Abstract
With Order No. 16147 of 16 June 2025, the Italian Court of Cassation once again addressed the rules on overtime work in the healthcare sector, examining one of the most debated issues in working time management: the right to receive overtime pay for hours worked during on-call shifts, even in weeks that include sick leave or vacation days. Although seemingly technical, the case touches on a deeper balance between an employer’s operational needs and a worker’s fundamental rights.
Is it lawful to offset absences with overtime?
The dispute arose from a nurse employed in a private healthcare facility who sought payment for hours worked during on-call availability with actual call-ins, performed beyond the regular working schedule.
The employer argued that these hours should not be classified as overtime, since the worker had taken sick leave and vacation during the same week. According to the company, the total working hours had not exceeded 40, and the additional hours merely compensated for time not worked.
Both the Court of First Instance and the Court of Appeal rejected this interpretation, recognizing the employee’s right to overtime pay. The Court of Cassation confirmed those rulings, offering a comprehensive, clear, and strongly worker-oriented legal interpretation of the relevant contractual and statutory framework.
Do vacation and sick leave count as “non-worked hours”?
According to the Court of Cassation, absolutely not. The central issue lies in how to interpret the notion of “normal working time” and whether leave and illness can be treated as hours to be recovered before overtime entitlement is triggered.
The Court rejected this argument as a “distorted approach”, stating that it treats legitimate absences as contractual non-performance. This, in turn, undermines the constitutional protection granted to health and the right to rest.
The Court clarified that “the weekly working time set out in Article 3 of Legislative Decree No. 66/2003” is not a target to be reached only through actual work performed, but rather a threshold beyond which overtime begins. This threshold is considered reached even when an employee is absent for protected reasons, such as illness or annual leave.
Treating legitimate absences as “non-worked hours” would impose a fictional time debt on the worker, effectively extending the weekly working time and shrinking the scope of overtime compensation.
The Court also pointed out that Article 6 of the same decree, which excludes leave and illness from the calculation of the average 48-hour maximum, is not applicable to the calculation of the normal weekly working time. These are two separate levels:
- one concerns the avoidance of a maximum average ceiling (48 hours);
- the other defines when regular working hours are exceeded (40 hours).
Only in the first case are absences excluded; in the second, they count toward fulfilling the work schedule.
“On-call availability” and overtime: no exceptions allowed
The decision also examines the relevant collective agreement, specifically Article 60 of the AOIS – ARIS Fondazione Don Gnocchi 2002/2005 National Collective Bargaining Agreement, applicable to non-medical personnel in private healthcare facilities.
The provision states that, “in the event of a call during an on-call shift, the hours actually worked shall be counted as additional or overtime work, unless the worker expressly opts for compensatory time off.”
On-call availability is a typical feature of healthcare work, where employees – though not physically present at work – are required to be immediately reachable and ready to work if needed.
- If no call occurs, the worker is still entitled to a specific allowance for the inconvenience;
- If called in, those hour qualify as actual work performed.
The Court of Cassation also endorsed the binary principle developed by the Court of Justice of the European Union (CJEU, C-580/19; C-518/15; C-303/98): “Time is either work or rest, with no grey areas.”
Under Article 2 of Directive 93/104/EC, as amended by Directive 2000/34/EC and then codified in Directive 2003/88/EC:
- “Working time” is defined as “any period during which the worker is working, at the employer’s disposal, and carrying out their activity or duties in accordance with national laws and/or practices”;
- “Rest period” is “any period that is not working time.”
This definition is also restated in Article 1(2) of Legislative Decree No. 66/2003.
Therefore, if a worker is called – even while at home – and the nature of the call significantly limits their ability to engage in other activities, it qualifies as working time.
The Court reaffirms the central role of time in employee protection
This ruling does not introduce a new precedent, but rather systematically strengthens an established legal interpretation.
An employee’s time is not a negotiable organizational variable, but a legally protected dimension, within which non-negotiable rights are exercised. The notion that justified absences generate a time debt that must be repaid before overtime can be recognized is explicitly rejected. Such a concept undermines the constitutional rights to health and rest.
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Publication date: 18 July 2025
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Debora Teruggia
Laureata presso l'Università degli Studi di Milano, praticante avvocato appassionato di Diritto del Lavoro e Diritto di Famiglia.