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No fixed takeover - TVAöD circumvented?

May 2, 2015 | 30,00 EUR | answered by Jan Wilking

I am concerned about a takeover. I am in my 2nd year of apprenticeship, learning the profession of gardener (specializing in ornamental plant cultivation) in the public sector (municipal employer in Hesse).

In an initial "exploratory discussion" regarding this issue, it has been determined that a 12-month takeover is planned for me, as agreed in the collective bargaining agreement. However, and this brings me to my question, they do not intend to offer me a permanent contract afterwards if I do not have a driver's license for small trucks (Class C1). The employer sees the initially temporary takeover as a kind of "charity" to give me the opportunity to obtain the driver's license.

As far as I understand, the collective agreement for public service employees stipulates that after the temporary contract, the employer is obligated to offer a permanent contract unless I have committed serious misconduct and there is a business need (which, in my opinion, has already been demonstrated with my initial temporary takeover).

A large part of the workforce does not have a truck driver's license and there are no issues because not everyone drives a vehicle, as vehicles are shared among a group of four or five. In light of this, I believe it is not justified to argue that there is a lack of business need if one does not have a truck driver's license and therefore would not be "usable" for the operation.

I believe this reasoning is being used to avoid too many long-term takeovers. This is my subjective perception.

Is this approach legally compliant with the collective agreement, or is it a violation of the agreement applicable to me? If I am initially taken over on a temporary basis without a truck driver's license, do I have the right to receive a permanent contract even without a truck driver's license?

Jan Wilking

Dear advice seeker,

I am happy to answer your inquiry taking into account your description of the situation and your efforts as follows:

Indeed, a claim for transfer can arise from § 16a TVöD if you "prove yourself" within the 12 months, meaning that you perform the assigned tasks properly and there are no behavioral abnormalities. After the 12 months, the employer cannot simply increase the requirements for the position and demand an additional driver's license.

In your case, however, a claim for transfer could be opposed by the fact that the employer had already specified the "trial period" before the temporary transfer by indicating the necessity of a corresponding driver's license. If the employer can also prove that such a driver's license is important for the smooth operation of the business, for example, to compensate for short-term absences of other employees, the employer could lawfully refuse further transfer.

In this case, the burden of proof would lie with the employer, both in terms of previous agreements and the operational needs. If I understand you correctly, the condition regarding the driver's license has only been communicated verbally so far. Therefore, it might be tactically advisable not to take any further steps before a secure temporary transfer in order to avoid endangering this transfer or to avoid a written fixation of the requirements regarding the driver's license.

I hope I have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.

Best regards,
Jan Wilking, Attorney