14. 9. 2017
On 21 March 2017, the Supreme Court rendered judgement No. VIII Ips 13/2017 and hereby upheld the decisions of both lower courts regarding the payment and offsetting of "surplus hours" at the end of a reference period where working hours were distributed irregularly. The ruling provides that the regime used by the employer, i.e. the police force, to transfer the deficit hours to other reference periods and order the use of "surplus hours" contrary to the provisions of the Police Officers' Collective Agreement (POCA), was not appropriate. The Supreme Court further explained that unilaterally ordering the offsetting of hours without employee consent, as well as non-payment for the "surplus" hours is not consistent with the provisions of the POCA.
Although the ruling covers a specific sector, it still provides some clear guidelines on specific issues surrounding the organisation of working time and liability for the improper off-setting of working time at end of each reference period. The Supreme Court emphasised that the organisation of the working time comes under the remit of the employer, hence, the consequences of the improper off-setting thereof are to be borne by the employer. Responsibility for any "surplus hours" or a shortage of rostered hours is to be borne by the employer alone. Consequently, an employee, who lacks working hours, shall not be ordered to work additional hours in the next reference period.
Furthermore, the Supreme Court ruling provides that the employer cannot "order" an employee to use "surplus hours". The parties to the employment relationship should agree on the use of "surplus hours". If the employee does not consent to the use of the surplus hours, the employer must pay for these hours at the end of the reference period. The Supreme Court also followed established case law, deciding that the employee is entitled to a bonus for the "surplus hours" and consequently deciding that these hours should be paid at a higher rate.
Employers should plan working hours accordingly and carefully set off deficit and surplus hours during the reference period. Where hours cannot be set off, employers are still obliged to settle their obligations, as provided in the applicable collective agreements and legislation.