Overtime pay for part-time contract workers

In the ruling handed down by the Labour Division of the Supreme Court, which has been the subject of a study by our lawyers specialising in labour law, it was disputed whether the hours worked in excess of the contractually established working hours in a part-time contract, and whose excesses were covered by an agreement signed by the Works Committee, should be considered as overtime or ordinary hours.

The highest Court favours the second option, without it being of particular relevance that in this type of contract the law prohibits overtime, because, the number of ordinary hours covered by the contract is clearly established in the part-time contract, and it is not even disputed that such excesses are of a supplementary nature, any other excess of working hours over and above the agreed hours, unless a new contract has been entered into or a clear novation of the previous contract has been agreed, without even arguing that such excesses are complementary in nature, any other excess of working hours over the agreed hours, unless a new contract has been signed or a clear novation of the previous contract has been agreed in this sense, and this is not the case, cannot be anything other, conceptually, than overtime.

The legal prohibition to work overtime in these models of contracting, without prejudice to the corresponding sanctions, despite the nullity of the contract, is entitled to be paid the amount corresponding to a valid contract, giving rise to the corresponding economic compensation. Otherwise, there would be an unjust enrichment on the part of his employer.

And although this solution might seem contrary to the consideration of overtime that the law contemplates with respect to the maximum duration of the ordinary working day, nevertheless, when the excess working hours occur in a part-time contract, which already contemplates a working day significantly lower than the maximum ordinary working day, with respect to which the law itself provides for the possibility of working hours in excess of those agreed, but it qualifies and regulates them in detail with a different and very rigorous legal regime, it makes no sense that these excesses could also have, as a reference, the same maximum legal working day, because if this were the case, the very regulation of additional hours would be empty of content, which, whether or not they comply with the legal rules, would receive the same remuneration treatment as ordinary hours.