A situation that usually occurs in the world of work is that part-time contracted workers
complete their day by working overtime.
A totally illegal practice since, as marked by the current labor regulations, it is strictly forbidden for part-time workers to perform overtime, except in situations of force majeure.
According to the law, what is allowed is to agree with the workers to carry out what is known as “complementary hours”.
It is called complementary hours to those hours that are performed in relation to those stipulated in the contract,without reaching in any case to make a full day of 8 hours a day or 40 hours a week.
In addition, the additional hours performed by the part-time worker must be previously agreed and formalized in writing in an agreement of complementary hours.
What is the difference between overtime and overtime?
Although distinguishing between overtime and extra hours can be somewhat complicated at first, we will see that the differences are more than appreciable.
⇒ Overtime can only be performed by full-time workers,while additional hours are the hours that a part-time contract worker overrouts, as stipulated in the contract.
⇒ It should also be noted that the sum of the ordinary and complementary hours can never reach the full day. Something that does not happen with overtime, which is understood to be hours performed by full-time workers, and that exceed the total of mandatory hours per contract.
⇒ Additional hours,which may only be performed by part-time workers, will be paid with the same amount as ordinary hours.
On the other hand, the price for overtime performed is usually higher than that of ordinary hours, and may also be compensated with some benefit, such as vacation days or breaks, as long as it has been previously agreed with the worker.
And as for the realization of additional hours, it is mandatory that the minimum rest of 12 hours between the working day and the rest days is respected.
That said, in the event that any company had part-time workers working overtime, it would be acting fraudulently, unless it was due to force majeure.
When can part-time workers work overtime?
Those employers who hire part-time workers and do not know the time they will really need, will be able to formalize a pact of complementary hours,never exceeding the number of hours of a full day.
This agreement can be made by mutual agreement before the signing of the contract or later, leaving the employee to carry them out in a mandatory manner if the company so requires.
The agreement of additional hours must be presented by the company with the employment contract in the SEPE (Public Service of State Employment) within a maximum period of 10 days, and signed by the part-time employee.
Regulation of additional hours
The current labor regulations mark that the complementary hours are those that are carried out in addition to the ordinary hours stipulated in the part-time contract of the worker, based on the following rules:
- The company may only demand the performance of additional hours when it has been previously agreed with the employee, always in writing.
- Additional hours may only be performed by workers with part-time contracts,whose working day is not less than 10 hours per week.
- The agreement must reflect the number of additional hours performed, which may never exceed 30% of the ordinary hours signed in the employment contract. The Collective Agreementmay establish another maximum percentage, which in any case, will not exceed 60%.
- It will be essential that employees know three days in advance the day and the number of additional hours tobe performed, unless the established agreement marks a shorter period.
- The employee may renounce the performance of additional hours,notifying him fifteen days in advance, as long as one year has passed since the signing of the agreement, and any of the following circumstances occur: family responsibilities, training needs or incompatibility with another part-time contract.
- The working day of part-time workers must be recorded daily and totalled monthly. A copy must be delivered to the employee accompanied by the receipt of wages, as well as a summary of the monthly hours performed, including both ordinary and complementary hours.
Therefore, it is forbidden to perform overtime by part-time workers,except when there are situations of force majeure.
Overtime hours performed as stipulated in the contract of a part-time worker are called “additional hours”,and in no case can they reach the number of hours of a full-time contract.
Whether you are an employer or a part-time worker and need more information, do not hesitate to contact our labor advisors.