Due to the suspension of activities during the time of social isolation because of the Covid-19 pandemic, many employees and employers can’t wait to get back to work after the restrictions have been lifted. There are many cases where the employees want to work overtime to earn more income to cover the losses during the harsh period, and this is fine, even praiseworthy. However, on the other hand, when the person who demanded the overtime work is the employer in order to cover the losses of the businesses during the Covid-19 period, can the employees refuse that request?
Normally, an employer can only ask or request the employee to work overtime if the following 3 conditions are met:
- The employee agrees to work overtime;
- The number of overtime working hours of the employee does not exceed 50% of the normal working hours in 01 day; in case of weekly work, the total normal working hours plus overtime working hours shall not exceed 12 hours in 01 day, and 40 hours in 01 month;
- The total overtime working hours do not exceed 200 hours in 01 year, except for some special cases.
Nonetheless, there are also some special circumstances in which the employers can demand the employees to work overtime and the employees can’t refuse.
According to Article 108 of the Labor Code 2019, an employer has the right to request any employee to work overtime on any day without limits on the overtime hours and the employee must not decline in the following cases:
- Execution of a conscription order for the purpose of national security or national defense as prescribed by law;
- Performance of tasks necessary to protect human life or property of certain organizations or individuals in the prevention and recovery of natural disasters, fires, epidemics, and disasters, unless those tasks threaten the employees’ health or life as prescribed by occupational safety and health laws.
Accordingly, if the employee’s overtime is to overcome the consequences of the Covid-19 epidemic and does not affect the life and health of the employee according to the provisions of occupational safety and health law, the employees have no right to refuse the overtime request.
Nonetheless, on the other hand, if the working environment of the business is under threat by the Covid-19 pandemic and the employees have a high risk of exposing themselves to the Covid-19 virus, the employees have the right to refuse the request to work overtime by the employers.
In addition, when the employees have to work overtime then the overtime pay and the night work pay will be based on the piece rate or actual salary paid for the job to calculate the overtime salary.
Update: Add overtime hours for employees from 01/01/2021
The Labor Code 2019 officially took effect from January 1, 2021, stipulating an additional 10 hours per month for employees.
Specifically, Article 107 of the Labor Code 2019 stipulates that an employer may request an employee to work overtime if they can ensure that the employee’s overtime hours do not exceed 50% of the normal working hours a day.
In the case of applying the regulation of normal working hours per week that is 8 hours a day, the total number of normal working hours and overtime hours shall not exceed 12 hours in a day and no more than 40 hours in a month.
This regulation has increased to 10 hours per month compared to the provisions in the Labor Code 2012. In addition, the Labor Code 2019 also adds several cases where an employer is allowed to request an employee to work overtime for no more than 300 hours in a year in some fields, works, jobs, and special cases.