Increase in salary Due to the implementation of Abnormal hours It seems that it is clear to consider legal rules and individual CCNL provisions related to work hours. But is it really so? In all practical matters the office is equal to a spending more time in the office Pay check Under Or is there a situation in which the company can rightly refuse to pay a major compensation?
As a rule, unusual should be authorized with a specific agreement, expressing and in advance, but there are several concrete examples in which the employee deserves to pay for more work hours. Like a little to say that the substance prevails over the shape and formal consent of the boss.
Further thatArt. 2108 of the civil code He has clearly stated that the employee has the right to pay maximum salary for extraordinary hours. Then let’s see when and why the extraordinary payment is made and how to do it if the boss does not want to pay it. What to know here.
We start with the initial case, which is from the performance of the facts with the violation of the lawArt. 2126 paragraphs of civil code:
If the work is provided with a violation of the rules placed to protect the employee, these (workers) have the right to pay in any case.
the l Right to additional compensationFor extraordinary hours, this case has been established when employer violates laws or contracts imposed on job relationships, to hire more work than planned individuals.
A practical example of this can be a supermarket employee who is taken with a 20 -hour part -time contract every week, which, however,, at the employer’s request, is actually 40 hours, recognizing the difference in any salary.
The situation highlights the absence of contract changes and the fact that the company has not respected the partnership and compensation rules provided by CCNL trade.
Irregularities do not disappoint the right to additional compensation, as it is said by art. 2126 cc has already been mentioned, the employee is entitled to pay anyway All hours worked in fact And will be able to emphasize this right before the judge. For this part, the employer will not only be able to avoid payment by claiming that the written contract has been provided for only 20 hours.
Instant work and luxurious order
The repeated practical situation in which times of extraordinary loss, however, deserve extra salary, regardless of the boss’s formal permission, is the necessary work and a luxurious order. These are the conditions in which the company has requested or requested the extraordinary work, indirectly or requested.
Corporate organizational provisions related to activities and deadline calendars, or in stable ways, can exempt abnormal times, even without the need for fine express administration.
For example, think of a waiter in a restaurant, which will end at 10pm, without a clear order of the employer, but without his full awareness and silent acceptance, up to 24 to serve the rest.
But it can also be the situation of a legal firm employee who will have to prepare a complex report for the owner’s expiry of the next morning. If it is true thatWorking times It ends at 18:00, the workload and the hardline of the deadline will force it to stay late in the evening to complete the work.
Summary that, although there is no clear order, this study used a Indirect pressure For extraordinary hours. And as a result, the employee will have to pay extra work.
Suddenly malfunction or emergency
Similarly, guaranteed The continuation of production It can make extraordinary payments. We think about repairing the failure needed to prevent plants in the textile industry or to avoid potential economic damage.
If a factory is at risk of damaging a machine, the maintenance technicians will remain till 8pm to restore the entire operation, eliminating the turning point at 5pm.
These are cases in which immediate performance approval has been accepted, it is viewed with appreciation in view of the responsibility of more hours of subordinate work.
A partner’s change.
Then there is another unarmed case, that is, the next -time partner who does not appear to replace the schedule. If there is no other immediate worker, the employee who was ready for “enclosure” will find himself in an extraordinary hour so that he cannot endanger the activity.
It is the case that the nurse was forced to stay in service for hours to deal with difficulties. In a similar case recently, in this case, in it, Decision 17192/2024.
But it is also the caseSecurity Officer At a shopping center that ends the evening, which does not find a partner for the gear box and since no other is available, it is forced to stay till midnight, to avoid leaving the structure without any part.
Company customs
Noteworthy is also the case Corporate practiceThat is, unusual unauthorized but formed in the office of the office, and for that reason it is tolerated.
For example, think about the issue of a marketing agency, in which work hours end at 6pm, but it has been common for years to stop advertising campaigns by 19.30.
In these situations, the boss has never given an express order or formal authority, but he is aware of customs and does not stop it. Extra salary is insured.
What to do if the company does not pay unusual payment
We have seen that the unusual payment is also paid Unauthorized to formallyBut how do the company behave if they do not want to get a salary?
Well, it is necessary to contact her by a trusted lawyer Judge And the actual performance of additional hours, test through documentary tests, given by Register Paper or electronic, badges and presence methods.
In smart working activists will also be able to make extraordinary efforts, thanks to this This log Who demonstrate the actual relationship with corporate servers.
Not only this. Photos, movies, audio, email or WhatsApp messages can prove to be more than normal times. And, the remains, The testimonies of fellow Or suppliers.
The aforementioned cases are all compensated or compensated, which is also considered to be the “big” scope of the “big”Art. 5 Del D. Lgs 66/2003 In fact, it opens up for extraordinary hours without a advance agreement with the employer. In the same article it is also made clear that there must be an extraordinary work:
In addition to increasing the compensation provided by collective labor contracts, separate comparisons and compensation were paid. In any case, collective contracts can allow it, as alternatives or in addition to increasing compensation, workers take advantage of compensation rest.
Note of Cassishan’s jurisprudence
With the above mentioned Cassation phrase n. 17192/2024Regarding the extra hours of nurses, it is reaffirmed that, despite the fact that the employer will be allowed to do extraordinary work, employees have the right to get the right to pay further compensation in the absence of employer’s formal and prevention permission.
Similarly sets the sentences n. 27878/2023Still in terms of an extraordinary issue in government jobs.
Finally, if extra work was necessary for the good performance of the tasks, it should still be performed and paid. And it also with the company’s clear consent, which benefits from performance.
