The Overtime Dispute
Elena works as a nurse in a private hospital in Antwerp under a permanent employment contract. Her contract states a 38-hour work week, but for the past eight months she has regularly worked 45 hours per week without additional pay, at the request of her supervisor. The hospital has no collective bargaining agreement (CBA) in place. In March 2024, Elena asks for compensation for the overtime. The hospital refuses, arguing that (1) Elena is a 'cadre' (executive) and therefore exempt from overtime pay, and (2) even if not exempt, she never obtained prior written authorization for overtime as required by the internal work rules. Elena claims she is not a cadre because her job title is 'senior nurse' and she has no managerial authority. She also points out that the hospital never provided her with the internal work rules. She files a claim with the labour tribunal.
1. Is Elena exempt from overtime pay as a cadre? Discuss the criteria for cadre status under Belgian labour law.
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Elena is not exempt. Under the Belgian Law of 16 March 1971 on work, overtime pay is due unless the employee is a 'cadre' with a higher salary and real managerial responsibilities. The criteria are not based on title but on actual functions: authority, responsibility, and a salary significantly higher than the minimum. Elena's title 'senior nurse' does not confer managerial authority; she does not supervise staff or make strategic decisions. Her salary is not alleged to be substantially higher. Therefore, she does not meet the cadre criteria. The hospital's argument fails. She is entitled to overtime pay at the statutory rate (150% for overtime beyond 38 hours, with a maximum of 11 hours per day and 50 hours per week).
2. Does the absence of prior written authorization and the hospital's failure to provide internal work rules affect Elena's claim? Analyze the burden of proof.
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The absence of prior written authorization does not bar Elena's claim. Under Article 26 of the Law of 16 March 1971, overtime must be authorized in advance, but if the employer has not provided the internal work rules (which must specify the procedure), the employer cannot rely on the employee's non-compliance. The hospital failed to provide the rules, so it cannot invoke them. Moreover, the burden of proof for overtime hours lies with the employee, but Elena can use evidence such as clock-in records, emails, and witness statements. The hospital's failure to keep proper records (required by law) shifts the burden partially: under Article 28, the employer must keep a register of hours; if it does not, the employee's credible testimony may suffice. Therefore, Elena can recover overtime pay for the hours proven.