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Working overtime in Luxembourg: the rules

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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 framed by Article 211-5 of the Luxembourg Labour Code.

Notion

Working time is the time during which the employee is at the disposal of his employer(s), if he has more than one, excluding rest periods.

The parties to this employment contract are in principle free to fix the working time between themselves.

However, this freedom is framed by Article 211-5 of the Luxembourg Labour Code, which limits the normal working time to 8 hours per day and 40 hours per week.

Thus, any work performed beyond the daily and weekly limits of normal working hours determined by law, i.e. beyond 8 hours per day and 40 hours per week, or determined by the parties, will be considered as overtime work.

Scope of application

Thus, the following shall 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 Organization Plan (WOP), except if these hours were worked for 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 a worker works overtime?

Any provision of overtime is subject to a prior notification or authorization procedure by the Minister of Labour in the manner provided below.

The use of overtime is limited to the following exceptional cases:

  • Preventing the loss of perishable materials or avoiding jeopardizing the technical result of the work
  • Special work such as drawing up inventories or balance sheets, deadlines, liquidations and closing of accounts
  • 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 appropriate authorisation, procedure described below.

Prior notification of overtime

Principle

Before any overtime is provided, the employer shall submit a reasoned request to the Labour and Mines Inspectorate (ITM).

This request must be accompanied, under penalty of inadmissibility, by justifications on the exceptional circumstances that motivate it and on the reasons likely to exclude the use of complementary salaried workers.

In addition, it will have to be accompanied by the opinion and signature of the staff delegation if it exists or, failing that, of the employees concerned by the provision of overtime.

In summary, the form will be obligatorily advised and signed by:

  • The staff delegation and, or failing that, the employees concerned
  • The head of the company or his delegate

Two cases of figures may then appear:

  • The opinion of the delegation or, failing that, that of the employees concerned, is favourable: prior notification of the request will be equivalent to 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 cited 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 case of force majeure that would hamper the proper organization of the establishment

In the aforementioned cases, the employer will have to inform the "Working Hours" department of the ITM.

The record of overtime worked

In addition to the notification, the employer will be required to send a record of overtime worked and forward it to the Ministry of Labour and Employment at the end of each period for which permission has been given.

He will also have to include the following information in a special register or file:

  • All extensions to normal working hours
  • Hours worked on Sundays, statutory holidays or at night
  • Remuneration paid in this regard

This will be presented to the ITM during any checks.

Collective labour agreements

Collective labour agreements will be able to 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 cover work performed in order to deal with an accident in case of emergency.

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Wage Increases

Any provision of overtime is in principle compensated either by wage increases or by time off.

In principle, overtime is:

  • Either compensated by compensatory rest of one and a half hours, at the rate of one hour plus half an hour of paid rest time per hour of overtime worked
  • Or counted
  • at the same rate into 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, the payment of overtime may be considered in two cases:

  • If for reasons related to the organization of the company, the recovery cannot be done according to the modalities cited above
  • OR If the employee leaves the company for any reason, before the recovery of the overtime worked

In these two hypotheses, the employee will be entitled to the payment of his normal salary plus 40%. This 140% will be exempt from tax and social security contributions, with the exception of contributions for benefits in kind on the increased overtime.

The employee will be entitled to the payment of his normal salary plus 40%.

However, the above conditions do not apply to employees with the status of senior manager, whose presence in the company is indispensable for its operation and supervision.

Senior managers are employees who have a salary that is significantly higher than that of employees covered by the collective agreement or scaled in some other way, taking into account the time required to perform the duties, if this salary is the counterpart of the exercise of a real effective power of direction or whose nature of the tasks involves a well-defined authority, a large independence in the organization of work and a large freedom of working hours and in particular the absence of constraints in the schedules.

Conclusion

The employer will only be able to impose the provision of overtime to his employee within the limits of reasonableness. In case of systematic recourse to overtime, this may be considered as an abuse of right and the employee will refuse to work these overtime hours.

Consensus

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Anne-Sophie Comazzi