by Marta Pietrzak
Nowadays overtime work becomes a commonplace of the increasing number of employees. In particular, this aspect concerns a work in the big cities.
As experience shows, many employees do not know the rules regarding overtime work and thus many employees very erroneously argues all the issues related to the so-called overtime work.
Many people are asking whether overtime work is the employee responsibility or only the employee good will, and above all, whether employee can afford to refusing a work after hours in relation to the employer?
This and many other issues in the field of labor law, regulates the Polish Labour Code (Act of 26th June 1974, annually amended). Pursuant to the provisions of above mentioned act, overtime work is the exercise by the employee’s professional duties over the contractual number of working hours.
Daily and weekly working time results from a contract concluded between the employee and the employer. Therefore, any claims about overtime work, the employee may demand on the basis of an agreement with the employer, which includes among other things, the employee time at work and also on the basis of the Labour Code. If the contract shows that the daily working time is 8 hours and the weekly working time is 40 hours, then the employer is obliged to consult with the employee, if he or she agrees to work overtime.
The Labour Code clearly regulates, that employer main duty is such organization of work that each employee can carry out his/her tasks in a specified number of hours which contains the employment contract.
As in any case there are also exceptions. Overtime work is the responsibility of the employee, but only in situations provided by the Labour Code legal rules that includes:
– the need to conduct a rescue action in order to protect human life or health, protection of property, environment or removal of breakdown in the workplace,
– so-called ‘employer’s special needs’ – these are very unique and mostly impossible to determine earlier other circumstances. Of course, the specific needs of the employer as exceptional circumstances must be fully justified. One of such example is the sudden failure of the computer system, loss specific files and thus the necessity of re-specific tasks that need to be ready next day. In practice, the most common circumstances, which are so-called special needs of the employer, especially in the office field, there are all kinds of employee visits. Unfortunately, this type of visits very often require to overtime work to perform some additional work.
Only in the two above mentioned situations, the employer has the right to give the employee a command consisting in staying at work over the applicable employee’s daily number of work hours.
It should be noted that there there are groups of employees, to whom the above-mentioned exceptional situations do not apply. These are mainly women in pregnancy, workers between 16 and 18 years of age (so-called ‘young workers’) as well as people who care for children aged up to four years.
We should also note that ‘overtime work’ also has its limit and it cannot exceed 150 hours per calendar year.
To sum up, the workers should know their rights and know that overtime work without legal justification is an illegal employer action. Furthermore, in such situation, the employee has the right to refuse to stay at work after hours.
If there is no need to conduct a rescue action or have no place the exceptional circumstances justified by the specific employer’s needs, there are no grounds to justify a work after hours. In this case, the choice is up to the worker. The employer must clearly ask the employee, whether he or she is able to stay at work longer on a specific date and the employee can agree on this – ‘may’, but ‘not necessarily’.
Moreover, each employee should also know that the overtime work is entitled to additional financial compensation. If overtime work is performed on Sundays, holidays or at nights, and this is not normal hours and days of employee work which are contained in the contract as a normal working days, the employee has the right to receive 100% salary for the ‘overtime working hours’. In other cases, it is 50% of salary. Therefore, if our work falls for example from Monday to Friday, between 8 a.m. till 4 p.m., and our boss wants us to stay longer at work, he/she should pay us an additional remuneration.
The employer instead of extra pay for overtime work, may also reward this situation to the employee in the form of annual leave. According to the Labour Code, instead of the money for the extra work, the employer may also give the employee a paid holidays, that will be an amount as many as the number of extra hours worked.
If the daily employee working time is 8 hours and the number of overtime hours worked was 16 hours, the employer might assign the employee two days off work, which will be fully paid. It is also worth to know, that in accordance with Polish law, the compensation for overtime work is only the employer’s decision.
At times, which obtain an adequate, and especially ensuring an adequate level of financial work is a rarity, employees should increasingly extend to labor law to know that no employer is almighty.