The curious case of uncompensated ‘voluntary’ overtime…

By Frédéric Dopagne, Saskia Lemeire and Bert Theeuwes

In a decision of 3 July 2019 (Judgment No. 4197) , the Administrative Tribunal of the International Labor Organization (ILOAT) decided on the claim of a staff member requesting payment of his overtime work hours as he could not use them as time off before he retired due to his heavy workload. The uncompensated overtime amounted to a staggering 1060 hours.

This seemingly straightforward request was denied based, among others, on the following considerations:

• There was a so-called informal practice: “a special voluntary system had been established in the service where the complainant worked, which only allowed for compensatory leave (as opposed to financial compensation) to be taken for voluntary overtime, at the latest, in the month following the overtime performed” (consideration 3 of the Judgment)

• This practice was considered not to be contrary to the internal rules of international organization, i.e. not contrary to the text of article 57 on Overtime in the Service Rules stating that “a permanent employee may not be required to work overtime except in cases of urgency or exceptional pressure of work; overtime worked at night, on Sundays or public holidays may be authorized only in accordance with the procedure laid down by the President of the Office. The total overtime which an employee may be asked to work shall not exceed 150 hours in any six months.”

• This practice was legally binding: “The Tribunal finds that a practice was established based on the informal agreement, which was not contrary to the written provisions of Articles 57 and 58 of the Service Regulations. This practice, which was followed for a long time without any contestation by the parties to the agreement, became a legally binding practice, which only regarded voluntary work”.

The complaint was dismissed.

Although the information and argumentation mentioned in the decision is limited, it can be questioned why this so-called informal practice was not considered to be contrary to the clear and strict provisions of the Service Rules, or why an informal practice would require formal contestation, or – for that matter - whether ‘voluntary’ overtime is (or ever can be) truly voluntary.

Although this decision seems somewhat strange and counterintuitive, the ILO Administrative Tribunal is not particularly known for its protective stance in matters of overtime. In a decision of 3 July 2019 (Judgment No. 3149) , the Tribunal dismissed a request for payment of overtime in 3 sentences:

“Neither the Staff Regulations nor the complainant’s contract provides for the payment of overtime. There is no evidence that she was ever paid overtime and, in the Financial Statement of Accounts for 2008, the complainant stated that “overtime in AITIC is voluntary and not compensated”. Accordingly, the complainant has not established that she was entitled to payment for overtime and her claim in that regard must be dismissed.”

In this context and in order to avoid such conflicts, international organization are recommended to provide clear guidelines in their internal regulations. Staff members on the other hand should be careful in accepting requests to perform ‘voluntary’ overtime and be even more careful if such overtime is not immediate compensated.