Wage supplements for night work
In many industries, work is carried out not only during the day but also at night. The law provides for a supplement to the basic salary for work during the night. Here you can find out more about what you need to consider with regard to night work supplements.
What counts as night work?
According to the Working Hours Act, work between 11 p.m. and 6 a.m., provided it is carried out for more than two hours, is considered night work. For bakeries and confectioners, work between 10 p.m. and 5 a.m. is considered night work. In industrial manufacturing, automotive industry, and food industry , people often work around the clock.
Please note: Collective bargaining agreements that provide for a night shift allowance from 8 p.m. are possible.
Is a wage supplement for night work mandatory?
Section 6 (5) of the Working Hours Act stipulates that employers – unless collective bargaining agreements provide for compensation – must pay employees either a appropriate number of paid days off or a appropriate supplement to gross salary basically, employers have the choice of whether to compensate for night work with free time or to pay the employee a wage supplement.
If a collective agreement applies to your industry or company which regulates compensation for night work, the regulation therein is binding for the employer.
Definition of “night worker”
Only those employees who are classified as “night workers” have a legal right to a night shift allowance. Night workers within the meaning of the Working Hours Act are employees who either regularly perform night work in rotating shifts or who perform night work on at least 48 days in the calendar year.
Anyone who works at night only once or only a few times a year is not considered a “night worker” within the meaning of the law and therefore has no legal right to payment of a night shift allowance.
How high must the night surcharge be?
The Working Hours Act requires a "reasonable" bonus when night work is performed. A night bonus of 25 percent of the gross hourly wage is generally considered "reasonable" in this sense. This was decided by the Federal Labor Court (BAG, judgment of December 9, 2015, case number 10 AZR 423/14). In the case of permanent night work, a bonus of 30 percent of the gross hourly wage is considered appropriate.
For work between midnight and 4 a.m., a wage supplement of 40 percent is considered appropriate.
For night shifts that are less stressful for the employee than work during the day, the wage supplement may be lower – for example, for night-time on-call shifts.
Please note: if the amount of the night bonus is regulated by a collective agreement, the provisions therein are binding.
Are collective bargaining agreements allowing differentiations in night shift allowances?
Some collective agreements provide for different or staggered bonuses for night work. From the point of view of the principle of equal treatment, however, tariff differentiations in the amount of bonuses are only lawful if there is an objective reason for the unequal treatment and this reason can be identified from the collective agreement.
For example, the federal labor court has ruled that a collective agreement that provides for different levels of bonuses for irregular and regular night work can be legal if there is an objective reason for the unequal treatment (BAG, judgment of February 22, 2023, case number 10 AZR 332/20). In the case decided by the BAG, employees who only work irregularly at night were paid a higher bonus per night hour. This was intended to compensate for their disadvantage of the lower predictability of night work.
If, on the other hand, there is no objective reason for the differentiation, a distinction is not justified. The following example from case law illustrates this: According to a decision of the Federal Labor Court, a collective agreement that provides for a lower wage supplement for night shift work than for night work outside the shift system violates the principle of equal treatment because such a regulation disadvantages night shift employees compared to employees who do night work outside a shift system. Such differentiation is therefore unjustified (BAG, judgment of December 14, 2023, case number 10 AZR 394/20). In the present case, the plaintiff was granted a claim to payment of the higher night shift allowance.
Tax aspects
According to Section 3b of the Income Tax Act (EStG), bonuses for night work are tax-free if they do not exceed 25 percent of the basic wage. With regard to work between midnight and 4 a.m., bonuses of up to 40 percent of the basic wage can remain tax-free. The regulation in Section 3b of the EStG refers to a basic wage of a maximum of 50 euros per hour. The tax exemption for night bonuses according to Section 3b of the EStG applies to work between 8 p.m. and 6 a.m..
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