In our previous article, we discussed issues related to working time as a crucial element of the employment relationship. Is remuneration due for working non-standard hours? When does an employee work at night or during public holidays? What are the employer's obligations? We will answer these and other questions in today's article.
What is overtime work?
Every employee probably knows from experience that there are certain times of the year when work is extremely heavy and the standard 8-hour workday is insufficient. The employer's response to this problem is overtime. Therefore, overtime work is justified by increased demand for economic reasons.
Permissibility of overtime work
The Labor Code lists two types of circumstances that allow for overtime work. The first group is work performed to protect human life or health, protect property or the environment, or repair a breakdown, such as the familiar work of a firefighter, doctor, or police officer.
The second group comprises the employer's specific needs, which is why the provision is formulated as a general, unspecified clause, allowing for a relatively liberal interpretation of the employer's "specific" needs. It is difficult to point to objectively demonstrating the existence of these needs. The entity whose opinion is crucial in this case is the employer, who assesses whether or not there is a need for overtime work within their organization.
In what form does the employer express the need?
In case law, and consequently in practice, it is generally accepted that these needs are expressed by the employer through instructions, although an employee may also perform overtime work with the employer's knowledge and consent (even tacit) if acting in the employer's best interest. Therefore, it is not necessary for the employer to issue an explicit instruction. It is sufficient that the employee acted in the employer's best interest and the employer did not object to the overtime work. However, if a dispute arises between the employee and the employer, the actual number of hours the employee worked may be difficult to prove.
Working time records and overtime
Employers should maintain records of working hours, as any negligence or failure to maintain records exposes them to harm. If a conflict arises in court, the burden of proof shifts, shifting it to the person who denies the facts from which the plaintiff (employee) derives consequences. This conclusion was based on the factual circumstances in which the employer maintained records of working hours, but did so informally, neglecting the regularity of signatures and delegating work to the employee on a task-by-task basis. Because the employment relationship involved forwarding, the demand for work varied considerably. In this case, the lack of records, or their improper maintenance, is the responsibility of the employer, not the employee who relies on them. Therefore, the employee cannot be held responsible for the consequences of recording their own working hours, as this was the employer's responsibility.
When can overtime work not be recognized?
As we indicated earlier, overtime work may be performed with the employer's knowledge and consent (even if implicitly).
activities performed by an employee voluntarily during their free time, overtime work for the employer . This would lead to numerous unjustified claims against the employer, claiming that there was no need for the overtime work.
Is there remuneration for overtime work?
One of the essential elements of an employment relationship is the employer's obligation to pay wages. As a rule, employees are entitled to their regular wages and allowances for overtime work.
It should be emphasized that the amount of the bonus depends on whether the overtime was due to exceeding the daily or weekly norm . As a rule, remuneration for daily overtime work is 50% . However, there is an exception to this rule: a 100% bonus for night work, work on Sundays and public holidays scheduled as days off, and work on a day that was supposed to be a day off in lieu of a working Sunday or public holiday .
Variable remuneration components such as awards, bonuses, commissions, etc. are not included in the basis for calculating overtime allowance, unless the remuneration is determined in a manner other than an hourly or monthly rate.
What are the restrictions on overtime work?
Restrictions on overtime work are subjective in nature, i.e. they apply to certain employee groups as well as certain time limits on an annual basis.
The applicable regulations specifically prohibit overtime work for young workers and disabled employees. In both cases, it is assumed that these individuals tire much more quickly than other employees, and therefore, overtime work would pose a threat to their life and health. Therefore, beyond the examples provided in the Code, can an employee refrain from taking on additional work for other reasons? It turns out that they can. This can also be based on a medical certificate stating the inability to perform such work, for example, due to another illness that prevents this type of work.
What are our time limits?
The Labor Code limits the number of overtime hours allowed due to the employer's specific needs to 150 hours per calendar year. This applies to both daily and average weekly overtime. In practice, the introduction of the principle of uninterrupted daily rest limits the permissible daily work time to 13 hours, limiting the number of overtime hours from 1 to 5 per day, depending on the employee's daily working time. Importantly, the overtime limit also includes hours for which the employer has granted the employee time off.
How do we understand the term "night work"?
Night time covers the 8 hours between 9:00 PM and 7:00 AM. An employee whose work schedule includes at least 3 hours of night work in each 24-hour period, or whose working time in a settlement period falls at night, is considered a night worker. Working hours cannot exceed 8 hours per 24-hour period if they perform particularly hazardous work or work involving significant physical or mental effort. Where can we find a list of hazardous work? They are included in an agreement between the employer and the company trade union or in an agreement between employee representatives.
Who decides about night work?
The decision to establish night work hours between 9:00 PM and 7:00 AM is made by the employer in cooperation with trade unions, if any exist . Generally, night work is subject to work regulations or written notice to the employee, if the employer is not required to implement work regulations, i.e., when it employs fewer than 50 employees.
Who cannot work at night?
Night work is prohibited for pregnant women, employees caring for children under 4 years of age (without their consent), young employees and disabled employees, unless the doctor supervising the employee gives his/her consent.
Compensation for night work
An employee who performs night work is entitled to a salary supplement for each hour of night work equal to 20% of the hourly rate based on the minimum wage. This supplement is calculated not based on the employee's actual salary, but rather on the minimum wage stipulated by separate regulations. This leads to many misunderstandings in practice, especially when the employee receives a higher salary than the minimum wage.
However, for employees who regularly perform night work, the salary supplement may be replaced by a lump sum corresponding to the length of night work.
Is night work allowance the same as overtime pay? Night work allowance has nothing to do with overtime allowance and is therefore independent of it. The common denominator for these institutions is compensation for increased work arduousness.
Summary
Overtime work, as well as work on Sundays and public holidays, entails obligations on the employer's part. Overtime work, night work, or work on Sundays and public holidays poses a significant challenge for the employee. Therefore, an employee's entitlement in this regard should be limited to particularly justified needs, i.e., in very exceptional situations with economic reasons.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of November 3, 2023
author:
