The law on feasible and flexible work - ‘Voluntary’ overtime hours

The introduction of a new system of overtime hours, the 'voluntary' overtime hours, is an important and innovative measure of the act of 5 March 2017 on feasible and flexible work.

It is a 'key' measure when it comes to flexibility.

Overtime hours: two systems since 1 February 2017

The new system of overtime hours (new article 25bis of the employment act of 16 March 1971) completes the existing system of overtime hours.

Since 1 February 2017 two systems of overtime hours co-exist:

• the system of the 'classic' overtime hours;
• the system of the 'voluntary' overtime hours.

The system of the 'classic' overtime hours

The employment act of 16 March 1971 lists the circumstances under which overtime hours can be performed, i.e. hours exceeding the normal working time limits.

This list of circumstances is exhaustive and contains: the extraordinary increase in work, an unforeseen necessity, an imminent or occurred accident, urgent work on machinery or equipment.

These overtime hours can only be performed when the employer has fulfilled certain conditions. In principle, he must obtain the prior agreement of the Social Laws Inspection Service and of the trade union delegation and he must communicate the number of performed overtime hours to the subregional employment service.

These hours open the right to time off in lieu and/or the payment of the legal overtime wage as provided for by article 29 of the act of 16 March 1971, i.e. 50% for overtime hours performed in the course of the week and 100% for overtime hours performed on Sundays or public holidays.

The system of the 'voluntary' overtime hours

Principle

Since 1 February 2017, the employee is allowed to perform 100 overtime hours per calendar year at the most. A sectoral collective bargaining agreement which has been declared binding by Royal Decree may raise this limit to 360 hours (at the most).

The employee is not allowed to work more than 11 hours per day and 50 hours per week.

Both the full-time and the part-time employees are eligible.

Dual voluntarism - Individual negotiating

These hours can only be performed on the initiative of the employee and with his agreement, and on the condition that the employer wants them to be performed.

The employee must accept voluntarily and his agreement must be laid down in writing for a renewable term of 6 months.

This agreement must be concluded expressly and prior to the period in question.

The law does not determine the form of the agreement, nor the contents thereof. The agreement may therefore take the form of an e-mail, an annex, a contract. It is not allowed to be concluded orally.

A sectoral collective bargaining agreement filed with the registry of the FPS Work no later than 31 January 2017 may depart from the provisions in force.

No request for prior permission or check afterwards. No statement of reasons.

Everything is negotiated on an individual basis.

No recuperation - Overtime wages

In contrast to the 'classic' overtime hours, these hours must not be recuperated.

They give right to the payment of an overtime wage provided for by the article 29 of the act of 16 March 1971. These may also be added to the worker’s career account.

Overtime hours and working time

The 'voluntary' overtime hours shall not be taken into consideration for the calculation of the average weekly working time.

The first 25 (or maximum 60 if provided for by a collective bargaining agreement in the sector) 'voluntary' overtime hours do not count for the calculation of the internal limit of 143 hours.

Comparison of the two systems

Source: articles 4, 5, 7 and 34 of the act of 5 March 2017 on feasible and flexible, Belgian Official Gazette of 15 March 2017.