Court of Justice (EU) requires prorated “overtime” thresholds for part-time employees

The Court of Justice of the European Union (CJEU) recently ruled in a German case that also questions the Belgian system of overtime pay for part-time employees.

The reason for the ruling was the situation of a German pilot at Lufthansa CityLine. The man in question worked 90% of full-time employment. His base salary, including premiums for shift work, was therefore reduced by 10%. A pilot obviously cannot “stop working” after 90% of the flight, nor is it easy for an airline to assign a part-time pilot to short-haul flights only. Therefore, on weekdays, the man achieved the same amount of flight hours as a full-time pilot. However, additional annual leave days were granted to him so that his average working hours were also reduced by 10%. As with his full-time colleagues, the pilot received his base salary as well as three progressively increased rates of salary for flight hours on top of “normal” performance. Under German law, the three thresholds for these additional flight hours are set by a collective labour agreement and assume full-time employment only. The thresholds are therefore beyond ordinary full-time employment. There is no pro rata reduction of these thresholds for part-time pilots.

In a judgment dated 19 October 2023, the CJEU ruled that the aforementioned situation violates the principle of equal treatment between part-time and full-time employees. This principle - which is also found in Belgian collective agreement no. 35 and an Act of 5 March 2002 - means that part-time employees should not be treated less favourably than full-time employees simply because of their part-time employment. A distinction can only be implemented if the difference in treatment can be objectively justified. The pro rata temporis principle should be applied where appropriate, so that part-time employees receive a proportionally equal treatment with full-time employees in relation to their employment percentage. 

The German government had argued that the scheme specifically sought to compensate for the special work pressure associated with performance on top of a full-time schedule. The Court did not accept this as justification. In this regard, it mainly pointed to the lack of any evidence that there would be an additional work pressure only upon reaching the “full-time” thresholds.  The judgment also states that the actual reasons underlying the institution of part-time work, such as possible non-work-related burdens borne by the pilot, are thus not taken into account. Moreover, this does not dissuade airlines from using part-time pilots outside their duty roster.

With this case law, the Court seems to revisit the argument of the “proportionately greater burden” on part-time employees. Indeed, reaching the threshold for overtime constitutes a proportionally greater burden for them than for full-time employees. The Court thus reverts to an earlier judgment, Helmig (1994), when it had still ruled that there is unfavourable treatment (of women compared to men, since women are more likely to work part-time) only to the extent that the “total remuneration“ paid to full-time employees is higher than the remuneration paid to part-time employees who work the same number of hours as a full-time employee - either by working overtime or additional hours. However, the ruling is not entirely unexpected. The Court itself had already partially adjusted its view in the Elsner-Lakeberg case (2004) by ruling that a part-time teacher was treated more unfavourably (and bore a greater burden) if - like full-time teachers - they were paid overtime only when those overtime hours exceeded three hours per calendar month. The threshold had to be prorated, according to the Court. However, in the Voss ruling (2007), the court seemed to have reconsidered that reasoning. It did refer again to the principle of "total remuneration" to rule that there is also unfavourable treatment when both part-time and full-time employees receive lower remuneration for hours "outside their normal duty roster". Indeed, part-time employees who - through overtime or additional hours - still worked a full-time duty roster would then receive lower “total compensation” than full-time employees who worked the same number of hours. 

The ruling of 19 October 2023 (C-660/20) may also have implications for part-time employees in Belgium. This is because, while full-time employees in Belgium in principle receive overtime pay for all hours “above the working hour limits” (in principle above 9 hours per day and/or 40 hours per week), part-time employees in fixed employment schemes are still subject to a credit of 12 hours per calendar month above which overtime is due. Similarly, in variable employment schemes, overtime is only payable above a threshold equal to the number of weeks in the reference period multiplied by 3 hours and 14 minutes (with a maximum of 168 hours). This raises the question of whether this imposes a greater burden (and hence unfavourable treatment) on part-time employees. 

The Court's ruling only addresses the compatibility of the German regulations with EU principles. The Belgian regulations thus remain in force unchanged - although the ruling may cause the courts to question them.  In September 2023, a proposal for a bill to abolish the 12h credit for part-time workers was introduced in parliament by opposition party PS. Question is whether there is any appetite for this among the rest of parliament.

In any case, at Reliance Littler, we will continue to follow this up for you!