Different levels of collectively agreed surcharges for night work permissible

(BAG, ruling dated February 22, 2023 - 10 AZR 332/20)

Regularity of night shifts determines surcharge amount

The plaintiff is employed by the defendant, a global company of the beverage industry, where she performs night work in a rotating shift model. The collective bargaining agreement applicable to the employment relationship provides for a night work surcharge on the hourly pay of 50% for irregular night work and 20% on the hourly pay for regular night work. In addition to the 20% surcharge on hourly pay, employees who are assigned to permanent night work or to a 3-shift rotation have one day of "shift time off" for every 20-night shifts worked. The plaintiff is of the view that the different levels of night work surcharges violate the general principle of equality under Article 3 (1) of the Basic Law. An objective reason for the unequal treatment could only exist with regard to occupational health and safety. In her view, however, the health impairments would not increase as a result of irregular night work compared to regular night work. The right to shift time off did not eliminate the unequal treatment, since it did not compensate for the specific burdens of night work.

Lack of plannability of irregular night work as objective reason

After the Court of Justice of the European Union ruled in a reference for a preliminary ruling from the Federal Labour Court in a judgment dated July 7, 2022 (C-257/21) that the regulation of night work surcharges in collective bargaining agreements is not an implementation of Union law, the Federal Labour Court was now able to decide on the action itself. In this respect, the Federal Labour Court states that employees who perform regular night work are comparable to those who perform irregular night work and that unequal treatment exists if different surcharges are paid. However, here is a recognisable objective reason for this unequal treatment regulated in the collective bargaining agreement, so that a corresponding justification exists. There is no violation of the principle of equality under Article 3 (1) of the German Basic Law. In addition to the protection of health and the compensation of harmful consequences employees suffer due to night work, a night work surcharge can also serve other purposes. In particular, the burdens on employees who work irregular night shifts can be compensated by higher surcharges due to the difficulty of planning the work assignments. The difference between the surcharges is at the discretion of the collective bargaining parties. The payment of a higher night surcharge on the hourly wage is therefore possible. The decisive factor for the existence of an objective reason is that the additional purpose – as in this case – is recognizable from the collective bargaining agreement.

The Federal Labour Court ruled the same way in a parallel case (10 AZR 33/20), in which it was also found that higher surcharges for irregular night work could not only be justified by the additional burdens of night work, but were also intended to compensate for a lack of planning ability.

Effects on practice

The ruling has a signal effect for a large number of lawsuits pending in all instances in Germany dealing with regulations on night work surcharges. With its decision in 2023, the Federal Labour Court has now changed its case law and set the first principles for the legally secure drafting of collective bargaining agreements regarding night work surcharges.

In 2013, the Federal Labour Court (BAG, ruling dated December 11, 2013 - 10 AZR 736/12) assumed that there was no unequal treatment within the meaning of Article 3 (1) of the German Basic Law in different night work surcharges amounts and thus approved different night work surcharges. However, in 2018, the Federal Labour Court (BAG, ruling dated March 21, 2018 - 10 AZR 34/17) then ruled that a collective bargaining agreement provision that provided for lower night work surcharges for regular night shifts than for irregular night surcharges was invalid. The employees concerned were therefore entitled to claim the higher night surcharges in each case, even if they did not meet the requirements.

In its reasoning for the reference for a preliminary ruling, the Federal Labour Court had also assumed that the collective bargaining agreement in question violated the principle of equality under Article 3 (1) of the German Basic Law.

Now, different surcharges for night work can be assessed according to whether there is an objective reason that goes beyond the protection of health and whether this reason is recognisable in the collective bargaining agreement.