Status: 02/22/2023 5:34 p.m
Night surcharges may vary depending on whether the night work takes place regularly or irregularly. This has been decided by the Federal Labor Court. It is a landmark decision with a signal effect for thousands of other lawsuits.
Collectively agreed night work surcharges may differ for regular and irregular night work. The Federal Labor Court (BAG) has ruled this and declared night shift premiums of different amounts in the German beverage, confectionery and food industry to be permissible. The judges in Erfurt ruled that there was no unjustified unequal treatment.
An employee of Coca-Cola in Berlin had complained. According to the relevant collective agreement of the soft drinks industry in Berlin and the East region, the surcharge for regular night work in shifts was 20 percent, and 50 percent for irregular night work.
The employee saw the distinction between irregular and regular night work as a violation of the principle of equal treatment contained in the Basic Law and the EU Charter of Fundamental Rights. Regular night work is significantly more stressful than the rare, irregular night work that takes place outside of shift systems.
Compensation for health problems
Coca-Cola argued that the parties to the collective bargaining agreement have complied with the freedom of design to which they are entitled with the different pay. Higher surcharges for unscheduled night work are justified, since the employees also receive compensation for the intervention in their free time. With regular night work, on the other hand, employees could adjust their leisure time behavior accordingly. That’s less stressful.
After the European Court of Justice ruled in the case that EU law does not regulate the remuneration of night work supplements, it was the Federal Labor Court’s turn again. The top German judges have now ruled that different night work supplements are permitted in the collective agreement if there is an objective reason for this. The night work supplements are an appropriate compensation for the health burdens.
The higher surcharge for irregular night work is intended to compensate for additional burdens on employees due to the poorer ability to plan this type of work assignment. The Federal Labor Court found that how this compensation is achieved is at the discretion of the parties to the collective bargaining agreement.
In the case of companies not bound by collective agreements, the court had already ruled in 2015 in the case of a parcel delivery company that a “reasonable” night work surcharge of 30 percent must be paid for permanent night shifts, while night work that does not always occur is “regularly” 25 percent (AZ: 10 AZR 423/14). However, collective agreements may deviate from this.
Judgment with signal effect for further lawsuits
According to experts, the BAG decision has a signal effect for around 6,000 complaints about night work supplements at the labor courts. According to the Food, Pleasure and Restaurant Union (NGG), this is about a value in dispute “which has meanwhile added up to a good 50 million euros”.
400 lawsuits alone have already made it to the BAG. According to the Bonn labor law expert Gregor Thüsing, the new landmark judgment will become the benchmark. “The template is now made,” he said. Ultimately, the following should be clarified with regard to the different collective agreements, which the BAG will have to examine in the coming months: “Is there a factual reason for a differentiation and is it recognizable in the collective agreement?”
According to the law professor, there can also be surprising judgments. Many of the controversial collective agreements have grown historically and are not always structured systematically.
Potential impact on 250,000 employees
The NGG union estimates that around 250,000 of the approximately 720,000 employees in the food and beverages industry are potentially affected by the decision on night shift surcharges. The plaintiff spoke of a possible need for adjustments to collective agreements. Coca-Cola Europacific Partners Germany, on the other hand, viewed the judgment as a trend-setting decision in the tariff area East and beyond.
The lawsuit was about a collective agreement that the NGG had already concluded with the employers’ association in 1998. The union actually wanted the regulation off the table. The plaintiff, who regularly works nights, demanded that the difference between 20 and 50 percent be reimbursed – ultimately without success.
AZ: 10 AZR 332/20 and others