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New regulations on the summarized calculation of the working time

 

 The latest amendments to the Ordinance on the Working Time, Rests and Holidays (the “Ordinance”) have introduced detailed regulations on the summarized calculation of the employees’ working time. 

The Ordinance regulates the so-called norm of duration of the working time – i.e. the reference amount of time within a period of summarized calculation of the working time when an employee has to work. The norm is defined in hours and depends on the number of working days during the period. For the precise calculation, the number of working days in the period is multiplied by the daily duration of the working time for an ordinary business day. Therefore, if the employer calculates the employees’ working time on a monthly basis, the norm of duration of the working time will be 160 hours in a month with 20 business days.

The new rules now unilaterally resolve an issue related to the summarized calculation of the working time of employees who work during the night (between 22 p.m. and 6 a.m.). Currently employers choose whether to pay as overtime the difference resulting from the transformation of night hours into daily hours; or to have some employees working less. The new provisions of the Ordinance stipulate that the transformation of night hours into daily hours has to be performed prior to the preparation of the schedule under which the employees will work night shifts (night shifts include 4 or more than 4 hours of night work). The Ordinance explicitly prohibits the transformation of night hours into daily hours if the employee’s labor agreement has been executed for night work only or when the employee works on reduced working hours.

The Ordinance provides rules on the re-calculation of the norm of duration of the working time when the employee is on a leave during the period for summarized calculation of the working time. The employer needs to subtract the number of days when the employee is on a leave from the number of days when the employee has been scheduled to work.

The employer could unilaterally introduce summarized calculation of the working time. For this reason, the Ordinance imposes on the employer any negative consequences with respect to the employees’ workload that could occur because of the summarized calculation of the working time.

If the schedule prepared by the employer leads to a situation where the employee works less hours than his or her norm of duration, the employer has to pay the full amount of the agreed remuneration. The same would apply if an employee’s labor agreement is terminated prior to the end of the calculation period and so the employee has not yet worked the full amount of hours envisaged for the said period. Those rules would not apply if the employee intentionally has not appeared at work during the period. If at the end of the period the employee has worked more hours than his or her norm of duration, the employer has to report and pay the excess hours as compensation for overtime work. Under such circumstances night hours are not transformed into daily hours since the transformation has already been applied at the time of the schedule’s preparation.

The employers’ obligation to prepare name schedules for each period of summarized calculation of the working time has now been broadened. Employees have to be aware of the schedules before the employees commence work under those schedules. In the event of inquiries, employers have to be able to prove to the supervisory authorities that the employees are acquainted with the schedule that is applicable at the time of the inquiry. Therefore, even though the Ordinance does not explicitly request so, employers are urged to inform the employees on the schedules in writing.

The employers obligation to keep a record of the schedules for three years following the end of the respective period for summarized calculation of the working time remains applicable.

The amendments will enter into effect on 1 January 2018. However, employers could apply the new detailed rules even prior to that date in order to resolve some of the practical issues that the business currently faces when applying the summarized calculation of the working time.