The Federal Labour Court (BAG) ruled on 18 November 2015 (docket number 5 AZR 814/14) that the comparative standard to render a salary agreement invalid is the common salary in the relevant economic sector and not the minimum wage.
In the case at hand, the employee worked as a bus hostess on a school bus for disabled students. The employer paid her only for the actual travel time. Stand-by times as well as sick leave and times the employee did not have to work due to school holidays were not paid. After the employment contract was terminated the employee claimed unpaid salary.
The Federal Labour Court considered the existing salary agreement invalid under German Law and therefore established the salary owed according to statutory provisions. In Germany a salary agreement can be invalid according to section 138 of the German Civil Code if the remuneration is strikingly disproportionate to the value of the work performed. To determine the striking disproportion the Court compares the remuneration paid with the common salary in the relevant sector. Reference points are actual union agreements in the relevant economic sector but not the statutory minimum wage. The Labour Court explained that the statutory minimum only constitutes a minimum and does not reflect the salary commonly paid in the relevant sector.
In this decision the Federal Labour Court established that the minimum wage does not constitute a reference point to establish the invalidity of salary agreements and the different points of reference with regard to remuneration claims in cases of invalidity.