If a commercial worker’s employment on German construction sites has definitely ended and if he is not unemployed afterwards, he can apply for payment in lieu of leave which SOKA-BAU will effect within three months after his employment has ended. In such cases SOKA-BAU assumes that the commercial worker will not return to Germany and that the accumulated leave does not have to be accrued for further employment in Germany.
A worker was posted by his employer to construction sites in Germany until 30 June. Thereafter he returned to his home country for good. The worker is entitled to receive a payment in lieu of leave from SOKA-BAU starting 1 October.
In the event that the above-mentioned commercial worker takes on firm employment or does a traineeship, he will receive a payment in lieu of leave immediately after his job as a commercial worker has ended.
Pay in lieu of leave is subject to an application by the commercial worker.
Payment in lieu of leave is subject to an application by the commercial worker concerned. If the worker has not applied for such a payment yet and has started working on construction sites in Germany again, he will retain his total leave entitlements (leave and pay).
If an employer has not paid his leave fund contributions in full, SOKA-BAU will reduce any payment in lieu of leave accordingly.
If payments in lieu of leave are subject to social security contributions, SOKA-BAU will withhold a lump sum to be passed to the employer. If the amount of social security payable is higher than the lump sum withheld, the commercial worker has to reimburse the employer for the overpaid amount. In the event that the amount of social security payable is lower than the amount withheld, the employer has to pay the difference retroactively to the commercial worker. Moreover, SOKA-BAU is obliged by law to withhold a lump sum to cover 20% income tax and 1% solidarity tax, i.e. 21% in total, from any payment in lieu of leave and pay the respective amount to the tax office in Wiesbaden. This also applies if commercial workers stay in Germany for less than 183 days.