The recently adopted so-called transposition amendment to the Labour Code brought several significant changes and innovations in the field of employment law. In addition to changes in the rules of employee remuneration – minimum and guaranteed wages and salaries, collective bargaining, holiday scheduling, liability for construction work or working hours in the health care sector, there is also a new regulation of the institute of (self-)scheduling of working hours by the employee.
As part of our two-part series of articles, we have presented all the important news not only of the above-mentioned transposition amendment, but also of the upcoming flexi-amendment (which is still undergoing the legislative process), which can be found at the links Transposition Amendment to the Labour Code and Flexible Amendment to the Labour Code.
In this article, we will take a closer look at one of the partial changes to the transposition amendment in the area of flexible terms and conditions of employment, namely the new possibility of (self-)scheduling of working hours by the employee, which will come into force on 1 January 2025.
Existing legislation
In the current legislation, there is a possibility of (self-)scheduling of working hours by an employee only in the regime of so-called home employees under Section 317(4) of the Labour Code, i.e. in a situation where the employee works remotely, i.e. not at the employer’s workplace, according to a written agreement with the employer, and schedules employee’s own working hours under agreed conditions.
This “home-office” option is quite widely used. However, we also encounter a situation where teleworkers (home-office employees) cannot schedule their own working hours and the employer schedules (or should schedule) them.
Scheduling of working hours by an employee from 1 January 2025
The transposition amendment, based on an amendment introduced in the Chamber of Deputies, establishes the possibility for employees to schedule their working hours at their own discretion as of 1 January 2025, without the condition of teleworking.
The new provision of Section 87a of the Labour Code establishes the unlimited possibility of scheduling working hours by the employee. At the same time, the previous provision of Section 317(4) of the Labour Code, which was a special provision for telework situations, is repealed.
Therefore, an employee performing work at the employer’s workplace will be able to schedule employee’s own working hours into individual shifts, not only an employee working from home or another place of work agreed with the employer.
At the same time, it should be noted that the new legislation does not only apply to employees working under an employment contract, but also to employees working under one of the agreements on work performed outside the employment relationship.
For the purposes of obstacles at work, taking leave, business trips, compensation for wages or salary for lost earnings due to holidays (pursuant to Sections 115(3) and 135 of the Labour Code) and in other cases determined by the employer, the established distribution of working hours into shifts, which the employer is obliged to determine in advance, shall apply, unless the employee agrees otherwise with the employer.
The average weekly working hours of an employee in an employment relationship must be completed within the compensation period determined by the employer, but no longer than within the period and under the conditions specified in Section 78(1)(m) of the Labour Code – i.e., as in the case of the so-called uneven distribution of working hours.
An important aspect of (self-)scheduling of working hours is the obstacles to work. In the event of other important personal obstacles to work, the employee will not be entitled to wage or salary compensation unless otherwise provided by law, implementing legislation or an internal regulation of the employer.
Agreement on (self)scheduling
As before, the employee and the employer will have to conclude a written agreement on (self)scheduling. In this agreement, the parties will agree on the introduction of (self)scheduling and at the same time it is certainly advisable to establish clear rules and limits.
Such an agreement is also subject to the conditions of Section 81(3) of the Labour Code, i.e. that the employee is obliged to be at his workplace at the beginning of the shift and to leave the workplace only after the end of the shift, and Section 83 of the Labour Code, according to which the length of the shift may not exceed 12 hours (or 24 hours according to Section 83a of the Labour Code).
In terms of topics and aspects that should be negotiated and addressed in the agreement, the following can be recommended:
(i) the obligation to keep records and provide information on working hours schedules;
(ii) limits on (self)scheduling of working hours – night work, work on public holidays and at weekends;
(iii) overtime rules;
(iv) fixed and selectable periods of work performance and availability;
(v) a combination of (self)scheduling and remote working;
(vi) a set schedule of working hours for the purposes of holidays, leave and salary compensation;
(vii) the rules for balancing the average weekly working hours;
(viii) the rules on obstacles to work and their remuneration or compensation scheme;
(ix) the obligation to respect meetings and negotiations in which the employee is required to participate; or
(x) the possibility of breaking (self)scheduling by the employer in justified cases.
The above is then certainly appropriate, if not necessary, to combine and link with the employer’s internal regulations, where many of the topics mentioned above can be regulated by them.
The obligation under the employee’s timesharing agreement may be terminated:
(i) by agreement between the employer and the employee on an agreed date, or
(ii) by giving notice for any reason or no reason at all, with a 15-day notice period beginning on the date on which the notice is delivered to the other party.
The notice, like the agreement, must be in writing.
As regards the notice period, the employer and the employee may agree on the length of the notice period within the legal limits. The notice period must be the same for both the employer and the employee.
Sanctions
The new regulation of (self)scheduling of working hours by an employee also expands the list of offences in the area of working hours under Act No. 251/2005 Coll., the Labour Inspection Act, as amended.
The employer will now be subject to a fine of up to CZK 300,000 if it fails to comply with the conditions for the scheduling of working hours or if it fails to conclude an agreement on the scheduling of working hours into shifts by the employee or a change in writing, violates the obligations arising from such an agreement or violates the obligations for terminating the agreement under the new Section 87a of the Labour Code.
Conclusion
(Self)scheduling of working hours was originally proposed in the so-called flexible amendment, which is now in the legislative process. However, pressure from practice and interest not only from the professional public caused the earlier inclusion in the planned amendments.
It can be said with almost certainty that the introduction of the possibility for employees, in agreement with their employer, to divide their working hours into shifts according to their needs, now regardless of the place of work, is a positive step towards greater flexibility and mutual friendliness in labour relations.
Should you have any questions about the content of the current transposition amendment or need assistance in any other employment law matter, please do not hesitate to contact our PEYTON legal team at any time.
Mgr. Jakub Málek, managing partner – malek@plegal.cz
Rachel Kouklíková, legal assistant – kouklikova@plegal.cz
Mgr. Kateřina Vyšínová, junior lawyer – vysinova@plegal.cz
26. 9. 2024