Is any longer staying at work overtime? - Belgrade Court of Appeals has adopted the position of TSG Lawyers

The Labour Law ("Official Gazette of the Republic of Serbia" No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 - decision of the Constitutional Court and 113/2017) stipulates when an employee is required to work overtime.

Article 53 of the Labour Law stipulates the obligation of an employee to work longer than full working hours at the request of the employer, in case of force majeure, due to a sudden increase in the workload and in other cases when it is necessary to complete an unplanned job within a specified deadline (overtime work).

In all its earlier versions, as well as in subsequent amendments and supplements, the Labour Law provides the same definition of overtime work.

The topic of overtime work with private employers has become relevant in recent years, when employers have legitimately raised the issue what is meant by overtime and whether any and each longer factual stay at work is overtime, which the employer is required to pay to the employee in the form of increased salary.

The first instance courts in Serbia interpreted Article 53 of the Labour Law differently, ranging from that every longer factual stay at work was overtime work to sharing the opinion of the TSG lawyers.

Following a detailed analysis of Article 53 of the Labour Law we came to the conclusion that the legislator had in mind that overtime work exists only when certain conditions are met.

In order for an employee to be entitled to salary increase due to overtime work, it is necessary for the employer to have asked the employee to work longer than full-time in cases of force majeure, sudden increase in workload and in other cases when it is necessary to complete an unplanned job within a specified deadline, and also that such request is given in the form of a decision, or a written order. If, therefore, there is no employer’s request to work overtime in the form of a decision or a written order, one cannot speak of overtime work. Hours that are possibly expressed as work exceeding working hours in the defendant’s records do not represent overtime work, unless the other conditions stipulated in Article 53 of the Labour Law are met.

The first instance courts in Serbia had differing interpretations of Article 53 of the Labour Law, ranging from the one that every longer factual stay at work was overtime, to sharing our opinion.

The Belgrade Court of Appeals has finally confirmed the judgments of first instance judges that have adopted the standpoint of TSG lawyers and has rejected as unfounded the claims of employees for the payment of increased salaries for overtime work, on the grounds that the employees have failed to prove the existence of overtime work, that is, the fulfilment of all conditions that imply the existence of overtime work.

By the Decision of the Belgrade Court of Appeals Gž1 No. 1888/2016 dated 13th January 2017 the judgment was confirmed in which the first instance court has adjudicated that an employee cannot work overtime by his own choosing, but that in accordance with Article 53 of the Labour Law, he is required, on request of the employer, to work longer than full working time, including in the case when it is necessary to complete an unplanned job or a planned job within a certain deadline, that due to objective reasons, which suddenly arose, could not be completed during working hours. Also, the aforementioned judgment stipulates that in this given case one cannot speak of overtime work regime, because even if the employee has worked longer working hours than full time, it has not been established that he needed them for the execution of a previously planned regular job.

The fact that the employee has left the employer's premises on certain days after the expiration of working hours, i.e. that records on attendance at the workplace with the employer cannot represent proof that the employee has worked overtime and thus exercised his right to increased salary, because the longer stay of an employee in the employer's business premises cannot represent overtime work by itself.

By the Decision of the Belgrade Court of Appeals Gž1 no. 3287/14 of 30th April 2015 the court has adjudicated that the interpretation of employees (plaintiffs) that the Labour Law does not stipulate the request and decision in writing is irrelevant, bearing in mind that the provision of Article 53 of the Labour Law stipulates that at the request of the employer the employee is required to work longer than the working hours in case of force majeure, sudden increase in the workload, and in other cases when it is necessary to complete an unplanned job within a certain deadline. The request for overtime work, in the opinion of the court, can be made in the form of a decision or order, which is in any case the decision of the employer, whereas in urgent cases the request for overtime work can be also given verbally, and subsequently confirmed by a written enactment, and since the employees have failed to prove that such the employer has made such a request for the above reasons, their claim was unfounded.

By judgments Gž1 no. 1886/16 of 9th June 2016 and Gž1 1889/16 of 7th December 2017, the judgements of the first instance court were further confirmed by which claims for payment of increased salaries for overtime work were rejected as unfounded, due to the fact that the employee, who had the burden of proof in the capacity of plaintiff, has failed to prove the fulfilment of the stipulated conditions for the existence of overtime work.

Therefore, for employees who are suing their employers for payment of increased salaries for overtime work it is insufficient just to prove that they have stayed longer in the employer's premises. The employer is the one who decides whether there is need for overtime work under the given circumstances, and an employee's claim for the payment of increased salary will be rejected if he fails to prove the existence of overtime work, i.e. that all the conditions that involve the existence of overtime work have been met.

For any possible questions you may have regarding labour law, you can contact our team.
Author: Natasa Stojnov, Attorney-At-Law, Law Office TSG Tomic Sindjelic Groza

TSG Advokati Beograd

Apelacioni sud Beograd

Natasa Stojnov

Labour Law

overtime work

records on overtime work

Law on Records-Keeping at Work

records on attendance at the workplace

work contract

increased salary

working hours per month