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CJEU has ruled on overtime pay for part-time employees

On 19 October 2023, the Court of Justice of the European Union issued an important judgment on the payment of overtime for part-time employees (Case C-660/20). According to the ruling, arrangements in an employee’s contract whereby an allowance for overtime work is granted on the same basis to both full-time and part-time employees constitutes a discriminatory practice. How might this judgment affect both Polish employees and employers?

Substance of the case

The case concerned a pilot – an employee of the German Lufthansa CityLine – who was employed part-time, amounting to 90% of the working time of a full-time pilot. According to the applicable collective labour agreement, in addition to the base salary, employees receive additional remuneration for working a certain number of flight activities more than the base hours. The amount of supplementary remuneration depends on the number of hours worked and on exceeding thresholds set for the purpose of the salary increase. However, the applicable collective labour agreements have not provided part-time workers with a reduction of these thresholds. Consequently, the thresholds for salary increases were identical for all pilots – working both full-time and part-time.

The complainant pilot claimed that he was being treated less favourably than a full-time employee as a result of the arrangements adopted and that, moreover, the company had failed to take into account the pro rata temporis principle (according to which the principle of proportionality should be applied when calculating the benefits due) and there was no objective reason for the employer to justify such different treatment. The employer argued that setting the same thresholds for all employees was intended to compensate for the workload for those working full time, compared to those working for a shorter period.

Proceedings in front of the CJEU

The German court considered whether the provisions adopted in the pilot’s workplace were contrary to clause 4(1) and (2) of the Framework Agreement on part-time work concluded on 6 June 1997, annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. According to these regulations, in relation to their terms and conditions of employment, part-time workers may not be treated less favourably than comparable full-time workers solely because they work part-time, unless different treatment is justified on an objective ground and, where appropriate, the pro rata temporis principle should be applied.

According to the Court, the situation of the complainant part-time pilot is comparable to the situation of full-time pilots and, therefore, the provisions of the Framework Agreement will apply here. The CJEU emphasised that, in the circumstances presented, part-time pilots do not achieve at all or are much less likely than full-time pilots to achieve the salary increase thresholds required to receive additional remuneration. Accordingly, the CJEU stated that the provisions making the payment of additional remuneration – for full-time and part-time employees – conditional on exceeding the same number of working hours in the same activities constitute “less favourable” treatment of part-time employees and are incompatible with clause 4(1) and (2) of the Framework Agreement.

The CJEU instructed the German court to verify whether the reasons given by the employer are objective in nature, but on the basis of the information received at the hearing, there do not appear to be objective circumstances to justify the supplementary remuneration rules applied.

CJEU judgment compared to Polish law

Pursuant to Article 151 § 1 of the Labour Code (Journal of Laws of 2023, item 1465), overtime work is work performed in excess of the working time standards applicable to an employee, as well as work performed over an extended daily working time, resulting from the working time system and schedule applicable to an employee. However, § 5 indicates that the parties shall specify in the employment contract the permissible number of hours of work more than the contractually stipulated working time of a part-time employee, the exceeding of which shall entitle the employee, in addition to the regular remuneration, to the additional remuneration mentioned in Article 1511 § 1.

Accordingly, part-time employees should pay particular attention to the terms of their employment contract with their employer. If the number of hours worked above which an employee is entitled to an additional payment for overtime work is the same as for full-time employees, this may be grounds for claiming an overtime allowance for the last three years- pursuant to Article 291 of the Labour Code.

Instead, employers should consider amending the provisions of their current employment contracts with their employees in order to adapt their provisions to the current CJEU jurisprudence. You are welcome to contact us in order to analyse the provisions of your company’s employment contracts and to construct new provisions aimed at protecting you from potential claims by your employees in the future.