03.05.2022 | Articles, SAVALnews
Many experts are constantly working more than the agreed working hours. Yet overtime is rarely paid. Why is this?
First of all, it is important to distinguish between overtime as defined by law and other work done outside regular working hours.
According to the Working Time Act, overtime occurs when the work is done at the initiative of the employer. It is well established in case law that overtime compensation must also be paid for work done as overtime with the employer's knowledge and implied consent. If the work does not meet the conditions described above, overtime does not have to be paid. Conversely, in the case of overtime, overtime pay must be paid, except in minor exceptional circumstances. The consent of the employee is always required for overtime work.
According to the Working Time Act, when flexible working hours are in use, overtime must be expressly agreed. However, it has been held in the case law that even in this case there may be implied consent by the employer.
If an employee works outside regular working hours on his or her own initiative and without external pressure, this is not considered as overtime work. Such work may not be compensated at all if the workplace does not have a system in place to compensate for the work. However, often in expert work working hours are flexible and sometimes there is also a working hours bank. The work done with these is compensated with time off (compensatory leave) or, less often, with money. The main difference with overtime pay is that balance hours are usually compensated on a one-to-one basis, while overtime hours are compensated at a higher rate.
There is then a wide grey area between overtime and the voluntary overtime work described in the previous paragraph. Experts, in particular, often have deadlines and appointments other than those set by the person in charge, and the workload can easily become too heavy. Experts usually want to do their job well, even if it means working evenings.
Autonomy is an essential part of expert work, and the supervisor does not usually control what the expert does during the day. Thus, the law's requirement of employer-initiated overtime is not particularly relevant to expert work. It may not be possible to consider the concept of employer knowledge and implied consent when the job is sufficiently independent.
In addition, there is a tendency, especially on the employer side, to think that flexible working hours are there precisely so that the employee can deal with peak periods "at a time of their own choosing", for example late at night. However, the possibility of accumulating balance hours does not mean that overtime pay should not be paid if the conditions are met. For example, an expert may be entitled to overtime pay if the employer has required a particular piece of work to be completed by a certain date - when the employer knew that it would not be possible to complete the work within the regular working hours.
Many workplaces still have a strong culture where long days and working anytime day or night are valued. This is thought to be part of the job and a prerequisite for promotion. That's why many experts toil quietly and don't even record all their hours. To the extent that hours are recorded, it can be difficult in practice to take time off if there is constantly too much work.
There is also a lot of grey overtime because many workplaces believe that the scope of the Working Time Act is much narrower than it actually is.
"I am in a managerial position and have no working hours."
"I do independent expert work, the Working Time Act does not apply."
are common phrases that many employees themselves proudly cultivate.
However, apart from a few rare exceptions, expert work is only excluded from the Working Time Act if it involves managing an entire company or an independent part of it, or performing an equivalent independent function. An independent function is not, for example, a middle management position, which means that such a person is also covered by the Working Time Act. This means, for example, that overtime pay must be paid and the overtime must be agreed by the manager-employee.
There is also often an assumption that overtime payments could be included in the monthly salary. This is not the case, but a separate monthly compensation can be agreed. This requires that the employee's main task is to manage and supervise the work of other employees. Fixed compensation can also be agreed with experts who have a flexitime contract, but a flexitime contract is rare - it should not be confused with flexible working hours. In addition, some collective agreements allow for a more extensive local agreement on a separate monthly allowance.
For the purposes of the Working Time Act, remote work is working time in the same way as work done at the employer's premises. However, you often come across workplaces that do not allow remote workers to take advantage of flexitime or overtime. These are probably remnants of the old working time, where remote work played a different role. Of course, there can be many types of remote work agreements and instructions, but the regulation of overtime is mandatory for the benefit of the employee. In any case, it would be time to update the systems for tracking working time so that remote work is considered same as office work.
It is the employer's responsibility to monitor the time spent working and ensure adequate resourcing. The employer also has a responsibility under health and safety legislation to ensure the well-being of employees. Of course, experts themselves also have a responsibility to manage their working time. If your workload is constantly too heavy, you should take it up with your manager and react to the situation. You should also be active in communicating your own health and safety representative or shop steward/authorised representative and, if necessary, also be in contact with YTY's employment counselling. Regional State Administrative Agencies also monitor compliance with working time legislation.
If you want to ensure that you are entitled to overtime pay, you should also explicitly tell your manager that a project will not be completed during regular working hours and ask how to proceed.
Flexible working time means that the employee can influence his or her own working hours. Plus balances do not have to be made just because there is too much work. If experts were to demand more overtime pay, this might motivate the employer to acquire more resources.
More information:
Employment related legal services
Author:
Sirpa Leppäluoto Head of legal at YTY - Association for Managers and Professionals.
The article has been published on YTY magazine, issue 02/2022. Illustrations Adobe Stock.