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Example case
Jaroslav has been working on construction sites in various countries for years. He is a trained specialist. He has been working in Hanover at XYZ GmbH since 2021. The company offered jobs in construction on a Slovakian Internet portal. Jaroslav signed the employment contract on the first day of work. It was written in German, which Jaroslav understands only to a limited extent, but there was no time to think about it or ask questions. Jaroslav understood that XYZ GmbH would pay him 2,150 Euro gross per month. Jaroslav immediately found his way around the construction site because he is familiar with the work assigned to him: Drywall work, plastering, installing ceilings and walls, laying floor coverings. Sometimes he has to work overtime, but that is common in construction. Jaroslav wanted more information about the contents of his contract, such as his holiday entitlement or additional payments for overtime. That is why he asked a colleague who speaks good German to look at the employment contract. He was very surprised when his colleague explained to him that the contract contained the following job description: “Caretaker: Maintenance, small repairs to the building services, running errands”. Jaroslav has never carried out such tasks. Jaroslav does not understand why his contract does not simply say construction worker. His boss tells him that it is okay.
To get more information about his rights in his language, Jaroslav can go to an employment law Advice centre He can find the address of an Advice centre near him online at:
Specific employment law Advice centres
https://www.arbeitundleben.de/arbeitsfelder/beratungsnetzwerk
https://www.faire-mobilitaet.de/en
Jaroslav can find an overview of all Advice centres according to subject as well as by language at:
https://www.eu-gleichbehandlungsstelle.de/eugs-en/eu-citizens/searching-for-an-advice-centre
There Jaroslav learns that special working conditions apply to construction workers in Germany if they are employed by a construction company. They are regulated in so-called Collective agreements which have been negotiated between trade unions and employers’ associations. The two most important collective agreements for Jaroslav are the “Federal Framework Collective Agreement for the Construction Industry” (BRTV) and the “Collective Agreement for the Regulation of Minimum Wages in the Construction Industry” (TV minimum wage). The Federal Framework Collective Agreement for the Construction Industry (BRTV) is generally binding, i.e. it applies to all construction companies and all construction workers in Germany, even if, like Jaroslav, they are not trade union members. The TV minimum wage is currently (as at June 2023) not generally binding. Since Jaroslav signed his employment contract in 2021 when the collective agreement was still generally binding, its regulations continue to apply to him (so-called after effect). Workers in the construction industry are entitled, among other things, to a higher minimum wage, overtime allowance and more holiday than other workers. Even if Jaroslav has signed a contract as a caretaker: For the application of the construction collective agreement, it is not the designation on the paper that is decisive, but the work actually done. XYZ GmbH has probably given Jaroslav a contract as a caretaker in order not to have to employ him under the better working conditions of the above mentioned collective agreements.
Jaroslav should therefore write down his tasks every day in order to be able to prove that he is doing construction work. The minimum wage agreement for the construction industry provides for two wage groups: Minimum wage 1 for so-called unskilled work and minimum wage 2 for specialist work. The Advice centre can tell Jaroslav what wage he should get for his work: Jaroslav has carried out specialist work, therefore he has the right to the minimum wage of the specialist workers in Wage group 2 of the collective bargaining agreement in the amount of currently 15.70 € gross (skilled workers in West Germany as at January 2021). That is much more than he is getting now.
In addition, the collective agreement stipulates that he must get an allowance for his overtime of 25%. He is also entitled to 30 days holiday per year instead of the statutory minimum of 24 days. But that only applies if XYZ GmbH has to apply the collective agreement. This is the case if it is a construction company. According to Jaroslav’s observations and discussions with colleagues, XYZ GmbH only works on construction sites.
On the employer’s website, the company describes itself as a construction company. The Advice centre supports Jaroslav in assessing whether it is a construction company. This is the case when it constructs buildings or provides structural services. If a company provides both structural and other services, it is necessary to check which of the services predominate. If the workers provide construction work with more than 50 % of their total working time in the calendar year, the company is a construction company and is subject to the collective bargaining agreements of the industry. Jaroslav does not have this information, but wants to be sure that XYZ GmbH falls under the collective agreement before he claims his rights.
Jaroslav can contact the local trade unions about this. The trade unions in Germany are organised according to industry. The Industrial union Construction-Agricultural-Environment (IG BAU) is responsible for the construction industry. The IG BAU contacts on site can be found on the following website:
Jaroslav is not a union member and can therefore neither obtain legal advice from the union nor be represented by it in any legal dispute. But he can inform the union about his case and get information about his company. The employer companies are often known to the unions and they can help identify the company as a construction company.
If Jaroslav decides to join the union, after three months of membership he can claim union legal protection: He would then be represented in disputes with the employer by a legal protection secretary at no additional cost. His employer would not be informed of his union membership.
The monthly membership fee of IG BAU is 1.15 % of the gross wage.
Jaroslav can report his case to SOKA-BAU. The SOKABAU is the social security fund of the construction industry. The social security fund carries out, among other things, so-called holiday fund procedures to secure the holiday pay of the workers for those employed in the construction industry. All construction companies are obliged to report their workers to SOKABAU and to pay holiday contributions for them. SOKABAU checks whether employers are complying with the minimum wage stipulated by the collective agreement. SOKA-BAU can also check the profile of XYZ GmbH and say whether it is a construction company that has to pay contributions. If that is the case, it has to pay holiday contributions for Jaroslav. Jaroslav receives information about the result of the test.
Jaroslav can also prepare an application for examination for SOKA-BAU with the help of the local Advice centres. It is important that he describes his activities precisely and information about the construction sites and that he encloses his employment contract and pay slips.
Contact details of SOKA-BAU:
Telephone: 0800 1000881
Mo-Fr 8:00 to 17:00
arbeitnehmer@soka-bau.de
SOKA-BAU
65179 Wiesbaden
The case can also be reported using a form on the SOKA-BAU website:
https://www.soka-bau.de/arbeitnehmer/ leistungen/mindestlohn/meldeformular/
However, SOKA-BAU does not demand the minimum wage and overtime allowances for Jaroslav from the employer. Jaroslav has to file legal action with the Labour court himself if his employer does not voluntarily pay the outstanding wages.
The Labour court responsible is located where the employer is based. Jaroslav can also go to the Labour court located in the place where he worked. The address of the Labour court responsible can be found using the search engine:
https://www.justizadressen.nrw.de/de/justiz/ gericht?ang=arbeit&plz=&ort=
At the Labour court he can invoke the application of the collective agreements in construction and use the information that he receives from IG BAU or SOKA-BAU for example.
The exact procedure for claiming unpaid wages can be found in Chapter 2: “Non-payment of wage”.
It is likely that Jaroslav’s employer withheld the minimum wage and overtime bonuses agreed in the collective agreement. This means that the employer has not paid the social security contributions in full either. This is a criminal offence that Jaroslav can report to the Financial control of illegal employment, a department of the German customs:
https://www.zoll.de/EN/Contact/Enquiries/
General-enquiries/general-enquiries_node.html
If Jaroslav’s allegations are confirmed, the Financial control of illegal employment will open an investigation against XYZ GmbH. The employer can be punished for such violations.
This does not mean, however, that the Financial control of illegal employment demands for Jaroslav the minimum wage and overtime allowances from the employer. Jaroslav does not benefit from his report, but it helps ensure that the construction company does not cheat other workers out of their legitimate wage in the future.