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Is the Slovenian Employment Relationships Act compliant with the European Directive Concerning Certain Aspects of the Organisation of Working Time?

27. January, 2025January 30th, 2025No Comments

The Employment Relationships Act stipulates the maximum number of overtime hours employees may work or consent to. But is the existing national regulation in compliance with EU legislation?

Since the Ministry responsible for labour has stepped up its monitoring of employers’ compliance with the right to adequate rest, the question has been raised on several occasions in practice whether national legislation on the maximum amount of overtime that a worker can still agree to is compatible with the European regulation on working time. The statutory limitation on monthly permissible overtime is particularly problematic, set at 20 hours. Such restrictions are not explicitly stipulated in Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (“Directive“).

The main question is whether national restrictions stricter than those in the Directive infringe upon a worker’s right to freedom of work and the parties’ right to regulate contractual relationships freely. It should also be taken into account that not all types of work are equally demanding or harmful to health, and that working conditions have significantly evolved since the adoption of the Directive.

According to the third paragraph of Article 144 of the Employment Relationships Act (“ZDR-1“), overtime work may last a maximum of eight hours per week, a maximum of 20 hours per month, and a maximum of 170 hours per year. With the employee’s written consent, overtime work may exceed the annual time limit of 170 hours. Still, it may not exceed 230 hours per year (fourth paragraph of Article 144 of ZDR-1). Considering the minimum annual leave of four weeks, the annual limit of 230 hours is aligned with the monthly limit, allowing the employee to perform approximately 20 hours of overtime per month.

However, the Directive sets overtime limits differently, as it does not explicitly specify a monthly overtime limit but instead sets only the maximum (average) weekly workload and the minimum number of weeks of annual leave. Under the Directive, Member States must ensure that, to protect workers’ health and safety, the average working time over any seven-day period, including overtime, does not exceed 48 hours. Furthermore, each worker must be entitled to paid annual leave of at least four weeks in accordance with annual leave eligibility and allocation conditions set by national legislation or practice.

Under the Directive, the maximum monthly working time can therefore only be calculated indirectly by first deducting the compulsory minimum of four weeks of paid annual leave from the 52 weeks contained in the year. Then, for the remaining 48 weeks, the maximum permissible weekly overtime, which is eight hours, is taken into account (the Directive specifies the total weekly hours, i.e., 48). This leads to the conclusion that, under the Directive, the maximum annual overtime is 48 times 8 hours, or an average of 32 hours per month.

ZDR-1 is, therefore, more restrictive, as it limits the maximum allowed monthly overtime to 20 hours. This raises the question of whether the national regulation is in conflict with the Directive, which limits the maximum allowed (average) number of overtime hours per month to approximately 32 (depending on the number of working days in the month). This regulation could be particularly problematic from the perspective of the freedom to regulate contractual relationships, especially in cases where the employee wishes to work more overtime than the legally permitted amount, specifically between 20 and 32 hours per month.

The case law of the Court of Justice of the European Union (“CJEU“) has already determined that Article 6(b) of the Directive constitutes a rule of social law of the European Union of particular importance, adopted for the benefit of every worker as a minimum requirement aimed at ensuring their safety and health. This rule obliges Member States to set an upper limit of 48 hours for the average weekly working time, which explicitly includes overtime and from which deviations are, in principle, not permitted, even with the employee’s consent.[1]

It also follows from the established case law of the CJEU that Article 6(b) of the Directive has direct effect, meaning that it grants individuals rights that they can invoke directly before national courts.[2] The CJEU has clarified that Article 15 of the Directive indeed generally allows for the application or introduction of national provisions that are more favourable to protecting workers’ health and safety. However, deviations are permitted only from certain provisions explicitly listed by Member States or social partners, and their application is subject to strict conditions ensuring the effective protection of workers’ safety and health. Thus, the first subparagraph of Article 22(1) of the Directive allows Member States not to apply Article 6 of the Directive, provided they adhere to the general principles of protecting workers’ safety and health and meet a specified number of conditions cumulatively listed in this provision.

In light of these conditions, the question arises as to whether workers can exceed the general limitation of 8 hours of overtime per week as set out in Article 6 of the Directive in cases where they voluntarily wish to work additional overtime and provide their consent. Under the provisions of ZDR-1, however, the answer is clear: this is not possible (save for workers for whom overtime limitations do not apply in general).

Furthermore, the question arises as to whether the worker’s voluntary consent takes precedence over the national regulation and the regulation under the Directive. Suppose we follow the logic that the Directive permits workers to work more than 8 hours of overtime per week with their consent. In that case, national legislation, primarily designed to protect their safety and health, should not prohibit this when workers provide explicit consent. Once again, the answer is unambiguous in Slovenian labour law and the ZDR-1 does not allow an employee to renounce their fundamental legal rights (which also include occupational health and safety rights).

Considering the position of the CJEU that all authorities of Member States, including administrative authorities and not just courts, are obligated to apply provisions of EU Directives with direct effect, especially when these provisions conflict with the provisions of national legislation,[3] it will be interesting to observe whether the Slovenian inspection authorities will begin to apply the European regulation directly. This is particularly relevant when they encounter issues during inspections regarding the compliance between national and European regulations on the maximum number of overtime hours allowed with the explicit consent of the worker.

[1] See the judgment of the CJEU in Fuß, Case C-429/09 of November 25, 2010, ECLI:EU:C:2010:717, para. 33.

[2] Ibid., para. 35.

[3] See the judgment of the CJEU in Hein, C-385/17 of December 13, 2018, para. 49, and the judgment of the CJEU in Kücükdeveci, C-555/07 of January 19, 2010, para. 47.