Is it illegal to voluntarily work longer than the law allows?

Question

Let Bob be a software developer that can work from home. Bob's contract says he has to work 40h/week. The employer offers a flexible distribution of those hours and doesn't care when Bob works, as long as he averages 40h/week. To absolutely push this question, let's assume Bob can work uninterruptedly without feeling effects of fatigue or loss in concentration. This is an obvious hyperbole to explore the law and not about questionable work practices/ethics.

I know that some countries set upper limits on how many hours a day/a week you may work. But I suppose this is to protect the employee from their employer, who otherwise theoretically might force them to stay indefinitely at work. However, does this also force the employee to stop working?

When bob is in the zone he just doesn't want to stop working. He voluntarily stays as long as he needs to get the job done. There is no emergency or other situation that requires urgent care.

• Can Bob legally work 40hours in 2 days and take the rest of the week off?
• Can Bob legally work 80hours in 1 week and take every other week off?

Answer 1

No, your employer has to actively stop you from this in germany

The Arbeitszeitgeseztz is very clear in regards to maximum permittable time per day: 8 hours of work time on at most 6 days a week (Monday - Saturday) are allowed under normal circumstances.

Only in exceptional cases, 10 hours on a single day on the 6 work days in a week can be permissible. Even then the average work time may not exceed 8 hours per day worked over 6 months/24 weeks. That is regulated in the Worktime Law §3.

If the work contract mandates fewer hours or days, that does not change the allowable time per day at all: if you have a 2-day week, you may work 8 hours on both days regularly, and 10 only when your average hours per day over 6 months stays at or under 8 hours.

ArbZG §3: Die werktägliche Arbeitszeit der Arbeitnehmer darf acht Stunden nicht überschreiten. Sie kann auf bis zu zehn Stunden nur verlängert werden, wenn innerhalb von sechs Kalendermonaten oder innerhalb von 24 Wochen im Durchschnitt acht Stunden werktäglich nicht überschritten werden.

This is strict liability - intent does not matter, it doesn't matter that the employee instigated it. The employer is on the hook for up to 30 000 € per case according to ArbZG §22. Unscheduled audits from the official side on performed work hours, following documentation requirements and related issues happen, among others, in construction or road transport regularly. You'd be surprised: Customs and Border Police is tasked with enforcing those requirements on truckers and construction crews.

Among the employer's duties is to keep their employee healthy, which includes sending them home after 8/10 hours, not giving them work (or time!) till they have had a chance for his mandatory rest time under ArbZG §5 of 11 hours, and to send them home if they exceed the allowable average work time over 6 months and forcing them to take time off. It even can include forcing the employee to take holidays so they can rest and recuperate!

[Assume] the contract says 40hours. [...] For the purpose of the question assume Bob would only work on non-holidays.

Under german ArbZG this number can allow a lot of variation, such as all these that are designed to balance out within one week for simpler math reasons:

• 6 days at 6 hours, 40 minutes, plus-minus a little overtime
• 5 days per week at 8 hours on average, sometimes a little more, sometimes a little less.
• as an extreme case: contractually 5 days are contracted for, the employee is only working 4 days per week at 10 hours (2 of them 'overtime') and always takes the 5th day fully off from the accrued overtime.

Answer 2

This question can be answered for germany by looking into the Arbeitszeitgesetz. All the clauses mentioned in this answer represent clauses from this law.

Can Bob legally work 40hours in 2 days and take the rest of the week off?

Can Bob legally work 80hours in 1 week and take every other week off?

No, these scenarios would both be illegal.

§3 says that the maximum work time each day is 10 hours, and the maximum work time on average must not exceed 8 hours. However, §1 only defines Sunday as a free day, which means that there are actually 6 work-days in a week, which means the maximum average weekly work hours allowed by law are 48.

So the most Bob would be allowed to do is to work 6 day weeks with 10 hour days. Each of those weeks would accrue 12 hours of overtime, which means that for each 4 weeks Bob works that way he would need to take one full week off.

Also relevant might be §5, which says that there must be a break of at least 11 hours between leaving work on one day and resuming work on the next day.

If Bob voluntarily works more than the legal limits, then the one who is on the hook would be the employer. §22 mandates fines up to 30,000€. In extreme cases of repeated offenses, §23 allows even a 1 year prison sentence. Violating labor time laws is not an Antragsdelikt, so the state can persecute them regardless of whether or not Bob wants them to.

Answer 3

australia

Maximum weekly hours

The National Employment Standards (NES) apply to all employees in the Federal System, anyone working for the Federal Government or a Constitutional Corporation i.e. companies, which means most employees except State or Territory Government employees.

The Maximum Weekly Hours for a full-time employee is 38 hours.

These may be subject to agreed averaging over a maximum of 26 weeks. For example, in FIFO jobs there may be 2 weeks on where 152 hours are worked, followed by 2 weeks off where no hours are worked - this would meet the requirements.

The employer may request and the employee must work reasonable additional hours.

In determining whether additional hours are reasonable or unreasonable, the following must be taken into account:

• any risk to employee health and safety

• the employee’s personal circumstances, including family responsibilities

• the needs of the workplace or enterprise

• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours

• any notice given by the employer to work the additional hours

• any notice given by the employee of his or her intention to refuse to work the additional hours

• the usual patterns of work in the industry

• the nature of the employee’s role and the employee’s level of responsibility

• whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee

• any other relevant matter.

An employee who works additional hours without the employer requesting them is not entitled to payment for them, but there is no obligation on the employer to stop this happening. However, an employer who tolerates an expectation among their workforce that this is the "norm" may be deemed to have made an implicit request and be obliged to pay, and such hours would be subject to the reasonableness test.