Provisions in general terms and conditions may unreasonably disadvantage the employee if they are not clear and comprehensible (section 307 (1) sentences 1 and 2 BGB). Under the conditions set out in section 9 TzBfG, a part-time employee is entitled to the extension of his or her contractually agreed working hours.
The defendant, a company in the security industry, employs the plaintiff as an air traffic controller at Cologne/Bonn airport. The parties' form employment contract provides inter alia for the following regulation: "The employee is obliged to work an average of 150 hours per month ...". The generally binding collective agreement for the security industry in North Rhine-Westphalia of 8 December 2005 provides for a minimum working time of 160 hours per month for full-time employees. The plaintiff, who in the past worked an average of 188 hours per month, sought a declaration that his regular monthly working hours corresponded to the actual scope of employment; in the alternative, he demanded that the defendant increase his regular working hours. While the Labour Court upheld the main claim, the Regional Labour Court only ordered the defendant to accept the plaintiff's offer according to the alternative claim insofar as he demanded an increase of the working time to 160 hours.
The Ninth Senate partially restored the first instance decision. The working time provision in the employment contract is invalid because it is not transparent. It is not clear within which period the employer must employ the employee for an average of 150 hours per month. Therefore, the employee remains unclear about the scope of his employment. The invalid provision is replaced by the collective agreement provision on minimum working hours for full-time employees. This amounts to 160 hours per month. The plaintiff cannot demand a further increase in working time. This is because he is not employed part-time, as required by § 9 TzBfG.
Federal Labour Court, Judgement of 21 June 2011 - 9 AZR 236/10 - and parallel case
Previous instance: Cologne Regional Labour Court, judgment of 25 January 2010 - 2 Sa 996/09 -
Source: Press release of the BAG
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
