Favorability principle

In our legal system, there is usually a hierarchy of norms, i.e. a higher-ranking norm breaks a lower-ranking one. In labor law, however, the favourability principle applies in the event of a conflict

Definition / explanation

The principle of favourability was developed by case law in order not to disadvantage the employee in the event of a conflict of several legal norms in the area of labor law. This means that if there are two different legal norms, the one that is more favorable for the employee is decisive.

Even if this is the lower ranking one. The collective bargaining agreement makes a clear statement on this in Section 4 (3). To better understand this principle, three examples are briefly explained to you.

For example, the collective agreement stipulates 33 days of annual leave for the employee. However, the Federal Vacation Act, which is clearly a higher-ranking right, only grants the employee 24 working days. That is why the collective agreement applies in this case because it is clearly cheaper.

The BGB often contains different notice periods than those agreed in collective agreements. If the employee is better off with those from the collective agreement, the more favorable notice periods apply.

The employment contract contains a higher hourly wage than provided for in the collective agreement. In this case, the employment contract takes precedence over the collective agreement.

Comparison of benefits

In order to determine which is the cheapest alternative for the employee, three possibilities of comparison can be considered:

    Individual comparison - The individual regulations are compared with one another, such as pay, vacation, etc. Only the most favorable one applies.

    Group comparison - The regulations are summarized in groups and compared with one another. The cheaper group applies. Example: Regulations on performance remuneration and table remuneration belong together

    Overall comparison - Regulations of employment contracts, collective agreements and works agreements are compared with one another.

Summary

  • Protection of the employee in the event of conflicting legal norms
  • Lower-ranking legal norms violate higher-ranking law if the employee is in a better position
  • three types of comparison: individual comparison, group comparison and overall comparison
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