Leave entitlements for workers posted to building sites in Germany Information for workers

Transcription

1 Leave entitlements for workers posted to building sites in Germany GB Information for workers

2 Contents Introduction...3 Collective leave agreements of the German building industry...3 SOKA-BAU Principle of accumulated leave Minimum amount of your gross wage Duration of leave Leave remuneration Credit of leave already granted before the posting Grant of leave Taking a part of your acquired leave days Residual leave Change of employer Pay in lieu of leave Payment of leave remuneration without leave Requirements of the pay in lieu of leave Reservation to curtail Social security and tax liability Compensation for expired leave entitlements Requirements of compensation Reservation to curtail Tax liability Worker s statement of account...17 Addresses, telephone and facsimile numbers, , Internet

3 Introduction SOKA-BAU welcomes you as a worker in Germany. Your employer who is established outside Germany has posted you for a certain period of time to a construction site in Germany. German law (statutes and collective agreements of the building industry) protects you as well. This applies in particular for the German Act on Posting of Workers (Arbeitnehmer-Entsendegesetz AEntG) which came into force on 1 March This act guaranties your right to a minimum wage and extents the leave law for the German building industry to cover your employment. Germany acts in accordance with the European Directive 96/71/ EC of 16 December 1996 concerning the posting of workers. Collective leave agreements of the German building industry Every worker in Germany is entitled to paid leave. As to the building industry, more details are provided by the collective agreements of the building industry, i.e. the Federal Framework Agreement for the Building Industry (Bundesrahmentarifvertrag für das Baugewerbe BRTV) and the Collective Agreement on the Social Fund Scheme in the Building Industry (Tarifvertrag über das Sozialkassenverfahren im Baugewerbe - VTV) which have been declared generally applicable. These collective agreements respect the particular working conditions of construction workers which are very different to those of the stationary industry (permanently changing construction sites, dependence on weather conditions). These particular collective agreements have to be observed by construction companies established in Germany and their workers. To avoid different leave rules on German construction sites the German legislator laid down in the AEntG that the above mentioned collective agreements should protect you as a posted worker as well. 3

4 SOKA-BAU SOKA-BAU (Urlaubs- und Lohnausgleichskasse der Bauwirtschaft) is a joint institution of the social partners of the German building industry. The parties to the collective agreements are: the Hauptverband der Deutschen Bauindustrie e.v. Kurfürstenstraße Berlin the Industriegewerkschaft Bauen-Agrar-Umwelt Olof-Palme-Straße Frankfurt am Main the Zentralverband des Deutschen Baugewerbes e.v. Kronenstraße Berlin SOKA-BAU has been entrusted with the responsibility to implement the leave fund scheme on the basis of the AEntG and collective agreements, BRTV and VTV. We carry a personal account of your accumulated leave entitlements in Germany for you. At the beginning of your first posting we inform you about your personal worker s number for this account. This ID remains valid even if you resume construction work in Germany later on or if you change your employer. It is mandatory for your respective employer to pay the monthly leave fund contributions to SOKA-BAU in order to secure your leave entitlements. 4

5 1 Principle of accumulated leave You have a right to paid leave (leisure time and leave remuneration). Your leave entitlements depend on the duration of the posting and on the gross wage you have earned in Germany. With each working hour you accumulate a part of your entitlements. 2 Minimum amount of your gross wage The calculation of your leave remuneration is based on the gross wage your employer owes you. The gross wage usually results from the employment contract in connection with statutory regulations or collective agreements of the country the worker is posted from. Under no circumstances is the worker supposed to receive a wage for the employment period on German construction sites which is less than the German minimum gross wage of the building industry. The minimum wage is based on the Collective Agreement on Minimum Wage (Tarifvertrag Mindestlohn). The minimum wage applies as a gross wage per hour and differs according to whether the construction site is located in West or East Germany. 5

6 Ancient Federal States (West) (Schleswig-Holstein, Bremen, Hamburg, Niedersachsen, Nordrhein- Westfalen, Hessen, Rheinland-Pfalz, Saarland, Baden-Württemberg, Bayern, Berlin) Employment time 01/01/ /12/2013 (West Germany without Berlin) 01/01/ /12/2013 (Berlin) 01/01/ /12/2014 (West Germany without Berlin) 01/01/ /12/2014 (Berlin) 01/01/ /12/2015 (West Germany without Berlin) 01/01/ /12/2015 (Berlin) 01/01/ /12/2016 (West Germany without Berlin) 01/01/ /12/2016 (Berlin) as from 01/01/2017 (West Germany without Berlin) as from 01/01/2017 (Berlin) wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR wage group 1: EUR wage group 2: EUR New Federal States (East) (Brandenburg, Mecklenburg-Vorpommern, Sachsen, Sachsen-Anhalt, Thüringen) Employment time 01/01/ /12/2013 wage group 1: EUR 01/01/ /12/2014 wage group 1: EUR 01/01/ /12/2015 wage group 1: EUR 01/01/ /12/2016 wage group 1: EUR as from 01/01/2017 wage group 1: EUR 6

7 Your wage has to be paid by the 15 th of the following month at the latest. For instance, the wage for September has to be paid by 15 October at the latest. Your wage is not to be reduced by the amount of contributions your employer pays to SOKA-BAU. 3 Duration of leave The number of leave days you can claim depends on the number of your employment days in Germany. As employment days are considered all calendar days (including Saturdays, Sundays and public holidays) during which employment relationships with construction companies exist. Whole months are counted with 30 employment days. You are entitled to one leave day after each 12 employment days. Thus you are entitled to 30 leave days (working days) per leave (= calendar) year. Saturdays, Sundays and public holidays are not working days. Therefore, you do not have to take leave days for leisure time on those days. Example: You started working on a building site in Germany on 7 February and kept on working there until 16 July. According to section 8 para BRTV the duration of your leave is calculated as follows: From 7 February until 28 February (end of the month) you have been working for 22 days. For the months of March, April, May and June 30 days per month are considered as employment days. There are another 16 employment days for the time from 1 July until 16 July. This sums up to 158 employment days altogether. 7

8 158 = You are entitled to 13 leave days. During the calendar year mathematically arising factions of leave days are rounded off. You are only entitled to whole leave days. 4 Leave remuneration Your leave remuneration (leave pay and additional leave bonus) is % of the gross wage earned in Germany. Example: Your gross wage earned in Germany in 2016 amounts to 9, EUR % of 9, EUR is a leave remuneration of 1, EUR earned in addition to your gross wage. 5 Credit of leave days already granted before the posting You have been granted leave in advance every time you got more leave days in your native country for the current calendar year and before the posting to Germany than you had acquired there by virtue of your employment time. These leave days granted in advance reduce your leave entitlements acquired in Germany. Example: On 1 April you were posted to Germany. Before the posting you have already been employed by this employer since 1 January. Let us assume that you would have been entitled to 20 leave days if you had worked for the whole calendar year (= 365 days) in your country of origin. 8

9 However, if your employer had already granted you 7 leave days for your work between 1 January and 31 March (= 90 days), he would have granted you leave days in advance which must be taken into consideration in Germany. Firstly, we have to calculate the leave days you would normally have been entitled to in your country of origin for the 90 days until 31 March. 20 x 90 = In your country of origin you would have been entitled to 4.93 leave days only. However, your employer granted you 7 leave days. Thus he granted you 2.07 leave days in advance. As leave days granted in advance must be rounded off in principle, the 2 days must be subtracted from your leave entitlements acquired in Germany. They will reduce your entitlements because you have already been granted those 2 days. Equally, leave remuneration paid in advance has to be subtracted from the claim to leave remuneration acquired in Germany. Example: Your employer paid you the equivalent of EUR for the 7 leave days in your country of origin as leave remuneration. This amounts to EUR per leave day ( / 7 = 50.00). As he granted you 2 leave days in advance, he also paid you EUR as leave remuneration in advance (2 x 50.00). These EUR have to be deducted from your leave entitlements acquired in Germany as well. 9

10 6 Grant of leave Leave is meant for your recreation and to restore your work capacity for the time of your employment. Thus you are allowed to take leave only during the time of posting (employment in Germany). In case you have already returned to your country of origin and therefore finished your employment in Germany, you are entitled to claim the remaining leave from your employer if you are posted to Germany again. If you are not posted to Germany again, you can apply for pay in lieu of leave or compensation for the remaining leave acquired according to German law (see 7 and 8). Your leave remuneration for leave days taken during the time of posting has to be paid to you together with your pay slip by the 15 th of the month following the month in which you have been granted leave days. 6.1 Taking a part of your aquired leaves If you take only a part of your acquired leave days, you receive a corresponding daily rate as leave remuneration for each leave day. In order to calculate this, you have to divide the total amount of leave remuneration by the number of all leave days. Example: You have earned 1, EUR leave remuneration altogether and acquired 15 leave days. 1, EUR = EUR 15 10

11 You are entitled to EUR per leave day (daily rate). Then you have to multiply the daily rate by the number of granted leave days. You have taken 10 leave days EUR x 10 = 1, EUR Thus your employer has to pay you 1, EUR as leave remuneration for 10 leave days. 6.2 Residual leave At the end of the calendar year we transfer your leave days, which have not been granted till then as days of residual leave as well as your corresponding claim to leave remuneration to the following calendar year. Fractions of leave days amounting to no less than half of one leave day have to be rounded up now to whole leave days. Example: Let us assume that because of your employment days and already granted leave you would have calculated a claim for residual leave of 5.75 days. As those days must be rounded up, now you are still entitled to 6 residual leave days in the following year. If you stay on a building site in Germany after a new calendar year has begun and you take leave days, then those leave days must be deducted from the residual leave of the previous year first. You may take the residual leave till the end of the new calendar year. After that you are not entitled to claim residual leave against your employer. You are, however, entitled to compensation for expired leave entitlements (see sub 8). 11

12 Example: Leave days and leave remuneration acquired in the year 2016 expire by 31 December Change of employer If you change from one employer to another employer within Germany, the acquired leave entitlements will be transferred to your new employer. It is a particular advantage that you can take your leave entitlements with you regardless of whether your employer s head office is in Germany or abroad. Please inform us about your new employer and the date of change. Then we will send you a statement about your latest leave entitlements. This statement is a confirmation of your leave entitlements and must be presented to your employer. 7 Pay in lieu of leave Payment of leave remuneration without leave 7.1 Requirements of the pay in lieu of leave If you have definitively finished your work on German building sites and you are not unemployed, SOKA-BAU will make a payment in lieu of leave three months after you have finished your work. Then SOKA-BAU assumes that you will not return to Germany for the next time. Therefore, there is no need to reserve your leave entitlements for another employment in Germany. 12

13 Example: You have been posted by your employer to a German building site until 30 June. After that you definitively returned to your country of origin. From 1 October on you can get a pay in lieu of leave by SOKA-BAU. If you change your employer - worker relationship to an employee or master apprentice relationship, you will receive your pay in lieu of leave from SOKA-BAU immediately after you have terminated your workers contract. Please enclose a copy of your employee or apprenticeship contract with your application. Pay in lieu of leave requires your application. If you have not performed an application yet and afterwards have started working as a blue-collar worker on a German building site again, the complete leave entitlements (leisure time and leave remuneration) will be revived. We will be pleased to send you an application form on demand, also in your native language. In case you want to request an application without using our form, please make sure that it contains the following information: your worker s number, your first and surname, your date of birth, your current address, your current bank reference, the date of your last day of your constructional activity in Germany. 13

14 The application has to be signed by you. You can claim a pay in lieu of leave directly against your last employer (who employed you for construction works) only if you draw retirement or disablement pensions. 7.2 Reservation to curtail If your employers have not paid the full amount of contributions, SOKA-BAU is forced to curtail your pay in lieu of leave correspondingly. 7.3 Social security and tax liability If your pay in lieu of leave is liable to contribute to social security, SOKA-BAU deducts a lump sum and pays it over to your employer. In case the social security contributions exceed the lump sum, you have to pay the difference to your employer. If the lump sum is lower, though, your employer will be liable to pay the difference to you afterwards. Furthermore SOKA-BAU is legally obliged to deduct the pay in lieu of leave by a lump sum of a total of 21.1 %, that is, 20 % for wage tax and another 1.1 % for solidarity surcharge. SOKA-BAU forwards this amount directly to the competent Inland Revenue Office in Wiesbaden, Germany. If you have not been commited to the payment of wage taxes in Germany (e.g. due to a valid tax treaty), you can apply for the devolution of these taxes at tax agency Finanzamt Wiesbaden. 14

15 8 Compensation for expired leave entitlements 8.1 Requirements for compensation Leave entitlements as well as claims for pay in lieu of leave expire at the end of the calendar year following the year you acquired them. Example: Leave entitlements and claims for a pay in lieu of leave acquired in the calendar year 2016 expire by 31 December However, SOKA-BAU pays you a compensation for expired leave entitlements as far as you have not received a pay in lieu of leave. You can apply for compensation in the second calendar year after the year in which you have acquired the leave entitlements only. In order to reserve your regular leave entitlements (leisure time and leave remuneration), we are not allowed to process your application for compensation if you have performed it prematurely. In that case you have to perform a new application for compensation again later on. Example: You can apply for compensation for expired leave entitlements acquired in the year 2015 in 2017 only. The application period begins on 1 January 2017 and ends on 31 December We will be pleased to send you an application form on demand, also in your native language. In case you want 15

16 to perform an application without using our form, please make sure that it contains the following information: your worker s number, your first and surname, your date of birth, your current address, your current bank reference The application has to be signed by you. In respect of the application period, please be aware of the occasionally longer postal forwarding time of foreign post offices. 8.2 Reservation to curtail If your former employers have not paid the full amount of contribution, SOKA-BAU is forced to curtail your compensation for expired leave entitlements correspondingly. SOKA-BAU tries hard to collect the outstanding contributions subsequently. If we succeed in doing so, you will receive an additional payment later on. In this case SOKA-BAU will notify you. We will be pleased to explain the claims in more detail to you. 8.3 Tax liability Furthermore SOKA-BAU is legally obliged to deduct the compensation for expired leave entitlements by a lump sum of a total of 21.1 %, that is, 20 % for wage tax and another 1.1 % for solidarity surcharge. SOKA-BAU forwards this amount directly to the competent Inland Revenue Office in Wiesbaden, Germany. If you have not been commited to the payment of wage taxes in Germany (e.g. due to a valid tax treaty), you can apply for the devolution of these taxes at tax agency Finanzamt Wiesbaden. 16

17 9 Worker s statement of account You will receive a worker s statement of account from SOKA-BAU at the end of each calendar year. This statement contains important details about your employment in Germany during the last two years (employers, duration of the employment, employment days, gross wage, acquired leave days and leave remuneration). Moreover the already granted leave days and the remaining leave entitlements are certified on the statement as well. The statement is based on the monthly reports your employer is obliged to send us each month. At the end of a calendar year you will receive a report on the amount of wage tax forwarded to the Inland Revenue Office. We cannot exclude the possibility that your employer has made some mistakes. In case your worker s statement of account is not correct or incomplete, you can demand a correction from your employer within two months after you have received the statement of account. Should your employer refuse to correct his reports despite your demands, you are entitled to sue him for the correction, also before a German court. 17

18 Please send your letters to the following address: SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach 5711 or Wettinerstraße Wiesbaden Wiesbaden DEUTSCHLAND DEUTSCHLAND Fax number of the Main Department Europe: Phone numbers of the Main Department Europe: Italy 4052 Czech Republic, Greece, Liechtenstein, Luxemburg, Portugal, Slovakia, Spain, Sweden, Turkey and other countries 4053 Poland 4054 Austria, Belgium, Denmark, France, Ireland, The Netherlands, Switzerland, United Kingdom 4056 Bosnia-Herzegovina, Bulgaria, Croatia, Estonia, Latvia, Lithuania, Macedonia, Russian, Serbia, Slovenia 4058 Romania 4059 Hungary We will be glad to advice you in your native language as well. 18

19 Internet: Please indicate your worker s ID, if we have already provided you with one, every time you get in touch with us! 19

20 U BD Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Wettinerstraße 7, Wiesbaden Englische Version English Version Version as of January