Apart from this specific case, effective working hours, as opposed to theoretical ones, would appear to be the standard for the purposes of determining annual leave. The rule at stake in the main proceedings concerns the method of calculation of remuneration for annual leave, as laid down in the collective agreement in the construction industry, the BRTV-Bau. According to the referring court, the German rules on annual leave link the amount of the remuneration for annual leave to the earnings that the worker effectively received in the reference period.

It is on the basis of these actual earnings, themselves based on actual working hours, that the relevant hourly wage, which then serves to determine the overall amount of the remuneration for annual leave, is calculated.

Where there is continued short-time work over the entire reference period, the hourly wage during that period could even be zero.

Yet, the amount of the remuneration for annual leave must be at least as high as bay remuneration that the worker would have received if he had continued working as usual. The right to remuneration for annual leave is a true right to remuneration. In view of the advantages that the former offers, the inconvenience of a lower remuneration for annual leave appears to be negligible.

For instance, workers have 30 days of paid annual leave for a 5-day working week, instead of 24 days for a 6-day working week. The number of days to which the workers are entitled is not reduced if short-time work has been agreed.

In addition, calculation of the remuneration for annual leave includes overtime.

Moreover, in the periods of short-time work, although the obligations of the employee are suspended, the employee still receives a minimum tax free pay as set out by appropriate tables, which bundesrahmentarifvegtrag published annually by the Federal Government. The employer also continues to pay his social security contributions in full sickness insurance and pension contributions. Finally, periods of short-time work, which essentially aim to prevent economically-motivated dismissals, are foreseeable, because they have been decided through work agreements.

The German Government maintains that to calculate remuneration for annual leave on the basis of the gross wage effectively received over the period of reference, thereby taking into account the bundesrahmentarifvertrga in earnings due to short-time work, is compatible with EU law. The German Government claims that a rule, which seems to operate at the expense of a worker in one specific aspect, is part of a whole set of rules adopted by social partners that should be taken into account when assessing that rule.

The collective agreement should be presumed to be fair. The Commission recalls that the worker is entitled bunderahmentarifvertrag his normal remuneration calculated on the basis of an average over a reference period that is judged to be representative. There are no exceptions or derogations possible to that right. When a Member State grants more than four weeks of annual leave, it can freely set the conditions and decide, for example, whether to grant remuneration for days that have not been taken, and to decide the conditions under which it can occur.