In relation to reference periods, the following are to be regarded as constituting overtime:
- overtime ascertained at the end of a reference period,
- hours worked following a change to the WOP that has been made without observance of the notice period of 3 days and increases the working time initially stipulated,
- hours worked beyond the thresholds of 12.5% or 10% of the normal monthly working time. In such case, a distinction must be drawn on the basis of the length of the reference period:
in the context of a WOP, hours of work exceeding each month the following limits are to be regarded as overtime within the meaning of Article L.211-27 of the Labour Code:
- 12.5% of the normal monthly working time laid down by law or by a collective work agreement in the event of application of a reference period exceeding 1 month but not exceeding 3 months;
- 10% of the normal monthly working time laid down by law or by a collective work agreement in the event of application of a reference period exceeding 3 months but not exceeding 4 months.
Consequently, any work done beyond those limits and in compliance with the maximum working limits (10 hours worked per day and 48 hours worked per week) is automatically considered as overtime, without the possibility of recovery within the reference period.
It is to be noted that a statement of the number of hours which, in accordance with those rates, are not regarded as overtime, is to be drawn up at the end of each month and the statement will not be taken into account for determination of the limits for the following month.
Example
With regard to a weekly average of 40 hours per month, the rate of 12.5% is equivalent to 45 hours and the rate of 10% is equivalent to 44 hours.
Every hour worked beyond the average of 45 hours, or 44 hours per month (depending on the duration of the applicable reference period) is to be regarded as overtime, which is to be increased by the compensatory rate of 1.5 in relation to remunerated rest or by the remuneration rate of 1.4, as provided for in Article L.211-27 of the Labour Code.
For companies which opt for a reference period of one month or less or for companies which, as at 1 January 2017, are covered by a collective work agreement, a subordinate agreement or an agreement reflecting interprofessional social dialogue, which do not contain any provision regarding reference periods or merely refer to the general law regarding the organisation of working time, the maximum working limits of 12.5% and 10% do not apply, given that the reference period may not exceed one month.
Moreover, the limits of 12.5% and 10% do not apply where a reference period has been negotiated by a collective agreement or by an agreement reflecting interprofessional social dialogue, given that the social partners are free to set maximum limits for work and the compensation relating thereto.