The Court of Justice of the EU recently decided in a preliminary ruling that a collective bargaining agreement (CBA) which provides for a lower supplementary pay for regular night work than – for irregular nightwork, is not implementing the Working Time Directive and therefore does not fall within the scope of the EU Charter of fundamental rights.
The German Federal Labour Court posed preliminary questions to the CJEU concerning the compatibility of a company-level collective agreement between Coca-Cola and a trade union with the Working Time Directive and the EU Charter of Fundamental Rights.
The collective agreement established a higher supplementary pay for irregular night work than for regular night work, the underlying reasoning being firstly that these irregular situations generally involved additional work for employees that usually kept to day work. In addition, Coca Cola reasoned that regular night work already gave rise to an entitlement to additional benefits, particularly in terms of leave. With the supplementary allowance for irregular night work, they intended to both compensate the difficulty of the work and to deter the employer from too often resorting to it and ‘spontaneously encroaching on its employees’ leisure time and social lives’.
Two employees, however, invoked the principle of equal treatment before the law. They maintained that employees who regularly preform night work are exposed to significantly greater health risks and disruptions to their social environment than those who perform night work on an irregular basis. According to them, to conclude a collective agreement that awards supplementary pay for inconveniences regarding night work to irregular night workers, but not regular, creates a situation of unequal treatment, contrary to German law as well as the principle of equality in article 20 of the EU Charter.