In a job where it is not possible to predict the work schedule, a part-time employee is hired. According to Article 40, Part 2, Clause 7 of the Labor Law (DL), in such a situation, the following information should be specified in the employment contract:
- the work schedule is variable;
- contracted working time, which is the guaranteed paid working time within a month;
- at what time the employee is obliged to perform the work;
- the minimum notice period before starting or withdrawing work.
Should this type of employment contract state that:
- work is organized in shifts (respectively, it is not necessary to draw up a shift schedule at least a month in advance and apply other rules for shift work);
- the guaranteed paid working time is essentially considered part-time working time;
- if the normal working hours are exceeded in the given month, will overtime be paid according to general principles?
With the rise of part-time, temporary full-time and part-time work, Directive 2019/1152 on transparent and predictable working conditions in the European Union (EU) was proposed. It called for the right to greater predictability of working hours and reasonable advance notice for employees with variable work schedules. In order to eliminate the lack of predictability in employment relations, it was necessary to adopt this directive. With the adoption of Directive 2019/1152, EU member states were required to transpose it into national legislation.
Information to be specified in the employment contract
In order for an employment contract to be considered concluded, the parties must agree on the essential components of the contract. Article 39 of the Labor Code stipulates that the essential components of an employment contract are:
- work to be done;
- wage;
- the employee's obedience to a certain work schedule and the employer's orders.
In order to ensure compliance with Directive 2019/1152, Article 40, Part 2 of the DL lists the information that must be specified in the employment contract, but not all of it is an essential part of the employment contract. Article 40, Part 2, Clause 7 of the Labor Code stipulates that in the employment contract, if part-time work has been agreed and the work schedule is not completely or mostly predictable, it is stated that the work schedule is variable, and also includes information about the agreed working hours, which is the guaranteed paid working time within a month, as well as information in which time the employee can perform work or would be obliged to perform work, and information about the minimum notice period before starting work or its withdrawal.
Also, Article 52, Part 2 of the DL deals with the employment of an employee in cases where it is not possible to predict working hours. When looking at this article in conjunction with Article 40, Part 2, Clause 7 of the DL, it can be concluded that the employee will be provided with information about his possible working hours and work performance procedures, as the prerequisite for the employee's employment is to determine the reference hours and days in advance. In the sense of DL, it is a period defined in days during which work can be performed at the employer's request. In addition, in accordance with Article 52, Part 3 of the DL, non-fulfillment of this prerequisite gives the employee the right not to perform work.
Simultaneously with Article 40, Part 2, Clause 7 of the Labor Code, the employee is guaranteed a certain number of paid working hours per month, which prevents employees from being in a particularly vulnerable situation. Thus, it is a significant condition to indicate the exact number of guaranteed paid hours in the employment contract.
So, when applying these norms in practice, the employment contract must indicate reference hours, or possible hours and days when the work may have to be performed and the fact that the work schedule is variable. In addition, it is additionally necessary to indicate the time and manner in which the employee is informed about the time of fulfillment of obligations. In this way, the employer fulfills its obligation to provide the employee with information that is essential for his employment legal relationship.
Can be replaced by special reference
Article 40, Part 3 of the DL additionally determines the right not to indicate the information specified in Article 40, Part 2, Clause 7 of the DL, but to refer to the provisions included in regulatory acts, collective labor agreements or work order regulations.
According to the judgment of the Senate of October 29, 2021 in the case SKA-82/2021, in accordance with the DL regulation, the contracted working time must be indicated in any type of working time organization, referring to the rules of the work schedule. Thus, in cases where the mandatory information in the employment contract does not differ from that indicated in the labor law sources, it is considered that the requirements of Article 40 of the Labor Code have been met.
Working time
Taking into account the specifics of the relevant employment relationship, the employer cannot draw up a shift schedule and apply the rules set for shift work, however, it is obliged to comply with the principles described above and ensure that the employee is informed of the need to come to work within a reasonable minimum notice period. These deadlines may vary depending on the needs of a particular industry and the specifics of the work to be performed.
It should be noted that the DL does not determine the minimum guaranteed and paid working time, however, the employer is obliged to agree with the employee on how many working hours are guaranteed and paid per month. For example, an employee is hired as an accountant, with the employment contract specifying that 30 working hours per month are guaranteed. In this case, the employer must provide this minimum number of paid hours and adequate remuneration. In addition, the employment contract must also specify the amount of remuneration for work performed in addition to the mentioned guaranteed hours.
Overtime payment procedure
According to Article 131, Part 1 of the DL, the normal daily working time of an employee may not exceed eight hours, and the normal weekly working time - 40 hours. Overtime work is any work performed by an employee in addition to normal working hours. It should be noted that in the case of part-time work, work up to the limit of normal working hours cannot be considered overtime work.