Part-time workers must not be placed at a disadvantage

Impact on the posting of workers

In C-660/20 a German employee was a part-time worker. Pursuant to the terms and conditions of the employment contract, the employee is entitled to receive additional remuneration if in a respective month he performs a certain number of working hours and exceeds the thresholds stated in the employment contract. This calculation model did not distinguish between part- time and full-time workers.

As a result, the employee claimed that for part-time workers the threshold should be reduced by taking into account the number of the reduced weekly working time. This leads to additional remuneration.  

The ECJ had to decide on the question whether national rules which require a part-time worker to complete the same number of working hours as a full-time worker in order to receive additional remuneration are considered discriminatory. This question was answered in the affirmative by the ECJ. This means that the part-time workers will be entitled to additional remuneration much more rarely than full-time workers. Such a national rule leads to a less favorable treatment of part-time workers and this is contrary to EU law unless justified on objective grounds.

Has this judgement an impact on postings? Yes!

It addresses additional remuneration aspects regarding the payment of overtime hours.

Part-time workers posted to work abroad are entitled to overtime payments once the normal working hours determined by the law applicable to the employment contract are consumed.

Practical example: A part-time worker who works for 20 weekly hours in accordance with the terms and conditions of the home country employment contract, also during a posting abroad continues to be part-time worker and once the weekly working time of 20 hours is reached, overtime supplements are due.

For part-time workers the trigger threshold for the entitlement to overtime payments must be applied on a pro-rata basis.

Content relevant for: Austria.

Ewald Oberhammer, Oberhammer Rechtsanwälte GmbH e.oberhammer@oberhammer.co.at