Share for overtime and extra hours in all-in salary is suspended during parental part-time leave
Decision of the Vienna Higher Regional Court of 17.12.2021, 9 Ra 92/21x - Share for overtime and extra hours in all-in salary rests during parental part-time leave
The decision of the Supreme Court is pending on the following issue, which has been decided by the first and second instance so far as follows:
The plaintiff has been employed as a bank employee at the defendant company with 38.5 hours per week since 2016. He most recently received an all-in salary of approximately € 8,000 gross and, according to his employment contract, was obliged to work an average of 25 hours of overtime and extra hours per month. In May 2020, the plaintiff started a part-time parental leave with 30.75 hours. The defendant then reduced his salary to approximately € 5,200 gross per month.
The plaintiff was of the opinion that the salary had been calculated incorrectly. The share of the all-in salary attributable to the overtime and extra hours could not be determined, which is why the all-in salary should only be reduced proportionately to the extent of the reduction in hours. According to the contrary opinion of the first and second court, the number of 25 additional hours and overtime hours mentioned in the employment contract is a suitable starting point for answering the question of which additional services are to be compensated by the all-in salary as a lump sum, which is why the all-in salary is to be reduced by the remuneration for the 25 additional hours and overtime hours to be worked on average.
The appeal was allowed by the OLG because a decision of the OGH, which specifically refers to the treatment of all-in agreements during parental part-time work, is not yet available.
Unfortunately, the decision is not publicly available!