Overtime

A worker may not be employed above the time limit resulting from the provisions of the Act of 26 June 1974 Labour Code 1 (Further as: k.p.). However, he can legally do his job, exceeding the daily and weekly working time. There are, however, a number of conditions to be fulfilled to ensure that such work is lawful. Therefore, in the E.R. there are certain conditions which are necessary, the limit of overtime and the need for compensation. This article is devoted to the discussion of overtime institutions.

1. Introduction

Directive 2003/88 to 4 November 2003 concerning certain aspects of the organisation of working time 2 (Further as: Directive) does not define the concept of overtime, leaving this issue to internal legal systems. Overtime work is referred to under Article 6b a directive whereby the average working time over a seven-day period, including overtime, must not exceed 48 hours Overtime work should be understood to mean work performed above the working standard in force, as well as work performed above the extended daily working time, resulting from the current system worker and the working time schedule 3 .

2. Working time categories

„The staff member’s working time standard’ is the maximum time allowed for an employee to remain at the employer’s disposal daily or on average per week during a given accounting period. These standards may result from the provisions of the General Court (or specific laws), collective agreements, labour regulations or the timetable of working time. The working time distribution may regulate the working time standard of the worker for a given day under the working time system in which the worker was employed. While in most working time systems the daily standard is fixed, the working time distribution may vary from day to day within the limits of the standard.

Overtime work in individual operating time systems shall be work over the working time schedule dimension which shall not exceed:

• 1) at basic working time (Article 129 (p.) – 8 hours daily or average 40 hours for a week;
• 2) at equivalent working time, 12 (Article 135 k.p.), 16 (Article 136 (k.p.) or 24 hours (Article 137 (p) and on average 40 hours for a week;

1. while working in continuous traffic and on work that cannot be stopped due to the need to continuously meet the needs of the population (Article 138 (p.) – 8 hours, a one on some weeks – 12 hours, and above average 43 hours per week for a settlement period not exceeding one the month;
2. in reduced working time (Article 145 (e) abbreviated daily or weekly standard; and
3. on a task basis (Article 140 (k.p.) — working in hours devoted to the performance of tasks which have been designated in such a way as to prevent them from being carried out within the framework of the basic working time standards, as well as to perform additional tasks assigned to the employee on an ongoing basis.

Interpretation Article 130(2)(3) in conjunction with Article 151(1) k., as applicable 1 January 2004, according to which holidays and periods of justified absence from work during the accounting period reduce the working time (Article 130(2)(3) (k.p.) and consequently that overtime is the work of an employee performed above this reduced dimension, is within the limits of the reasonable interpretation. This position was maintained in the judgment of the Supreme Court of 10 June 2008 4 .

3. Admissibility of overtime work

Overtime work is work performed above the standard of working time, regardless of its intensity, and in particular whether during normal working time the worker has done the tasks set for him. This is one of the so-called personal risk of the employer.

According to Article 151(21) (k) overtime does not constitute a time to work off the employee's dismissal at his written request for personal matters. Unemployment shall not affect the right of the worker to an uninterrupted 11-hour rest daily and uninterrupted 35-an hour of weekly rest.

Overtime work shall be permitted only if:

• 1) the need for rescue operations to protect human life or health or to protect property or remedy a failure; and
• 2) the specific needs of the employer (Article 151(1) (p.).

first the reason is due to sudden unforeseen events where the need to organise a rescue operation or to remove the consequences of the accident has been caused by a threat to human life or health or to the property of the workplace. An example of such situations can be, for example, flooding, fire or construction disaster.

The need for overtime in such cases, its duration and the number of additional employees shall be decided by the employer or person acting on his behalf. Overtime is not limited by both daily and annual limits. Such work may be done until the intended results are achieved.

„The specific needs of the employer’ are other than the usual foreseeable needs of the employer’s activities. The normal predictable tasks of the establishment should be such that there is no need for overtime. Overtime work, due to the particular needs of the employer, can only take place if the employer has extraordinary needs and should not be a permanent part of the organisation of the work. The employer cannot therefore plan to employ overtime.

4. No overtime obligation tools

The provisions do not provide for institutionalised forms of control of the validity of an order to a worker working in overtime or some particular form or mode of issuing an order to work in overtime. The employer or person acting on his behalf shall decide whether this is necessary. The overtime work order may be issued in any way by any conduct of the superior, revealing to the satisfaction of his will.

If the need to do overtime work is due to objective working conditions which do not allow the worker to carry out the tasks assigned to him in the standard working time standards, it does not matter, in order to recognise that we are dealing with overtime work, whether such work has been done with the consent or knowledge of the superior. This position was set out in the judgment of the General Court of 3 October 1978 5 .

As a general rule, an employee shall be obliged to work overtime if the work has been ordered by authorised superiors. The sources of this obligation are seen as a general obligation to follow the instructions of supervisors concerning work (Article 100(1) k.p.) and in the obligation to care for the welfare of the workplace (Article 100(2)(4) (p.).

5. Situations excluded from overtime

The right of the employer to request overtime is not an absolute right. Some cases where overtime is unacceptable have been regulated in the United Kingdom. The absolute ban on overtime applies to pregnant women (Article 178(1) (b) and young workers (Article 203(1) (p.).

Provision Article 151(2) prohibits overtime work for staff employed in posts where maximum levels and levels of health-related factors are exceeded due to the particular needs of the employer. This prohibition does not apply to overtime due to the need to conduct rescue operations or to correct accidents.

Relative prohibition applies to child care workers up to the age of 4, staff cannot be employed in overtime without their consent (Article 178(2) and Article 1891 (p.).

Cases of refusal to do overtime work should also be assessed in terms of the principles of social coexistence. An employee is not obliged to execute an order contrary to contract, legislation and the principles of social coexistence.

6. Summary

Overtime work in Poland remains a widespread phenomenon. It is possible that this is due to the fact that the Polish economy is still a dynamic economy, while struggling with a shortage of labour. Companies that fail to obtain additional employees carry out work in an oversized way.

From the perspective of employees, this option is quite convenient because they work in overtime, which are usually better paid than working in the primary time. However, it would be appropriate to conclude this thread in such a way that not only a man is living by work. _________________________________________________

1 i.e. Journal of Laws of 2019, item 1040.

2 Official Journal of the European Union L, No. 299.

3 Article 151(1) k.p.

4 reference no. I BP 54/07.

5 reference no. I PRN 91/78.