La Minute ALEBA – Overtime
ALEBA explains the principles about overtime, regulated by the Labour Code, the CBA for Banks and for Insurance Companies.
La minute ALEBA – 60 seconds to understand your rights – overtime
The provisions on working hours apply to all employees in the public and private sectors as well as to persons working for the purpose of vocational training, provided they do not benefit from other more favorable legal or contractual provisions (art. L. 211-1).
Employees are excluded (Art. L. 211-2):
– Family businesses in which only the ascendants, descendants, brothers and sisters or relatives to the same degree of the employer are employed;
– Inland waterway transport companies;
– Fairground enterprises;
– At home;
– Travellers and sales representatives, insofar as they carry out their work outside the establishment;
– employees in a position of effective management and senior staff whose presence at the company is essential for its operation and supervision.
Special laws, Collective Bargaining Agreements and, failing that, public administration regulations may regulate the working time regime for certain categories of persons (list in Art. L. 211-2).
Definition of working time:
Working time means the time during which the employee is at the disposal of his or her employer(s), if there is more than one, and during which he or she must comply with the instructions of the employer(s) without being able to freely pursue his or her personal occupations.
Length of working time:
Limits are imposed by law (art. L 211-22), and the CBA Banks and insurance CBAs include these limits. These are daily and weekly limits:
– 8 hours per day (in the CBA Bank, this can be 9 hours without exceeding 40 hours/week if the working week is 5 days or less)
– 40 hours per week (spread in principle over 5 consecutive working days according to the CBA for Banks, can be extended to 6 days, see Art 16 CBA Bank).
The maximum working time cannot exceed 10 hours per day and 48 hours per week (Art. L. 211-12). However, these hours must be worked at the request or with the authorization of the employer.
It should be noted that if the employer disputes the existence of overtime, it is up to the employee to prove it (case law accepts this).
The use of overtime is limited to certain exceptional cases (Art. L. 211-22). Except in emergencies, no formalities are required at this time (accident, machine breakdown, etc.).
Moreover, the employer can force the full-time employee to work overtime (in case of refusal, there is a risk of dismissal). For the part-time employee, costraint is not possible (refusal by the employee to work overtime is not a permissible reason for dismissal). There must be a mutual agreement between the employer and the employee according to the terms of the employment contract (or on a voluntary basis), and this must not exceed the normal working hours of a full-time employee.
Pregnant and breastfeeding employees and apprentices have the right to refuse to work overtime.
Overtime entitles the employee to either:
– compensation in the form of a rest day (1.5 hours for each hour of overtime worked in the CBA Bank and Insurance)
– a cash payment of 150% (in the CBA Bank, the code provides for 140%) in case of agreement between the employer and the employee or if the employer refuses to take compensatory rest (the employee cannot therefore impose the payment of overtime)
– a combination of both above-listed solutions
For the payment, in case of a reference period, the payment of overtime will be made with the salary of the month following the calculation.
For compensation in rest time, in principle it is the employee who determines the day unless the needs of the company prevent this. In this case, the deferral is possible until the end of the next reference period.