1. Facts of the case
The employee had been working for the employer since June 2015. The collective agreement for employees in commerce was applicable. In an annex to the employment contract it was stated that the basic salary should include 15 to 25 hours of overtime per month depending on the employee's classification.
The plaintiff took parental leave from March 2020 and reduced his working hours accordingly. When determining the new salary, the employer deducted the overtime allowance on a pro rata basis and justified this by stating that the employee was exempt from the obligation to work overtime during parental leave pursuant to Section 19 d (8) AZG.
The employee claimed, among other things, the difference in remuneration between March 2020 and March 2021 resulting from the reduction of the overtime allowance. Furthermore, he argued that the reduction in remuneration during the parental part-time leave was not justified because he was receiving an all-in salary.
2. Legal opinion of the lower courts
In the lack of an obligation to pay overtime and other deviating agreements between the parties, the court of first instance declared that the claim for aliquot payment for overtime and extra hours did not exist.
The Court of Appeal confirmed this by stating that the claim to lump-sum overtime payments was suspended for the period in which the employee made use of the parental part-time work (OGH 9 ObA 30/15z). This was only to be granted in the case of actual overtime work. This principle is applicable to all-in contracts if the compensation for overtime is available to a determinable extent as part of the total salary and the share of the overtime compensation is stated in a way that can be identified. In the present case, this was sufficiently regulated by the annex to the employment contract.
3. Supreme Court Decision OGH 9 ObA 83/22d
The Supreme Court rejected the plaintiff's appeal, but explained its consideration. Accordingly, in the case of all-in contracts, that part of the salary which was due in excess of the basic salary for overtime and extra hours would be suspended during the period of parental leave. Actual overtime or extra hours worked are to be taken into account by means of individual calculation.
The remuneration agreement including the overtime agreement was concluded between the parties on the assumption that overtime could actually be carried out. Since the obligation to work overtime no longer exists during part-time parental leave, it can no longer be assumed that overtime will be worked.
The absence of a reservation of revocation is not a sine qua non for the reduction of the overtime allowance of a parental part-time employee. Furthermore, the annex to the employment contract specified the number of overtime and extra hours which are covered by the salary as a lump sum. Since the overtime benefits are precisely defined, the lack of transparency of the all-in agreement objected to by the employee does not prevent the lump-sum overtime allowance from being suspended.
4. Conclusion
The Supreme Court holds that the employee is entitled to the entire fixed salary, reduced by the included overtime allowance, in addition to the minimum wage under the collective agreement during parental part-time work.
The suspension of the lump sum for overtime and extra hours is also applicable to all-in contracts. The precondition is that the number of overtime hours, which are compensated at a flat rate with the respective salary, can be specifically identified from the employment contract. The remuneration for the overtime hours must therefore be present to a determinable extent as part of the total remuneration.