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Overtime pay

Who is entitled to overtime pay, and what does having a particularly independent or senior post actually mean? What about registration and payment of overtime, and can overtime pay be included in my fixed wage? There are many questions about overtime pay. We answer some of them here.

Did you know that ...

  • All employees are entitled to overtime pay unless they are specifically exempted from the provisions in the Working Environment Act regulating working hours.
  • You can contact one of NITO's advisers to discuss how to deal with incorrect practice of the exemption provisions in the Working Environment Act?
  • The Working Environment Act stipulates rules for how many hours of overtime work may be imposed on employees?

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Who is entitled to overtime pay?

All employees are entitled to overtime pay unless they are specifically exempted from the provisions in the Working Environment Act regulating working hours.

The provisions in the Working Environment Act regulating working hours are stipulated in chapter 10. These rules are often referred to as the working hours provisions. All employees who are covered by these provisions have a statutory right to overtime pay. Employees may not waive their right to overtime pay. Such an agreement is unlawful, and therefore is not binding.

Exceptions: particularly independent or senior posts

Pursuant to section 10-2, subsections (1) and (2) of the Working Environment Act, the provisions in the chapter on working hours (with certain exceptions) will not apply to employees in senior posts or to employees in particularly independent posts.

Features of a particularly independent post that can be exempted from the working hours provisions:

  • Senior and responsible positions.
  • Clear and obvious independence.
  • Can prioritise one's own work duties, i.e. limited obligation to follow instructions regarding one's own work (what, when and how).
  • Has the possibility to influence deadlines and other external conditions for one's work.
  • Controls one's own working hours to a large degree.
  • Is not subject to monitoring of one's working hours.

Features of a senior post that can be exempted from the working hours provisions:

  • High level in the organisation's hierarchy.
  • Clear managerial duties: responsibility for budget/performance, human resources or work supervision.
  • Authority to make decisions on behalf of the enterprise.
  • Assesses and decides the need for one's own work input.
  • Controls one's own working hours to a large degree.
  • Is not subject to monitoring of one's working hours.

A specific assessment must be made on a case-by-case basis as to whether a position can be exempted from the working hours provisions in the Working Environment Act. The preparatory works for the Working Environment Act, case law and the practice of the Norwegian Labour Inspection Authority provide a basis for deciding what should be given weight.

It is clear that the exceptions stipulated in section 10-12 must be interpreted strictly, and that it is the actual content of the position and not the title that decides. The exceptions are intended to cover positions where employees can assess and determine the need for their own work input.

The employee’s possibilities to delegate tasks may also be important when deciding whether a position can be exempted from the working hours provisions.

The preparatory works for the Working Environment Act make particular mention of project work. Project work often entails a high degree of freedom and places heavy demands on flexibility. Nevertheless, project work is generally covered by the working hours provisions set out in the Working Environment Act.

How to deal with disagreement on whether a position is covered by the working hours provisions

Questions of whether a position was covered by the working hours provisions could previously be settled by the Norwegian Labour Inspection Authority. The Labour Inspection Authority no longer has the competence to decide such issues. However, it must provide guidance on how to interpret the provisions, and must supervise compliance of the act by enterprises.

We recommend that our members contact one of our advisers to discuss how to deal with incorrect practice of the exemption provisions set out in the Working Environment Act.

Duty to register and pay overtime

Section 10-6 of the Working Environment Act sets out rules for the maximum number of hours an employee may work. Employers have a duty to monitor each employee's working hours.

Employers may not impose overtime work exceeding:

  • 10 hours over a seven-day period
  • 25 hours over four consecutive weeks
  • 200 hours per year

Subject to agreement with union representatives, these limits may be expanded by 20, 50 and 300 hours, respectively. They may be further expanded subject to authorisation by the Norwegian Labour Inspection Authority.

Working hours and overtime must be registered, and all overtime must be paid to everyone covered by the provisions regulating working hours set out in the Working Environment Act. Under the Working Environment Act, the overtime supplement must be at least 40 per cent. NITO has collective wage agreements in both the public and private sectors that entitle employees to higher supplements.

Subject to agreement, time off in lieu can be taken, but the supplement must always be paid. Overtime hours that exceed the statutory maximum may not be ‘crossed out’. Employers are responsible for keeping the use of overtime within the scope of the Working Environment Act. If any overtime is worked exceeding this, employees will still be entitled to overtime pay at the current rates.

Overtime included in wages

NITO often see employment contracts that contain a clause stating that overtime is included in the wage. Far too often this simply means that employees will not be paid for working overtime.

As mentioned above, employees who are covered by the working hours provisions may not 'waive their way out' of their right to overtime pay.

For employees who are covered by the working hours provisions, it may only be agreed that overtime shall be included in their wage if it is also specified what their wage is for normal working hours, and what will cover overtime. If there is a need to work beyond the agreed limits, compensation for overtime must be paid in the normal manner.

In 2000 the collective agreement between the Confederation of Norwegian Enterprise (NHO) and NITO incorporated a provision where this is specified
  • Overtime as a fixed supplement to ordinary wages.
  • Compensation for overtime may not be included in the fixed ordinary wage.
  • However, an engineer/technician may agree with the enterprise that compensation for overtime be paid as a quarterly or annual supplement to the ordinary wage, stipulated with regard to the average amount of overtime and at the applicable rates for overtime pay.
  • If the actual overtime imposed during the year should exceed the basis for the compensation, the engineer/technician in question will be entitled to a further supplement for the excess time.
  • The above provisions do not apply to engineers/ technicians who are not covered by chapter 10 of the Working Environment Act; see section 10-12.
  • If an employee is exempted from chapter 10 of the Working Environment Act with reference to section 10-12, subsections (1) or (2), written justification must be provided upon request.
  • Addendum to the minutes: The union representatives may ask the enterprise to account for how it practices section 10-12 of the Working Environment Act with respect to NITO’s members.
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