Does the reduction of all-in contracts during parental leave constitute discrimination?

The Supreme Court (OGH) has previously held that overtime flat rates can be abolished during parental leave. All-in salaries can also be reduced, provided that the remuneration portion for overtime and additional hours can be mathematically separated. A works council has now attempted to challenge this case law, arguing that a reduction in all-in salaries constitutes discrimination.

He claimed a declaration that an all-in salary is reduced only by the extent of the hourly reduction during parental leave or a reduction in working hours due to the Maternity Protection Act or paternity leave. Overtime or additional hours covered by the salary should also be prorated and not completely suspended. A deviation from previous case law was justified by the fact that a salary reduction by an overtime component during parental leave ultimately constitutes discrimination against part-time employees or discrimination on the grounds of sex. Even though employees are not obliged to work overtime during parental leave, employees of the defendant company, due to their duties and positions, are in practice unable to refuse overtime.

The Supreme Court rejected these arguments as unfounded. Employees on parental leave are not obliged to perform work beyond their agreed working hours (overtime). Therefore, if no overtime is worked over a longer period, the entitlement to an overtime flat-rate also remains suspended for this period. The conclusion of such an agreement is based on the assumption that overtime will actually be performed. This mutual expectation (and the "synallagma between work performance and remuneration") would be significantly disturbed if the employer had to continue paying overtime flat-rates or unconditional all-in remuneration, even though the employer cannot even demand the performance of additional hours.

In this specific case, this means the following: On the one hand, it was not established that the employees were actually unable to refuse overtime, as claimed by the works council. On the other hand, additional and overtime hours performed during parental leave would have to be compensated on an individual basis anyway. The Supreme Court therefore could not identify any objectively unjustified unequal treatment of employees on parental leave compared to comparable full-time employees or men. For these reasons, the Supreme Court dismissed the extraordinary appeal filed by the plaintiff works council. Therefore, the previous case law regarding the suspension of the overtime flat rate during parental leave and the permissible reduction of an all-in salary by the proportion attributable to additional work remains in place.

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