Brussels, 06/06/2012 (Agence Europe) - Failing to take into account the professional experience acquired in another company in the same group does not constitute age-based discrimination. The employer is therefore not obliged to take this professional experience into account when calculating the remuneration of its employees. This forms the main thrust of the ruling made on Thursday 7 June by the European Court of Justice in Decision C-132/11.
The Regional Higher Tribunal of Innsbruck (Austria) requested that the European Court of Justice (ECJ) interpret Directive 2000/78/EC (equal treatment in employment and work), which bans any direct or indirect discrimination based on age, on this point. In the case at issue, the Tyrolean Airways company finds itself in opposition to its enterprise committee with regard to taking into account periods of service by commercial flight crews from a company in two of the other of the group's subsidiaries Austrian Airlines (Austrian Airlines and Lauda Air), in classifying this staff into employment categories and subsequently in determining their salaries. The Tyrolean Airways collective agreement stipulates that transition from Category A to the higher Category B occurs after three years of seniority, namely three years after the recruitment of the employee as a member of the commercial flight crew. Work contracts usually stipulate the date of entry into a post and on each occasion that it is appropriate with regard to the application of regulation or law and that this should be extended to the date the post was taken up within Tyrolean Airways. In this context, the Austrian court is asking the ECJ whether the not taking into account of professional experience acquired in another company in the same group constitutes age-based discrimination or not.
The ECJ has said that it does not and considers that the clause included in the company's collective agreement does not constitute age-based discrimination. This clause obviously does lead to differentiated treatment with regard to the date of recruitment but this difference is not based on age nor on any event linked to age. Indeed, it is the experience acquired by the member of the flight personnel within a company in the group, which is not taken into account during the classification in question, irrespective of the age of the interested party at the time of their recruitment. Nonetheless, the ECJ is not ruling out that, in certain cases, the application of this clause could lead to transition for these members of staff from Category A to Category B to a later age than that of the staff members who have acquired equivalent experience within Tyrolean Airways. (FG/transl.fl)