Specifically, the BAG dismissed two lawsuits against Coca-Cola in Berlin, one against Nestlé in Hamburg and two other lawsuits from the dairy industry. In all cases, an interpretation of the collective agreements shows that the higher surcharge for irregular night work is also intended to "compensate for the additional burdens caused by the inability to plan such work assignments".
The plaintiff in the leading case works for Coca-Cola in Berlin. According to the collective agreement for the soft drinks industry in Berlin and the East region, the surcharge for regular night work in shifts was 20 percent and for irregular night work 50 percent.
In the disputed period from December 2018 to June 2019, the plaintiff had only done regular night work in regular shift work. Nevertheless, she demanded the higher surcharge of 50 percent. The unequal treatment is not justified and therefore contrary to equality.
The BAG has now not followed suit. As early as 2018, the Erfurt judges had determined that, according to previous medical research, the health impairments caused by irregular night work are no greater than those caused by regular night shifts. In December 2020, however, the Erfurt judges ruled that a wage difference can be justified if it is also expressly intended to compensate for the impairment of the social life of the employees.
The BAG has now confirmed this. According to the tariff relevant here, the night surcharge should initially compensate for the health impairments associated with night work. The higher surcharge for irregular night work should also compensate for the poorer planning of these work assignments.
The Erfurt judges emphasized that the parties to the collective bargaining agreement were not prevented from using the surcharges "to pursue other purposes in addition to protecting health". Whether the difference in amount is appropriate is "at the discretion of the parties to the collective agreement" and is therefore not to be examined by the courts.
The union Food-Genuss-Gaststätten (NGG) concluded this collective agreement. According to their information, 6,000 comparable lawsuits by NGG members are now pending before the labor courts. The amount in dispute adds up to over 50 million euros.
The BAG alone has several hundred procedures. According to the court, these procedures alone affect around 30 different collective agreements. The BAG has scheduled a further seven cases for March 22nd. In July 2022, the European Court of Justice (ECJ) in Luxembourg declared that such cases should be decided solely under German law.