The Federal Constitutional Court lifted two judgments from the Federal Labor Court. It was about different payment of night work.
The Federal Constitutional Court lifted two judgments that the Federal Labor Court had previously spoken. They dealt with the question of how night work is paid. In the specific cases, it was about employees from the beverage and food industry. In these industries, night work is regularly incurred, for example because stoves or filling systems have to be operated around the clock.
Different Payment for night work
The collective bargaining contracts on which the lawsuit is based stipulates that employees receive surcharges for their nightly work. However, there are differences in height: shift workers who work regularly and firmly at night get only 25 percent more salary. However, according to the collective agreement, those who have to go out in exceptional and sporadically get 50 percent more salary. So it was agreed between employers and unions.
The Federal Labor Court (BAG) in Erfurt, however, saw this unequal treatment a violation of the Basic Law and gave a lawsuit of shift workers against their employers on more money. The top labor judges in Erfurt ordered: shift workers also received a surcharge of 50 percent. Because there are no sufficient reasons for distinguishing between you and the other workers when paying when both work at night.
According to the collective agreement, those who are not in the permanent shift work would also be entitled to be taken into account that their private issues would be taken into account when division. The difference to the shift workers who can always plan their night work firmly is not so great here that one can pay differently.
Collective agreement only to be checked to a limited extent
However, the Federal Constitutional Court has now lifted these judgments from Erfurt and has given up the constitutional complaints of the employers concerned. The reason: If the parties of the collective agreement had agreed, this should generally be accepted. Because tariff autonomy is protected by the Basic Law. It says that the parties to the collective agreement can make regulations without the state interfering.
Courts are likely to check collective agreements, but only with a very limited scale. Only if arbitrarily violates other fundamental rights should they intervene. A pure arbitrariness was not apparent in the different payment of night work. In the specific cases, the shift workers – unlike their colleagues – are entitled to, such as paid breaks or shifts. It also made a difference in the social environment whether you can adjust to night work as a shift worker or are more likely to be confronted with it at short notice. All of this could definitely justify different payment.
Federal Labor Court must check again
In addition, the Federal Labor Court should not have simply adapted the amount of the surcharges. Even in cases in which there is illegal unequal treatment, it is initially the responsibility of the parties to the collective agreement to correct them. The fact that the Federal Labor Court itself has adapted to the remuneration of the shift workers is another reason to remove the judgments. Now the BAG has to check the two cases again – with the limited scale that the Constitutional Court has underlined today.
The decision from Karlsruhe is of far -reaching importance, because there are often different payment for comparable work agreed. Many cases, especially for the remuneration of night work, are already in the dishes. There are currently around 400 at the Federal Labor Court alone. In the lower instances, it should be around 4,000.
The Trade Union Food Guest Gaststatta (NGG) was surprised by the decision from Karlsruhe and speaks of a “U-turn” of the Federal Constitutional Court compared to the previous case law of the BAG.
Az. 1 BvR 1109/21 and 1 BvR 1422/23
