Night work: Verdict: Different levels of night surcharges are legal

They are an exciting topic for thousands of employees in the German beverage, confectionery and food industry: night work bonuses, specifically their different amounts.

Night work: Verdict: Different levels of night surcharges are legal

They are an exciting topic for thousands of employees in the German beverage, confectionery and food industry: night work bonuses, specifically their different amounts. Employees' hopes that the surcharges would have to be standardized and raised to the higher level have been dashed for the time being. The Federal Labor Court made a first landmark judgment in the dispute that has been smoldering for years on Wednesday in Erfurt. In the opinion of labor lawyers, it will have a signal effect for thousands of other lawsuits that are pending in the German labor courts.

what was decided

In a case involving the beverage company Coca-Cola in East Germany, the Tenth Senate ruled that collective agreements can provide for different night-time surcharges (10 AZR 332/20). The question at issue was whether a supplement of 50 percent could be paid for occasional night work, but only 20 percent for regular night shift work. The highest German labor judges affirmed this in the case from Berlin-Brandenburg.

The reasoning

According to the judgment, different amounts of surcharges for night work are possible "if there is an objective reason for the unequal treatment, which must be recognizable from the collective agreement". In addition to health protection, the parties to the collective agreement could pursue other purposes with the amount of the surcharge, said the presiding judge Waldemar Reinfelder. It is up to them how they compensate for the poorer predictability of occasional night work. "But the parties to the collective agreement cannot make arbitrary arrangements," he said. It is always about compensating for the difficulties caused by night work - this is regulated in the Working Hours Act.

The meaning of the verdict

The Bonn labor lawyer Gregor Thüsing rates the importance of high. "That will be the benchmark by which all other cases will be decided," he told the German Press Agency. "The template is now made." 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.

Lots of lawsuits in court

About 6,000 lawsuits are still with the labor courts, estimates the Union Food, Enjoyment and Restaurants (NGG). It's about a value in dispute "which has now added up to a good 50 million euros". 400 lawsuits alone have already made it to the Federal Labor Court (BAG). "The Tenth Senate will look at each collective bargaining agreement and make individual decisions based on the agreements," announced BAG President Inken Gallner recently. Further negotiations are expected in March, May and June.

Impact on tens of thousands of workers

According to the NGG, many employees are affected by night work: "We estimate that of the approximately 720,000 employees in the food and beverages industry, after deducting those who work in administration or in a two-shift system (without night shift), around 250,000 Employees are potentially affected by the decision on night shift surcharges," said a spokeswoman. The plaintiff spoke of a possible need for adjustments to collective agreements, Coca-Cola Europacific Partners Germany of a trend-setting decision in the collective bargaining area East and beyond.

The arguments of the parties to the dispute

The plaintiff's lawyer from DGB legal protection wanted an "upward adjustment" to the night work bonuses. Shift workers should not be worse off than workers who occasionally work nights. The representative of the business association, representing the beverage company, said irregular night work was "work that cannot be postponed". As an example, he cited the emergency work of technicians when repairs to machines were needed at short notice. The higher night work surcharge for occasional assignments should also compensate for the interference in the leisure time of people who are only rarely used for night work. In addition, employers would be “disabled from doing this more often”.

The precedent case

It 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. Her case caused a sensation because it was submitted to the European Court of Justice by the Federal Labor Court in 2020. The European judges kicked the ball back - and did not decide. It was the Tenth Senate's turn.

Evening and night work are significantly reduced

They work when others are allowed to rest: According to the Federal Statistical Office (Destatis), evening and night work are also referred to as unusual or atypical working hours. They are so common in Germany:

According to Destatis, the proportion of employees who work constantly or regularly between 6 p.m. and 11 p.m. was 14.9 percent in 2021. For comparison: in 2011 it was 27.2 percent. According to Eurostat data, the proportion of employed persons who regularly work between 11 p.m. and 6 a.m. was 4.2 percent in 2021. In 2011, at 9 percent, it was more than twice as many.

One reason for the decline is Corona. In the pandemic, evening and night work in the catering, aviation industry or with tour operators would have been reduced, explains Enzo Weber, head of the research area forecasts and macroeconomic analyzes at the Institute for Labor Market and Occupational Research.

The self-employed finish work later: while, according to Eurostat, a good quarter of them are still working during these evening hours (2011: 40.2 percent), the figure for employees is only 13.9 percent (2011: 25.5). According to Enzo Weber, there are "less and less" self-employed people. The proportion of men (16.9 percent) and women (12.7 percent) is almost even in evening work.

In night work, the proportion of self-employed (3.2 percent) and employees (4.3 percent) was relatively similar in 2021. What is striking, however, is that the proportion of men who work nights is almost twice as high as that of women.