Minimum remuneration for nursing care

BAG, judgment dated 19.11.2014 – 5 AZR 1101/12

The Federal Labour Court (BAG) was required to decide whether the minimum remuneration payable in the nursing care sector is also applicable to periods on-call and emergency stand-by duty. This decision is of significance for answering the question of whether the above mentioned times are liable to remuneration at the minimum wage of 8.50 euros gross under the Minimum Wage Act (MiLoG). The Claimant was employed by the Defendant, a private nursingcare service. She worked on a two-week around-the-clock basis, during which she was obliged to remain on site on the Defendant’s premises. The Defendant remunerated the Claimant’s work in part only. Emergency stand-by duty was not subject to the minimum remuneration under the Regulation on Nursing-Care Working Conditions (PflegeArbbV) dated 15 July 2010. By contrast, the Claimant argued that the minimum remuneration of 8.50 euros per hour under Section 2 Subsection 1 PflegeArbbV was payable for all forms of work, i. e. including emergency stand-by duty.

Periods on-call and emergency stand-by duty as working time liable to remuneration

In the opinion of the BAG, the minimum wage as per Section 2 PflegeArbbV is determined “per hour”. The regulation is not tied to either the type or the intensity of the work (full work, on-call, emergency stand-by duty) but rather is based on the working time liable to remuneration. Periods on-call and emergency stand-by duty, during which the employee is required to be available at a location stipulated by the employer so as to be able to start work immediately in case of need, is work liable to remuneration as defined in Section 611 Subsection 1 BGB. A separate remuneration ruling can be made for these special forms of work and lower remuneration envisaged than for full work. However, the regulator has not made use of this option in the nursing care sector. Accordingly, periods on-call or on emergency stand-by duty must be remunerated at the minimum rate as per Section 2 PflegeArbbV. Agreements that deviate from this are ineffective.

Remuneration of periods on-call and stand-by emergency duty in the nursing care sector.

The regulator has reacted to this and agreed a deviating ruling for the remuneration of emergency stand-by duty and increased the minimum remuneration in the 2nd PflegeArbbV dated 28 November 2014. Under this ruling, the period of emergency stand-by duty, including the work performed, can be assessed as at least 25 percent of working time for the purpose of calculating the remuneration. A prerequisite for this is a collectiveagreement or written individual contractual ruling (see Section 2 Subsection 3 PflegeArbbV dated 28.11.2014).

Remuneration of periods on-call and stand-by emergency duty under the MiLoG

A national minimum wage has been in force in Germany since 1 January 2015. The MiLoG does not contain any ruling on the question of whether the minimum wage is also payable for periods of emergency stand-by duty or periods on-call. Section 1 Subsection 1 MiLoG merely states: “With effect from 1 January 2015, the level of the minimum wage is 8.50 euros gross per clock hour.” As the legislator does not differentiate in terms of the form or intensity of the work but merely refers to work per clock hour, the above decision will almost certainly mean that periods on-call and on emergency stand-by duty must be paid at the minimum wage (currently 8.50 euros), and that rulings providing for lower remuneration will be ineffective (see Section 3 MiLoG). A different situation will apply for collective wage agreements that have been extended in accordance with the Law on the Posting of Workers (AEntG), or for statutory instruments, such as the 2nd PflegeArbbV, adopted in accordance with Section 11 AEntG. These can provide for an hourly wage of less than 8.50 euros gross per hour until 31 December 2016 at the latest (see Section 24 Subsection 1 MiLoG).

Summary

In view of the legal consequences of failure to pay the minimum wage under the MiLoG (administrative offence in accordance with Section 21 MiLoG, exclusion from the awarding of public contracts in accordance with Section 19 MiLoG, criminal liability based on withholding and misappropriation of work remuneration as per Section 266a StGB (Criminal Code)), employers should remunerate periods on-call and emergency stand-by duty at the minimum wage until such time as the Supreme Court decides otherwise in this matter.  Employers in the nursing care sector can agree remuneration for the above periods at an hourly rate below the minimum remuneration as per the 2nd PflegeArbbV through collective-agreement or written individual contractual rulings.