Overtime bonuses for part-time workers – BAG now on a uniform basis

With current Judgment from December 19, 2018 he has 10th Senate of the BAG A clarification that is welcome for part-time employees has been made. Part-time employees may not be exempt from bonuses for overtime on the grounds that their actual working hours do not exceed the regular working hours of a full-time employee. Rather, part-time employees would be entitled to the overtime allowance as soon as their reduced individual contractual working hours have been exceeded (Ref.: 10 AZR 231/18).
Background information: When it comes to part-time employees, the question has always been whether and, if so, under what conditions they can claim overtime bonuses. First of all, it should be noted that there is no general entitlement to bonuses for overtime. However, many collective agreements provide for such surcharges. However, these collective agreements often contain a definition of overtime that is extremely disadvantageous for part-time employees. Overtime should only be incurred if the working hours exceed the regular weekly working hours of a full-time employee. For part-time employees, overtime does not arise when the individual reduced contractual working hours are exceeded, but only when the part-time employee works more than the full-time employee. This will almost never be the case in practice. In most cases, part-time employees were effectively exempt from paying overtime bonuses.
This discrimination has long been the subject of labor court disputes. It was argued that the exclusion of part-time employees from paying overtime bonuses until the regular weekly working hours of a full-time employee were exceeded was impermissible discrimination on the basis of part-time work. This is prohibited in accordance with Section 4 Paragraph 1 Sentence 1 of the Part-Time and Fixed-Term Employment Act (TzBfG). Since part-time employment is predominantly carried out by women, this also constitutes (inadmissible) indirect discrimination based on gender.
However, the European Court of Justice and subsequently the Federal Labor Court have not followed this argument since the fundamental decision of the ECJ in 1994. A regulation to the effect that part-time employees only have to pay overtime premium as soon as the regular working hours of a full-time employee are exceeded was considered permissible. The exact justification for this legal opinion should not be reproduced here, because it has now been resolved. In its ruling of March 23, 2017, the 6th Senate of the Federal Labor Court has already considered such a practice to be inadmissible as discrimination against part-time employees. After the 10th Senate of the Federal Labor Court initially upheld the older case law on the basis of the ECJ decision in its ruling of April 26, 2017, this Senate has now also “overturned” the older case law with the aforementioned decision of December 19, 2018. The 10th Senate of the BAG is now of the opinion that part-time employees would be unfairly disadvantaged if they were not entitled to overtime bonuses as soon as they exceed the reduced individually agreed working hours. The Federal Labor Court therefore interpreted the relevant collective agreement (the general collective agreement of the system catering industry) in such a way that the plaintiff could claim the overtime bonus as soon as her individual (reduced) working hours were exceeded. In this regard, it should be added: In cases in which the relevant collective agreement provision cannot be interpreted in accordance with the current legal opinion of the BAG (in particular because the wording of the collective agreement clearly stipulates otherwise), these collective agreement provisions are deemed to be in violation of higher-ranking law (§ 4 Para. 1 Sentence 1 TzBfG) are invalid and do not conflict with a part-time employee's claim to overtime bonuses.
However, it should be pointed out again that a claim to overtime bonus only exists if there is a corresponding legal basis for it. This legal basis is usually included in collective agreements, provided that a collective agreement is applicable to the company. To the extent that companies pay overtime bonuses even without a relevant collective agreement, in the future they will also not be allowed to take into account whether part-time employees exceed their regular full-time working hours when working overtime. Rather, part-time employees in such companies must always receive overtime bonuses (in the same treatment as full-time employees) whenever they exceed their individual (reduced) working hours.
Conclusion:
The change in the case law of the Federal Labor Court regarding the entitlement of part-time employees to payment of an overtime premium is to be welcomed. The older negative case law, based on the case law of the ECJ, was difficult to understand and could hardly be reconciled with the general sense of justice. The new case law is a major step forward for part-time employees. Although some companies are likely to incur considerable additional costs, this financial burden is objectively justified by the necessary equal treatment of part-time and full-time employees.