Leave Scheme in Case of Posting to Building Sites in Germany Information booklet for employers

Transcription

1 Leave Scheme in Case of Posting to Building Sites in Germany EN Information booklet for employers

2 Leave Scheme for Workers Posted to Building Sites in Germany Information booklet for employers Please address your inquiries to: SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach Wiesbaden GERMANY 2

3 Contents Foreword...7 Part I: The Leave Scheme Overview...8 A. Fundamentals of the Leave Scheme of the German Building Industry...10 A1. Specific Features of the Building Industry...10 A2. What is SOKA-BAU?...10 A3. Legal Basis...11 Arbeitnehmer-Entsendegesetz (AEntG) German Law on the Posting of Workers...11 Bundesrahmentarifvertrag für das Baugewerbe (BRTV) Federal Framework Agreement for the Building Industry...11 Tarifvertrag über das Sozialkassenverfahren im Baugewerbe (VTV) Collective Agreement on the Social Fund Scheme in the Building Industry...11 Tarifvertrag zur Regelung der Mindestlöhne im Baugewerbe (TV Mindestlohn) Collective Agreement on the Regulation of the Minimum Wages in the Building Industry in the Federal Republic of Germany (Collective Agreement on Minimum Wages)...12 Further Protective Regulations...12 Minimum Wages for Workers in the German Building Industry (Map)...13 A4. Requirements for an Obligation of Participation in the Leave Scheme...14 Building Sites in Germany...14 Posting of Industrial Workers...14 Realization of Predominantly Constructional Activities...14 Independent Business Department...14 Contract Staffing/Loaning of workers...14 No Obligation to Participate if Participating in a Similar Leave Scheme in the Posting State/Home Country...14 B. Workers Leave Entitlements...15 B1. Calculation of Leave Entitlement for a Calendar Year...15 Accumulation Principle...15 Employment Days...15 Calculation of the Leave Days Using Leave Divisor

4 B2. When can a Worker Take Leave?...17 During the Employment on Building Sites in Germany...17 Time of Leave...17 Expiry of Leave...17 B3. What Leave Pay does a Worker Get from his Employer?...17 Gross Wage as Basis...17 Leave Pay at the Current Rate of % of Gross Wage...18 Payment by the Employer...18 Time of Payment to the Worker...18 Leave Pay for Workers not Enjoying their Leave Entitlement to the Full (Partial Leave)...18 Several Partial Leaves Granted During a Calendar Year...19 B4. What Happens with Remaining Leave Not Used at the End of a Year?...21 Carry Forward to Next Calendar Year...21 Calculation of the Remaining Leave...21 Remaining Leave Entitlements from the Past Are to be Granted before Leave Entitlements from the Current Year...22 Separate Leave Entitlements by Calendar Year...22 B5. What Happens if a Worker has been Granted Leave before Posting?...23 Leave Granted in Advance and Crediting...23 Calculation of Leave Deduction...24 Information on the Form Worker s Basic Data...25 Time of Deduction...25 Application of the Leave Deduction...25 B6. What Happens if a Worker Changes to Another Employer?...25 Transfer of Leave...25 Communication of the End of an Employment Relationship by the Previous Employer...26 Vacation Statement as Working Paper...26 B7. Worker s Account Statement...26 C. Services Offered by SOKA-BAU...27 C1. Employer s Reimbursement Claims...27 Leave Pay for Holiday during the Posting Period...27 Limitation by Worker s Collectively Agreed Entitlement...27 Payment in Case of Contribution Coverage and Complete Monthly Reports...27 No Setting Off by the Employer...27 Possibility to Set Off...27 Lapse and Time Limits

5 C2. Pay in Lieu of Leave for Workers...28 Pay in Lieu of Leave by SOKA-BAU...28 Worker s Application for Pay in Lieu of Leave...28 Pay in Lieu of Leave by the last Employer if Worker Receives a Pension...28 Provision of Reduction...28 Obligation to Pay Social Security Contributions and Income Tax...28 C3. Compensation Paid to Workers for Expired Leave Entitlements...29 Compensation Paid by SOKA-BAU...29 Worker s Application of Compensation...29 Exception Time Limits in Case of Legal Disputes...29 Provision of Reduction...29 Obligation to Pay Income Tax...30 C4. Entitlements in Case of Death of a Worker...30 Assignment to Heirs...30 Information and Proofs for SOKA-BAU...30 C5. Leave Entitlements of Severely Handicapped Persons and Underage Workers...30 D. Employer s Obligation to Participate...31 D1. Required Information and Documents...31 Employer s and Worker's Basic Data...31 Certificates Relating to the Employer s Company...31 Communication of Changes to SOKA-BAU...31 Report of Monthly Gross Wage and Leave Pay (Monthly Report) on the 15 th Day of the Following Month...31 D2. How the Employer can Safeguard the Leave Entitlements of the Workers...32 Payment of Monthly Contributions by the 20 th Day of the Following Month...32 No Deduction of Contribution from Wage...32 D3. Consequences in Case of Delayed Payment...33 Interest on Arrears...33 Litigation to enforce Payment of Contributions...33 Regulatory Offences...33 Guarantor s Liability

6 Part II: Electronic Reporting Scheme Part III: SOKA-BAU Forms Instructions Concerning the Completion of Forms and the Electronic Reporting Scheme...35 A. Forms for Employers...36 Form Employer s Basic Data...36 Form Worker s Basic Data...40 Form Monthly Report...44 B. Forms for Workers...50 Form Worker s Application for Pay in Lieu of Leave/Compensation...50 List of Country Codes...53 List of Activities...54 Part IV: Statutory Registration Procedure Index of Key Words...59 Addresses, Telephone Numbers, Fax Numbers, Addresses, Web Addresses and Bank References

7 Foreword Dear Sir or Madam, Building companies officially established in countries other than Germany which post workers to Germany with the aim to realize building jobs share in the leave scheme of SOKA-BAU in the same way as companies officially established in Germany. In order to avoid unnecessary problems and conflicts between the involved parties of the building companies, SOKA-BAU is attempted to provide all the information needed to answer the questions of building companies and their workers concerning the leave scheme. It is in our interest to handle all matters between the building company and SOKA-BAU in a speedy, unbureaucratic and easy way. This is the aim of the present information booklet which addresses primarily to building companies established outside Germany. If after reading this booklet you have any doubts or further questions, please contact us. SOKA-BAU will be glad to assist you. Sincerely yours, the parties to the collective agreement the executive committee of SOKA-BAU Wiesbaden, in January

8 Part I: The Leave Scheme Overview Employers Employer Before starting any building activity, the employer submits his registration to SOKA-BAU. SOKA-BAU SOKA-BAU registers the employer and sends him an employer ID as well as an information booklet and any other required forms. Please note that all of the booklets and forms are available in different languages. Employer The employer fills in the forms Employer s basic data and Worker s basic data and returns them as soon as possible to SOKA-BAU. SOKA-BAU SOKA-BAU registers all employer and employee data and expects to receive your Monthly report as well as the monthly payment of your contribution. SOKA-BAU has to be informed about any posterior change of this data. Employer The employer submits his Monthly report for each calendar month of posting latest by the 15 th of the following month. The contribution has to be paid to SOKA-BAU latest by the 20 th of the following month. SOKA-BAU SOKA-BAU enters the monthly report and the contributions and calculates the resulting leave entitlements of the employees. Employer An employer who grants leave to his employee during the posting period and pays him the corresponding leave money, has to submit this leave information to SOKA-BAU in the context of the monthly report/s. SOKA-BAU SOKA-BAU reimburses the leave pay to the employer, if the employer s account is in balance. Furthermore, SOKA-BAU informs the employer and his employees about the current leave data. 8

9 Employees Pay in Lieu of Leave Employee If an employee terminates his activity in the building industry in Germany, provided he does not take up a new employment on a German building site within the next three months, or if he changes into a white collar or trainee job, he can apply for the pay in lieu by sending the Application for pay in lieu of leave to SOKA-BAU. This form is available in different languages. SOKA-BAU SOKA-BAU disburses the pay in lieu of leave, financed by contributions, to the employee. If the pay in lieu of leave is subject to social insurance, SOKA-BAU deducts a lump sum of the total amount and transfers it either to the employer or to the competent authority. SOKA-BAU is obliged to deduct a lump sum for the income tax as well as for the solidarity tax and transfer it to the tax office Finanzamt Wiesbaden. Compensation of Leave Employee If the employee s leave entitlement has lapsed, he can apply for the compensation of leave by sending an Application of compensation to SOKA-BAU. This form is available in different languages. SOKA-BAU SOKA-BAU disburses the compensation of leave, financed by contributions, to the employee. The employee has to pay taxes on the compensation. SOKA-BAU is obliged to deduct a lump sum for the income tax as well as for the solidarity tax and transfer it to the tax office Finanzamt Wiesbaden. 9

10 A. Fundamentals of the Leave Scheme of the German Building Industry A1. Specific Features of the Building Industry The building industry differs from industries with fixed locations. Due to the frequent change of production facilities (building sites) and the strong dependency on weather conditions a regularly recurring loss of working time is a characteristic of the building industry. Therefore more than half of all building industry workers do not have all year round contracts with one specific building company. This aspect would entail disadvantages both for the employee as well as for the employer, also in terms of leave. For that reason there is a specific solution for the sector of the building industry. In accordance with the German leave legislation Bundesurlaubsgesetz (Federal Leave Law) an employee must have been employed by the same employer for at least six months to gain the right to claim his full annual leave; which means that the leave entitlement depends on how long a worker has been employed by the same employer. Most of the German collective agreements follow this approach. Most workers of the building industry would not have the possibility to enjoy a continuous period of leave, if the general company-based scheme as mentioned in the Bundesurlaubsgesetz was applied. After six months of employment, the employer would run the risk of having to grant full annual leave and the corresponding pay to a worker, even though the worker is not employed for the full calendar year with that employer. Due to the high fluctuation of the employees of building firms, this could lead to financial inconvenience. For the above mentioned reasons the German Bundesurlaubsgesetz permits a different, collectively agreed scheme for the German building industry, which stipulates that the employee accumulates the leave entitlements while working for different employers of the building industry. It also grants him the right to request, at the appropriate time, the full-accumulated leave from his current employer. To avoid excessive financial strain on the employer granting the leave all employers of the building industry pay specified contributions to us SOKA- BAU. These contributions are used to finance the leave entitlements. In order to avoid the existence of different leave schemes, that is, the existence of islands of foreign legislation on German building sites, the German legislator declared the special leave scheme of the German building industry compulsory also for posted workers. This complies with the applicable EU directive on the Posting of Workers. As determined in the collective agreement, German as well as foreign employers of the building industry pay their contributions to SOKA- BAU to fund employer and worker entitlements. A2. What is SOKA-BAU? The collective pay funds in the building industry are handled jointly by Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (Leave and Wage Equalisation Fund of the German Building Industry ULAK) and Zusatzversorgungskasse des Baugewerbes AG (Additional Pay Scheme of the German Building Industry ZVK). Since 1997, ULAK has also handled the leave scheme for employers outside Germany and their workers posted to Germany. ULAK is an association with the status of a legal personality by 10

11 right conferred by the state. Similar institutions and schemes exist, inter alia, in Belgium, Denmark, France, Italy, the Netherlands and Austria (see A4.). Current information concerning these institutions and schemes can be found on our website SOKA-BAU is the common name for ULAK and ZVK. Both of them are schemes of the parties to the collective agreement of the German building industry (listed as follows): Hauptverband der Deutschen Bauindustrie e. V. Kurfürstenstraße 129, Berlin Industriegewerkschaft Bauen-Agrar-Umwelt Olof-Palme-Straße 19, Frankfurt am Main Zentralverband des Deutschen Baugewerbes e. V. Kronenstraße 55-58, Berlin SOKA-BAU refunds to employers amounts paid by them to workers as leave pay. Furthermore SOKA- BAU grants the employees pays in lieu of leave and leave compensations at the agreed pay scales. Therefore, SOKA-BAU calculates the current leave entitlements of the worker, as specified by collective agreement. We SOKA-BAU will be glad to answer all questions concerning the leave scheme. This Law came into force in Germany on 1 March With regard to the building industry an essential part of this Law is the fact that the collective agreements on leave, the leave scheme and the minimum wages are also applied to employers and firms with a registered office outside Germany whenever they post workers to Germany for work in the building industry. The current version of this law can be found on our homepage A3. Legal Basis Law on compulsory working conditions for cross-border posted employees and employees regularly employed in Germany (German Law on the Posting of Workers AEntG) Gesetz über zwingende Arbeitsbedingungen für grenzüberschreitend entsandte und für regelmäßig im Inland beschäftigte Arbeitnehmer und Arbeitnehmerinnen (Arbeitnehmer- Entsendegesetz AEntG) Federal Framework Agreement for the Building Industry Bundesrahmentarifvertrag für das Baugewerbe (BRTV) Collective Agreement on the Social Fund Scheme in the Building Industry Tarifvertrag über das Sozialkassenverfahren im Baugewerbe (VTV) 1 of each of the collective agreements mentioned above establishes which companies are obliged to participate in the leave scheme. The mentioned collective agreements have been declared generally applicable by the Federal 11

12 Minister of Labour and Social Affairs. Due to that reason they cover each and every employment relationship irrespective of whether or not the employer or the employee is a member of the parties to the collective agreement. 8 of the BRTV describes and regulates the leave entitlements of the industrial employees (worker) while the handling of the leave scheme is regulated by VTV. The current version of these collective agreement norms can also be found on our homepage. Collective Agreement on the Regulation of the Minimum Wages in the Building Industry in the Federal Republic of Germany (Collective Agreement on Minimum Wages) Tarifvertrag zur Regelung der Mindestlöhne im Baugewerbe im Gebiet der Bundesrepublik Deutschland (TV Mindestlohn) Apart from the legislation on leave entitlements, posting companies are also bound to the Collective Agreement on Minimum Wages in the territory of the Federal Republic of Germany (Collective Agreement on Minimum Wages TV Mindestlohn) which can also be found on our homepage. The Collective Agreement on Minimum Wages TV Mindestlohn has been declared compulsory by an Ordinance on Mandatory Working Conditions in the Building Industry. Workers following instructions and realizing simple constructional or assembly tasks or any kind of auxiliary activities which do not require any kind of formal qualification shall receive the minimum wage in wage bracket 1 (minimum wage 1). The examples for activities concerning wage bracket 1 (simple constructional assembly tasks following instructions, simple maintenance and care tasks realized as instructed on civil engineering appliances or machinery) listed in 5 clause 3 BRTV are not exhaustive but a mere enumeration of examples. Workers realizing activities requiring a formal qualification as listed in 5 clause 3 wage bracket 2 and following shall receive the minimum wage in wage bracket 2 (minimum wage 2). If workers are posted with reference to governmental agreements made between Germany and any Central or Eastern European country, the provisions of these agreements are applicable, too. According to these governmental agreements the remuneration of these service contract workers has to be equal to the remuneration which the collective agreements of the building industry stipulate for German employees. In relation to that, SOKA-BAU refers to the information and explanations send to the posting companies in the context of the approval process. TV Mindestlohn stipulates that building companies must not pay less than the minimum wage to the employees posted to Germany. The minimum wage applicable in the Old Laender and in the New Laender as well as in the State of Berlin for the wage brackets 1 and 2 can be found in the table on the next page and on our homepage The minimum wage has to be paid, at the latest by the 15 th day of each calendar month following the month in which it was earned. With the help of the map at the end of A3. you can find out whether a building site is located in the Old Laender or in the New Laender. Further Protective Regulations The protective provisions listed in 2 AEntG like for example the regulations on maximum working hours and minimum rest hours or regulations on contract staffing also apply to posting companies. 12

13 Minimum Wages for Workers in the German Building Industry (Wages per hour) Old Laender excluding Berlin New Laender wage bracket 1: EUR wage bracket 1: EUR wage bracket 2: EUR Berlin 01/01/ /12/2013 wage bracket 1: EUR wage bracket 2: EUR Old Laender excluding Berlin wage bracket 1: EUR wage bracket 2: EUR Berlin 01/01/ /12/2014 wage bracket 1: EUR wage bracket 2: EUR New Laender wage bracket 1: EUR Old Laender excluding Berlin wage bracket 1: EUR wage bracket 2: EUR Berlin 01/01/ /12/2015 wage bracket 1: EUR wage bracket 2: EUR New Laender wage bracket 1: EUR Old Laender excluding Berlin wage bracket 1: EUR wage bracket 2: EUR Berlin 01/01/ /12/2016 wage bracket 1: EUR wage bracket 2: EUR New Laender wage bracket 1: EUR Old Laender excluding Berlin wage bracket 1: EUR wage bracket 2: EUR Berlin from 01/01/2017 wage bracket 1: EUR wage bracket 2: EUR Old Laender (West German States) Sleswig-Holstein Bremen Hamburg Lower Saxony North Rhine-Westphalia Hessen Rhineland-Palatinate Saarland Baden-Württemberg Bavaria Berlin (whole municipal area) New Laender wage bracket 1: EUR New Laender (East German States) Mecklenburg-West Pomerania Brandenburg Saxony-Anhalt Thuringia Saxony 13

14 A4. Requirements for an Obligation of Participation in the Leave Scheme Companies complying the following requirements are obliged to participate in the leave scheme of the German building industry: Building Sites in Germany A building company officially established outside Germany accepted a building contract in Germany and carries it out in Germany and on its own responsibility. Posting of Workers In addition to that, the building company is posting industrial employees (workers) to these building sites, for a limited period of time. Any person carrying out work on a building site either with his own physical strength and/or by means of building machines or any type of mechanical equipment is considered a worker. A person who cleans offices or carries out clearing or maintenance work on the building site is also considered a worker. This includes part-time workers. A person assigned with the supervision of the building site and not predominantly physically involved in construction activities is not considered a worker. The same applies to employees that realize planning, administrative or office jobs. These employees are not obliged to participate in the leave scheme of the German building industry. Realization of Predominantly Constructional Activities In addition to the above mentioned facts, the workers of the company are carrying out predominantly building work according to 3 ff. AEntG in conjunction with 1 cl. 2 BRTV, which means that, as established by these rules, the workers spend more than 50 % of their total working time realizing building activities. The list of activities at the end of Part III of the present information booklet shows a summary of typical building activities. The activities of an individual worker are not crucial in determining if an employer is obliged to participate in the leave scheme. Workers can be asked to realize activities which are not explicit building activities. If the work needs to be done to provide the building services, it must be included in the list of building activities. In this case, a job description has to be submitted to SOKA-BAU also for each of these workers. Independent Business Departments According to BRTV an independent business department is also considered a company. The entire team of workers which realizes predominantly building activities outside the stationary establishments of a company which normally does not fall in the area of application of BRTV is also considered a company. Contract Staffing/Loaning of workers If a company (lender) lends one or more workers to a building company (borrower) which in turn posts these workers to Germany, the lender is obliged to participate in the leave scheme of the German building industry for the lent employees (see 8 cl. 3 AEntG). No Obligation to Participate if Participating in a Similar Leave Scheme in the Posting State/Home Country If a company is already paying contributions into a leave scheme, comparable to the leave scheme of SOKA-BAU, in the country from which the workers are posted and if these contributions are also paid during the posting period, the leave fund can provide SOKA-BAU with a proof and stating that the contributions are paid during the workers activities in Germany. In the before mentioned case SOKA-BAU can grant exemption from the obligation of participation in the German leave scheme. A double summons to pay contributions is thus excluded. Current information concerning these institutions and schemes can be found on our website 14

15 B. Workers Leave Entitlements B1. Calculation of Leave Entitlement for a Calendar Year Accumulation Principle Each worker is entitled to 30 working days of leave during a calendar year (= leave year). Please note that Saturday is not a working day. The worker is entitled only to the number of leave days he accumulated up to the present during his activity on building sites in Germany. This also includes employment periods with building companies officially established in Germany, that is, the accumulation principle is not applied exclusively to employment periods with employers posting workers but also to employment periods with companies established in Germany. In order to calculate the number of leave days due to a worker at a given time, the number of the employment days needs to be calculated at first. Employment Days Basically all calendar days of a year during which an employment relationship with a building company exists are considered employment days. This includes Saturdays, Sundays and public holidays. For the purpose of leave entitlement, the employment relationship ends when the worker finishes his building activities in Germany. The following days are not considered employment days: all days, which the worker worked on building sites outside Germany for a building company officially established outside Germany; all days, which the worker was absent from work without valid reason (days without payment); all days for which the worker was granted unpaid leave only if more than 14 calendar days, if a worker takes unpaid leave of 4 weeks, for instance, his employment period is reduced by 28 days (4 weeks 7 calendar days). The employment days are to be calculated separately for each calendar year. To facilitate the calculation of employment days, a full month counts as 30 employment days. Calendar months must not be confused with employment months, for the first month of employment starts with the first day of the employment relationship on a building site in Germany. For incomplete employment months the number of employment days has to be calculated individually. 15

16 Example 1: A worker starts work on a building site in Germany on May 20 and continues on this site until December 31 of the same year. During this period he was absent without reason for 5 working days and enjoyed 21 days unpaid leave. How many employment days does he have to his credit? from May 20 to May 31 = 12 employment days from June 1 to December 31 = 7 employment months 7 30 calendar days = 210 employment days Total = 222 employment days minus days of absence 5 employment days minus unpaid leave 21 employment days Total = 196 employment days The worker has 196 employment days to his credit. The number of the leave days acquired throughout a calendar year is calculated on the basis of the employment days. Calculation of the Leave Days using Leave Divisor 12 After every 12 employment days the worker is entitled to one day of leave (= leave divisor 12). To calculate the leave day entitlement of a worker, the employment days are divided into leave divisor 12. Fractions of a leave day are to be rounded down to a full leave day during the current calendar year. Equation to calculate leave days: Total amount employment days = Leave days Leave divisor 12 Example 2: A worker works on a building site in Germany since April 1. He wants to take leave from October 21. What is his maximum entitlement on leave days? from April 1 to October 31 = 7 months 7 30 calendar days = 210 employment days 210 employment days = 17.5 leave days 12 Since within any given calendar year the number of leave days is rounded off to the next round figure, the worker is entitled to 17 leave days, which he can claim as early as October 21. Leave days are also considered days of employment. 16

17 B2. When can a Worker Take Leave? During the Employment on Building Sites in Germany The leave entitlement acquired in Germany can be taken by a worker during his employment period in the building industry in Germany. If the worker s posting period in Germany ends, he has the right to claim the leave days to which he is entitled and which have not been taken, during any later posting period. The employer who posts the worker to Germany is obliged to grant these leave days accumulated during a previous posting. If the worker is not posted to Germany anymore, he can apply to SOKA-BAU for the pay in lieu of his leave entitlements (see C2.). Time of Leave A worker who is entitled at least to one day of leave can take the leave if the employer agrees. Considering the worker s wish and the requirements of the company the employer fixes the time of leave. The granting of partial leave must not prevent the recreational purpose and effect of leave as a whole. 7 cl. 2 of the German Bundesurlaubsgesetz (Federal Leave Law) in conjunction with 2 cl. 2 of the German Law on the Posting of Workers AEntG regulates these aspects prescribing that leave should be granted as a continuous block unless urgent internal company reasons or reasons mentioned by the worker require a partition of the leave period. If leave is partitioned, one block must comprise at least two consecutive weeks (provided the worker accumulated at least the required number of leave days). Lapse of Leave Leave entitlements expire at the end of the year that follows the year in which the entitlements arose. Leave entitlements generated in the year 2012, for example, expire as soon as the year 2013 ends. Hence the employer must grant the worker the leave accumulated in the employment year 2012 by 31 December 2013 at the latest. After that date the worker has lost any claim for leave days and leave payments against his employer. Once a worker s leave entitlement has expired he cannot apply for the pay in lieu of leave (Abgeltung) from SOKA-BAU anymore. However, the worker has the possibility to turn to SOKA-BAU and apply for a compensation of leave for the lapsed entitlements (see C3.). B3. What Leave Pay does a Worker get from his Employer? Leave is paid recreational time. Hence the worker is entitled to leave pay for his leave days. Gross Wage as Basis A worker s entitlement to leave pay is based on the gross wage the worker earns in Germany. To calculate the amount of the leave pay, the employer has to calculate first the gross wage the worker has earned. The money due to a worker from his employer as compensation for his work is considered the gross wage. The gross wage usually is fixed in the employment contract in conjunction with legal provisions or provisions resulting from collective agreements of the country from which the worker is posted. Nevertheless, employers have to pay at least minimum wages for building activities realized in Germany. If, due to the legislation and provisions in the country from which a worker is posted, a worker s wage entitlement is higher than the German minimum wages, the higher wage must be paid. Workers from Central and Eastern European countries posted to Germany within the scope of bilateral labour contract agreements must be paid the minimum wages agreed for workers of the German building industry (see A3.). 17

18 For workers who are not subject to the German income tax law, the calculation of the leave pay is based on the wage, including non-cash benefits, if any, forming the gross wage according to the German tax law. For workers who are subject to the German income tax law, the leave pay is calculated on the basis of the amount of the gross wage earning recorded on the income tax card or employment tax statement. According to the German tax law, non-cash benefits which are not lump-taxed pursuant to 40 of the German Law on Income Tax Einkommensteuergesetz (EStG) as well as all gross wage earnings subject to lump taxation pursuant to 40a, 40b and 52a of the German EStG are part of the gross wage, except for workers contributions to the collectively bargained supplementary pension, the employer s contribution to the collectively bargained supplementary pension and the fees for group accident insurance. Boarding and lodging, if granted for free by the employer, are considered non-cash benefits. If boarding and lodging are granted by the employer at a reduced price, the difference between the reduced price and the fair market value is considered part of the gross wage. Granted leave pays are also part of the gross wage. The collectively agreed 13 th monthly pay as well as any similar payment by the company (like Christmas bonus, special annual bonus), the pay in lieu of leave or any compensation paid at the end of the employment relationship are not part of the gross wage. For further details please see 8 no. 4.2 BRTV and 15 cl. 4 VTV or contact SOKA-BAU, your tax counsellor or the competent tax office. Leave Pay at the Current Rate of % of Gross Wage Leave pay has been established as a percentage of gross wage. Currently the percentage is % of the gross wage. The percentage consists of the leave pay of 11.4 % of the gross pay which replaces the work wage during the period of leave and the extra leave bonus which amounts to 20 % of the leave pay. Equation to calculate leave pay: % of gross wage amount = leave pay The total gross wage includes any leave payments and shall be calculated accordingly. Payment by the Employer If an employer grants leave to a worker during his posting period in Germany, he is obliged to pay the leave pay directly to the worker. Time of Payment to the Worker The employer is obliged to pay the leave pay at the same time when the regular wage is due. These payments shall be realized latest by the 15 th of the month following the month for which wage payment was due. Leave Pay for Workers not Enjoying their Leave Entitlement to the Full (Partial Leave) If a worker only takes part of the accumulated leave (leave entitlement), the employer has to grant him the according daily rate for each leave day taken. If a worker takes several leave days the daily rate is to be multiplied by the number of leave days granted: 18

19 Equation to calculate leave pay for partial leave: leave entitlement = daily rate leave days daily rate leave days granted = leave pay Example 3: A worker has accumulated 8 leave days and leave pay entitlement of 1, EUR during the calendar year of Now he wants to take 2 days of leave. What is his pay entitlement for this partial leave? 1, EUR = EUR EUR 2 = EUR Several Partial Leaves Granted During a Calendar Year As employment continues, the amount of the gross wages earned as well as the number of employment days increase. Consequently, this leads to an increase of the worker s total entitlement of leave days and leave pay for the current calendar year. At first, any leave already granted has to be deducted from the total entitlement. The result is the remaining entitlement for the current calendar year. If the worker does not take the full remaining leave entitlements, that means, if he takes another partial leave, a new daily rate has to be calculated from the remaining entitlement. The new daily rate has to be multiplied by the new number of leave days granted. Equation to calculate leave pay for several partial leaves: The employer has to pay the worker EUR leave pay for 2 days of leave. remaining leave entitlement = daily rate remaining leave days daily rate granted leave days = leave pay 19

20 Example 3 (ctd.): The before-mentioned worker has already received 2 days of leave and a leave pay of EUR of his leave entitlement for calendar year In the meantime he has spent a total of 130 employment days working on German building sites during that calendar year. Furthermore, he earned a total gross wage of 11, EUR (incl. leave pay). Now he wants to take another 6 days of leave. How much leave pay does the employer owe the worker for 6 days of leave? a) First of all, the total leave pay entitlement accumulated by the worker throughout the current calendar year has to be calculated on the basis of his total gross wage % of 11, EUR = 1, EUR The amount of leave pay entitlement acquired by the worker during the whole calendar year is 1, EUR. The worker already received EUR of that entitlement. 1, EUR EUR = 1, EUR Hence, the amount of the remaining leave pay entitlement is 1, EUR. b) The number of leave days accumulated for that year also has to be calculated again. 130 = / rounded down to The worker is entitled to a total of 10 leave days for calendar year These 10 leave days must be reduced by 2 days he has already taken = 8 The worker s leave day entitlement remaining for calendar year 2012 is 8 leave days. c) As the worker does not want to take all 8 remaining days at once, he is asking for partial leave again which requires the calculation of the leave pay by means of a daily rate. The new daily rate is multiplied by the number of leave days now granted to the worker. 1, EUR = EUR EUR 6 = EUR The employer pays the worker leave pay of EUR for 6 leave days granted newly in

21 B4. What Happens with Remaining Leave Not Used at the End of a Year? Carry Forward to Next Calendar Year At the end of a calendar year the leave days that have not been granted, have to be calculated and transferred to the following calendar year. Fractions of leave days amounting at least a half day have to be rounded up to a whole leave day now. Remaining leave can only be granted until the end of the following year. Any leave not taken until that time cannot be carried forward. Calculation of the Remaining Leave Determine the employment days accumulated in Germany during the past calendar year. Divide the employment days into the leave divisor 12 in order to calculate the total leave day entitlement of the past calendar year. Round fractions of leave days amounting at least a half leave day up to a whole leave day. Subtract the leave days already taken during the past calendar year from the accumulated leave days. The sum of that operation constitutes the number of remaining leave days. These remaining leave days have to be transferred to the following calendar year so that the worker can use them for his leave during the new calendar year. Example 4: During a calendar year a worker worked on a building site in Germany from April 1 to December 31. During that year he was granted 16 days of leave by his employer. He continues working on building sites in Germany after December 31. What is his leave entitlement that must be transferred into the next calendar year? from April 1 to December 31 = 9 months 9 30 calendar days = 270 employment days 270 = days of leave acquired 22.5 / rounded up to 23 days deducting 16 days of leave granted remaining days of leave 7 The worker s remaining leave entitlement is 7 days. These days are transferred to the next calendar year and have to be taken by December 31 of this new calendar year. 21

22 Remaining Leave Entitlements from the Past Are to be Granted before Leave Entitlements from the Current Year If the worker continues working on building sites in Germany during the next year, he gains new leave entitlements. Before granting the worker leave during the new calendar year, the employer has to check if the worker has remaining leave entitlements from the past year that have been transferred. In order to avoid the expiry of the leave entitlements of the previous year (see B2.) the remaining leave entitlements of the past year have to be granted before the leave entitlements of the current year. Example 5: A worker transferred 8 leave days from year 2011 to Furthermore, he is entitled to remaining leave pay from year 2011 (amount of 1, EUR). Now, in year 2012, he wants to take 6 leave days. What is the worker s leave pay entitlement from the remaining entitlement from 2011? As the worker does not want to take the whole leave but just a part of the remaining entitlement, the leave pay has to be calculated on the basis of daily rates. Separate Leave Entitlements by Calendar Year In order to avoid the expiry of leave entitlements of the previous year, the remaining leave entitlement of the past year has to be granted before the leave entitlements of the current year are granted. Due to that fact, the statements issued by SOKA- BAU show leave entitlements listed separately by calendar years. In case a worker wants to take more leave than he has left from the past year, the employer has to grant him the full remaining leave entitlement from the past year and calculate a part of leave entitlement from the current calendar year. This is also done on the basis of the daily rate (as in example 3). After that, the entitlements resulting of the two years have to be summed. The employer is obliged to pay the leave pay in a single amount. 1, EUR = EUR EUR 6 = EUR The worker obtains the amount of EUR leave pay for 6 days of leave. 22

23 Example 6: A worker transferred 8 days of remaining leave and an amount of 1, EUR remaining leave pay entitlement from 2011 to In year 2012 he has already worked on building sites in Germany for 65 employment days and gained a gross wage of 5, EUR. Now, in year 2012, he wants to take 10 days of leave. a) Leave remaining from year 2011 As the number of remaining leave days (8) is lower than the number of leave days the worker wants to take in total (10), the employer has to grant the full leave entitlement remaining from year As for that, there is no need to calculate a daily rate for this part of the leave pay. b) Annual leave for the current year 2012 At first, the accumulated leave pay entitlement for 2012 has to be calculated on the basis of the total gross wage for year Furthermore, the number of leave days the worker has accumulated meanwhile during calendar year 2012 has to be calculated. 65 = 5.42 / rounded down to 5 12 Consequently the worker is entitled to 5 days of leave for the current calendar year For the two days by which the leave applied for (10) exceeds the remaining days (8) from year 2011, the leave pay has to be calculated on the basis of a daily rate as the worker is taking only part of his leave entitlements for the year 2012 (2 of 5 days of leave acquired). B5. What Happens if a Worker has been Granted Leave before Posting? Leave Granted in Advance and Crediting In case an employer already granted a worker leave before posting (leave days and leave pay) in the current calendar year that (without any remaining leave entitlement from the year before) was higher than the leave entitlement accumulated until the time of posting, the German legislation puts this to the employers credit. The leave days and leave pay granted in advance are deducted from the leave entitlement the worker acquires in Germany. If leave in the posting countries is calculated in business days (Monday to Saturday), it must be converted into working days as this is the basis in Germany. Divide into 6 and multiply by 5. 23

24 Example 7: In his home country a worker s leave entitlement for a whole calendar year (= 365 calendar days) is 24 business days (Monday to Saturday). He is posted to a building site in Germany on April 1. During the period from January 1 to March 31 (=90 calendar days) the employer already granted him 9 business days of leave from the current calendar year in his home country. Is this leave granted in advance? a) The annual leave entitlement in the worker s home country is converted into working days as follows: 24 business days 5 6 = 20 working days b) Thus the leave granted in the home country corresponds to 7 working days: 9 business days 5 6 = 7.5 / rounded down to 7 working days c) For 90 calendar days of work in his home country before posting the worker acquired leave entitlements amounting 4.93 working days: 20 working days = 4.93 working days d) The worker was granted 2 days of leave in advance: leave days granted 7.00 deducting prorated acquired leave entitlement 4.93 leave days granted in advance 2.07 / rounded down to 2 Leave days granted in advance are always rounded down. The leave entitlement acquired in Germany is thus reduced by 2 days. Calculation of Leave Deduction The leave pay that the worker received from the employer for the leave days granted in advance has to be deducted from the leave pay which the worker acquires in Germany (= amount of deduction). This may also be payment of wage during the time of leave such as when in the worker s home country the leave pay regulation is that wage is paid for the period of leave. 24

25 Example 7 (ctd): A worker received 7 days of leave and a leave pay of EUR before posting. Which amount has to be deducted from his leave pay in Germany for the 2 days of leave granted in advance? leave pay EUR 7 leave days = EUR per leave day in the home country EUR 2 = EUR The worker s leave pay acquired in Germany will be reduced by EUR (amount of deduction). Information on the Form Worker s Basic Data If a worker is granted leave during the current calendar year before the posting which excluding any entitlement to remaining leave from the year before was longer than the accumulated leave entitlement, the employer has to fill in boxes (29) to (33) of the form Worker s Basic Data (see Part III, A.). This information has to be submitted to SOKA-BAU separately for each new calendar year in which an employer grants leave to the worker. Once a calendar year has ended SOKA-BAU can unfortunately not give retroactive effect to information. Time of Deduction The employer receives the deducted amount from SOKA-BAU in the following cases: when the employer grants leave pay to a worker for the first time or in special cases when the employer grants specific monetary compensation in lieu of leave, the worker s posting period has ended, a new calendar year starts, i.e. if the worker was posted to Germany before the end of a calendar year and keeps working on building sites in Germany for the same employer during the new calendar year or Application of the Leave Deduction As the leave deduction is considered a payment already made by the employer, SOKA-BAU remits the leave deduction into the employer s business account, if he paid all due contributions to SOKA- BAU. In case the employer owes contributions to SOKA-BAU, SOKA-BAU will set off the amount of the leave deduction against the amount still due. The employer is not permitted to set off leave deduction against contributions due from him. B6. What Happens if a Worker Changes to Another Employer? Transfer of Leave If a worker changes to another building company working in Germany, he is given the right to enjoy the accumulated leave entitlements with his new employing building company. This is also possible for workers changing to German building companies. The fact that a worker can transfer his leave entitlements within Germany whether the proprietor of a building company has his registered office in Germany or in another country, is a particular advantage. if a worker contracts with another employer. 25

26 Communication of the End of an Employment Relationship by the Previous Employer In order to enable a worker to assert his leave entitlements accumulated at a new employer, the previous employer is obliged to communicate the end of the employment relationship to SOKA-BAU indicating the employer ID as well as the worker ID. Vacation Statement as Working Paper Whenever a worker changes for another employer, he receives a vacation statement (worker s account statement), issued by SOKA-BAU, showing his current leave entitlements in that moment. This document is deemed a vacation statement. If an employer employs a worker who was employed by another company of the building industry before, he asks either the worker to present the vacation statement or SOKA-BAU to issue a vacation statement containing the up-todate information. When calculating the remaining leave entitlements the new employer should be aware of the leave entitlements of the current as well as of the past (remaining leave) calendar year as the employee might have left residual leave entitlements from his previous employer for the past or current calendar year that he did not take yet. B7. Worker s Account Statement leave day and leave pay entitlements acquired as well as the leave entitlements granted). The entitlements that have not been taken or granted are also listed in the statement. In addition to his current leave entitlements left according to the collective agreements the worker is informed about the amount of his leave pay entitlements that have actually been funded by the employer s contributions. After the billing of reimbursements, payments in lieu of leave and pays of compensation the workers receive an updated account statement. If SOKA-BAU does not receive notification of a new employment relationship or a new posting period within three months after the end of the previous employment relationship or posting period in the building industry, the worker receives a worker s account statement containing all relevant information about his former employment relationship. This also applies if the worker s employment relationship is not covered by the collective agreements of the building industry anymore and if he does not start a new employment relationship covered by the collective agreements of the building industry within the period of three months. All this information is retrieved from the reports the employer is obliged to send to SOKA-BAU every month. At the end of each calendar year any worker receives a worker s account statement issued by SOKA-BAU informing him about his leave entitlements. The employer receives a statement showing the entitlements of all of the workers he posted to Germany. The account statement contains important details about the worker s activity in Germany during the last two calendar years (duration of the employment, employment days, gross wages, If the employer makes a mistake passing the information and reports to SOKA-BAU which leads to the fact that the account statement is incorrect or incomplete the worker can demand the employer to correct the information within the period of two months after he received the account statement. If, even though demanded, the employer does not correct the information, the worker has the right to sue the employer, including in German courts, to enforce correction. 26

27 C. Services Offered by SOKA-BAU C1. Employer s Reimbursement Claims Leave Pay for Holiday during the Posting Period If an employer grants leave days to a worker during his posting and work period on building sites in Germany, the employer is obliged to pay the leave pay directly as explained in B3. SOKA- BAU reimburses this payment to the employer. Limitation by Worker s Collectively Agreed Entitlement The amount of the leave pay is calculated as explained in B3. to B5. If a worker takes partial leave the amount of the leave pay is calculated by means of a daily rate (further information see B3.). If an employer grants a worker more leave than he is entitled to according to the collective agreements, this is a voluntary payment and an excess of what is agreed in the collective agreements. The exceeding amount cannot be reimbursed. Payment in Case of Contribution Coverage and Complete Monthly Reports SOKA-BAU reimburses leave pays to all employers whose contribution accounts are balanced and who realized the submission of all due reports and other information. No Setting Off by the Employer The employer is not allowed to offset reimbursement amounts against contribution in arrears by himself. Possibility to Set Off SOKA-BAU has the possibility to credit the amount to be reimbursed on the account of the employer. That implies the following conditions: all monthly reports due to SOKA-BAU must have been submitted, there are no doubts as to the legitimacy of the amounts the employer wants to have reimbursed, and in case the amount to be reimbursed is less than the contribution to pay, the difference as well as the interests on arrears have been paid in advance. The same applies to companies that have to participate retroactively (submit monthly reports and contributions) in the fund scheme of SOKA-BAU. Lapse and Time Limits Any right to claim the reimbursement of leave pays expires, in principle, if the reimbursement is not claimed from SOKA-BAU by September 30 of the year following the year in which the claim was originated. In case an employment relationship ends or if a worker is no longer covered by BRTV (i.e. after the posting period), even if the employment relationship persists, the right to claim reimbursement of leave pay is limited to the 15 th day of the second month following the end of posting or termination. Example 8: As his posting period ends, a worker leaves Germany on 25 August The employer has the right to claim reimbursement of leave pays paid to the worker during August 2012 or earlier, at the latest by 15 October Any claims coming in after that date will be rejected by SOKA-BAU, in principle. In case a company has to participate retroactively in the fund scheme, the period for reimbursement claims is limited to 2 years. The limit begins at the end of the year in which SOKA-BAU informed the employer about the obligation to pay contributions to SOKA-BAU. If there is a pending legal action between SOKA-BAU and the employer, the two year limit begins after the end of the 27

28 year in which it is decided by court judgement or mutual agreements that the employer's company is obliged to participate in the leave scheme. Application forms are to be found in Part III of the present booklet and on our homepage (available in different languages). C2. Pay in Lieu of Leave for Workers Pay in Lieu of Leave by SOKA-BAU If a worker finishes his work on building sites in Germany and is not without a working contract afterwards (not jobless), SOKA-BAU disburses him a pay in lieu of leave which he can apply for, at the earliest, three months after his last working day in Germany. In these cases SOKA- BAU assumes that the worker will not return and work on building sites in Germany for some time, which means that the leave entitlements accumulated do not have to be reserved for further employment in Germany. Example 9: A worker was posted by his employer to building sites in Germany until June 30. After that, he returned to stay in his home country. The worker is entitled to apply and receive the pay in lieu of leave from SOKA-BAU on and after October 1. Worker s Application for Pay in Lieu of Leave The worker must apply for the pay in lieu of leave. If a worker did not apply for the pay and returns to Germany to work as an industrial employee (worker) on a building site, he regains his total leave entitlements acquired before (leave and leave pay). In case the employee has no application form at his command he should note that his application must contain the following information: worker ID first name and surname date of birth current address current bank account details Information that there is no existing unemployment The application has to be signed by the worker in his own hand. Pay in Lieu of Leave by the last Employer if Worker Receives a Pension The worker has only the right to claim his pay in lieu of leave against his last employer (for whom he worked as a worker in the building industry) if he receives an old-age pension or disability pension. SOKA-BAU reimburses this pay in lieu of leave to the employer. We will be pleased to provide the employer with forms so he can inform SOKA-BAU about the amount of the pay in lieu of leave paid to the worker and claim the reimbursement of the pay. SOKA-BAU will need a copy of the pension approval certificate as a proof. Provision of Reduction If the employer did not pay the total amount of the due contributions, SOKA-BAU has to reduce the pay in lieu of leave correspondingly. If the worker changes to a white-collar or trainee job, he receives his pay in lieu of leave right after finishing his building work. The worker has to add a copy of his white-collar or trainee job contract to the application. Obligation to Pay Social Security Contributions and Income Tax If the pay in lieu of leave is subject to social security, SOKA-BAU deducts a lump sum from the amount which varies from country to country and transfers it to the employer. If the social security contribution to pay is higher than the lump sum deducted, the worker has to reimburse the 28

29 difference to the employer. If the social security contribution to pay is less than the lump sum deducted, the employer has to pay the difference to the worker. In addition to that SOKA-BAU is obliged to deduct a lump sum for the payment of the income tax as well as the solidarity tax and transfer it to the tax office Finanzamt Wiesbaden. At the latest by 28 February of the following year each worker will receive an employment tax statement issued by SOKA-BAU showing the income tax deducted during the last year. If you have not been committed 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 office Finanzamt Wiesbaden. Example 10 (ctd.): A compensation for expired leave entitlements from calendar year 2011 can be claimed from SOKA-BAU only during calendar year The time limit for the application starts on 1 January 2013 and ends on 31 December Worker s Application of Compensation Application forms can be found in Part III of the present information booklet and under tab Medienraum of our homepage (available in different languages). In case the worker has no application form at his command he should note that his application must contain the following information: C3. Compensation Paid to Workers for Expired Leave Entitlements Compensation Paid by SOKA-BAU Leave entitlements and entitlements of pay in lieu of leave expire at the end of the calendar year following the year in which the entitlements were generated. Example 10: The leave days, leave pays and pays in lieu of leave accumulated in calendar year 2011 expire on 1 January Nevertheless, SOKA-BAU pays compensation to the workers for the lapsed leave entitlements provided that they have not received a pay in lieu of leave before. Monetary compensation can be claimed by the worker from SOKA-BAU only in the second calendar year after which the leave entitlement originated. It cannot be claimed earlier or later. An application send in too early must therefore possibly be repeated at a later point of time. worker ID first name and surname date of birth current address current bank account details The application has to be signed by the worker in his own hand. In order to keep the time limits, postal running and delivery times, especially concerning cross-border services, should be taken into account. Exception Time Limits in Case of Legal Disputes In case SOKA-BAU (ULAK) and the employer are involved into legal disputes concerning the question whether the employer s participation in the leave scheme is mandatory or not, the employee has the right to apply for the compensation pay within one year after the final sentence has been issued. Provision of Reduction If the employer did not pay the total amount of the due contributions, SOKA-BAU has to reduce the pay in lieu of leave correspondingly. 29

30 SOKA-BAU endeavours to collect outstanding contributions of the employer. If an em ployer pays the due contributions retroactively, the employee has the possibility to apply for and receive the amount he is still entitled to up to four calendar years after the leave entitlement has lapsed. In this case SOKA-BAU contacts the workers by himself. Obligation to Pay Income Tax SOKA-BAU is obliged to deduct a lump sum for the payment of the income tax as well as the solidarity tax and transfer it to the tax office Finanzamt Wiesbaden. At the latest by 28 February of the following year each worker will receive an employment tax statement issued by SOKA-BAU showing the income tax deducted during the last year. If you have not been committed 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 office Finanzamt Wiesbaden. In addition to that SOKA-BAU needs a copy of the certificate of inheritance or any other suitable document to prove the hereditary. If the deceased leaves multiple heirs (community of joint heirs), the community of joint heirs is asked to authorise one person in a written form to receive the payment of the leave entitlements. The authorisation must be en closed with the application for payment. C5. Leave Entitlements of Severely Handicapped Persons and Underage Workers Different leave provisions are in force for severely handicapped persons and minors. The collective bargaining terms for leave for the people mentioned before can be found on our homepage. In particular, 8 nos. 2.2 and 4.1 and no. 11 of the BRTV apply. C4. Entitlements in Case of Death of a Worker Assignment to Heirs If a worker dies, his leave pay entitlements, entitlements to pay in lieu of leave or monetary compensation are assigned to his heirs. Claims of leave pay entitlements have to be directed to SOKA-BAU, too. Information and Proofs for SOKA-BAU SOKA-BAU needs the following information of the heirs: first name and surname of the deceased date of birth and day of death worker ID address of the person applying (e.g. heir) current bank account of the heir 30

31 D. Employer s Obligation to Participate D1. Required Information and Documents Employer s and Workers Basic Data Employers are obliged to complete the original forms Employer s Basic Data and Worker s Basic Data and send them to SOKA-BAU. Explanations and instructions on how to fill in the before mentioned as well as all the other forms can be found in Part III of the present information booklet. The completed forms have to be returned to SOKA- BAU as soon as possible. Otherwise an orderly participation in the leave scheme is not guaranteed. Certificates Relating to the Employer s Company SOKA-BAU needs certificates confirming that the employer is registered at the place of business outside Germany named before (entry in the commercial register, business permission certificate, certificate of the craft register or a similar certificate). SOKA-BAU accepts copies of the before mentioned documents. If the company gets registered in Germany as well, please, remit copies of the relevant certificates to SOKA-BAU, too. Communication of Changes to SOKA-BAU SOKA-BAU has to be informed in writing and without delay about any change relating to the employer s and worker s basic data. Report of Monthly Gross Wage and Leave Pay (Monthly Report) on the 15 th Day of the Following Month The employer informs SOKA-BAU about the monthly paid gross wage for each of the workers using the electronic reporting scheme or the original form (paper). Remember to report the paid wages which must comply at least with the minimum wages established on the basis of the current collective wage agreement. If the employer pays leave money for granted leave days during the posting period, SOKA-BAU has to be informed about the gross leave money paid as well as about the leave days granted for the corresponding calendar month in addition to the other data required in the monthly report. The leave money paid must, at least, be equivalent to the leave pay entitlements due to a worker according to the guidelines established in the collective agreement. The monthly report for each calendar month must reach SOKA-BAU by the 15 th day of the following month at the latest. Please indicate the nine-digit employer ID as well as the country code (abbreviation for the country in which the company has its registered office) in every writing. A list of country codes can be found at the end of Part III of this information booklet. If you report processes or operations related to specific workers, please indicate the worker ID as well. The indication of this data contributes to a quicker processing of your purposes. Each employer is obliged to realize his monthly reports accessing and using the online services (electronic reporting scheme) provided by SOKA- BAU. Employers can be exempted from the obligation of using the electronic reporting scheme, if they apply for it and if they are able to prove that this method of reporting is, due to economic or personal reasons, unacceptable for them. The employer is entitled to present monthly reports in a nonelectronic way until a decision on the application has been made. 31

32 Please enter our homepage in order to register for the international online services from SOKA-BAU. Further information regarding the electronic reporting scheme can be found in Part II of the present information booklet. D2. How the Employer can Safeguard the Leave Entitlements of the Workers Payment of Monthly Contributions by the 20 th Day of the Following Month The remittance of the monthly contribution must be registered on the account of SOKA-BAU by the 20 th day of the following calendar month. Since January 2016 the contribution rate is determined to 14.5 % of the monthly gross wages of all workers posted to Germany. Please pay your contributions exclusively to the following bank account of SOKA-BAU Urlaubsund Lohnausgleichskasse der Bauwirtschaft : Landesbank Hessen-Thüringen Girozentrale, Bank identification number (sort code) , Account number , SWIFT code/bic: HELADEFF, IBAN code: DE40_5005_0000_0012_0000_22. The employer bears the bank fees that may occur. Therefore the fees have to be remitted in addition to the fund scheme contributions. According to 270 clause 1 of the German civil code BGB in conjunction with 22 VTV this applies to bank fees charged in Germany as well as to bank fees charged in any other country. Survey of the contribution rates since year 2010: 14.3 % from 2010 to % in ,1 % in ,5 % as of January 2016 The current contribution rate is available on: The gross wage for which contributions are payable is the same gross wage as the one taken as a basis for the calculation of the worker s leave entitlements (see B3.). In order to keep the bank fees as low as possible when making payments from non-eu countries, instruct your bank to credit our account with the full amount using the SWIFT payment method, specifying our SWIFT code/bic HELADEFF and by checking 71A: OUR in the appropriate checkbox. Always enter your employer ID in the field purpose of the remittance form. Otherwise SOKA-BAU might not be able to assign the payment to your company which might lead to the consequence that we request you to remit the same amount again, even though it has already been paid. However, the rate of contribution to the leave fund scheme and the worker s rate for leave pay contributions are not necessarily identical. The current rate for annual leave payments to the workers is % of the gross wage, whereas the contribution rate is 14.5 %. No Deduction of Contribution from Wage The employer is obliged to pay the leave fund scheme contributions in addition to the wages. They may not be withheld or deducted from the worker s pay. 32

33 D3. Consequences in Case of Delayed Payment Interest on Arrears If an employer delays the payment of his monthly contributions, he will be charged interests on arrears of 1.0 % of the total amount of the contribution to pay for each month or part thereof he delays the payment. This regulation entered into force as from July Delayed payments for the period before July are charged with 5 per cent over the base rate defined by the European Central Bank. Guarantor s Liability When an employer fails to make payment of all or part of his dues to SOKA-BAU, SOKA-BAU will enforce such payment pursuant to 14 AEntG either from the failing employer s client or from any of his further clients. According to 14 AEntG regarding the fail of payments the liability of the guarantor is primarily. Nevertheless, it is still the employer s duty to pay the contributions in full to SOKA-BAU for the workers he employs. In such cases, the employer s clients are then entitled to take recourse from the actual debtor the employer. If you decide to balance the account at a later point of time, interests on arrears to pay are calculated on the basis of the total amount not paid in time. SOKA-BAU does not issue reminders as the exact date for the payment of the contribution (20 th day of the following month) is set by the calendar. Hence, the employer s payment is delayed if it is registered with SOKA-BAU by the 21 st day of the following month or later. Litigation to Enforce Payment of Contributions SOKA-BAU can take legal action against employers whose payments are in default. According to 15 AEntG and 23 clause 1 VTV the labour court Arbeitsgericht Wiesbaden holds exclusive jurisdiction for litigations between employers and SOKA-BAU. Regulatory Offences SOKA-BAU informs the customs authority if an employer is in default of payment of his contributions. According to 23 clause 1.1 of the AEntG an employer/company that does not pay the due contributions in time is committing regulatory offences. Regulatory offences such as these are subject to a fine up to 500, EUR. In addition to that, employers in default can be excluded from the award of public contracts in Germany. According to 15 AEntG and 23 clause 4 VTV, in case of a litigation between a client and SOKA- BAU the labour court Arbeitsgericht Wiesbaden holds exclusive jurisdiction. The so called client s early warning system Bürgenfrühwarnsystem by SOKA-BAU offers companies the possibility to obtain information about whether the set in subcontractor is participating duly in the leave scheme. For this, the subcontractor authorises the client using the form which can be found on the homepage to obtain from SOKA- BAU monthly information, related to building sites, about the actually employed workers and about the reported gross wages. Presenting the before mentioned authorisation, the subcontractor will be informed about the fact if monthly reports and monthly payments of the contributions have been submitted and if and to what extend there are arrears of dues. Clients of prequalified subcontractors and clients that possess a so called certificate of release from liability from SOKA-BAU for their subcontractors will not be claimed as guarantors by SOKA- BAU up to a certain liability limit in accordance with 14 AEntG. Further information regarding this purpose can be found on the website 33

34 Part II: Electronic Reporting Scheme In principle, each employer is obliged to realize his reports to SOKA-BAU using the online service (electronic reporting scheme) offered by SOKA- BAU. Employers can be exempted from the obligation of using the electronic reporting scheme, if they apply for it and if they are able to prove that this method of reporting is, due to economic or personal reasons, unacceptable for them. The employer is entitled to present monthly reports in a nonelectronic way until a decision on the application has been made The multilingual internet application helps you to submit your monthly reports to SOKA-BAU in a simple, clear and safe way. At the same time it offers you the possibility to enter corrections of monthly reports or other data. To participate in our online system you basically only need a customary computer meeting the state-of-the-art with access to the internet. 3. The registration to the international online services of SOKA-BAU can be made on our homepage Before participating in the electronic reporting scheme, please send the required application of admission to SOKA-BAU. In order to generate the application of admission, please complete the following steps: Please sign and stamp the PDF document you generated and send it via fax to the following number:

35 SOKA-BAU will send you your personal access data as well as a detailed procedure manual for further steps. Instructions on how to complete this form can be found in Part III of the present information booklet. Figure of the electronic form of the monthly report Figure of the data transfer interface After your data has been successfully submitted, a detailed overview of the submitted data is generated. You can print this overview for your records. Part III: SOKA-BAU Forms Instructions: Completion of the Forms In order to make filling in the forms easier for you, the employer, SOKA-BAU copied and explained all forms mandatory for a proper participation in the leave scheme on the following pages. Please use the company stamp you usually use in Germany. Please return the filled in forms to SOKA-BAU as soon as possible and inform us immediately about all changes. Please use block capitals of the Roman alphabet to fill in the forms. Fill in the employer ID, the country code and the worker ID if applicable. Please confirm all forms are signed. The forms must be signed either by the legal representative of the company or by an authorised person. In addition to that, each worker should sign his own personal data form. Please note that the deadline for submission of Monthly Reports is always the 15 th day of the following month. Please make sure you are always using the original forms to facilitate a quick processing of your data. Forms are also available for download under tab Medienraum of our homepage SOKA-BAU will be pleased to send you the forms on request as well (requests via: phone, fax or ). 35

36 EMPLOYER S BASIC DATA (Arbeitgeber-Stammdaten) Page 1 of 2 pages SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach Wiesbaden DEUTSCHLAND Please write Latin block letters Sample letters: A B C D E F (1) Employer ID (2) Country code (3) Company name and legal form (3) Company name and legal form ctd. (4) Legal representative(s) (managing director, executive director, etc.) (5) Company s authorized representative in Germany (optional information) Address for delivery in Germany (6) Address holder s name (or c/o name) (6) Address holder s name (or c/o name) (ctd.) (7) Street (8) House number (9) Postal code (10) City or town (11) Dial code (12) Phone number (13) Fax number Principal place of business (14) Street (15) House number (16) Country code (17) Postal code (18) City or town (19) Dial code (20) Phone number (21) Fax number (22) Tax ID S-AG/1 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 36

37 A. Forms for Employers Instructions: Completion of the Form Employer s Basic Data General This form has to be completed and sent to SOKA- BAU in case you, as an employer, post workers to German building sites for the first time. Please communicate any changes of the data in a written way. to (1) - (2) Please enter the employer s ID and the country code (see list Country Codes) into these boxes. to (3) Please inform SOKA-BAU about your complete company name and the (abbreviated) legal form of your company (e. g. Ltd., Co.plc., etc.). to (4) Fill in the name of the legal representative (managing director, executive director, etc.) of your firm. If there are several persons, enter the name of the chairperson. In all other cases, please enter the names of all persons. If you need more space to fill in the names you can use a separate sheet for the rest of the data. to (5) Fill in the name of the person who is authorised to represent your company and to receive written documents. If nobody has been explicitly authorised, please fill in the name of the person who is entitled to issue instructions to the workers in your name. Please enclose a copy of the authorisation. Address for Postal Delivery in Germany to (6) Fill in the name of the person or company in case the postman cannot know exactly that the mail of the authorised person or your company can be delivered to the address mentioned below (e. g. if the name does not appear on the letterbox, the bell or the entrance to the house). Please fill in the name that appears on the letterbox etc. to (7) - (13) street name, house number* postal code*, city/town dial code, phone number fax number Please specify in the seven fields mentioned before, how and where SOKA-BAU can contact you in Germany. Information on the Principal Place of Operation to (14) - (21) street name, house number* country code (see list of country codes) postal code*, city/town prefix, phone number fax number Please enter all the requested information on your (principal) place of operation, outside Germany, from where the posting of workers is realized. If this is a branch office or agency of a company with registered main office in a third country, please submit the above-requested information on the company s main office on a separate sheet of paper to SOKA-BAU. to (22) Please fill in the tax number by which you are registered with the foreign tax office to which you pay wage tax for your workers. * Please enter your postal code or house number into this field even if they are placed differently in the country where you have your registered office, i.e. after the city or before the street name. 37

38 EMPLOYER S BASIC DATA (Arbeitgeber-Stammdaten) (1) Employer ID (2) Country code Page 2 of 2 pages Bank reference in (23) Germany or in (24) posting country (Please tick whichever is applicable) (25) Name of the bank (26) Bank ID / bank key / bank code (27) Account number (28) SWIFT-CODE / BIC (29) IBAN Detail of building site especially in Germany,,,, (30) Type of work from activity list, see information booklet end of part III (31) Description of activitiy if key no. is 26 at (30) Please add a copy of the following documents: your official registration certificate the registration of your company in the register of companies the registration of your business in the craft register (or similar proof) If you are registered in Germany, please add photocopies of all registrations. At best, you can verify your operating activities through the performance index of the contract for work of the building sites for the current calendar year. (32) Date (33) Signature of the employer or representative (34) Firm s stamp S-AG/2 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 38

39 Bank Account Details in Germany (23) or in (24) the Posting Country Please enter your bank account details. As international bank transfers generate high costs which you will have to bear, a German bank account would be favourable. You should consider this if you do not yet have a bank account in Germany. to (23) If you have a German bank account, please tick this box. to (24) If you have a bank account in any other country, tick this box. Please consider that a quick remittance to a bank account outside Germany can only be guaranteed if you enter the IBAN. to (25) - (29) name of the bank bank identification number (sort code)/bank key/bank code account number SWIFT code/bic IBAN code to (30) - (31) Operational Activities Especially those Relating to Germany Please indicate what kind of work or activity your company is realizing in general and which kind of work or activity your company is realizing particularly in Germany. If your company is carrying out different activities, please fill in the numerical code for each (for numerical code see end of Part III of the present booklet). If the activities you are realizing do not match with any of the key numbers mentioned in the list, please enter a brief description of your activities in field number (31) or on an additional page. to (32) - (34) Please confirm all entries applying your signature and company stamp on the last page of this form and specifying the date. Please apply the company stamp you usually use in Germany. 39

40 WORKER S BASIC DATA (Arbeitnehmer-Stammdaten) Page 1 of 2 pages Please write Latin block letters SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach Wiesbaden DEUTSCHLAND Sample letters: A B C D E F (1) Employer ID (2) Country code (3) Worker ID (4) Surname (5) First name(s) Day Month Year (6) Date of birth Address in the posting country (7) Street (8) House number (9) Country code (10) Postal code (11) City or town Competent collecting agency for social security contributions (12) Name of the collecting agency (13) Street (14) House number (15) Country code (16) Postal code (17) City or town (18) Social security number Competent wage tax agency (tax office) (19) Name of the tax office (20) Street (21) House number (22) Country code (23) Postal code (24) City or town (25) Tax number S-AN/1 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 40

41 Instructions: Completion of the Form Worker s Basic Data General Please complete and send this form to SOKA-BAU every time you post a new worker that has not been posted before to a German building site. Please fill in a separate form for each of your workers. to (1) - (3) Please fill in your employer ID, the corresponding country code (see list of country codes) and, if already available, the worker ID. to (4) - (6) Please fill in the complete name, first name/s and date of birth of the worker. Address in the Posting Country/Home Country to (7) - (11) street name, house number* country code (see list of country codes) postal code*, city/town Please fill in the worker s complete home address (main place of residence). Competent Collecting Agency for Social Security Contributions to (12) Name the collection centre to which you are legally bound to pay the social security contributions (e.g. health insurance, pension scheme, unemployment insurance, accident insurance, etc.). to (13) - (17) street name, house number* country code (see list of country codes) postal code*, city/town basic data sheet and add a reference on the rest of the worker s basic data forms. to (18) Fill in the number under which the employer is registered with the agency for social security contributions. In case the above mentioned contributions have to be paid to various agencies or institutions, please write down the contact details [(12) to (18)] of all the institutions on a separate sheet. Competent Wage Tax Institution (Tax Office) to (19) Please fill in the complete name of the institution or tax office to which you or the worker himself pay the worker s wage tax. to (20) - (24) street name, house number* country code (see list of country codes) postal code*, city/town Please fill in the complete address of the tax institution or office. If the tax institution is the same for all or several workers, please fill in the requested information into the mentioned fields of one worker s basic data sheet and add, like mentioned before, a reference on the rest of the worker s basic data forms. to (25) Please fill in the worker s tax number. Please fill in the complete address of the collecting agency (in the posting country/home country). If the collecting agency is the same for all or several workers, please fill in the requested information into the mentioned fields of one worker s * Please enter your postal code or house number into this field even if they are placed differently in the country where you have your registered office, i.e. after the city or before the street name. 41

42 WORKER S BASIC DATA (Arbeitnehmer-Stammdaten) Page 2 of 2 pages (1) Employer ID (2) Country code (3) Worker ID Period of posting Day Month Year Day Month Year from to (tentative) (26) Posting period (27) Type of work from activity list, see information booklet part III (28) Description of work if code no. is 26 in (27) Leave granted in posting country before posting Day Month Year, (29) The current employment began on (30) Worker s annual leave entitlement (workdays) in posting country (31) Leave days taken in the current calendar year (workdays) before posting, (32) Leave money paid before posting in (33) national currency or EUR Leave fund scheme in posting country* (34) Name of the leave fund (35) Worker s ID with this leave fund (36) Employer s ID with this leave fund * Please complete only if your company participates in a leave fund scheme in the posting country and you continue paying contributions for the worker. Please add the confirmation of the leave fund stating that you are obliged to pay contributions. (37) Date and worker s signature (38) Date/firm s stamp/signature of employer/authorised representative S-AN/2 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 42

43 Period of Posting to (26) Please fill in the exact date of the first day of work in the posting country and the expected date of termination of the work on the building site. to (27) Please indicate the kind of activities the worker realizes on the building site using the table activity list at the end of Part III of this information booklet. to (28) This field only has to be filled in if you chose code 26 (other building work). Please use this space to give a brief description of the activities the worker is realizing. Leave in the Posting Country/Home Country before Posting Fields (29) - (33) only have to be filled in if the worker received advance leave before posting (see B5.). to (29) Enter the period of uninterrupted employment of the worker with your company. to (30) Please fill in the worker s current annual leave entitlements in the posting country/home country in business days (Monday to Saturday). A fraction should be given as a decimal digit. to (31) Please enter the number of leave days in business days that you already granted the worker during the current calendar year. Residual leave days from the past year are not to be in- cluded. A fraction should be given as a decimal digit. to (32) Please enter the amount of leave money, this is, leave pay plus additional leave bonus, you have already paid the worker during the current calendar year. Fill in only the leave pay for leave accumulated and granted during the current calendar year. Leave pay paid for leave accumulated during the year before must be deducted. Please be aware that you have to update the entries in field (31) and (32) regularly if you have granted leave in the posting country before the next posting. to (33) Enter the abbreviation of the currency (national currency or EUR) in which you paid the worker s leave money in accordance with field (32). Comparable Leave Fund Scheme in the Posting Country/Home Country Fields (34) - (36) should only be completed if your company is participating in a leave fund scheme in the posting country and paying contributions to this fund for the worker entered before also during the posting period in Germany. In this case, SOKA-BAU needs a certificate of this leave fund confirming the payment of the contributions. to (34) - (36) name of the leave fund worker s ID with the leave fund employer s ID with the leave fund to (37) The worker can confirm the correctness of the given information signing this form. to (38) Please confirm all entries applying your signature and company stamp on the last page of this form and specifying the date. Please apply the company stamp you usually use in Germany. 43

44 MONTHLY REPORT (Monatsmeldung) Page 1 of Pages SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach Wiesbaden DEUTSCHLAND Data of the worker (5) Worker ID (6) Date of birth Please fill in Latin letters Example: A B C D E F (1) Employer ID (2) Country code Month Year E U R (3) Accounting month (4) Currency Day Month Year Day (7) left company or end of posting (8) Surname (9) First Name(s) Data of employment and leave for the accounting month: from till, (10) employed in Germany (first and last calendar day) (10a) working hours subject to payment of wages (10b) deficit hours (illness without payment) = from till (11) unpaid (leave days) (12) other days (without payment) (13) granted paid leave days (number of calendar days) (number of working days and as leave period),, (14) granted leave remuneration (15) gross wage liable to contribution incl. leave remuneration (14) (5) Worker ID (6) Date of birth Day Month Year Day (7) left company or end of posting (8) Surname (9) First Name(s) Data of employment and leave for the accounting month: from till, (10) employed in Germany (first and last calendar day) (10a) working hours subject to payment of wages (10b) deficit hours (illness without payment) = from till (11) unpaid (leave days) (12) other days (without payment) (13) granted paid leave days (number of calendar days) (number of working days and as leave period),, (14) granted leave remuneration (15) gross wage liable to contribution incl. leave remuneration (14) Carryovers:,, (16) Sum of the granted leave remunerations (17) Sum of the gross wages liable to contribution incl. leave remuneration of (16) MM/1 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 44

45 MONTHLY REPORT (Monatsmeldung) (1) Employer ID (2) Country code page of pages Month Year Carryovers:, (3) Accounting month (16) Sum of the granted leave remunerations from previous page(s) Data of the worker (5) Worker ID (6) Date of birth Day Month Year Day, (17) Sum of the gross wages liable to contribution incl. leave remuneration of (16) from previous page(s) (7) left company or end of posting (8) Surname (9) First Name(s) Data of employment and leave for the accounting month: from till, (10) employed in Germany (first and last calendar day) (10a) working hours subject to payment of wages (10b) deficit hours (illness without payment) = from till (11) unpaid (leave days) (12) other days (without payment) (13) granted paid leave days (number of calendar days) (number of working days and as leave period),, (14) granted leave remuneration (15) gross wage liable to contribution incl. leave remuneration (14) (5) Worker ID (6) Date of birth Day Month Year Day (7) left company or end of posting (8) Surname (9) First Name(s) Data of employment and leave for the accounting month: from till, (10) employed in Germany (first and last calendar day) (10a) working hours subject to payment of wages (10b) deficit hours (illness without payment) = from till (11) unpaid (leave days) (12) other days (without payment) (13) granted paid leave days (number of calendar days) (number of working days and as leave period),, (14) granted leave remuneration (15) gross wage liable to contribution incl. leave remuneration (14) Carryovers:,, (16) Sum of the granted leave remunerations (17) Sum of the gross wages liable to contribution incl. leave remuneration of (16) MM/f SOKA-BAU - Leave scheme in case of posting to building sites in Germany 45

46 MONTHLY REPORT (Monatsmeldung) (1) Employer ID (2) Country code page of pages Month Year Carryovers, (3) Accounting month (16) Sum of the granted leave remunerations from previous page(s) Data of the worker (5) Worker ID (6) Date of birth Day Month Year Day, (17) Sum of the gross wages liable to contribution incl. leave remuneration of (16) from previous page(s) (7) left company or end of posting (8) Surname (9) First Name(s) Data of employment and leave for the accounting month: from till, (10) employed in Germany (first and last calendar day) (10a) working hours subject to payment of wages (10b) deficit hours (illness without payment) = from till (11) unpaid (leave days) (12) other days (without payment) (13) granted paid leave days (number of calendar days) (number of working days and as leave period),, (14) granted leave remuneration (15) gross wage liable to contribution incl. leave remuneration (14) (18) Total amount of the gross wages liable to contribution incl. leave remuneration, x current contribution rate (19) due leave fund contribution, (20) Sum of the granted and reimbursable leave remunerations, Applying his signature the employer confirms that he has granted the mentioned leave remunerations and leave days. (21) Date/firm s stamp/signature of the employer/authorized person MM/s SOKA-BAU - Leave scheme in case of posting to building sites in Germany 46

47 Instructions: Completion of the Form Monthly Report (electronic and non-electronic) General This form has to be completed and send to SOKA- BAU for each calendar month in which you post at least one worker to Germany. No entries shall be made for white-collar employees (e.g. foremen). The completed form must reach SOKA-BAU by the 15 th day of the following calendar month at the latest. If you report the gross wages for more than 5 workers, please copy the middle page of the form (page without addresses and signature field) and use it for the other workers. This form is also available for download under tab Medienraum of our homepage: to (1) Please enter the employer ID. to (2) Please fill in the country code into this box (see list in Part III at the end of the present booklet). to (3) Enter the calendar month and the year for the corresponding report. to (4) All amounts have to be indicated in EUR. Worker s data to (5) Enter the ID under which the worker is registered with SOKA-BAU. The ID always starts with the figure 50. to (6) Enter the date of birth of each worker in order to avoid confusion with other workers. to (7) Please enter the date at which the employment relationship between your company and the worker ended. This is the date at which the worker left your company. to (8) - (9) Name(s), First name(s) Here you enter the name(s) and first name(s) of the worker whose worker ID you entered in (5). to (10) Please fill in the period in which the worker has been working for you in Germany during the corresponding calendar month. If a worker is posted to Germany more than once per month, please indicate the periods on a separate sheet. to (10a) Enter the working hours subject to payment of gross wages liable to contributions (see field 15). Leave hours are not to be included here. to (10b) If due to illness the worker has not been working for you during the posting period and the posting does not end due to that illness, please enter the deficit hours not worked due to illness and for which the worker has no right on continuation of payments into this field. to (11) If you granted the worker unpaid leave or special leave, enter the number of days into this field. Please add a copy of the corresponding applications of the worker or agreements made between you to the monthly report. to (12) If there were other days without pay entitlement in Germany (e. g. absence without excuse), please enter the number of days into this field. Complete this field only if these days are within the employment period (see field 10). In case of several days or a period of time, please count all calendar days, including Saturdays, Sundays and public holidays. to (13) If you granted the worker paid leave days within the period of employment (see field 10), please enter the number of leave days (only working days = Monday to Friday) as well as the first and the last day of leave into these fields. to (14) Please enter the (gross) leave money paid to the worker during this month. to (15) The leave money (14) has to be included in the gross wage subject to contributions. You have to enter the paid gross wage but at least the due minimum wage. In 8 clause 4.2 BRTV you can find information on the parts compounding the gross wage. If you have any doubts or questions please contact the tax agency, your tax consultant or SOKA-BAU. to (16) Enter the sum of the leave pay from (14) on this page. Enter the amount again on the next page top right. to (17) Please enter the total sum of the gross wages from (15) in here. Enter the amount again on the next page top right. to (18) Please fill in the total of all gross wages from (15) on the last page of the monthly report. to (19) Enter the leave fund contribution calculated on the basis of the total gross wages (18) 47

48 into this field. The sum is the amount that must be remitted to SOKA-BAU latest by the 20 th day of the calendar month following the posting month. If your bank charges fees for remittances, remember to add the fee amount to the amount you remit. Otherwise you cannot be credited with the full amount you owe us. to (20) Please fill in the total of all leave pays handed out by you during this calendar month (14) on the last page of the monthly report. This amount will be reimbursed to you by SOKA-BAU, as designated in the collective agreements, if you comply with all reporting obligations and there are no amounts due to SOKA-BAU. to (21) Please confirm all entries, especially the payment of the leave money and the granting of the leave days during the posting period in Germany, applying your signature and company stamp on the last page of this form and specifying the date. 48

49 49

50 Application for pay in lieu of leave/ application for compensation (Abgeltungs- und Entschädigungsantrag des Arbeitnehmers) SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach Wiesbaden DEUTSCHLAND page 1 of 2 Please fill in Latin letters Employer ID (1) Worker ID Country code Day Month Year (2) Surname of the worker (3) Date of birth (4) First name(s) of the worker Address in the home country (5) Street (6) House number (7) Postcode (8) Town (9) Country (10) Area code (11) Telephone number (12) Fax number I apply for Pay in lieu of leave (13) The application for pay in lieu for leave entitlements from the year 2015 can only be filed until , for entitlements from the year 2016 only until Please mark with a cross if applicable: I have not been working on building sites in Germany for more than three months. Contemporarily, I m not unemployed. I switched into a white-collar or training relationship. Please attach a copy of your employment or training contract. Compensation (14) The application for compensation of leave entitlements from the year 2014 can be filed between and AE/1 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 50

51 B. Forms for Workers Instructions: Completion of the Form Worker s Application for Pay in Lieu of Leave/ Compensation General To enable SOKA-BAU to pay the pay in lieu of leave or the compensation pay to a posted worker, the worker shall apply for it by filling in this form and sending it to SOKA-BAU. This form can also be downloaded on our homepage: (tab Medienraum ). In addition to that the use of this form is not mandatory. The application can also be written down on a sheet of paper but must contain all the requested information (see C2.). to (1) The worker enters the worker ID with SOKA-BAU into this field. The worker ID starts with the figure 50. to (2) - (4) The worker enters his personal data into these fields: name date of birth first name(s) Worker s Application to (13) The worker has to tick this box if he has not been working in the building industry in Germany within the last three months or when he changed to a white-collar or trainee job and wants to apply for pay in lieu of leave. If a worker changed to a white-collar or trainee job SOKA- BAU needs a copy of the employment or training contract as a proof. The pay in lieu of leave cannot be paid while the worker is without a job. to (14) The worker has to tick this box if his leave entitlements have lapsed and he wants to apply for compensation. In this case, it is important to consider and keep the time limits. The application must reach SOKA-BAU during the second calendar year after which the entitlements were generated. Home Address to (5) - (12) The worker enters his current address in his home country: street name, house number* postal code*, city/town country prefix, phone number, fax number * Please enter your postal code or house number into this field even if they are placed differently in your home country, i.e. after the city or before the street name. 51

52 Application for pay in lieu of leave/ application for compensation (Abgeltungs- und Entschädigungsantrag des Arbeitnehmers) (1) Worker ID page 2 of 2 Bank reference The pay in lieu of leave / compensation I am entitled to should be transferred to the following bank account: (15) Name of bank (16) Postcode (17) Town (18) Country (19) Bank Code (20) Account number (21) SWIFT-CODE / BIC (22) IBAN (23) Account holder (Please indicate if differing from the employee, but do not authorize your employer or a person authorized by your employer. Since we need a legitimating document for using differing recipients, please enclose a copy of your passport / ID card to your application. The pay in lieu of leave and the compensation are payments of SOKA-BAU directly to you as an employee, which are made independently from the employer.) If you don t provide us with a bank reference, we will send you a cheque to your home address. With this signature I, the employee, assure the correctness of my statement. (24) Date / Signature of the Employee AE/2 SOKA-BAU - Leave scheme in case of posting to building sites in Germany 52

53 Bank Account Details to (15) - (22) The worker provides his current personal bank details to which the pay in lieu of leave or the compensation pay shall be directed. The following details shall be entered: name and address of the bank bank identification number (sort code)/ bank key/bank code account number SWIFT code/bic IBAN code to (23) If the worker does not have a bank account, he has the possibility to enter the bank details of a trustworthy person, that will hand over the sum of the money remitted for the worker by SOKA-BAU, into the fields (15) - (22). In order to realize the remittance SOKA-BAU needs the complete name (first name and surname) of the account holder in addition to the bank details for every application. The account holder must not be the employer nor a person authorised by the employer. These persons are not entitled to receive pays in lieu of leave or compensation payments as the payment is made by SOKA-BAU to the worker directly. In order to legitimate the account holder, a copy of the worker s identity card/passport has to be added to the application. to (24) In this field the worker confirms all entries of the form applying his signature and specifying the date. Without the worker s signature SOKA-BAU will not make any remittances. List of Country Codes Country Code Austria... AT Belgium... BE Bosnia-Herzegovina...BA Bulgaria... BG Canada...CA Croatia... HR Cyprus...CY Czech Republic...CZ Denmark... DK Estonia... EE Finland...FI France... FR Germany...DE Great Britain... GB Greece... GR Hungary...HU Iceland... IS Ireland... IE Italy... IT Latvia...LV Liechtenstein...LI Lithuania... LT Luxemburg...LU Macedonia... MK Montenegro...ME Netherlands...NL Norway...NO Poland...PL Portugal... PT Romania... RO Russia... RU Serbia... RS Slovakia... SK Slovenia... SI Spain... ES Sweden... SE Switzerland... CH Turkey... TR Ukraine... UA 53

54 List of Activities code activity 01 Structural engineering also including: bricklayer operations, jointing operations (jointing of brickwork, installation of expansion joints, joints between built-ins and building substance) 02 Concrete Works also including: civil engineering works, works with reinforced concrete, works with reinforced concrete with installation of glass bricks, formwork, drilling and sawing of concrete (floor and wall openings and the like) 03 Reinforcing works also including: bending and plaiting of steel (only if part of the building work proper) 04 Construction of chimneys and installation of heating also including: construction of furnaces except construction of tiled stoves and central heating 05 Prefabricated building also including: assembling, installation and production of prefabricated units 06 Carpentry also including: woodwork, restoration of half-timbering 07 Construction of façades also including: installation of façade units except slating 08 Stucco and plastering works also including: plaster works, works with wire lath (always including restoration works) 09 Insulation works for temperature, sound and moisture control also including: sealing operations, insulating works 10 Tiler and paver works also including: laying of mosaic tiles, laying of products made of artificial stone, natural stone or ceramic materials 11 Construction of floors also including: screed works, floor covering using textiles, vinyl tiles and wood (only combined with previous production of screed floors) 12 Works with Venetian mosaic (terrazzo) also including: production of Venetian mosaic floors, laying or installation of Venetian mosaic products 13 Assembling of components also including: works in dry technique of construction, assembling works i.e. installation of dry walls, ceilings, windows, door frames, garage doors, assembling of claddings and coverings made of plate and alike things 54

55 14 Rehabilitation works also including: protection of buildings and iron components, heating and drying works on the building site (only in case of treatment of the walls), repairs of concrete, protection of wood components, elimination or binding of asbestos in buildings and components 15 Civil engineering works also including: pile driving works, earthmoving operations, levelling work, drilling in the ground 16 Special civil engineering works also including: tunnelling works, shaft construction works 17 Laying of underground cables and construction of conduits also including: construction of underground pipelines, soil openings (pipe pushing) 18 Construction of wells also including: boring and drilling of wells 19 Earthworks also including: arrangement of soil, drainage works, clearing and grubbing of ditches, fascine work, (chemical) soil consolidation works 20 Road construction works also including: road rolling works, road marking works, paving works 21 Track laying works 22 Hydraulic engineering works also including: construction of water works, water holding and dewatering works, construction of waterways, construction of locks 23 Demolition works also including: blasting operations, removal works (only in connection with subsequent construction works such as excavation, levelling, bricklaying and concrete laying works) 24 Production of building material that cannot be stored also including: ready-mixed concrete, ready-mixed mortar, bitumen or other mixtures used for road construction works (production for the own company or integrated companies) 25 Renting of construction machinery with operating staff (e.g. excavators, crawler excavators, concrete pumps, automobile cranes and the like) 26 Other construction works All construction works that are not included in this list. Please describe the activities you are realizing in your own words, if you choose code

56 Part IV: Statutory Registration Procedure Registration/Assurance under 18 AEntG The following job providers are subject to written reports in German language: Employers with registered offices located outside Germany which post at least one or more workers to a German building site, Borrowers who post at least one or more workers of a lender with registered office outside Germany to a German building site. These reports shall be sent by fax to: Generalzolldirektion Finanzkontrolle Schwarzarbeit Direktion VII Wörthstraße Köln GERMANY Fax: To comply with the reporting duties, the German customs administration Zollverwaltung provides and recommends the use of their form which can be filled in electronically. The related form is available under: > Fachthemen > Arbeit > Meldungen bei Entsendungen. that is, realizing exclusively mobile work the employer or borrower is obliged to present a manpower planning report in accordance with the ordinance regarding compulsory reg istration pursuant to Arbeitnehmer-Entsendegesetz (AEntGMeldV). The written report or manpower planning report has to include the following information: Employer: Surname, first name(s) and date of birth of the workers the employer posts to Germany Start and prospected duration of the posting Place of employment (building site) Place in Germany where the employment documents required in accordance to 19 AEntG are kept on file Surname, first name(s), date of birth and contact address in Germany of the person responsible (contact person for controlling authorities for the supply of information, i.e. project manager, foreman) Industry or branch to which the workers will be posted Surname, first name(s) and address of a person authorized in Germany to receive postal deliveries for the employer in Germany, if this person was not the person responsible mentioned above If workers are employed on a fix place of employment, working always or occasionally before 6:00 a.m. or after 10:00 p.m., realizing shift work, on different places of employment during the same day working without a fix place of employment, Borrower: Surname, first name(s) and date of birth of the hired workers/employees Start and prospected duration of the hiring Place of employment (building site) Place in Germany where the employment documents required in accordance to 19 Arbeitnehmer-Entsendegesetz (AEntG) are kept on file 56

57 Surname, first name(s) and address in Germany of a person authorized to receive postal deliveries for the lender Industry or branch to which the workers will be posted Surname, first name(s) or company as well as address of the lending company The manpower planning report has to contain the following additional information: The employment information for workers realizing stationary work has to be completed by the indication of the prospective days and the prospective time of work. The employment information for workers realizing mobile work has to be completed by the indication of the prospective days and the prospective time the workers are supposed to work. Employers or borrowers realizing exclusively mobile activities are asked to indicate the place where they start their work instead of the place of employment in the manpower planning list. Exclusively mobile activities are activities that are not bound to a certain place of employment. The realization of these activities cannot be assigned to a fix address. The planning report can be extended up to a three month period. Employers who fulfil a work contract and who operate in Germany in the scope of bilateral governmental agreements are also obliged to the submission of reports. The material working conditions that have to be granted (wages/leave) comply primarily with the prior-ranking work permit or right of residence as well as the relevant governmental agreements. However, this does not exclude the application of AEntG. The employer or borrower also has to fulfil reporting duties if: the starting date of the building work changes, the date of the start or end of the contract staffing changes, other workers than the ones primarily planned and reported are to be employed, employees already reported and registered are planned to be employed in another building site, another person than the reported and registered one is authorized to receive postal deliveries or the address of the person authorized to receive postal deliveries changes. According to AEntGMeldV the Employer or borrower that are obliged to submit a manpower planning report do not necessarily have to submit change reports if: the work on the reported employment place aberrates less than one hour or the aberration from the reported manpower planning list of the team is not higher than two persons and all of the employed posted workers have been reported in the context of another current manpower planning report. The reporting form requires the employer to provide assurance that the prescribed terms and conditions of work will be compiled with. In case of contract staffing the borrower has to provide an assurance issued by the lender guaranteeing that the prescribed terms and conditions of work will be compiled with. According to 1 of the German regulation on the construction industry Baubetriebe-Verordnung the contract staffing of workers to companies of the building industry is only permitted under certain conditions. See also 1b of the German Temporary Employment Act Arbeitnehmerüberlassungsgesetz (AÜG): 1b Restrictions applicable to the Building Industry 1 of the German Temporary Employment Act AÜG defines contract staffing to companies of the building industry for work that is typically carried out by workers as illegal. Contract staffing is permitted: a) between companies of the building industry and companies of other industries, if these companies of other industries are covered by collective agreements that have been decla- 57

58 red generally applicable and that permit the practice of contract staffing, b) between companies of the building industry, if the lending company can prove that it is being covered by the same Framework Agreement and the Collective Agreement on the Social Fund or by its general applicability for not less than three years. By derogation from sentence 2, for companies of the building industry with a registered office in a member state of the European Economic Area other than Germany contract staffing is also permitted if the foreign companies are not covered by the German Framework Agreement and the Collective Agreement on the Social Fund but can prove they have been realizing predominantly activities which fall within the scope of the same Framework Agreement and the same Collective Agreement on the Social Fund as the company of the borrower for not less than three years. 58

59 Index of Key Words A Account statement of the worker...26 Accumulation principle...15 Activity predominantly constructional activities...14 Address of the employer in Germany...36 of the employer in the posting country...36f. of the worker in the posting country...40f. of the collecting agency for social security contributions...40f. of the collecting wage tax institution...40f. of Leave Fund Scheme in the Posting country...42f. Agreement, see collective agreement Application application for pay in lieu of leave... 28ff., 50, 52 completion of application for pay in lieu of leave/compensation... 51, 53 application for compensation... 29f., 50, 52 application for reimbursement, see Monthly report Application of the leave deduction...25 B Bank Account Details of the employer...38f. of the worker...52f. of Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (ULAK)... 32, 62 Borrower... 14, 56ff. Building site in Germany...14 Business day...23f. Business department...14 C Certificate of release from liability...33 Certificates... 14, 26, 29ff. Change of the employer transfer of leave...25 vacation statement...26 Client s early warning system Bürgenfrühwarnsystem...33 Collecting agency for social security contributions...40f. for wage tax...40f. Collective agreement...11f. Collective Agreement on the Social Fund Scheme in the Building Industry, see VTV Comparable leave fund scheme in the posting country...14 Compensation of lapsed leave pay and pay in lieu of leave...28f. Completion of forms instructions: Completion of the forms...35 application of pay in lieu of leave/ compensation... 51, 53 Monthly report...47 f. Employer's basic data...37 Worker's basic data... 41, 43 Contract staffing/loaning of workers... 14, 57f. Contribution report... 31, 44f. Customs authority...33, 56 D Days without payment... 15, 44ff. Death of a worker...30 Deduction information on worker s basic data...42f. amount to be deducted...24 time of deduction...25 of leave granted in advance...23 Duration of leave...15 E Electronic reporting scheme...34f. Employer s ID...8, 31f. Employment days...15f. Employment tax statement...30 End of a year

60 Euro... 31f., 44 Exemption from the obligation of participation...14 F Federal Framework Agreement for the Building Industry (BRTV)...11 Federal Laender Old Laender...13 New Laender...13 Federal Leave Law Bundesurlaubsgesetz...10 Fee for remittance of employer s contribution payment...32 Forms, see completion of forms G German Law on the Posting of Workers Arbeitnehmer-Entsendegesetz (AEntG)...11 Granting of leave...15, 17 Gross Wage... 17, 31f. Guarantor s Liability...33 H Heirs...30 I Independent business departments...14 Industrial employee...14 Interest on arrears...33 Internet...34, 62 L Lapse and Time Limits for leave entitlements and entitlements of. pay in lieu of leave...17 for reimbursements...27 Law on compulsory working conditions for cross-border posted employees and employees regularly employed in Germany (German Law on the Posting of Workers Arbeitnehmer-Entsendegesetz AEntG)...11 Leave for industrial workers...15f. for minor workers...30 for severely handicapped workers during the posting period...17 Leave and Wage Equalisation Fund of the German Building Industry Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (ULAK)...10 Leave days paid... 15ff. equation to calculate leave days...16 unpaid...15 Leave divisor...16 Leave entitlement in case of worker s death...30 in case of change of employer...25f. lapse and time limit...17 Leave fund schemes, comparable...14 Leave money leave pay...18 additional leave bonus...18f. Leave pay equation for calculation of leave pay...18 Leave rate...18 Legal actions...29 Lender... 14, 56ff. List of activities...54f. List of country codes...53 Lump sum for worker s contribution to the system of social security and tax...29f. M Minimum wage, see wage Monthly report... 34, 44ff. O Order when granting leave...22 Overview...8f. P Partial leave...18f. Parties to the collective agreement...11 Pay in lieu of leave...28, 51f. application for pay in lieu of leave... 28, 50ff. in case of termination of working activity in Germany...28 in case of change to a white-collar or trainee job...28 in case of old-age or disability pension

61 in case of death of the worker...30 lapse and time limit...17 Payment of contributions...32 of compensation...29 of reimbursement...27 of wage tax...30 of pay in lieu of leave...28f. of leave pay...18 of social security contribution...28 amount of deduction...25 Payment of contribution... 32, 46f. Place of jurisdiction...33 Posting of industrial employees...14 Posting of Workers Directive European Posting of Workers Directive...10 Predominantly constructional activity...14 Prequalification...33 R Regulatory offence...33 Reimbursement of leave remuneration...27 Remaining leave entitlements calculation of the remaining leave... 21ff. Remittance of the leave deduction to the employer s business account...25 of the contribution to SOKA-BAU...32 Reporting dates...31f. Reporting duties...31f. Retroactive participation of a company...27 Right to deduct from pay in lieu of leave...28 from compensation pays...29 S Set off against the amount still due...27 Setting Off...27 Severely handicapped persons, see leave for severely handicapped workers Social security...28 SOKA-BAU...10f. T Tax office... 9, 29f., 41 Time for contribution report...31f. for payment of contribution...32 for application for pay in lieu of leave/ compensation...28, 50f. of deduction... 25, 27 of pay in lieu of leave...28 of granting of leave...17 of leave pay...18 Time of leave...17 Transfer of leave at end of year...21 in case of change of employer...25f. U Underage workers, see leave for underage workers V VTV Collective Agreement on the Social Fund Scheme in the Building Industry...11 W Wage Minimum wage...12f. Based on collective agreement...12 Wage tax...28f. Worker ID... 9, 28ff. Worker, see industrial employee Worker...14 Worker s account statement...26 Working days

62 How to Contact Us? Please Label Your Mail to the Following P.O. Box Address: SOKA-BAU Urlaubs- und Lohnausgleichskasse der Bauwirtschaft Hauptabteilung Europa Postfach Wiesbaden GERMANY Office Address: Wettinerstraße Wiesbaden GERMANY What is Our Bank Reference? Please address your payments only on the following bank account of Urlaubs- und Lohnausgleichskasse der Bauwirtschaft: Landesbank Hessen-Thüringen Girozentrale bank identification number (sort code) account number SWIFT code/bic HELADEFF (check box for banking field 71A: OUR) IBAN code : DE40_5005_0000_0012_0000_22 Please remember to fill in your employer ID in the field reference of your bank transfer form. Further Ways to Contact us: You can also send us your letters via fax to the following fax number: You can reach us by phone on the following phone number: address: Europaabteilung@soka-bau.de homepage: 62

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64 U SOKA Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (publisher) Wettinerstraße Wiesbaden English Version as of May 2016