Minimum wage and collectively agreed continued remuneration, BAG 13.05.2015 - 10 AZR 191/14

In the case of collective agreements in which payment on public holidays and in the event of incapacity for work is not clearly regulated, the agreed minimum wage of the collective agreement applies and not the statutory minimum wage of € 8.50.

The plaintiff was employed as a pedagogical employee and demanded € 1028.90 gross back pay for public holidays, sick leave and vacation compensation. In the plaintiff's opinion, this resulted from the fact that the statutory minimum wage of € 8.50 was used as the basis for calculating these periods rather than the collectively agreed minimum wage of € 12.60. The plaintiff was paid in accordance with the Minimum Wage Ordinance ("Ordinance on Mandatory Working Conditions for Training and Further Education Services under the Second or Third Book of the German Social Code"). Section 2 (1) of this collective agreement states : "This collective agreement exclusively regulates the minimum hourly remuneration and the annual vacation entitlement. The agreement of a collective entitlement from this collective agreement is expressly not intended for other subjects of regulation". The collective agreement does not clearly regulate how vacation compensation and remuneration as well as continued remuneration in the event of illness and on public holidays are handled. There was a dispute between the parties as to whether the statutory minimum wage or the collectively agreed minimum wage should be paid in these cases.

The action was upheld in all instances and the appeal before the tenth senate of the Federal Labor Court was also unsuccessful. The Federal Labor Court ruled that if there is no corresponding provision in the collective agreement, the Continued Remuneration Act (EFZG) and the Federal Leave Act (BurlG) form the basis of the claim. According to § 2 Para. 1, § 3 in conjunction with § 4 Para. 1 EFZG, the principle of loss of pay applies, i.e. the employee must be paid their normal salary on public holidays and in the event of illness (for 6 weeks). According to § 11 BurlG, the reference principle also applies, i.e. vacation pay and vacation compensation are based on the average salary of the last 13 weeks. As a result, the collectively agreed and not the statutory minimum wage is decisive in this case.

Date: 13. May 2015