Overtime work of a private sector employee

Verified 21 June 2023 - Legal and Administrative Information Directorate (Prime Minister)

What's an extra hour? Is the employee free to work overtime and how are they paid? We present you the scheme according to whether you work full-time or part-time.

Full-time employee

Any hours worked, at the request of the employer, beyond the legal duration (35 hours per weekor 1,607 hours per year) is an additional hour.

Overtime worked entitles the employee to more favorable remuneration (increased hourly rate) and compensatory rest equivalent to the increase.

Some overtime work also entitles the employee to a compulsory quid pro quo.

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General case

The employee may be required to work overtime at the request of his employer.

Executive

The executive is not affected by overtime.

Employee in annual package in days

The employee working in package in days is not affected by overtime.

At the request of the employer

Overtime work is done at the request (written or oral) of the employer.

In principle, the employee may not refuse to perform overtime decided by the employer.

Please note

The employee cannot be penalized if he exceptionally refuses to work overtime requested by the employer because he has not been notified early enough.

At the request of the employee

The employee is not entitled to the payment of completed overtime if they have not been requested by the employer.

However, overtime shall be payable if it is established that the performance of such hours was made necessary by the tasks entrusted to the employee.

In this case, the payment of overtime worked cannot depend on the employee's compliance with a procedure of prior agreement of the employer.

The employer's agreement may therefore be implicit. The employer gives his implicit consent when he validates the performance of overtime recorded by the employee in the scoring software.

Example :

The employer is informed by the employee that he has to cope with an increase in activity. By not relieving him of the burden, he is not opposing the carrying out of overtime.

Overtime can be worked up to a certain number of hours per year.

This time limit is called annual quota.

The number of hours provided for in the annual quota shall be defined by collective agreement or collective company agreement or extended branch agreement.

If none of these 3 agreements exist in the company, the maximum number of overtime hours is 220 hours per employee per year.

Overtime is counted by calendar week.

The employee may work overtime in excess of the annual quota. The conditions for the completion of these hours are then fixed by collective agreement or collective company agreement or extended branch agreement.

However, an employee who works overtime must not exceed maximum weekly working time.

Some hours carried out beyond the legal duration of work shall not be regarded as overtime. This is the case in the following cases:

  • In the case of hours worked for certain urgent work (organization of rescue measures, prevention, imminent accidents)
  • In the case of hours worked in excess of the quota and giving entitlement to obligatory rest consideration in addition to compensating rest acquired

The rate of pay for overtime depends on whether or not a collective agreement or a collective company agreement or a extended branch agreement.

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Treaty provisions

The collective agreement or the company collective agreement or the extended industrial agreement shall fix the level of remuneration for overtime worked beyond the statutory weekly period.

The remuneration is subject to one or more premium rates depending on the number of hours worked.

Each rate is at the minimum set at 10%.

The surcharge shall apply to the gross amount salary.

Please note

Overtime (day or night work) shall be counted by calendar week.

Overtime pay may be replaced, in whole or in part, by a compensating rest equivalent.

In this case, the duration of the rest period shall be equivalent to the increased remuneration.

Example :

An additional hour paid in principle at a rate increased by 50% gives rise to an equivalent compensating rest period (i.e. 1 hour 30 minutes).

In the absence of treaty provisions

In the absence of treaty provisions, hours worked in excess of the legal weekly period shall be increased by:

  • 25% for the first 8 overtime hours worked in the same week (from 36e at 43e time)
  • 50% for the following hours (from 44e time)

The increase applies to the gross amount of the salary.

Please note

Overtime (day or night work) shall be counted by calendar week.

Overtime pay may be replaced, in whole or in part, by a compensating rest equivalent.

In this case, the duration of the rest period shall be equivalent to the increased remuneration.

Example :

an additional hour paid in principle at a rate plus 50% gives rise to an equivalent compensating rest period (i.e. 1 hour 30 minutes).

Overtime worked shall be entitled to quiescent consideration for the employee.

The counterparty at rest is added overtime pay or compensatory rest.

Consideration in the form of rest shall be provided under conditions which vary according to whether these hours are completed within the limit of the annual quota of overtime which may be worked or beyond.

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Within the annual quota

A quiescent consideration is possible if it is provided by collective agreement or collective company agreement or extended branch agreement.

Beyond the annual quota

A quiescent consideration is obligatory for any overtime worked in excess of the quota.

The consideration is set at:

  • Either to 50% overtime worked in excess of the quota for companies of up to 20 employees
  • Either to 100% of the same hours if the company employs more than 20 employees

A larger consideration may be fixed by treaty provisions.

In the absence of treaty provisions, the employee may take a full day or half a day's rest, at his convenience, once the compulsory consideration for rest has reached 7 hours.

The employee shall send his request for rest to the employer at least 1 week in advance.

The request shall specify the date and duration of the rest period.

In the 7 days upon receipt of the request, the employer shall inform the employee of his agreement.

In the event of disagreement, the employer may not postpone the taking of rest for more than 2 months.

Except treaty provisions or practice provided for in the company, hours not worked as a result of a public holiday or a day off shall not be treated as equivalent to actual working time for overtime accounting purposes.

This means that if the employee was absent for part of the week (public holiday or holiday) and worked more than 35 hours in that week (the legal weekly working time), he did not work overtime.

Hours worked beyond 35e hours are not increased and are paid at the normal rate in this case.

Example :

An employee works 35 hours a week, Monday to Friday, for 7 hours a day. He works the following hours: Monday 8am, Tuesday 8am, Wednesday public holiday (usually the employee works 7am), Thursday 8am, Friday 8am. There are then 39 hours (32 hours + 7 hours on the public holiday) divided into 35 hours at normal rate (i.e. the legal weekly working time) + 4 non-overtime hours at normal rate. However, the employer may apply a more favorable statement to the employee by considering the last 4 hours as overtime.

Yes, compensation and overtime rates must be shown on the employee's payroll.

The employee must receive the amount of overtime worked on the same date as his regular salary.

When a week straddles 2 months, overtime payments are carried over to the next payroll.

Overtime carried out in 2022 (and carried over to the 2023 tax return) are exempt from income tax up to €7,500 per year.

Overtime beyond this limit will be subject to tax.

Example :

Your overtime earned you €1,500 crude (either €1,215 net tax) in 2022. This amount is exempt from tax.

Your overtime earned you €9,800 crude (either €7,938 net tax) in 2022. The taxable amount is €438 (€7,938 - €7,500).

Exempt overtime is pre-filled in the 2023 tax return. It should be ensured that the amount carried forward is correctly reported.

Overtime worked shall be exempt from payroll contributions basic and supplementary old-age insurance up to 11.31% salary.

Please note

The calculation of the payroll tax reduction is applied directly to the payroll by the employer.

In case of non-payment of overtime or non-recognition of his counterparties on rest, the employee can report the breach to his employer by letter with RAR: titleContent and ask him to do a salary recall.

The employee can also get closer to staff representatives, if they exist in the company.

In case of non-settlement of the dispute, the employee can seize labor inspection and/or the labor council (CPH).

Please note

The employee can provide any evidence justifying the performance of overtime (time statement by time system, emails, diary, etc.).

Part-time employee

A part-time employee may be required to work beyond the duration of the contract.

In this case, the employee performs additional hours.

It's not overtime.

Number of additional hours that can be worked

Additional hours may be completed up to 1/10e the weekly or monthly working hours laid down in the contract.

Example :

if the contract provides for a working time of 30 hours per week, the employee may work a maximum of 3 additional hours.

However, it may be increased to 1/3 the weekly or monthly duration per treaty provisions.

Remuneration for overtime

Any additional hours worked shall give rise to a salary increase.

The rate of increase for an additional hour may be fixed by treaty provisions.

The rate of increase shall be:

  • Either 10% for each additional hour completed up to 1/10e the duration of work laid down in the contract
  • Either 25% for each hour completed above 1/10e (and up to 1/3)
Right of refusal of the employee

The employee has the right to refuse to work additional hours:

  • If he's informed less than 3 days before the date on which overtime is scheduled
  • Or if overtime is worked beyond the limits laid down in the employment contract

The employee's refusal on any of these grounds is not fault or grounds for dismissal.

On the other hand, the employee cannot refuse to carry out the additional hours if he is informed at least 3 days before and that the hours are worked within the limits laid down in the contract.

In this case, the employee's refusal constitutes a fault which may justify a disciplinary sanction (warning, dismissal...) or, depending on the circumstances, a dismissal for misconduct.

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