How did seafarers use dead reckoning

BAG, judgment of December 15, 2009, 9 AZR 795/08


FEDERAL LABOR COURT


9 AZR 795/08
7 Sa 4/08
State Labor Court
Hamburg

 

In the name of the people!

Announced on
December 15, 2009

JUDGMENT

Brüne,

Clerk

the office

In terms of things

Plaintiffs, appellants and appellants,

pp.

Defendants, appellants and defendants on appeal,

the Ninth Senate of the Federal Labor Court on the basis of the oral hearing on December 15, 2009 by the presiding judge on
 


- 2 -

Federal Labor Court Düwell, the judge at the Federal Labor Court Gallner, the judge at the Federal Labor Court Reinfelder and the honorary judges Faltyn and Dr. Strong recognized for right:


On the appeal of the plaintiff, the judgment of the Hamburg Regional Labor Court of June 5, 2008 - 7 Sa 4/08 - is partially overturned and the main ruling is entirely revised for clarification:


On appeal by the plaintiff, the judgment of the Hamburg Labor Court of December 11, 2007 - 1 Ca 207/07 - is partially amended.


The defendant is sentenced to increase the plaintiff's leisure account by 20 days as of January 1, 2007 and to change the plaintiff's earnings statements since January 2007 with regard to the leisure account accordingly.

Otherwise, the plaintiff's appeal is rejected.

The plaintiff has lost the further appeal.

The plaintiff has to bear 73% of the costs at first and second instance, the defendant 27%. The plaintiff has to bear 81% of the costs of the appeal proceedings, the defendant 19%.


By law!

Offense

The parties dispute the amount of the plaintiff's leisure account and the change in his earnings statements.

The plaintiff has been the captain of a salvage crane for the defendant since 1996. The rescue crane is stationed in B. The collective wage agreement for German shipping as amended on August 24, 2005 (MTV-See) is to be applied to the engagement of the parties by virtue of an individual contractual agreement.

The MTV-See reads in extracts:

"§ 22 Vacation Entitlement


(1) Employees are entitled to paid leave.


(2) The entitlement is acquired per calendar month. For parts of months, the entitlement is to be determined proportionally, whereby the month is calculated with 30 days; Fractions are to be carried forward. When starting the vacation and ending the employment relationship, fractions that add up to at least half a day are rounded up, other fractions are not taken into account.

...

(5) If the employees are on board, are on the way to or from the airport, or if they are on call on the instructions of the shipowner, they acquire a total vacation entitlement. This is made up of the annual vacation and the compensation for Saturdays, Sundays and public holidays during the times according to sentence 1. The total vacation entitlement covers all entitlements to vacation and for Saturdays, Sundays and public holidays - also for young people. The entitlement is per month:

1. 11.5 days of vacation in the 1st to 5th year of employment;

2. in the 6th to 10th year of employment, 12.5 days of vacation;

3. From the 11th year of employment, 13.5 days of vacation.

...

(6) If the employees are doing service on land, if they take part in a military exercise, in a training and / or further training measure prescribed by legal or administrative regulations and international agreements, if they are sick or unfit for sea service on land or if they take part in a rehabilitation measure according to § 26 para. 1, the entitlement per month is:

1. 2.3 vacation days in the 1st to 5th year of employment;

2. in the 6th to 10th year of employment 3.1 vacation days;

3. From the 11th year of employment, 4.0 days of vacation.

...

§ 34 limitation period

(1) Claims from the engagement lapse if
 


- 4 -

they are not asserted in writing within three months of the due date (cut-off period). In the case of wage claims, the preclusive period begins to run from receipt of the statement. For employees who are on board or abroad at the time of the due date, the preclusive period begins after the replacement and return to Germany.

(2) The provisions on the statute of limitations for claims according to §§ 194 to 218 of the Civil Code remain unaffected by paragraph 1. "

Annex IV MTV-See in the version valid from July 1, 2002 to December 31, 2008 contains special provisions for the defendant's employees (Annex IV MTV-See old version). These regulations are in parts:

"The MTV-See and the HTV-See apply to employees with the following stipulation:

In place of the regulations of the

Section 1 (1), Section 9, Section 11 (3), Section 16 (3) No. 2, Section 17 (4), Section 22, Section 23 (1) MTV-See

the following provisions apply.

The provisions of § 8 and § 10 MTV-See are supplemented by the following provisions.

...

§ 22 Principles for working hours and vacation times

(1) Employees are entitled to paid vacation and available days for each calendar year. The calendar year is decisive for the calculation of the working time and vacation time. The calendar year consists of the following working times and vacation times:

1. 183 days on-board duty (paragraph 4)

2. 32 days availability period (paragraph 5)

3. 144 days of vacation (paragraph 6)

4. 6 days vacation time according to § 139 of the Seemannsgesetz (paragraph 6).

...

(3) For parts of a calendar year, the days for on-board duty, availability and vacation times are proportionate
 


- 5 -

to determine.


(4) The employees are obliged to work on board for 183 days within a period of one calendar year (on-board duty). Replacement days count towards on-board duty.

(5) The shipowner is entitled to within one calendar year

1. 50 percent of the individual replacement days (fitting and sampling)

2. for in-company training and military exercises

3. to use 32 days for staffing bottlenecks caused by accident and illness (availability time). The times according to number 3 are to be granted within the calendar year. Unused availability time is credited to the vacation account. The time available is not transferable beyond the calendar year. Any positive or negative balance at the end of a calendar year must be settled by March 31 of the following year.


(6) Employees are entitled to 150 days of vacation per calendar year (vacation time). Vacation is granted by the shipowner taking into account the wishes of the employees as much as possible. Twice a calendar year, 21 calendar days of consecutive leave are to be granted.


(7) If the employees work ashore, they have a vacation entitlement of 80 days per calendar year. For this time, the entitlement to on-board duty time, availability time and vacation time is suspended and calculated proportionally.

(8) Employees must be informed of the assignment and vacation time account once a calendar year. In addition, information about the respective assignment and vacation account can be provided on request. "


The collective bargaining parties, the Verband Deutscher Reeder e. V. and the trade union ver.di issued a joint statement on March 6, 2009 on Annex IV MTV-See aF. They brought there among other things. expresses that the so-called large vacation entitlement iSv. Section 22 (6) Annex IV MTV-See old version only exists if on-board service has been performed. For periods of incapacity for work, employees are only entitled to the so-called small vacation
 


- 6 -

claim iSv. Section 22 (7) Annex IV MTV-See old version. If the parties to the collective bargaining agreement had seen the problem in the negotiations on Annex IV MTV-See aF, they would only have agreed on a small vacation entitlement for periods of incapacity for work.

The Association of German Shipowners e. V. and ver.di reached the agreement on January 16, 2009 with effect from January 1, 2009 (§ 22 Annex IV MTV-See nF):


"Section 22 of Annex IV of the general collective agreement for German shipping (MTV-See) of March 11, 2002, valid from July 1, 2002, last amended by the collective agreement of August 24, 2005, is supplemented by the following new paragraph 7a:

(7a) If the employees take part in a military exercise or in a training and / or further training measure prescribed by legal or administrative regulations and international agreements, are they sick or unfit for sea service on land or take part in a rehabilitation measure in accordance with Section 26 (1), they have a vacation entitlement of 42 calendar days per calendar year. For these times, the entitlement to on-board duty time, availability time and vacation time according to Paragraph 1 will be suspended and recalculated proportionally. This does not apply if these times are used by the shipowner as a disposition time in accordance with Paragraph 5, Item 2. If the vacation entitlement according to sentence 1 applies, this vacation must be granted and taken in the current calendar year. A transfer of this vacation to the next calendar year is only permitted if there are urgent operational or personal reasons justifying this. In the event of a transfer, the vacation must be granted and taken in the first three months of the following calendar year. Section 4 (1) ArbPlSchG remains unaffected. "


The plaintiff worked 189 days in 2006. This year he took part in two military exercises of twelve calendar days each and was unable to work on 42 calendar days. On 19 calendar days, the plaintiff attended a further training course as a specialist for sea operations. The defendant granted the plaintiff a total of 110 days off in 2006. This involved 91 days of vacation and the 19 days of the advanced training course.
 


- 7 -

The plaintiff's monthly earnings slips contained various information about his leisure account. His leisure account for 2006 was given a total of 170 days. The earnings statement for January 2006 did not contain a carryover from the previous month's leisure account. For January, March, April, May, June, July, August, October and December 2006, the plaintiff was credited with 15.25 days of free time on the free time account. In February 2006 he was credited with 14.25 days of free time. In September and November 2006, the credited time off entitlement was 9.25 days each. The defendant carried over a free time balance of 39 days from 2006 to 2007.


By letter dated December 31, 2006, the plaintiff requested the defendant to correct his leisure account without success.

The plaintiff believes that he is entitled to a large vacation entitlement of 150 days in total for the year 2006 according to Section 22 (6) Annex IV MTV-See old version. The sick days and the days of the two military exercises are not considered to be rural working days in the sense of To be assessed according to § 22 para. 7 Annex IV MTV-See old version.


The plaintiff has requested


to order the defendant to increase his leisure account by 65 days to 104 days as of January 1, 2007 and to correct his earnings statements accordingly as of January 1, 2007.

The defendant has requested that the action be dismissed. She is of the opinion that the plaintiff has only the small vacation entitlement in the sense of the term for sick leave and the days of military exercises. Section 22 (7) Annex IV MTV-See old version. § 22 para.6 Appendix IV MTV-See old version, which regulates the large amount of vacation entitlement, should be seen in connection with Section 22 (1) Appendix IV MTV-See old version. According to this, a vacation period of 150 days requires an on-board service period of 183 days. From the collective bargaining history of Annex IV MTV-See aF and the statement of the collective bargaining parties, it emerges that employees are only entitled to a small amount of leave for sick leave and military training.

The labor court dismissed the lawsuit. The regional labor court



- 8 -

has partially changed the judgment of the labor court on the plaintiff's appeal and sentenced the defendant to increase the plaintiff's leisure account by seven days to 46 days as of January 1, 2007 and to correct the earnings slips accordingly. Incidentally, the regional labor court rejected the appeal. With the appeal approved by the regional labor court, the plaintiff initially pursued his previous claim in full. In the appeal hearing, he limited his application to convicting the defendant, increasing his time off account by a further 13 days on January 1, 2007 and correcting the time off account in the earnings statements accordingly. The plaintiff withdrew the further appeal.

Reasons for decision

A. The pending revision is successful. The plaintiff has the right to have the defendant increase his leisure account with effect from January 1, 2007 by a further 13 days and since then show the leisure account in this amount in the earnings slips. The plaintiff is entitled to a credit of a further 20 days, including the seven days legally recognized by the regional labor court. Due to the partial withdrawal of the appeal, he has lost his further legal remedy (cf. §§ 565, 516 ZPO).

I. The lawsuit that has yet to come to the decision of the Senate is admissible, in particular sufficiently determined within the meaning of Section 253 (2) No. 2 ZPO.

1. The action aimed at with the action to increase the leisure account is recognizable. The defendant is to credit the plaintiff's leisure account with an additional 13 days with effect from January 1, 2007. The defendant maintains such a leisure account for the plaintiff. A time off account expresses the extent to which the employee can claim remuneration without doing any work. The employee has the right to have this account kept correctly.


- 9 -

Acquired time-off entitlements are to be recorded in the account, "credited" to it (cf. on a time account to which so-called plus hours were to be credited, BAG August 14, 2002 - 5 AZR 417/01 - on I 1 of the reasons, AP EntgeltFG § 2 No. 10 = EzA EntgeltfortzG § 2 No. 4; to a working time account March 19, 2008 - 5 AZR 328/07 - marginal 10, AP BGB § 611 holiday allowance No. 1; to a vacation account Senate December 16, 2008 - 9 AZR 164 / 08 - Rn. 16, AP BUrlG § 7 No. 40 = EzA BUrlG § 7 No. 120).


2. The lawsuit aimed at changing the leisure time account shown in the earnings statements since January 2007 also satisfies the requirement of certainty.


a) According to Section 253 (2) No. 2 ZPO, the application must include. contain the specific indication of the subject matter and reason for the claim made. It must be possible to determine the subject of the dispute and the extent of the legal force of the desired judgment (Senate December 16, 2008 - 9 AZR 164/08 - Rn. 14, AP BUrlG § 7 No. 40 = EzA BUrlG § 7 No. 120).


b) The lawsuit meets these requirements. The plaintiff means by earnings statements the monthly earnings statements since January 2007. The defendant uses the statements by mutual agreement in order to provide the plaintiff with monthly information about the employment and vacation account according to § 22 (8) sentence 2 Annex IV MTV-See aF .


II. The action, which is still pending, is well founded. The defendant is obliged to credit the plaintiff's leisure account since January 1, 2007, in addition to the seven days already legally recognized by the regional labor court, a further 13 days from 2006 (Section 22 Paragraphs 1, 6 and 8 Annex IV MTV-See aF in conjunction Section 241 (2) BGB).


1. According to Section 22, Paragraph 8, Clause 1, Annex IV, MTV-See old version, the work and vacation time account must be disclosed to the employees once a calendar year. In addition, information about the respective deployment and vacation account can be provided on request (Section 22, Paragraph 8, Clause 2, Annex IV MTV-See old version). From these
 


- 10 -

Collective bargaining provisions also result in the employer's obligation to manage the vacation account correctly. Otherwise the employer would not be able to fulfill his obligation to provide reliable information about the extent of the vacation entitlement that has already been granted and the amount still outstanding. The employee can demand that the employer correctly records the vacation entitlements still due to him in the vacation account and, if necessary, makes any necessary corrections.


2. The defendant keeps the vacation account as a leisure account. She enters the plaintiff's vacation days in this account. The plaintiff acquired a vacation entitlement of 150 days for the calendar year 2006 without days off (Section 22 (6) Annex IV MTV-See old version).

a) According to Section 22, Paragraph 1, Clause 1, Annex IV, MTV-See old version, employees are entitled to paid vacation and available days for each calendar year. The calendar year is decisive for the calculation of the working time and vacation time (Section 22 Paragraph 1 Clause 2 Annex IV MTV-See old version).

b) The claimant is not only entitled to annual leave for the 2006 calendar year on a pro-rata basis, although he has participated in military exercises. The state labor court rightly accepted this.


aa) There is no special legal basis to reduce the plaintiff's annual vacation for the times of participation in military exercises. According to § 1 Paragraph 1 in conjunction with § 10 ArbPlSchG in the version valid until June 17, 2009 (old version), the employment relationship is suspended during military service if the employee is called up for a military exercise (possibly on the basis of a voluntary obligation).

(1) If the employment relationship within the meaning of Workplace Protection Act, the mutual main performance obligations do not apply, unless otherwise expressly agreed. The legal existence of the employment relationship remains unaffected. According to § 4 Paragraph 1 in conjunction with According to § 10 ArbPlSchG old version, the employer can take the vacation leave granted to the employee for a vacation year from the

- 11 - 


Employment is due, but reduced by one twelfth for each full calendar month that the employee does military service.

(2) The plaintiff participated in military exercises on 24 calendar days in 2006. The limit of a full calendar month had not been reached. The defendant was therefore not entitled to reduce the annual vacation. In view of the unambiguous wording of the law, a proportional reduction is also not possible if the time of military service is less than a full calendar month (see Leinemann / Linck Vacation Law 2nd Edition Part II Vacation and Military Service Rn. 10; Neumann / Fenski Federal Vacation Act 9th ed. ArbPlSchG Rn. 5 ff.).

bb) The suspension of the employment relationship during the participation in military exercises does not lead to the fact that the annual vacation entitlement according to the collective agreement does not lapse on a pro-rata basis due to general provisions.


(1) The minimum vacation entitlement within the meaning of Article 7 (1) of Directive 2003/88 / EC (so-called Working Time Directive) and Sections 1, 3 BUrlG also arise when the employee is not working (see, for example, in the event of incapacity for work, ECJ January 20, 2009 - C -350/06 and C-520/06 - [joined cases Schultz-Hoff, Stringer et al.] Paragraph 41, AP Directive 2003/88 / EC No. 1 = EzA EC Treaty 1999 Directive 2003/88 No. 1; Senate March 24, 2009 - 9 AZR 983/07 - Rn. 21, AP BUrlG § 7 No. 39 = EzA BUrlG § 7 Compensation No. 15). The Seaman's Act does not contain any provisions that deviate from this (Section 53 (2) SeemG). Unless otherwise stipulated in a collective agreement for the collective leave entitlement, the statutory provisions apply (cf. Senate April 28, 1998 - 9 AZR 314/97 - on I 4 of the reasons, BAGE 88, 315).


(2) Neither MTV-See nor its Annex IV stipulate that no vacation entitlement arises for periods in which the employment relationship is suspended due to participation in military exercises. The claimant's vacation entitlement arising in 2006 must therefore not be calculated on the basis of 341 calendar days instead of 365 calendar days. Such a reduction option does not arise in particular from Section 22 Paragraph 3 Annex IV MTV-See old version. This


- 12 -

Provision is only to be applied if the employment relationship does not exist for the entire calendar year.

c) The claimant's vacation entitlement arising in 2006 is determined in accordance with Section 22 (6) and not in accordance with Section 22 (7) Annex IV MTV-See old version. The plaintiff is entitled to the large vacation entitlement. It is harmless that in 2006 he was unable to work on 42 calendar days, participated in military exercises on 24 days and was on land during these times - at least according to the defendant's submission. It is crucial that the plaintiff would have been obliged to provide on-board duty had it not been for the impediments.

aa) The large vacation entitlement from § 22 Paragraph 6 Annex IV MTV-See aF is regularly acquired. Only under the conditions set out in Section 22 (7) Annex IV MTV-See old version is the vacation entitlement to be calculated exceptionally on the basis of 80 days per calendar year.


bb) The exception of the small vacation entitlement from § 22 Paragraph 7 Annex IV MTV-See old version is not fulfilled here. The plaintiff did not do any service on land within the meaning of the collective agreement. He was not required to serve on land during these periods. An employee only then renders service ashore in the sense of Section 22 Paragraph 7 Annex IV MTV-See old version, if he is obliged to do service ashore instead of on-board service, e.g. due to a contractual agreement or an effective instruction. For times when the employee is unable to work, becomes ill or takes part in military exercises, the decisive factor is whether he would have been obliged to serve ashore if the obstacle to on-board service due to illness or participation in a military exercise is ignored. It does not matter where the employee actually is during these times. This results in the interpretation of the collective bargaining provisions.


(1) The normative part of a collective agreement is basically to be interpreted according to the rules applicable to laws. First of all, the wording of the tariff is to be assumed. On this basis is the real will of the collective bargaining parties
 


- 13 -

to be determined to the extent that it is reflected in the collective bargaining regulations. The collective bargaining relationship can provide information about the purpose pursued by the parties to the collective bargaining agreement. The history of its origins and the tariff practice can also be used. The practicability and meaning of the design result must be kept in mind. In case of doubt, the interpretation that leads to a sensible, appropriate, purpose-oriented and practically usable regulation is preferable (cf. for the st. Case Senate May 19, 2009 - 9 AZR 135/08 - Rn. 22; January 20, 2009 - 9 AZR 677/07 - Rn. 35, AP TVG § 1 Partial Retirement No. 43 = EzA TVG § 4 Partial Retirement No. 30).

(2) The wording and context of the regulations in Section 22 Annex IV MTV-See old version show that Section 22 Para.6 Annex IV MTV-See old version is the standard for the defendant's employees with regard to the extent of vacation entitlement.

(a) Section 22 (6), Annex IV, MTV-See old version does not in itself establish any further requirements for entitlement to annual leave of 150 days. The wording is not based on the fact that the employee is actually doing on-board service, staying on board or having been assigned. There is nothing else to do with Section 22 Paragraph 1 Clause 3 Annex IV MTV-See old version. There it is only specified which deployment and vacation times the calendar year is made up of. The term "183 days on-board duty" does not mean that on-board duty only includes days on which the employee actually works on board. Nor can it be inferred from the regulation that the vacation entitlement of 150 days only arises if actual work is carried out on 183 days on board. The reference to Section 22 Paragraph 4 Annex IV MTV-See aF rather makes it clear that the on-board duty time is those times in which the employee is fundamentally obliged to work on board. The “on-board duty time” therefore also includes days on which the employee would be obliged to perform on-board duty if there were no obstacles.

(b) An exception to the entitlement to 150 days of vacation per calendar year according to Section 22 (6) Annex IV MTV-See old version is only possible under the following
 


- 14 -

to accept the provisions of § 22 Paragraph 7 Annex IV MTV-See old version. The collective bargaining parties have used the term “service ashore” in Section 22 (7) Annex IV MTV-See old version to express that it does not matter where the employee is actually located. The decisive factor is whether he is legally obliged to serve ashore instead of on-board duty. This is confirmed by § 22 Paragraph 1 and 4 Annex IV MTV-See old version. An employee tied to Annex IV MTV-See aF only works ashore if, in deviation from Section 22 Paragraph 4 in conjunction with Paragraph 1 Clause 3 No. 1 Annex IV MTV-See old version is also legally obliged to provide service on land. Otherwise his obligation remains to be on board for 183 days.


(c) The overall context of the collective agreement confirms this interpretation result. Section 22 Annex IV MTV-See old version replaces Section 22 MTV-See.

(aa) In § 22 MTV-See, a distinction is expressly made with regard to the amount of the monthly vacation entitlement according to whether the employees are on board, are on the way to and from the ship, or are available on the instructions of the shipowner. In these cases, they acquire a total vacation entitlement (Section 22 (5) MTV-See). If, on the other hand, the employees are serving on land, if they take part in a military exercise, a training and / or further training measure stipulated by legal or administrative regulations or international agreements, if they are sick or unfit for sea service on land or if they take part in a rehabilitation measure, the Holiday amount according to § 22 Paragraph 6 MTV-See. This list, which was waived by the entrance passage of Annex IV MTV-See old version and its § 22, shows that the parties to the collective bargaining agreement were aware of the possible different scenarios in the holiday year.


(bb) The parties to the collective bargaining agreement expressly declared § 22 MTV-See to be inapplicable for the employees of the defendant and made a special regulation for them in § 22 Annex IV MTV-See old version. The fact that an employee who takes part in a military exercise, for example, only earns a lower vacation entitlement according to the MTV-See than for times in which he is on duty on board, cannot therefore be inferred as having this rating


- 15 -

also apply to § 22 Annex IV MTV-See old version. Section 22 (6) of Annex IV MTV-See old version does not establish any further requirements. In Section 22 (7) Annex IV MTV-See old version, only the service on land is mentioned. This makes it clear that the parties to the collective bargaining agreement did not want to justify an exceptionally shortened “small” vacation entitlement for the employees of the defendant, deliberately deviating from § 22 MTV-See, if the employee takes part in a military exercise or falls ill while on-board duty is actually to be performed.


(d) The history of the development of Annex IV MTV-See aF does not reveal any other willingness to regulate on the part of the collective bargaining parties. For the employees of the defendant before the entry into force of Annex IV MTV-See old version, the MTV-See as amended on April 17, 1986 initially applied. Later - after the defendant had left the collective bargaining association - a company agreement was applied that dealt with vacation entitlement in the event of illness or when participating in a military exercise, referred to Section 57 (3) MTV-See as amended on April 17, 1986. The parties to the collective bargaining agreement consciously changed this legal situation when they replaced § 22 MTV-See for the employees of the defendant with Annex IV MTV-See old version with effect from July 1, 2002.


(e) The purpose of the tariff does not allow any other interpretation result. The sense of offsetting the actual workload through vacation, cited by the defendant, is not expressed in § 22 Annex IV MTV-See old version. This purpose also does not correspond to the provisions in Art. 7 Paragraph 1 of the Working Time Directive, in the BUrlG and in the SeemG. According to this, the minimum leave entitlement arises even if the employee is not working (cf. in the case of incapacity for work, ECJ January 20, 2009 - C-350/06 and C-520/06 - [joined cases Schultz-Hoff, Stringer et al.] Marg 41, AP Directive 2003/88 / EC No. 1 = EzA EC Treaty 1999 Directive 2003/88 No. 1; Senate March 24, 2009 - 9 AZR 983/07 - Rn. 21, AP BUrlG § 7 No. 39 = EzA BUrlG § 7 Compensation No. 15).


(f) The joint declaration of both parties to the collective bargaining agreement of March 6, 2009, according to which the large vacation entitlement only applies when actually staying


- 16 -

Board can be purchased does not lead to a different interpretation result. Consistent statements of the parties to the collective bargaining agreement can be helpful in determining the objective content of the collective bargaining agreement. However, the will of the parties to the collective bargaining agreement, as expressed in the joint statement of March 6, 2009, was not reflected in the wording and context of the collective bargaining regulations. They are decisive when interpreting the normative part of a collective agreement (see e.g. BAG August 5, 2009 - 10 AZR 1006/08 - Rn. 21 with further references, AP TVG § 4 No. 32). From the unambiguous wording of Section 22 Paragraph 7 Annex IV MTV-See old version it rather follows that the small vacation entitlement is limited to times when the employee works on land.

(g) Section 22 (6) Annex IV MTV-See aF is formulated as a standard for vacation entitlement. The prerequisites for the exception of the small vacation entitlement from § 22 Paragraph 7 Annex IV MTV-See old version are not met. Section 22 (6) Annex IV MTV-See old version also covers the cases in which an employee who is fundamentally obliged to perform on-board service is temporarily unable to work due to illness or takes part in military exercises during the calendar year. An unconscious wage gap that could be filled through legal training is therefore ruled out (cf. BAG August 5, 2009 - 10 AZR 1006/08 - Rn. 17, AP TVG § 4 No. 32). A tariff gap to be filled is out of the question if the collective agreement itself contains a self-contained set of rules. This also applies if the parties to the collective bargaining agreement later express that they wanted to regulate an unconsidered circumstance differently from the literal meaning of the collective agreement. The parties to the collective bargaining agreement are then required to amend the collective agreement. The parties to the collective bargaining agreement have made such a change with the agreement of January 16, 2009, which came into force on January 1, 2009. The newly created Paragraph 7a in Section 22 Annex IV MTV-See nF contains not only a clarification, but a new holiday regulation.


3. The vacation accrued in the calendar year and not yet taken according to Annex IV MTV-See aF is not limited in time (cf. for the total



- 17 -

Vacation entitlement according to the MTV-See Senate December 16, 2008 - 9 AZR 164/08 - Rn. 40 mwN, AP BUrlG § 7 No. 40 = EzA BUrlG § 7 No. 120).


a) In contrast to Section 7 (3) BUrlG and Section 55 (3) SeemG, MTV-See and Annex IV MTV-See old version do not provide for a time limit for vacation entitlement. They know neither a limitation to the calendar year nor a transfer period.

b) The statutory provisions cannot be used. Section 23 (1) in the version of Annex IV MTV-See old version and Section 23 (2 to 9) MTV-See contain final regulations for granting vacation leave. According to Section 23 (2) MTV-See, the vacation must be taken. Until what time the vacation is to be taken is not specified. The resulting will to justify an unlimited vacation entitlement is confirmed by § 22 Paragraph 5 and 8 Annex IV MTV-See old version. In Section 22, Paragraph 5, Clause 4, Annex IV, MTV-See old version, it is only expressly stipulated that the time available is not transferable beyond the calendar year. According to Section 22, Paragraph 8, Clause 1, Annex IV, MTV-See old version, the employee must be informed of the deployment and vacation time account once a calendar year. This only makes sense if the vacation periods can also be carried over to the new calendar year. In addition, the vacation entitlement from Section 22 (6) and (7) Annex IV MTV-See old version is a mixed entitlement that combines the actual vacation entitlement with compensation entitlements for work on Sundays and public holidays. This shows the duration of the so-called large and small vacation entitlements.

c) There are no concerns about the effectiveness of the collective bargaining provisions. The continuation of the vacation entitlement beyond the duration of the calendar year or a transfer period is more favorable for the employee than the legal regulation (see Senate January 19, 1993 - 9 AZR 79/92 - to II 2 of the reasons, BAGE 72, 153).

4. The right to increase the leisure time account has not expired according to § 34 MTV-See. He will advance during the existing employment relationship



- 18 -

Start of vacation not due iSd. collectively agreed deadline. This also applies to the employee's unlimited vacation entitlement.


a) The term maturity in the sense of a collectively agreed deadline cannot be determined in the same way for all claims. It is to be interpreted in accordance with the interests of the individual taking into account the creditor's level of knowledge and subjective attribution considerations. The determination of the due date depends on the nature of the claim and the circumstances in which it arises (cf. in detail BAG December 18, 2008 - 8 AZR 105/08 - Rn. 48, NZA-RR 2009, 314).


b) The claimant's claim for a further 13 days to be credited to his leisure account is based on Section 22 (1), (6) and (8) of Annex IV MTV-See old version. Due to the nature of the claim, it cannot become due during the existing employment relationship within the meaning of tariff preclusion period. Otherwise, the purpose pursued with Section 22 (8) Annex IV MTV-See old version, namely that the employee can receive reliable and accurate information about the amount of his outstanding vacation entitlement at any time, would not be achieved. This means that the claimant's vacation entitlement according to the collective agreement is not subject to the collective agreement deadline. It is not due during the existing employment relationship prior to the granting of the vacation iSv. Section 34 MTV-See (cf. on Section 22 MTV-See Lindemann / Bemm Seemannsgesetz and collective wage agreement for German shipping, 6th edition, Section 32 marginal number 20). The vacation entitlement according to § 22 Annex IV MTV-See aF arises without a waiting period at the beginning of the engagement or - in the case of an existing engagement - at the beginning of the calendar year.At this point in time, the employee can request leave from the shipowner. If the agreed deadline applies, the employee would have to assert his vacation entitlement in writing within a period of three months after the start of the employment relationship or after the start of the year. This does not correspond to the will of the parties to the collective bargaining agreement expressed in Section 22 Annex IV MTV-See old version and Section 23 MTV-See. There, the parties to the collective bargaining agreement have not limited the vacation entitlement to a time limit, i.e. they are neither bound to the calendar year nor to a transfer period.
 


- 19 -

5. The plaintiff was entitled to a total of 150 vacation days for the 2006 calendar year according to Section 22 (6) Annex IV MTV-See old version. In the scope of 91 days, the entitlement to time off due to the granting of so-called vacation in accordance with Section 362 (1) of the German Civil Code (BGB) expires. Accordingly, with effect from January 1, 2007, 59 vacation days from 2006 were still to be credited to the plaintiff's leisure account. The defendant credited the leisure account with 39 days from 2006 according to the uncontested and therefore binding findings of the state labor court (Section 559 (2) ZPO). To this extent, the claimant's claim for crediting the claims in the leisure account according to Section 362 (1) BGB is fulfilled. The regional labor court also legally sentenced the defendant to increase the plaintiff's leisure time account by seven additional days as of January 1, 2007. The plaintiff can therefore still claim that his leisure account will be credited for a further 13 days and that the earnings statements have been changed accordingly since January 2007.

B. The decision on costs is based on Section 92 (1) sentence 1 2nd alternative, Section 97 (1), Sections 565, 516 (3) sentence 1 ZPO.

 

Duwell

W. Reinfelder

Gallner

Faltyn

Strong