In practice, many Dutch collective labour agreements (CLAs) distinguish between “additional hours” (meerwerk) and “overtime” (overwerk). The Court of Justice of the European Union (the Court) recently ruled that this distinction conflicts with EU law. What does this mean for employers and employees?
Additional hours and overtime
Part-time employees can work more hours than agreed in their employment contract. As long as they remain below the full-time norm, this is called “additional hours”. Only once the full-time norm is exceeded does it become “overtime”. The concept of overtime does not appear in Dutch statute, but mainly in CLAs, where it refers to hours above the full-time norm that are additionally compensated. For part-timers, additional hours were often not compensated at a premium, on the reasoning that this would create unequal situations compared to full-timers.
The Dutch Private Security CLA (cao Particuliere Beveiliging), for example, also treats these concepts differently: no premium applies to additional hours, while overtime is compensated at a premium. The Court has now put an end to this distinction: it is no longer permitted.
The ruling of 29 July 2024
In the KfH Kuratorium für Dialyse und Nierentransplantation ruling (ECLI:EU:C:2024:637), the Court ruled that the distinction between additional hours and overtime discriminates against part-time employees. In this case, two nurses in Germany with a 24-hour-a-week contract only received an overtime premium once they worked more than 38.5 hours a week, the applicable full-time norm. As a result, they had to work considerably more hours before qualifying for a premium at all. This constituted indirect discrimination, both on the basis of working hours and on the basis of sex, since part-time work is, in practice, mostly performed by women.
The Court therefore classified all extra hours, even those on top of a part-time contract but still below the applicable full-time norm, as overtime that must be compensated equally. This means CLA provisions that compensate additional hours and overtime differently conflict with EU law where no objective justification exists for the difference. Since no such justification existed in this case, the provision was void.
What does this mean for Dutch employers?
Many Dutch CLAs draw a comparable distinction. Following this ruling, these provisions are now legally vulnerable. Employees can claim missed premiums for additional hours retroactively, up to five years back. Social partners are aware of this ruling, but not all have yet agreed on adjustments to the relevant provisions. We therefore expect CLA amendments in the coming period.
What should you do as an employer now?
Employers would do well to critically review their compensation structures and start preparing for changes to their CLA. It is also advisable to examine whether part-time work within your organisation is disproportionately performed by women, as this can indicate indirect discrimination. Consider compensating all extra hours worked, including so-called “additional hours”, equally, regardless of contracted hours.
Do you have questions about the consequences of this ruling for your organisation, or how best to prepare as an employer for possible changes? Please feel free to contact one of our employment lawyers.
