According to a judgment of the Federal Labour Court (Bundesarbeitsgericht, BAG) dated 19 December 2018 (docket number 10 AZR 231/18), part-time employees can be entitled to the payment of overtime premiums with regard to working hours that go past the agreed part-time hours but do not exceed the working hours of full-time employment.
In the case in question, the Plaintiff was a part-time employee for the Defendant. A framework collective agreement, which contained regulations on, i.a., overtime premiums and the possibility to determine annual working hours, applied to her employment relationship. Annual working hours had been set for the Plaintiff, and the Defendant paid the respective basic remuneration. However, the Defendant did not give the Plaintiff overtime premiums for the amount of time which exceeded the agreed working time, since the overall amount of time did not exceed the working hours of full-time employment. Subsequently, the Plaintiff filed a suit, claiming respective remuneration. The 10th Senate of the Federal Labour Court ruled in favour of the Plaintiff.
What is particularly remarkable is that the 10th Senate, with this judgment, has abandoned its previous opposing view: In a judgment dated 26 April 2017 (docket number 10 AZR 589/15) the 10th Senate still ruled that it was not – forbidden – discrimination of part-time employees when their entitlement to overtime premiums was conditional on the exceeding of the working hours of full-time employees. With the judgment at hand the 10th Senate agreed with the 6th Senate of the Federal Labour Court. According to the latter, the assumption of the same threshold for both part-time and full-time employees, from which overtime premiums are granted, treats part-time employees less favourably than full-time employees and thus contradicts para. 4 (1) Part-Time and Fixed-Term Act (Teilzeit- und Befristungsgesetz, TzBfG). Para. 4 (1) Part-Time and Fixed-Term Act – roughly translated – reads: “A part-time employee must not be treated less favourably due to his part-time work than a comparable full-time employee, unless there are objective grounds justifying different treatment. A part-time employee shall be granted remuneration or another divisible non-cash benefit at least equal to the proportion of his or her working time to the working time of a comparable full-time employee.”
According to the 6th Senate’s view – which the 10th Senate now agrees with – the comparison between full-time and part-time employees has to be drawn with regard to each remuneration component individually (cf. judgment dated 23. March 2017, docket number 6 AZR 161/16). Therefore the remuneration for regular working hours on the one hand and remuneration for overtime on the other hand has to be compared separately. The 6th Senate outlined that, in principle, shorter working time may only be remunerated differently in terms of quantity, but not quality. Part-time employees would be treated less favourably than full-time employees, if the number of working hours from which on an entitlement to overtime premiums arises, was not decreased proportionally to their working hours. In particular, it would lead to the assumption of an identical limit of workload for part-time and full-time employees, which, ultimately, would result in the assumption of a higher individual limit of workload for part-time employees. Finally, the different working hours of full-time and part-time employees cannot constitute an objective reason according to para. 4 (1) Part-Time and Fixed-Term Act for a differentiating treatment. As a result, the 10th Senate of the Federal Labour Court joined the above outlined opinion of the 6th Senate and ruled that employees who work part-time and whose working hours go beyond their respective part-time quota do not have to exceed the working hours of a full-time employment in order to be entitled to overtime premiums. This interpretation of the framework collective agreement corresponds to higher-ranking law, and is compatible with para. 4 (1) Part-Time and Fixed-Term Act.