Luxembourg, 12/02/2001 (Agence Europe) - As pointed out earlier in EUROPE, the Court of Justice has issued a press release in which it stresses the importance of the "Lange" ruling. The title of the press release, "employers must inform employees of their obligation to work overtime", as well as its content could give the impression that it is a fundamental judgement. According to observers, however, it is a judgement of more limited scope. The Court of Justice considers it is the national law, in this case German, and not Community law, which applies in this case of an agreement on overtime not having been made out in writing.
EUROPE gives the following details:
1. The ruling indicates that, when there is only a verbal agreement between employer and employee on overtime, the employer is in the wrong as the European Directive of 1991 stipulates that a clause should be added to the contract in writing. Nonetheless, specifies the Court, a reference to the laws or the collective agreements in force may suffice.
Wolfgang Lange, a lathe operator employed by Georg Schünemann GmbH, had agreed, verbally, to work overtime. When the employer requested him to put in extra hours, Wolfgang Lange refused further to disagreement on what had been agreed. Mr Lange made it clear he had only agreed to work overtime as a matter of "urgency" whereas his employer believed he had agreed to put in extra time when work was at a "peak".
2. In European law, however, the failure to inform in writing does not entail cancellation of the contract.
The argument put forward by Wolfgang Lange was that, since the employer had not mentioned the possibility of overtime in writing, he was not compelled to work overtime. The Court rules against him, saying that "no provision of Directive 91/533 requires an essential element of the contract or employment relationship (in this case, the obligation to work overtime) that has not been brought to the notice of the employee to be regarded as inapplicable", if not mentioned in a written document (Ed.: occasional overtime which is not an essential part of the employment contract is not covered by this decision).
3. National rules on the burden of proof are not affected by the directive, states the Court. German law is then applied. It will therefore be up to the employer to prove (with, for example, the help of an attestation from staff members present at the interview for employment) that Wolfgang Lange had agreed to work overtime. If the contrary is found to be true, then German law on the form of compensation due to the employee will still be applied.
The "Arbeitsgericht" in Bremen (Industrial Arbitration Court) had referred this case to the Court of Justice of the EU. Now that the details have been clarified, it is expected to give a ruling. Wolfgang Lange had been dismissed for having refused to work overtime, and had referred his case to the Arbeitsgericht.