Where the obligation comes from — the VTV and the majority-of-working-time rule
The duty to pay contributions to the social funds of the German construction industry follows from a collective agreement, the VTV (Tarifvertrag über das Sozialkassenverfahren im Baugewerbe). Because the agreement has been declared generally binding (AVE) and is additionally secured by statute (SokaSiG), it binds employers who belong to no association and never signed anything — including foreign companies carrying out works in Germany.
A business falls under the VTV as a whole if, in a given calendar year, its blue-collar workers spent more than half of their total working time on construction activities within the meaning of the agreement. Turnover, profit and what the trade register says are all irrelevant — what counts is what the workers actually did. A majority of working time, however slim, is enough, and contributions are then owed for all blue-collar workers.
How the system itself works — what the fund finances, which contributions a posting company pays and what can be recovered — is covered in our separate article on SOKA-BAU, contribution duties and refunds. Here we deal with the question that comes first and is fought over most: when does a company fall under the system at all.
The case before the BAG: a company fitting windows, doors, shutters and awnings
The defendant employed four blue-collar workers. They installed prefabricated windows, doors, roller shutters and awnings bought from manufacturers, and repaired and serviced the installed elements. On top of that came a salesman who visited customers, advised them and prepared offers — mostly without an order at the end — and a worker who ran the warehouse.
SOKA-Bau demanded contributions of 30,800 euros in total for January to November 2016. The company argued that non-construction activities predominated: advice that never led to an order, work typical of interior outfitting, and inspections of shutters and awnings without any repair. The Wiesbaden labour court and the Hesse regional labour court agreed and dismissed the fund’s claim.
The Federal Labour Court, in its judgment of 18 October 2023 (10 AZR 71/23), saw it the other way round: it set aside the appellate decision, amended the first-instance judgment and ordered the company to pay the full amount. The decisive step was counting precisely the advice, the canvassing and the warehouse towards construction time.
Installing prefabricated elements is construction work
The VTV catalogue expressly lists drywall and assembly works (Trocken- und Montagebauarbeiten). Under settled case law this covers, among other things, the installation of industrially prefabricated elements that are not substantially altered before installation and that relate to a building. Fitting windows and doors bought from a manufacturer meets that definition in full — a company does not need to lay bricks or erect buildings to perform construction work within the meaning of the agreement.
The same goes for repairs and servicing. Restoring windows, doors, shutters and awnings to working order keeps the building in proper condition, and mounting an awning or a shutter alters the building according to the owner’s wishes — that too is construction work, together with the function checks that accompany a repair. Whether stand-alone inspections without a subsequent repair would also count could be left open by the BAG, because the construction share of working time was already clear without them.
Advice, canvassing and warehouse — ancillary activities count as construction
Besides the core construction work, so-called ancillary activities (Zusammenhangstätigkeiten) are added to construction time: preparatory, auxiliary, follow-up and support work that serves the company’s own construction activities, is necessary for their proper execution and is customarily handled in-house by construction businesses.
The BAG clarified two points. First, typical sales activities — winning customers and advising them — are ancillary activities if they are directed at the performance of the company’s own construction work. Whether the talks ended in an order is irrelevant. A salesman who drives from customer to customer all week and sells nothing is still “building” within the meaning of the agreement. Second, ancillary activities do not have to take up less time than the core construction work — it is enough that the company performs its own construction work at all, which those activities serve. Warehouse work was treated the same way: the warehouse stocks the materials for the installations, so running it shares their classification.
In figures: without the advice and the warehouse, construction work accounted for roughly 45 percent of the workforce’s time — not enough. Once the salesman’s and the warehouse keeper’s hours were added, the share rose to 70.6 percent and decided the case.
The boundary runs where a company’s own construction work ends. A business that performs only ancillary activities and carries out no construction work of its own does not fall under the VTV — so the BAG already in its judgment of 8 December 2021 (10 AZR 362/19). Pure sales of windows for self-installation are not construction work either. You must, however, prove the real share of such sales in working time — in the case at hand it was a mere 1 percent and changed nothing.
How to assess your own company
Take a full calendar year and the working time of your blue-collar workers. Assign a purpose to every activity: installation, repairs and servicing are construction work, and measurements, advice, offers, transport of materials and warehouse work serving your own installations go into the same pool. Record separately the activities unrelated to your own works — pure trading, manufacturing, services for other businesses. If construction work plus ancillary activities exceeds half of the total working time, the business falls under the VTV as a whole. Keep the records as you go — in a dispute it is the employer who must show in detail what his people actually did.
The dispute with SOKA-Bau: who must show what, and where the figures come from
Procedurally the fund has it easy. As an outsider it does not know the daily life of the business, so a coherent assertion that construction work predominated is enough. The burden of a specific response then shifts to the employer (sec. 138(2) of the Code of Civil Procedure): he must set out in detail who did what and when. Sweeping denials along the lines of “trade predominated here” will not do, and new facts raised for the first time at the revision stage are disregarded.
The amounts follow their own logic. If the fund does not know the actual wages, it may claim contributions calculated from average construction-industry wages based on Federal Statistical Office data — the case law accepts claims built on such averages. Amounts computed that way can exceed the contributions due on the real payroll, so presenting your own complete wage data is in the company’s interest.
Time works in the fund’s favour longer than many businesses assume. Contribution claims lapse only three years from the end of the year in which they fell due, and an application for a judicial payment order (Mahnbescheid) stops that clock. In the case at hand, an application filed in December 2019 preserved the contributions for the whole of 2016. Contribution disputes are, as a rule, heard by the labour court in Wiesbaden, where the fund has its seat.
What this means for your company
- Not the register entry, but the working time. “Trade and services” in your registration papers settles nothing — courts look at what the blue-collar workers actually did over the year.
- Installing someone else’s products is construction. Windows, doors, shutters, awnings or gates bought from a manufacturer — fitting and repairing them at the customer’s counts as construction work even if you manufacture nothing yourself.
- The salesman and the warehouse keeper “build” too. Time spent on advice, offers and the warehouse is added to construction time if it serves your own installations — even without a single order to show for it.
- Working-time records are your shield. Without records kept as you go, the structure of working time cannot be reconstructed in a dispute, and generalities lose against the fund’s calculations.
- React to the first letter. The three-year lapse period is stopped by the fund’s Mahnbescheid, not by your silence. The earlier a lawyer analyses the case, the more can still be demonstrated and calculated on your terms.
Frequently asked questions
My company only installs windows bought from a manufacturer. Is that really construction work?
Yes. Installing prefabricated, essentially unaltered elements that relate to a building is assembly work listed in the VTV catalogue. You do not need to erect buildings or employ bricklayers to owe contributions.
Most of our time goes on measurements, advice and offers, installation is the minority. Does that protect us?
Usually not. If those activities serve your own installations, they are added to construction time — and there is no requirement that the installation itself predominates. Protection begins only where activities unrelated to your own works prevail.
We also sell windows for self-installation. Does that help?
Pure sales without your own installation are not construction work, and a business with no construction work of its own does not fall under the VTV at all. You must, however, prove the real share of such sales in working time — before the BAG it was 1 percent and changed nothing.
How many years back can SOKA-Bau claim contributions?
Claims lapse three years from the end of the year in which the contribution fell due. The fund’s application for a payment order (Mahnbescheid) stops the clock — the mere passage of the dispute does not.
Where does SOKA-Bau take its figures from?
If it does not know the actual wages, it may calculate contributions from average wages in the German construction industry. The effective defence against inflated figures is to present your own complete payroll data.
This overview draws on the judgments of the Federal Labour Court of 18 October 2023 (10 AZR 71/23) and of 8 December 2021 (10 AZR 362/19) as well as sec. 1 VTV, sec. 7 SokaSiG, sec. 5(4) TVG and sec. 138(2) ZPO. This article is for information purposes and does not replace legal advice in an individual case.