The Court of Justice of the European Union emphasises that the ‘characteristic feature of overtime, as the word indicates, is that it is performed outside normal working hours and is additional thereto’. In Eurofound’s 2022 report Overtime in Europe: Regulation and practice, overtime is defined as ‘working time beyond normal working hours’. It is work that is not part of an employee’s regularly scheduled working week and for which an employee may be compensated. There is no legal definition of overtime in Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time.
While the Eurofound report points to the fact that national-level statistics on the shares of employees performing overtime in Europe vary greatly, it does report that in most countries with data available the share of employees stating that they work overtime on a regular basis is quite substantial – in most cases, hovering under or over 10%.
Most Member States establish a framework setting the rules for maximum working time, providing the basis for negotiators at various levels to determine detailed arrangements for actual working time. According to the previously mentioned Eurofound report:
Beyond this, there are different approaches to regulating overtime among the Member States: some approach overtime as a separate topic of regulation; others address it as one component of working time regulation more generally.
Regulations on overtime also work differently in different countries, as the report specifies:
While in some the default view is that working overtime is a normal part of employees’ duties, and that they should therefore make themselves available for it, in others overtime is seen as exceptional, and to be authorised only under specific circumstances. In addition, the right of the worker to refuse to carry out overtime is seldom absolute. Often, the burden is on the employee to provide a ‘valid’ or ‘good’ reason to be excused from working overtime by the employer.
The regulatory frameworks in most of EU countries establish limits on overtime, but they cannot be easily compared. The definition of overtime used in the Eurofound report ‘implies that the threshold at which overtime begins is generally the normal working time established for full-time workers through collective bargaining or in legislation’.
When properly approved, overtime usually attracts a premium rate. Compensation may be monetary (additional wages) and/or take the form of time off (additional leave), to be taken within a specified, and usually relatively limited, period. Here, again, there is an important diversity of regulations across the Member States. As stated in the Eurofound report:
The most common pay premium is 50% of regular pay (time off in lieu usually attracts the same premium, with 1.5 hours’ paid leave compensating for 1 hour of overtime). However, pay premiums vary from 10% to 100% or even 150% in very specific circumstances, such as overtime carried out during public holidays.
To ensure compliance with the regulations, in many countries employers are required to record employees’ working hours and make the information available to the relevant authorities, for instance the labour inspectorate. The Eurofound report mentions that sanctions for non-compliance generally take the form of financial penalties, with fines varying from a few hundred to tens of thousands of euros.
The EU imposes limitations on working overtime in Council Directive 93/104/EC of 23 November 1993 (as amended by Directive 2000/34/EC of 22 June 2000). Article 6(2) prescribes that ‘the average working time for each seven-day period, including overtime, does not exceed 48 hours’.
Council Directive 91/533/EEC of 14 October 1991, the Written Statement Directive, imposes an obligation on employers to inform employees of the conditions applicable to the contract or other employment relationship, and specifies in Article 2(2)(i) that information be provided about the ‘length of the employee’s normal working day or week’. Although this provision does not refer to overtime, the directive provides that all ‘essential aspects’ of terms and conditions of employment must be notified. A decision of the Court of Justice of the European Union rejected the argument that the phrase ‘length of the employee’s normal working day or week’ included obligations related to overtime, even when habitually worked. Nonetheless, information regarding overtime obligations was still necessary, according to the court, since the directive’s Article 2(2) does not provide an exhaustive list of terms and conditions of employment, about which information must be provided, but should include all essential elements, including overtime.
The Written Statement Directive has been replaced by Directive (EU) 2019/1152 on transparent and predictable working conditions.
Health and safety ; night work ; recording of working hours ; rest periods ; shift work ; stress at work ; working time ; transparent and predictable working conditions
Eurofound (2022), Overtime, European Industrial Relations Dictionary, Dublin
https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/overtime