Nicole L.: Can companies that take advantage of short-time work schemes require their employees to work more hours than were originally agreed upon for short-time working?

First, let me point out that the regulations on short-time work have been amended several times during the past few months. Depending on when the short-time work agreement was made, the details of the regulations that apply may vary. Phase 3 of the government’s short-time working program started in October 2020, and phase 4 has already been announced.  In general, the short-time work regulations are very complex. The question of how many hours employees are allowed to work while on short-time work may seem straightforward enough, but it is actually very hard to answer. As is so often the case in legal contexts, the answer is, “It depends.”

Uneven distribution of working hours ≠ exceeding the agreed-upon number of hours

First, it’s important to distinguish between two constellations:

The weekly working hours may merely vary within the short-time work period, i.e. employees may work different hours in different weeks and months, but their average working hours during the entire short-time working period still correspond to the agreed-upon amount. Such variations in the working hour distribution were possible during phase 1 of the COVID-19 short-time work program, and they were even typical during that period. If working hours are reduced to 30% during the short-time work period, it is for example possible to have employees not work at all during the first few weeks but work longer hours during later weeks.

The cases that are of interest for us here are a different matter – i.e. cases where the actual working hours exceed the agreed-upon reduced amount even when averaged over the entire short-time work period (or cases where employers would like to have employees exceed this amount). For these constellations, the agreements made under Austria’s system of social partnership at the beginning of the COVID-19 crisis merely provided that changes in the extent of working hours require the consent of the staff or works council or (if no such council exists) the consent of the individual employee. These agreements did not include any regulations allowing employers to unilaterally order their employees to work more hours. However, such regulations were introduced in phase 2 of the short-time work program, which started in June 2020.

Preconditions for ordering employees to work more hours

Employers may unilaterally order their employees to work more than the reduced short-time hours agreed upon under three conditions:

1. The employees in question must be informed of the length and distribution of the requested working hours – i.e. the days and starting and ending times – as soon as possible, at least three days in advance.  The only exceptions to this requirement are cases where extra work becomes necessary on very short notice.

2. The modified working hour arrangements must not impair any legitimate interests of the employees affected that need to be taken into account. For example, if an order to work extra hours creates a conflict with an employee’s responsibilities to look after their children, the employee has the right to decline the request. However, an assessment of whether legitimate interests exist that are incompatible with the request to work extra hours and entitle the employee to decline the request must be made on a case-by-case basis. This means that from the perspective of the employee, declining such requests always carries a certain risk of incurring consequences under employment law.

3. As a general rule,  the extra working hours must be within the starting and ending times agreed upon for the short-time working period.

 

Employees normally not entitled to extra pay

If these conditions are met, employees are obligated to accept the request. In such cases, employees are not entitled to receive extra pay for the additional hours worked. The reason is that under the short-time work model currently in place, employees receive a net lump-sum compensation of 80–90% of their regular salary. This compensation does not depend on the actual amount of hours worked under the short-time work arrangement. For example, if the short-time work agreement requires employees to work only 30% of their regular hours and this percentage is then raised to 50%, the employees’ pay remains unchanged. The only thing that changes in such cases is the short-time work compensation the employer is entitled to.

An exception applies in cases where employees work so much in individual months that the remuneration due for the actual hours worked is higher than the applicable net lump-sum compensation. In such cases, employees are entitled to an additional payment to receive full remuneration for the actual hours worked. Usually, however, the extra hours worked in such cases do not qualify as overtime eligible for compensation at a higher rate. Overtime pay can only be claimed if the actual hours worked during certain periods even exceed the regular working hours that applied before the short-time working arrangement entered into effect, but this is only permissible in very rare cases.

Susanne Auer-Mayer, Institute for Austrian and European Labour Law and Social Security