Collective agreements: the case of overtime worked by an employee remunerated exclusively from tips
An employee was working as a head waiter in a restaurant (level 1, level II, of the collective agreement for hotels, cafes, restaurants), in return for a percentage payment on the service.
Following his dismissal, he had seized the prud'hommes to contest this rupture and in particular to request a back pay for the overtime he had worked.
The subject of overtime compensation for employees paid at a service percentage is dealt with in article 5.2 of addendum n ° 2 of 5 February 2007 relating to the organization of working time which states:
« For employees remunerated for service (…), the remuneration derived from the service percentage calculated on the turnover is deemed to remunerate the full working hours. However, the company must add to the service percentage the payment of increases (…) for overtime worked.
The remuneration of the employee paid at the service percentage thus composed must be at least equal to the minimum reference salary due in application of the salary scale and due to the length of the work performed, increased by the surcharges relating to the hours.
