Allowances for work on Sundays, bank holidays or at night are protected against attachment

On 23 August 2017 the Federal Labour Court ruled (judgment, 10 AZR 859/16) that allowances for work on Sundays, on bank holidays and at night are protected against attachment so far as the amount of such payments is common practice. Whether the extent and amount of such allowances are “common”, which means they are protected against attachments (according to sec 850a no. 3 ZPO), can be linked to sec. 3b EStG.

In the current case, a personal insolvency proceeding was annulled, where the plaintiff was in a phase of good conduct (Wohlverhaltensphase) and assigned the attachable remuneration to a trustee. Between May 2015 and March 2016 the defendant transferred the attachable amount of the net remuneration of the plaintiff to the trustee by taking into account the allowances which were agreed in the tariff agreement for work on Saturdays and Sundays, on bank holidays, at night and on alternate shifts. According to the plaintiff these allowances are an unseizable extra payment for difficult working conditions (Erschwerniszulage) pursuant to sec. 850a no. 3 ZPO and therefore claimed for a payment of 1.144, 91 Euro, which had been overpaid by the defendant to the trustee.

The Federal Labour Court annulled the judgement of the Higher Labour Court. However, the Federal Labour Court confirmed that allowances for work on Sundays, on bank holidays and at night are extra pay for difficult working conditions according to sec. 850a no. 3 ZPO and consequently are unseizable. The Federal Labour Court refers to sec. 6 para. 5 ArbZG which regulates a compensation obligation for working at night, which has been classified as hard conditions by the legislative authority. Furthermore, working on Sundays and on bank holidays is particularly protected by the constitution (Art. 140 GG related with Atr. 139 WRV). Besides that sec 9 ArbZG prohibits working on such days.

There is no similar classification by the legislative authority regarding allowances for shiftwork and for work on Saturdays, hence such payments are not protected against attachment.