OGH on Bus Drivers’ Night Pay

Jun 28, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that bus drivers have a right to a night work bonus even if their night work is less than one hour.

The plaintiff was in employment with the defendant as a bus driver for 20 hours a week. She started work at 4.42 a.m. The employment relationship was governed by the Austrian Collective Agreement for employees of private bus companies.

The Collective Agreement contains the following provision in Item 2(k) of Section III ‘Working time:

‘Night work for driving personnel:

[...] 2. Night work shall be defined as any activity which exceeds the period of one hour between 12.00 midnight and 5.00 a.m. [...]’

The wage provisions, regulated by Item II of the Collective Agreement, include the following under b):

‘Night hours between midnight and 5 a.m. will be paid at 100 percent of the federal Collective Agreement for occasional and regular transport.’

The plaintiff claimed to receive the night surcharge amounting to EUR 500. In accordance with the wage provisions of the Collective Agreement, she was entitled to a night work bonus of 100% of the gross hourly wage for every 18 minutes of night work. The defendant’s argument was that the plaintiff’s night work was below the minimum threshold of one hour in accordance with Section III. 2(k).

The court of first instance granted the claim and the court of appeal upheld the decision. The OGH agreed with the lower courts.

Section III of the Collective Agreement is a regulation that applies only to working time and has no bearing on pay. The wage regulations make no reference to Section III of the Collective Agreement. They are a completely independent provision. Consequently, this provision must also be interpreted independently. As it does not itself provide for a minimum duration of the allowance, the allowances under point 2.b. are due for services in occasional and regular transport between 12.00 midnight and 5.00 a.m. irrespective of a minimum duration of the service provided during this period.

OGH 9 ObA 86/23x (24 April 2024)