What is personal effort
BAG, decision from June 23, 2010 - File number 7 ABR 103/08
A. The parties are arguing about whether the employer involved in 3) has to reimburse the applicant for the costs that the applicant incurred through the external care of her two underage children during her external works council activity.
The applicant was hired by the employer on February 1, 1999 as a warehouse worker and was most recently employed part-time for 87 hours per month. According to her employment contract, she is obliged to "allow herself to be transferred to another department or facility, if necessary, taking into account the principles of reasonableness" and "to work beyond the contractual or collectively agreed working hours as well as night, Sunday and public holiday work within the framework of the statutory and collective bargaining provisions Afford."
In 2005, the applicant was chairman of the works council involved in 2) at location G. At the same time, she was a member of the general works council established at the employer's headquarters in H. From June 20 to 22, 2005, she took part in a meeting of the general works council in H and then attended a works council meeting there from June 22 to 24, 2005. She also took part in a meeting of the general works council in H from July 19-22, 2005. The distance from their place of residence to H is over 500 km.
In addition to two children, who were eleven and twelve years old in 2005, the applicant has a daughter of legal age who also lives in the applicant's household. She had already looked after her two underage siblings in the past, but refused to do so for her mother's absences in June and July 2005, referring to her experience in earlier care. The applicant then had her two underage children looked after all day and overnight by Ms. W and agreed with her a daily flat rate of 30.00 euros per child. During the ten-day absence of the applicant, she incurred costs of 600.00 euros.
The applicant took the view that the employer must reimburse her for the costs incurred in looking after her children in accordance with Section 40 (1) of the Employment Act. Otherwise, she would suffer disadvantages that could hinder her from exercising her mandate.
The applicant has requested
to oblige the employer to pay her 600.00 euros plus interest at the rate of five percentage points above the base rate since pending lis pending.
The employer has applied for the application to be rejected. She took the view that childcare costs were expenses related to personal lifestyle and as such not reimbursable under Section 40, Paragraph 1BetrVG. It is up to the employee to organize his family and private life in such a way that he can fulfill his obligations in connection with the employment relationship and membership in the works council. If a works council member were to be reimbursed for the costs of childcare during an absence of several days due to the works council, this would constitute a preferential treatment prohibited under Section 78 sentence 2 BetrVG. Due to the transfer clause in the employment contract, she could also have deployed the applicant in another permanent establishment. The applicant would then also have had to look after her minor children without being able to demand reimbursement of the costs incurred as a result. In addition, the applicant could have avoided the costs if her adult daughter had supervised the siblings.
The labor court granted the application. The regional labor court dismissed him in response to the employer's complaint. With the appeal on points of law, the applicant and the works council request the restoration of the first instance decision. The employer requests that the appeal on points of law be rejected.
B. The admissible appeal is well founded. The regional labor court wrongly rejected the application. According to Section 40 (1) of the Employment Act, the employer is obliged to reimburse the applicant for childcare costs in the amount of 600.00 euros plus interest.
I. The application is admissible. The applicant is authorized to apply. In addition to the works council, individual works council members can also demand reimbursement of expenses incurred by the employer through their work as a works council member (BAG January 16, 2008 - 7 ABR 71/06 - Rn. 11 with further information, BAGE 125, 242 ).
II. Contrary to the opinion of the regional labor court, the application is well founded. The applicant can request the employer to reimburse the childcare costs that she incurred as a result of attending the meetings of the general works council and the works council meeting in June and July 2005. The entitlement follows from § 40 Paragraph 1BetrVG. Thereafter, the employer bears the costs arising from the work of the works council. This also includes the expenses of individual works council members caused by the performance of works council tasks. However, not all costs incurred in any way in connection with works council activities are to be borne by the employer. Rather, they must have been caused by the work of the works council. A works council member cannot demand reimbursement of costs that would have arisen even if the contractually owed work had been performed. If a works council member can only resolve a conflict of duties between his works council duties and other personal duties by means of a cost-generating measure, this alone does not lead to a claim for reimbursement against the employer. A claim to adequate reimbursement of costs can exist, however, if the duty to care for and bring up underage children, which is privileged by Article 6, Paragraph 2, Clause 1 of the Basic Law, collides with the fulfillment of the works council's duties. Such is the case here.
1. Pursuant to Section 40, Paragraph 1BetrVG, the employer bears the costs arising from the work of the works council. The same applies to the general works council in accordance with Section 51 Paragraph 1BetrVG. The costs to be borne by the employer include not only the expenses incurred by the committee. Rather, the employer has to reimburse individual works council members for the necessary expenses incurred by them in performing their works constitutional duties (BAG January 16, 2008 - 7 ABR 71/06 - Rn. 13 with further references, BAGE 125, 242). Works council activities include all activities of a works council member, especially with regard to his membership in the works council, in order to fulfill his duties specified in the Works Constitution Act, but also in other laws.
a) In principle, the employer has to bear all costs arising from the works council activity. Because of the prohibition of discrimination in Section 78 sentence 2 BetrVG, the individual works council member must not suffer any economic disadvantages through the fulfillment of his duties under works constitution law. The expenses must have been incurred by the works council member as a result of the works council activity. The employer therefore does not have to reimburse costs that the works council member would have incurred, regardless of his or her works council activity, also through the fulfillment of his contractual obligations (see BAG 28 August 1991 - 7 ABR 46/90 - on B II of the reasons, BAGE 68, 224 ; January 16, 2008 - 7 ABR 71/06 - Rn. 13, BAGE 125, 242). Otherwise, the works council member would benefit from his or her works council activity. This would be incompatible with the prohibition of beneficiaries also standardized in Section 78 sentence 2 BetrVG.
b) Not only the direct expenses such as the travel and accommodation costs incurred when performing external works council tasks are caused by the works council activity. Rather, this can also include costs that a works council member incurs because the performance of his works council activity collides with the fulfillment of another duty incumbent on him and he has to spend financial resources to resolve this conflict of duties. An obligation on the part of the employer to bear such costs cannot be denied simply by pointing out that the works council member who is in a conflict of duties could declare himself prevented in accordance with Section 25 (1) sentence 2 BetrVG (cf. that a works council member solely because of the claim parental leave is not prevented from exercising his works council office, BAG May 25, 2005 - 7 ABR 45/04 - to BI 2 c of the reasons, AP BetrVG 1972 § 24 No. 13 = EzA BetrVG 2001 § 40 No. 9). The fulfillment of works council tasks is not at the discretion of the individual works council members. Rather, they are legally obliged to do so and can be excluded from the works council in the event of a gross breach of their obligations pursuant to Section 23 (1) sentence 1 BetrVG.
c) Under Section 40 (1) of the Employment Act, however, not all expenses of an individual works council member that are somehow related to his or her works council membership do not fall. In particular, there is basically no entitlement to reimbursement of costs that can be assigned to the area of personal lifestyle (see BAG August 28, 1991 - 7 ABR 46/90 - on B II 1 of the reasons, BAGE 68, 224). An employee who takes on works council tasks must know that fulfilling them can conflict with personal obligations. Solving such a conflict is fundamentally not incumbent on the employer. The works council member can therefore not demand reimbursement of additional expenses from him in any case without the addition of special circumstances, which he incurs as a result of a conflict of duties caused at least personally.
d) If the fulfillment of the works constitutional tasks collides with the duty of a works council member to look after and look after underage children, however, the fundamental value decision in Article 6, Paragraph 2, Clause 1 of the Basic Law must be observed. According to this constitutional norm, the care and upbringing of children is "the natural right of parents and their primary duty." This parental right not only has the character of a fundamental right, but also a guideline function that binds the entire state order and thus also the courts (see BVerfG October 20, 1954 - 1 BvR 527/52 - to II 2 b of the reasons, BVerfGE 4, 52; BAG 18 December 2008 - 6 AZR 890/07 - Rn. 31, EzTöD 320 TVÜ-VKA § 11 Abs. 1 Nr. 14). The basic right anchoring of parental rights results in the state's obligation to enable and promote childcare in the form chosen by the parents. The state must ensure that parents are equally able to combine family work and gainful employment (BVerfG 10 November 1998 - 2 BvR 1057/91 et al. - on B I 4 of the reasons, BVerfGE 99, 216). This constitutional value decision must also be taken into account when interpreting and applying Section 40 (1) BetrVG. It stands in the way of an understanding of the norm, according to which it is the sole responsibility of the works council member to resolve the conflict between the obligations under the works constitution and the privileged duty to care for underage children under Article 6, Paragraph 2, Clause 1 of the Basic Law. Rather, the constitutional interpretation of § 40 Paragraph 1BetrVG means that a works council member can demand the reimbursement of (additional) expenses for the external care of underage children from the employer in a reasonable amount, if there is otherwise the conflict of duties between his statutory works council tasks and the fundamental rights in Article 6, Paragraph 2, Clause 1 of the Basic Law as well as the obligation to care, upbringing and supervision of children standardized in § 1626, Paragraph 1, § 1631, Paragraph 1 of the German Civil Code cannot reasonably be resolved (as a result, Hessian State Labor Court July 22, 1997 - 4/12 TaBV 146/96 - LOCATION § 40BetrVG 1972 No. 56; Däubler AiB 2004, 621, 625; DKK-Wedde 12th edition, § 40 marginal number 39; Fitting 25th edition, § 40 marginal number 43; Hunold NZA -RR 1999, 113, 116; HSWGNR-Glock 7th ed. § 40 marginal 38b; Kohte / Schulze-Doll online jurisPR-ArbR 8/2010 note 3 under C; Löwisch / Kaiser 6th ed. § 40 marginal no. 36; Richardi / Thüsing 12th ed. § 40 marginal number 10; WPK / Kreft 4th ed . § 40 marginal number 24; loc. Stege / Weinspach / Schiefer 9th edition, § 40 marginal number 24a).
e) This does not mean that a works council member could always demand reimbursement of the external support costs incurred during the works council activity from the employer. Rather, it is also necessary here that the costs were incurred precisely through the performance of works council tasks and would not have arisen if the contractual obligations had been fulfilled (see BAG August 28, 1991 - 7 ABR 46/90 - on B II of the reasons, BAGE 68, 224; January 16, 2008 - 7 ABR 71/06 - Rn. 13, BAGE 125, 242). The employer cannot therefore demand reimbursement of childcare costs for times in which the works council member would be obliged to work without fulfilling works council duties. The same applies to times when the employer could legitimately demand additional work from the works council member. Otherwise the works council member would be favored because of his office. This would violate § 78 sentence 2 BetrVG.
f) Finally, when deciding to charge the employer with the external care costs, the works council member must also take account of the employer’s cost issues. The employer's obligation to bear the costs according to § 40 Abs. 1BetrVG is subject to the requirement of trustful cooperation standardized in § 2 Abs. 1BetrVG (see BAG 25 May 2005 - 7 ABR 45/04 - to BI 4 a of the reasons, AP BetrVG 1972 § 24 No. 13 = EzA BetrVG 2001 § 40 No. 9; January 16, 2008 - 7 ABR 71/06 - No. 13, BAGE 125, 242). The works council is therefore obliged to only charge the employer with costs that it may consider appropriate in terms of the matter. He has to be careful to limit the costs caused by his activity to the necessary minimum. This obligation also applies to the individual works council member (BAG 25 May 2005 - 7 ABR 45/04 - to B I 5 of the reasons, loc. Cit.).
g) The appellate court's assessment of whether the costs incurred by the works council or a works council member were necessary for the performance of the statutory tasks is only subject to a limited review by the appellate authority. The concept of necessity is an indefinite legal concept, the application of which the appellate court has a margin of appreciation. In principle, this can only be checked in the appeals body to determine whether the court of fact misunderstood the legal term itself, violated laws of thought or general empirical principles or overlooked essential circumstances in the assessment (BAG 25 May 2005 - 7 ABR 45/04 - to BI 4 a der Reasons with additional information, AP BetrVG 1972 § 24 No. 13 = EzA BetrVG 2001 § 40 No. 9; see also January 20, 2010 - 7 ABR 79/08 - No. 14 with additional information, NZA 2010, 709).
2. According to this, the regional labor court wrongly rejected the application. The contested decision also does not stand up to the limited review under the law of appeal.
a) The regional labor court assumed that the external care of the applicant's two underage children during their absence due to the works council was not necessary within the meaning of Section 40 (1) of the Employment Act, because the children could have been cared for by the adult sister living in the same household. Their unwillingness to do this is irrelevant, since the standards developed for Section 6 (4) sentence 1 letter b ArbZG are to be used for the assessment and, accordingly, not the older sister's subjective willingness, but only her objective ability to care for the younger siblings is decisive.
b) The state labor court has thus misjudged the standard of examination. This leads to the annulment of the contested decision.
aa) However, a works council member may, for times: 23 absenteeism due to the works council, do not consider external care of his children, which burdens the employer with costs, to be necessary if a family member is willing and able to provide free care. However, contrary to the opinion of the regional labor court, there is no room for a corresponding application of Section 6 (4) sentence 1 letter b ArbZG. According to this provision, a night worker can request the transfer to a daytime job that is suitable for him if a child under the age of twelve lives in his household who cannot be looked after by another person living in the household and if there are no urgent operational requirements. The regulation applicable to the contractual relationships between night workers and their employer is not based on a general legal concept that would apply to the employer's obligation to bear the costs according to Section 40 (1) of the Act. The permanent change in employment contract obligations is not comparable to the cost of taking care of temporarily absent works council members.
bb) After the applicant's older daughter had seriously refused to look after her younger siblings during the applicant's absence, the single applicant was unable to fulfill her obligations under works constitution law without external care for her underage children, which would incur costs. Regardless of the validity of her reasons for refusal, the older sister had no legal obligation to care for her younger siblings, which the applicant could have relied on.
3. The Senate was able to decide on the matter itself in accordance with Section 563 (3) ZPO, Section 72 (5), Section 92 (2) sentence 1 ArbGG, as this is ripe for a final decision after the facts established by the regional labor court. The applicant is entitled to the asserted claim according to § 40 Paragraph 1BetrVG in terms of reason and amount. The childcare costs incurred by the applicant as a result of her participation in the general works council meetings in June and July 2005 and the works council meeting in June 2005 are the costs of her works council activities. The applicant considered it necessary to commission Ms. W to look after her children between the ages of eleven and twelve for a daily flat rate of EUR 30 per child during her absence and to charge the employer with these costs.
a) Participation in the meetings of the general works council was one of the legal tasks of the applicant in her capacity as a member of the general works council (cf. BAG April 29, 1998 - 7 ABR 42/97 - B II 4 of the reasons, BAGE 88, 322). The same applies to their participation in the works council meeting in accordance with Section 53 (1) sentence 1 BetrVG.
b) Due to her participation in the meetings of the general works council and the works council assembly and the associated absence, the applicant had (additional) expenses due to the external care of her two underage children. These expenses arose precisely from the works council activity. The applicant would not have incurred the expenses if she had performed her contractual duties. This also applies if it is assumed with the employer that she could have instructed the applicant to work overtime on the basis of her right to direct, during which it would also have been up to the applicant to look after her children without being entitled to reimbursement of costs. In the present case, the external care of the children was necessary because the applicant was absent overnight for several days in order to carry out her works council duties and, due to the distance of over 500 km, it was not possible for her to return home in the evening and take care of the care and supervision of her children take care of. Neither has it been demonstrated by the employer, nor is it otherwise apparent, that at its reasonable discretion (Section 315 (1) BGB), the single applicant could have sent the single applicant to work for several days without assuming G's costs.
c) The applicant was also allowed to take part in the meetings of the general works council and the works council meeting, taking into account the resulting costs. She was not obliged to regard herself as being prevented from participating within the meaning of Section 25 (1) sentence 2 BetrVG because of the associated costs for the employer.
d) The applicant does not have to bear the additional costs incurred by caring for her underage children. Taking into account the value decision of Article 6, Paragraph 2, Sentence 1 of the Basic Law, these are not expenses that can be assigned to the non-reimbursable area of personal lifestyle. Rather, the applicant found herself in a conflict of duties between her duties under the works constitution and the duty to care for her children, which was privileged by Article 6, Paragraph 2, Clause 1 of the Basic Law. She was allowed to resolve this conflict of duties by using a third-party caregiver at reasonable costs in favor of fulfilling her duties under the works constitution.
e) The applicant was allowed to consider the amount of the care costs to be reasonable. According to the findings of the labor court, she presented a certificate from District Office A dated August 1, 2007, that the care she had arranged by the "childminder" with the total cost of 600.00 euros for 10 days (30.00 euros per child and day) was the most cost-effective solution. The fact that the agreed flat-rate remuneration also includes times during which the applicant would have worked or during which the employer could have assigned her overtime does not preclude the necessity of the total costs. The daily flat rate was so low that the costs would not have been lower with hourly billing. The applicant has not spared any of her own supervision expenses. She has not achieved any pecuniary advantage through the lump sum.
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