The overtime allowance for part-time employee is an issue that CJEU addressed in its recent judgment. While the judgment has somewhat resolved employers’ concerns, it remains to be seen how definitive this judgment is and whether it will have any impact on the situation in Poland.
The Labour Code
The overtime allowance for part-time employee is regulated in Article 151 § 5 of the Labour Code. This provision states that when parties conclude an employment contract, they set a time limit above specified working time, which when exceeded gives an employee the right not only to standard remuneration, but also to overtime allowance.
If contracting parties concluded an employment contract and did not include a provision concerning overtime allowance, the employee is not entitled to such allowance. This was the conclusion of Supreme Court judgment (I PK 315/07), which was later confirmed by the same court on several occasions (rulings: III PK 11/17, I PK 249/13, I PK 12/15). The Supreme Court stated that the literal sound of Article 151 § 5 implies that work specified in this article is not overtime work, but only sets the conditions for possible overtime allowance for worktime, that exceeds the worktime set in the contract. What is more, if sole exceeding this worktime was working overtime, then the overtime allowance would be granted automatically. In such a case including a clause in the contract concerning the time bar, above which the overtime allowance is granted, would always be less beneficial to the employee and would lead to exclusion of the legal right of an employee, which the principle of employee privilege prohibits. That is why both parties need to settle the overtime allowance.
Case C-660/20
CJEU in C-660/20 judgment dated 29th October 2023 was analysing a case concerning a worker (a pilot), who was working part-time. Beyond earning basic remuneration for his worktime, he was allowed to get additional remuneration for exceeding special thresholds. These thresholds were the same for pilots working part-time and full-time. He claimed that these hourly rates ought to be lower for him, due to his different situation from pilots working full-time.
The CJEU stated that on the basis of the Framework Agreement on part-time work concluded on 6 June 1997 and 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 the provisions that make the payment of additional remuneration contingent on the same amount of hours being exceeded for both full-time and part-time workers, constitute “less favourable” treatment of those employees who work less. Such treatment might be justified on “objective grounds”, meaning that it “responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose”. Moreover, the national legislation cannot implement uniform time thresholds for all employees, “in order to compensate for a workload particular to that activity”, in this case pilot’s flight duties.
Summary
It is easy to figure out that the polish legislation conflicts with abovementioned CJEU ruling. The requirement of establishing in the work contract, in the case of part-time employees, the hourly limit, above which the overtime allowance is payable is contradictory to the Court’s conclusions stating that “less favourable” treatment of employees working part-time that those working full-time cannot take place, unless it is justified on “objective grounds”. Maybe in the near future we will see a polish case, that will dispel any doubts.