The organization of working time in the company is an essential aspect of labor law, which results from the employer's obligation to accurately record the hours worked by each employee, as stipulated in the Labor Law (DL). At the same time, there are also possible exceptions to this general principle, when, taking into account the specifics of the relevant work or occupation, the length of working time is not measured or determined in advance or can be determined by the employees themselves.
Although the DL provides for several special provisions on the organization of working time, in this article we will focus on Article 148, Part 1 of the DL, which stipulates - Article 131, Part 1, Article 136, Part 5, Article 138, Part 3, 142 The provisions of Section 1, Section 143, Section 1 and Section 145, in compliance with the principles of occupational safety and health protection, as well as ensuring sufficient rest, may not be applied to situations where, taking into account the particularities of the work or occupation in question, the duration of working hours is not measured or predetermined or can be determined by employees themselves. In the mentioned cases, it is not necessary to record working hours.
Therefore, subject to the conditions mentioned in this article, exceptions to the following general principles of working time organization may be applied:
- normal working hours – 8 hours a day, 40 hours a week;
- duration of overtime work – 8 hours in a 7-day period, which is calculated in a reporting period that does not exceed four months;
- duration of night work - the normal daytime working time can be shortened by one hour, etc. basic principles of night work organization;
- daily rest duration – at least 12 hours in a row;
- duration of weekly rest – at least 42 hours in a row;
- interruptions in work.
What are the exceptions?
The DL does not list specific job categories or industries to which the provisions of Article 148, Part 1 of the DL should apply. Also, other regulatory acts of Latvia do not list cases and set criteria, on the basis of which it is possible to depart from DL norms on the organization of working time and rest.
The European Union Directive 2003/88/EC on specific aspects of the organization of working time serves as certain guidelines in the application of the mentioned norm, which in Article 17, paragraph 1 states that deviations from the general principles in the application of working time, respecting the principles of employee safety and health protection, may to apply:
- senior administrative employees or other persons with autonomous decision-making powers;
- for family workers; or
- workers performing duties in religious ceremonies in churches and religious communities.
As explained by the European Commission (EC), a deviation from the general conditions for the organization of working time in the three mentioned categories is possible, because they usually have great powers of independent decision-making in the organization of their working time and can be considered as autonomous workers. However, the EC has indicated at the same time that such a derogation would not apply to all workers who correspond to the mentioned categories, for example not to all managerial administrative workers. Thus, each case must be assessed individually, and the three categories mentioned in Directive 2003/88/EC are not considered to be an exhaustive list.
Criterion – autonomy in decision-making
Evaluating the possibility of providing a reference to Article 148, Part 1 of the Labor Code in the employment contract and agreeing that special rules for the organization of working time are applied to the employee, without measuring the duration of working time or providing that the working time can be determined by the employees themselves, the EC stated that it is important establish that specific employees are given a sufficiently high level of autonomous decision-making and authority. Most often, these are high-level managers, whose total working time is not measured or rationed, because they are not obliged to be at the workplace at a certain time, but they can decide on their own work schedule.
As can be concluded from the judicial practice, the deviation from the accounting of working hours and the application of Article 148, Part 1 of the DL has been extended, for example, to the position of commercial director in a company where the person was also a member of the board at the same time (Judgment of the Riga District Court of December 10, 2014 in case C17084214). On the other hand, according to the explanation given by the State Labor Inspectorate, the head of the commercial company's structural unit and the sales representative have not been granted autonomous decision-making powers (publication "When the agreed working hours are not specified in the employment contract", Lvportals.lv).
Evaluating the judgment of the Court of Justice of the European Union (CJEU) of October 14, 2010 in the case C-428/09 "Union syndicale Solidaires Isere", it can be concluded that if it has not been proven that employees can decide for themselves the number of working hours and that they do not have to be at the workplace during fixed working hours, the derogation contained in Article 17, Paragraph 1 of Directive 2003/88/EC is not applicable. Namely, the CJEU assessed whether the derogation contained in Directive 2003/88/EC is applicable to contracts on educational obligations for employees employed in holiday and leisure centers, concluding that these employees had to be at their workplaces at certain times and they were not able to freely choose their own working hours.
In another case, the CJEU assessed whether Article 17(1) of Directive 2003/88/EC is applicable to a children's village home in Finland, where an employee who replaces the parents during the holidays of the "children's village parents" lives with the children during that time in conditions similar to the family environment and constantly take care of the needs of the child and the family, as parents usually do (Judgment of July 26, 2017 in the case C-175/16 "Hannele Hälvä et al. v. SOS-Lapsikylä ry"). The CJEU concluded that in the specific case, these persons had to work for a certain time according to the list prepared by the employer. On the other hand, the mere fact that the employee himself determines the procedure for managing the children's village home by adjusting his rest times within the framework of the performance of his duties within a 24-hour period does not mean that the working time of employees is not generally measured and/or predetermined or that it can be determined by the employees themselves. employees, because the employer determines both the beginning and the end of working hours in advance.
It can be concluded that it is difficult to specifically distinguish groups of employees outside the three groups already defined in Article 17, Clause 1 of Directive 2003/88/EC, to which it is unequivocally possible to apply the special rules for the organization of working time provided for in Article 148, Part 1 of the Labor Code, because each case must be assessed individually depending on the specifics of the work. When establishing that a person employed in a specific position may be subject to special rules for organizing working hours, because this person has sufficient autonomous decision-making powers and this person can determine his own working hours, it is important to agree on this when concluding an employment contract or preparing appropriate amendments to the employment contract , which must be presented in writing.
How not to count working hours?
Despite the fact that in the application of Article 148, Part 1 of the DL, the employer is not obliged to keep records of the employee's working hours as defined in Article 137 of the DL and the DL norms regarding work breaks and daily or weekly rest periods do not apply to the employee, the employer is obliged to ensure that sufficient rest for the employee, as well as to observe all principles of occupational safety and health protection. Thus, without keeping records of working hours, it may be difficult for the employer to track whether the employee receives sufficient rest, therefore it is recommended to also agree in writing on the principles of the procedure for granting rest time with the employee, who can determine the length of his working time himself.
Non-counting of working hours is related to another important circumstance of labor legal relations - the organization of wages. According to the DL, there are two types of wages, namely the time and piecework wage system. In the time wage system, the salary is calculated according to the actually worked time, regardless of the amount of work done, so the most important thing is the time worked, for example, a month, and not the amount of work done. On the other hand, in the piecework wage system, the wage is calculated according to the amount of work done, regardless of the time in which it was done.
Considering that each employment case to which the provisions of Article 148, Part 1 of the Labor Code could be applied must be assessed individually depending on the specifics of the position, a similar principle can also be applied to the wage organization according to individual wishes, by mutual agreement. Although, when applying Article 148, Part 1, it is not necessary to keep records of working hours, the employee may be assigned a time salary system, that is, regardless of the amount of work performed, a fixed and constant salary is paid in the same amount, for example, once a month, but without performing the employee's work timekeeping within the month. At the same time, there may be cases when, according to the specifics of the work, the regulation of the piecework wage system is more appropriate. For example, an employee in a managerial position who is given autonomous decision-making powers is expected to be paid a salary depending on the monthly company figures achieved.
The application of Article 148, Part 1 of the Labor Law in labor legal relations, on the one hand, creates opportunities for flexible working hours, on the other hand, the application of this norm can also create unpleasant incidents for both the employer and the employee, if one or the other party does not fully understand these the meaning and purpose of the norm. Therefore, it is recommended to carefully consider both the specifics of the work and the peculiarities of the occupation, as well as the possibilities to ensure the principles of occupational safety and health protection in the case of application of this norm.
Source: iTiesības