Additional remuneration for work for part-time employees in excess of their scheduled working hours
The triggering of additional remuneration for work for part-time employees in excess of their scheduled working hours cannot be limited to only after they have exceeded the number of working hours corresponding to full-time positions. The Court of Justice of the European Union stated in a judgment issued last week that national regulations that allow such practices are incompatible with EU law. The ruling should signal a need to change the application of Polish Labour Code regulations.
Background of the case
On 19 October 2023, a CJEU judgment was handed down in the case of a German airline pilot employed at 90% of full-time working hours. Despite the reduced working hours, the employer paid the pilot additional remuneration for excess hours only after the employee had exceeded the monthly quota of working hours applicable to full-time workers. The airline did not make a provision to reduce this trigger threshold for part-time workers.
The CJEU noted that in the face of regulations such as those in place in the German company, part-time workers, compared to full-time workers, much more rarely satisfy the conditions entitling them to additional remuneration. The Court held that such regulations lead to the less favourable treatment of employees working part-time. Such different treatment, unless justified on objective grounds, is prohibited by EU law. However, the assessment of whether there are circumstances justifying a difference in the treatment of part-time workers falls within the competence of the national courts, which should approach each case individually.
Addressing the arguments of the company employing the pilot, the CJEU stated that the difference in treatment could not be justified on the basis that the additional remuneration was intended to “compensate for a particular workload”, and should therefore be enjoyed by all employees on the same basis.
Polish regulations and practice
The Polish regulations regarding the determination of remuneration for overtime work are similar to the German ones examined by the CJEU. For example, pursuant to Polish regulations, the parties may agree in an employment contract that a half-time employee will receive additional remuneration for overtime work only after the number of working hours appropriate for a full-time position has been exceeded. In practice, this usually means that for work between 21 and 40 hours in a week, the employee receives the same hourly pay as for the first 20 hours (without the right to additional remuneration for overtime work).
The Polish Supreme Court has stated on several occasions that if parties do not establish in an employment contract the limit of hours the exceeding of which triggers the employee’s entitlement to additional remuneration for excess hours, the employee will only be entitled to such remuneration after the number of hours specified for full-time employment has been exceeded.
This interpretation of the Labour Code confirmed by case law established by the Supreme Court has led to the situation in which part-time workers most often do not receive additional pay until the number of hours they have worked exceeds the full-time working hours.
Implications for employers
Although the ruling in question resulted from a legal question posed by a German court, it also has implications for Polish employers and employees. In the event of litigation, a Polish court hearing a dispute with an employee should assume that employees are entitled to additional remuneration from the first hour worked in excess of the contractually agreed working time. There is also the risk that such an interpretation will be extended by the courts to claims relating to work performed before the date of the CJEU judgment insofar as they are not already barred by the three-year statute of limitations.
For employers, the CJEU judgment means that the existing practice of accounting for part-time employees’ overtime pay must be reviewed. In workplaces with a large number of part-time employees, it will make sense to first conduct a comprehensive review of their working time, then assess the risk of claims being brought and subsequently take measures to mitigate such risk. Please also note that in the above-described case, the CJEU examined the issue of the need to take t working time into account when structuring overall employee remuneration arrangements. This means that not only should adjustments be made to the thresholds for triggering entitlement to overtime pay, but also, for example, to the objectives to be met in order to qualify for a bonus or to the requirements necessary to qualify for other remuneration components. An employer’s failure to take reduced working hours into account in those areas without clear objective grounds may, in fact, also constitute an instance of unequal treatment.