Surcharge for Sunday, public holiday and night work
The supplements to wages for work on Sundays, public holidays or night work are tax- favored in Germany and Austria .
With the addition to the basic wage , the employee's performance at times when the majority of employees are off work is financially rewarded by the employer . The state for its part waives the wage taxation of the surcharge; In Germany, the surcharge is also partially exempt from social security .
Germany
According to Section 9 (1) ArbZG , employees are not allowed to be employed on Sundays and public holidays from midnight to midnight. The employee's rest period must coincide with the calendar Sunday and be at least 24 hours for every Sunday. However, Section 10 of the ArbZG provides for exceptions to this principle , for example for police officers, rescue specialists, fire fighters, shift workers or hospital staff. The same applies to night work within the meaning of Section 2 (4) ArbZG, for which - as with Sunday work - surcharges are often agreed in the relevant collective agreement.
The bonuses are paid to compensate for the stresses associated with this work, for the disturbances in the worker's rhythm of life and for social disadvantages that arise because of the working hours during which the majority of the population is free. A surcharge of 25% on the respective gross hourly wage regularly represents an appropriate compensation for night work without the existence of special circumstances. If the regular work is performed in permanent night work, the compensation claim increases regularly to 30%.
Labor law provisions
An employee's right to an allowance can result from the law, collective bargaining agreement, a works agreement or the employment contract. The operational exercise can also justify a claim. If the employer pays the surcharge voluntarily and subject to revocation at any time, the employee has no legal entitlement, even if the payment is repeated.
A contractual regulation is also permissible that voluntary surcharges are taken into account in whole or in part in the case of tariff increases. If there is a corresponding agreement, a collective wage increase only leads to an increase in the proportion of wages covered by the collective agreement.
Employees who work on Sundays and public holidays are not legally entitled to a supplement to their wages. However, if the employee performs night work, and this also on Sundays or public holidays, the employer must grant a reasonable amount of paid days off or an appropriate financial compensation (surcharge) for the hours worked during the night, unless there are any collective bargaining agreements ( Section 6 (5) ArbZG). For work performed on Sundays or public holidays (during the day), however, according to To grant a replacement day of rest in accordance with Section 11 (3) of the ArbZG .
Legal historical development of the regulation on tax exemption
The tax exemption for Sunday, public holiday and night work supplements was introduced in 1940. This was done on the one hand for propaganda purposes - the people should be demonstrated that the German Reich could also lower taxes during the war instead of introducing war taxes - and on the other hand to create a financial incentive for workers in the arms production.
The regulation of § 3b EStG underwent a change in 2004, when the tax exemption of supplements for top earners was curtailed. The reason was the criticism of the tax-free allowances that football professionals received for games and training times on Sundays and public holidays. Since then, the tax exemption has been limited to the effect that the applicable basic hourly wage is set at a maximum of € 50 per hour.
Tax treatment of the surcharge
The surcharge remains tax-free as long as it does not exceed the following portion of the basic wage:
- 25% for night work (8 p.m. - 6 a.m.)
- 50% for Sunday work (midnight - midnight)
- 125% for work on public holidays at the place of work and on December 31 from 2 p.m.
- 150% for special holiday work (December 24th from 2pm, December 25th and 26th and May 1st)
If night work is started before midnight, the following rates are tax-free:
- 40% for night work between midnight and 4 a.m.
- 50% for Sunday work between midnight and 4 a.m. if the previous day was a Sunday
- 125% for public holiday work between midnight and 4 a.m. if the previous day was a public holiday
- 150% for holiday work between midnight and 4 a.m. if the previous day was a special holiday
The cumulation (addition) of supplements for night work with those for work on Sundays and public holidays is permitted, but not the cumulation of supplements for work on Sundays with those for work on public holidays.
For example, an employee starts their shift on Sunday, December 26th at 10:00 PM and ends on December 27th at 8:00 AM. Tax-free surcharges are possible up to the following rates:
- 175% for work on December 26th from 10pm to midnight (150% for special holiday work and 25% for night work),
- 190% for work on December 27 from midnight to 4 a.m. (150% for special holiday work and 40% night surcharge),
- 25% for work on December 27 from 4 to 6 a.m. and
- 0% for work on December 27 between 6 a.m. and 8 a.m.
The basic wage is the current wage to which the employee is entitled for the relevant regular working hours for the respective wage payment period ; it is to be converted into an hourly wage and set at a maximum of 50 euros. The tax exemption according to § 3b EStG requires the payment of the surcharge in addition to the current basic wage. It is therefore not possible to divide a uniform salary only arithmetically into basic wages and bonuses.
Surcharges for work on Sundays, public holidays and night work are only exempt from income tax for work actually performed; Surcharges for Sunday, public holiday and night work that are included in the maternity protection wage to be paid by the employer in accordance with Section 18 of the Maternity Protection Act are therefore subject to wage tax.
Treatment of the surcharge under social security law
The compulsory insurance for Sunday, public holiday and night work supplements has been greatly expanded since July 1, 2006. If wage tax-free surcharges were previously free of charge in the social security system, a maximum basic hourly wage has to be observed since then. According to Section 1, Paragraph 1, Sentence 1, No. 1 of the Social Insurance Remuneration Ordinance (SvEV), the basic hourly wage, from which the Sunday, holiday and night surcharges are determined, is limited to € 25; the excess is subject to contributions.
Reduced tax receipts
| year | Tax deficit in € million |
|---|---|
| 2009 | 2060 |
| 2010 | 2240 |
| 2011 | 2240 |
| 2012 | 2240 |
| 2013 | 2645 |
| 2014 | 2700 |
| 2015 | 2655 |
| 2016 | 2705 |
| 2017 | 2760 |
| 2018 | 2815 |
Austria
Austrian tax law also provides that surcharges for Sunday, public holiday and night work and the overtime surcharges associated with this work are tax-favored. According to Section 68 of the Income Tax Act, a total allowance of up to 360 euros per month applies to the surcharges.
As far as allowances and surcharges go beyond this, they are taxable according to the tariff. Night work is considered to be continuous working hours of at least three hours which, due to operational requirements, must be performed between 7 p.m. and 7 a.m. For employees whose normal working hours in the wage payment period are mainly between 7 p.m. and 7 a.m. due to the nature of their work, the tax exemption in accordance with Paragraph 1 increases by 50%. In contrast to Germany, however, the surcharges are fully subject to compulsory social insurance.
See also
literature
- Wolfgang Mosbacher: Sunday protection and shop closing. The constitutional framework for shop closing on Sundays and public holidays and its subjective legal dimension (= publications on public law 1075). Duncker & Humblot, Berlin 2007, ISBN 3-428-12409-X (also: Berlin, Humboldt-Univ., Diss., 2006).
Web links
- Arbeitsrecht-ratgeber.de: Working hours
- Income tax guideline 2008 to § 3b EStG
- Vienna Chamber of Commerce: Documents on the tax treatment of allowances and surcharges
- Income tax association: taxation of certain allowances and surcharges
Individual evidence
- ↑ BAG judgment of December 9, 2015, 10 AZR 423/14
- ↑ BAG, judgment v. January 11, 2006, 5 AZR 97/05
- ↑ Topic of the day: Special surcharges In: Berliner Zeitung , September 20, 2003
- ↑ We don't want that! In: Der Spiegel . No. 39 , 2003 ( online interview with Hans Eichel about the abuse of tax regulations by soccer millionaires).
- ↑ Federal Fiscal Court (BFH) - Decision of May 27, 2009 - VI B 69/08