The Overtime Hours according to article 35 of the Workers Statute are: “those that are carried out over the maximum duration of the ordinary working day“.
However, the complexity of the term goes beyond the definition provided by the regulations. There are different types, forms of compensation and regulation, effect on the contribution and other relevant aspects that must be taken into account.
Previously, one of the objectives in labour matters was the elimination or at least the reduction of Overtime Hours. However, in some cases, it has become one of the objectives most sought by companies and workers. Although for the first case, the realization of these hours allows to reach the objectives of each entity. Without resorting to eventual hiring, difficult to manage due to the immediate needs of each sector and the existing difficulties in obtaining qualified profiles. Therefore, for the second group, the workers, it supposes a system of additional income, income that is difficult to obtain with the ordinary salary of the worker.
In order to provide a concrete and detailed vision of the term, as well as its regulation and compensation, our Labour Consulting Dept. will break down the information into four large groups.
Overtime Hours. Typology
In any case the work in Extraordinary Hours will be voluntary. Unless it has been agreed in a collective agreement or individual work contract within the limits of section 2 of article 35 of the TRET. And they can be qualified as common Extraordinary Hours and hours due to force majeure:
- Force majeure hours. Those that are carried out to prevent or repair a loss or urgent extraordinary damage.
- Common overtime. All hours that exceed the maximum ordinary working day and are not qualified as “force majeure”.
Limits and Prohibition
Most of the collective agreements applicable to each sector regulate the abolition of overtime as far as possible. Since, occurring in a habitual way, the regulation implies that this extra work could be carried out and supplied by means of the eventual hiring of additional labour.
In this sense, the regulations establish several limitations or prohibitions:
- It is forbidden to carry out Overtime Hours for minors under 18 years of age.
- Likewise, it is forbidden to carry out Overtime Hours for part-time contracts. Additional agreed hours are possible.
- Night work is also prohibited.
- Finally, the performance of Overtime Hours during part-time maternity leave is prohibited.
As an annual limit, the Workers’ Statute establishes a maximum of 80 overtime hours on an annual basis. Without taking into account those that have been compensated as rest time.
Remuneration or compensation
Article 35.1 of the Workers’ Statute states that, by collective agreement, overtime may be paid or compensated for by equivalent periods of paid rest. The remuneration of these will be agreed or regulated by agreement. They may never be paid less than the amount of an ordinary hour.
In the event that the collective agreement does not regulate it, and nothing has been indicated in the work contract in this respect, the overtime worked shall be understood to be compensated by means of obligatorily paid rest within the four months following its performance.
Those hours that are compensated by unpaid rest, will not be computed within the annual limit of 80 hours. This paid rest time does not have to be the equivalent of the hours worked. The same applies to the amount to be remunerated, since in most cases, it is usually greater than the amount of ordinary hours worked by each worker.
In the event that the workers have begun the employment relationship during the current year, the limitation of Extraordinary Hours will correspond to the proportional part of the annual limit of 80 hours.
Overtime Hours. Quotation
If they are economically compensated, they will be integrated in the receipt of salaries being subject to contribute to the social security and to be taxed in IRPF. In this sense, the contribution of these will depend on the type of overtime to be done, depending on whether they are due to force majeure or ordinary.
| Type of overtime | Company | Worker | TOTAL |
| Force majeure | 12,00 % | 2,00 % | 14,00 % |
| Ordinary | 23,60 % | 4,70 % | 28,30 % |
In the case of those employees with contribution bases not covered by the maximum contribution base established for each period, overtime will also be covered by AT and EP, Unemployment, Fogasa and Vocational Training.
The amount paid for overtime will not be taken into account for the purposes of a future benefit for temporary incapacity due to common illness, permanent incapacity in its different degrees, future retirement pension, etc. If it is included in the contribution base for Accident and Occupational Illness. Therefore, if the employee suffers a temporary disability due to an accident at work or occupational disease, the amount of the benefit will be increased by the average remuneration received for overtime over the last twelve months.
Reminder
In any case and for the purpose of calculating overtime, the working day of each worker shall be recorded day by day. And it shall be totaled in the period established for the payment of the remunerations, giving a copy of the summary to the worker on the corresponding receipt.
However, it is important to remember that, after the publication of RDL 8/2019 and the recent dissemination of the technical criterion of labour inspection, it is compulsory to carry out a Hourly Record of employees. In all companies to accredit effective working time. And from which control is derived when Extraordinary Hours are carried out and if they have been compensated with rest or have been remunerated.
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Labour Consulting
