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Situation, a department head left the company. The company is looking for a replacement by advertising the position and hiring a head hunter. Unfortunately this didn't work out (so far) and the position is unfilled for more than two years. During that time the former deputy department head is acting as department head. If the deputy is on holidays or otherwise unavailable there is a temporary void in responsibility.

The company is located in Germany and has a Betriebsrat or works council. This is an elected body from the employees tasked with representing the interests of the employees towards the company leadership. The Betriebsrat has various legal rights concerning the advertising of the position and can even refuse to agree to the hiring of a specific person if there are good reasons for that.

The deputy department head has been doing the job of a department head for two years without getting the corresponding pay increase. If they were officially declared the new department head that would also entail that there is a new deputy department head which would also come with a pay raise.

Question: Does the Betriebsrat has any rights in this situation or does the employer already do what they have to just by advertising the position even if that is unsuccessful?

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I don't think so.

When it comes to wages, there may be a Tarifvertrag (union-negotiated wage schedule), which may apply even if the employee in question is no union member. It is enough if the employer is member of the employer's association negotiating the schedule, or in certain other cases. (Clever, really, by extending union benefits to non-members they weaken the unions ...)

The Tarifvertrag stipulates minimum wages for certain positions, and it may define those positions implement that. An employer could not underpay a skilled machinist by calling her a 'gadget specialist' or similar non-scheduled position. But the deputy department head is likely paid above the highest bracket of the wage schedule, called außertariflich (AT, beyond the schedule). At this level, it comes down to individual negotiations between the employee and employer.

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  • The legal basis is: §5 - Universal application of collective agreements - Collective Agreements Act (Tarifvertragsgesetz, TVG) and came into force on the 1949-04-09. It extended the provisions of §§159,165 of the constitution of 1919-08-11 (Weimar constitution). Allgemeinverbindlicherklärung – Wikipedia Jun 13, 2023 at 6:12
  • The §5 TVG was introduced since, at the time, it was common practice in medium-sized industries and therefore extended to everyone. Therefore a restaurant owner is bound to the agreements made by their corresponding employers association (i.e. they cannot say that their waiters will not be paid the agreed basic wage, but live only on their tips) Jun 13, 2023 at 6:37
  • @MarkJohnson legally, there is only one job that is paid by tips in Germany: Croupiers in a Casino are paid from the tip-tray, and only if that falls below a certain level, then the state has to fill up the wages to a specific level.
    – Trish
    Jun 13, 2023 at 9:39
  • @MarkJohnson, there are sectors and regions without a Tarifvertrag where just the minimum wage applies. But that would unlikely be an issue for a deputy department head, whatever the sector and the size of the company.
    – o.m.
    Jun 13, 2023 at 10:11
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    @MarkJohnson, that aside was not really the core of my answer, but the reasoning would be that the Flächentarifvertrag system reduces the incentive for the employees to unionize. Where I work, most workers benefit from the union agreement (those who don't get more), and hardly any are in the union. That limits the ability of the union to call for a strike.
    – o.m.
    Jun 13, 2023 at 15:04

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