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Monday, March 27, 2023

Work: Different night work supplements – is that legal?

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Night work is a strain on the body, that is undisputed. But can the surcharges that are available for this be different? Now there should be a first answer.

They are an exciting topic for thousands of employees in the German beverage and food industry: night work bonuses, specifically their different amounts. The union Food, Enjoyment and Restaurants (NGG) estimates that there are around 6,000 lawsuits in the courts. It’s about a value in dispute “which has now added up to a good 50 million euros”. 400 lawsuits alone have now made it to the Federal Labor Court (BAG). The first will be negotiated in Erfurt on Wednesday.

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What is it about

The highest German labor judges should answer the question of whether different amounts of surcharges for regular and irregular night work violate the principle of equality. In this specific case, the drinks company Coca-Cola in East Germany paid a surcharge of 50 percent per hour for irregular night work, but only 20 percent for regular night work. This is regulated in a collective agreement that the NGG concluded with the responsible employers’ association back in 1998 and that is used by Coca-Cola. The union would like to have the regulation off the table.

The precedent

The case of a night worker was sent to the highest instance by the Berlin-Brandenburg State Labor Court. The plaintiff, who regularly works nights, demands that she be reimbursed the difference between 20 and 50 percent. The lower courts decided their case differently. It caused a sensation because it was submitted to the European Court of Justice (ECJ) by the Federal Labor Court in 2020. The European judges kicked the ball, which is about tariff regulations, back – and did not decide. It is not a question of European law, the decision lies solely with the highest German labor judges, they explained.

Outcome uncertain

Now it is the turn of the Tenth Senate of the BAG. Ultimately, it is about a collective agreement that he has to evaluate. The topic of collective bargaining could be an issue in the negotiation, according to labor lawyers. It is undisputed that people who stand in production at night are entitled to a surcharge for the exposure proven by occupational physicians. But can it be higher if it is not about permanent shift work? Employers see it that way. They argue that the higher surcharge is intended not only to compensate for the hardship of night work, but also for a possible intrusion into the leisure time of people who are rarely called upon to do night work.

High expectations

“We hope for clarity. Everyone is on hold,” said the head of the NGG legal department, Grégory Garloff, the German Press Agency. There could be a signal for the many other cases as well. “We estimate that of the approximately 720,000 employees in the food and beverage industry, after deducting those who work in administration or in the two-shift system (without night shift), around 250,000 employees potentially benefit from the decision to pay night shifts are affected,” said an NGG spokeswoman on request. However, this involves a large number of collective agreements.

Individual decisions

“The Tenth Senate will look at each collective bargaining agreement and make individual decisions based on the agreements,” announced BAG President Inken Gallner recently. “This will be one of the big issues at the Federal Labor Court in 2023.” Negotiations and decisions on night work surcharges can also be expected in March, May and June.

Federal Labor Court on the case of regulations in the Working Hours Act on night work from page 47

Source: Stern

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