Payment for overtime

Eugenio Taliana writes:
I have an employment contract which entitles me to an "overtime allowance" of a certain amount per month. This is given in full compensation for any hours worked over and above the maximum number of hours allowed by law. It is also paid to me regardless of whether I actually work overtime in any particular month.

My weekly working hours are 44 hours and I may be asked to stay longer if the management considers it necessary. However, the payment for the overtime would remain fixed.

Is this in accordance with EU law?

Thanks for your patience.

The EU law that applies here is the "famous" Working Time Directive, which concerns the organisation of working time and provides for a maximum weekly working time, on average, of 48 hours. This is inclusive of overtime.

This EU law is duly reflected in Maltese legislation.

So 48 hours is the maximum number of weekly working hours that is allowed by law. This does not mean that a worker cannot possibly work longer hours.

It means that if the management wants an employee to work more overtime hours it must first obtain the consent of the employee. An employee who refuses to work longer hours may not be penalised or, for instance, dismissed.

On the basis of the above, the question is whether, by signing his employment contract, the reader has given his consent to work longer hours than the total of 48 hours.

My impression is that this seems to be the case. However, the information provided by the reader is too scant to judge his personal situation and a number of variables could arise.

For instance, the way the contract (as quoted by the reader) seems to be written implies that the employer may have sought to obtain the reader's consent to work more than 48 hours per week, should the need arise. And, once the reader signed the contract, then he has given his consent.

This is somewhat of a grey area in that the law does not make it clear how the consent should be obtained from the worker. It just states that there should be prior consent.

My view is that the consent should be in writing, in a standard consent form and that its wording should be clear.

In other words, the employee who is signing the consent must be fully aware that it means that he is agreeing to work more than 48 hours per week should the need for overtime arise. And he must be informed accordingly.

Moreover, I think that the consent form should not be signed at the same time of the signing of the contract since it is obvious that a person who wants a job can hardly refuse to sign an overtime-consent at the same time when he is signing his contract of employment.

Indeed, the European Commission had suggested a change to EU law in this sense, in order to make the consent issue more clear and specifically to separate it from the signing of the contract.

As to the overtime allowance, which seems to be limited regardless of the number of hours worked, this too is part of the contract to which the employee agreed. However, this could obviously work in his favour (when he does not work many overtime hours) or against (when he does).

Nonetheless, if the employee feels that the current situation works against him, he does have a way out. In my view, he should renounce, in writing, his consent to work more than the maximum working and renegotiate afresh.

Indeed, the law is clear that "no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work".

My view is that a consent can be withdrawn just as much as it can be given and a worker cannot be penalised for withdrawing it. Of course, however, this would mean that the reader would be giving up his overtime allowance and would need to renegotiate that too.

Correction: Writing on the use of safety belts on school transport (July 25) I stated that EU law requires passengers on school transport vehicles to use the safety systems provided while they are seated.

This is correct. But I wrongly assumed that this law applies to all vehicles, old and new. In fact, EU law only applies to vehicles that are already fitted with safety belts and, for safety reasons, does not require vehicles not equipped to be fitted with seat belts. Sorry.

Readers who would like to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.