Is there discrimination against part-time workers by collective agreement provisions that only provide for overtime pay for hours worked in excess of the regular working hours of a full-time worker?
In the appeal instance, the parties debated the existence of a claim by the plaintiff for a credit to her working time account as well as the payment of compensation pursuant to Art. § 15 para.2 AGG.
No overtime pay for part-time workers
The Federal Labour Court (Bundesarbeitsgericht - BAG) turned its attention to the 28.10.2021 by way of a preliminary ruling to the Court of Justice of the European Union (ECJ). The interpretation of European law provisions is to be clarified as to whether provisions in collective agreements which provide for the payment of overtime bonuses only for hours worked in excess of the regular working hours of a full-time employee. This would clearly constitute discrimination against part-time workers.
In the case decided, a nurse in part-time employment sued a nationwide dialysis provider, claiming compensation according to § Section 15 (2) AGG as well as further credits due to overtime worked on their working time account.
A collective agreement applies to the employment relationship. Accordingly, overtime pay is only provided for if the working hours of a full-time employee are exceeded.
The Labour Court dismissed the action. The Hessian Higher Labour Court (LAG) partially amended the Labour Court's decision on the plaintiff's appeal and ordered the defendant to credit the plaintiff's working time account with the required hours. It dismissed the plaintiff's further appeal. In her appeal, the plaintiff continues to pursue her claim for payment of compensation under § 15.2 of the General Equal Treatment Act. The defendant sought the dismissal of the appeal and, by way of cross-appeal, the dismissal of the action in its entirety.
Gender discrimination
The Eighth Senate of the BAG asks the ECJ to answer, inter alia, the following questions on the interpretation of Union law, namely:
The plaintiff also claimed compensation pursuant to para. § 15 para.2 AGG on the grounds of indirect gender discrimination. She took the view that she had been unlawfully discriminated against as a part-time employee compared to full-time employees by the application of the collective agreement provision in section 10, paragraph 7, sentence 2 of the MTV. In addition, she was indirectly disadvantaged because of her gender, as the defendant employed mainly women on a part-time basis.
The ECJ is now to clarify whether this results in unequal treatment of full-time employees and part-time employees (with regard to men and women) within the meaning of Art. 157 TFEU as well as Art. 2 para. 1 b and Art. 4 sentence 1 of Directive 2006/54/EC.
The Labour Court dismissed the action. On the plaintiff's appeal, the Hessian Higher Labour Court (LAG) partially amended the labour court's decision and ordered the defendant to credit the plaintiff's working time account with the required hours. The plaintiff's further appeal was rejected. In her appeal, the plaintiff continued her claim for payment of compensation under section 15 (2) of the General Equal Treatment Act. The defendant sought the dismissal of the appeal and, by way of cross-appeal, the dismissal of the action in its entirety.
Referral to the ECJ
The 8th Senate would like to know from the ECJ which consideration is relevant in this case. Is it necessary to make a comparison between the groups of full-time and part-time employees or is it already sufficient that more women than men are affected in the group of part-time employees?
The clarification of this factual question remains exciting for part-time workers in nursing and also in other areas, especially in the public sector as well as in hospitals.
