Yes. If, whilst the WOP is being applied, the employer is confronted with an event compelling him to make changes to it, he may do so. However, he must give notice of the change to the employee concerned, observing a notice period of at least 3 days.
Two hypotheses may then arise.
The employer observes the notice period of 3 days before the event
The employer may, within the maximum working limits (10 days work per day and 48 hours work per week) amend the WOP while it is being applied.
In such case, a change to the WOP which has been made at least 3 days before the envisaged change does not give rise to overtime, provided however that the change does not at the same time involve an exceedance of the rates of 12.5% or 10%.
The employer does not observe the notice period of 3 days
If the change to the WOP is made on the initiative of the employer less than 3 days before the event and if that change involves an increase of the working hours initially planned, those hours are to be regarded as overtime and will attract an increment either at the compensation rate of 1.5 as regards remunerated rest or by the remuneration rate of 1.4, as provided for in Article L.211-27 of the Labour Code.
Moreover, a distinction must be drawn between two situations, depending on whether or not the change to the WOP shifts the schedule by more than 2 hours.
- If the change to the WOP is made on the initiative of the employer less than 3 days before the event and if that change does not involve an increase of the working hours initially planned, but merely a change of schedule, the hours of work exceeding the initial schedule by up to 2 hours are compensated for at the rate of 1 hour for each hour worked.
- If the change to the WOP is made on the initiative of the employer less than 3 days before the event and if that change does not involve an increase of the working hours initially planned, but merely a change of schedule, the hours of work exceeding the initial schedule by more than 2 hours are compensated for at the rate of 1.2 hours for each hour worked instead of 1.0 for the first two.
Thus, the incremental rate of 1.2 hours for one hour worked does not apply to the first two hours worked, since the disruption caused by such a marginal shift affecting the schedule provided for in the WOP is regarded as not justifying any supplement.
Example
The WOP provided for a work schedule from 8 a.m. to noon and the employer changes the schedule initially envisaged during its application to 11 a.m. to 3 p.m. and gives notice of it less than 3 days before the envisaged change.
In any such case, the first 2 hours from noon to 2 p.m. do not have an increase applied to them, but the working hour from 2 p.m to 3 p.m. attracts an incremental rate of 1.2 hours for each hour worked, which will either be remunerated or compensated for by remunerated rest.
It is to be noted that the provisions on changes to the WOP apply only if the changes to the WOP derive from an initiative by the employer in order to ensure that personal agreements between employees or direct requests from certain employees concerning a change of schedule or working time do not render the employer subject to an obligation to pay for overtime.