Overtime, clocking in and work rules

The judgment handed down on 2 February 2015 by the Labour Court of Mons offers is an opportunity for us to go over the rules for the payment of wages due for hours worked exceeding normal working hours as revealed by the worker's punctuality record.

The dispute before the Court opposed a commercial company and an employee, in this case a part-time cook who had resigned due to, he invoked, various irregularities committed by his employer throughout the duration of his contract (refusal to pay changing time, monthly deduction from the wages in the event of late arrival, work performed outside of working hours, etc).

This employee had already filed a complaint with the Employment Laws Inspection body and brought an action before the Labour Court.

The employer disputed his ex-employee's allegations and noted that the latter had never made the slightest reproach against them but that, on the contrary, the ex-employee had received several warnings. The employee, however, claimed otherwise...and claimed, among other amounts, the payment of the unrecorded hours worked at the end of the day, outside of normal working hours.

The Court sided with the employee and ordered the employer to pay him for said hours (spread over a period of 5 years) the amount of € 1331.04 as well as the holiday pay thereon.

The employer appealed the decision, criticizing the Court for accepting the employee's application despite the latter never having asked for or obtained written consent to work overtime, as required by the work rules.

Moreover, the employer argued, in the event that the Court should consider that payment for the overtime is due, that it would be appropriate, to set the due date of the amounts claimed, to refer to the date specified in Article 9bis, §1,sub-paragraph 2 of the Wage Protection Act of 12 April 1965.

The Labour Court of Mons dismissed the employer.

Let us follow its reasoning.

The principles

Wages constitute the consideration for work performed under an employment contract and the worker is entitled to the payment by the employment of the wages due to him (Art.3 bis of the Wage Protection Act of 12 April 1965).

Overtime justifies the payment of an ordinary wage which must be paid at the same time and be determined in the same manner as the wage due for the wage period during which compensatory rest is granted (Art. 9 bis, §1, sub-paragraph 1 of the Wage Protection Act of 12 April 1965). This is called the deferred payment of the normal wage (100 %) relating to the hours worked exceeding the legal or contractual limits on weekly working time.

It stands to reason, however, that in the event of a dispute initiated by the employer with regard to the overtime invoked by the worker, the latter has the responsibility to provide proof of his allegations pursuant to the joint application of Articles 870 and 1315 of the Judicial Code.

The worker must also demonstrate the employer's agreement with regard to the performance of such hours, such agreement being the result either of a request made by the worker or of an (even tacit) approval on his part.  

The daily work sheets are enforceable against the worker if he has signed them.

However, the circumstance that the worker failed to claim remuneration for the work performed during the performance of the employment contract has no impact on his right to a wage: waiving a right cannot be presumed (no more than the forfeiture of a right) and can only be deduced from facts not open to a different interpretation.

The Court's decision

It appears from the punctuality records that overtime was not paid despite being worked by the employee in question; these records are enforceable against the employer as they are an internal document for the employer on the basis of which, inter alia, he made deductions from the wage in the event of the employee arriving late at the workplace and leaving early.

The employer argued that the worker, pursuant to the work rules, had to obtain the employer's agreement to work overtime and to be paid for such.

However, pursuant to the hierarchy of rules laid down in Article 51 of the Agreements and Joint Industrial Councils Act of 5 December 1968, work rules may not infringe any higher rule, namely the above-mentioned Act of 12 April 1965 which provides that a worker is entitled to the payment by the employer of the wage payable in pursuance of the work performed.

The employer may not claim that this request is not justified insofar as there is only need to compare the punctuality records that list the total hours worked by the employee with his pay slips to find that all the hours indicated on the punctuality records were not paid.

These hours were worked with the, at least tacit, approval of the employer: the latter would not have hesitated to note the overtime worked by the employee if he, the employer, had not tacitly agreed to such or had not formally requested that it be performed, especially given that he used these punctuality records to make deductions for late arrivals or anticipated delays.

The employer was therefore fully aware of the overtime being worked without this having provoked any reaction on his part.

The overtime indicated on the pay slips must therefore be paid.

As a reminder, the employer argued, in the event that the Court should consider that the remuneration for the overtime was due, that it would appropriate, in order to set the due date for the amounts claimed, to refer to the date provided for in Article 9bis, §1,sub-paragraph 2 of the Wage Protection Act of 12 April 1965[1].

The Labour Court rejected this argument: the case envisaged by this legal provision is unrelated to the situation submitted before the Court given that it refers to the assumption of compensatory rest not granted for over 6 months due to the termination of the performance of the contract.

In this specific situation, the law provides that the remuneration remaining due should be paid at the end of this 6 month period and should be determined in the same way as the remuneration that would have been due at that time.

The employee is therefore entitled to claim entitlement to the legal interest due on the gross amount of € 1331.04 from the due date of the amounts due pursuant to Article 10 of the Act of 12 April 1965.

The Court also confirmed the entitlement to the payment of the severance payment on the € 1331.04 due.

In closing: the worker has to prove that he worked the overtime and that such hours were worked with the (at least tacit) consent of the employer.

The punctuality records accepted by the employer and which the latter, in fact, used to make deductions from the wages prevail over the provisions of the work rules according to which the overtime may only be worked with the employer's agreement.

Source: Labour Court of Mons of 2 February 2015, Cause list No. 2013 – AM – 405

FR/NL

[1]This article states that where the compensatory rest is not granted due to Article 26 bis, §3, sub-paragraph 4 of the Labour Act of 16 March 1971, the remuneration remaining due is to be paid at the end of the 6 month period provided for under this sub-paragraph and must be determined in the same way as the remuneration that would have been due at that time.

Author: Brigitte Dendooven

20/08/2015