Four firefighters on standby employed according to the so-called RiB agreement, notified their employer - a civil protection union - that they wanted a higher employment rate according to section 25a of the Employment Protection Act. The employer subsequently employed 16 full-time firefighters without offering the firefighters on standby a higher employment rate. The parties agreed that the four firefighters had sufficient qualifications for the full-time vacancies. The Labour Court found that the four firefighters on standby were part-time employees within the meaning of section 25a of the Employment Protection Act and that the employer breached the provision by not offering them any of the vacant full-time jobs.
The issue in the case is how to define the term "part-time employee" under Section 25a of the Employment Protection Act. The provision stipulates that a part-time employee who has expressed an interest in a higher employment rate has a priority right to such employment, on condition that the employer's need for labour is met by employing the employee at a higher employment rate and that the employee has sufficient qualifications for the new duties. The aim of the provision is that full-time employment should be used, part-time employment should only be considered when it is justified by the needs of the employer or requested by the employee. Accordingly, when the business needs more employees, the employer should offer a part-time employee a higher employment rate, rather than recruiting new staff.
What constitutes a part-time employment must be determined on a case-by-case basis by a comparison with the applicable collective bargaining agreement or market practice. This case has made it clear that a part-time employee does not need to have a fixed employment rate in order to be entitled to the priority right. In fact, the firefighters' work obligations only covered time spent on standby, training and exercise. Therefore, the assessment means that an employee can be considered to be employed on a part-time basis even though the work obligation is not linked to any specific employment rate. The case shows that the employee's working hours is not a decisive factor in relation to the priority right, rather only whether the new employment actually has a higher employment rate than the current part-time work.
The four firefighters were employed by the Fire Brigades Association (FBA) as firefighters on standby under the collective bargaining agreement for firefighters on standby (RiB). All four firefighters had notified their employer that they wanted a higher rate of employment. According to section 25a of the Employment Protection Act, a part-time employee has a priority right to such employment, on condition that the employee meets the employer's requirements and needs for labour. Although the firefighters had sufficient qualifications for the position and thus met the employer's requirements, the FBA considered that the firefighters did not meet the need for labour. The FBA argued that the firefighters did not have a defined level of employment and were therefore not "part-time employees" for the purposes of the Employment Protection Act, nor were they equivalent to a full-time firefighter. The FBA thus recruited 16 full-time firefighters under the collective bargaining agreement for full-time firefighters (RiB). The FBA’s recruitment led to a dispute between the parties as to whether the four firefighters were to be regarded as part-time employees and would therefore have met the employer's labour needs.
The Labour Court found that the employment conditions for the standby firefighters indicate that the employment typically is an additional job parallel to a regular job or self-employment, and not a part-time job as the term is normally used. However, the fact that the firefighters did not have a defined employment rate was not decisive in determining whether the firefighters were to be considered part-time employees under Section 25a of the Employment Protection Act. As the firefighters on standby had the same duties as full-time firefighters, the Labour Court decided that the four firefighters were employed on a part-time basis.
Furthermore, the Labour Court clarified that the priority right under Section 25a of the Employment Protection Act does not only apply to a specific area of a collective bargaining agreement, but rather applies to the entire operational unit, regardless of the applicable collective bargaining agreement. Accordingly, the fact that the firefighters did not fall within the scope of the collective bargaining agreement as full-time firefighters was not decisive in determining whether they could be considered part-time employees.
Finally, the Labour Court found that the employer's need for labour would have been met by employing the four firefighters at a higher employment rate. The firefighters had the qualifications required for the jobs and were part-time employees under Article 25a of the Employment Protection Act.