Is diet and a lump sum per night can be assigned to the German minimum wage?

Since the beginning of the Polish carriers still do not really know where they stand. The German law on minimum wages affecting a substantial part of their as yet suspended only for transit. The German authorities intend to enforce it while in relation to cabotage and international transport to and from Germany. The question arises, he is in the light of the German Law Polish drivers and salary would have to be raised if, to meet the requirements. In particular, the key becomes a matter of, or on account of the minimum wage may include driver claims arising from a business trip.

Disclaimer 🙂

As in the previous entry I noted in advance, that the following ideas stem from my analysis of the legislation and information obtained by the office of German institutions. However, they do not constitute an official interpretation of the law, which will only be created by German and European administrative and judicial authorities.

The current salary Polish driver: slightly 2,48 EUR gross per hour?

The law on the minimum wage of 11.08.2014 r. (MiLoG) on that question is rather enigmatic and does not specify, what ingredients salary of the employee performing the work in Germany are included in the minimum wage. Limited only to find a pair. 1 paragraph. 2, that from January 2015 r. This wage is 8,50 EUR gross per hour.

The minimum wage in Poland, according to the latest the Council of Ministers is 1.750 zł per month. Given the number of days in each month and public holidays, average monthly employee should have worked 168 hours (2016 h 2015 r. / 12 months). The minimum wage in Poland 2015 r. is therefore 10,42 zł gross per hour.

How to convert it into euro? You must use the exchange rate calculated in the manner prescribed w art. 107 Council Regulation (EWG) no 574/72 of 21.03.1972 r. on the implementation of Regulation (EWG) no 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (so, The EU has outstanding talent to create short names acts 😉 )

Currently, this ratio is created based on the course of October 2014 r. is 4,20664 zł for 1 EUR and is valid in the first quarter 2015 r.

This means that, Polish the minimum wage in 2015 r. is 2,48 EUR gross per hour. So much so at least in the light MiLoG employed drivers earn in Polish carriers.

Taking into account, that the base salary of Polish drivers just ordinary oscillates within the minimum wage, taking into account only the salary, mean, that Polish drivers carriers must pay the amount over 6 EUR gross per hour in Germany. In extreme cases, it could even be over 1.000 EUR per month.

Would you rather 5,41 EUR gross per hour?

Base salary is not the only funds received by Polish drivers. The practice in the transport sector is the, that the main drivers receive compensation in the form of receivables from business travel, in particular diet and lump sums for accommodation. For this reason, we turned to the German Customs Information Centre (Information- Customs Information and Knowledge Management Center) and the German Ministry of Labour inquiry, or driver for the payment of a lump sum from a business trip to Germany, the amount of which is in no way dependent on the costs incurred by him, and the driver does not have to have these costs, such amount may be considered as a component of the minimum wage within the meaning of MiLoG.

Both institutions within a few days replied – how much experience with the German authorities are different from my memories similar contacts with the Polish Ministry of Transport and Main Inspectorate of Road Transport. First called the Customs Information Centre referring to the comprehensive information contained on website. Then the answer came from the Ministry of Labour, wherein said, that food costs / diet or supplements in respect of the delegation are not counted in the minimum wage to the extent, what are the reimbursement of actual costs of the posted worker delegation. The Ministry also replied to a letter of the same website containing more detailed information.

The same website significantly raises the question of interest to us. In the discussion of the individual components of the driver's salary, which can not be classified as minimum wage, there were m.in. sentence is very similar to that, which contained the answer Ministry of Labour:

Also, often provided by law in other countries allowance for the delegation to the extent, in so far as it is a reimbursement of actual costs by a posted worker delegation, is not included in the minimum wage.

In this case, however, contains more detailed guidance. It has been demonstrated, that:

If the employer shall pay the employee the total amount of, which contains the amount of, employee whom he should pay his board and lodging costs, of the total amount of the lowest amount to be deducted for accommodation and meals resulting from the regulation on social insurance and minimum wage include only the amount remaining after deducting.

Then we looked Regulation on the assessment of social security contributions by the employer as remuneration for work (Social security charges regulation – Soar) and found, that under the provisions of the lowest monthly amount for accommodation is 223 EUR and on board 229 EUR. The total amount for costs associated with the delegation is therefore 452 EUR. Assuming an average 21 working days in a month, should be, that the German minimum daily travel costs are 21,52 EUR. In the light of the position of the German authorities of any excess over the value obtained by the driver on mission shall be credited against the minimum wage.

How much is this amount in the case of Polish drivers? In light of Article. 77(5) by. 3 Labour Code if employers do not belong to the state or local government sector (to the category of private entities include the vast majority of Polish carriers) of the amount due to employees for business travel decide provisions of the collective agreement, remuneration regulations or contract of employment, if the establishment has a collective bargaining agreement, or remuneration regulations. Thus, according to the intention of the legislature in this respect there is freedom of contract and the parties may agree any amount of receivables from business travel. You only need to address concerns arising from Article. 77(5) by. 4 Labour Code which is, that the diet due to domestic or foreign travel specified in the file-house may not be lower than the national diet resulting from Regulation of the Minister of Labour and Social Policy of 29 January 2013 r. the duties to an employee of a state or local government entity under public sector business which is currently 30 zł. In other respects, in accordance with Article. 77(5) by. 5 Code provisions of the Regulation were to be only a secondary importance, ie. come into play, the parties do not regulate this issue differently.

Unfortunately for carriers, contrary to provisions of the Labour Code bright and clear intentions of the legislator expressed in the bill even if the Supreme Court Resolution of 12.06.2014 r. said, that the rates in respect of lump sum for accommodation provided for in the contract of employment, remuneration regulations or collective agreement may not be lower than the rates provided for in Regulation. This resolution, Although, no power principle of legal and does not bind either the ordinary courts, or the Supreme Court in other cases, but it can be assumed, it will have an impact on at least some courts. For this reason, a number of carriers currently pays the minimum drivers diet and a full lump sum resulting from Regulation.

For travel to Germany for night lump sum in accordance with paragraph. 16 paragraph. 2 in conjunction. with point 72 Annex to the Regulation is 37,5 EUR. If we add to this diet in the amount of 7,13 EUR (by the same rate as the base salary), Polish driver claim a business trip to Germany will be at least 44,63 EUR (if you take a proper view of the Supreme Court, that the fee can not be lower than the rates of Regulation, so personally I do not agree).

If this amount is subtracted 21,52 EUR minimum amount for meals and accommodation resulting from the German rules, get 23,11 EUR, which in the light of the position of the German authorities can be counted on the minimum wage. In terms of hours, it will be further 2,93 Per hour.

It is therefore necessary to adopt, that the Polish driver's salary from the point of view of the German Law on the minimum wage is at least 5,41 EUR gross per hour. This means that, that to meet the requirements of the Act needs to be increased only 3,09 EUR gross per hour or, in extreme cases, more than 500 Per month.

But maybe 8,06 EUR gross per hour?

The issue of compensation of employees to work in another country is governed Directive 96/71 / EC of the European Parliament and of the Council of 16.12.1996 r. concerning the posting of workers in the provision of services. The provisions of Article. 3 paragraph. 1 lit. c Directive clearly show, that the employee posted to work in another country should receive a minimum rate of pay applicable to the country, which has been delegated. From the standpoint of considerations being made is essential, however, primarily art. 3 paragraph. 7 Regulation constitutes, that:

Allowances specific to the posting shall be considered as part of the minimum wage, unless they are paid in reimbursement of expenses actually incurred as a result of the posting, such as travel costs, board and lodging.

EU Court of Justice dealt with the issue of three times the minimum wage paid to workers posted and resolved, that the components of remuneration may be included in the wage. What is interesting – in the context of current concerns related to MiLoGiem – in two out of three cases of judgments of the Court concerned the German legislation.

In the first judgment of 14.04.2005 r. Commission v Germany Ref. C-341/02, the Court, for the most part upheld the action of the Commission to the German regulations and stated, that while the salary supplements do not affect the relationship between work and reward (tj. not impose any additional requirements in order to obtain additional compensation only belong to the very fact of their work under the normal rules), should be included in the minimum wage.

In a similar position, the Court held in judgment of 07.11.2013 r. on Isbir ref. C-522/12, Recognizing again, that the additives, that do not modify the relationship between the provision and the provision of employer employee, shall be credited to the minimum wage.

Both of these judgments relates to remuneration additives, which were not related to the fact the worker's posting. Only the latest judgment 12.02.2015 r. on Elektrobudowa SA ref. C-396/13 sheds more light on the interpretation of Articles. 3 paragraph. 7 Directive. In this case, the Court dealt with the remuneration paid to employees Elektrobudowa Polish executing the contract in Finland. The Court in its judgment emphasized, that “to define the constituent elements of the concept of the minimum wage, allowing the application of the Directive, rests on the law of the Member State of posting, However, only in the, in which this definition, resulting from the relevant national laws or collective agreements or interpretation transmitted to them by national courts, does not create an obstacle to the free movement of services between Member States”.

The Court finally concluded, that:

– fixed allowance granted to employees under the delegation shall be credited to the minimum wage

– compensation for the time it takes to get to work also count towards the minimum wage

– cover the costs of accommodation by the employer of workers are not included in the minimum wage

– supplement in the form of vouchers for meals shall not be counted towards the minimum wage

– Holiday allowance shall be credited to the minimum wage.

I ask in this connection, that the consultation of Polish version of the judgment Use extreme caution, thesis because it is given incorrectly translated. What's more is a cardinal error, since the operative part of the Polish version of the judgment is a statement, that the costs of these staff accommodation be considered as part of their minimum wage, while from reading the grounds of the judgment as well as the version German, English or French it is evident, that these costs is should not be fall to the minimum wage.

In my view, the wording of the judgment may be an argument for the defense of the thesis, that the whole diet and a lump sum paid to the Polish driver should be counted towards the minimum wage and should not be deducted from their German spending limits for board and lodging.

First, in the situation, Polish practice when these measures shall not reimburse the costs actually incurred by the driver, in accordance with Article. 3 paragraph. 7 Directive, they should be included in the minimum wage.

After the second adjustment, the idea being disbursed by way of diet and lump sums should be reduced to a minimum for food and accommodation, would be contrary to the principle of free movement of services, because it would put in a better position German actors in relation to their foreign competitors. While the payment of receivables from business travel in Poland – in the light of the interpretation of the Supreme Court – Compulsory, whereas in Germany diet and a lump sum is paid only if, so that the parties can agree. This means that, German carriers that can not pay its employees no claims for the costs of food and accommodation, and in the light of the position of the German, Polish authorities carriers should make such payments in the total amount 452 EUR.

Assuming, Polish carrier that can include the whole diet and a lump sum payment of the minimum wage, driver's hourly rate would be 8,06 EUR gross (2,48 basic salary + 5,58 EUR receivables from a business trip). So it would be necessary only slight increases at the level of the driver's salary up to about. 70 EUR monthly.

Of course, the final interpretation of this issue for the Court of Justice of the EU, but I think, that these arguments can be useful in a dispute with the German authorities, against payment of the minimum wage.

Tips for legislators

Adjustment of art. 3 paragraph. 7 Directive 96/71 and related case law of the Court of Justice of the EU should acquire the legislator. Since the work is underway to change the regulation of receivables from business trips drivers, it would be, recently enacted legislation to take into account the above mentioned requirements, and enjoyed by drivers additives from a business trip can be included in the minimum wage.

P.S. I would like to express special thanks to the occasion for guy. Joanna Kucharska for correspondence with the German authorities and assistance in the analysis of German labor law