Równe traktowanie pracowników zatrudnionych w niepełnym i pełnym wymiarze godzin; równe wynagrodzenie za pracę w godzinach nadliczbowych
Artykuł poświęcony jest równości traktowania pracowników zatrudnionych w niepełnym wymiarze czasu pracy i pracowników zatrudnionych w pełnym wymiarze czasu pracy. W pierwszej części przeanalizowano przepisy UE zakazujące dyskryminacji pracowników zatrudnionych w niepełnym wymiarze czasu pracy. Przepisy te stanowią, że w odniesieniu do warunków zatrudnienia pracownicy zatrudnieni w niepełnym wymiarze czasu pracy nie mogą być traktowani w sposób mniej korzystny niż porównywalni pracownicy zatrudnieni w pełnym wymiarze czasu pracy wyłącznie z powodu tego, że pracują w niepełnym wymiarze czasu pracy, chyba że odmienne traktowanie jest uzasadnione obiektywnymi względami. Omówiono odpowiednie orzecznictwo TSUE dotyczące interpretacji warunków wynagrodzenia pracowników zatrudnionych w niepełnym wymiarze czasu pracy w porównaniu z pracownikami zatrudnionymi w pełnym wymiarze czasu pracy. Druga część poświęcona jest czeskim przepisom krajowym dotyczącym pracy w niepełnym wymiarze czasu pracy. Skupia się ona na pojęciu pracy w godzinach nadliczbowych w odniesieniu do pracowników o skróconym czasie pracy oraz dodatkowym wynagrodzeniu za pracę w godzinach nadliczbowych. Analizowana jest zgodność czeskich przepisów krajowych z przepisami UE zakazującymi dyskryminacji pracowników zatrudnionych w niepełnym wymiarze czasu pracy oraz ich interpretacja w orzecznictwie TSUE.
Słowa kluczowe: praca w niepełnym wymiarze godzin, wynagrodzenie, równe traktowanie, praca w godzinach nadliczbowych, dodatkowe wynagrodzenie
Abstract
Equal treatment between part-time workers and full-time workers; equal remuneration for overtime work
The paper is dedicated to the equality of treatment between part-time workers and full-time workers. The first part analyses EU legislation prohibiting discrimination against part-time workers. This legislation states that in respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds. Relevant case-law of the CJEU interpreting the conditions of remuneration of part-time workers compared to full-time workers is discussed. The second part is dedicated to the Czech national law relating to part-time work. It focuses on the notion of overtime work with respect to employees with reduced working hours and extra pay for overtime work. The compliance of the Czech national law with the EU legislation prohibiting discrimination against part-time workers and its interpretation in the case-law of the CJEU is analysed.
Keywords: Part-time work, remuneration, equal treatment, overtime work, extra pay
Introduction
Part-time work is considered to be one of the most important instruments of reconciliation of professional life and family life. This form of work promotes participation in the labour market of vulnerable groups of workers, such as workers taking care of children or other dependent relatives, elderly workers, or workers with disabilities. However, in many EU Member States, part-time workers face less favourable treatment based on a reduction of working hours compared to full-time workers. The present article is dedicated to equal remuneration of part-time workers and full-time workers with respect to extra pay for overtime work. The first part deals with the regulation of part-time work in EU law. It analyses the case-law of the Court of Justice of the EU (hereinafter the CJEU) relating to the prohibition of discrimination based on the grounds of part-time work. The second part is dedicated to the regulation of part-time work in the national law of the Czech Republic. It highlights the legal definition of overtime work with respect to employees with reduced working hours. Moreover, it examines the compliance of the Czech national law with the interpretative approach of the CJEU as regards the prohibition of discrimination based on the grounds of part-time work. Overall, the article seeks to analyse the impact of the case-law of the CJEU on the Czech national legislation and its interpretation, while also aiming to assess whether the Czech national framework follows EU law.
1. Regulation of Part-time Work in EU Law
Regulation of part-time work in EU (ex. Community) law dates to the 1990s. In 1997, the Council adopted Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on Part-time Work concluded by UNICE, CEEP and the ETUC (hereinafter Framework Agreement). This directive was adopted as a result of social dialogue between social partners at the EU level.[1] The Framework Agreement is annexed to Directive 97/81. Its purpose is defined as follows:
a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work,
b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organization of working time in a manner which takes into account the needs of employers and workers.[2]
The scope of application of the Framework Agreement includes part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State.[3] The term “part-time worker” is defined as an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.[4] “A part-time employment relationship to which the Framework Agreement is applicable may be one in which the length of weekly working time and the organisation of working time are not fixed but dependent on quantitative needs in terms of the work to be performed determined on a case-by-case basis with workers being entitled or accept or refuse that work.”[5] The term “comparable full-time worker” is defined as a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.[6]
1.1. Prohibition of Discrimination on the grounds of Part-time Work
As has been mentioned, one of the objectives of the Framework Agreement is to remove discrimination against part-time workers. It is worth noting that discrimination based on part-time work may constitute indirect discrimination based on sex because female workers are more likely than male workers to work part-time. Before adopting Directive 97/81, the ECJ (a part of the CJEU) decided that if a much lower proportion of women than of men work full-time, the exclusion of part-time workers from the occupational pension scheme was contrary to the prohibition of discrimination based on sex.[7] It should be noted that the concept of pay within the meaning of Art. 157 (2) of the Treaty on the Functioning of the EU (ex-Art. 141 (2) of the Treaty Establishing European Community or Art. 119 (2) of the Treaty Establishing European Economic Community) is understood very broadly. According to relevant case-law of the CJEU, it includes inter alia other benefits from the employer, such as redundancy payment and private occupational pensions.[8] Similarly, discrimination against part-time workers may constitute indirect discrimination based on disability or age, especially if a certain number of part-time workers are persons with disabilities, elderly persons or young persons.
Prohibition of discrimination based on the grounds of part-time work is stipulated by clause 4 (1) of the Framework Agreement, providing that: “In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.”
Discrimination on the grounds of part-time employment contract or relationship is established if the following features exist:
1. less favourable treatment,
2. part-time employment contract or relationship,
3. comparable full-time worker,
4. comparable situations,
5. causal link between less favourable treatment and part-time work.
It is apparent that the Framework Agreement does not define different treatment or less favourable treatment. Unlike EU equality directives (Directive 2006/54 Gender Equality Directive, Directive 2000/43 Race Equality Directive and Directive 2000/78 Framework Equality Directive) there is no definition of forms of discrimination such as direct discrimination, indirect discrimination or harassment.[9] In fact, the CJEU has never explicitly referred to the concepts of direct or indirect discrimination when interpreting clause 4 (1) of the Framework Agreement.
It should be noted that, according to established case-law of the CJEU, clause 4 (1) of the Framework Agreement is directly applicable. As will be examined below, this provision prohibits, in a general manner and in unequivocal terms, any difference in treatment of fixed-term workers in respect of employment conditions that is not objectively justified. This means that under certain conditions, in case of non-implementation of the directive into the national law of a Member State, an individual may claim the right not to be discriminated on the grounds of part-time work before national authorities.[10]
Clause 4 (2) of the Framework Agreement provides that where appropriate, the principle of pro rata temporis shall apply.[11] However, this provision appears vague and unclear. “The principle of pro rata temporis is often presented as a clarification of what is permissible; an employment condition set proportionally – when appropriate – does not violate the non-discrimination clause.”[12]
According to settled case-law of the CJEU, employment conditions within the meaning of clause 4 (1) of the Framework Agreement include conditions of remuneration. “However, salary schemes often include different elements, such as a basic salary and additional remuneration. The complexity generates uncertainty around what constitutes different treatment and how to compare full-time workers and part-time employees.”[13] Several times, the CJEU decided on remuneration of part-time workers for work performed during extra reduced working hours compared to remuneration for overtime work of full-time workers. Before adopting Directive 97/81, the ECJ (a part of the CJEU) dealt with extra pay for “overtime” work of part-time workers and full-time workers with respect to possible indirect discrimination based on sex. In particular, the question of the same extra pay for the same number of hours worked by part-time workers and full-time workers was examined. In the Helmig case (C-399/92) the ECJ decided that it was not contrary to the prohibition of discrimination based on sex if part-time workers do receive the same overall pay as full-time workers for the same number of hours worked.[14] In other words, the same extra pay for the same number of hours worked was thus deemed equal.[15] However, in case Voß (C-300/06) the ECJ took a different approach and decided that national legislation defining overtime, for both full-time civil servants and part-time civil servants, as hours worked over and above their normal working hours, and which remunerates those additional hours at a rate lower than the hourly rate applied to their normal working hours contrary to the principle of non-discrimination between men and women for equal work. In the Court’s opinion, such a rule “affected a considerably higher number of women than men and to the extent that there were no objective factors wholly unrelated to sex discrimination which might justify such a difference in treatment.”[16]
1.1.1. Case MK v Lufthansa CityLine GmbH (Case C‑660/20)
In its judgment of 19 October 2023 in Case C-660/20, the CJEU addressed the issue of equal treatment of part-time employees in relation to remuneration for overtime work, specifically the fair structuring of conditions for the payment of bonuses compared to full-time employment. The case was factually based on MK, a pilot employed by Lufthansa CityLine, who worked under a 90% part-time contract and challenged German labour law and national practice, under which the conditions for awarding bonuses were applied uniformly to all employees regardless of their working time percentage. Under the company’s internal regulations, pilots were entitled to receive an additional remuneration for flight service hours exceeding a predetermined threshold. This threshold was set at a fixed level and applied uniformly to all pilots, irrespective of whether they were employed on a full-time or part-time basis. As a result, part-time pilots—such as the claimant employed at 90% capacity—were required to perform proportionally more flight hours relative to their contractual working time to qualify for the same bonus as their full-time counterparts.
The pilot (MK) argued that the threshold for the payment of additional remuneration should be proportionally adjusted to reflect his 90% part-time employment status, as compared to full-time employment. Nevertheless, the collective agreement applicable at Lufthansa CityLine contained a provision stipulating that bonus payments were only granted where a pilot had flown a certain number of hours more than a fixed limit. Importantly, this required number of hours was not reduced for part-time employees. Consequently, part-time pilots were subject to a comparatively greater workload relative to their contractual working hours to qualify for the same additional remuneration as their full-time counterparts. This arrangement gave rise to concerns regarding the equitable treatment of part-time workers and the potential for indirect discrimination contrary to the principles of EU labour law.
In the case under discussion, the CJEU reiterated the conclusions previously adopted, inter alia, in its judgment of 7 April 2022, Ministero della Giustizia and Others (Status of Italian Justices of the Peace), Case C‑236/20, and in its judgment of 7 July 2022, Zone de secours Hainaut-Centre, Case C‑377/21. The CJEU affirmed that, regarding working conditions—including remuneration arrangements—clause 4 of the Framework Agreement on part-time work precludes the less favourable treatment of part-time workers compared to comparable full-time workers solely on the grounds that they work part-time, unless such difference in treatment is justified by objective reasons.
Objective justification for differential treatment between part-time and full-time workers cannot be derived merely from the fact that such treatment is laid down in a general and abstract provision of national law, such as a statute or a collective agreement. Rather, it must be based on specific and concrete circumstances characterising the working conditions in question, within the context in which they arise, and must rely on objective and transparent criteria. These criteria must allow verification that:
1. the difference corresponds to a genuine need,
2. it is appropriate to achieve the objective pursued,
3. it is necessary for that purpose.
Such justification may stem from the specific nature and characteristics of the tasks performed, or from the pursuit of a legitimate objective of the Member State’s social policy.
In interpreting clause 4 of the Framework Agreement, it is essential not to lose sight of its underlying objectives, namely the promotion of part-time employment and the elimination of discrimination between part-time and full-time workers. The prohibition of discrimination enshrined therein constitutes a specific expression of the general principle of equality, which forms part of the fundamental principles of Union law.[17]
Accordingly, clause 4 (1) of the Framework Agreement must be understood as an embodiment of a principle of EU social law, which cannot be interpreted restrictively. It is incumbent upon the competent national authorities, when determining both the individual components of remuneration and their respective levels, to apply the principle of non-discrimination laid down in Art. 4 of the Framework Agreement. In doing so, they may, where appropriate, consider the principle of proportionality.[18]
In this context, the CJEU stated that where threshold values for entitlement to additional remuneration are set identically for both full-time and part-time workers, this may result in indirect discrimination against part-time workers. Such workers would be required to work more hours beyond their contractual working time to qualify for the same increased remuneration as their full-time counterparts. This differential treatment is not objectively justified unless the employer demonstrates that the identical thresholds are necessary and appropriate to achieve a legitimate aim. In the case at hand, no evidence was submitted to support such justification.
On that basis, the CJEU held that clause 4 (1) of the Framework Agreement must be interpreted as meaning that national legislation which makes the payment of additional remuneration conditional, for both part-time and comparable full-time workers, upon exceeding the same number of hours worked in the performance of a given activity— such as a pilot’s flight duty—constitutes “less favourable” treatment of part-time workers within the meaning of that provision.
In other words, clause 4 (1) of the Framework Agreement on part-time work precludes a practice whereby the thresholds for entitlement to increased remuneration for overtime work are set identically for full-time and part-time workers, without considering the differences in their respective working arrangements.
1.2.2. Joined Cases IK and CM v fH Kuratorium für Dialyse und Nierentransplantation e.V.
(C-184/22 and C-185/22)
The CJEU followed the interpretation provided in the Lufthansa case and in the Kuratorium case (joined cases C-184/22 and 185/22). Two part-time workers performing work as nurses claimed extra pay for work exceeding their agreed working hours. According to national collective agreement a part-time carer assistant received a salary supplement for overtime only in respect of hours worked in excess of the normal weekly working time of a person working as a full-time care assistant, The claimants argued that by not paying them any additional pay in respect of overtime worked in excess of the working hours agreed in their employment contract and by failing to enter in their time-savings accounts any time credit corresponding to the additional pay payable to them, the employer treated them less favourably than full-time employees on the grounds that they worked part-time. In addition, they claimed to have suffered indirect discrimination on grounds of sex insofar as the employer employed predominantly women on a part-time basis. The questions raised by the national court concerned the prohibition of discrimination based on the grounds of part-time work according to clause 4 (1) of the Framework Agreement and possible indirect discrimination based on sex prohibited by Art. 4 of the Gender Equality Directive.
As regards the prohibition of discrimination against part-time workers stipulated by clause 4 of the Framework Agreement the CJEU repeated that this provision “must be interpreted as articulating a principle of EU social law which cannot be interpreted restrictively.”[19] Then it observed that “a person working as part-time carer must work the same number of hours as a person working as a full-time care assistant in order to receive the additional pay for overtime, regardless of the normal working hours agreed individually in the employment contract of that person working as a part-time care assistant, with the result that he or she cannot reach the number of hours of work required, or that he or she has a significantly lower probability of doing so than a person working as a full-time care assistant, the number of hours of work required in order to receive that additional pay.”[20]
In fact, the remuneration for overtime appeared to be equal for persons working as part-time care assistants and for persons working as full-time care assistants because both part-time workers and full-time workers were entitled to additional pay only beyond the threshold of 38.5 hours per week. However, the CJEU noted that “the setting of that uniform threshold both for persons working as full-time care assistants and for persons working as part-time care assistants represents, for the latter, in view of the normal working time agreed in their contracts, a greater burden in so far as at least part of the hours worked in excess of that normal working time, although remunerated, does not give rise to entitlement to a supplement. Persons working as full-time care assistants receive an overtime supplement from the very first hour of work performed beyond the normal working hours applicable to them, that is to say, 38.5 hours per week, whereas persons working as part-time care assistants do not receive a supplement for working hours beyond the normal working hours agreed in their employment contracts but below the normal working hours fixed for persons working as full-time care assistants.”[21] The CJEU concluded that “in these circumstances part-time care assistants were treated unequally than full-time care assistants.”[22]
After finding less favourable treatment with part-time workers, the CJEU examined the existence of possible objective grounds justifying such treatment. According to settled case law concerning the prohibition of discrimination on the grounds of part-time work or on the grounds of fixed-term work, the objective grounds justifying less favourable treatment must be interpreted restrictively.[23]
The national court asked whether the objective of deterring employers from requiring workers to work overtime more than the individually agreed working hours for those workers. In the Court’s opinion, “the setting of a uniform threshold for part-time workers and full-time workers as regards the grant of overtime pay is not, in the case of part-time workers, capable of achieving the objective of deterring employers from requiring workers to work overtime.”[24]
In addition, the national court asked whether the objective of preventing full-time workers from being treated less favourably than part-time workers may constitute ‘objective grounds’ within the meaning of clause 4 (1) of the Framework Agreement. The CJEU refused the premise that obliging an employer who requires a part-time worker to work overtime to pay that worker additional pay as from the first hour of work performed by that worker in excess of the working hours individually agreed in his or her employment contract, as it does for full-time workers, would give rise to less favourable treatment of the latter workers. In the Court’s opinion, “in that situation, full-time workers would, as regards overtime, be treated in the same way as part-time workers, subject to the application of the principle pro rata temporis.”[25] Finally, the CJEU did not find the existence of objective grounds justifying different treatment between part-time workers and full-time workers.[26]
As has been mentioned, the second question raised by the national court concerned possible indirect discrimination based on sex according to Directive 2006/54 (Gender Equality Directive) and the interpretation of the equal pay for men and women for equal work or for work of equal value provided for by Art. 157 (2) of the TFEU. The CJEU dealt with a question whether national legislation (collective agreement) placed part-time workers at a disadvantage as compared with full-time workers in that, for the hours which they worked in excess of the working time agreed in their employment contracts without exceeding the normal working hours fixed for full-time workers (38.5 hours a week), they were not entitled to additional pay, whereas the latter workers received additional pay from the first hour worked in excess of those 38.5 hours per week.[27] According to evidence provided by the national court female workers had a majority in both groups of workers employed by the employer, part-time workers and full-time workers.[28] The CJEU left to national court to assess to what extent statistics adduced before it concerning the situation of the workforce are valid and whether they can be taken into account.[29]
In the opinion of the case, the Advocate General observed that the definition of indirect discrimination “adopts a qualitative approach according to which it is important to ascertain whether the national measure at issue is liable, by its very nature, to put persons of one sex ‘at a particular disadvantage’ compared with persons of the other sex. It follows that the national court must examine all the relevant factors of a qualitative nature in order to determine whether such a disadvantage exists, taking into consideration all the workers subject to the national legislation on which the difference in treatment in question is based.”[30] Finally, the CJEU interpreted Art. 157 of the TFEU and Art. 2(1)(b) and the first par. of Art. 4 of the Gender Equality Directive “as meaning, first, that national legislation under which the payment of additional pay is provided, for part-time workers, only for hours worked in excess of the normal working hours laid down for full-time workers in a comparable situation, constitutes indirect discrimination on grounds of sex if it is established that that legislation disadvantages a significantly higher proportion of women than men without it also being necessary for the group of workers which is not placed at a disadvantage by that legislation, namely full-time workers, to be made up of a considerably higher number of men than women and, secondly, that such discrimination cannot be justified by the pursuit of the objective of deterring the employer from requiring workers to work overtime in excess of the hours individually agreed in their employment contracts and of the objective of preventing full-time workers from being treated less favourably than part-time workers.”[31]
The interpretation of the prohibition of discrimination as regards remuneration of part-time workers for “overtime” work provided by the CJEU will have a significant impact on the national law of many EU Member States, including the Czech Republic. First, the CJEU takes into consideration the specific position of part-time workers. Second, part-time work itself is understood as a particular ground of discrimination. Thus, less favourable treatment of part-time workers is not interpreted in connection with other prohibited grounds of discrimination, like sex.
2. Regulation of Part-time Work in the National Law of the Czech Republic
2.1. General Insight
Overtime work constitutes a specific regime of work performance governed primarily by Sections 78(1)(i), 93, and 114 of the Czech Labour Code.[32] In the case of employees who have agreed to a shorter working time pursuant to Section 80 of the Labour Code, the assessment of overtime work requires careful differentiation between various modes of work performance.
Unlike employees with full-time contracts, who may be assigned overtime work unilaterally, employees with shorter working hours cannot be required to perform overtime work without their consent. Overtime work in such a case is permissible only based on mutual agreement with the employer, which may be concluded in writing, orally, or even implicitly.
Czech case law acknowledges that the employer’s consent may be inferred from conduct, such as accepting the work, utilizing its results, or approving leave on a day not scheduled as a working day.[33] Mere presence of the employee at the workplace outside the agreed working hours does not establish a claim to overtime pay. It must be demonstrated that the employer intended to accept such work as overtime, which may be evidenced by attendance records, approval of leave, or use of the employee’s work output.
Overtime work is permissible only exceptionally,[34] and its scope is limited to a maximum of 8 hours per week and 150 hours per calendar year, with any additional overtime requiring a specific agreement.
Special attention must be paid to professions where work performance is difficult to measure in time, such as scientific or creative activities. In such cases, determining the occurrence of overtime work may be challenging. Nevertheless, even in these professions, the entitlement to overtime pay cannot be categorically excluded if the statutory conditions are met and the employer’s consent is proven.
It is now necessary to highlight a key provision concerning overtime work performed by employees with an agreed shorter working time. “An employee with an agreed shorter working time may perform work beyond the scope of their contractual working hours. However, overtime work within the meaning of the Labour Code arises only when the performance of work exceeds the statutory weekly working time, which is generally 40 hours per week.”[35] Work performed beyond the agreed shorter working time but not exceeding the statutory weekly limit does not qualify as overtime work and entitles the employee only to the basic wage, without the statutory extra pay under Section 114(1) of the Labour Code (“private sector”) or Section 127 of the Labour Code (“public sector”).
We are of the view that this legal regulation is inconsistent with the conclusions of the CJEU. Considering the interpretation provided by the CJEU, overtime work in the case of employees with agreed shorter working hours should be understood as work performed (with the employer’s consent) beyond the scope of those agreed reduced hours.
In the context of the topic, the Czech legal regulation concerning so-called excess hours (“přespočetné hodiny”)[36] for pedagogical staff also merits attention. Section 2(3) and (4) of Act No. 563/2004 Coll., on Pedagogical Staff, as amended, introduces the legal framework for assigning direct pedagogical activities beyond the standard scope of duties. According to section 23 (3), the head of a school or a social services facility may mandate a pedagogical employee to perform “direct pedagogical work exceeding the prescribed weekly scope”, up to a maximum of four hours per week. Any additional hours beyond this statutory limit may only be assigned based on mutual agreement between the employer and the employee.
Subsection (4) further clarifies the legal classification of such activities. It stipulates that direct pedagogical work performed under subsection (3) shall be considered as exceeding the prescribed scope even in cases where the employee fails to meet the weekly schedule of direct pedagogical hours due to engaging in other activities deemed as work performance under labour law.
Importantly, the statute draws “a distinction between full-time and part-time pedagogical staff.” For employees with reduced working hours, excess pedagogical activity is defined as any direct pedagogical work exceeding the weekly scope corresponding to their contracted working time. The law explicitly prohibits the employer from unilaterally imposing such excess hours on part-time pedagogical staff. It is therefore evident that “this legal provision introduces distinctions between pedagogical staff with a standard weekly working time and those employed under reduced working hours,” without being justified by objective grounds. We therefore draw attention to the fact that this legal provision may also give rise to a conflict with clause 4(1) of the Framework Agreement and the case-law of the CJEU.
Moreover, pursuant to Section 132 of the Labour Code, a pedagogical employee (of a public school) is entitled to a supplementary payment amounting to twice the average hourly wage for each hour of direct teaching activity performed in excess of the scope of hours determined by the school principal. The following text shall therefore also apply to the remuneration of so-called excess hours in the case of pedagogical staff.
2.2. Remuneration of Overtime Work
in the Context of Part-Time Employment under Czech Labour Law
Remuneration for dependent work constitutes one of the fundamental issues of labour law. It is deeply rooted in legal tradition[37], and the relevant legal regulation should aim to preserve several essential functions of remuneration, such as its subsistence and motivational roles.[38] In terms of remuneration, overtime work (i.e. work exceeding the statutory weekly working time) entitles the employee in “private sector” to wages and an extra pay of at least 25% of the average earnings, unless the employer and employee agree on compensatory time off[39] or, in “public sector” to salary and an extra pay of 25% of the average hourly earnings, or 50% if the overtime occurs during uninterrupted weekly rest unless the employer and employee agree on compensatory time off.[40] Regarding the “remuneration” for overtime work, specifically overtime extra pay, Czech legislation provides that such an extra pay is due to employees employed under both full-time and part-time employment contracts, but only “for work performed more than the statutory weekly working time.” It is thus evident—and consistent with the above-mentioned interpretation—that the legal framework envisages entitlement to overtime extra pay only for work exceeding the statutory weekly working time, regardless of whether the employee is employed on a full-time basis or under a reduced working time arrangement pursuant to an agreement with the employer.
In the Czech legal context, overtime work has been and continues to be assessed according to a quasi-objective criterion, whereby even for employees working under an agreed reduced working time, overtime and its financial compensation (see below) only arise once the threshold of the statutory weekly working time—uniform for all employees—has been exceeded.
This may (appear to) suggest that there is no differential treatment, as the entitlement to the overtime extra pay arises for both full-time and part-time employees only after the same number of hours worked. However, considering the recent case law of the CJEU, it must be concluded that where an employer grants overtime extra pay to two employees performing the same or similar work only for work exceeding the statutory weekly working time, without objective justification based on specific and concrete circumstances, the part-time employee may be treated less favourably.
In our view, there is a direct conflict between the applicable Czech legal framework and European Union law, as interpreted by the case law of the CJEU, which may have significant implications. For instance, we believe that this discrepancy opens the possibility for the initiation of infringement proceedings against the Czech Republic.
Furthermore, in light of the fact that the CJEU has recognised the direct effect of clause 4(1) of the Framework Agreement, it appears that there is scope for employees—both in the public and private sectors—to bring claims against their employers for the payment of overtime extra pay for work performed beyond their agreed working hours, even where such work does not exceed the statutory weekly working time. We are of the opinion that, in cases where an employer grants overtime compensation to two employees performing identical or similar work, but only for work carried out beyond the established weekly working hours, and where no objective justification based on specific and concrete circumstances exists for such differential treatment, an employee engaged under a part-time employment contract may be subject to less favourable treatment. Such an employee may be entitled to seek judicial redress and claim the outstanding remuneration.
As mentioned above, this conclusion also applies to the remuneration of so-called excess hours in the case of pedagogical staff.
Conclusions
As has been mentioned throughout the article, the Czech national law does not explicitly prohibit discrimination against employees with reduced working hours. The right to equal treatment between part-time workers and comparable full-time workers may be derived from Section 16(1) of the Labour Code, stipulating an exhaustive enumeration of prohibited grounds of discrimination. With respect to the direct effect of clause 4(1) of the Framework Agreements, the worker may, under certain circumstances, claim the right to equal treatment, including the right not to be discriminated with respect to conditions of remuneration by an employee before the national court.
The Czech legal framework, insofar as it concerns the performance of overtime work by employees with agreed shorter working hours and its remuneration, is, in our view, inconsistent with the interpretation of clause 4(1) of the Framework Agreement by the CJEU. A comparable inconsistency was observed in the evaluation of additional teaching hours (“extra hours”) performed by pedagogical staff, particularly in relation to the entitlement and calculation of the corresponding remuneration premium. This discrepancy may, in our opinion, give rise to potential legal disputes concerning claims for supplementary payment of overtime compensation for work performed beyond the agreed reduced working hours.
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[1] For more details, see e.g. R. Blanpain, European Labour Law, Alphen aan den Rijn, 2014, pp. 910-915.
[2] Clause 1 of the Framework Agreement.
[3] Clause 2 (1) of the Framework Agreement. According to clause 2 (2), Member States, after consultation with the social partners in accordance with national law, collective agreements or practice, and/or the social partners at the appropriate level in conformity with national industrial relations practice may, for objective reasons, exclude wholly or partly from the terms of this Agreement part-time workers who work on a casual basis. Such exclusions should be reviewed periodically to establish if the objective reasons for making them remain valid.
[4] Clause 3 (1) of the Framework Agreement.
[5] P. Watson, EU Social and Employment Law; Policy and Practice in an Enlarged Europe, Oxford, 2009, pp. 278-279.
[6] Clause 3 (2) of the Framework Agreement. Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.
[7] See judgment of the ECJ of 13 May 1986 in case Kaufhaus GmbH v Karin Weber von Hartz (C-170/84), para 29.
[8] See e.g. the judgment of the ECJ of 17 May 1990 in case Douglas Harvey Barber v Guardian Royal Exchange Assurance Group (262/88), para 20 and 30.
[9] Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
[10] As regards conditions of direct effect of EU directives, see R. Král, On the Erosion of the Limits of the Direct Effect of EU Directives, “The Lawyer Quarterly” 2024, issue 1, pp 30-38.
[11] According to clause 4 (3), the arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice. According to clause 4 (4), Member States, after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically, having regard to the principle of non-discrimination as expressed in clause 4 (1).
[12] M.J. Hotvedt, Substantive Equality of Part-time Work; The Evolving Protection of the Part-time Work Directive, “European Labour Law Journal” 2025, issue 3, p. 544.
[13] Ibidem.
[14] See judgment of the ECJ of 15 December 1994 in case Stadt Lengerich v Angelika Helmig and Waltraud Schmidt v Deutsche Angestellten-Krankenkasse and Elke Herzog v Arbeiter-Samariter-Bund Landverband Hamburg eV and Dagmar Lange v Bundesknappschaft Bochum and Angelika Kussfeld v Firma Detlef Bogdol GmbH and Ursula Ludewig v Kreis Segeberg (C-399/92), para 27.
[15] This approach was criticised by a number of experts as being unable to see the issue affecting the part-time workers at all. See C. Barnard, EU Employment law, 4th ed. Oxford, 2012, p. 430.
[16] Judgment of the ECJ of 6 December 2007 in case Ursula Voß v Land Berlin (C-300/06), para 39.
[17] Cf. the judgment of the CJEU of 5 May 2022, Universiteit Antwerpen and Others, Case C‑265/20, para 41 and 42
[18] Cf. para 42.
[19] Judgment of the CJEU of 29 July 2024 in joined cases IK and CM v fH Kuratorium für Dialyse und Nierentransplantation e.V. (C-184/22 and C-185/22), para 31.
[20] Ibidem para 40.
[21] Ibidem, para 41.
[22] Ibidem, para 42.
[23] As regards the prohibition of discrimination on the grounds of fixed-term work, see clause 4 (1) of the Framework Agreement on Fixed-term Work annexed to the Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP.
[24] Judgment of the CJEU of 29 July 2024 in joined cases IK and CM v fH Kuratorium für Dialyse und Nierentransplantation e.V. (C-184/22 and C-185/22), para 50.
[25] Ibidem, para 51.
[26] Ibidem, para 53.
[27] The collective agreement applying to the remuneration of the workers did not involve direct discrimination, since it applied without distinction to male and female workers.
[28] It should be mentioned that the employer in the main proceedings employed more than 5,000 workers in all its positions, 76.96% of whom were women. Of all those workers, 52.78% work part-time. Among part-time workers, 84.74% were female and 15.26% were male, and within the group of full-time workers, 68.20% were female and 31.80% were male.
[29] As regards statistical evidence requirements in proving indirect discrimination under EU law, see S. Hungler, Indirect Discrimination and the Gendered Realities of Part-time Work;Review of the Joined Cases IK (C-184/22) and CM (C-185/22) v KfH Kuratorium für Dialyse und Nierentransplantation eV, EU:C:2022:1011, “European Labour Law Journal“ 2025 issue 2, pp. 195-211,
[30] Opinion of Advocate General Rantos delivered on 16 November 2023. IK and CM v KfH Kuratorium für Dialyse und Nierentransplantation e.V., para 36-40.
[31] Judgment of the CJEU of 29 July 2024 in joined cases IK and CM v fH Kuratorium für Dialyse und Nierentransplantation e.V. (C-184/22 and C-185/22), para 73.
[32] Act No. 262/2006 Coll., as amended (hereinafter “Labour Code”).
[33] See the judgment of the Czech Supreme Court of 27 October 2021, Case No. 21 Cdo 2141/2021
[34] Section 93(1) of the Labour Code
[35] Section 79(1) of the Labour Code
[36] Cf. the so-called excess hours under Czech legal framework M. Smejkal, Pracovní poměr pedagogickcých pracovníků. 1st edition. Praha, 2023, pp. 134-136.
[37] H. Úlehlová, Odměňování. In: Hůrka, P. et al. Pracovní právo. 5th ed. Plzeň, 2023, p. 208 et seq.
[38] For the functions of wages, see D. Hrabcová. Odměňování práce. In: Galvas, M. et al. Pracovní právo. 2nd, revised and expanded edition. Brno, 2015, pp. 486–489.
[39] Section 114 of the Labour Code.
[40] Section 127 (1) and (2) of the Labour Code.
