Overtime and “Overwork”: Exceeding work time limits
The time limits of work occupied us in our previous article-in the light of the regulations of the recent labor law (Law 4808/2021). We will be concerned, here, with the cases where they are exceeded: “overwork”, legal and illegal overtime (article 58 of law 4808/2021). We approached the specific issues within the framework of the previous legislative regime. However, as there are significant differences in overtime employment, it is also interesting to re-approach the issues concerning, in general, the exceeding of time limits for work.
The regulation of working time at the national level
The Legal Working Hours
In our country, the working time limits of employees have been determined by special provisions – of public order, in fact.
The maximum working time limits are calculated, basically, with a reference period per day (daily schedule). The weekly schedule is calculated based on the corresponding daily schedule.
In most people’s minds the maximum daily schedule is intertwined with the 8-hour work day. And that’s right! (in the first place).
One hundred years ago, in 1920, Law 2269/1920 was passed. The law provided for industrial enterprises that working hours may not exceed eight hours per day and forty-eight hours per week. The 48-hour period returned with law 3385/2000-despite its previous reductions. The 8-hour period was gradually extended to employees in other sectors.
The above time limits, however, apply to businesses that apply six-day work weeks.
With the of 26.02.1975 General National Collective Employment Convention the five-day work system was adjusted. According to this system, the maximum legal daily schedule was 9 hours, while the maximum weekly schedule was set at 45 hours.
The Conventional Working Hours
Conventional working hours are defined (probably unfortunately) as those regulated by collective employment conventions and arbitration awards. This (most likely) was introduced to distinguish them from the legal ones (as discussed immediately above). The conventional schedule was the means of reducing the weekly schedule – without the corresponding reduction of the monthly salary. With the 14.02.1984 General National Collective Employment Convention, the weekly schedule was limited to 40 hours-without a corresponding reduction of the legal salary.
The legal and conventional working hours are those that define the time limits of overtime and overtime.
As (institutionalized) “overwork” is considered the working time that exceeds the conventional schedule but not the maximum legal one [for the concepts of conventional and legal schedule, etc.: “Organization of working time (eight hours: an old, very old, story…”)]. Institutionalized overwork is calculated on a weekly basis.
In businesses where a five-day work system and a weekly contractual schedule of 40 hours is applied, the employee can be employed five (5) additional hours per week-at the discretion of the employer. These hours constitute overwork.
Respectively, in the businesses in which a six-day work system is applied, (institutionalized) overwork is the hours beyond the conventional hours (40 hours) and up to the legal hours (48 hours) per week.
Institutionalized overwork is remunerated with the paid hourly wage increased by 20%. According to the explicit provision of the law, overwork hours are not included in the permitted overtime limits, in accordance with the applicable provisions.
Overtime means the provision of work in excess of the conventional and legal hours. The law (: art. 58 law 4808/2021) distinguishes between legal and illegal overtime.
The recent law makes it simpler and easier to define legal overtime – on a daily, weekly and annual basis. It eliminates, in particular, past discrimination between different branches of economic activity. It imposes common time limits for legal overtime work for all employees-regardless of the business or economic activity of their employer. Specifically:
In businesses where the five-day work system is applied, overtime work (in terms of all legal consequences, formalities and approval procedures) is already considered to be the employee’s employment of more than 45 hours per week. Respectively, in the businesses in which the system of six-day employment is applied, the employment beyond 48 hours per week is considered as overtime.
The maximum number of overtime hours per year is increased to 150 hours. Under the previous regime, it was limited (generally) to 120. However, especially for workers in small-scale and industrial businesses, the overtime limits were set on a semi-annual basis, based on decisions of the Minister of Labor and Social Affairs.
The maximum daily overtime is set at three (3) hours. Under the previous regime, the maximum daily overtime limits were also, similarly, set at three (3) hours for workers in small-scale and industrial businesses. On the contrary, for the other branches of economic activities, these ceilings were set at two (2) hours per day.
It is important to note, however, that legal overtime is always carried out without prejudice to the observance of the provision of article 6 of the Presidential Decree no. 88/1999 (: “the weekly working time of employees may not exceed per period of four (4) months on average forty-eight (48) hours a week, including overtime.”.
Overtime employees are remunerated for each hour of overtime work equal to the hourly wage paid, increased by 40%.
Finally, Circular No. 64597 / 03.09.2021 of the Ministry of Labor and Social Affairs clarifies that the hours of overtime worked in 2021, before the entry into force of Law 4808/2021, are deducted from the maximum annual limit of 150 hours. And this, regardless of the sector of economic activity.
Overtime may take place without complying with legal requirements. This happens: (a) when the legal formalities of announcement (declaration) of overtime are not observed in the ERGANI Information System, or (b) when overtime is provided in excess of the maximum permitted time limits. That is, based on what is in force today, in excess of three (3) hours per day and 150 per year. In these cases, Law 4808/2021 characterizes as illegal any overtime work provided – contrary to what was valid under the previous institutional framework. It provides, in fact, that the employee illegally doing overtime is entitled to compensation equal to the paid hourly wage increased by 120% for each hour of illegal overtime.
On the contrary, before the entry into force of Law 4808/2021, the employee who was employed overtime in excess of 120 hours, was entitled to a salary equal to the paid hourly wage increased by 60%. In addition, the term “exceptional overtime” was used to describe overtime work for which the formalities and approval procedures provided by law were not complied with. In this case, for each hour excluding overtime, the employee was entitled to compensation equal to the hourly wage paid, increased by 80%.
Permit for Overtime Employment
The provision of a. 58 Law 4808/2021 significantly simplifies the process of granting permit to businesses for overtime in excess of the maximum permitted overtime limits.
Specifically, the granting of such a permit requires a decision of the competent body of the Ministry of Labor and Social Affairs. This permit can be granted for the employment of employees of all businesses and jobs, in cases of urgent work, the execution of which is considered absolutely necessary and cannot be postponed.
The change brought about by Law 4808/2021 lies in the fact that the opinion of the Supreme Labor Council is no longer required (article 1 of Law 264/1973).
Such (with the permission of the Minister of Labor) overtime work is remunerated in an amount equal to the paid hourly wage increased by 60%.
The recent labor law (: law 4808/2021) re-approaches the exceeding of the time limits of work. Without differentiating from what applied to overwork, it improves, simplifies and rationalizes the regulations concerning overtime employment.
The whole legislative approximation but also the specific, individual regulations are moving in the right direction.
We must, therefore, take for granted (and not only reasonably expect) that they will have a positive impact on employees, labor, businesses and the economy.
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 24th, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.