Right to work and its limitations

The right to work is one of fundamental human rights. "Human rights are closely connected with the world of labour, since one of the basic goals of "second generation" human rights protection was also the recognition of labour rights" (Kovačević, 2018, 229). In that respect, the right to work is also associated with guaranteed dignity at work. However, a question arises about the extent to which dignity at work is still "present" nowadays and whether it should be regained (Stojiljković, 2019, pp. 869−870).

To guarantee dignity at work for every worker, it is necessary to limit employers in their potential intention to abuse the institutes of labour law, among others, the institute of working hours, and to exploit workers through (illegitimate) overtime work. The issue of overtime work is important to sociological research having in mind the division of man's time into that spent at work and that spent "outside work", as well as the complex relation between time and work (Milošević, 1994, p. 68).

"Any work requires certain time, so time appears to be a general, external and natural condition of human labour" (Milošević, 1994, p. 67). On one hand, the review of (distant and more recent) history leads to the understanding that "progress in the limitation of working hours - is it necessary to remind of it - is one of the basic tendencies in the development of (national, comparative and international) labour law" (Kovačević, 2009, p. 89). To that end, it may be said that the development of labour law at the international level was, inter alia, aimed at "labour humanization, as well as the promotion of equality and solidarity" (Turčinović, Bakić, Stojković Zlatanović, 2020, p. 1184). On the other hand, "capitalism has outgrown national frameworks, becoming a supranational worldwide process and relationship, in which only one argument is appreciated, i.e. the argument of power based on the economic power of capital" (Pantelić Vujanić, Čukanović Karavidić, 2014, p. 284), which inevitably affects the issue of working hours.

The differences in the concept of overtime work in labour legislation are also influenced by the remnants of earlier regimes: "In Central Europe, mostly as a consequence of socialist heritage, overtime work is still on a large scale regulated by the state legislation instead of collective negotiations. In contrast, the Federal Law of the United States of America, does not contain any legal limits of the total number of working hours" (ILO, 2004, p. 1). Although labour relations in Serbia still contain certain "trails" of socialist heritage, exceptionally large changes have inevitably occurred (Bolčić, 1995, pp. 151−152).

Nowadays, the concept of working hours has been brought into question particularly by the modified method of the labour market functioning - technology development and many other factors have brought into question the "survival" of regular working hours (International Labour Organization [ILO] 2021a). Globalization has also led to the increasing number of working hours, so that a question arises whether globalized economy implies "more sweat" (Burgoon & Raess, 2011, pp. 699–700)1. It may be said that today's work "tends to occupy the entire time at man's disposal […] Work penetrates all the pores of man's life (public and private, free, open and hidden, intimate)" (Šijaković, 2008, p. 263). On one hand, "the theoretical views of the so-called scientific-technological revolution perceive the basic factor of social development in a modern combination of science and technology, while in the already shaped social structures of the most developed countries of the world they 'recognize' the integrating power of technology" (Milošević, 1995, p. 364). On the other hand, a question arises whether the goal of technology development is exactly to "liberate" the man to the greatest extent possible, and not to make the man a "slave" with no free time.

The answer to the question why overtime work is present to such an extent nowadays is that employers often "make savings" in that manner, since overtime work may substantially lead to the reduced costs of labour for the employer (Li & Gao, 2014, p. 3564). The abuse of the institute of overtime work by employers leads to the situation that overtime work becomes a form of work exploitation which employees, as an economically weaker side in the labour relationship, accept because they have no other choice.

The analysis of the discrepancy between the normative and the actual in the context of overtime work is a reflection of numerous problems in the labour market, as well as of the factual inequality between the employer and the employee.

Normative framework regulating overtime work

Many significant changes in the manner of everyday functioning and life begin "quietly", e. g. "through the production method modification" (Bolčić, 2003, p. 13).

An important change in the world of labour occurred when more attention was paid to the issue of working hours. Although working hours were also regulated to a certain extent earlier, it is important to note that in the very process of adopting the ILO Constitution, the issue of working hours was discussed (ILO, 2011, p. 3). It is small wonder having in mind that "quantity and characteristics of work significantly affect the quality of life in the modern society" (Bolčić, 2003, p. 14).

Two important conventions regulating overtime work within the ILO are: ILO Convention No. 12 and ILO Convention No. 303 - they establish the daily limit of eight hours and the weekly limit of forty-eight hours. They stipulate the minimum fee for overtime work in the amount of 125% of regular work. The ILO Convention No. 474 and the ILO Recommendation No. 1165 take a step further in terms of reducing the number of working hours by limiting the weekly work to 40 hours. The limits of working hours in the ILO Conventions have a twofold effect - "here, limits serve to promote higher productivity while safeguarding workers' physical and mental health" (ILO, 2021b, p. 7).

The Treaty on the European Union and the Treaty on the functioning of the European Union show that a high degree of protection is one of the goals the European Union strives for6. In secondary law, of special relevance is the European Community Directive No. 2003/88, which guarantees employees' rights regarding their working hours7. The Directive explicitly stipulates the "maximum of 48 hours per week, including overtime work"8, while any deviations from this rule are stipulated only in extraordinary situations9. "The countries decide about the period during which the average working hours are calculated on a weekly basis, but that period cannot be longer than four months."10 The Directive also stipulates the possibility of the countries to be exempted from the limited number of working hours on a weekly basis, i.e. enabling the employer and the employee to deviate from this rule by reaching agreement about the business week exceeding 48 hours, but in that case it is requested that health and safety should be guaranteed and that the employee has consented to it11.

However, this agreement is contentions, to say the least, because it inevitably leads to the question of "how to understand differently the idea that the employee and the employer can agree that the employee should work more than 48 hours per week than in such a manner that everyone who wants to earn more is free to renounce even their fundamental rights?" (Kovačević, 2011, pp. 94–95). In that respect, it should not be forgotten that "since work is the prerequisite of freedom, emancipation, creation and development of man's essential powers and characteristics, work can also be an instrument of enslaving the man and restricting his creations, potentials and freedom (Šijaković, 2008, p. 262).

The data in relation to working hours at the European Union level are as follows:

• The maximum number of working hours with overtime work in the EU member states is: 60 hours (Austria, the Netherlands), 50 (Belgium, Croatia) and 48 hours in most EU member states;

• In 2019, Germany introduced the possibility for employees known as Brückenteilzeit, which involves "the reduction of the number of working hours in the period from one to five years, and afterwards the resumption of regular working hours";

• Austria has established the "daily maximum from 10 to 12 working hours, and the weekly maximum between 50 and 60 hours, including overtime work";

• On the other hand, in Hungary, "the annual maximum of overtime work has been raised from 250 to 400 hours" since 2019;

• A similar change occurred in Belgium in 2018, when in the hospitality sector, instead of maximum 100 hours of overtime work, the employees were allowed to work up to 360 hours per year on a voluntary basis; "for these hours no increased earnings were paid as for overtime work, but they are exempt from taxes and contributions, so the employee receives the gross amount of earnings" (Eurofound, 2019, pp. 3–7).

It is interesting to note that the European Court of Human Rights (ECHR) has decided on several occasions whether overtime work can be considered as forced work. For example, in Case Tibet Mentes and Others vs. Turkey, the ECHR concluded that if the work is voluntary, only the length of 24 uninterrupted hours cannot be the reason for considering such work as overtime12. Despite such decision of the Court, the very fact that a question arises whether in some cases overtime work may be considered as forced work proves the degree of the “gravity” of the situation existing in practice regarding overtime work. In that respect:

"It can be concluded that the legal order of human rights protection and the European Convention on Protection of Human Rights and Fundamental Freedoms have established certain standards for detecting the (non-)existence of forced work, such as: willingness to work, payment for work, or any other compensation for work, the fact whether work exceeds the framework of regular job descriptions, the gravity of the sanction for refusing work and the application of the proportionality test which implies that in each specific case the gravity of the burden of mandatory work should be considered (type and amount of work) and the importance of the reasons for introducing forced work" (Božović, 2020, p. 205).

Speaking of the Serbian law, the Labour Law stipulates overtime work "in the event of force majeure, a sudden increase of volume of work and in other cases when it becomes indispensable to complete an unplanned work within a specific deadline"13. The legislator states that overtime work may also be performed "at the employer's request", and establishes the limit in terms of the maximum length of overtime work and the conditions that must be fulfilled in order to consider the existence of overtime work14. Apart from the weekly overtime work being limited to eight hours, there is also a daily work limit that, including overtime work, is 12 hours15. The Appellate Court in Belgrade has taken the attitude that for the existence of overtime work, it is necessary to have the employer's order and/or decision, as a rule in writing16.

There is a prohibition of overtime work for those who work shorter working hours17, as well as for underage employees18, while "a female employee during pregnancy and breastfeeding period cannot work overtime and at night if such work would be harmful to her health and her child's health, based on the findings of the competent medical authority19". Therefore, overtime work is characterized by being performed in extraordinary situations and not regularly (Kovačević, 2013, p. 290). "If the law includes exceptions, its protective character of limiting full working hours will lose significance" (Lubarda, 2012, p. 480). The fee for overtime work is treated like increased earnings, and speaking of the minimum amount, it is 26% of the earnings base20.

The Labour Law also takes into account the possibility of redistribution of working hours. Although work redistribution may be useful, it may also be a way of the employer's "hiding" overtime work in order to avoid the payment obligation21. The sanction for the employer as a legal entity is "from 600,000 to 1,500,000 dinars in case overtime work is assigned to the employee contrary to the provisions of the Labour Law"22. In court practice, a clear difference has been made between the redistribution of overtime work and overtime work23.

However, that the normative framework is not sufficient is also proved by the fact that, inter alia, in practice, there is "a request for overtime work even when there are not proper reasons for it" (Kovačević, 2018, p. 231).

Overtime work in practice

Although the normative framework sets the limits and conditions regarding overtime work, the practice is often discrepant with what has been stipulated24. In that context, it should not be forgotten that "the type of the social work distribution and the different position of the classes in the social structure constitute general circumstances that define the framework of the possible manner of using free time" (Milošević, 1994, p. 75) and thus the issue of the absence of free times.

"The scale of the problem existing at the global level regarding overtime work is proved by the fact that in Japan there is a term karoshi, which means "death from overtime work" (Mizunoya, 2001, str.1), and the Japanese language is not the only one that has a term for this phenomenon (Klajić, 2020, pp. 17–18).

The practice of overtime work is also proved by the results of statistical studies conducted in 2021: in India, there is the average of 2,217 working hours per year; in the USA 1,757; in Japan 1,738; in the United Kingdom 1,670, and in Germany 1,354 working hours per year (Clockify, 2021). According to the data from 2015, "at least one out of ten employees in the EU works over 48 hours per week" (Bradsma, 2019). Chart 1 shows the average number of working hours per year in different countries of the world in 1979 and 2017, which shows that the achieved progress in the reduction of the number of working hours is not particularly great.

Chart 1 The average annual working hours per worker in 1979 and 2017
Графикон 1
Просечан годишњи број часова рада по раднику 1979. и 2017. године
Source: Clockify (2021)

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Speaking of the situation in Serbia, it is necessary to take into account the information that "in 2018, 77,500 employees work from 49 to 59 hours per week, and 91,200 employees worked more than 60 hours per week" (Bradaš, Petrović, 2019, p. 8). Moreover, we must take into account the fact that several decades ago our country underwent the transition the traces of which are still felt. "Actual consequences of the privatization are, inter alia, the destruction of the state-owned property and economy, mass loss of work places, increasing unemployment, deepened economic and social inequalities and the formation of the society on the periphery of capitalism" (Novaković, 2020, p. 1155). It was the transition in our society that led to the "re-establishment" of the ruling class of owners and the working class as hired labour (Novaković, 2020, pp. 1163−1164). As a matter of fact, there is an attitude that the privatization was conducted at the expense of the majority of workers (Novaković, 2013, p. 25). The data shown in Chart 2 indicate that in today's Serbia people work more average than those in the European Union member states.

Chart 2 The average weekly number of working hours of full-time employees
Графикон 2
Просечан недељни број часова рада запослених са пуним радним временом
Source: Bradaš, Petrović, 2019, p. 8

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In the 1990s it was told that the possibility of "forming the modern-type working class" would be postponed for some other period of time (Novaković, 1993, p. 323), while today the question inevitably arises about whether that period of time has come is inevitable.

There are numerous workers' testimonies about overtime work25. A former employee of German company Tennis says: "We often used to work twelve or even thirteen hours […] We wrote down our overtime hours, but nothing about it could be seen on our payslips. At night I heard my co-workers crying in the rooms where we were accommodated" (Schwartz, 2020). There are also testimonies of Serbian employees: "I work in a private company so nothing is paid, no matter whether you work overtime or not. That's the way it is" (Mirković, 2019). Those who report unpaid overtime work as a rule do not get adequate protection. That was the case when a worker of a company in Ruma addressed the labour inspection because of unpaid overtime work, so he suffered retaliation at work, and was even dismissed in the end. The Higher Court in Sremska Mitrovica was competent in this case and it "made a decision on the temporary measure according to which the employee is returned to work until the completion of the legal proceedings because of his dismissal, but in the end he gave up the legal proceedings" (Gočanin, Vučković, 2017). Yet another example of unpaid overtime work involved the notification about "the workers in a sales point in Ljig who are not paid for their overtime work. During the control, the labour inspector asked the workers whether they worked overtime, but she had no insight into whether the employer kept records of overtime work, which she had to do in compliance with the law". The labour inspection was informed about this case by the portal Radnik.rs26.

It is important to note that the Appellate Court in Belgrade concluded that "the employee's refusal to do the subject jobs after the working hours did not constitute the violation of work discipline, on the basis of which the employer could cancel the employee's employment agreement"27.

As a matter of fact, a large number of studies are dedicated to the mater of the relationship between overtime work and the effects of overtime work on health (Beckers, Linden, Smulders & Kopier, 2008)28. A higher degree of satisfaction in the work place is conditioned, among other things, by the employee's ability to influence the organization of working hours (Golden, Henly & Lambert, 2013, pp. 108–124). An extreme example of the consequences that may be caused by overtime work is the tragic death of Japanese journalist Miwa Sado, who died from overtime work at the age of only thirty-one29.

"Frustration" caused by overtime work is even greater if we take into account the fact that overtime work is often the consequence of the inappropriate management of the employees' work, which leads to the employees' dissatisfaction and reduced productivity (Timely blog, 2021). In "the mildest case", overtime work leaves consequences on the employees' motivation. It should not be overlooked that "every man has a certain need for self-realization, which also involves the striving for creativity in work, as well as the utilization and development of work experience and personal abilities in the sphere of work" (Bolčić, 2003, p. 144). Of course, when making any decision, the employer should also consider the consequences that such a decision might have on the employees' motivation.

Taking into account the above-mentioned, the conclusion is that the issue of overtime work affects the satisfaction and harmony of the life of the individual and the society (Chen & Yang, 2020).

Empirical research

Since overtime work is the institute of labour law that is clearly determined at the international level and domestic legislation, it is necessary to explore to what extent overtime work is harmonized with the normative framework in practice. The author conducted the empirical research with the aim of proving that a) a large number of employees are not familiar at all with what is considered as overtime work, and b) there is a discrepancy between the regulations and the practice when it comes to overtime work.

The author conducted the research by the triangulation method in order to consider the problem from multiple angles. To that end, two medium-scope methods - the survey and the interview - were used. Having in mind the sensitivity of the topic and the (justified) fear of the employees of speaking about overtime work, the research was anonymous.

A) Survey as a research method

The advantage of the survey over other methods is that on a larger sample it shows the state of affairs in practice and, which is of key importance when it comechart

s to the discrepancy between the regulations and the practice. Even when the respondents were told that the survey was anonymous, a certain number of them wanted to make sure once again whether everything was anonymous. The questions in the survey are of a closed, semiopen and open type.

B) Interview as a research method

The research was conducted with the aid of the interview with the superiors and the employees in an old people's institution. The questions within the interview referred to whether there was overtime work and how much, whether the COVID-19 pandemic had affected it and whether they were paid for their overtime work. The interviews were performed in order to reach a conclusion, based on the detailed experiences, about the extent to which overtime work is actually practised and whether the COVID-19 pandemic had increased the volume of overtime work.

Survey results

The survey included 106 people and was conducted within a school, within a public company and by the random sampling method30.

The answers to the questions about the average number of working hours on a daily basis are as follows: 75.47% respondents answered that they worked on average eight hour per day and 8.49% answered that they worked more than eight hours. The answer structure was very indicative when it came to the next question about the average number of working hours on a weekly basis. Namely, 66.98% respondents said that they worked 40 hours, while 17.92% of them worked more than 40 hours. This indicates that slightly less than one fifth of the employees in the survey work overtime, which is a high percentage having in mind that overtime work should be organized only "in extraordinary circumstances".

On one hand, more than 70% respondents stated that they knew what was considered as overtime work, and, on the other hand, we learnt the following three data: as many as 30.19% of them answered that they were not familiar with the necessary conditions to be fulfilled in order to consider some work as overtime; 36.79% of the respondents answered that they did not think a written order was necessary (as it has already been stated, the interpretation of overtime work in court practice was such that, as a rule, the employer's written order was necessary); in the end, as many as 63.21% respondents answered "yes" to the question whether the employer's records of the number of work were sufficient proof of overtime work. It can be concluded that a much larger number of the respondents think that they are familiar with what is considered as overtime work that it is actually the case in practice.

Furthermore, when asked whether they were paid for overtime work, only 20.75% said "yes", and 61.32% said "no". The structure of the answers to the question about whether overtime work was paid can be euphemistically described as concerning31. In contrast, when asked whether they thought the employer was obliged to pay for overtime work, 77.36% of them said "yes".

Regarding the question: "If your answer to the previous question is affirmative, what percentage of the earnings must be paid by the employer for overtime work?", the answer structure is as follows: only 21.70% answered "from 20% to 49% of earnings". This result indicates that just a little more than one fifth of the respondents gave the answer that was correct or approximately correct.

The last question in the survey was: "Would you react and (if yes) in what way would you react if you thought your rights regarding overtime work were breached?". The answers were as follows:

1. 49.06% said that they would react in some way32;

2. 28.30% said that they would not react at all33.

Interview-based research

The interview was conducted within an old people's institution, with the total of six people, three of whom are the management staff (the head of the institution/doctor, the psychologist and the social worker with the university degree), while three of whom are the employees/medical staff. All employees are women, while the management consists of two men and one woman.

It is important to note that, although the respondents were specifically asked to give as detailed answers as possible, most answers were rather short, which proves that there is fear or at least concern when it comes to the issue of overtime work.

All the interviewed employees also said that they worked overtime in ordinary circumstances; they thought the employer was obliged to pay for overtime work, but they were not actually paid for it, as well as that from the beginning of the pandemic they had worked even more than usual. In addition, all the employees were aware of the obligation of payment for overtime work, but admitted that the employer did not pay for overtime work in practice. Two employees found that their co-workers also had the same or similar experience, while the third employee said that "everything was individual".

All three members of the management stated that they also worked overtime to a larger extent after the beginning of the COVID-19 pandemic, but also that the employed medical staff worked overtime. It is indicative that all three members of the management believed that there was an obligation to pay for overtime work, but when asked about the amount, they answered: "about 20%", "I am not sure" and "as stipulated by the law". Two members of the management said that the employees were paid for overtime work, which is discrepant with what the statements of the medical staff.

These results inevitably lead to the question whether this is a certain kind of a "vicious circle". Namely, in the hypothetical situation (which is unfortunately rather frequent in practice, therefore not only hypothetic), the employer will not give the employees an explicit order to work overtime, but will assign tasks which, even with the employees' commitment, take time outside regular working hours. If the employee finished their work until the time stipulated as the end of their working hours, they would not be able to complete their task to the necessary extent and with the necessary quality. That is why the employer "could" cancel the employee's employment agreement34.

Final considerations

It can be concluded that overtime work has become an everyday routine, which (paradoxically) reminds us of the period before the industrial revolution and brings into question the century-long struggle of the employees. Although overtime work is normatively regulated, a large number of employers demand overtime work from their employees that does not comply with the legal provisions.

Based on the research conducted by the author, it can be concluded that a large portion of the problem lies in the fact that some employees are not even familiar with the conditions to be fulfilled in order to consider the "additional" hours as overtime work. Namely, the survey shows that almost one fifth of 106 respondents work overtime, but this is a rather high percentage if we take into account the fact that overtime work needs to be organized only "in extraordinary circumstances". In addition, more than three quarters of the survey respondents answered that they thought the employer was obliged to pay for overtime work, while on the other hand, more than 20% respondents answered that they would not react in any way if they thought their rights regarding overtime work were breached. As far as the interview is concerned, all the respondents in the old people's institution think that they work overtime, but that they are never paid for it, while two out of three members of the management staff think that they fulfil their obligations in relation to the employees' overtime work.

It can be concluded that in practice there is the abuse of the institute of overtime work by employers who do not introduce overtime work in extraordinary situations, but on a daily basis. Therefore, there is a large discrepancy between the normative and the actual concerning overtime work.

The issue of overtime work is of great importance for the entire labour market, as well as for the limits of legal subordination of employees. The struggle against the practice of illegitimate and "permanent" overtime work implies that employees should be familiar with their rights, and that they should not be overly afraid of losing their jobs, which depends on numerous factors outgrowing the framework of labour law regulations.