Seasonal short-time work allowance

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The seasonal short-time work allowance is a wage replacement benefit from the German unemployment insurance with the aim of promoting year-round employment in the construction industry and in other branches of the economy. It is - like the transfer short-time work allowance - a special form of the (cyclical) short-time work allowance, through which layoffs in the winter months and the associated increase in unemployment in winter are to be avoided. Previous benefits were bad weather allowance and winter failure allowance .

Starting position

The construction industry is typically particularly dependent on the weather. In the winter months, this entails a high risk of loss of wages for employees due to direct weather-related loss of work, on the other hand, there is a high risk of wage payment for employers due to a lack of orders, which occurs as an indirect consequence of bad weather. This repeatedly leads to "winter terminations".

Historical development and legal basis

In the 2004/2005 collective bargaining round, the contracting parties in the construction industry agreed to improve the statutory and collective bargaining instruments for winter construction subsidies ( agreement on the further development of subsidies for year-round employment in the construction industry of July 29, 2005). The concept for a seasonal short-time work allowance developed by the collective bargaining parties was largely adopted in talks with the then red-green federal government. The parties of the grand coalition CDU, CSU and SPD followed up on this by agreeing to introduce seasonal short-time work benefits in their coalition agreement. After going through the legislative process, the law on the promotion of year-round employment ( Federal Law Gazette I p. 926 ) came into force on April 1, 2006 . Article 1 of this law incorporated the relevant regulations for seasonal short-time work allowance into the Third Book of the Social Code (SGB III) (amendment of the former §§ 169 ff SGB III, since April 1, 2012 §§ 95 ff, in particular the then § 175 SGB III, since April 1, 2012 § 101 SGB III) inserted. The seasonal short-time work allowance could therefore be claimed for the first time from December 1, 2006. Sections 209 to 216 of SGB III old version, which regulate the winter loss allowance, the additional winter allowance and the supplementary winter allowance, have been repealed. While the winter loss allowance was no longer applicable, the entitlement to the additional expense and the additional winter allowance was standardized in Section 175a SGB III, and since April 1, 2012 in Section 102 SGB III. For the ancillary construction trade, Section 434n SGB III, and since April 1, 2012 Section 133 SGB III, contained a transitional regulation. The Winter Employment Ordinance regulates the financing of services.

For the first time, the legislature created the basis for including other branches of the economy in the bad weather regulations in addition to the construction industry. So far, however, no use has been made of this. In the funding periods 2006/2007 and 2007/2008, the labor market policy effectiveness of the seasonal short-time work allowance and the cost consequences were evaluated.

As early as the summer of 2005, the parties to the collective bargaining agreement in the construction industry had adapted the federal framework collective agreement for industrial workers in the construction industry to the expected legal regulations for seasonal short-time working allowance.

Evaluation of the effects of the seasonal short-time work allowance

The Institute for Work and Qualification at the University of Duisburg-Essen (IAQ) researched on behalf of the Federal Government in 2008 the effects of seasonal short-time work allowance and the associated additional benefits. It was found that the fall in employment in the construction industry in winter was more than halved compared to the time before the introduction of the seasonal short-time work allowance. This is seen as a clear break in the trend towards a stabilization of the labor market in the construction industry , which is essentially due to the new winter construction subsidies . Winter unemployment in the construction trades fell by 35%. In the 2006/2007 funding period, 156,000 fewer people became unemployed. Unemployment insurance was reduced by 321 million euros in the same period. Overall, the new regulation met with a high level of acceptance among those involved.

Eligibility requirements according to § 101 SGB III

If there is a significant loss of work during the bad weather due to weather-related or economic reasons or as a result of an unavoidable event in a company in the construction industry or another branch of the economy affected by seasonal loss of work, the employees affected by the loss of earnings receive seasonal short-time work allowance, if the operational and personal requirements are met and the loss of work has been reported to the Federal Employment Agency and the seasonal short-time work allowance has been applied for.

Bad weather time

Bad weather time is the period from December 1 to March 31 ( Section 101 (1) SGB III). A claim to seasonal short-time work allowance is only possible for this period. The transitional regulation issued for the scaffolding industry, according to which the statutory bad weather period in 2010 and 2011 began on November 1st, has expired (Section 434n (2) SGB III old version).

Eligible establishments

  • The company in which the loss of work occurs must primarily provide commercial construction work on the construction market ( Section 101, Paragraph 1, No. 1, Paragraph 2, SGB III). According to the Construction Companies Ordinance, these are companies in the building trade, the scaffolding trade, the roofing trade and gardening and landscaping.
  • In addition, there is the possibility of including companies from another branch of the economy that is affected by seasonal loss of work in the scope of the seasonal short-time work allowance ( Section 101 (1) No. 1, Section 109 of the Third Book of the Social Code). However, so far no use has been made of this possibility of inclusion.

Considerable loss of work

There must be a significant loss of work. The loss of work is significant if it is due to one of the reasons stated in Section 101 (5) sentence 1 SGB III and if it cannot be avoided.

Reasons for the absence from work

Relevant reasons for failure are:

  • economic reasons (e.g. lack of order)
  • weather-related reasons (e.g. frost) for at least one hour (time limit only applies here)
  • inevitable events (e.g. natural disaster or animal disease)

Inevitability of lost work

The loss of work is unavoidable if all economically reasonable precautions have been taken in the company to prevent the loss of work from occurring ( Section 96 (4), Section 101 (8) SGB III).

Working time accounts

There is no obligation to save a working time credit for the bad weather period. If there is, however, the loss of work is considered to be avoidable. Time credits must therefore always be canceled before seasonal short-time work benefits can be claimed. The maximum limit up to which termination can be requested is 10% of the annual working time ( Section 96, Paragraph 4, Clause 3, No. 4 SGB III), which is 208 hours for a 40-hour week.

Working time credits of up to 50 hours, which are exclusively intended to bridge work absences outside of bad weather periods (e.g. for long weekends) are also particularly protected ( Section 96 (4), sentence 3, no. 1 SGB III).

The aim is to prevent working time credits that have not existed for at least one year from being canceled at the beginning of the bad weather period (e.g. through payment) in order to then draw seasonal short-time work allowance at the expense of social insurance. Therefore, there is no entitlement to seasonal short-time work allowance in the amount of the improperly used credit hours, unless the working time credit was used to compensate for a steady monthly wage, for weather-related loss of work or for exemption for the purpose of qualification ( Section 101 (5) sentence 3 SGB III).

vacation

In order to avoid the loss of work, the granting of vacation comes into consideration, as long as the priority vacation requests of the employees do not preclude the granting of vacation ( § 96 Abs. 4 Satz 2 Nr. 2 SGB III). In order not to jeopardize the meaning and purpose of the vacation leave, in the case of priority vacation requests of the employees, the employment agencies cannot demand that this be brought in by the end of the current vacation year to avoid short-time work, or the employer a provision about the start of the vacation. The situation is different with transferred vacation entitlements. In these cases, at the beginning of the bad weather period, as part of the seasonal short-time work allowance, a request can be made that a remaining vacation entitlement transferred from the previous year, which according to the expiry periods of § 8 BRTV-Bau can only be asserted against the employer until the end of the current calendar year , is introduced.

Loss of earnings

The employee may not be entitled to remuneration for the time off work ( Section 95 No. 1 SGB III).

For commercial employees in the main construction trade, the wage entitlement does not apply in the event of weather-related lost work or for economic reasons in bad weather due to Section 4 No. 6.1 Paragraph 1 Clause 1 BRTV-Bau. For salaried employees, the loss of pay can result from an individual contractual agreement to be made or a company agreement.

Operational and personal requirements

The operational and personal requirements must be met:

  • At least one employee must be employed in the company or in the company department ( Section 97 SGB ​​III),
  • the employee claiming the seasonal short-time work allowance must be in an employment relationship that is not terminated or not terminated by a termination agreement and that is subject to insurance and must continue to do so after the loss of work ( Section 98 SGB ​​III). Employees who are unable to work are also entitled as long as they do not receive sick pay. While the short-time work allowance is being drawn, the employees must be available for the placement efforts of the employment agency.

Notification of the absence from work at the employment agency

The loss of work must be reported in writing to the employment agency at the company headquarters together with a statement from the works council ( Section 99 SGB ​​III). In the case of absence from work due solely to weather-related reasons, there is no notification requirement ( Section 101 (7) SGB III).

Application by the employer

The seasonal short-time work allowance must be applied for by the employer within a preclusive period of three months, beginning at the end of the month for which the benefit is requested ( Section 325 (3) SGB III). In contrast to the notification, the employment agency at the headquarters of the company's payroll office is locally responsible.

The application can neither be made by the employee nor by the works council. Nevertheless, the employee and not the employer is entitled to the short-time work allowance. Only the employer is entitled to appeal against the decision on the application. Under labor law, the employer may be obliged to object to incorrect notices.

According to Section 4 No. 6.1 Paragraph 1 Clause 2 BRTV-Bau, the construction employer has to pay the seasonal short-time working allowance to the employee with the next pay slip in the statutory amount, regardless of whether the employment agency has already submitted the application Has decided.

Amount of the seasonal short-time work allowance

The seasonal short-time work allowance is paid in the same amount as the cyclical short-time work allowance ( § 105 , § 106 SGB ​​III). It is 60% of the net pay difference in the entitlement period. Employees who have a child allowance of at least 0.5 entered on their income tax card receive an increased benefit rate of 67%. The net wage difference corresponds to the difference between the lump-sum net wage from the target wage and the lump-sum net wage from the actual wage.

The receipt of seasonal short-time working allowance does not reduce any subsequent receipt of unemployment benefit.

Tax treatment

The seasonal short-time work allowance is tax-free ( Section 3 EStG), but is subject to the tax progression proviso .

Supplementary benefits according to Section 102 SGB III

Winter allowance

For every lost working hour, for the compensation of which a working time credit is canceled and the use of the seasonal short-time work allowance is avoided, the employee in the main construction trade, whose termination is excluded for weather-related reasons, receives a supplementary winter allowance of € 2.50 ( § 102 para. 2 SGB III). This reference is tax and social security free. This service is intended to create an incentive to agree more flexible working hours (working time accounts) in individual contracts or through company agreements. In the ancillary construction trade, the winter allowance is € 1.03 ( Section 133 (3) SGB III).

Additional expense winter allowance

Employees who are employed in a weather-dependent workplace and who cannot be terminated due to the weather receive an additional winter allowance of € 1.00 for each hour of work actually worked that can be considered. Working hours from December 15 to the end of February can be taken into account, namely in December up to a maximum of 90 hours, in January and February up to a maximum of 180 hours ( Section 102 (3) SGB III)

Reimbursement of social expenses

Employers in the main construction trade can apply for reimbursement of the social security contributions to be borne by them for the recipients of seasonal short-time working allowance ( Section 102 (4) SGB III).

financing

The seasonal short-time work allowance is financed from unemployment insurance funds.

The supplementary services are financed through a levy . The surcharge is 2% of the gross wages of the industrial workers subject to the surcharge in companies in the main construction trade, and 1% in companies in the ancillary construction trade. In the main construction trade, 60% of the levy is paid by the employers (= 1.2% of the gross wage) and 40% (= 0.8% of the gross wage) by the employees, and the remainder solely by the employers. In principle, the gross wages that are subject to wage tax and are not taxable at a flat rate are subject to apportionment , with the exception of the collectively agreed 13th monthly income, vacation allowances, severance payments and other benefits. In the main construction trade, SOKA-BAU , which is a joint institution of the collective bargaining parties , acts as the collection point , otherwise the employment agency .

The employee can claim the share of the winter employment surcharge he has spent as income -related expenses in his income tax return in accordance with Section 9 (1 ) EStG .

literature

  • Ludwig / Nehring / Kopp: The new short-time allowance. Season and transfer KUG. , Haufe Verlag, 2006, ISBN 3-448-07476-4

Web links

Individual evidence

  1. ↑ printed in: Biedermann, Brettschneider, Wulf, Zander, seasonal short-time work allowance in the construction industry, Otto Elsner Verlagsgesellschaft, Dieburg 2006. P. 172 ff.
  2. ↑ printed in: Biedermann, Brettschneider, Wulf, Zander, seasonal short-time work allowance in the construction industry, Otto Elsner Verlagsgesellschaft, Dieburg 2006. p. 15.
  3. ↑ Ordinance on supplementary benefits to the seasonal short-time work allowance and the raising of the necessary funds to maintain employment in the winter months - WinterbeschV of April 26, 2006, Federal Law Gazette I 2006, p. 1086 ff.
  4. ↑ BRTV, amended July 29, 2005
  5. ^ Report of the Federal Ministry of Labor and Social Affairs on the effects of the seasonal short-time work allowance and the associated supplementary benefits according to Section 175b of Book III of the Social Code - SGB III.  ( Page no longer available , search in web archives )@1@ 2Template: Dead Link / www.bmas.de
  6. ↑ page 10 of the report
  7. ↑ page 9 of the report
  8. ↑ Pages 9, 10 of the report
  9. ↑ page 12 of the report
  10. ↑ page 13 of the report
  11. ↑ page 10 of the report
  12. ↑ Text of the Construction Ordinance
  13. ↑ Information on seasonal short-time work allowance  ( page no longer available , search in web archives ) at www.arbeitsagentur.de@1@ 2Template: Dead Link / www.arbeitsagentur.de
  14. ↑ Special provisions apply to factory foremen, construction machinery specialists and furnace attendants in furnace construction (§ 11 BRTV-Bau)
  15. ^ Biedermann, Brettschneider, Wulf, Zander, p. 34.
  16. ↑ Confirmed by judgment of the Federal Labor Court of April 22, 2009 - 5 AZR 310/08
  17. ^ Biedermann, Brettschneider, Wulf, Zander, p. 69.
  18. ↑ See § 3 Paragraph 3 WinterbeschV.
  19. ↑ see justification of the draft law, BT-Drs. 16/249 of January 24, 2006 p. 12.