OGH on the calculation of number of employees for parental part-time work

Nov 10, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) has dealt with the issue of how occasional employees are to be treated when calculating the number of employees in connection with parental part-time work.

Pursuant to Section 15h para 1 and para 3 of the Maternity Protection Act (Mutterschutzgesetz, MSchG), an entitlement to parental part-time work exists only in companies that regularly employ more than 20 employees. In companies with seasonal fluctuations, there must have been an average of more than 20 employees in the year prior to the start of parental part-time work.

In the present case, the plaintiff worked as an office employee. The employer's operation consisted of carrying out doping testing in sport and related prevention work, among other things. The company employed 14 "regular employees" and 115 occasional employees, who carried out the testing, on the basis of framework contracts. The frequency of the deployment of the occasional employees varied and depended on their main occupation.

The plaintiff applied for parental part-time work, but her employer refused because in his opinion there were not more than 20 regular employees working in the company. Thus, the employer had too few employees who could take over the plaintiff's tasks. The occasional employees worked an average of six days per month and could also refuse assignments beyond that. Because there were fewer sporting events and speeches due to the pandemic, there were also fewer occasional employees. They were therefore not regularly employed in the company.

The OGH took a different view:

First of all, the law does not differentiate according to the type of employee. It therefore depends solely on the "number of employees". Similarly, it is not only a question of the date, but also of whether more than 20 employees are regularly employed in the company at the time of the commencement of parental part-time work. It is also not a question of whether individual employees are regularly employed, but rather the regular numerical strength of the workforce.

Therefore, occasional employees are to be taken into account in this assessment.

OGH 9 ObA 76/21y (02.09.2021)