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Are workers in minor employment entitled to occupational pensions?

In an interesting appeal to the Federal Labour Court (docket number 3 AZR 83/16) the services trade union ver.di had been called upon by a female employee – who had originally been employed by the union Deutsche Postgewerkschaft since 1991 and had been working for the defendant since its merger with ver.di in 2001 – to obtain a pension. Since 2004, the applicant had been working in minor employment (a so called mini job or marginal employment with a maximum monthly income of Euro 450). The provisions of the 1995 pension scheme, which applied to the defendant, provide that all employees are to be registered with the unions’ support fund and that they are to be provided with a pension according to the applicable guidelines. However, individuals in minor employment are exempt.

Before 1 January 2013, as was the case with the appellant, contracts for mini jobs were not subject to compulsory pension insurance as a rule. This was later changed. As a result these individuals are now subject to compulsory insurance in the statutory pension insurance system as a rule. They have, however, the option to have themselves exempted on application from the obligation to pay contributions to the statutory pension system.
The employee alleged discrimination against part-time employment according to Sec. 4 para. 1 of the German Part-Time and Temporary Employment Act (Teilzeit- und Befristungsgesetz, TzBfG). Sec. 2 para. 2 of the TzBfG explicitly states that, individuals working in mini jobs are to be considered part-time employees just as employees working part-time, but above mini job remuneration level. The union considered the exclusion of marginal employees effective. It argued that the occupational retirement provision in particular served the purpose of supplementing statutory retirement provision; in view of the minor employment, the applicant under the old rules did not acquire any rights under the statutory pension scheme.

While the Labour Court of Rosenheim had dismissed the employee’s complaint, the Higher Labour Court of Munich had granted the claim (decision of 13 January 2016, docket number 10 Sa 544/15), arguing that the general non-discrimination principle not only applies to part-time employees vis-à-vis full-time employees but also to different treatment of different forms of part-time employment.
The hearing before the Third Senate of the Federal Labour Court was scheduled for 17 October. On the day before the union withdrew its appeal against this decision in favour of the employee.