The Workable and Flexible Work Act introduced the concept of voluntary overtime in 2017 (see Eubelius Spotlight June 2017). An employer and an employee can agree upon a maximum of 100 voluntary overtime hours that may be performed by the employee during one calendar year. Collective Labour Agreement no. 129 concerning voluntary overtime hours increases the maximum number of voluntary overtime hours to 120 hours per calendar year.

The limits of working time and derogations

In principle, the limits of working time are set at a maximum of eight hours per day or 38 hours (actually or on average) per week or a stricter limit in the form of reduction of working time. The Employment Act includes a number of different derogations on the basis of which these limits may be exceeded. There are structural derogations and specific derogations. Overtime hours are specific derogations. Overtime may only be performed in legally defined cases. In addition, in several of these cases, a specific prior procedure must be followed.

Voluntary overtime hours

As of 1 February 2017, the Workable and Flexible Work Act introduced the possibility of "voluntary overtime hours", on the basis of which an employer may ask an employee to perform up to 100 voluntary overtime hours per calendar year. These voluntary overtime hours do not require a specific situation, nor are they subject to a specific procedure.

On 23 April 2019, in execution of the draft Interprofessional Agreement, the National Labour Council adopted CLA no. 129, which increases the maximum number of voluntary overtime hours from 100 to 120 hours per calendar year per employee. This maximum can be further increased up to maximum 360 hours per calendar year by a collective labour agreement concluded at national or (inter)sectoral level and declared generally binding by royal decree.

Voluntary overtime requires an explicit agreement between the employer and the individual employee. The agreement (an annex to the employment agreement) must be concluded in advance, is valid for six months and can be prolonged by mutual agreement. Such an agreement concerning voluntary overtime allows the employer to have overtime hours performed by the individual employee concerned, but does not oblige the employer to do so.

Impact of voluntary overtime hours on the working time limits

Compensatory rest: respecting the working time limits on average

In principle, overtime hours performed should be compensated for by compensatory rest in order to respect the weekly working time on average during the reference period of one quarter or a longer period of up to one year as provided for by a royal decree, a collective labour agreement or the work regulations. This applies to all hours performed by an employee which exceed nine hours per day and/or 40 hours per week.

There is a derogation for voluntary overtime, which is not required to be compensated for by compensatory rest, and which thus is not taken into account to verify whether the weekly working time is respected on average during the reference period.

Certain other types of overtime hours (e.g. urgent work on machinery or materials performed by the company's own employees) are not taken into account when calculating the average weekly working time performed by an employee.

The internal limit of working time

During the reference period of, in principle, one quarter or a longer period of up to one year as provided for by a royal decree, a collective labour agreement or the work regulations, the total number of hours performed by an employee may not exceed the internal limit of working time. The internal limit of working time is calculated by first multiplying the average weekly working time by the number of weeks elapsed during the reference period and then adding 143 to the result: number of weeks elapsed during the reference period x weekly working time determined by CLA or law + 143 = internal limit.

In short: at any time during the reference period, the number of outstanding overtime hours performed by the employee may amount to a maximum of 143 hours. As soon as this limit is reached, compensatory rest must be granted immediately.

To a certain extent, voluntary overtime is also treated differently with respect to the internal limit of working time. The first 25 hours which are performed as voluntary overtime are not taken into account.

The internal limit of working time may be increased by a collective labour agreement declared generally binding by royal decree. In certain business sectors, this possibility has been utilised. Furthermore, an employee may decide that a maximum of 130 overtime hours performed due to an extraordinary increase in work or an unforeseen necessity are not to be taken into account.

The absolute limit of working time

Except in certain exceptional situations, an employee may never work more than 11 hours per day or 50 hours per week. This absolute limit of working time is fully applicable to the regime for voluntary overtime.

Overtime surcharge

The overtime surcharge applies to voluntary overtime. This means that the overtime surcharge is due for hours performed in excess of nine hours per day or 40 hours per week or in excess of stricter limits determined by a collective labour agreement. The overtime surcharge amounts to 50% or, for overtime hours performed on Sundays or public holidays, 100%.

Conclusion

The Workable and Flexible Work Act introduced a certain level of flexibility to the strict Belgian working time rules. The increase in the maximum number of voluntary overtime hours continues this trend towards recognising the economic reality in which companies operate as well as their needs. The framework for working time at company level must be customised to the needs of the company and requires that different measures (such as the so-called "new working time regulations") are combined to create a certain level of flexibility. Voluntary overtime is an option worth considering.