Flexible working time agreement

What does a flexible working time agreement mean?

An employee and employer may enter into a flexible working time agreement in written form, according to which the working time of the employee is divided into agreed working hours and additional hours. In other words, the parties may agree on working time as a period of time. A flexible working time agreement allows an employee, in addition to the agreed working hours, to work additional hours up to full-time working hours, if they wish. An employer cannot enter into a flexible working time agreement without the consent of the employee.

A flexible working time agreement enables both the employer and the employee to organise work more flexibly and to better cope in situations where the workload and labour needs of the employer fluctuate, and where the ability and willingness of the employee to work may vary over time.

For example, the parties may agree that the employee works 20–30 hours per week, meaning that 20 hours must always be guaranteed and 10 hours constitute additional hours. It may also be agreed that the employee works 10–40 hours per week, meaning that 10 hours must always be guaranteed and 30 hours constitute additional hours.

A flexible working time agreement enables the employee to organise work more flexibly and to better cope in situations where the workload and labour needs of the employer fluctuate, and where the ability and willingness of the employee to work may vary over time.

Conclusion of the agreement

A flexible working time agreement must be concluded with the employee in writing, i.e., signed. For example, the implementation of flexible working time may be agreed upon in the employment contract, an annex thereto, or in another separate agreement.

A flexible working time agreement must include:

1. the number of agreed working hours;
2. the number of additional hours;
3. the minimum advance notice period for assigning additional hours;
4. information that the employee has the right to refuse additional hours and that consent to additional hours must be confirmed by the employee in advance each time in a format which can be reproduced in writing.

The hourly wage of the employee must be at least 1.2 times the minimum hourly wage established by the Government of the Republic.

The law neither prohibits nor requires an automatic transition from a monthly salary to an hourly wage in the case of a flexible working time agreement. However, for the sake of clarity and risk mitigation, it is advisable to agree on an hourly wage.

Working time

A flexible working time agreement may be concluded with an employee who works at least 0.25 of the full-time workload, i.e. at least 10 hours within a seven-day period. The agreed working hours and additional hours together must not exceed full-time working hours, i.e. 40 hours within a seven-day period. For example, the parties may agree that the employee works at a 0.5–0.75 workload (i.e. on average 20–30 hours per week), meaning that the agreed working time of the employee is 20 hours per week – the employee must be provided with at least 20 hours of work per week but may work up to 10 additional hours. It is also possible to agree that the employee works at a 0.25–1.0 workload (i.e. on average 10–40 hours per week). If a flexible working time agreement is concluded with an employee under 18 years of age, it must be taken into account that reduced working time is prescribed by law for such employees.

If an employee works beyond the agreed working hours and additional hours, this constitutes overtime work. This means that if the agreed working hours of the employee are, for example, 10 hours per week and additional hours are 10 hours, the employee may work a total of 20 hours per week, and any time worked beyond that is overtime. Working additional hours under a flexible working time agreement cannot be regarded as overtime, as the performance of additional hours has been agreed in advance. This means that the employee cannot presume that such hours qualify as overtime, which is remunerated at a higher rate.

At the same time, the employer may, if necessary, remunerate additional hours at a higher rate (e.g. at 1.5 times the regular wage, as overtime is compensated). On the other hand, a situation is not excluded where an employee refuses to work additional hours if the employer requires the employee to perform overtime due to unforeseen circumstances, particularly to prevent damage (Subsection 44 (4) of the Employment Contracts Act).

The right to refuse additional hours

The employee has the right to refuse to work additional hours. An employee is obliged to work only to the extent of the agreed working hours. Therefore, the employee has the right to refuse additional hours. The employee may decide whether to accept additional hours according to their wishes and availability. The employee must confirm their consent to the offered additional hours in a format which can be reproduced in writing (e.g. in writing, by SMS, or by email). If the employer includes the additional hours of the employee in the work schedule, the employee may consent at once to all additional hours reflected in the schedule for the entire scheduled period. In such a case, the employee does not need to give separate consent each time for working additional hours. If the work schedule is amended in a way that increases the additional hours, the consent of the employee must be obtained again for those additional hours. The employer cannot withdraw from agreed additional hours (otherwise a situation under Section 35 of the Employment Contracts Act may arise).

If, during the past six months, the employee has worked more than the agreed working hours for the majority of the time, the employee has the right to request an amendment of the flexible working time agreement and an increase in the agreed working hours. If the employer and employee do not reach agreement on the new number of agreed working hours, the agreed working time of the employee will, as of the time of submitting the request to the employer, be deemed to be the average number of working hours of the employee per seven-day period during the preceding six months.

Working with aggregated working hours

If the employer and employee agree that working time is distributed unevenly over a reference period (aggregated working hours), the system of calculation of aggregated working hours may also be applied to work performed under a flexible working time agreement. The parties should likewise agree on the aggregation of working hours performed under a flexible working time agreement. In such a case, the employer uses the same reference period for aggregating the agreed working hours and additional hours agreed with the employee. For example, if the reference period of the employer for aggregated working hours is four months, hours worked under a flexible working time agreement may also be aggregated over the same period. Different reference periods may be used by the employer only in situations that are more favourable to the employee. At the end of the reference period, the employer must provide the employee with a clear and comprehensible working time schedule distinguishing, for the entire reference period worked, the agreed hours, additional hours, and overtime hours.

For example, if an employee works at a 0.5 workload (on average 20 hours per week, 4 hours per day) and has concluded a flexible working time agreement under which they may work additional hours up to 0.25 workload (on average 10 hours per week) within a seven-day period, then, when applying aggregated working hours (with a four-month reference period), their maximum working hours may be distributed as follows:

According to the example above, an employee working at a 0.5 workload must be guaranteed 340 agreed working hours during the period from January to April 2024. During the same period, the employee may work up to 170 additional hours. If the employee works fewer than 340 hours during that period, this constitutes underemployment hours, which the employer must compensate in accordance with Section 35 of the Employment Contracts Act. If the employee works more than 510 hours (i.e. the sum of agreed hours and additional hours, 340 + 170 hours), this constitutes overtime, since under an averaged working time arrangement, work exceeding the agreed working time is deemed overtime at the end of the reference period.

Invalidity of the agreement

A flexible working time agreement is void if:

1. the agreement has not been concluded in written form;
2. the agreement does not contain the mandatory terms;
3. the employee is paid an hourly wage lower than 1.2 times the statutory minimum hourly wage;
4. the agreed working time of the employee is less than 10 hours within a seven-day period;
5. the additional hours agreed with the employee exceed full-time working hours.

In such cases, the agreement is void ab initio, meaning that no flexible working time agreement is deemed to have been concluded with the employee, and hours worked beyond the agreed working hours are considered overtime.

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