How is the construction industry regulated

construction industry

Summary

term

In general, the construction industry can be defined as an economic sector that provides planning and execution services in order to erect buildings. This includes primarily all construction companies that carry out the relevant trades.

On the other hand, the following areas do not fall under the category of construction:

  • Building materials industry
  • Building authorities
  • Building research institutes
  • Property development companies

Under tax law there are no special regulations for the treatment of wages and other benefits from the employer to employees in the construction industry. However, some industry-typical remuneration components have peculiarities with regard to the wage tax liability.

Laws, Regulations, and Jurisprudence

 Employment Law:

In principle, the same labor law provisions come into force in the construction industry as in other branches of industry. However, due to high fluctuation rates and strong weather conditions, several special rules apply to construction companies. These can be found in the Federal Framework Collective Agreement for the Construction Industry (BRTV). Foreign employees must consult the Employee Posting Act (AEntG). In addition, the collective agreement on the social security system in the construction industry (VTV) plays a decisive role.

Income tax:

Employees who work in the construction industry regularly do not have a first place of work. Therefore, the employer may reimburse travel expenses due to professional external activities tax-free within the framework of § 3 No. 16 EStG (see also R 9.5-9.8 LStR). If the construction site becomes the employee's first place of work, Section 3 No. 32 EStG forms the legal basis for the tax-free collective transport of the employee to the place of work.

  • For the flat-rate taxation of the travel allowance, see Section 40 (2) sentence 2 EStG.
  • For the lump sum taxation of the amounts to the supplementary pension fund see § 40b EStG.
  • The tax exemption of the employer's contribution to the supplementary pension fund is stipulated in Section 3 No. 63 EStG.

Social insurance:

  • 101 para. 2 SGB III prescribes who belongs to the operation of a building trade.
  • Contribution liability in the construction industry is based on Section 28e (3a) SGB IV.
  • 28f para. 1a SGB IV i. In conjunction with Section 19 (1) AEntG regulates the management and recording obligation of wage documents.
  • For fines if the wage documents are not kept correctly, see Section 111 (1) No. 3a SGB IV.

Brief overview

RemunerationLStSV
Construction site allowancesobligatoryobligatory
Contribution share for the supplementary pension fund

* Paid in addition to wages and salaries and taxed at a flat rate in accordance with Section 40b of the Income Tax Act

obligatoryfree*

Practical examples

  • Vacation entitlement in the construction industry (commercial workers aged 18 and over)
  • Monthly income for industrial workers
  • Monthly income for commercial employees (start or end in the reference period)
  • Monthly income for commercial employees (days lost due to illness in the reference period, possibility of reduction)
  • Monthly income for commercial employees
  • Monthly income for commercial employees (start or end within the reference period)
  • Vacation entitlement for commercial employees (minimum vacation allowance in the event of illness)
  • Payroll accounting period: interruption with winter loss allowance

Employment Law

1 Vacation Right

  • 13 para. 2 BUrlG expressly refers to the possibility of deviating collective agreements in the construction industry in order to ensure a continuous annual vacation.

1.1 Vacation entitlement

All regulations on vacation for employees in the construction industry result from § 8 BRTV. It is stipulated here that the employee with a certain minimum number of days of employment (currently 12) is entitled to one day of vacation. A year-round employment therefore results in one Vacation entitlement of 30 days.

Generally speaking, the worker is allowed to do that Vacation pay only move in as soon as he starts his vacation. The granting of free time is left to the employer who is employing the employee at this point in time. At the start of vacation, the employer must determine the amount of vacation pay and pay it out. Contractors can apply to have the holiday fund reimbursed for the corresponding amount.

1.2 Holiday fund and social security contribution

According to BRTV, vacation pay initially flows into the pay paid by the collective bargaining partners on the basis of the wages earned Vacation and wage equalization fund of the building trade (ULAK). Since January 1, 2010, the employer is obliged to provide a Social security contribution and thus raise the funds for collectively agreed services in the vacation and vocational training process.

For Wage earners the contribution is calculated from the total amount of gross wages. As of January 1, 2016, the contributions will be as follows (depending on the employer's place of business):

Old federal statesNew federal statesBerlin WestBerlin East
vacation14,5%14,5%14,5%14,5%
Vocational training2,1%2,1%1,65%1,65%
Supplementary benefits3,8%0,60%3,8%0,60%
Reimbursement of social expenses6,6%6,6%
Total amount20,4%17,2%26,55%23,35%

Employers have to pay employees a fixed monthly contribution rate per capita. The following contributions have been set since January 1, 2016:

Old federal states, Berlin WestNew federal states, Berlin East
EmployeesEUR 79.50 per month

(3.98 EUR daily fee)

EUR 25.00 per month

(1.25 EUR daily fee)

Commercial, commercial and technical traineesEUR 20.00 per monthEUR 20.00 per month
Employees subject to compulsory service79.50 EUR

(2.65 EUR daily fee)

EUR 25.00 per month

(0.83 EUR daily fee)

Compulsory commercial workersEUR 93.00 per month

3.10 EUR (daily fee)

15.00 EUR per month

0.50 EUR (daily fee)

The holiday fund for the construction industry sets up a personal account for each employee.

Danger

Declaration of general application: BAG and SokaSiG

The Federal Labor Court had decided in several resolutions that the generally binding declarations of the collective bargaining agreement on the social security scheme in the construction industry of May 15, 2008, June 25, 2010 and March 17, 2014 due to the lack of the legal requirements according to § 5 TVG a. F. are ineffective. This affects the contribution periods October 2007 to December 2011 and January 2014 to December 2014. The general binding declarations of the collective agreement for the contribution periods 2012 and 2013 have also been deemed ineffective by the BAG. During this period, according to the case law, there is basically only for employers bound by collective bargaining agreements a Contribution obligation.

The BAG, however, considered the generally binding declarations of July 6, 2015 to be effective.

In order to avoid reclaims and to secure the existence of the Soka, that is Social Fund Procedure Security Act (SokaSiG) created. It came into force on May 25, 2017. Through the SokaSiG, the Declaration of general validity restored retrospectively by law. According to the SokaSiG, all social security collective agreements that have been in effect since 2006 are legally binding for all companies and employees in the construction industry, so the general binding declarations of the Federal Ministry of Labor are no longer relevant.

1.3 Simplified reporting procedure

The notification procedure has been simplified since January 1st, 2010. The previous monthly contribution reports for employees in the old federal states accounted for. It is now sufficient to submit the employee-related reports in which the sum of the individual gross wages forms the basis for the social security contribution. It is sufficient to log the employee on and off as well Changes to communicate in the personal data. The contributions for the supplementary pension to be calculated unchanged result from this employment data.

2 Absence of work and absence from work

In general, contrary to Section 616 of the German Civil Code (BGB), wages in the construction industry are only paid for hours actually worked. However, § 4 BRTV grants a (partially) paid leave of absence - of varying duration - in the following cases:

  • Leave for family reasons (depending on the event up to 3 working days)
  • Time off for visits to the doctor and visits to the authorities (for the time actually required)
  • Release to exercise honorary positions (for the time that is necessary without continued payment of wages and without deduction of vacation)

Other special features are the winter construction subsidy and the seasonal short-time work allowance.

3 miscellaneous

The BRTV for commercial employees also contains regulations on loss of work due to unfavorable weather, the start of the employment relationship, working hours, overtime, surcharges, wage calculation, hardship surcharges, external employment, leave to work groups and notice periods.

3.1 Deadlines

All mutual claims from the employment relationship expired according to § 14 number 1 BRTV, if they are not within 2 months be collected in writing from the other contracting party after the due date. If the other party rejects the claim or does not declare itself within 2 weeks of asserting the claim, this must be done within 2 months judicial be asserted (§ 14 section 2 BRTV). Vacation and vacation compensation entitlements expire according to § 8 No. 7 BRTV, claims from apprenticeship relationships according to § 16 of the collective agreement on vocational training in the construction industry (BBTV).

3.2 Peak settlement procedure

In addition to the accounting procedure that is binding for all companies in the construction industry, the peak settlement procedure was also introduced, for which the companies opt voluntary can decide. Here is only three more times (under certain conditions only twice) in the year instead of monthly with the social security funds billed. The prerequisite for participating in this procedure is that the reporting and payment obligations have been properly fulfilled in the past 12 months. For admission to the 6-month accounting procedure, the company must provide the social security funds with an absolute bank guarantee.

4 Temporary Employment

4.1 Admissibility under the Temporary Employment Act

The commercial leasing of employees in companies in the construction industry is fundamentally inadmissible in accordance with Section 1b sentence 1 of the Temporary Employment Act (AÜG). Permissible exceptions result from sentence 2 of the regulation and apply in particular between companies if this is permitted for generally binding collective agreements or if the lending company has demonstrably been covered by the same framework and social security collective agreements for at least 3 years or by their generally binding force.

4.2 Employees from EU countries

The Freedom of Movement Act gives all Union citizens who are employed or to work in the FRG a right to entry and residence in accordance with the law. You need to work in the construction industry no work permit.

The so-called Work permit / EU by the immigration authorities, nationals from Bulgaria and Romania are no longer required for seasonal employment from 1.1.2014.

4.3 Employees from other countries

For employees Non-EU countries Separate regulations apply.

5 Posted Workers Act

In order to put an end to the deployment of employees from EU countries, which are often criticized as "wage dumping" and who work for foreign construction employers with significantly lower wages, the Posted Workers Act (AEntG) provides for:

5.1 Applicability of German law

The regulations contained in legal or administrative regulations on

1.the minimum wage rates including overtime rates or
2.the minimum paid annual leave, maximum working hours, etc.

also apply to an employment relationship between an employer domiciled abroad and his (mostly posted foreign) employees working in Germany. The minimum wages shown in section 6 therefore also apply within the framework of the AEntG.

Practical example

Generally binding collective agreements

Certain collective agreements that have been declared generally binding also apply to such employment relationships, for example collective agreements in the main construction trade or in ancillary construction trade.

The Posted Workers Act contains one Authorization to issue statutory instruments, on the basis of which compliance with collectively agreed working conditions can be made mandatory (declaration of general applicability) even for employers who are not bound by collective bargaining agreements. These working conditions then also apply to employers based abroad.

5.2 Liability of the general contractor

The Posted Workers Act provides one no-faultLiability of the general contractor. The general contractor must ensure that his subcontractors or hirers commissioned by them also comply with the mandatory working conditions according to the Posted Workers Act. According to Section 23 (3) AEntG, fines of up to EUR 500,000 can be levied, and the supervisory authorities carry out extensive control activities.

6 minimum wages

The minimum wages are regulated by the generally binding collective bargaining agreement for the regulation of minimum wages in the construction industry (TV minimum wage) of May 3, 2013, which applies from January 1, 2014 to December 31, 2017. The respective total hourly wage is shown in the following table:

Territory of the Federal Republic, with the exception of Berlin, Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and ThuringiaBrandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and ThuringiaBerlin
from 1.1.2014Wage group 1: EUR 11.10

Wage group 2: EUR 13.95

uniform minimum wage:

EUR 10.50

Wage group 1: EUR 11.10

Wage group 2: EUR 13.80

from 1.1.2015Wage bracket 1: EUR 11.15

Wage group 2: EUR 14.20

uniform minimum wage:

EUR 10.75

Wage bracket 1: EUR 11.15

Wage group 2: EUR 14.05

from 1.1.2016Wage group 1: EUR 11.25

Wage group 2: EUR 14.45

uniform minimum wage:

11.05 EUR

Wage group 1: EUR 11.25

Wage group 2: EUR 14.30

from 1.1.2017Wage group 1: 11.30 EUR

Wage group 2: EUR 14.70

uniform minimum wage:

11.30 EUR

Wage group 1: 11.30 EUR

Wage group 2: EUR 14.55

The collective bargaining partners have agreed on the following wages from 1.1.2018:

westeastBerlin
from 1.1.2018Wage group 1: EUR 11.75

Wage group 2: EUR 14.95

Wage group 1: EUR 11.75Wage group 1: EUR 11.75

Wage group 2: EUR 14.80

from 1.3.2019Wage group 1: EUR 12.20

Wage group 2: EUR 15.20

Wage group 1: EUR 12.20Wage group 1: EUR 12.20

Wage group 2: EUR 15.05

The wage group 1 applies nationwide for helper activities on the construction site. Wage group 2 only applies in the western federal states. The minimum wage according to wage group 2 is paid for skilled workers in the construction industry.
According to § 3 TV minimum wage, the minimum wage of the job applies. However, employees who are employed abroad retain the right to the minimum wage at their place of employment. If the minimum wage for the external job is higher, they are entitled to this minimum wage as long as they are employed at this job.

Danger

Exclusion period for the minimum wage

The claims to the minimum wage expire if they are not asserted in court within 6 months of their due date.

income tax

1 construction site allowances

Construction site allowances are paid due to additional expenses incurred by the employee for difficulties in his professional activity, if they are not covered by travel expenses or his usual salary. Difficulty allowances such as

  • Allowances due to particular pollution or dust exposure (pollution allowances),
  • Snow supplements, e.g. B. for cleaning iced gutters, removing icicles or snow on roofs,
  • Hazard / hazard allowances or else
  • Allowances due to other aggravating and possibly health-endangering conditions in the construction industry, such as heat and cold allowances or noise allowances.

Because such allowances do not compensate for any taxable expenses and there are no special tax exemptions for them, they count towards the taxable wages.

2 travel expense reimbursements

2.1 Existence of a first place of work

For tax travel expenses law, the decisive factor is whether or not there is a first place of work. A first place of work is primarily determined by the employer. Its definition determines whether and from when the employee is on a tax-privileged external activity with tax-free reimbursement of travel expenses or whether he is on the way to the first place of work with the approach of the distance lump sum.

Before an assignment to the first place of work is carried out in the construction industry, it should be checked whether this is necessary.

2.2 Tax-free reimbursement of travel expenses

Workers in the construction industry who have initiated their work as part of a professional activity External activity exercise, can receive a corresponding tax-free travel expense reimbursement for their expenses just like the employees of all other industries. Typically:

  • Ride costs,
  • Additional meal expenses and
  • Accommodation costs.

2.3 Travel expenses

If the employee drives his own car to the external construction site, the employer can reimburse him for travel expenses of EUR 0.30 per kilometer driven, tax-free.

The free or discounted collective transport of an employee between home and first place of work A means of transport provided by the employer can be carried out tax-free in the construction industry, provided that collective transport is necessary for the employee's operational use. However, it must be ensured that the employee is not allowed to charge any income-related expenses in the event that collective transport is provided for this route.

Will the employee under a External activity between the home of an external place of work (no first place of work) is transported free of charge with a means of transport provided by the employer or if he uses a company vehicle, this is tax-free. In return, no tax-free travel expenses may be paid for these journeys.

Flat-rate taxation for travel allowance

If the employer grants the employee a taxable travel allowance for his journeys between home and first place of work in addition to the wages owed anyway, this can be paid tax-free and social security-free for the employee if the employer pays the travel allowance flat rate with 15% taxed. Lump-sum taxation can take place at a maximum amount of the deductible distance lump sum.

Use of company vehicles

Employees use it to travel between their home and their first place of work Company vehicle, no tax-free travel allowances may be paid. To compensate for the distances covered with the company vehicle between home and first place of work, a taxable monthly pecuniary benefit of 0.03% of the car list price per month and per kilometer is to be applied. If it is an external professional activity, the monetary benefit is tax-free (travel expenses).

2.4 Additional meal expenses

If employees in the construction industry are absent from their home or their first place of work for a certain (minimum) period as part of their professional external activity, the employer can grant a tax-free reimbursement of expenses to compensate for the associated additional expenses, which is based on the length of the absence:

Length of absenceTax-free lump sum
more than 8 hours12 EUR
at least 24 hours24 EUR

At multi-day trips Regardless of the actual absence time, EUR 12 can be granted for both the day of arrival and the day of departure.
The employer can increase the stated expense rates (max. Double) by contacting the25% flat rate for the highest amount taxed. If the employee is reimbursed for expenses tax-free, the income-related expenses are not deducted. The reimbursement of expenses must be shown on the income tax certificate.

2.5 Accommodation costs

If employees have to spend the night outside of their home as part of their professional activity, the employer can pay these overnight costs refund tax free.

3 contributions to the supplementary pension fund

Employers in the construction industry have to pay a certain amount of the gross wages from the collectively agreed benefits to the supplementary pension fund for

Contribution shares for vacation and wage adjustment

The contribution shares for wage adjustment and for vacation are not to be added to the wages. Only the later benefits from the vacation fund are subject to wage tax, which can be taxed at a flat rate of 20% instead of the personal wage tax deduction criteria (ELStAM). But this is not a final taxation. The wages taxed in this way is recorded in the employee's income tax assessment and the wage tax withheld at 20% is offset. For this purpose, the additional pension fund has to issue an income tax certificate.

Contribution share for supplementary pension

The contribution component for the supplementary pension is wages, which is regularly used as a company pensiontax free is.

4 seasonal short-time work allowance

The seasonal short-time work allowance according to SGB III (this benefit corresponds to the earlier winter loss allowance or bad weather allowance) as a special form of short-time work allowance is tax-free; however, the payments are subject to the progression proviso when assessing income tax. If seasonal short-time work allowance has been paid, the employer may for the employee noneCarry out annual income tax adjustment. The so-called permanent annual adjustment is also not permitted.

Tax free are those too Separation Allowance (no progression reservation) and the employer contributions for winter construction subsidies.

5 Liability of the borrower

In the case of a commercial hiring out of workers to companies in the construction industry without a permit under the AÜG, the hirer is liable for the wage tax of the temporary workers.

social insurance

1 Special services in the construction industry

The construction industry has some special achievements. These include

  • Trips,
  • Winter construction subsidy benefits and

Social security payments can be triggered if they exceed the maximum tax limits for travel expenses.

Assessment of hardship allowances in terms of contribution law

With hardship allowances such. B. Dirt allowances, snow allowances, hazard allowances or even heat and cold allowances are paid wages.

1.1 Measures to secure year-round employment

With the aim of promoting year-round employment, special regulations apply in the construction industry.

  • An employment relationship of industrial workers in the construction industry may be in the Bad weather time (December 1 to March 31) cannot be canceled due to weather conditions.
  • According to the Federal Framework Collective Agreement for the Construction Industry (BRTV), the employer conducts an individual for commercial employees Compensation account. He can have 150 working hours pre-worked and 30 working hours post-worked over a period of 12 calendar months. If such flexible working hours have not been agreed, the employer can allow 30 hours to work in advance and credit the wages to a savings account. The 30 hours are used to compensate for the first hours lost due to bad weather during the bad weather period.
  • Employees in the construction industry are entitled to seasonal short-time working allowance in the event of absenteeism if this is due to economic or weather-related reasons or to an unavoidable event.
  • Construction workers are entitled to a winter allowance as a supplementary benefit. This is paid tax-free and free of social insurance as a winter allowance or additional winter allowance.
  • The funds for the additional services are financed on a pay-as-you-go basis. These include the winter allowance and reimbursement of the social security contributions to be borne by the employer. In the main construction trade, the surcharges are borne jointly by employers and employees, in the ancillary construction trade solely by the employers. The winter employment levy in the main construction trade is 2% of the gross wages of commercial employees that are subject to the levy. The contribution is paid proportionally by the employer in the amount of 1.2% and the employee in the amount of 0.8%. The share of the contribution to be borne by the employee is subject to tax and social security.

1.2 Assessment of vacation allowances under contribution law

In the case of holiday compensation and compensation claims (§§ 8-10 BRTV), the central associations of the social insurance institutions have taken the view that in all cases of the holiday compensation referred to in § 8 BRTV, without exception, wages under social insurance law are concerned. Holiday compensation is a one-time payment and as such is subject to contributions. This also applies to vacation compensation, which is only paid after 3 months of non-industry activity.

Note

The holiday compensation is paid out by SOKA-BAU

All vacation compensation payments for commercial employees are paid out through the social security funds in the construction industry (SOKA-BAU), specifically through the vacation and wage equalization fund of the construction industry (ULAK).

The employer, who pays the vacation compensation, has to calculate the contribution as well as the reports required in these cases.

1.2.1 Withholding contributions by the vacation and wage equalization fund

At the request of the employee, the ULAK pays the vacation compensation directly to the employee on account of performance. This has been agreed by the collective bargaining partners in the construction industry. In doing so, it must withhold the employee's share - disregarding the contribution assessment limits. If the deduction of contributions is too high, the employer has to compensate. The ULAK pays the employee contribution portion retained from the vacation compensation to the employer, who then forwards it with his portion to the collection point. If the ULAK is authorized to do so, it pays the employee contribution to the responsible collection point.

1.2.2 Tasks of the vacation and wage equalization fund in the event of insolvency

The social partners in the construction industry have agreed with the ULAK that the ULAK will only take over the contribution and notification procedure in cases in which the last construction employer has become insolvent. In detail, the following procedure has been agreed:

  • The ULAK takes the period of the allocation of the vacation compensation, if available, from the last contribution report of the last employer. If such reports are missing and the ULAK has not received the reports from the employer that are customary in the ULAK procedure, the employee must provide evidence of the required data.
  • So-called “days off” are only taken into account by the ULAK if it is aware of them. In individual cases, this can result in an excessively high contribution being retained and paid.
  • The remuneration report is made as a special report with reporting reason 54 under the employer's company number.
  • With the contribution statement, the ULAK reports the employee's and employer's share and indicates that the employer still has to pay the employer's share.

Note

Compensation according to § 8 No. 8 BRTV does not count towards wages

The compensation according to § 8 No. 8 BRTV is not remuneration, as the entitlement to it only arises when the vacation entitlement or vacation compensation entitlements have expired. It is an original claim against the vacation and wage equalization fund.

1.2.3 Supplementary pension contributions

Contributions to additional old-age and survivors' pensions are usually tax-free and accordingly also free of social security.

2 General contractor liability for subcontractors

2.1 Principle of direct liability

An entrepreneur in the building trade who hires another entrepreneur to carry out construction work is liable

  • for the fulfillment of the payment obligation of this company (subcontractor) as well as
  • for the payment obligation of a lender commissioned by this subcontractor.

The liability corresponds to that of an absolute guarantor.

The liability of the building contractor exists accordingly for the contributions to be paid by the subcontractor to foreign social security institutions. However, as long as the collection agency has not sent a reminder to the employer and the reminder period has not expired, the main contractor can refuse to pay the premium (so-called "subsidiary liability").

Liability includes the contributions and late payment surcharges that have to be paid as a result of the breach of duty, as well as the interest for deferred contributions (contribution claims).

2.2 Disclaimer of Liability

In accordance with Section 28e, Paragraph 3b of Book IV of the Social Code, the main contractor is not liable if he can prove that, through no fault of his own, he could assume that the subcontractor or a lender commissioned by him would meet his payment obligation (exclusion of liability). A fault on the part of the entrepreneur is excluded insofar as and as long as he proves the specialist knowledge, reliability and efficiency of the subcontractor or the lender commissioned by him through a prequalification.

This includes B. an examination of the main contractor to determine whether the wage costs including the social security contributions have been correctly factored into the offer made by the subcontractor. Decisive for the question of the exclusion of liability can also be whether the main contractor is from the subcontractor

  • a certificate of exemption from the tax authorities stating that he has fulfilled his tax liability under the law to curb illegal employment in the construction industry or
  • Certificates from the collection agencies about the fulfillment of his payment obligations with regard to the total social security contribution

has requested.

Request clearance certificates

Instead of pre-qualification, the entrepreneur can also provide evidence by submitting a clearance certificate from the responsible collection point for the subcontractor. The clearance certificate contains information on the proper payment of social security contributions and the number of registered employees. This means that the preconditions for the exclusion of liability are already in place. The clearance certificates are valid for 3 calendar months after they have been issued. If they are not renewed, their validity expires for wages that were achieved for times after the expiry of the period of validity. The number of employees who are insured at the issuing collection point must be noted in the clearance certificates. The total number of persons named in the certificates must be sufficient to be able to carry out the work.

Danger

The main contractor bears the burden of proof of the non-existence of liability

The main contractor in the construction industry bears the burden of proof of the non-existence of liability. The collection agencies therefore do not have to determine ex officio whether the disclaimer is present. Rather, the main contractor has to provide evidence of this. Due to the agreed administrative simplification, however, the question of the burden of proof should regularly only be of subordinate importance.

2.3 Subcontractor's duty to provide information

The subcontractor who performs construction work on behalf of another main contractor is obliged to inform the collection agency of the name and address of this contractor upon request. Something else applies if this right to information cannot be enforced on the part of the collection agency. Then an entrepreneur who receives an overall contract for the provision of construction work for a building must, upon request, give the collection point the names and addresses of all entrepreneurs commissioned by him to carry out the construction work.

Danger

Fine for refusal to provide information

Refusing to provide information is an administrative offense. It can be punished with a fine of up to EUR 50,000.

2.4 Area of ​​application of direct liability

The direct liability in the construction industry applies from an estimated total value of all construction work commissioned for a building of EUR 275,000. For the estimation of the total value, § 3 VgV applies. The individual order volume is therefore not decisive; Rather, what matters is the sum of all construction work by the main contractor and all subcontractors for a structure.

2.5 Extension of direct liability to other subcontractors

The main contractor's liability also extends to the next company commissioned by the subcontractor.

The prerequisite for this further liability is, however, that the commissioning of the immediate subcontractor is to be regarded as a legal transaction with a reasonable assessment of the overall circumstances, the aim of which is, above all, the dissolution of the fundamentally existing direct liability. The way people see things in the construction sector is decisive for the appraisal.

Circumvention

A legal transaction that is to be regarded as such a circumvention is generally accepted if

  • the immediate subcontractor does not perform its own construction work, planning or commercial work, or
  • if the immediate subcontractor does not employ technical, planning or commercial staff to a significant extent, or
  • if the direct subcontractor is dependent on the main contractor under company law.

In addition, in those cases in which the direct subcontractor has its registered office outside the European Economic Area, the circumstances of the individual case must be examined in particular.

Note

Scope of accident insurance

The previously mentioned regulations on general contractor liability in the construction industry also extend to accident insurance. This applies in particular to the contribution liability in the case of temporary employment and the execution of a service or work contract.

2.6 Keeping wage documents

2.6.1 Entrepreneurs in the construction industry

When executing a service or work contract, the entrepreneur has to design the remuneration documents and the contribution invoice in such a way that an assignment

  • the employee,
  • wages and
  • the total social security contribution to the respective service or work contract

is possible.

The aim of this regulation is the concrete enforcement of the now existing direct liability and the necessary determination of the scope of liability.

Danger

Fine if the wage documents are not kept correctly

If the wage documents are not kept in accordance with the regulations outlined, this constitutes an administrative offense.It can be punished with a fine of up to 5,000 EUR.

2.6.2 Subcontractors

In principle, a subcontractor in the construction industry can only fulfill its special obligation to keep wage documents by marking them in these wage documents. However, there are no concerns on the part of the social insurance company if the subcontractor fulfills his recording obligation by keeping the certificate according to Section 19 (1) AEntG separately for the various general contractors. An allocation to the individual wage documents must be possible through a common characteristic (e.g. personnel number). For employees

  • to whom the record-keeping obligation according to § 19 para. 1 AEntG does not apply (employees) or
  • who receive a fixed monthly wage and
  • who work in direct connection with the trade,

the relationships are used that result from the evaluation of the certificates in accordance with Section 19 (1) AEntG. The certificates are then based on the start, end and duration of the employee's daily working hours (without breaks).

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