A provision in a collective agreement provision which, irrespective of individual working hours, requires that overtime is only payable where an individual exceeds the regular working hours of a full-time employee treats part-time employees less favourably than comparable full-time employees on the grounds of their part-time status. Unless justified by objective reasons, any unequal treatment pursuant to such a provision constitutes discrimination against part-time employees.

Facts

The parties were in dispute over a credit entry on the claimant’s working time account and compensation pursuant to section 15 ver.di. para. 2 German General Act on Equal Treatment. The defendant, an outpatient dialysis provider with over 5,000 employees, employs the claimant as a part-time nurse (40 percent of a full-time position). The employment is subject to an industry-wide collective agreement concluded between the defendant and German labor union ver.di. Pursuant to section 10 no. 7 sentence 2 of the industry-wide collective agreement, overtime that exceeds the monthly working time of a full-time employee which cannot be compensated by time off must either be remunerated with a 30 percent additional payment or, alternatively, by a corresponding credit entry on the employees working time account.

At the end of March 2018, the claimant’s working time account showed a credit balance of 129 hours and 24 minutes. The defendant, however, neither paid any overtime bonus nor did it make a corresponding credit entry. The claimant demanded that an additional 38 hours and 39 minutes be credited as overtime bonus and claimed compensation in the amount of one quarter of her annual earnings in accordance with section 15 para. 2 German General Act on Equal Treatment. The Labour Court dismissed the claim while the Regional Labour Court awarded the claimant the time credit she had requested but rejected the claim for compensation under the German General Act on Equal Treatment. The Federal Labour Court referred the case to the ECJ, which then decided on the questions referred to it for a preliminary ruling.

Decision

Following the ruling to the ECJ, the claimant’s appeal to the Federal Labour Court was largely successful. The court ruled that the claimant was entitled to the time credit she requested and to a compensation in the amount of EUR 250.

In accordance with the ECJ’s previous decision (29 July 2024 – C-184/22, C-185/22), a national provision that provides for the payment of overtime bonuses to part-time employees only for hours worked in excess of the regular working hours of full-time employees in a comparable situation is contrary to section 4 no. 1, 2 Framework Agreement on Part-time Work (RV Teilzeitarbeit), Art. 157 TFEU and Art. 2(1)(b) and 4(1) Equal Treatment Directive.

The Federal Labour Court then ruled that section 10 no. 7 sentence 2 of the industry-wide collective agreement was invalid as it discriminated ion against part-time employees (section 4 para. 1 Part-time and Temporary Employment Act (Teilzeit- und Befristungsgesetz – TzBfG)) insofar as it did not provide for a proportional reduction of the threshold for granting the overtime bonus to part-time employees in proportion to their hours. An objective justification for this was not apparent. Due to this violation, the overtime bonus provided for in the collective agreement was invalid, and so, the claimant was entitled to the additional time credit claimed.

In addition, compensation was to be awarded in accordance with section 15 para. 2 German General Act on Equal Treatment, because the claimant experienced indirect discrimination on the basis of gender through the application of the collective agreement provision. More than 90 percent of the group of employees employed by the defendant on a part-time basis, who fell within the scope of the industry-wide collective agreement, were women. Compensation in the amount of EUR 250 was necessary and sufficient to compensate for the non-material damage suffered and to have a deterrent effect on the defendant.

(BAG, 5 December 2024 – 8 AZR 370/20)