holiday pay for employee paid hourly

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I am working via an employment agency for client company. The contract was quite confusing as to whether I would be working a 35 hour week or a 38,5 hour week. The contract has monthly hours which is quite complicated to interpret at first glance. The 38,5 hours was something mentioned in an email faily early on in the process of being offered a job, as it is the standard working week in the client company. I initially started working a 35 hour week as I was following what was in the contract. I was then told to work 38,5 hours.

I have been told I have 2 days paid holiday per month, but during the first 6 months I can only take 1,5 days per month. My problem is more with the pay I received for holidays.  I am also only paid 7 hours wages per day off, which seems unfair as I am working 38,5 hour weeks, which means an average working day is 7,7 hours. When I challenged this, my employer just said that was the way it was, although he was confused. He now seems to be offering time off in lieu, which makes it even more complicated to keep track of. It this legal or normal practice in Germany?

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Can you clarify something?

 

You get paid by the hour (you have an hourly rate, not a salary). Is that right?

Your contract says 35 hours a week, but you work 38,5 and you get paid for 38,5 hours? Of do you get paid for 35 no matter what and they offer you time in lieu (Gleittage)?

 

 

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When you challenged your employer, this was your agency, right? The agency does your payroll, right? 

 

If so, I wouldn't be surprised if "retroactive payments/bookings" above the 35 are involved. Agency payslips can include a lot of additional cryptic entries - I'd recommend asking them how they are administering the difference of 3.5 hours per week, how it is paid, cut-off dates, and how time off/vacation is generated against this.

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3 hours ago, Smaug said:

Your contract says 35 hours a week, but you work 38,5 and you get paid for 38,5 hours? Of do you get paid for 35 no matter what and they offer you time in lieu (Gleittage)?

 

I get paid for the exact hours I work, which sometimes is more than 38,5 and sometimes less, but those hours are what I aim at working each week. When I take a day off or for public holidays, I get paid for 7 hours.

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34 minutes ago, engelchen said:

What exactly does your contract say?

 

It is very long and written in complex language. I need to try to find a reference to holiday pay or somehow a reference to hours over and above the preset working hours?

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Is this agency in Germany, because your location is listed as the UK. I also had a contract for 35 hours a week, though the client requested 40, and I ended up working even more. The extra hours first went into a 'time account' until it reached 35 hours, after which all overage was paid directly to me as the account was full. I could use this account for paid days off, but as my contract was for 35 hours (7 hours/day), I got 7 hours per day off using the hours banked in this account. Make sense?

 

My regular days off were actually paid by taking the average of the hours worked in the weeks prior, or something, so I ended up getting proper hours for actual holidays to which I was entitled. I forget what they did for sick days, though.

 

A weird system, but helped me take more days off than holidays I had, as the client was very flexible.

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I am supposed to work 38,5 hours, my contract is 35 hours as it applies to all the clients the agency has. I have sign something else which says I should work 38,5 hours. So far so good.

My pay is in two parts, a tariff-agreed amount, plus a top up (Einsatzzulage?) which I (slightly) less that the basic wage.

Any hours I work above 35 hours are paid out in the same month, but only at the top up rate. The same hours are also "banked" or summed into the ZA account. I had a meeting with the agency but they weren't able to explain it to me. The half day was not allowed as Urlaub, only as "Zeitausgleichsantrag"  which I booked. However this didn't result in anything being credited to the ZA account, so I seem to have gained nothing, neither wages nor addition to my ZA account. I have no idea what will happen when I actually draw down this ZA, I guess I will be paid for the part I wasn't paid when my excess hours were paid in.

The explanation from my employer was I have gained as if I had done that in a month I hadn't worked the 38,5 hours, I wouldn't have been penalised.

On the one hand I can't believe the agency is unable to make its own process work, on the other I feel like I'm being exploited as they say "this is how it is in Germany". 

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I'm far from an expert on this topic, but my experience tends to lead me to believe the German laws do a good job of giving and protecting employee rights. 

 

Based on my very limited knowledge, I believe that if your contract says 35 hours a week, then I think it makes sense that your leave and holiday pay is centered around 7 hour working days.  I also think, however, that the extra 3.5 hours you work in a week somehow needs to be compensated in terms of extra pay or extra time off.  To me, that would be the first thing to clarify if it's unclear.  Once you know exactly how that works, you can look at the consequences or steps to take if you don't want to work the extra 3.5 hours a week as a separate topic.  Another question that may be important, Would you have lost your job if you didn't agree to sign the 2nd form to work 38.5 hours?  I would generally think that there might be a way to reduce your hours to those stated in the employment contract if that's all you want to work, of course if you found a way to force them to let you reduce your hours to 35 it might hinder any forward career progress.

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