Collective agreement trumps works agreement – breakfast break stays!

Facts of the case

In addition to the statutory rest breaks, an additional 15-minute breakfast break with continued payment of remuneration was granted in a company. The relevant collective agreement, which applies on the basis of individual contractual reference to the employment relationship between the parties, contains, among other things, provisions on paid leave. After the breaks had been standard practice for many years, the employer and the works council concluded a works agreement on restructuring, which was intended to permanently discontinue the breakfast break with immediate effect. After that, this additional break was no longer remunerated and, as a result, was no longer taken. The employee took the view that a company practice could not be abolished by a works agreement and demanded credit for the withheld break times.

The decision

In the opinion of the Federal Labour Court, the works agreement is invalid. The additional 15-minute paid breakfast break, which had been granted for years, could not simply be abolished by the works agreement. The reason for this is that both parties are bound by collective agreements and the applicable collective agreement already contains corresponding provisions on time off work. The so-called regulatory ban under Section 77 (3) of the Works Constitution Act (BetrVG) states that working conditions that are regulated by collective agreements or are usually regulated cannot be made the subject of a works agreement. An exception exists if a collective agreement expressly permits the conclusion of supplementary works agreements, which was not the case here. A works agreement that violates the regulatory ban is invalid.

Consequences for practice

With its decision that works agreements on provisions already contained in collective agreements may not be concluded in companies bound by collective agreements, the Federal Labour Court has made important statements on the so-called regulatory ban and the primacy of collective agreements. The regulatory ban does not only apply if the provisions contradict each other in terms of content. It also applies to supplements or even agreements with identical content.

However, the prohibition does not apply to matters that are subject to the enforceable co-determination of the works council according to the catalogue in Section 87 (1) of the Works Constitution Act (BetrVG). In the present case, however, co-determination by the works council plays no role. At first glance, it appears possible to invoke Section 87 (1) No. 10 BetrVG for co-determination on the company's wage structure. However, the cancellation of the paid breakfast break does not constitute a change in the company's remuneration principles, but rather concerns the paid exemption from the obligation to work. The additional break does not increase the beneficiaries' assets, but merely grants them additional time off work.

Practical tip

Employers bound by collective agreements should check whether these new regulations are covered by collective agreements before making any changes to working conditions. Works agreements must be carefully coordinated to avoid overlaps and the risk of invalidity due to the primacy of collective agreements.

In addition, companies should also pay attention to the emergence of a so-called company practice. This refers to the regular repetition of certain behaviours on the part of the employer, from which employees can reasonably conclude that they are to be granted a benefit or privilege on a permanent basis (in this case: the granting of paid breaks). This behaviour is considered a contractual offer, which employees usually accept tacitly. This gives rise to contractual claims to the benefits that have become customary. This applies regardless of whether the company actually intends to commit itself.