Österreichischer Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers.
Date: 2014-11-05
16. The classification of the dependent child allowance corresponds, as the Advocate General observed in paragraph 36 of her Opinion, to that resulting from EU law. It must be recalled that, according to settled case-law, under Article 157(2) TFEU ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. It is settled case-law that that concept covers any consideration, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment, from his employer (see judgment in Hliddal and Bornand , C‑216/12 and C‑217/12, EU:C:2013:568, paragraph 41 and the case-law cited).
17. In that context, the Court has explained that the legal nature of that consideration is not important for the purposes of the application of Article 157 TFEU provided that it is granted in respect of the employment (see judgment in Krüger , C‑281/97, EU:1999:396, paragraph 16).
18. The Court has also held that, ‘[a]lthough it is true that many advantages granted by an employer also reflect considerations of social policy, the fact that a benefit is in the nature of pay cannot be called in question where the worker is entitled to receive the benefit in question from his employer by reason of the existence of the employment relationship (judgment in Barber , C‑262/88, EU:C:1990:209, paragraph 18).
20. It follows that if, according to the terms of that employment relationship, the worker is employed part-time, it must be held that the calculation of the dependent child allowance in accordance with the principle of pro rata temporis  is objectively justified, within the meaning of Clause 4.1 of the Framework agreement on part-time work, and appropriate within the meaning of Clause 4.2 thereof (see, by analogy, judgment in Heimann and Toltschin , C‑229/11 and C‑230/11, EU:C:2012:693, paragraph 34 and the case-law cited).
21. In that connection, it must, on the one hand, be observed that clearly the nature of the benefit at issue in the main proceedings cannot preclude the application of Clause 4.2 of the Framework Agreement on part-time work, since the dependent child allowance, which is one of the advantages paid in cash to workers, is a divisible benefit (see, by analogy, judgments in Impact , C‑268/06, EU:C:2008:223, paragraph 116, and Bruno and Others , C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 34).
23. Thus, the Court has held that, in the case of part-time employment, EU law does not preclude a retirement pension being calculated pro rata temporis  in the case of part-time employment (see, to that effect, judgment in Schönheit and Becker , C‑4/02 and C‑5/02, EU:C:2003:583, paragraphs 90 and 91), nor does it preclude paid annual leave from being calculated in accordance with the same principle (see, to that effect, judgments in Zentralbetriebsrat der Landeskrankenhāuser Tirols , C‑486/08, EU:C:2010:215, paragraph 33, and Heimann and Toltschin , EU:C:2012:693, paragraph 36).