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Senior Associate Aleksandra Jaćimović
Opinions of employees on overtime work are quite divided and go to two complete extremes. While some consider it completely unnecessary, because overtime work may be interpreted as not being able to complete the work tasks on time, others see it as an opportunity to achieve additional work performance, better work results, and, finally, better earnings.
There are different opinions on what constitutes overtime work, so we would start with the definition of overtime work under the Labor Law. According to it, overtime work is work that lasts longer than prescribed due to an increased workload caused by some sudden, unpredictable circumstances. On the other hand, overtime work is not staying at work longer than the prescribed working hours in order for the employee to complete a job that the employee did not finish during the day due to the inefficient organization of work tasks.
According to Serbian Labor Law, in regular circumstances, full-time work is 40 hours per week. An employer may anticipate that the full-time work is less than 40 hours per week, but not less than 36 hours per week. This way, full-time employees, from 36 hours per week to 40 hours per week, depending on how their employer envisioned the work time, are completely equal in terms of exercising their employment-related rights.
As a rule, the working week lasts 5 days, 8 hours per day. Like in most European countries, our legislator has opted for the traditional schedule of working hours as well. The law uses the phrase “as a rule” precisely because the employer whose work is performed in shifts, at night, or when the nature of work and organization of work requires– is allowed to organize the work week and working hours differently. In industries such as IT, this exception, that working hours can be organized differently from traditional ones, is becoming the rule. Flexible work hours are also one of the possibilities that give employees more freedom.
For the so-called, high-risk jobs, the employer may shorten the working hours of their employees, up to a maximum of 10 hours per week, if the work performed by an employee is particularly difficult, strenuous, and harmful to health, where, besides the implemented appropriate measures of safety and protection of life and health at work, means, and equipment for personal protection at work, there is an increasingly harmful effect on the health of the employee. For these employees, the Law excludes the possibility of the employer determining overtime work.
As an exception from the regular circumstances in which the employee performs their work duties during full-time work, our Labor Law recognizes the concept of overtime work, which can be introduced in strictly prescribed circumstances, under precisely determined conditions, and can last only a certain time, and imposes additional obligations to the employer.
Not every work performed by the employee lasting more than 8 hours a day, is overtime work. In order for the employee’s work, which is longer than regular working hours, to be considered overtime work and to impose certain obligations on the employer, one of the following circumstances must exist:
The circumstances under which overtime work can be introduced must have a “surprise factor”, whether it is an “act of God”, such as force majeure, or circumstances related to the dynamics in the team and the increase in workload. Although the previous year and the coronavirus convinced us that “force majeure” is not just a word on paper, and that it indeed happens in reality, still the more common reasons for introducing overtime work will be an increase in workload, or some other event when it is necessary to finish an unplanned work in a certain period of time. Working in a team and working with clients and external associates with all its advantages, on the other hand, brings unpredictability, and last-minute plan changes when your employees are already sure that they will meet the deadlines. Precisely because of these situations, the introduction of overtime is a necessary tool that you must resort to.
So, there is no overtime work if there is no force majeure, a sudden increase in workload, or the need to complete unplanned work. If none of these circumstances exist, 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 from 6.12.2013. that when the schedule of working hours is determined in advance for the work that is planned and did not occur because of some sudden circumstances, but it is a regular work task, hours that appear monthly as work longer than full time do not represent overtime work.
On the other hand, how crucial it is for the introduction of overtime work that the circumstances are sudden and unplanned, the case law of the Belgrade Court of Appeals stipulates that the employee is not obligated to work longer than full-time if the reason for introducing overtime work was already known to the employer.
The employee would not be obliged to act on the order of the immediate superior to work longer than full time if the reason for introducing the overtime work is known to the employer in advance. In such a situation, if the employee refuses to perform the required work after working hours, that refusal would not constitute non-compliance with the work discipline due to which the employer could terminate the employee’s employment agreement. Read about wrongful termination in our blog post.
When the conditions for the introduction of overtime work are met, its duration cannot be longer than 8 hours per week. The law protects employees by stipulating that they cannot work more than 12 hours a day, including overtime work.
When introducing overtime work, in this part, the employer must be careful, having in mind his obligation to provide the employee with the use of daily rest for 12 hours continuously within 24 hours, and weekly rest for at least 24 hours continuously, to which the time of daily rest is added.
Our law does not provide a limit on the number of hours of overtime work per year. The Ministry of Labor and Social Policy issued opinion no. 011-00-157 / 2012-02 from 1.3.2012. which confirms this and clarifies that there is no question of cumulation on an annual basis of the number of hours of overtime worked during the emergency with other realized hours of overtime work.
Labor legislation in neighboring and other European countries contains provisions that limit the maximum duration of overtime work of employees, and we note that the restrictions are similar to those of our law.
Despite the fulfillment of conditions for the introduction of overtime work, force majeure, a sudden increase in workload, or other circumstances due to which it is necessary to complete unplanned work within a certain period, there must be an employer’s request for overtime work.
Without the employer’s request, self-initiated overtime work of an employee cannot be considered overtime work in terms of the provisions of the Labor Law, which means that there is no obligation of the employer to pay an increased salary to the employee.
This issue has become especially interesting since work from home was popularized, so employees who work from home stay longer at work on their own initiative. If employees wrote overtime requests to themselves without consulting the employer, such work could not be considered overtime work in terms of statutory provisions, because there is no employer’s request for such work, nor a decision on the introduction of overtime work. Employees may not, on their own initiative, without the consent of the employer, perform overtime work at a time when it suits them, and without the request of the employer or his decision, nor to demand to be paid an increased salary for overtime work on that basis.
As the employment contract, i.e., the annex to the employment contract for work from home, envisages the working hours of the employee as a mandatory element, in which period the employee should be available to respond to the call of his immediate supervisor, as well as work requests via electronic means, the employee is not obliged to make himself available to the employer to perform work before or after his regular working hours if there is no an explicit request or decision of the employer to work longer than full time.
The employer is obligated to inform the employees about the schedule and change of working hours in a timely manner.
In regular circumstances, he is obligated to inform them about the schedule and change of working hours no later than 5 days in advance, while in case of overtime work, given that it is an extraordinary circumstance, the employer is obligated to inform the employees about the introduction of overtime work within the period which is no less than 48 hours.
The Law on Labor Records stipulates the obligation of the employer to keep records of the employees’ working hours, including data on the overtime work of employees.
The Labor Law imposed another obligation on the employers regarding overtime work, and that is to keep daily records of overtime work of the employees.
For violating this obligation, fines of up to RSD 300,000 are prescribed.
In contrast to the employee’s right to an increased salary for overtime work, there is an obligation of the employer to pay him an increased salary for overtime work in the amount of at least 26% of the base. The percentage can be determined in a higher amount by the general act of the employer or the employment agreement.
In the employee’s payroll, the employer is obliged to state the amount of salary in the name of overtime work, which again must be consistent with the records kept by the employer for overtime work.
As the employer has the right to organize working hours different from the statutory rule – five-day working week and eight-hour working hours, thus, when organizing a working week as a six-day and prescribing work on Saturdays, in these circumstances the employer also has the right to introduce overtime work, provided that the other conditions are fulfilled, and of course with the payment of an increased salary of at least 26% of the base.
Therefore, if all the statutory conditions are met, there is no obstacle to overtime work on weekends.
In such a situation, if the employee did not come to work on Saturday, which in this case is determined as a working day, and would not justify his arrival, it would represent the grounds for termination of the employment contract due to breach of work duty, i.e., non-compliance with the work discipline, if the general act of the employer prescribes that as a violation.
According to the Labor Law, during employment, the employee is obligated to educate himself, conduct professional training, and improve his skills, in order to renew and improve his knowledge and competencies. Employers often provide different benefits for their employees, in terms of a certain fund for the needs of attending training and in-service training.
When employees attend education sessions and/or training sessions, they do not actually perform work that requires more than full-time work, so vocational training and/or training, even when performed outside of working hours cannot be considered longer than full-time work. In other words, it would mean that there is no basis for the employer, who bears the costs of training and coaching employees, to pay increased wages for overtime work.
In case of a court dispute, the court would, in addition to the fulfillment of the statutory conditions for the introduction of overtime work, especially evaluate whether all effective working hours have been paid to the employee. Experience in this area shows us that the courts pay special attention to whether there were circumstances for the introduction of overtime work, to prevent abuses of this concept. The introduction of overtime work is certainly a last resort, which you should use only in exceptional circumstances when it is not possible to organize work in any other way.
In addition to fulfilling all 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, i.e. that the Law prescribes situations in which 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 competent health authority, such work could worsen their health condition.
For employees under the age of 18, the Law also excludes the possibility of introducing overtime work. The same rule applies to an employed woman during pregnancy, as well as to an employee who is breastfeeding 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 with a child up to three years of age can 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 severe disabilities.
Finally, it is important to note that standby time (during which the employee is ready to respond to the employer’s invitation to perform work if such a need arises, under the condition that the employee is not at the place where his work is performed) is not considered as working time. This means that standby time cannot be considered overtime work (unless during standby, the employee becomes obliged to spend a certain amount of time performing work at the request of the employer, which, of course, constitutes the employee’s working hours).