Overtime work in the context of part time employment – a new judgment of the CJEU

The German court asked the CJEU to resolve the doubts on whether the determination of a uniform threshold above which work is performed as overtime work in a less favourable manner for part-time workers is inconsistent with EU law, i.e. with Council Directive 97/81/EC and clause 4.1 and 4.2 of the Framework Agreement on part-time work, annexed to it.

The applicant – being pilot of German airlines – drew attention to systematic injustice of the German legislation which limits the possibility for part-time workers to work overtime and to derive a number of benefits related to it. 

As the pilot was employed on a part-time basis (90% of full-time working hours), the hours that he additionally worked were classified as overtime work only after he had exceeded the working hours applicable to full-time workers. In the remaining scope, he did not receive any additional remuneration but only a base remuneration increased in a manner proportionate to the length of his working hours, i.e. for hours worked additionally after exceeding his working hours until reaching the trigger threshold entitling full-time workers to additional remuneration.

The case concerned equal treatment of part-time workers in the context of their limited chances to work additional hours giving entitlement to additional remuneration. According to German law, overtime hours are calculated only when the threshold applicable to full-time workers is exceeded. Part-time workers must therefore work additionally to reach the trigger threshold which, once exceeded, entitles them to additional remuneration for overtime hours worked. The Polish legislator has regulated this issue in the same manner.

The First Chamber of the CJEU (extended composition of judges) resolved the doubts unambiguously: Making the payment of additional remuneration for part-time workers and for comparable full-time workers uniformly contingent on the same number of working hours being exceeded in a given activity must be regarded as less favourable treatment of part-time workers. 

The CJEU's ruling is of great importance for Polish regulations concerning that issue. The representatives of the Polish labour law doctrine have repeatedly emphasised to the legislator that regulations in this respect contradict the principle of equal treatment in employment. However, so far no steps have been taken to amend the Labour Code appropriately.

In the light of the CJEU judgment we can conclude as follows: 

The CJEU's judgment may immensely affect employers operating in the sales services, construction or industry sectors in Poland in which part-time employment contracts with the option to work additionally to reach the full-time working hours have often been concluded. 

So far the employers have been able to flexibly schedule the working hours without risking additional costs connected with unforeseen situations. For example, sickness of one employee which resulted in other employee having to work hours exceeding his part-time basis (½ FTE) did not trigger the obligation to pay overtime allowance but only the regular salary. However, in the light of the CJEU judgment, the overtime allowance will now have to be paid in such a situation. This judgment may also result in Polish employers abandoning part-time employment contracts and switching to contracts of mandate.