Magdeburg Labour Court, 26.10.2016, Ref.: 3 Ca 3220/15
According to Section 1 of the Minimum Wage Act, every employee is entitled to payment of a wage at least equal to the minimum wage by the employer. As of 1 January 2015, the minimum wage is €8.50 gross per hour. Since 1 January 2017, the minimum wage has been €8.84 per hour.
Facts of the Case:
Plaintiff wanted money from his employer for so-called work preparation time
The plaintiff is an employee and has been employed by the defendant since 2013. The plaintiff is seeking payment of a bonus and credit for work preparation time (so-called "set-up time"). Before the plaintiff can start his work, he must first start up his computer, open programmes and go through a series of login procedures. According to the project manager's confirmation, the time required for this is 9 minutes and 20 seconds, but is not counted as working time.
On the one hand, the plaintiff's employment contract contains a provision that any overtime worked is recorded in a working time account. If possible, plus and minus hours should be equalised during the course of the year.
Secondly, it is stipulated that the plaintiff receives a gross wage of € 7.50 per hour, whereby the payment is to be 1/12 of the agreed regular annual working time of 1566 hours, irrespective of the hours worked.
In addition, the plaintiff is seeking a so-called flexibility allowance
Employees also receive a flexibility allowance of € 0.25 per hour of attendance.
Finally, the employment contract also contains a provision on exclusion and expiry periods. This states that "all mutual claims arising from the employment relationship and those associated with the employment relationship shall lapse if they are not asserted in writing to the other contracting party within 3 months of the due date."
Since the introduction of the minimum wage, the plaintiff has received a gross hourly wage of €8.50, but no longer receives a flexibility bonus. The defendant stated that the increase in the hourly wage compensated for all bonuses and special bonuses that the company additionally paid out and provided as part of voluntary benefits.
On the one hand, the plaintiff is requesting payment of the flexibility allowance incurred and, on the other hand, that the "set-up times" incurred be taken into account.
Decision of the Magdeburg Labour Court
The Magdeburg Labour Court ruled in favour of the admissible claim in part and rejected it in part.
Court sees no entitlement to the so-called flexibility allowance
The plaintiff is not entitled to payment of the flexibility bonus in the amount of € 0.25 per hour worked. The Minimum Wage Act only obliges the defendant to pay € 7.50 gross per hour (remuneration according to the contract) + € 0.25 gross (flexibility bonus) + € 0.75 (difference to the minimum wage owed).
This is because, in principle, all cash payments made by the employer in the synallagma are suitable to fulfil the employee's minimum wage claim. Of the remuneration payments made by the employer in an exchange relationship under the employment contract, only those payments that the employer makes without regard to the employee's actual work performance or that are based on a special statutory purpose would lack the fulfilment effect (BAG 25 May 2016 - 5 AZR 135/16, ZIP 2016, 1940).
The flexibility bonus at issue is a cash benefit paid by the employer in a synallagmatic relationship, as it is paid in respect of work actually performed by the employee (hours of attendance).
The flexibility allowance is therefore part of the minimum wage and therefore does not have to be paid separately.
However, the plaintiff is entitled to remuneration for system-related work preparation times
However, the plaintiff is entitled to remuneration for system-related work preparation times as working hours or their inclusion as a credit on the working time account.
System-related work preparation times ("set-up times"), such as putting the workstation computer into a state that enables the work owed to be performed (e.g. booting up, any logins and programme openings) would also constitute work subject to remuneration.
The court states that working time subject to remuneration would include all activities that are necessary for the performance of the work, insofar as they serve an external need and do not simultaneously fulfil the employee's own need, such as putting on and taking off prescribed protective clothing or prescribed uniform company clothing as well as the receipt, delivery and making ready for use of equipment necessary for work (cf. e.g. BAG 12 November 2013 - 1 ABR 59/12, BAGE 146, 271; 19 September 2012 - 5 AZR 678/11, BAGE 143, 107; 22 April 2009 - 5 AZR 292/08, DB 2009, 1602). The plaintiff is only fit for work after completion of the system-related work preparation periods. He is obliged to complete these in order to be able to take up his work and thus exclusively serves the needs of a third party, namely the needs of the defendant.
The plaintiff had also explained the scope in detail as requested and had therefore met his burden of proof. The set-up times therefore had to be taken into account.
It can therefore be summarised that allowances that are directly part of working time are covered by the minimum wage and are not to be considered separately. Furthermore, set-up times that are only carried out for the employer are part of working time and must be remunerated accordingly.
Source: Magdeburg Labour Court
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