Due date for payment and flexible working hours

• Due date
• Flexible working hours
  • Training and further training services in accordance with Volumes Two and Three of the German Social Code
  • Construction sector
  • Roofing trade
  • Electrical trades
  • Gardening, landscaping and sports field construction
  • Industrial cleaning
  • Scaffolding trade
  • Painting and decorating trades
  • Care services
  • Processing and preserving of meat and production of meat products (meat industry)
  • Chimney sweep trade
  • Temporary employment
• Information on the usual audit documents

Due date

The due date for payment of the minimum wage shall be as laid down in the applicable collective agreement or in the ordinances pursuant to Article 11 AEntG.

Where an employer has introduced flexible working hours, specific provisions shall be observed.

Flexible working hours

Training and further training services in accordance with Volumes Two and Three of the German Social Code

The minimum wage due shall be payable no later than the 15th day of the month following the month for which the minimum wage is payable.

Pursuant to section 3(4) of Collective Agreement No 7 regulating the minimum wage for educational staff, this does not apply to hours worked in excess of regular monthly working hours, subject to the following conditions:

• There is a provision for the flexibility of working time with a flexi-time account,
• a fixed monthly, wage calculated according to the formula minimum hourly wage X agreed regular weekly working hours X 4.348, has been agreed,
• the flexi-time account may not exceed 100 excess hours,
• excess hours in the flexi-time account have to be compensated within a period of twelve months after the calendar month in which they were accrued or have to be compensated by paid time off. Excess hours that still exist at the time of termination of an employment relationship have to be compensated.

Construction sector

Payment of the minimum wage becomes due, at the latest, within 15 days of the month following the month in which the entitlement arose. This does not apply in firms where flexibilisation of working hours can be shown to have been introduced in accordance with Art. 3 (1.4) of the nationwide Collective Bargaining Agreement for the Construction Industry (Bundesrahmentarifvertrag - BRTV).

The flexibilisation of working time in accordance with item 1.4 of Section 3 BRTV is subject to the following conditions:

• The employer and the employee must have concluded a written agreement that includes the following:

  • An adjustment period of twelve months must be observed.
  • The employer must not allow the accumulation of a plus of more than 150 working hours within a 12-month period; whenever such positive balance of 150 hours is reached, the wage for any excess hours shall then be paid out in addition to the regular monthly wage.

  • The employer must pay the employee a sustained monthly wage regardless of the number of hours actually worked and payable during the relevant calendar month. The following methods of calculation may be chosen in this context:

    1. a monthly wage calculated on the basis of (41 hours x 4.33 weeks =) 178 standard wage hours from April to November (summer working hours) and/or (38 hours x 4.33 weeks =) 164 standard wage hours from December to March (winter working hours),
    2. during the whole adjustment period, payment of a sustained monthly wage for (40 hours on average x 4.33 week =) 173 standard wage hours,
    3. a monthly wage calculated taking the number of hours that would become payable if the standard working hours in accordance with item 1.2 of Section 3 BRTV (a weekly working time of 38 hours in winter and/or 41 hours in summer) were applied,
    4. a monthly wage calculated taking the number of hours that would become payable if a daily working time of (average regular weekly working time across the calendar year = 40 hours x 5 workdays =) 8 hours were applied to the workdays of the relevant calendar month.
• The employer shall apply an appropriate method to ensure that an employee can be paid their credit hours including the relevant social contributions at any time. The collective bargaining parties have omitted the prescription of a specific means of securing such payment. Eligible means would be a bank guarantee, a blocked account under fiduciary liens, or a security deposited with the leave and wage compensation fund for the construction sector (Urlaubs- and Lohnausgleichskasse der Bauwirtschaft).

Roofing trade

Payment of the minimum wage for the hours worked in a calendar month is due no later than the 15th of the month following the month for which it is due.

This does not apply if it can be proven that company working time has been made more flexible under the following conditions:

• Compensation must be paid within a period of 12 months.
• In addition to a record of the balance of the accumulated total number of hours credited to or debited from the working time account, a list of working time credit and debt hours has to be recorded for the corresponding month on the pay slip separately.
• Within a twelve-month period, the employer can have the employee accumulate no more than 150 "credit hours". If a credit balance of 150 hours is reached, remuneration for all hours in excess of the 150 limit has to be paid together with the monthly wage.
• The employer has to ensure, at his own cost and by appropriate means, that any working time credit can be paid out as provided at any time. The guarantee can, for example, be provided by way of a bank guarantee, a blocked account with fiduciary liens held in the name of the employees or a deposit at the Wage Compensation Fund for the Roofing Trade.

If these requirements are not met, the due date for payment will remain the 15th of the following calendar month.

Electrical trades

Payment of the minimum wage becomes due not later than the 15th of the month following the month during which the relevant work was performed. Where the hours actually worked are booked in a flexi-time account and the employer pays a sustained monthly wage in anticipation of the subsequent account settlement, the provisions of the Minimum Wage Act as amended shall be applicable to the due date for payment of the minimum wage.

Gardening, landscaping and sports field construction

Under the conditions of § 4a BRTV Garten-, Landschafts- und Sportplatzbau (BRTV GaLa-Bau), annual working time agreements can be agreed in companies or independent company departments.

• The collectively agreed annual working time of a full-time employee (annual working time target) is calculated from the number of working days (Monday to Friday of a week) in the relevant annual period and their average, regular collectively agreed weekly working time in accordance with Section 4 (1.1) or (1.2). The number of working days is to be determined depending on the position of weekends, public holidays and leap years. The annual working hours for part-time or fixed-term employees shall be adjusted accordingly on a pro rata basis. The annual period extends from April of each year to March of the following year (equalisation period).
• The employer is obliged to pay employees who are included in the annual working time agreement a (stabilised) monthly wage as a payment on account for the entire equalisation period (cf. Section 4a (2) BRTV GaLa-Bau).
• In accordance with the provisions of Section 4a (3) and (4) BRTV-GaLA-Bau, the employer is obliged to keep a working time account (compensatory hours account) for all employees who participate in the annual working time arrangement.

Industrial cleaning

Generally, the entitlement to payment of the minimum wage becomes due, at the latest, within 15 days of the month following the month that gave rise to such entitlement.

Employees in minijobs in wage group 1

One exception regarding the due date for payment is made in Article 3 of the collective agreement on minimum wages for waged employees in the industrial cleaning sector (Appendix to the Fourth Ordinance on Mandatory Working Conditions in the Industrial cleaning Sector (Anlage zur Vierten Verordnung über zwingende Arbeitsbedingungen in der Gebäudereinigung)), which allows the payment, regardless of the actual monthly hours worked, of an unchanging, "stabilised" monthly wage to employees, which is computed according to the following formula:

Hourly wage x weekly working hours: 5 x 261 : 12

Employees in wage groups 6

The flexibilisation of working time is permitted if the following conditions are met:

1. For industrial workers who fall into wage groups 6 to 9, shop agreements or - where no works council exists - individual agreements may provide that any overtime work or shortfalls in working hours can be adjusted, without an overtime bonus becoming applicable, by reducing or increasing the specified working hours on other working days within a 12-month period (adjustment period). The respective agreement must specify in which form and at which notice the daily working time shall be determined in each case.
2. The employer can allow or require the employee to prework up to 150 hours and postwork up to 30 hours within a 12-month period (annual flextime account).
3. Where an annual flextime account is used, the employee must be paid a constant monthly wage, regardless of the actual monthly hours worked. This monthly wage shall be computed according to the following formula:
   hourly wage x annual working hours ./. 12.
   The monthly wage shall be reduced by the wage for hours not worked due to shorttime working (partial unemployment), periods without sick pay, and periods of unpaid leave.
4. An individual adjustment account shall be set up for each worker. The account shall be credited or debited with the difference between the wage for the hours actually worked and the monthly wage computed in accordance with paragraph (3).
5. The working time credit and the relevant withheld wage may at no time exceed 150 hours, while the working time debt of the worker and the wage already paid for it may not exceed 30 hours at any time. Once a credit of 150 hours has been reached, the wage for all additional hours must be paid out together with the monthly wage.
6. Wage credits in the adjustment account may only be paid out in settlement of the monthly wages, or at the end of an adjustment period in accordance with the following paragraph, when the worker's employment ends, or in the event of the worker's death.
7. The adjustment account should be in balance at the end of twelve calendar months. If the account still shows a credit at the end of that period, the preworked hours shown by the credit and the corresponding wage payments must be carried forward to the new adjustment period and be counted towards the new bonusfree prework volume. By derogation from the above, payment in lieu may be agreed at the end of the adjustment period based on a shop agreement or - where no works council exists - an individual agreement.
8. If a time debt exists at the end of the adjustment period, it must be carried forward to the new adjustment period and adjusted during that period. If the worker leaves the employer's firm, any credits or debits existing at the time must be settled up.
9. The employer shall ensure at his own cost and by appropriate methods that any credit can be paid out as provided at any time, and that all obligations under tax and social security legislation can be met. Provisions in the balance sheet or obligations to assume liabilities between group companies (cf. Article 18, Stock Corporation Act) such as guarantees, letters of comfort, or assumptions of debt, do not constitute appropriate securities. Where required by one of the collective bargaining partners, the appropriate security for the adjustment account must be demonstrated. Where such proof can not be furnished, the credit shall be paid out to the worker; at such point in time the agreement on flexible working time during adjustment period becomes ineffective.

Scaffolding trade

Payment of the minimum wage becomes due no later than the fifteenth day of the month following the month for which payment is being made.

This provision shall not apply to the entitlement to a minimum wage for hours booked in a flexi-time account, provided that the flexitime account is being kept in accordance with the following conditions:

that shop agreements or - where there is not any works council - individual agreements provide that for a maximum period of twelve months (adjustment period) any working hours that differ from the collectively agreed working time can be distributed across working days without entailing an overtime bonus. Such allocation shall not regularly include Saturdays;

that the working time credit in the flexi-time account and the accordingly withheld pay shall at no time exceed 150 hours, while the worker’s working time debt and the wages already paid for such hours shall at no time exceed 30 hours;

that where operational circumstances require a certain distribution of working hours over the whole adjustment period, the monthly pay, irrespective of the hours actually worked in a given month, shall be effectively equivalent to 174 hourly rates during the period from May to November, and to 162 hourly rates during the period from December to April, or else be equivalent to 169 hourly rates payable every month over the whole period in accordance with sentence 1;

that insofar as the hours credited are balanced by a payment during the adjustment period, the amount paid shall be equal to the minimum wage that applies at the time of the payment;

that the monthly plus/minus hours shall be separately stated on the monthly payslip, together with the balanced and cumulated net plus and minus hours of the flexi-time account. Idle time for which payment or compensation in lieu is granted shall not be taken into account when calculating plus/minus hours. Any idle time for which remuneration or compensation in lieu of performance has been paid shall therefore be deducted from the regular monthly working time. The time to be deducted shall be equal to the hours that would have been worked had performance not been prevented;

that the flexi-time account be settled at the end of each adjustment period, when any still existing time credit can either be paid out or carried over to the following adjustment period and then regarded as hours worked in advance for which pay without any supplement becomes due. Generally, credit hours shall be paid with an overtime supplement of 25 %;

that the flexi-time account shall be protected against insolvency.

Individual agreements concluded in companies without works councils can be terminated with two months’ notice to the end of the adjustment period.

Painting and decorating trades

The entitlement to a minimum wage becomes due not later than the 15th of the month following the month for which such minimum wage is payable.
This provision does not apply in firms where flexibilisation of working hours can be shown to have been introduced in accordance with the first sentence of Section 9(1 to 8) sentence 1 of the Collective wage agreement for the roofing trade (Rahmentarifvertrags für die gewerblichen Arbeitnehmer im Maler- und Lackiererhandwerk - RTV), insofar as the minimum wage entitlements so accrued are remunerated at a later time in the form of time off work - provided that the time allowed off work does indeed represent a full equivalent to the accrued wage entitlements, and that it falls within the balancing-out period defined by the bargaining agreement.
In such cases, wages must be paid on the basis of a 40-hour week (8 hours, Monday to Friday), and - for part-time workers - on the basis of the agreed regular weekly working time, and shall become due not later than the 15th of the month following the month to which such pay relates.

Care services

A staggered payment date will apply effective. Payment of the minimum wage for contractually agreed working hours is due no later than the last banking day of the month in which the work had been performed. Payment of the minimum wage for working hours in excess of the contractually agreed working hours (overtime) is due no later than the last banking day of the following month.

Up to a total of 225 working hours in excess of the contractually agreed number of hours (overtime) can additionally be entered in a flexitime account on the basis of written individual or collective agreements. If this limit is exceeded, the due date for the payment of wages for these working hours shall be governed by the provisions of sentence 1 and 4. The balancing out of the hours worked can take place either through the payment of wages for the hours worked in excess of the contractually agreed hours, or through paid time off work.

The cap of 225 hours does not apply if the flexible working-time agreement stipulates that hours worked in excess of those contractually agreed shall be balanced out at the end of a balancing period of not more than 16 months. The entitlement to remuneration for hours that have been credited to a flexi-time account and have not been balanced out within the balancing period becomes due with the end of the balancing period in which these hours have been worked. Neither does the cap of 225 hours apply to credits based on the Partial Early Retirement Act, on Sections 7b and 7e of the Sixth Volume of the Social Code, or on comparable foreign regulations pertaining to the protection of the rights of employees. In the case of an employment relationship ending the employer shall pay remuneration for hours that have not been balanced at the latest in the calendar month following the ending of the employment relationship.

The provisions of the Working Hours Act remain unaffected.

Processing and preserving of meat and production of meat products (meat industry)

The minimum wage due shall be payable no later than the 15th day of the month following the month for which the minimum wage is payable (section 2(3) Second Ordinance on Mandatory Working Conditions in the Meat Industry (Zweite Fleischarbeitsbedingungenverordnung - 2. FleischWArbbV). Furthermore, a preclusion period of six months applies to all claims arising from the cited ordinance (section 3 - 2. FleischWArbbV).

Chimney sweep trade

Pursuant to section 3(1) sentence 1 of the minimum wage collective agreement for the chimney sweep trade (TV Mindestentgelt Schornsteinfeger), the minimum wage due shall be payable in cash no later than on the last working day of the current month for which the minimum wage is payable.

Pursuant to section 3(1), sentence 2 of the minimum wage collective agreement for the chimney sweep trade (TV Mindestentgelt Schornsteinfeger), the working hours set in the employment relationship may be exceeded if they do not exceed the upper limit of 240 working hours per twelve months. Pursuant to section 3(1) sentence 4 of the minimum wage collective agreement for the chimney sweep trade (TV Mindestentgelt Schornsteinfeger), any hours worked in excess of the contractually agreed working hours must be compensated by 1 September of the given calendar year at the latest. Pursuant to section 3(1) sentence 3 of the minimum wage collective agreement for the chimney sweep trade (TV Mindestentgelt Schornsteinfeger), these hours may be compensated through the payment of the remuneration attributable to these hours or by paid time off.

Temporary employment

The entitlement to the minimum hourly pay is due at the latest on the 15th banking day (reference location is Frankfurt am Main) of the month following the month for which the minimum pay is to be paid. This does not apply to hours worked in excess of the regular monthly working hours if there is a collective agreement provision on flexible working hours with a working time account. The working time account may contain a maximum of 200 plus hours. In individual cases, the working time account may contain up to 230 plus hours to safeguard employment in the event of seasonal fluctuations. If the working time credit exceeds 150 plus hours, the temporary employment agency is obliged to secure the plus hours in excess of 150 hours, including the social security contributions due on them, against insolvency and to provide the temporary agency worker with proof of insolvency protection. Without this proof, the working time credit may not exceed 150 plus hours.

For part-time employees, the upper limit of the working time accounts is adjusted in proportion to the working hours agreed in the employment contract. Part-time employment is deemed to exist if the working hours agreed in the employment contract are less than 35 hours per week.

At the request of the temporary worker, hours from the working time account that exceed 150 plus hours are paid out. In the case of part-time employees, the number of plus hours is based on the working hours agreed in the employment contract.

Employers based abroad can make use of flexible working hours under the same conditions as domestic employers.

If working hours have been flexibilised, the following documents must be kept available in Germany in addition to the usual audit documents:

• Written agreement on working time flexibilisation,
• Compensation account (for each employee), separate time records for new federal states/old federal states if applicable,
• Proof of collateralisation of the compensation account (e.g. bank guarantee, blocked account), if required by collective agreement or legal regulation.

Information on the usual audit documents

If further documents are required, these must also be made available to the audit authority for inspection.

If the employer does not provide evidence of the flexibilisation of working hours, the due date for payment of the minimum wage remains as stipulated in the collective agreement or in the statutory order.