Poland: German minimum wage mandatory for Eastern European care workers in Germany
Care workers for elderly people in Germany are often recruited from Central European countries, including Poland. These workers are often employed only part-time, but in practice they work longer: they are often on duty 24 hours a day.
In a landmark judgment of 26.06.2021. (No. 5 AZR 505/20), the German Federal Labour Court (BAG) held that in such a case remuneration is due for the entire time of work performed, including on-call duty. At the same time, the Court pointed out that such care workers should be paid the hourly minimum wage in Germany, even if they are formally delegated to work in Germany from another country and employed in accordance with the regulations of that country. In the Court’s view, the minimum wage provisions are mandatory provisions within the meaning of Article 9(1) of the EU Rome I Regulation. These take precedence and apply regardless of whether the parties have chosen a foreign law (i.e., made the contract subject to the law of a country other than Germany).
The judgment is being hailed in Germany as a landmark and has precedent-setting significance: in the future, the remuneration rules for caregivers posted to Germany must change. On the one hand, this means an end to wage dumping for this group of employees, but on the other hand it may significantly reduce the labour market for these persons in Germany, as fewer households will be able to afford to pay the German minimum wage to a care worker and pay for their overtime work.
The judgment, however, applies only to employed persons and does not therefore cover care personnel working in Germany as individual entrepreneurs.
Source: Judgment of the German Federal Labour Court of 24 June 2021, reference no. 5 AZR 505/20