When Is a Part Timer Entitled to Overtime Allowance?

There is a prohibited discrimination between full timers and part timers if the number of hours to be worked in order to qualify for an overtime allowance is the same for full timers and part timers.

Since 2001, a German airline employed a pilot who, as of 2010, continued to work as a part timer for 90% of the working time. Under the applicable CLAs, a pilot's flight hours are compensated at a basic salary, but for flight hours above a certain number per month, an additional compensation, exceeding the basic salary, is paid. The applicable CLAs do not provide for a reduction of these numbers for part timers, based on their part time rate.
The pilot believed that there was a prohibited discrimination between full timers and part timers. The provision in German law, which prohibits unlawful discrimination between full time and part time workers is based on European regulations.
When this issue was brought before the German Court, there was reason for the German Court to ask the Court of Justice of the European Union how the prohibition on discrimination in question should be explained.
The Court of Justice held, that part time pilots will less frequently be eligible for the higher additional compensation than full time pilots. In proportion to their working time, part time pilots have to outperform the full time pilots, which increases the burden on them. For that reason, the prohibition of unequal treatment of full time and part time workers was violated, unless there was an objective justification for the discrimination.
The objective justification the airline put forward was, that the additional allowance provided compensation for the special workload which is connected with the flight duty and its consequences for the health of the pilots. The airline saw a further objective justification in discouraging airlines from excessive deployment of the pilots.

The Court of Justice assessed whether the unequal treatment for the aimed purpose met the requirements that it should be appropriate and necessary.
The Court was of the opinion that the discrimination was inappropriate because the pressure that a part time pilot might experience due to circumstances outside of work was disregarded.
According to the Court, the discrimination was not necessary either in order to achieve the aim of avoiding any particular burden or constraint, since measures such as a compensation scheme for hours worked (= time-for-time), a system of rest days or even establishing weekly thresholds instead of the monthly ones would be far more appropriate.
Thus, the Court’s conclusion was, that a scheme that sets an identical number of working hours for part time and full time workers as a condition for payment of the additional compensation for part time and full time employees, aiming at compensating for any particular burden or constraint by means of this additional allowance, violates the prohibition of unequal treatment of full time employees and part timers.

The ruling of the Court of Justice of the European Union has also consequences for Dutch employers and employees. Dutch law also has a prohibition on unequal treatment of full time and part time workers, based on the European regulations, and this prohibition must be explained in accordance with this Court’s ruling. When it comes to the question of when part timers are eligible for an overtime allowance, in 1994 the Court ruled that there was equality of treatment when full timers and part timers received the same remuneration for the same number of hours worked. Since this ruling has increasingly been criticized over time, the German Court sought to ascertain the latest position of the European Court. This Court then came to a different decision than the one in 1994.
Based on the Court's ruling, employers will have to set the limit for paying overtime allowance in such a way that part timers do not have to put proportionately more effort in reaching this limit than full timers. For part timers this limit has to be determined on the basis of what applies to full timers, multiplied by the part time factor.
This is only different if an objective justification can be found for this discrimination, other than the compensation for special workload which, in the above case, the Court rejected as such.
This objective justification then has to meet the following requirements:
- making the discrimination shall be necessary, meaning that there are no other means to achieve the aim of the objective justification, and
- making then discrimination shall be appropriate, meaning that the infringement of the principle of equal treatment must be proportionate to the aimed purpose.
There is a risk that, as a result of this Court’s ruling, a full time employee will continue the employment as a part timer, and then to only work overtime that is rewarded with an overtime allowance, so that, on balance, the employee works the same number of hours but receives higher payment for it.
It seems appropriate to make overtime allowance regulations in such a way that the overtime allowance is not turned into an incentive to work part time, solely in order to opt for overtime work with an allowance.