Supreme Court 19 February 2026, 9 ObA 62/25w
In its recent decision on 9 ObA 62/25w, the Supreme Court (OGH) clarified that, in the case of an all-inclusive agreement concluded before 2 January 2016 (1 January 2016: entry into force of Section 2g AVRAG), remuneration during parental part-time work must be calculated pro rata from the total all-in salary if the interpretation of the contract does not yield a determinable proportion for additional hours and overtime. A subsequent allocation of the remuneration components based on the average of the overtime actually worked is not an option in such a case. The OGH therefore dismissed the appeal brought by the defendant employer.
The claimant entered into an employment contract with the defendant in 2011, which included, amongst other things, the following provision:
The aforementioned salary covers all additional hours and overtime worked during the month.
The employment contract specified neither a basic salary nor the number of additional and overtime hours covered by the lump-sum payment. In fact, between 2015 and her maternity leave in January 2023, the claimant worked between 5 and 16.78 additional and overtime hours per month. For the duration of the parental part-time period, the defendant deducted an amount for overtime and extra hours, averaging 16.5 hours per month, from the agreed all-inclusive salary.
Pursuant to Section 2 of the Austrian Remuneration Act (AVRAG), in the case of flat-rate remuneration agreements concluded after 1 January 2016, the basic wage for normal working hours must be specified in the employment contract or service note. In the absence of such a specification, the employee is entitled at least to the normal hourly wage customary for the industry and location (actual basic wage). However, as the employment contract in the present case had already been concluded in 2011, Section 2g AVRAG was not applicable (cf. Section 19(1)(34) AVRAG).
The Supreme Court therefore had to address the question of how remuneration during parental part-time work should be calculated in the case of all-in remuneration agreements concluded before 2 January 2016 which do not specify a particular amount of overtime.
In the Supreme Court’s view, the contractual agreement must first be taken as the basis. As regards the question of which proportion of an all-inclusive salary relates to normal working hours and which to overtime, the decisive factor is whether the proportion of remuneration for overtime can be determined from the contract – in particular by way of interpretation in accordance with Sections 914 et seq. of the Austrian Civil Code (ABGB). Only if such a proportion can be derived from the agreement may it be taken into account when calculating the pro rata remuneration during parental leave. If, however, the interpretation of the contract does not yield a determinable proportion of remuneration for overtime and extra hours, the remuneration during parental leave must be calculated pro rata from the total all-inclusive salary.