Overtime work is regulated in Articles 151 to 1516
of the Labour Code. A precise definition of
overtime is provided in Article 151(1): overtime
work means work performed beyond the working
time standards applicable to an employee as well as
work performed beyond the extended daily working
time schedule resulting from the working time
system and schedule applicable to an employee.
Overtime work is permitted in two cases:
1) where it is necessary to conduct a rescue
operation in order to protect human life or health,
property or environment, or to repair a failure,
2) where the employer’s special needs so require.
Overtime work should be adequately compensated and an employee is entitled to an allowance for
such work. An allowance for overtime work is
regulated by Article 1511 (1) pursuant to which for
overtime work an employee is entitled, in addition
to regular remuneration, to an allowance in the
amount of:
A) 100% of remuneration – for work performed:
– at night-time,
– on Sundays and public holidays other than the
employee’s working days under his or her
applicable working time schedule,
– on a non-working day granted to an employee in
lieu of work performed on a Sunday or public
holiday under his or her applicable working time
schedule,
B) 50% of remuneration – for overtime work
performed on any day other than those referred to
above.
The regular remuneration has been defined by the
Supreme Court and it should be construed as
remuneration which an employee receives on a
regular and systematic basis and which, as such,
includes both, basic pay resulting from the rate of
the employee grade and additional components of
remuneration of a permanent nature.
Another form of compensation for overtime work is
time off. Both the employer and the employee may
decide that the employee is to be granted time off
for overtime work. However, overtime will be
settled differently depending on whether it is the
employer or the employee that first takes the
initiative regarding time off for overtime work. If
the employee himself or herself applies to be
granted time off for overtime hours worked, then
the length of such time off will correspond to the
number of overtime hours. The principle according
to which overtime hours should be settled at the
end of the settlement period does not apply here.
They may be carried over to the next settlement
period specified by the employee in his or her
application. However, if it is the employer that
takes the initiative to grant time off to the
employee, then the length of such time off should
be increased by half the overtime. In such a case,
the employer is required to grant the employee
time off before the end of the settlement period
which is applicable in the given workplace. If, for
various reasons, this time off is not granted before
the end of the settlement period, then the
employer is required to pay the employee the
remuneration together with allowances due to him
or her.
The rights to overtime remuneration and allowance
are not available to employees who manage the
workplace on behalf of the employer and managers
of separate organisational units. On the other hand,
managers of separate organisational units are
entitled to remuneration and allowance for
overtime work performed on Sundays and public
holidays in accordance with Article 1514 of the
Labour Code if they have not been granted another
day off for work performed on such day. According
to the case law of the Supreme Court, it should be
agreed that the above restriction does not apply to
the lowest level managers, e.g. foremen, whose
impact on the organisation of working time is
insignificant and who essentially perform the same
work as their subordinates. Accordingly, the
restriction does not apply to those managers of
separate organisational units of the workplace,
whose duties are not limited to organising control
and supervising the activities of employees of a
subordinate unit, but which rather consist in
performing work on an equal footing with them. It
is also worth paying attention to the manner in
which the employer gives instructions. The
employer’s instruction regarding overtime work
does not need to have any special form. It can be
given orally, in writing, via email or implicitly. It
should also be remembered that the mere fact of
being available to perform work does not suffice to
be qualified as overtime work.
MILLER CANFIELD
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
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00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.