BAG: Employers can meet their entitlement through monthly remuneration
(jur). If standby times are calculated less than the minimum wage, the employer can compensate for this with the regular monthly wages. This applies in any case, if a tariff or in the employment contract does not set a specific hourly rate, but a monthly wage, judged on Wednesday, June 29, 2016, the Federal Labor Court (BAG) in Erfurt (Az .: 5 AZR 716/15). Because the monthly total earnings are then decisive for the fulfillment of the minimum wage claim.
In the decisive legal dispute, a paramedic from North Rhine-Westphalia failed with his lawsuit for more wages. The man was paid according to the public service agreement (TVöD), which provided monthly remuneration of 2,680 euros plus allowances, but not a fixed hourly rate.
After that, he should work regularly for 30 hours a week and work 18 additional hours of standby time. Half of this was counted as normal work, so that he achieved a total of 39 hours of collective work.
When the statutory minimum wage was introduced in 2015, the paramedic calculated the hourly wages for his standby times: converted to the 39 hours per week, his monthly wages meant 15.81 euros per hour. For 18 hours of standby, he received nine times 15.81 euros, a total of 142.29 euros. This is only 7.90 euros per hour and thus less than the minimum wage of 8.50 euros.
With the introduction of the minimum wage, the tariff remuneration scheme has therefore become ineffective, he said. He is therefore entitled to not only the minimum wage on call, but also the "usual salary" of EUR 15.81 gross per hour worked.
However, the BAG did not take this calculation into account. The statutory minimum wage applies to every hour worked - and therefore also to standby times. This claim is fulfilled here. Because if no specific hourly rate is set, the monthly salary is required to meet the minimum wage requirement. Here the plaintiff worked up to 228 hours per month including the standby times. According to the minimum wage, he should have received 1,938 euros gross. In fact, his monthly earnings were significantly higher.
The BAG left open the extent to which the minimum wage claim is met, if an hourly rate below the minimum wage has been specifically agreed for standby times, but the higher wages for regular working hours still achieve the minimum wage overall. fle / mwo / fle