Employees can be transferred abroad permanently
Companies can also send their employees abroad permanently, the Federal Labour Court ruled. But only if this has not been excluded in the employment contract or otherwise.
On the basis of his right of direction under the employment contract, the employer can instruct the employee to work at one of the company’s workplaces abroad if nothing to the contrary has been expressly agreed in the employment contract or impliedly under the circumstances. § Section 106 GewO does not limit the employer’s right to issue instructions to the territory of the Federal Republic of Germany. However, the exercise of the right to issue instructions in individual cases is subject to an equitable review under this provision.
Since January 2018, the plaintiff has been employed as a pilot by the defendant and its legal predecessor, both of which are internationally active airlines with their registered office in other European countries. The employment contract provided for the application of Irish law and a gross annual salary of 75,325.00 euros. On the basis of a collective pay agreement concluded by the defendant with the Vereinigung Cockpit (VC) trade union, of which the plaintiff is a member, he most recently earned 11,726.22 euros gross per month. The plaintiff’s place of station was Nuremberg airport. The employment contract provided that the plaintiff could also be stationed at other locations. Due to the decision to give up the home base at Nuremberg airport at the end of March 2020, the defendant transferred the plaintiff to its home base at Bologna airport with effect from 30 April 2020 by letter of 20 January 2020. As a precautionary measure, the defendant issued a corresponding notice of termination, which the plaintiff accepted subject to its social justification.
The plaintiff considered his transfer to Bologna to be invalid and essentially argued that the employer’s right to issue instructions under section 106 sentence 1 of the Trade, Commerce and Industry Regulation Act (GewO) did not cover a transfer abroad. At the very least, such a transfer would be unfair because he would be deprived of his entitlement to remuneration under the collective agreement and would also suffer considerable disadvantages in other respects. The defendant, on the other hand, said that § 106 sentence 1 GewO also permitted a transfer abroad, especially since the only alternative would have been termination of employment for operational reasons. The defendant’s decision was based on equitable discretion, all pilots stationed at the home base in Nuremberg had been transferred abroad, and there had been no vacant job at a domestic stationing location. In addition, it had complied with the procedure provided for in a “collective social plan regarding the closure/restriction of stationing locations” with the VC trade union.
The Labour Court dismissed the action. The Regional Labour Court, affirming the applicability of German law under Article 8 of the Rome I Regulation, dismissed the plaintiff’s appeal and held that the transfer of the plaintiff to the defendant’s home base at Bologna airport was effective under § 106 sentence 1 of the Trade Regulation Act.
The plaintiff’s appeal against this decision before the Fifth Senate of the Federal Labour Court was unsuccessful. Insofar as the Regional Labour Court affirmed the applicability of German law under Article 8 of the Rome I Regulation, the parties did not raise any procedural objections to this in the appeal and no reviewable errors of law were apparent. If – as in the case in dispute – a specific domestic place of work is not firmly agreed in the employment contract, but a company-wide possibility of transfer is expressly provided for, the employer’s right to issue instructions under § 106 sentence 1 GewO also includes the transfer to a foreign place of work. A limitation of the right to issue instructions to places of work in the Federal Republic of Germany cannot be inferred from the law. The Regional Labour Court did not err in law in assuming that the measure was in accordance with its equitable discretion and that it could be reviewed. The transfer was a consequence of the entrepreneurial decision to give up the home base at Nuremberg airport. The possibility of stationing the plaintiff there thus ceased to exist. The defendant has complied with the procedure agreed for such a case in the collective social plan concluded with the VC trade union. There were no vacancies at another domestic stationing location, an assignment as a “mobile pilot” was not possible, the plaintiff had not indicated a base preference, all pilots stationed at Nuremberg Airport were transferred to a location in Italy. The defendant’s instruction did not affect the content of the employment contract, in particular the remuneration under the employment contract. The fact that the plaintiff loses the claim to the higher remuneration under the collective agreement is due to the scope of the collective remuneration agreement agreed by the parties to the collective agreement, which is limited to the pilots stationed in Germany. In addition, the collective social plan provides that pilots who are transferred to a foreign stationing location continue to be employed under the working conditions applicable there, in particular the collectively agreed salaries there. It is also not inequitable within the meaning of sec. § 106 sentence 1 of the Trade, Commerce and Industry Regulation Act (GewO) if the defendant were to finance other disadvantages of the plaintiff, who does not want to give up his
Nuremberg, does not compensate financially for other disadvantages of the plaintiff connected with the transfer to a greater extent than is provided for in the social compensation plan. Because the plaintiff’s transfer was already effective on the basis of the defendant’s right to issue instructions, it was no longer relevant to the precautionary notice of change issued by the defendant.
Federal Labour Court, Judgement of 30 November 2022 – 5 AZR 336/21