Workable and flexible work

2. Voluntary overtime

Employees will be allowed to perform overtime in the
context of the new regulation relating to workable and
flexible work, where until now it was only possible for
specific reasons and in specific circumstances

In principle, overtime is allowed only for specific reasons and in specific circumstances, as explicitly listed in the Labour Act of 16 March 1971 (hereafter "the Labour Act").

By introducing the system of "voluntary overtime" the legislator has created a completely new possibility for the employee to perform overtime on a voluntary basis.

The initiative is left to the employee.

So, he presents himself, so to speak, as a volunteer to perform overtime for his employer. The effective performance of overtime is only possible to the extent the employer wishes to have such overtime performed.

1. How many overtime may be performed?

The employee is allowed to perform overtime in the course of one calendar year up to a maximum of 100 hours. By collective labour agreement rendered compulsory by royal decree this maximum number may be increased up to 360 hours.

Given the reluctance of the trade unions towards this system of voluntary overtime, it is to be expected that such collective labour agreements will rather be the exception.

2. No voluntary overtime without an individual agreement between the employee and the employer.

The employee’s willingness to perform overtime for his employer must be laid down in an individual agreement. The agreement between the employee and the employer concerning the overtime must be confirmed in writing for a period of 6 months, renewable for periods of 6 months.

This agreement must be unambiguous and must be established previously to the starting date of the period concerned.

According to the employers’ federations, the willingness of the employee to perform overtime could have been established in a more simple way from an administrative point of view.

By imposing successive agreements of 6 months, the employee is given the guarantee that he can step out of the system at the end of each period of six months, during which he volunteered for performing overtime.

A derogation from these formal requirements can be made by a collective labour agreement entered into within the framework of a joint labour-management committee and filed with the General Directory of Industrial Relations of the Federal Public Service Employment, Labour and Social Consultation at the latest on 31 January 2017. Since the statute has been approved by the Parliament on 23 February 2017, this possibility to derogate is rather converted into a fiction because of the deadline of  31 January 2017. In any event, up to now we do not have knowledge of the filing of any such collective labour agreement.

3. Respect of the internal limit and
the applicable daily and weekly limits

The system of the internal limit aims to ensure that employees do not perform in the course of one year more than maximum 143 hours than the number of working hours that have to be performed during the year in accordance with the normal work time schedule.
As soon as this limit is reached, recuperation rest must be granted (read more in section 3).

The first 25 hours performed within this system of "voluntary overtime" are not included for the calculation of the internal limit of 143 hours. The other hours of voluntary overtime are. The number of hours of overtime, which is not included for the calculation of the internal limit, can be increased up to a maximum of 60 hours by collective labour agreement rendered compulsory by royal decree.

Again, it seems rather unlikely that such collective labour agreements will effectively be entered into considering the reluctance of the trade unions. The trade unions have indeed uttered serious criticisms concerning the non-inclusion of the first 25 hours of overtime performed for the calculation of the internal limit of 143 hours. Rightfully so, they claim that, as a result thereof, the internal limit has de facto been increased to 168 hours. Consequently, it has been made possible for the employer to have an employee perform in total 168 hours of overtime until he is obliged to grant time of recuperation rest.

The applicable daily and weekly limits of respectively maximum 11 hours and 50 hours have to be respected in any way.

4. Payment of overtime pay

The overtime performed within the framework of "voluntary overtime" is compensated by payment of overtime pay in accordance with the stipulations of article 29 of the Labour Act of 16 March 1971 and no recuperation is required. Consequently, no compensation rest applies for the "voluntary overtime" as opposed to the "ordinary overtime", for which compensation rest applies in most cases.

The voluntary overtime may be performed outside the work time schedules, as laid down in the work regulations. This, obviously, facilitates the implementation of the "voluntary overtime" system.

Leila Mstoianleila.mstoian@peeters-law.be
Marcel Houben marcel.houben@peeters-law.be