Overtime Work: Caught Between Two Fires

Employees' opinions on the institute of overtime work are definitely divided, so much so that they go to two complete extremes. While some consider it entirely unnecessary, because overtime work would be interpreted as meaning that they are unable to complete their work tasks on time, others see in it an opportunity to achieve additional work output, better work results and, ultimately, better earnings.

Opinions differ as to what overtime work actually is, so we would start from the fact that, within the meaning of the Labor Law, overtime work is work by an employee that exceeds the prescribed working hours due to an increased workload caused by certain sudden, unforeseeable circumstances. On the other hand, overtime work is not staying at work beyond the prescribed working hours so that the employee can finish work they failed to complete during the day due to inefficient organization of work tasks.

Under our Labor Law, in regular circumstances, full-time working hours amount to 40 hours per week. The employer may provide for full-time working hours shorter than 40 hours per week, but not shorter than 36 hours per week. In this way, employees who work full time, from 36 to 40 hours per week, depending on how their employer has regulated the duration of full-time working hours, are entirely equal with respect to the exercise of rights arising from employment.

As a rule, the working week lasts 5 days, 8 hours per day. As in most European countries, our legislator has opted for the traditional working-time schedule. The law uses the phrase “as a rule” precisely because an employer where work is performed in shifts or at night, or where the nature of the work and the organization of work so require, is permitted to organize the working week and the working-time schedule differently. In industries such as IT, this exception, allowing working hours to be organized differently from the traditional model, is actually becoming the rule. Flexible working hours are also one of the options giving employees flexibility.

For so-called high-risk jobs, the employer may shorten its employees' working hours by up to 10 hours per week, if the jobs performed by the employee are particularly difficult, strenuous and harmful to health, and if, despite the application of appropriate occupational safety and health measures and personal protective equipment, an increased harmful effect on the employee's health persists. For employees working reduced hours, the Law excludes the possibility of the employer ordering overtime work.

As an exception to the regular circumstances in which the employee performs the duties of their position during full-time working hours, our Labor Law recognizes the institute of overtime work, which may be introduced in precisely defined circumstances, under precisely established conditions, may last for a strictly limited time, and also imposes additional obligations on the employer.

1. When can overtime work be introduced?

Not every instance of an employee working more than 8 hours a day constitutes overtime work. For an employee's work beyond regular working hours to be considered overtime work and to impose certain obligations on the employer, one of the following circumstances must exist:

• Force majeure;
• A sudden increase in workload;
• Other cases where it is necessary to complete, within a certain deadline, work that was not planned.

It is clear that the circumstances under which overtime work is introduced must involve an “element of surprise”, whether these are natural circumstances, such as force majeure, or circumstances relating to the dynamics within the team and an increase in workload. Although the past year and the coronavirus convinced us that “force majeure” is not merely words on paper, but something that really and truly happens, the more frequent reasons for introducing overtime work will nevertheless be an increase in workload, or some other case where it is necessary to complete, within a certain deadline, work that was not planned. Teamwork and working with clients and external associates, with all their advantages, on the other hand also carry unpredictability and last-minute changes of plan, at a point when your employees are already confident that they will meet the deadlines. It is precisely because of such situations that the introduction of overtime work is a necessary tool you must resort to.

Therefore, there is no overtime work if there is no force majeure, no sudden increase in workload and no need to complete unplanned work. If none of these circumstances exists, the employee would have the right to refuse to work overtime.

The competent Ministry of Labor, Employment and Social Policy issued opinion no. 011-00-00346/2013-02 of 6 December 2013, which indicates that where the working-time schedule has been determined in advance for the performance of work that is planned and did not arise as a consequence of certain sudden circumstances, but rather constitutes regular work, the hours that appear on a monthly basis as work exceeding full-time working hours do not constitute overtime work.

On the other hand, just how crucial sudden, unplanned circumstances are for the introduction of overtime work is also shown by the case law of the Court of Appeal in Belgrade, which provides that the employee has no obligation to work beyond full-time working hours if the reason for introducing overtime work was known to the employer in advance.

The employee would not be obliged to comply with an order of their immediate superior to work beyond full-time working hours if the reason for introducing overtime work was known to the employer in advance. In such a situation, if the employee were to refuse to perform the requested work after the end of working hours, that refusal would not constitute a breach of work discipline for which the employer could terminate the employee's employment contract. Read about compensation for damages due to unlawful dismissal in our blog.

2. Maximum duration of overtime work

Once the conditions for introducing overtime work have been met, its duration cannot exceed 8 hours per week. The law protects employees by providing that they cannot work more than 12 hours per day, including overtime work.

When introducing overtime work, the employer must be careful in this respect, bearing in mind its obligation to ensure that the employee is provided with a daily rest period of 12 consecutive hours within a 24-hour period, as well as a weekly rest period of at least 24 consecutive hours, to which the daily rest period is added.

Our law does not provide for a limit on the number of overtime hours on an annual basis. The Ministry of Labor and Social Policy issued opinion no. 011-00-157/2012-02 of 1 March 2012 confirming this, and clarifying that no question arises of cumulating, on an annual basis, the number of overtime hours worked during a state of emergency with other overtime hours worked.

Labor legislation in neighboring and other European countries contains provisions limiting the maximum duration of employees' overtime work, and we note that the limits are similar to those in our law.

• The law in Croatia provides that if an employee works overtime, the total duration of work must not exceed 50 hours per week. It also provides for the employer's obligation to hand the employee a written request before the start of overtime work; if, due to the nature of the urgent need, the employer is unable to do so before the overtime work begins, the oral request must be confirmed no later than 7 days from the date the overtime work was ordered.
• In Bosnia, overtime work, as in Serbia, may last a maximum of 8 hours per week, and it is interesting that the law provides for the employer's obligation to notify the competent labor inspectorate if overtime work lasts longer than three consecutive weeks or more than ten weeks during a calendar year.
• The Czech legislator provides that an employee who works overtime is entitled to increased wages for the overtime hours in the amount of at least 25% of the base. Under Czech law, the maximum duration of overtime work must not exceed 8 hours per week or 150 hours per year.

3. The requirement of an employer's request for overtime work

Even where the conditions for introducing overtime work exist, that is, force majeure, a sudden increase in workload or another circumstance making it necessary to complete unplanned work within a certain deadline, there must also be a request by the employer for overtime work.

Without an employer's request, an employee's overtime work performed on their own initiative cannot be considered overtime work within the meaning of the provisions of the Labor Law, which means that there is also no obligation on the employer to pay the employee increased wages.

This question has become particularly interesting since work from home became popular, with employees working from home staying at work longer on their own initiative. If employees were to write themselves orders for overtime work without consulting the employer, such work could not be considered overtime work within the meaning of the statutory provisions, because, above all, there is no employer's request for such work, nor a decision on the introduction of overtime work. Employees cannot, on their own initiative and without the employer's consent, perform overtime hours at times that suit them, without a request or decision by the employer, nor can they demand payment of increased wages for overtime work on that basis.

Since the employee's employment contract, or the annex to the employment contract for work from home, includes the employee's working hours as a mandatory element, specifying the period during which the employee must be available to respond to calls from their immediate supervisor and to work-related requests via means of electronic communication, the employee, absent an explicit request or decision by the employer for work exceeding full-time working hours, is not obliged to make themselves available to the employer to perform work before or after their regular working hours.

4. The obligation to notify employees of the introduction of overtime work

The employer is obliged to notify employees in a timely manner of the working-time schedule and any changes to it.

In regular circumstances, it is obliged to notify them of the working-time schedule and changes to it no later than 5 days in advance, whereas in the case of overtime work, given that extraordinary circumstances are involved, the employer's obligation is to notify employees of the introduction of overtime work within a period of no less than 48 hours.

5. The obligation to keep records

The Law on Records in the Field of Labor provides for the employer's obligation to keep records of employees' working hours, including data on employees' overtime work.

The Labor Law has imposed one more obligation on employers in connection with overtime work, namely to keep daily records of employees' overtime work.

Fines of up to RSD 300,000 are prescribed for breaches of this obligation.

6. The obligation to pay increased wages

Corresponding to the employee's right to increased wages for overtime work, there is the employer's obligation to pay the employee increased wages for overtime work in the amount of at least 26% of the base. The percentage may also be set at a higher amount by the employer's general bylaw or by the employment contract.

In the employee's payslips, the employer is obliged to state the amount of the portion of wages attributable to overtime work, which in turn must correspond to the records the employer keeps for overtime work.

Since the employer has the right to organize working hours differently from the statutory rule of a five-day working week and eight-hour working day, when it organizes the working week as a six-day week and provides for work on Saturdays, it also has the right, in these circumstances, to introduce overtime work, subject to the fulfillment of the other conditions and, of course, the payment of increased wages of at least 26% of the base.

Therefore, if all statutory conditions are met, there is no obstacle to overtime work being performed at weekends. In such a situation, if the employee failed to come to work on a Saturday which is, in this case, established as a working day, and failed to justify their absence, this would constitute grounds for termination of the employment contract due to a breach of work duty, that is, non-compliance with work discipline, provided that this is set out in the employer's general bylaw as a ground for termination of the employment contract.

7. Overtime work may relate exclusively to the employee's work tasks

Under the Labor Law, the employee is obliged, during employment, to pursue education, vocational training and professional development for work, in order to refresh and improve their knowledge and competencies. Employers often provide various benefits for their employees, in the form of a fund earmarked for attending training courses and professional development sessions.

When employees attend training courses and/or professional development sessions, they are not actually performing the work for which work exceeding full-time working hours is introduced, so vocational training and/or professional development, even when it takes place outside working hours, cannot be considered work exceeding full-time working hours. In other words, this would mean that there is no basis for the employer, which bears the costs of the employees' training courses and sessions, to also pay increased wages for overtime work.

In the event of a court dispute, the court would, in addition to the fulfillment of the statutory conditions for introducing overtime work, particularly assess whether the employee has been paid for all effective hours of work. Our experience in this field shows that courts pay particular attention to whether the circumstances for introducing overtime work existed, in order to prevent abuses of this institute. The introduction of overtime work is in any event a last resort, to which you should turn only in exceptional conditions, when it is not possible to organize the work in any other way.

8. Special restrictions on the introduction of overtime work

In addition to fulfilling all of the above conditions in order for overtime work to be carried out in accordance with the Law, it is important to point out that certain categories of employees are protected from overtime work, that is, the Law prescribes situations in which the freedom to introduce overtime work is excluded.

Thus, in order to protect the health and safety of employees, the Law prescribes that an employee cannot work overtime if, according to the findings of the competent health authority, such work could worsen their state of health.

For employees under 18 years of age, the Law likewise excludes the possibility of introducing overtime work. The same rule applies to a female employee during pregnancy, as well as to an employee who is breastfeeding a child, if such work would be harmful to her health and the health of the child, based on the findings of the competent health authority. In addition, one of the parents of a child up to three years of age may work overtime only with their written consent, and the same rule applies to a single parent-employee who has a child up to seven years of age or a child with a severe disability.

Finally, it is important to draw attention to the fact that working hours do not include the time during which the employee is on standby to respond to the employer's call to perform work should such a need arise, while the employee is not at the place where their work is performed. This effectively means that standby time cannot, in itself, be regarded as overtime work (unless, during the standby period, circumstances arise as a result of which the employee is required to spend a certain amount of time performing work at the employer's call, which, of course, counts as the employee's working hours).

9. Frequently asked questions about overtime work

How long may overtime work last?

Overtime work cannot exceed 8 hours per week. The law additionally protects employees by prescribing that total working hours, including overtime work, must not exceed 12 hours per day.

Does the employer have to pay increased wages for overtime work?

Yes, the employer is obliged to pay increased wages of at least 26% of the base. This right exists only if the overtime work was actually introduced at the employer's request; staying at work on one's own initiative without such a request does not create a right to increased wages.

Who must not work overtime?

Overtime work is excluded for employees under 18 years of age and for employees whose state of health, according to the findings of the competent health authority, would be worsened by such work. Pregnant women and employees who are breastfeeding a child must not work overtime if this would be harmful to their health or the health of the child, while one of the parents of a child up to three years of age, as well as a single parent of a child up to seven years of age or of a child with a severe disability, may work overtime only with their written consent.

How far in advance must the employer notify employees of the introduction of overtime work?

In regular circumstances, the employer must notify employees of a change to the working-time schedule no later than 5 days in advance. For the introduction of overtime work, given that extraordinary circumstances are involved, the deadline is shorter and amounts to at least 48 hours.

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