Criminal proceedings regarding the retention of social security contributions; first time an employer was convicted for not paying the statutory minimum wage.
The appellate court (OLG) denied the accused’s appeal against his conviction by the review court for the retention of social security contributions (section 266a of the German Criminal Code (StGB). This appears to be the first time in Germany that an employer was convicted for not paying the statutorily prescribed minimum wage or the social security contributions owed on such amounts.
The accused was the proprietor of a cleaning company. Commencing in 2001, he leased the sanitary facilities at the service areas on the German Autobahn and hired cleaning staff from the former CIS countries to work in these. Officially they were hired on a so-called “mini-job” basis pursuant to section 8 of the fourth German Social Security Code (SGB IV). Anyone who does not earn more than EUR 400 per month or who works for less than two months or 50 working days per year is considered to be employed on a mini-job basis. Employment on a mini-job basis is not subject to social security insurance, i.e. for this type of employment the usual social security contributions do not have to be paid. The persons employed were in fact working 14 days per month for 12 hours per day for a total monthly wage of EUR 60 to EUR 170. Their hourly wages were therefore somewhere between EUR 1.00 and EUR 1.79. The statutory minimum wage for employees working in the building cleaning branch was, however, EUR 7.68.
The accused did not pay any of the social security contributions that were owed on the minimum wage stipulated in the collective bargaining agreement.
The courts of first instance had initially found no criminal liability on the part of the accused pursuant to section 266a StGB. On the appeal brought by the public prosecutor, the appellate court quashed the acquittal. It remitted the case to the review court with the instructions that criminal liability for the retention of social security contributions pursuant to section 266a StGB is already to be found when the employer fails to remit social security contributions although he/she is in a position to do so. The amount of the social security contributions that must be paid is not determined on the basis of the wage that was actually paid but on the basis of the union wage that should have been paid.
As a result, the review court convicted the accused on the basis of section 266a StGB in 18 cases and sentenced him to a fine of EUR 1,000. In its judgment, the court stated that on account of the work actually performed, the female employees were no longer to be classified as working on a mini-job basis and that they fell within the scope of the collective bargaining agreement. The court was convinced that the accused had consciously circumvented the collective bargaining agreement for his own advantage and to this end had recruited female workers who, because of their weak positions, would not or could not defend themselves against such a practice.
Decisions in full text: