Judgment Minimum wage also applies to standby times

BAG: Employer can fulfill claim but by monthly remuneration
(Jur). If on-call time is mathematically lower than the minimum wage, the employer can compensate this with the regular monthly salary. This applies in any case, if no concrete hourly rate, but a monthly salary is specified in the employment contract, on Wednesday, June 29, 2016, the Federal Labor Court (BAG) ruled in Erfurt (Az .: 5 AZR 716/15). Because for the fulfillment of the minimum wage claim then the monthly total income is decisive.

In a resolute legal dispute, a paramedic from North Rhine-Westphalia failed with his claim for more wages. The man was paid under the Civil Service Collective Agreement (TVöD), which provided for a monthly allowance of 2,680 euros plus allowances, but not a fixed hourly rate.

Minimum wage also for the on-call time of doctors, nurses and social workers. Image: Wolfilser - fotolia

Thereafter, he was supposed to work regularly for 30 hours a week and spend an additional 18 hours on standby. Half of them were considered normal work, so that they reached 39 hours collectively.

When the statutory minimum wage was introduced in 2015, the paramedic calculated the hourly pay for his standby time: Converted to the standard 39 weekly hours, his monthly salary amounted to 15.81 euros per hour. For 18 readiness hours, he gets nine times € 15.81, so a total of € 142.29. This is only 7.90 euros per hour and thus less than the minimum wage of 8.50 euros.

By introducing the minimum wage, the tariff compensation scheme was therefore ineffective, he said. He is therefore not only in the standby service, the minimum wage, but the "usual remuneration" in the amount of 15.81 euros gross per hour worked.

However, this calculation was not made by the BAG. Admittedly, the statutory minimum wage applies to every hour worked - and thus also to standby time. This claim is fulfilled here. For if no concrete hourly rate is specified, the monthly allowance will be payable for the fulfillment of the minimum wage claim. Here the plaintiff, including the standby time, worked up to 228 hours per month. After the minimum wage, he would have received 1,938 euros gross. In fact, his monthly earnings were significantly higher.

The BAG left open to what extent the minimum wage claim will be met, even though an hourly rate below the minimum wage was specifically agreed for standby time, but the higher compensation for normal working hours altogether still achieves the minimum wage. fle / mwo / fle