Germany: Change in legal practice on overtime surcharges for part-time employees
The plaintiff is employed part-time by the defendant as an assistant store manager. The applicable collective bargaining agreement for the foodservice industry provides for the possibility to agree on an annual working time and provides regulations on overtime surcharges. Based on the collective bargaining agreement, the plaintiff’s part-time working time was defined on an annual basis.
At the end of the year, the employer paid the plaintiff the regular remuneration for those hours worked in addition to the annual working time predetermined by the parties. However the employer did not pay any overtime surcharges on those additional hours. The employer argued that no overtime surcharges were due because the total annual working time of the part-time employee had not exceeded that of a full-time employee. The plaintiff claimed the overtime surcharges for any hours worked in addition to the part-time working time defined between the parties.
The German Federal Labor Court ruled that the applicable collective bargaining agreement has to be interpreted in the way that part-time employees are entitled to overtime surcharges for any hours worked in addition to their individual working time as agreed with the employer. German law provides that part-time employees may not be treated less favorably than comparable full-time employees on the grounds of part-time work. Therefore, not the total remuneration of the full-time and the part-time employee has to be compared, but the individual remuneration components. Such comparison shows that part-time employees would be disadvantaged if they were only entitled to overtime surcharges for hours exceeding the working time of a full-time employee.
With this ruling, the 10th Senate of the Federal Labour Court has abandoned its contrary view expressed in previous rulings on overtime surcharges for part-time employees. The view of the 10th Senate is now aligned with the view of the 6th Senate. In practice, the ruling strengthens the legal position of part-time employees regarding overtime surcharges. If such surcharges are generally due under an individual or collective agreement, they don’t only apply for such hours worked by the part-time employee that exceed the working time of a full-time employee, but to any hours worked exceeding the individual working time of the part-time employee.
