Welding is viewed as a construction industry
BAG, judgment from April 25, 2007 - File number 10 AZR 246/06
Reasons for the decision:
The defendant's appeal is unfounded.
I. The regional labor court has assumed that the action is admissible. It corresponds to the requirements of Section 253 (4) in conjunction with. Section 130 No. 6ZPO. Although the signature is illegible, it is complete. The secured authorship already results from the fact that the person authorized to sign for the plaintiff is recorded by name in the office of the labor court. It is not a question of a paragraph. Furthermore, the court did not object to this form of signature. The rule of law of the fair trial forbids it to criticize the inadequate signature in the appellate instance and to dismiss the complaint as inadmissible.
The action is also well founded. In both calendar years, the defendant's company as a construction company was subject to the operational scope according to Section 1, Paragraph 2, Sections II and V of the VTV. This results from the activities presented by the defendant himself. In any case, 15% of the operational working time, which was accounted for by construction work such as facade repairs, old building renovation, brickwork drying, blown-in insulation technology / attic insulation and interior renovation, was indisputably subject to the VTV. The welding of foil and the joining of foil to collect the fermentation gases occurring in sewage treatment plants, which the defendant according to his submission provide to 20%, is construction activity in the sense of the term. Section 1 Paragraph 2 Section II VTV. The sewage treatment plant is a building in the tariff sense. If the digester gases that occur are to be captured in the sewage treatment plant, the sewage treatment plant also has this purpose in any case. This is what the film welding and laying serve. The same applies to the work on the sedimentation basins specified with a further 20%, which the defendant is laying out with previously welded foils for the purpose of sludge digestion. The sedimentation basins are also structures. This means that 55% of operational activity is construction work in the sense of the VTV. The operation is structurally shaped. Foils are a construction work tool, because they are usually used to seal and isolate buildings and structures. The welding and laying of these foils are working methods in the construction industry. Laying rainwater collectors with foil in forests is also a construction activity in the sense of the art. Section 1 (2) Section V No. 36 and Section II VTV.
The decision of the Federal Employment Agency not to use the defendant's business for the winter construction levy is irrelevant.
II. The Senate follows this both in the result and largely in the justification. The action is admissible and well founded.
1. The regional labor court has rightly assumed that the action is admissible. It is duly signed by the employee of the ZVK on behalf of A (Section 253 (4) in conjunction with Section 130 No. 6ZPO). A signature requires individual lettering, which - without having to be legible - is a representation of a name and shows the intention of a full signature. In contrast, a lettering that appears as a deliberate and intentional abbreviation of a name (hand sign, paraphe) does not represent a formal signature. Whether a lettering represents a signature or just an abbreviation is judged by its external appearance. In view of the range of variation that even the signatures of one and the same person have, a generous standard must be applied if authorship is guaranteed (BAG January 28, 2004 - 5 AZR 32/03 - EzBAT SR 2 l I No. 3 BAT No. 18). This is the case because Ms. A is one of the persons authorized by the ZVK who are allowed to sign complaints. It would be desirable if the name of the person signing was indicated legibly next to or below the signature, but this is not a prerequisite for the formal validity of the signature. The name A can be found in the lettering. Obviously, it is not a question of a paraphor. The signature has an individual character and is also sufficiently indicative. The use of the abbreviation "i. A." does not harm, as the action could be brought by the party itself. In the party process, the actual existence of the power of attorney is sufficient. Only in the legal process would the signature "i. A." harmful, because it would express that the lawyer would only be a messenger without assuming responsibility (Zöller / Greger ZPO, 26th edition, § 130 marginal number 14).
2. The ZVK is entitled to payment of the required social security contributions in accordance with Section 18 (1) and Section 22 (1) VTV of December 20, 1999 in the version of December 10, 2002 for the 2003 calendar year and the version of December 17, 2003 for the 2004 calendar year. In both calendar years, the defendant's business as a construction business was subject to the operational scope of the VTV.
In its Section 1, Paragraph 2, it says on the operational scope:
"Companies in the building trade. These are all companies that fall under one of the following Sections I to IV.
Companies that build commercial buildings of all kinds according to their intended purpose, which is characterized by the type of operational activities, and according to their operational facilities.
Companies that, if not already covered under Section I, provide commercial construction services according to their purpose determined by the type of operational activities and according to their operational facilities, which - with or without the delivery of materials or components - the construction, repair, maintenance, Modification or removal of structures are used.
The establishments named in Sections I to III include, for example, those in which work of the type listed below is carried out:
1. Waterproofing work against moisture;
2. Renovation and drainage work, such as the drainage of land and land to be reclaimed, including trenching and machining work, the laying of drainage pipes and the construction of drainage and sluice systems;
10. Earthmoving work (road construction, amelioration, land reclamation, dike construction, torrent and avalanche barriers, sports facilities as well as the erection of noise barriers and side fortifications on traffic routes;
36. Civil engineering works;
40. Thermal insulation composite system work;
41. Waterworks construction, water conservation work, hydraulic engineering work (e.g. waterway construction, water basin construction, lock construction);
Establishments are not recorded
10. the acid building industry,
3. Whether construction work is predominantly performed depends on whether the majority of the employees' working hours are spent on such construction work. In contrast, economic aspects such as turnover or earnings or commercial or commercial law criteria, such as entry in the commercial register (st. Case law eg BAG January 22, 1997 - 10 AZR 223/96 - BAGE 85, 81) are not decisive. Companies that predominantly carry out one or more of the activities named in the examples in Section V fall under the operational scope of the VTV without the requirements of the general characteristics of Sections I to III having to be checked (BAG January 18, 1984 - 4 AZR 41/83 - BAGE 45, 11). The construction activities also include those ancillary work that is necessary for the proper execution of the construction work and is therefore related to it (BAG February 25, 1987 - 4 AZR 240/86 - BAGE 55, 78). The burden of presentation and proof that the defendant employer's operations were predominantly construction work is incumbent on the ZVK (BAG March 28, 1990 - 4 AZR 615/89 - AP TVG § 1 collective agreements: building no. 130).
4. The information that the defendant himself made about his operational activities is to be used as the starting point, since the ZVK has adopted these as its own. The regional labor court has rightly recognized that these activities are predominantly structural.
a) The defendant admits that 15% of the company's working time is spent on construction work such as facade repairs, renovation of old buildings, brickwork drying, blown insulation technology / attic insulation and interior renovation.
b) The defendant lays 20% of the rainwater collecting basins with foil in forests and places foil in the ground to prevent the ingress of pollutants. This work, which is 40% of the company's total working time, fulfills the characteristics of Section 1, Paragraph 2, Section V No. 41 of the VTV. This involves both water conservation work and hydraulic engineering work. Hydraulic engineering includes structural measures for the goals of water management, namely to protect against natural disasters, to minimize land losses, to avoid water shortages, to regulate the soil water balance, to reduce or prevent water pollution, to protect the landscape and to protect the environment, to generate energy Understand shipping, fishing and recreational concerns. Buildings created for this purpose include. Sewer systems and sewage treatment plants, waterworks and water supply systems, dams and flood retention basins, shipping routes and ports, etc. (BAG April 5, 2000 - 10 AZR 47/99 -; Brockhaus Encyclopedia 21st edition; also Peter Lexikon Bautechnik, each keyword "Hydraulic engineering") .
According to the defendant, rainwater collecting basins and the groundwater protection barriers also serve to protect water, forests and the environment. Contrary to his view, this does not exclude the structural character of the work, but justifies the characteristics of hydraulic engineering. The basins serve to protect the landscape by preventing pollutants from reaching the groundwater. By excavating the earth, a pit is created, which is then laid out by the defendant, sealed with it and thus preserved.
In any case, it is civil engineering work within the meaning of Section 1 Paragraph 2 Part V No. 36 VTV. Even if the defendant does not carry out the excavation and backfilling work himself, he still takes on an essential part of the construction of the basins and pits by making them impermeable. It is irrelevant that this is not done with solid building materials but with foils.
c) The regional labor court must also be followed in that the 20% of the activities performed when welding foils to collect the digester gases occurring in sewage treatment plants are structural services within the meaning of Section 1, Paragraph 2, Section II of the VTV.
aa) They are used for the creation, repair, maintenance or modification of structures. Buildings are somehow connected to the ground or, due to their own weight, resting on it, made of building materials or components with structural equipment (BAG November 15, 2006 - 10 AZR 698/05 -). The defendant does not question the fact that sewage treatment plants are buildings. If the escape of digester gases is to be prevented, then this serves the intended purpose of the sewage treatment plant. It is irrelevant whether the activities are required by building law or environmental law. The purpose of a building is determined by the client's wishes. Just as a house can be used without a terrace or balcony, the intended purpose is only achieved according to the client's specifications when these parts are attached. They are part of the building.
bb) It is also necessary that the establishment in question is structurally characterized. It must be worked with the materials, equipment and working methods of the construction industry (for the case law cf. BAG February 25, 1987 - 4 AZR 230/86 - BAGE 55, 67). This is the case. The regional labor court has rightly pointed out that foils are used as working materials in wide areas of the construction industry, for example for sealing work against moisture according to Section V No. 1 VTV, for insulating and insulating work according to Section V No. 9 VTV and for screeding work according to Section V No. 11 VTV (see BAG 27 October 2004 - 10 AZR 119/04 -). The welding and laying of these foils is also to be regarded as a working method in the construction industry in order to achieve the sealing purpose. This corresponds to the fact that in the regulation on vocational training as an insulator in the field of industry of August 27, 1979 (Federal Law Gazette I p. 1532) as part of the activities to be conveyed under the title "Working with plastics", bonding and welding and processing of plastic films are mentioned. The Senate has decided several times that the adhesive sealers are to be assigned to the construction industry. These work with foils, for example in the manufacture of flat roofs (September 22, 1993 - 10 AZR 401/91 -). Gluing is another typical method of assembling components. If tools and working methods are also used in other professions, this is harmless (BAG January 14, 2004 - 10 AZR 182/03 - AP TVG § 1 collective agreements: building no. 263).
d) The same considerations apply to the work on the sedimentation basins specified with a further 20% of the total working time, which the defendant lays out with previously welded foils for the purpose of sludge digestion. These structures, too, can only fulfill their purpose after they have been sealed with the foils welded and laid by the defendant. The fact that the pools serve environmental protection is irrelevant for their character as a building.
e) It does not matter whether the company was used to subsidize winter construction in accordance with Sections 209 ff. SGB III old version. However, reference should be made to the decision of the Federal Social Court of June 24, 1999 (- B 11/10 AL 7/98 - EzS 150/80), according to which insulation work by laying and welding foil strips is construction work in the sense of the case law of the Federal Social Court. A company that predominantly lined liquid manure and swimming pools with welded sheeting was regarded as an insulating company eligible for funding.
5. The regional labor court finally rightly recognized that the company is not excluded from the scope of the VTV in accordance with Section 1, Paragraph 2, Section VII, No. 10 of the VTV. It can be left open whether the defendant operated acid mining at all. In any case, nothing is stated that it is an industrial company. In the case of the defendant, the work is mainly carried out by hand according to the methods of the relevant craft in individual production in a smaller, less technical company (BAG July 22, 1998 - 10 AZR 204/97 - AP TVG § 1 collective agreements: Building No. 213 = EzA TVG Section 4 Construction Industry No. 92).
III. The defendant has to bear the costs of the unsuccessful legal remedy (Section 97 (1) ZPO).
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