FAVOURABILITY PRINCIPLE

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GERMANY
GÜNSTIGKEITSPRINZIP
FAVOURABILITY PRINCIPLE

Principle which offers the possibility of departing from the regulations laid down in higher-ranking sources of law in the field of labour law by improving on them in the employee's favour under the terms of the contract of employment and hence also in the form of a general undertaking by employer or on the basis of custom . The principle is guaranteed by the Constitution. In practice its importance is mainly evident in departures from collective agreements and works agreements , but also from statutes . It applies in the same way for the public service .

The question of whether a condition in an individual employment contract is more favourable than a higher-ranking norm is determined by means of a procedure of comparison which must include all the provisions on the two sides (group comparison). Little clarification has yet emerged from case law as to how the individual groups of provisions should be demarcated.

The comparison must be based on objective criteria. It must be certain from the outset that the favourability of the condition in the contract of employment is long-term. In general, terms and conditions which fall short of the collectively agreed standard cannot be offset by a level of pay in excess of the collectively agreed scale. If ultimately there is a preponderance of unfavourable elements or favourability cannot be established, the departure in question is not lawful and the higher-ranking norm prevails.


Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.
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