Overtime in Luxembourg
An employer in Luxembourg can ask an employee to work overtime. However, this is only possible within reasonable limits and is subject to certain rules. The working time is defined in the employment contract, but it is also regulated by article 211-5 of the Luxembourg Labour Code.
Notion
The working time is the time during which the employee is at the disposal of his employer(s), if he has more than one, except for rest periods.
The parties to the employment contract are in principle free to determine the working hours between themselves.
However, this freedom is limited by Article 211-5 of the Luxembourg Labour Code, which limits the normal working hours to 8 hours per day and 40 hours per week.
Any work performed beyond the daily and weekly limits of the normal working hours determined by law, i.e. beyond 8 hours per day and 40 hours per week, or determined by the parties, will therefore be considered as overtime.
Scope of application
The following are therefore to be considered as overtime:
- Hours worked in excess of the average normal working time at the end of the reference period;
- Hours worked outside the Work Organisation Plan (WOP), except if these hours were worked in cases of force majeure or due to unforeseeable events;
- In cases where the law allows it, the provision of working hours beyond the limits of 10 hours per day and 48 hours per week.
What happens when an employee works overtime?
Any overtime work is subject to prior notification or authorization by the Minister of Labour as set out below.
The use of overtime is limited to the following exceptional cases:
- Prevention of loss of perishable materials or avoidance of jeopardizing the technical result of the work;
- Special work such as the drawing up of inventories or balance sheets, deadlines, liquidations and account closures;
- In cases of force majeure involving the public interest or in the event of events presenting a national danger.
However, in duly justified cases with no direct impact on the labour market, overtime may be worked provided that the employer complies with the prior notification or, where applicable, authorization procedure described below.
Prior notification of overtime
Principle
Before any overtime is worked, the employer must submit a reasoned request to the Labour and Mines Inspectorate (ITM).
This request must be accompanied, on pain of inadmissibility, by justifications on the exceptional circumstances that motivate it and on the reasons likely to exclude the use of additional salaried workers.
Moreover, it must be accompanied by the opinion and signature of the staff delegation, if any, or, failing that, of the employees concerned by the provision of overtime.
In short, the form must be notified to and signed by
- The staff delegation and, or failing that the employees concerned ;
- The head of the company or his delegate.
There are two possible scenarios:
- The opinion of the delegation or, failing that, that of the employees concerned, is favourable: the prior notification of the request will be considered as authorisation.
- On the other hand, if it is unfavourable or equivocal, the Minister of Labour will decide on the basis of the ITM and ADEM reports.
Exception
No notification or authorization for overtime will be required for the two cases mentioned in article 211-24 of the Labour Code, namely:
- When the overtime is caused by an incident that has just occurred or is about to occur ;
- When such hours are worked in connection with emergency work on machines or tools, or in the event of force majeure that would impede the proper organization of the establishment.
In the above-mentioned cases, the employer must inform the ITM "Working Hours" department.
The register of overtime worked
In addition to the notification, the employer must send a record of the overtime worked and forward it to the Ministry of Labour and Employment at the end of each period for which authorization has been given.
The following information must also be recorded in a special register or file
- All extensions of normal working hours;
- Hours worked on Sundays, public holidays or at night;
- Remuneration paid in this respect.
This must be presented to the ITM during any inspections.
Collective labour agreements
Collective labour agreements may derogate from the legal regime on working hours in sectors suffering from a shortage of labour and whose output is not likely to be significantly improved by measures of work organisation, mechanisation or rationalisation.
Maximum overtime
Under article 211-26, the total daily working time may not exceed ten hours per day, i.e. two hours of overtime per day. Moreover, this limitation does not apply to work performed in order to deal with an accident in an emergency.
Wage Increases
All overtime work is in principle compensated either by additional pay or by time off.
In principle, overtime is:
- Either compensated by a compensatory rest ofone and a half hours, at the rate of one hour plus half an hour of paid rest time per hour of overtime worked ;
- Or recorded at the same rate in a time savings account, the terms of which may be set by the applicable collective agreement or any other agreement between the social partners.
In addition, payment for overtime may be considered in two cases:
- If, for reasons related to the organization of the company, recovery cannot be made according to the terms and conditions mentioned above;
- OR If the employee leaves the company for any reason before the recovery of the overtime worked.
In these two cases, the employee will be entitled to the payment of his normal salary plus 40%. This 140% will be exempt from taxes and social security contributions, with the exception of contributions for benefits in kind on the increased overtime.
However, the above-mentioned conditions do not apply to employees with the status of senior executives, whose presence in the company is essential to ensure its operation and supervision.
Senior managers are employees who are paid a salary that is significantly higher than that of employees covered by the collective agreement or by other means, taking into account the time required to perform their duties, if this salary is the counterpart of the exercise of a real power of direction or if the nature of their tasks involves a well-defined authority, a large degree of independence in the organisation of work and a large degree of freedom in working hours, and in particular the absence of constraints in the timetable.
Conclusion
The employer may only impose overtime on his employee within the limits of reasonableness. In case of systematic recourse to overtime, this could be considered as an abuse of right and the employee could refuse to work overtime.
Sources and info: Luxembourg Labour Code
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