Collective bargaining autonomy does not protect against discrimination against part-time employees

Facts of the case

A production assistant was employed part-time with a weekly working time of 20 hours. The employment relationship is governed by the collective labour agreement for the fine ceramics industry ("MTV"), Section 2a of which provides for two hours off per week for employees who have reached the age of 58. This provision expressly excludes part-time employees, among others. The employer referred to the provision in the MTV and rejected the employee’s application for time off in lieu. The Labour Court considered the double restriction of the group of eligible employees to a certain age (58 years and older) and full-time employment (in this case 38 hours/week) to reduce the workload to be covered by organizational leeway of the collective bargaining parties and thus also affirmed the objective reason for unequal treatment. Both the Nuremberg Regional Labour Court and the Federal Labour Court took a fundamentally different view of the case and granted the employee the right to time off in the ratio of their individual part-time work in comparison to a full-time position. 

The judgment

In its reasoning, the Federal Labour Court stated that the collective bargaining regulation puts part-time employees at a disadvantage compared to full-time employees by only granting remunerated time off from 38 hours per week - regardless of how many hours a person actually works part-time. As a result, part-time employees earn less than full-time employees for the same amount of work. Finally, the continued payment of remuneration with the simultaneous reduction in working hours for full-time employees leads to an increase in their salary. For example, the collective agreement provision would allow full-time employees to work only 35 hours per week instead of 37.5 hours after reaching the age of 58, as a result of being granted time off without any loss of income. Conversely, part-time employees who are contractually obliged to work the same number of hours are only entitled to the agreed remuneration for 35 hours per week.

This unequal treatment is not justified by an objective reason: the purpose of the provision in the collective agreement is to provide continuous relief for older employees. However, a differentiation, which grants paid time off for older employees is based solely on the extent of the weekly working hours of older employees is not objectively justified by differences in factual circumstances. The BAG pointed out that there is no general principle of older employees only having a qualitative burden that requires relaxation in the form of time off once they have worked 38 hours a week or more. This also disregards the frequent non-occupational strain on part-time employees. As a result, there is no reason why retirement leave should completely exclude part-time employees instead of also granting them time off in proportion to their individual working hours.

The regulatory powers of the parties to the collective agreement are limited by conflicting mandatory statutory law. If a collective agreement provision violates Section 4 (1) TzBfG, it is null and void.

Consequences for practice

The judgment is fully in line with the BAG's previous case law. In its judgements of 23 July (9 AZR 372/18) and 22 October 2019 (9 AZR 71/19), the responsible 9th Senate already deemed almost identical provisions in the collective agreement for the chemical industry to be inadmissible due to a violation of Section 4 (1) sentence 1 TzBfG. The legal consequence of such unequal treatment is, in principle, the nullity of the discriminatory provision. However, according to the unanimous case law, the discrimination can only be effectively eliminated by an "upward adjustment", i.e. the parties facing the discrimination are granted a claim for paid time off in proportion to the ratio of full-time to individual part-time work.  

Practical tip

Any form of obvious unequal treatment of full-time and part-time employees should be scrutinised, even where the difference in treatment is based on a collective agreement.