The Bundesarbeitsgericht (BAG, Federal Labour Court) has rejected the uniform collectively agreed threshold of more than 40 hours per week for overtime premiums for part-time employees (BAG, judgment of 26 August 2026 – 5 AZR 122/25 (case no.)). The defendant employer’s appeal on points of law was nevertheless successful because the Landesarbeitsgericht (Regional Labour Court) had not sufficiently established the facts material to the decision. The appellate judgment was therefore set aside in part, and the case was remitted to the Landesarbeitsgericht Berlin-Brandenburg (Berlin-Brandenburg Regional Labour Court) to the extent that the judgment was set aside.
Dispute over overtime premiums in the retail sector
Part-time employment since 2000
The claimant has worked part-time in one of the defendant’s retail stores in Frankfurt (Oder) since March 2000. The parties dispute whether her contractual working week is 12.02 hours or twelve hours.
Because both parties are bound by collective bargaining agreements, the Manteltarifvertrag für den Einzelhandel im Land Brandenburg (Framework Collective Agreement for the Retail Sector in the State of Brandenburg) of 30 October 1997, as amended by the supplementary collective agreement of 7 January 2014, applies to the employment relationship. The collective agreement stipulates regular weekly working hours of 38 hours. Subject to the conditions set out in the collective agreement, this may be extended to up to 40 hours by a voluntary works agreement or an individual contractual arrangement.
Working time exceeding the regular hours under the collective agreement, up to a working week of 40 hours, must be remunerated additionally without a premium. As a rule, the collective agreement provides for a 25 per cent premium for overtime. If overtime exceeds 18 hours per month, the premium for the hours beyond that amount increases by a further 15 percentage points to a total of 40 per cent.
Claims for several months in 2019
In 2019, the claimant’s collectively agreed hourly wage was EUR 15.39 gross. According to the payslips, she worked additional hours in January and from March to June 2019 for which the defendant did not pay any overtime premiums. In January, April and June 2019, she received night-work premiums.
By letter dated 20 March 2019, the claimant demanded overtime premiums of 25 per cent retroactively from 20 December 2018. The defendant rejected the claim on 7 June 2019.
At the appeal-on-points-of-law stage, the amount still at issue was EUR 240.89 gross plus interest at five percentage points above the base interest rate since 29 August 2019. The claimant calculated this amount on the basis of 62.61 overtime hours in January and from March to June 2019.
Diverging views on the collectively agreed premium threshold
The claimant’s position
In the claimant’s view, the overtime premium was payable as soon as her individually agreed weekly working hours were exceeded. In the alternative, she based her claim on § 612 Abs. 2 BGB (German Civil Code) in conjunction with § 4 TzBfG (German Part-Time and Fixed-Term Employment Act) and § 134 BGB.
The provision in the collective agreement disadvantaged part-time employees if the same qualifying threshold applied to them as to full-time employees. A premium therefore had to accrue from the first overtime hour qualifying for a premium. In the claimant’s view, this should also apply to hours worked during the night-work period defined by the collective agreement. She denied that the claim had lapsed under the exclusion period in the collective agreement.
The defendant’s position
By contrast, the defendant argued that the collective agreement provided for overtime premiums only for hours worked in excess of 40 hours per week. This threshold applied equally to full-time and part-time employees and was intended to compensate for the particular strain associated with working such hours. At the same time, it was intended to prevent excessive demands being placed on employees.
The claimant could not demand an additional overtime premium for hours for which night-work premiums had already been paid. In addition, some of the claims had lapsed under the exclusion period in the collective agreement.
Previous course of the proceedings
The Arbeitsgericht Frankfurt (Oder) (Frankfurt (Oder) Labour Court) dismissed the action by judgment of 28 November 2019 – 8 Ca 859/19 (case no.). On the claimant’s appeal, the Landesarbeitsgericht Berlin-Brandenburg upheld the action to the extent still relevant to the appeal on points of law. The appellate judgment of 16 May 2025 – 12 Sa 1016/24 (case no.) – was corrected by order of 12 June 2025. The Landesarbeitsgericht had granted the unsuccessful retail company leave to appeal on points of law.
At the appeal-on-points-of-law stage, Handelsverband Berlin-Brandenburg e. V. joined the proceedings as an intervening party in support of the defendant. In the alternative, in the event of an adverse decision, it applied for the proceedings to be stayed to allow collective bargaining negotiations with Vereinte Dienstleistungsgewerkschaft.
The Fifth Senate set aside the appellate judgment in part. The case has therefore not been concluded. The Landesarbeitsgericht must determine the specific amount of any claim and the costs of the appeal on points of law and the intervention in the further appellate proceedings.
Collective agreement generally requires more than 40 hours per week
No direct claim upon exceeding individual working hours
According to the Bundesarbeitsgericht’s interpretation, the framework collective agreement does not give part-time employees a direct entitlement to overtime premiums as soon as their individually agreed working hours are exceeded. The Landesarbeitsgericht had also erred in assuming that the qualifying threshold depended on the weekly working hours of between 38 and 40 hours applicable to full-time employees in each case.
Rather, the context of the collective agreement shows that overtime premiums are generally payable only if more than 40 hours are worked in a week. Although the collective agreement defines overtime, among other things, as working time exceeding the regular weekly hours under the collective agreement, it also expressly provides that working time up to 40 hours per week must be remunerated additionally without a premium.
History of the collective agreement confirms the 40-hour threshold
The court also took the development of the provisions in the collective agreements into account. The 1991 framework collective agreement still stipulated regular weekly working hours of 40 hours. Under that agreement, premiums accrued from the 41st hour worked in a week.
The 1994 framework collective agreement initially reduced regular working hours to 39 hours. At the same time, an extension to up to 40 hours remained possible, and working time up to that threshold was still to be remunerated without a premium. The Senate concluded from this that, although the parties to the collective agreement reduced regular weekly working hours, they intended to retain the 40-hour threshold for overtime premiums.
Disadvantage to part-time employees
Breach of § 4 Abs. 1 TzBfG
However, the interpretation of the collective agreement did not mean that the uniform premium threshold was valid in relation to part-time employees. Under § 4 Abs. 1 Satz 1 TzBfG, part-time employees may not be treated less favourably than comparable full-time employees because of their reduced working hours unless there is an objective justification for the difference in treatment.
In the case of remuneration or other divisible benefits with a monetary value, § 4 Abs. 1 Satz 2 TzBfG requires at least the proportion corresponding to the ratio of the employee’s individual working hours to those of a comparable full-time employee to be granted. In this way, the legislature implemented the EU Framework Agreement on Part-Time Work. The prohibition of less favourable treatment is also binding on the parties to collective agreements and, under § 22 TzBfG, cannot be waived by them.
Identical threshold places a greater burden on part-time employees
A uniform threshold of more than 40 hours per week requires part-time employees to work the same absolute number of hours as full-time employees. Part-time employees are therefore unable to reach this threshold or are significantly less likely to do so. Relative to their total working hours, they must perform a greater amount of additional work to receive the same remuneration component.
For the purposes of the assessment, each component of remuneration must be considered separately. It was therefore irrelevant whether the collective agreement granted part-time employees certain rights elsewhere. The provisions concerning contractual adjustments or time off in lieu did not alter the fact that the premium threshold was set uniformly for both groups of employees.
No objective justification for the unequal treatment
Health protection does not justify the threshold
Different treatment may be permissible if it meets a genuine need and is appropriate and necessary to achieve the objective pursued. The objective must also be pursued consistently and systematically. The difference in the scope of contractual working hours alone is insufficient.
According to the decision, the uniform threshold could not be justified by the objective of deterring employers from requiring additional work through higher costs. In the case of part-time employees, additional hours up to the 41st hour per week remained free of premiums and were therefore less costly for the employer than corresponding overtime worked by full-time employees.
Nor did the assumption of a particular strain above 40 hours per week justify the different treatment. Such a premium arrangement may, in principle, serve to protect health. However, the specific arrangement did not adequately take into account that exceeding individually agreed working hours may itself impose additional strain on part-time employees.
Individual circumstances remain unconsidered
Part-time work frequently serves to reconcile professional duties with family or personal commitments. These may include the following circumstances in particular:
- Part-time employees care for children, persons in need of care or persons with disabilities.
- Reduced working hours may facilitate participation in education and training programmes.
- The employee’s own illness or disability may be the reason for the reduced working hours.
A fixed threshold of 40 hours per week does not reflect the strain that may arise when additional working hours coincide with such non-work-related obligations. It was neither alleged nor apparent that exceeding individual working hours was typically less burdensome for part-time employees than additional work was for full-time employees.
The other provisions of the collective agreement did not alter this outcome. Provisions concerning the allocation of working time, time off in lieu, contractual adjustments or temporary instructions to work overtime did not prevent the disadvantage caused by the uniform premium threshold.
Other proposed justifications are unpersuasive
According to the Bundesarbeitsgericht, the provision could also not be justified by the following considerations:
- A proportional reduction of the premium threshold does not disadvantage full-time employees but implements the pro rata temporis principle.
- The loss of employees’ ability to use their free time as they choose affects part-time and full-time employees equally and therefore supports a threshold based on individual working hours.
- The financial effects of a proportional premium threshold or any resulting change in the overall financial scope of the collective agreement do not constitute an objective justification for the disadvantage.
- The possibility of requesting an adjustment to the employment contract where additional work is regularly performed neither prevents overtime nor compensates employees for performing it.
Legal consequence: Proportional reduction of the premium threshold
Provision in the collective agreement is partially void
Under § 134 BGB, the provision in the collective agreement is void to the extent that it also requires part-time employees to work more than 40 hours per week as a condition for receiving an overtime premium. The invalidity therefore does not affect the threshold applicable to full-time employees as such.
Under § 612 Abs. 2 BGB in conjunction with § 4 Abs. 1 Satz 2 TzBfG, part-time employees may claim the customary remuneration. The benchmark is the remuneration of comparable full-time employees, taking the respective working hours into account proportionally.
Calculation based on the ratio of working hours
The premium threshold may not merely be set at the same absolute number of hours above individual part-time working hours as it is above full-time working hours. Instead, the threshold applicable to full-time employees must be reduced in proportion to the respective working hours.
On the basis of the weekly working hours of 12.02 hours asserted by the claimant, her working-time ratio amounts to 31.63 per cent of a 38-hour week. Since the premium threshold for full-time employees is two hours above the regular working hours under the collective agreement, the proportional difference for the claimant is 0.63 hours. A potential entitlement to a premium therefore arises only if she exceeds her individual weekly working hours by more than 0.63 hours.
The Senate used the weekly working hours of 12.02 hours stated by the claimant because this results in a higher premium threshold in the defendant’s favour.
No stay for collective bargaining negotiations
In the alternative, the intervening party had applied for a stay to allow the parties to the collective agreement to correct the objectionable provision themselves. The Bundesarbeitsgericht rejected this application.
Where there is a breach of the prohibition of less favourable treatment of part-time employees, which is shaped by EU law, national courts must disapply the discriminatory provision. Until rules restoring equal treatment have been adopted, the disadvantaged group must be granted the same benefits as the favoured group on a proportional basis.
The threshold of 40 hours per week applicable to full-time employees serves as the reference framework that remains effective. A prior stay to conduct collective bargaining negotiations was therefore unnecessary. The Senate also found no grounds for a stay to refer the matter to the Bundesverfassungsgericht (Federal Constitutional Court) or for a request for a preliminary ruling from the Gerichtshof der Europäischen Union (Court of Justice of the European Union).
Outstanding findings in the further appellate proceedings
Weekly overtime must be specifically established
The Bundesarbeitsgericht was unable to make a final decision on the claim for payment. The Landesarbeitsgericht had not established how many additional hours the claimant had actually worked in each week of the period in dispute.
An aggregate assessment on a monthly basis is insufficient. The claimant must set out the number of hours she worked in each week and which hours attributable to the defendant exceeded the proportional premium threshold. The Landesarbeitsgericht must give her an opportunity to provide the corresponding details in support of her previous submissions.
Only the hourly remuneration under the collective agreement is to be used for the calculation. To the extent that the claimant had also included a supplementary allowance above the collectively agreed rate, the action has already been dismissed with final and binding effect.
Concurrent night-work premiums
The collective agreement stipulates that, where several premiums apply concurrently, only the highest premium is paid. According to the Bundesarbeitsgericht’s interpretation, this provision also covers overtime premiums.
The fact that the provision appears in the section concerning night work, Sunday work, public holiday work and late-opening work does not limit its scope to these types of premiums. The wording, context of the collective agreement and regulatory purpose support the inclusion of overtime premiums as well.
To the extent that the defendant contends that certain hours have already been remunerated with a night-work premium, it bears the burden of pleading and proof in this respect. In the further proceedings, the Landesarbeitsgericht must examine whether higher night-work premiums have already been paid for the same hours.
Collectively agreed exclusion period remains relevant
Letter of 20 March 2019 was sufficient in substance
Under § 18 Ziff. 1 (item 1) of the framework collective agreement, certain remuneration claims lapse unless they are asserted in writing within three months of the end of the relevant payroll period. This provision also covers overtime premiums.
In substance, the claimant’s letter of 20 March 2019 met the requirements. In it, she had clearly demanded overtime premiums of 25 per cent from the first additional hour. It was not necessary to state a specific amount because the defendant was aware of the additional hours accounted for and was able to calculate the amount claimed.
In principle, a single assertion of the claim could also cover similar claims arising subsequently. Since the additional hours were accounted for on an ongoing basis, it had to be apparent to the defendant that the claimant was also seeking corresponding premiums for the subsequent payroll periods.
Receipt of the letter has not yet been established
However, the decisive factor is not the dispatch of the letter but its receipt by the defendant. The claimant bears the burden of pleading and proof that the assertion of the claim entered the defendant’s sphere of control in good time and could be taken note of under ordinary circumstances.
To date, the claimant had merely referred to the presumed dispatch on 21 March 2019 and the usual postal delivery time. This establishes neither that the letter was actually received nor when it was received.
If receipt before 7 June 2019 cannot be established, the exclusion period would have been observed only for potential premiums from March to June 2019. With regard to claims from January 2019, the Landesarbeitsgericht must therefore re-examine whether and when the letter was received.
Significance of the decision for employment relationships
The judgment clarifies that a collectively agreed remuneration threshold stipulating the same absolute number of working hours for full-time and part-time employees may disadvantage part-time employees. The relevant threshold must then be adjusted proportionally to reflect the ratio of the individually agreed working hours to full-time work.
Whether and in what amount the claimant is actually entitled to overtime premiums remains unresolved. In particular, the Landesarbeitsgericht must establish the weekly amount of overtime, any night-work premiums already paid and compliance with the exclusion period under the collective agreement. Companies and employees wishing to clarify comparable issues concerning remuneration for overtime or the scope of exclusion periods under collective agreements can obtain employment law advice from MTR Legal.
