In 2016, 39% of people in employment in Germany were already working part-time, and the trend is rising. With its ruling of 19.12.2018 (10 AZR 231/18), the Federal Labor Court (BAG) has now taken a step towards equal rights for part-time employees compared to full-time employees.
How have decisions been made so far?
Many collective agreements only provide for the payment of overtime bonuses for part-time employees if they exceed the standard working hours set for full-time employees. Part-time employees would therefore first have to work the entire difference to their full-time working hours in order to receive overtime pay for the next hour. Until its decision in December 2018, the BAG cited the existence of “objective reasons” as an explanation for this unequal treatment. According to Section 4 I 1 TzBfG, such reasons justify different treatment of part-time and full-time employees.
By contrast, the European Court of Justice (ECJ) ruled back in 2004 that the principle of equal treatment must apply to each individual component of the remuneration paid to the employee. It therefore not only refers to the fact that the remuneration for standard working hours must correspond proportionately to that of a full-time employee. Overtime must also be remunerated equally.
BAG has expressly abandoned its previous view
Initially, (only) the 6th Senate of the BAG had slightly adapted its decision-making practice. In a decision dated 26.04.2013 (6 AZR 800/11), it recognized for the first time that even those working hours that exceed the hours set in the shift plan (unplanned overtime) are considered overtime.
In a ruling dated 23.03.2017 (6 AZR 161/16), the 6th Senate then definitively endorsed the ECJ’s view by recognizing that the total number of working hours from which part-time employees are entitled to overtime pay must be reduced in proportion to the agreed working hours.
The 10th Senate of the Federal Labor Court has now also expressly endorsed this in its ruling of December 19, 2018. This implements the prohibition of discrimination against part-time employees (Section 4 I TzBfG). An employee who contractually only works 20 hours will therefore receive an overtime bonus from the 21st hour. His colleague, who contractually works 38 hours, receives the supplement from hour 39.
How should the BAG’s decision be assessed?
In its previous case law, the Federal Labor Court had set identical limits for full-time and part-time employees. This meant that everyone had to work the same amount of overtime in order to receive a supplement. However, this formal equal treatment disregards the aspect that a part-time employee has consciously decided not to work the full number of hours per week and therefore leads to unequal treatment. Just as the basic salary must correspond proportionately to the salary of a full-time employee, the total number of working hours from which an entitlement to overtime pay arises must also be reduced in proportion to the agreed working hours.
Only if an employer proceeds in this way does it correctly implement the principle of equal treatment from Section 4 I TzBfG in this area. But beware: The decision does not say that part-time employees are always entitled to overtime pay or a bonus. There must only be equal treatment between part-time and full-time employees. Whether overtime must be paid in individual cases and possibly even a supplement depends primarily on the employment contract or collective agreement.
The ruling of the Federal Labor Court of December 19, 2018 is an important step towards fairer treatment of part-time employees and strengthens the principle of equal treatment in accordance with Section 4 I TzBfG. The proportionally adjusted regulation for overtime pay takes into account the specific working model of part-time work and reduces the risk of indirect discrimination. Nevertheless, the actual implementation remains in the hands of the employment contracts and collective agreements, which continue to define the relevant provisions on remuneration and overtime pay. Employers are now more than ever required to design their remuneration models fairly and with legal certainty in order to counteract discrimination against part-time employees and promote a balanced working environment.
