Vacation pay
Holiday pay (also: additional holiday pay , holiday bonus or 14th month's salary ) is an additional remuneration paid by the employer to his employee or by the employer to his civil servant . It is either paid out at a certain point in time independently of the vacation or together with the vacation pay. The vacation pay is to be distinguished from the vacation pay , the continued payment of the wages / salary during the vacation. In Switzerland , vacation pay, or rather vacation pay, is unknown from the employer. (Only used in connection with temporary employees).
Labor law issues
Entitlement to vacation pay
There is no direct statutory entitlement to vacation pay. There can be an indirect one in connection with equal treatment requirements (see below). A right to vacation pay can arise in particular from
- Collective agreement (in Austria collective agreement )
- company agreement
-
Employment contract .
- At the individual contractual level, there is a right to vacation pay
- from an employment contract or
- from an operational exercise
- A vacation allowance entitlement can also result from the right to equal treatment
- in the case of unjustified discrimination within the meaning of the General Equal Treatment Act (AGG) - or
- in the event of a violation of the general principle of equal treatment .
- At the individual contractual level, there is a right to vacation pay
Collective agreement
Dependence on vacation entitlement
It depends on the respective tariff standard to what extent the vacation allowance depends on the vacation entitlement. If the vacation pay is dependent on the vacation entitlement and if the vacation entitlement is reduced when the employment relationship is terminated, the entitlement to the vacation pay is reduced accordingly in case of doubt.
The collectively agreed holiday pay entitlement follows the principles applicable to holiday pay if it is made dependent on the existence of the holiday entitlement by the parties to the collective bargaining agreement. This dependency must result from the collective bargaining context. The mere designation of the entitlement as “vacation pay” does not result in any dependency on the existence of the vacation entitlement. If the vacation pay is linked to the vacation pay, it is only owed if vacation is granted and there is a right to vacation pay. If there is a dependency on the vacation pay, then the same rules about origin, content, scope and expiration apply as for the vacation pay. Vacation pay can also be designed as a vacation-independent special payment and be independent of the granting of vacation.
- In case of doubt, there is a dependency if the holiday pay is a uniform amount (BAG), the holiday pay is only to be paid “when you start your holiday” with the holiday pay (BAG), and contains a calculation for each day of leave in the collective agreement.
- If the vacation pay is solely dependent on the existence of the employment relationship and is a fixed amount z. B. granted according to age and extent of the respective working hours, a special payment independent of vacation time can be assumed.
- The performance on a certain key date (June 30) does not turn a "vacation allowance" into a bonus or special payment independent of the vacation entitlement (LAG Hamm, September 15, 2004 - 18 Sa 389/04 - NZA-RR 2006, 65 (66) ).
- On the other hand: The collective agreement "Every employee is to be paid a vacation pay for each vacation year. The vacation pay is paid on June 1st of each calendar year" does not make the vacation pay dependent on the existence of a vacation entitlement or the granting of vacation (BAG, 18. March 1997, 9 AZR 84/96, NZA 1997, 1168 (1169)).
- Or: If a TV gives a 13th monthly income and 50% of the payment is made as vacation pay on the basis of the collective wage agreement valid in May with the May salary, an actual vacation is not a prerequisite for the vacation allowance (BAG, April 11, 2000, 9 AZR 225 / 99, DB 2000, 2479 (2480)). "
Individual collective agreements
- TVöD : Because of the new collective bargaining law TVöD, no independent vacation pay has been paid for employees in the public service in Germany since 2006. Together with the Christmas bonus, it was converted into an annual special payment, the amount of which depends on the pay group.
company agreement
The regulation of vacation pay in a works agreement is seldom effective and if it does, it is seldom effective because of the priority of collective bargaining within the meaning of Section 77 (3) BetrVG .
employment contract
Individual employment contract
- Reservation of revocation
- Voluntary reservation: This must be recognizable for the employee. "If the employer uses the heading" Voluntary social benefits "for a group of promised benefits (here: VwL and 13th monthly income), the employee does not have to assume such a voluntary reservation (BAG [April 11, 2000], 9 AZR 255 / 99 - DB 2000, 2328).
- Dependency on vacation entitlement: The question of the extent to which the vacation allowance is only to be paid when vacation entitlement actually exists or vacation is taken also arises with individual employment contracts.
Overall commitment
Entitlement to vacation pay can also be justified by an overall commitment .
Operational exercise
If the employer repeatedly pays vacation pay as a voluntary benefit without having reserved the right to revoke it, a claim may arise due to company practice .
Equal treatment requirement
As far as individual employees or groups of employees are excluded from the service, norms of higher-ranking law must be observed. If an employee is excluded from receiving additional vacation pay in violation of higher-ranking law, the exclusion norm is void. The employee is then to be treated as if he had a claim (cf. ErfK / Dörner, 7th edition [2007], BUrlG § 11 marginal number 49).
The following standards are to be mentioned:
- the General Equal Treatment Act ( AGG )
- Section 4 TzBfG (prohibition of discrimination against part-time workers)
- the general principle of equal treatment ( Art. 3 GG)
Amount of entitlement
The amount of vacation pay can depend on the industry, company and length of service. If this is discriminatory / contrary to equal treatment, there is a right to payment of the better vacation pay in case of doubt.
Lapse of entitlement
If the holiday allowance depends on the natural holiday entitlement, it goes down with this.
Limitation periods, waiver, forfeiture, statute of limitations
- Exclusion periods: The entitlement to vacation pay can be subject to a statutory exclusion period without restriction.
- Waiver: "The contractor can conclude a waiver contract for the additional vacation pay, provided that the claim is not justified by the collective agreement and thus contravenes § 4 IV 1 TVG." (ErfK / Dörner, 7th edition [2007], BUrlG § 11, marginal no. 54)
- Forfeiture: The forfeiture of a vacation pay entitlement is theoretically possible, but not factually (ErfK / Dörner, 7th edition [2007], BUrlG § 11, marginal number 55)
- Statute of limitations: “Vacation pay and vacation pay are subject to the three-year statute of limitations in Section 195. The statute of limitations begins on December 31. of the year in which the holiday commenced and ends on December 31. of the year following the year after next, § 199 I BGB. "(ErfK / Dörner, 7th edition [2007], BUrlG § 11, Rn. 56)
Non-attachability according to § 850a ZPO
In accordance with Section 850a No. 2 of the German Code of Civil Procedure (ZPO ), vacation pay can not be seized and is therefore not assignable , i.e. not even when assigning wages and salaries .
Repayment claim
It can be agreed that the employee is obliged to repay the holiday pay if he leaves the company within a certain period of time after the holiday pay has been paid.
Social security and tax law issues
Germany
Vacation pay is part of the taxable wages and is subject to wage tax deduction as any other receipt .
Austria
In Austria, vacation pay is one of the special payments and is subject to preferential taxation up to a certain limit (one sixth of the year ).
Vacation pay for civil servants
The vacation pay entitlement of the German civil servants arises or resulted from law, for example the federal vacation pay law or corresponding state laws. In the last few years the vacation pay entitlements of civil servants have been largely abolished or, in abbreviated form, combined with the Christmas pay into an annual special payment.
Distribution and amount of vacation pay in Germany
According to a survey by the Hans Böckler Foundation , 50 percent of all employees in Germany received vacation pay in 2018. In companies with a collective bargaining agreement it was 71 percent of employees, in companies without a collective agreement, however, only 38 percent.
| Holiday pay amount | proportion of |
|---|---|
| 0 - 499 € | 51% |
| 500-999 € | 25% |
| 1000 - 1499 € | 10% |
| 1500 - 1999 € | 7% |
| 2000 - 2499 € | 3% |
| € 2500-2999 | 2% |
| 3000 - 3499 € | 1 % |
| 3500 and more | 2% |
Source: SOEP, 2006
In 2013, employees in the middle salary group received vacation pay between 155 and 2204 euros. The following table shows how vacation pay changed between 2003 and 2013:
- Wood and plastic Westfalen-Lippe (Arb.): From 1,467 to 1,863 € (+ 27.0%)
- Metal industry North Württemberg / North Baden: from 1,485 to 1,870 € (+ 25.9%)
- Insurance industry: from € 1,125 to € 1,349 (+ 20.0%)
- Retail NRW: from 958 to 1,124 € (+ 17.3%)
- Printing industry: from 1,521 to 1,735 € (+ 14.1%)
- Hotels and restaurants in Bavaria: from € 222 to € 240 (+ 8.1%)
- Deutsche Bahn AG: from 409 to 437 € (+ 7.0%)
- Agriculture Bavaria (Arb.): From 184 to 195 € (+ 6.0%)
- Coal mining Ruhr: from 156 to 156 € (0.0%)
- Chemical industry North Rhine: from 614 to 614 € (0.0%)
Web links
- Law on the granting of annual vacation pay ( BGBl. 2002 I p. 1780, 1781 )
References
- ↑ Companies with collective agreements pay vacation pay almost twice as often. Hans Böckler Foundation, June 11, 2018, accessed on November 26, 2018 .
- ^ SOEP - the Socio-Economic Panel 2006: amount of vacation pay in the last year
- ↑ http://www.boeckler.de/pdf/pm_ta_2013_05_23.pdf
