OLG Brandenburg - 4 U 111/21
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| OLG Brandenburg - 4 U 111/21 | |
|---|---|
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| Court: | OLG Brandenburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(f) GDPR |
| Decided: | 23.02.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 4 U 111/21 |
| European Case Law Identifier: | ECLI:DE:OLGBB:2022:0223.4U111.21.00 |
| Appeal from: | Landgericht Potsdam 6 O 21/20 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Landesrecht Brandenburg (in German) |
| Initial Contributor: | Sara Horvat |
A general contractor has a legitimate interest according to Art. 6(1)(f) GDPR to require its subcontractor to provide evidence of compliance with the minimum wage of its employees.
English Summary
Facts
The plaintiff (subcontractor) was a company providing cleaning staff to the defendant (general contractor). In this dispute, the plaintiff claimed the payment of an amount of € 9,837.71 from the defendant as remuneration for cleaning work of their employees of the defendant´s properties. The defendant invoked a right of retention with regard to a claim for the provision of evidence of the payment of the minimum wage to the plaintiff's employees working in the defendant's properties.
The parites also signed a contract, which stated that the plaintiff is obliged to pay the minimum Wage according to the Law of the Land Berlin and Brandenburg, which was set by the Law with the Minimum Wage Act (Mindestlohngesetz). According to this contract, the defendant had the right to demand up-to-date evidence of this at any time (e.g. submission of timesheets, payrolls, lists of employees). In case of non-submission of requested evidence, the defendant was entitled to withhold payments due.
The plaintiff stated that they had fulfilled their obligation to provide evidence by submitting declarations from their tax advisor, according to which the minimum wage was paid. They also stated that the submission of their employees' pay slips, in particular, was precluded by the General Data Protection Regulation (GDPR) – disclosure of such data, would be a violation of the GDPR.
Holding
The Higher Regional Court Brandenburg held in their decision, that the declarations of the tax advisor, where not a evidence which could proof, that the plaintiff has actually paid the minimum wage to the employees working on the premises of the defendant.
The plaintiff was not prevented by the provisions of the GDPR from providing the defendant with evidence of the payment of the minimum wage to the employees. On the contrary, this form of processing of personal data of the plaintiff's employees was, insofar as the limits of necessity and data economy are observed, permitted pursuant to Art. 6(1)(f) GDPR.
The Minimum Wage Act (Mindestlohngesetz) also includes the provision, that in business relationships as that between the palintiff and the defendant, where the party which ordered a service by the other, contracts which allow the party which ordered the service, to have an insight into regular payments of minimum wages, are common and advised.
Therefore the Court held that the requirements of Art. (1)(f) GDPR are met for proof of compliance with the obligation to pay the minimum wage by the plaintiff to the defendant with regard to the personal data of the plaintiff´s employees required to provide proof.
The rights and interests of the plaintiff's employees were taken into account within the framework of the balancing of interests to be carried out in this respect by ensuring that the disclosure of their personal data required to fulfil the control interest of the defendant - which in its preventive effect also protected the employees in their interest in the payment of the minimum wage - was carried out as sparingly as possible, which - as the Regional Court rightly pointed out - was ensured by anonymising, pseudonymising or blackening.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
tenor
1. Upon the plaintiff's appeal, the judgment of the 6th civil chamber of the Potsdam Regional Court of April 20, 2021 - Az.: 6 O 21/20 - is partially amended and the main tenor is reworded as follows:
The defendant is sentenced to pay the plaintiff €9,837.71 step by step upon presentation of the following documents:
a) Name list of the plaintiff's employees who carried out the cleaning work listed in the plaintiff's invoices A..., B..., C..., D..., E... and F... in August and September 2019,
b) for each of the plaintiff’s employees listed under a), timesheets showing how many hours the respective employee worked to carry out the cleaning services billed in the invoices listed under a),
c) Wage slips for the plaintiff's employees listed under a) for the months of August and September, from which, however, only the name of the employee and the information on the gross wage billed, the wage type on which this is based (differentiating between current wages and any Additional or special remuneration), the number of hours billed and the hourly wage (possibly differentiated for the respective wage type) must be visible, while the other details of the respective pay slip are to be made unrecognizable, unless the respective employee has consented to the transfer of the corresponding information personal data by the plaintiff to the defendant.
2. Otherwise, the lawsuit is dismissed and the further appeal is dismissed.
3. The plaintiff has to bear 70% and the defendant 30% of the costs of the legal dispute in the first instance. The plaintiff has to bear the costs of the appeal proceedings.
4. The judgment is provisionally enforceable.
reasons
I
The plaintiff is suing the defendant for payment of an amount of €9,837.71 as remuneration for cleaning work in August and September 2019. The defendant invokes a right of retention with regard to a claim for proof of the payment of the minimum wage to the plaintiff's employees working in the defendant's premises.
The defendant concluded a subcontractor agreement with the legal predecessor of the plaintiff on November 21/December 5, 2018, according to which the client, as general contractor, assigned orders for maintenance cleaning, glass and frame cleaning as well as special cleaning in various objects to the plaintiff as a subcontractor. In § 4 of this contract, the parties made the following provisions:
“The subcontractor undertakes to observe the Posting of Workers Act (AEntG) and to pay the mandatory minimum wage in the building cleaning trade.
The general contractor is entitled to request up-to-date proof of this at any time (e.g. submission of timesheets, pay slips, lists of employees). If the required evidence is not submitted, the general contractor is entitled to withhold payments due.
The subcontractor undertakes to release the general contractor from his liability for the minimum wage.
If the subcontractor violates the obligation to pay the minimum wage, the general contractor is entitled to terminate the contract without notice (withdrawal of the contract). In addition, he has a right of retention with regard to payments due from the subcontractor."
In addition, Annex 1 was attached to the subcontractor contract, according to which the plaintiff signed a declaration that the remuneration of her employees would not be below the applicable wage rates/minimum wages of the states of Berlin and Brandenburg and that the general contractor reserved the right to carry out random checks based on the plaintiff to check compliance with the payslip lists to be submitted.
The entitlement of the remuneration claims settled with the disputed invoices is undisputed. The defendant informed the plaintiff (at the latest) in a letter dated November 11, 2019 that the payments would only be released after proof of the payment of the minimum wage of the State of Berlin had been provided and the reason given was that she had payslips showing that the minimum wage was not will be complied with.
The plaintiff took the view that she had satisfied her obligation to provide evidence with the declarations made by her tax advisor on November 26, 2019, according to which the minimum wage of €10.56 was paid. The General Data Protection Regulation (GDPR) precludes the submission of payslips from your employees in particular; if they give out such data, they are liable to prosecution.
With the judgment under appeal, the district court sentenced the defendant to a payment of €9,837.71, but only step by step “against suitable evidence that enables the defendant to independently ensure compliance with the minimum wage for the employees of the plaintiff working in their properties test". As justification, it stated that the defendant was entitled to a right of retention under Section 4 (2) of the subcontractor contract. The confirmation of the tax consultant is not sufficient for the contractually agreed evidence. The contractual agreement also does not meet any fundamental concerns about effectiveness. The general contractor's legitimate interest in preventing liability under Section 13 MiLoG can, in principle, be contractually anchored in its own right to audit. It is also not apparent that such a right of examination and control would conflict with fundamental data protection concerns. Both the BDSG and the GDPR have numerous justifications that allow the processing of personal data. A blanket statement on the question of which evidence the plaintiff can transmit to the defendant in individual cases without hesitation in terms of data protection cannot be made.
The plaintiff is appealing against this judgment, with which she is pursuing her goal of an unconditional conviction of the defendant, including interest on arrears and pre-trial legal fees. She asserts that the regional court - which the defendant denies - did not point out an intended step-by-step conviction. The step-by-step conviction was not sufficiently specific; it does not meet the requirements of § 253 Para. 2 No. 2 ZPO. Moreover, the district court is wrong in assuming that the defendant's right to test and control does not conflict with data protection concerns. A submission of the personal data is not permitted without the consent of the employee - which is not available. In addition, an order processing contract within the meaning of Art. 28 Para. 3 DSGVO was not concluded between the parties; the subcontractor contract is not sufficient in this respect.
The plaintiff requests
to amend the judgment of the Potsdam Regional Court of April 20, 2021 on reference number 6 O 21/20 and
1. to order the defendant to pay the plaintiff an amount of €9,837.71 plus interest of 9 percentage points above the respective base interest rate since November 22, 2019,
2. to order the defendant to pay the plaintiff an ancillary claim of €887.03 plus interest of 5 percentage points above the respective base interest rate since November 22, 2019.
The defendant requests
to dismiss the appeal.
She defends the judgment of the district court by repeating and deepening her first instance factual presentation. She takes the view that, in order to verify the payment of the agreed wages, a list of the plaintiff's employees by name, stating the respective personnel number, proof of work for the individual employees and the entry date of the respective employee is required. In addition, the payslip should be submitted, stating the name and personnel number of the employee, the number of hours, the hourly wage and the total wage. The hourly wage must contain the additional information minimum wage, collective wage or minimum wage awarded. The basic holiday wage should be reported. Furthermore, the income tax and the social security benefits and the payment amount are to be shown.
II.
A. The appeal is admissible; in particular, it has been filed and justified in accordance with §§ 517 et seq. ZPO.
There is also no lack of complaints by the plaintiff required under § 511 ZPO.
With her appeal, she is primarily opposed to the fact that the district court did not necessarily award her the claim, but only step by step against suitable proof of compliance with the minimum wage. With regard to this main concern of the plaintiff, only the plaintiff's interest in the removal or modification of the step-by-step service is decisive for the complaint, which is to be measured from an economic point of view and thus according to the effort required to fulfill the consideration. If one takes into account that the plaintiff has to create and keep available the essential documents required for proof of compliance with the minimum wage in accordance with § 17 MiLoG, her effort for possible redactions and the transmission to the plaintiff requires only a small amount, in any case costs below 600 €.
However, with her appeal, the plaintiff also claims that the district court wrongly denied her her claim for interest and her claim for reimbursement of pre-trial legal fees in the amount of €887.03. Since these are secondary claims from a main claim that is not in dispute as such, these must be taken into account when assessing the complaint in accordance with Section 4 (1) ZPO (cf. only: BGH, decision of 08.05.2012 - XI ZR 286/ 11 – paragraph 7, juris).
B. On the merits, however, the appeal is essentially unsuccessful. The judgment under appeal is subject to amendment only insofar as the right of retention, which the district court has fundamentally rightly granted to the defendant in relation to the undisputed claim for action, is to be specified – as can be seen from the operative part.
With her appeal, the plaintiff rightly asserts that the same requirements apply to the specificity of the consideration in the context of a step-by-step conviction as to the specificity of the service in the context of a performance action. A judgment dependent on a consideration to be provided concurrently must be suitable as a basis for enforcement pursuant to Section 756 ZPO or Section 765 ZPO, enabling the enforcement body to check whether the consideration has been provided in the manner and to the extent owed. The step-by-step restriction must therefore be determined in such a way that it could itself be made the subject of a performance action (Federal Court of Justice, decision of 16.06.2016 - I ZB 58/15 - para. 20; also already: Federal Court of Justice, judgment of September 18, 1992 – V ZR 86/91 – para. 13). The tenor of the regional court "step by step against suitable evidence that enables the defendant to independently check compliance with the minimum wage among the plaintiff's employees working in their properties" does not meet these requirements. Rather, it is necessary - and contrary to the opinion of the regional court also possible - to determine the content of the counterclaim to which the defendant is entitled in accordance with the requirements of the enforceability of a step-by-step conviction.
In detail:
1. As the basis for the right of retention as well as for the corresponding counterclaim of the defendant - as the district court correctly recognized - only § 4 paragraph 2 sentence 2 in conjunction with § 4 paragraph 2 sentence 1 of the subcontractor contract of 21.11./05.12. 2018 under consideration.
a) The district court also correctly stated that the plaintiff has not already fulfilled its obligation to prove payment of the minimum wage by sending an email of 26.11.2019 (page 25 of the file) and letter from the same day (page 26 of the file) provided statements from her tax advisor that she pays the minimum wage. These blanket declarations, “The minimum wage of €10.56 has been taken into account for all employees who were billed on an hourly basis. In addition, part-time employees were also hired: Here, too, the minimum wage of €10.56 was always used for calculation" or "I as a tax consultant ... can confirm that after reviewing the documents of the year, our client ... paid the minimum wage in 2019 paid her employees EUR 10.56” does not satisfy the contractual agreement, in which “submission of time sheets, wage slips, employee lists” are mentioned as suitable evidence.
The regulation made in § 4 paragraph 2 sentence 1 of the subcontractor contract is not to be interpreted in such a way that the defendant would have to be content with corresponding tax consultant declarations because further evidence, in particular the submission of the time sheets, pay slips and employee lists mentioned in the agreement, against violate data protection regulations and the plaintiff is liable to prosecution by submitting such documents. This view of the plaintiff cannot be followed.
b) The plaintiff is not prevented by the provisions of the General Data Protection Regulation (hereinafter GDPR), which has been in force since 2018, from providing the defendant with evidence of the payment of the minimum wage to the employees she employed to fulfill the defendant's orders. Rather, this form of processing personal data of the plaintiff's employees is permitted in accordance with Article 6 (1) (f) GDPR, provided that the limits of necessity and data economy are observed.
aa) The Senate does not ignore the fact that agreements between a general contractor - like the defendant - and a subcontractor - like the plaintiff - on submission obligations and inspection rights to check compliance with the Minimum Wage Act (hereinafter MiLoG) on the one hand with a view to the liability of the general contractor from § 13 MiLoG in conjunction with § 14 AEntG are common and are even recommended in the literature on the MiLoG (cf. only: Grimm in Tschöpe, Arbeitsrecht Handbuch, 12th ed. 2021, E. Posting of workers and minimum wage, marginal number 128; Bissels/Falter, Statutory minimum wage - pitfalls in liability for subcontractors under the MiLoG) - DB 2015, 65, 67; Rittweger/Zieglmeier, Minimum wage checklist, NZA 2015, 976,977), on the other hand as problematic in terms of data protection law (Tschöpe loc , DB 2015, 1285, 1286).
In terms of data protection, the legal situation for the August/September 2019 period relevant to the decision on the legal dispute is as follows:
Despite the entry into force of the GDPR with effect from May 25, 2018, the question of how an entrepreneur deals with personal data of his employees must first be assessed according to Section 26 BDSG old version, since the Federal Republic of Germany with this provision of the Art. 88 GDPR granted exercised the power to adopt more specific rules to ensure the protection of rights and freedoms with regard to the processing of employees' personal data in the context of employment. Processing within the meaning of the BDSG also includes “disclosure through transmission, dissemination or another form of provision” based on the definition of the term in Art. 4 No. 2 GDPR. According to Section 26 (1) BDSG old version, the processing of personal data for the purposes of the employment relationship is permitted if this is necessary for the decision to establish an employment relationship or, after the employment relationship has been established, for its implementation or termination or for the exercise of certain rights and obligations of the representation of employees’ interests is required. The verification of compliance with the obligation to pay the minimum wage by a general contractor as the client of the employees of a company, even if it is in the interests of the employees, is not part of the processing of personal data permitted under this. The processing of personal data of employees is also permitted on the basis of consent (Section 26 (2) BDSG old version). Such consents from the employees of the plaintiff are - undisputed - (at least not yet) not available. There is just as little evidence of the existence of a collective agreement (Section 26 (4) BDSG old version). Finally, it is not about the processing of personal data within the meaning of Art. 9 GDPR, for which Section 26 (3) BDSG has a separate regulation.
The fact that the regulations in § 26 BDSG do not allow the transmission of time sheets and wage slips - there is no question that these contain personal data of the plaintiff's employees - does not necessarily mean that the defendants are dealing with flat-rate insurance policies of the plaintiff or whose tax adviser has to be satisfied with regard to compliance with the obligation to pay the minimum wage. Rather, it is permissible - just as was the case in the relationship between Section 32 BDSG old version and Section 28 (1) sentence 1 no .) - a recourse to Art. 6 DSGVO (Plath DSGVO/BDSG, 3rd edition 2018 para. 13 mwN). According to Article 6 Paragraph 1 lit f. GDPR, however, processing is lawful if it is necessary to safeguard the legitimate interests of the person responsible or a third party, unless the interests or fundamental rights and freedoms of the data subject, which require the protection of personal data, predominate.
bb) The requirements of Article 6 (1) (f) GDPR are met for proof of compliance with the obligation to pay the minimum wage by a subcontractor to the general contractor with regard to the personal data of the subcontractor's employees required for verification.
As the district court rightly stated, the general contractor has a legitimate interest in demanding proof of compliance with the minimum wage payment from the subcontractor. This results from the fact that the general contractor has to answer for the obligation of the subcontractor towards his employees for the payment of the minimum wage as a guarantor according to § 13 MiLoG in conjunction with § 14 AEntG.
The general contractor's control of the subcontractor, which is made possible by the request for proof of the payment of the minimum wage, is also necessary to protect the legitimate interests of the general contractor. This is not opposed (but according to Frank/Krause, data protection aspects of the minimum wage law, DB 2015, 1285, 1286) that the general contractor also has other options for minimizing his liability risk, such as the - here by the defendant according to § 4 para 3 and 4 of the subcontractor contract - options to sign off through contractual agreement in relation to the subcontractor or to be granted a right of termination in the event of a breach of the MiLoG. In addition, contractual penalty regulations or, in order to also exclude the risk of insolvency of the subcontractor, the possibility of requesting a guarantee or a security retention for a claim under the MiLoG are proposed (cf. just for example: Bissels/Falter, Statutory minimum wage - pitfalls in the liability for subcontractors according to the MiLoG - DB 2015, 65, 67/68). With all these alternative measures, however, the general contractor must either accept that the subcontractor demands higher remuneration from the outset, for example to cover guarantee costs or loss of liquidity through security deposits, or he can only reactively terminate the contractual relationship in the event of violations and demand reimbursement of his expenses/damages . On the other hand, an agreement according to which the subcontractor undertakes to submit documents to the general contractor to prove the minimum wage figure has a preventive effect simply because of the associated control function, i.e. it avoids - within the limits of practicability required in business transactions between companies - that it can be claimed at all of the general contractor can come through the employees of the subcontractor. However, this interest in avoiding liability on the part of the general contractor is also to be regarded as justified precisely because it coincides with the purposes of the Minimum Wage Act.
Finally, there are no interests or fundamental rights and freedoms of the employees of the subcontractor that require the protection of personal data and outweigh the legitimate interests of the general contractor against a transfer of personal data of the employees of the subcontractor required to monitor compliance with the obligation to pay the minimum wage to the general contractor . The rights and interests of the employees of the subcontractor can be taken into account in the context of the balancing of interests to be carried out in this respect by the fact that the control interest of the general contractor required to fulfill the control interest of the general contractor - which in its preventive effect also protects the employees of the subcontractor in their interest in the payment of the minimum wage Disclosure of your personal data takes place as data-sparingly as possible, which - as the district court rightly stated - must be ensured by anonymisation, pseudonymisation or blacking out if necessary.
Interpreted in this way, the regulation made in Section 4 (2) sentences 1 and 2 of the subcontractor contract does not raise any concerns in terms of data protection and, for the same reason, is not objectionable in terms of general terms and conditions.
c) In concrete terms, this means that the defendant's counterclaim, which justifies the right of retention from Section 4 (2) sentence 2 of the subcontractor contract - to the submission of proof of payment of the minimum wage is of the type in the form specified in Section 4 (2) sentence 1 of the contract as examples of time sheets, pay slips and lists of employees exists, but with the following restrictions in terms of content:
aa) The defendant can only claim the submission of employee lists and timesheets for those employees of the plaintiff and those times who carried out the cleaning work in August and September 2019 that is the subject of the disputed invoices. This limitation results from the fact that in the present legal dispute there is only a right of retention in relation to the payment claims for the months of August and September 2019, which are the sole subject matter of the dispute between the parties, and - as the legal representatives of the parties stated unanimously in the Senate meeting on December 8th, 2021 - there is no further cooperation between the parties. Since the defendant's possible liability under Section 3 MiLoG in conjunction with Section 14 AEntG, which justifies its legitimate control interest, only exists insofar as it has commissioned the plaintiff to provide work or services, it can only request employee lists and timesheets from the respective employees to the extent , in which they were used to fulfill the subcontractor contract concluded with the plaintiff.
The additional indication of the personnel numbers of the plaintiff's employees is not required - at least in the present case - because according to the list of employees used in August and September 2019 to fulfill the disputed obligations of the plaintiff, according to the list of employees used in August and September 2019 to fulfill the disputed obligations of the plaintiff, there is no identity , for whose identification with regard to the payslips to be submitted it might be necessary to state the personnel number.
bb) From the wage slips to be submitted for the employees employed to fulfill the disputed obligations of the plaintiff for the months of August and September 2019, the name of the employee, the gross wage billed, the wage type on which this is based (differentiating between current wages and any additional or special allowances), the number of hours billed and the hourly wage (possibly differentiated for the respective wage type) must be visible, while the other details of the respective wage slip must be made unrecognizable; The proof to be submitted to the defendant may only contain further information if the respective employee has consented to the disclosure of the corresponding personal data by the plaintiff to the defendant.
Since the minimum wage to be paid according to the MiLoG is a gross wage per hour, the above information on the gross wage on which the pay slip for the respective employee is based and its composition are absolutely necessary in order to comply with the employer's corresponding obligation based on the pay slip to check. This also applies in particular to the identification of any additional or special payments such as remuneration for overtime or remuneration for Sundays and public holidays, as these are not taken into account when determining the minimum wage payment. In this respect, no rights or interests of the employees are apparent that would conflict with the control interests of the general contractor.
Further information, which - typically and also in the template submitted by the plaintiff in a letter dated December 22, 2021 and related to her (page 142 of the file) - is contained in a payslip, on the other hand, is subject to the permission of Art. 6 para. 1 lit. f GDPR is not covered, because otherwise the legitimate interest of the employees of the plaintiff in disclosing their personal data as data-sparingly as possible would not be sufficiently taken into account. In particular, it is not clear why - as the defendant claims - information on wage tax and social security contributions as well as the net wage to be paid should be required for the "rough review of the legality of the payment of the minimum wage", while on the other hand, for example, information on wage tax or personal data would also be passed on from social security contributions at the same time, which would enable knowledge to be gained about marital status, income tax class, etc., which have nothing to do with the defendant's legitimate interest in disclosure in relation to the payment of the minimum wage.
Contrary to the view of the defendant, with regard to the hourly wage, there is no need for any additional information on "minimum wage, collective bargaining wage or minimum wage awarded". It can remain open whether the claim of the defendant from § 4 para. 2 sentence 1 of the subcontractor contract and the corresponding right of retention of the defendant in interpretation of the contract including the declaration made by the plaintiff in Annex 1 to this contract also applies to the payment of the wages mentioned there and the award minimum wage also extends to these wages. Because whether the plaintiff has fulfilled these obligations can also be seen from the - as explained - required information on the number of hours included in the billing and the gross hourly wage applied in this respect.
2. If the defendant can subsequently assert a right of retention against the claimant's claim for remuneration, the claimant is not entitled to default interest under §§ 280 Para. 2, 288 Para §§ 280 Para. 2, 286 BGB.
III.
1. The ancillary decisions are based on §§ 92 Paragraph 2, 97 Paragraph 1, 708 No. 10, 711, 713 ZPO.
The allocation of costs for the first instance in the contested judgment is not objectionable with the given reasoning. The plaintiff has to bear the costs of the appeal proceedings in full, since the amendment to the judgment under appeal merely consists in specifying the step-by-step conviction.
2. The appeal is not permitted because the matter is not of fundamental importance, nor does the development of the law or the safeguarding of uniform case law require a decision by the appeals court (§ 543 Paragraph 2 No. 1 and No. 2 ZPO).
3. The amount in dispute for the appeal procedure is set at up to €4,000.
