Accommodation and catering for seasonal workers

As concerns seasonal workers it is permitted to include the cost of Accommodation and catering determined pursuant to Section 107(2) of the German Industrial Code (Gewerbeordnung - GewO) when ascertaining the statutory minimum wage.

Seasonal workers are workers who are temporarily employed by a German-domiciled employer and who perform an activity that because of a consistently recurrent seasonal event or a consistently recurrent succession of seasonal events, is restricted to a certain season when the need for workers to carry out the usual activities is considerably greater than normal. They are, in their majority, workers

• in tourism, in particular in restaurants and hotels (e.g. waiters, kitchen staff, and chambermaids), and in operations or parts of operations which, by their nature, are not open throughout the year (e.g. beer gardens, ski chalets), or which experience workload peaks during specific periods, and must cover an increased demand for workers (e.g. restaurants for day trippers)
• in fun-fairs and circuses (e.g. personnel assisting the running of attractions), where they are involved in activities usually associated with traditional fairs, festivals, and other events that by their nature are not held throughout the year
• in agriculture, forestry and horticulture (e.g. seasonal harvesters in special crop-growing operations such as fruit, vegetable and wine growing).

Therefore, when considering accommodation and catering for seasonal workers for the purpose of monitoring compliance with the minimum wage, the provisions of Art. 107 (2) GewO shall be applied.

• Mutual agreement:
  The employer may not unilaterally include board and lodging in the wage; it requires the appropriate agreement between both employer and employee.

  Because the composition of the remuneration for work is concerned here, such agreement must be specified in the employment contract, a stipulated in clause 6 of Art. 2 (1) of the Act on Notification of Conditions Governing an Employment Relationship (Nachweisgesetz - NachwG).

• General requirements:
  The inclusion of board and lodging must be consistent with the interests of the worker or the particular nature of the employment relationship.
  This can, as a rule, be assumed in a seasonal worker relationship..

• Maximum amounts:
  

  The inclusion of benefits in kind may in no case exceed the attachable part of the remuneration (Section 107(2) (5th sentence) of the Industrial Code (GewO), amount exempt from attachment); the amount of reference shall be the one given for an unmarried individual without any dependants. This untouchable amount is equivalent the uppermost value specified in the column "Net wage, monthly" of the Appendix to the Notice concerning Sections 850c and 850f of the Code of Civil Procedure (Notice on the amount exempt from attachment, Pfändungsfreigrenzenbekanntmachung - PfändfreiGRBek). It means that having taken into account any benefits in kind, this net balance must still remain at a worker’s disposal. The uppermost amount from the "Net wage, monthly" column shall even be taken where the employment relationship starts or ends at some time during the current month unless the relevant employment contract stipulates a payment method other than the monthly payment.
  As concerns individual benefits, the values givens for board and lodging in accordance with Section 2 of the Social Security Remuneration Ordinance (Sozialversicherungsentgeltverordnung – SvEV) shall apply in addition to the above untouchable amounts.

• Quality of the benefit in kind
  The benefit in kind provided by the employer must be of "average size and standard"; that is, the quality of board and/or lodging shall not give any cause for complaint. The guidelines for the accommodation of foreign workers in Germany of 29 March 1971 may serve as a yardstick.
• Posting situations
  Accommodation and catering shall not be considered as being part of the minimum wage if workers are posted. It follows from subparagraph 2 of Art. 3 (7) of the Posting of Workers Directive (Directive 96/71/EC, Official Journal No. L 018 21.01.1997) that employers shall bear the costs of accommodation and catering.

Guidelines for the accommodation of foreign workers in Germany of 29 March 1971 (in German)PDF | 87 KB

Posting of Workers Directive (Directive 96/71/EC, Official Journal No. L 018 21.01.1997) as stipulated in Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (Official Journal No. L 173/16 of 09.07.2018) (in German)

Notice on the amount exempt from attachment (in German)