Koumentakis

Category: Articles

  • Voluntary employee resignation & Digital Declaration

    Voluntary employee resignation & Digital Declaration

    The recent labor law (:5053/2023) changed -among other things- the provisions regarding the unjustified absence of an employee, which may result in his resignation. We have already been concerned with the recent changes to the resignation of an employee. Following these changes (: art. 23 l. 5053/2023), the long-awaited (:no. 113169/18.12.2023) Ministerial Decision of the Minister of Labor and Social Security ( Government Gazette B’ 7421/28.12.2023 ). This specific MD determines, among other things, the procedure regarding the digital declaration for the resignation of an employee. For the relevant procedure and related concerns, the present article!

    The Dissolution of the Employment Relationship

    The employment contract is terminated:

    (a) by agreement between employer and employee,
    (b) by dismissal of the employee by the employer (termination of contract),
    (c) by resignation of the employee (voluntary retirement),
    (d) by death of the employee or their retirement,
    (e) by the employer being placed in special liquidation and, lastly,
    (f) by any confusion in the same person of the capacities of employer and employee.
    In particular, fixed-term employment contracts are also terminated upon the expiry of their contractual duration.

    However, there is also the possibility that the employee is absent from work unjustifiably and arbitrarily. Such a choice/behavior of theirs may be considered, under certain conditions, as a termination of their employment contract. In order to assess the employee’s absence as such, specific conditions must be met, which are analyzed below.

    Voluntary Resignation of an Employee | Announcement

    The employer was obliged (also under the pre-existing legislative regime) to announce, by electronic submission of the relevant forms (which was provided for in the previous, with no. 40331/13.9.2019 MD, in the ERGANI II platform), any case of resignation of an employee. Also, any case of automatic termination of the probationary period or consensual termination of the employment contract, such as voluntary exit or termination of an indefinite employment contract or expiration of a fixed-term or project employment contract. This announcement should take place no later than four (4) working days from the day of the employee’s departure or termination of the indefinite employment contract or expiration of the fixed-term employment contract or project or any other case of termination or expiration of the employment contract (art. 320 §1 of Presidential Decree 80/2022-after the amendment of art. 23 of Law 5053/2023).

    The recent-as above (under no. 113169/2023) MD differentiates the pre-existing, immediately above, data. First of all, now, wherever in the aforementioned the word “form” is referred to, it is replaced by the word “declaration”. Furthermore, this specific, recent, MD lists among the digitally submitted “declarations” and, among others, the Digital Announcement of termination/expiration of an employment contract. It merges elements of the forms E5 (:Announcement of voluntary employee departure), E6 (:Termination of an indefinite-term employment contract with or without notice), E7 (:Certificate – Employer’s Declaration for fixed-term or project contracts). Specifically, among the cases of termination/termination of the employment contract are the following cases:
    (a) voluntary resignation and
    (b) voluntary resignation after notice.

    Explicit Resignation of an Employee

    The (employer’s) announcement of the employee’s resignation is necessarily accompanied by an electronically scanned form signed by hand by the employer and the employee. Alternatively, by a document bearing their electronic signature or a document digitally certified by both through the Single Digital Portal of Public Administration (gov.gr – art. 320 §2, presidential decree 80/2022).

    Silent Resignation of an Employee (After Notice)

    Concerns, however, arise regarding the case of an employee’s long-term unjustified absence and, for this reason, their resignation after a relevant declaration by the employer.

    The provisions of the law

    According to the current legislative framework (: art. 23 of Law 5053/2023-as codified by art. 320 §3 of Presidential Decree 80/2022), the employee’s unjustified (arbitrary) absence from work for more than five consecutive working days may be considered as termination of the employment contract on their part. It is assumed that the employer has given them notice that five more consecutive working days have passed.
    The said notice:
    (a) is posted on the ERGANI II platform and
    (b) is proven in any appropriate written manner. At a procedural level, the employer is obliged, on the working day following the second five day period, to announce the employee’s resignation to the ERGANI II platform, without requiring the employee’s signature.

    The predictions of the recent Ministerial Decision

    The above, recent, MD (which comes into force on 1.3.24) somewhat – unfortunately, however, differentiates the data in relation to the provisions of the law.

    (a) Submission of a statement of responsibility for the nuisance (and not the nuisance itself)

    In the event of unjustified (arbitrary) absence of the employee from work for a period of more than five consecutive working days, the employer submits to the ERGANI II platform electronically a solemn declaration regarding the employee’s notice (in accordance with the first paragraph of paragraph 3 of article 320 of Presidential Decree 80/2022).

    Therefore, a first, important – in excess of the law – differentiation/bureaucratic burden should be noted here: the employer does not post the employee’s notice itself (as explicitly provided for in the relevant provision) but, on the contrary, a declaration by them (the employer) that they gave the notice in question.

    (b) Deadline for submitting a declaration for the resignation of an employee

    In the event no action is taken within five (5) consecutive working days from the submission of this responsible statement regarding the notice, the employer is obliged, on the next working day, to submit the employee’s digital declaration of resignation without requiring the signature by the employee.

    Here, therefore, we have the second differentiation. The Ministry of Health changes, in relation to the provision of the law, the point in time from which the period of five (5) consecutive days begins.

    Specifically, the legislative regulation (: no. 320 §3 PD 80/2022) provides that a period of five consecutive working days must elapse from the mandatory notice of the employee by the employer. On the contrary, the MD provides that a period of five consecutive working days must elapse from the (electronic) submission of the solemn declaration of notice by the employer. At the same time, there is no obligation (or possibility), for example, of the employer, pursuant to which the posting of the notice must (or will be possible) take place on the same day as the notice.

    (c) The problem and the dilemma.

    The above (legislative) excesses of the disputed Labor Code create, among other things, a significant problem. If the posting of the employer’s solemn declaration regarding the notice takes place, for example, the day after the employee’s notice (as the Labor Code requires), another day is added to the (already unreasonably extended/legally prescribed duration) for the completion of the voluntary resignation process.

    The ambiguity, however, regarding the individual times of the voluntary withdrawal process creates legal uncertainty.

    All the more so since the employer is required to apply the law (five days from the notice) or the Labor Code (five days from the day after the submission of the solemn declaration of notice). And if, despite hope, they choose wrongly and is declared overdue, the employment contract is considered to have been terminated by an irregular termination on his part (art. 320 §4 of Presidential Decree 80/2022) – with all, of course, the attendant, adverse consequences.

    We already mentioned in our previous article about the voluntary retirement that the recent law simplified and made more rational the pre-existing relevant regulations. However, it did not address problematic situations that, on a practical level, can be addressed: long, for example, unjustified (but not ten days continuous) absence of the employee from his work. The maintenance of such a serious pending matter in an employment relationship for such a long time is obvious, ultimately, against the business itself and its viability..” The authorized by law (more precisely: exceeding the law) MD not only (unfortunately) deviated from the legislative provisions (: posting the notice vs posting a responsible statement about the notice) but is also practically expected to extend for another day(!) the already, unjustifiably long, deadline for addressing a problematic situation. We have already suggested that a three-day, only, (proven as) unjustified absence of the employee would be, in any case, sufficient for the termination of the employment relationship. We therefore justifiably look forward to the next, relevant, legislative regulation. Such a legislative regulation is already becoming more than necessary.-

  • Digital Work Card & Registration of Working Time Changes

    Digital Work Card & Registration of Working Time Changes

    With the issuance of the (long-awaited – under no. 113169/28.12.2023 Government Gazette Β΄ 7421/28.12.2023) Ministerial Decision of the Ministry of Labor and Social Security, important issues regarding the Digital Work Card & Registration of Changes in Working Time are addressed, among other things. The said ΜD was also expected to amend the current provisions regarding the terms of electronic submission of forms under the responsibility of SEPE and OAED. It actually reformates (:Part C’), the upgraded ERGANI II; with the aim (also) of adapting it to the provisions of the recent labor law (law 5053/2023 ). Among the reforms it is implementing is the ability to choose a pre-announcement or reporting system for recording schedule changes, working time organization and overtime. That’s all, for now!

    Digital Work Card: The Provision of the Law art. 22 §1 Law 5053/2023

    The law (art. 22 §1 of Law 5053/2023) has already made a particularly important provision for employers whose businesses or enterprises have joined the electronic system for measuring working time using the digital work card for their employees with dependent employment. Accordingly, these employers are entitled not to register in the ERGANI II System any changes or modifications to working hours or the organization of working time or overtime work before they begin.

    However, a significant fine is threatened for the employer in the event that a change in working hours or the organization of working time or overtime is made by the employee and this is not identified by the marking of the digital work card. The amount of this fine amounts to the amount of €10,500(!) per employee, on whose digital work card the aforementioned identification is not possible.

    The Purpose of the Regulation

    The above regulation (according to the Request for Proposal of Law 5053/2023 on Article 22) is expected to contribute to addressing the administrative burden borne by a specific category of businesses. Specifically, those that register in the ERGANI II System the changes or modification of working hours or the organization of working hours or overtime. And, at the same time, they implement the electronic system for measuring working hours using the digital work card. Moreover, as noted therein, the marking of the digital card proves in real time the start and end of working hours, as well as the legal exceeding of the declared hours (overtime).

    The Reflections

    The content of the above legislative provision created specific concerns.

    • The first concerned (and still concerns) the amount of the fine threatened in the event of failure to identify any changes in working time by marking the digital work card of a specific employee. The fine of €10,500 is considered unreasonably high – much more so if we take into account that it is equal to the fine for undeclared work.
    • The second concerned procedural issues. Specifically, it was necessary to clarify the method of determining any non-identification of the marking of the digital work card with the change or modification of the working hours or the organization of working time or the overtime work of employees, given the lack of obligation to announce the relevant changes in advance.

    However, as provided for in the relevant regulation of article 21 of Law 5053, the registration procedure, the information to be disclosed, as well as the procedure for checking and imposing the fine, as well as any other matter related to its implementation, were to be determined by decision of the Minister of Labor and Social Security.

    UNHCR’s Answers: The Distinction Between Systems

    The above-mentioned HR came to provide answers to the procedural concerns. This HR proceeds to a particularly interesting distinction between the systems for recording changes in working time: the pre-announcement and the reporting system. The provision, in fact, for the reporting system makes the process of implementing the provision of the aforementioned article 22 of Law 5053/2023 tangible.

    The Two Systems

    As specifically provided for in the aforementioned MH (article one), the declarations submitted digitally to the ERGANI II platform include – among many others -: (a) the digital declaration of choice of a pre-announcement or reporting system for recording changes in working hours, working time organization and overtime and (b) the digital reporting declaration of changes in working hours, working time organization and overtime. The employer may choose either of the two registration systems.

    In case of choosing the advance notification system, the employer will be obliged to register the changes in working hours before they are implemented. On the contrary, in case of choosing the reporting system, he will proceed with the said registration after the changes are implemented.

    Employers are entitled (and of course obliged) to choose between the two systems within a specific deadline. The basic parameters of the regulation:

    • It concerns (subjective scope of application): Employers whose businesses or farms have joined the electronic system for measuring working time using the digital work card.
    • Selection deadline: Until the last day of the previous month from the reference month.
    • Choice content: The aforementioned employers are obliged, within the specific, immediately above, deadline, to declare in the “Digital Declaration of Choice of a Pre-Announcement or Reporting System for Recording Changes in Schedule, Working Time Organization and Overtime”, for the following period of time, which, in fact, cannot be less than one month, whether they will register the changes in working time:
      (a) in advance – and in any case before the start of their implementation or
      (b) reporting – after their implementation, as provided for in the law (Article 22 of Law 5053/2023).
    …Especially Regarding the Accountability System

    As further provided for in the reporting system, employers who choose to record changes in working hours, working time organization and overtime for their employees are required to make the relevant declaration/registration again within a specific deadline: specifically, by the end of the next calendar month from the date of their occurrence.
    The relevant reporting data, which will be recorded in the ERGANI II System, will be cross-checked with the corresponding markings on the digital work card and will be under the control of the Labor Inspectorate.

    Digital Work Card & Registration of Working Time Changes | Effective Date

    The above-mentioned Decree, with regard to the regulations regarding the advance notice and reporting system for recording changes in working hours, shall enter into force on 1 March 2024.

    The recent, according to the above, Ministerial Decision comes with vigor to address procedural concerns created by the recent legislative regulation (art. 22, law 5053/23). However, the problem remains: if in a company deviations are detected in the declarations of working time from the marking of the digital card of a specific employee, the amount of the threatened fine is unjustifiably and blatantly high. It does not seem at all logical to impose, in this case, a fine of €10,500, the same as in the case where a company employs an employee with his work, in total, undeclared. As lawyers, we must invoke the (lack of) proportionality. As fools of logic! We look forward, therefore, to the next, corrective, legislative regulation.

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 14th, 2024).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

     

  • General Assembly of the SA: The Highest Corporate Body

    General Assembly of the SA: The Highest Corporate Body

    The Board of Directors is in fact of fundamental importance for SAs (Read: The Board of Directors of the SA: Operation, Power, Members).

    Introducing the chapter on General Assembly of SAs, (GA), we will be focusing in the particular importance and value of the highest body of the SA and of course the limitations of its power.

    General Assembly of SAs: The scope of its decisions and powers

    The General Assembly is established by law (: art. 116 law 4548/2018-as previously in force) art. 33 of Codified Law. 2190/1920) as the “highest body” of the SA (see Explanatory Report on art. 116, paragraph a, Law 4548/2018). The hierarchical organization of the SA is therefore demonstrated, at the highest level of which the General Assembly is located. It constitutes a collective body, the members of which are, exclusively, the shareholders of the company (in practice: owners of the SA and bearers of the financial risk of its activity).

    The characterization of the General Assembly as the highest body of the SA derives from and is consistent with the nature of the responsibilities granted to it and recognized by the law: The General Assembly “…is entitled to decide on every corporate matter” (: art. 116).

    The General Assembly of the SA has the power and authority, among other things, to elect (and freely recall) the Board of Directors (and the auditors) of the SA. To also exercise control and supervision over the activity of said bodies and persons – who are accountable for the actions of the respective management period. After the end of each corporate year, it approves (or not) their overall management. Therefore, the Board of Directors of the SA functions, in principle, as an executive body of the decisive will of the General Assembly (more precisely: of the majority of shareholders).

    It would not be an exaggeration to note that the General Assembly is responsible for taking the most important (in terms of importance and gravity) decisions regarding the existence, activity and course of the company. Even regarding its dissolution. In fact, regarding certain decisions, its responsibility is exclusive (especially art. 117 – for which our next article).

    Participants and decisions

    The decisions of the General Assembly are, of course, made by the shareholders. Directly linked to the shareholder status is the right to appear (in person or by proxy) and actively participate in its meetings. Shareholders have the opportunity to request information – on the occasion of an upcoming meeting or during the work of the General Assembly. During its conduct, in fact, they have the right to take the floor and ask questions – in the framework predetermined by law. The ultimate purpose of all individual rights of this nature is, in principle, the creation of the necessary conditions for the documented exercise of the right to vote for each of the items on the agenda. It is assumed, of course, that they hold the right to vote either as full owners of their shares or, for example, as usufructuary or pledged creditors. During voting, it is not possible for them to participate, automatically, when they are deprived of the right to vote (e.g., holders of non-voting preference shares).

    In order for the decisions of the General Assembly to produce legal results, the quorum and majority percentages must be met for the adoption of each decision, as provided for in the law and the articles of association. The voting of an individual shareholder (but not the sole or majority shareholder) has no consequences. It simply contributes to the formation of the corporate will, as expressed by the General Assembly. The decisions of the General Assembly, of course, are binding on all shareholders, regardless of whether they abstain, are absent or disagree (art. 116, sub. b).

    The action of the General Assembly (in contrast to the permanent nature of the Board of Directors) is periodic. The body meets – but also exists to take decisions according to the law and its articles of association – only when convened for this purpose. Its convening is sometimes mandatory (:ordinary General Assembly) and sometimes when it is deemed necessary by the circumstances (:extraordinary General Assembly). It is important to provide the shareholders with the opportunity to participate in decision-making without necessarily holding a meeting or even by simply signing the relevant minutes (see art. 135 and art. 136 respectively).

    Separation of Powers Board of Directors & General Assembly of SA

    The management of the SA belongs, first of all, to the Board of Directors. The General Assembly, however, has the ability/power to intervene in the relevant competence of the Board of Directors. However, different views have been developed regarding the extent of this intervention. According to the prevailing (and correct) view, the General Assembly has broad and general competence. Furthermore, (art. 116 and 86) margins for (positive or negative) intervention by the General Assembly in the work of the Board of Directors are recognized.

    It is important, however, to note that the GM’s power of intervention cannot lead to arbitrary usurpation of powers that have been assigned to other corporate bodies. In this context, the complete removal of the Board of Directors’ (legally derived) managerial power is excluded (after all, this would result in the Board of Directors being irresponsible ). But what is the point of such a choice by the GM? It would be simpler for it to choose (and elect) a new Board of Directors, which it would express and which would operate according to its directions (that and its substitute bodies)…

    It is possible to limit the scope of the power of the Board of Directors on the basis of a statutory (and, therefore, general) provision. However, the limitation of the obligations of the members of the Board of Directors, as well as the alteration of their liability regime, are not issues that are amenable to statutory regulation. Any limitation of the duties of the Board of Directors is, however, tolerated by a specific-relevant decision of the General Assembly. Such a decision, usually, will concern a specific act (or unit of competences) of the Board of Directors. Regardless, however, of any theoretical concerns, the influence of the decisions of the Board of Directors should be considered, as a rule, a given, as the majority shareholders are the ones who elect – and maintain in power – the members of the Board of Directors. They, in turn (the members of the Board of Directors), express and defend the interests of the majority shareholders, which, as a rule, they promote. Sometimes even before the corporate equivalents.

    It is possible that the articles of association require prior information and/or consent or (ex post) approval of the General Assembly for the performance of specific management actions by the Board of Directors or substitute bodies. Especially when decisions are to be taken that by their nature create risks for the company (such as the transfer/sale of significant assets). It is accepted, and rightly so, that the General Assembly is not only entitled but also obliged to intervene in defense of the interests of the shareholders (Greek Commercial Code 2263/2003).

    The decision-making by the General Assembly beyond the limits of its authority does not create any obligation of compliance or commitment towards the Board of Directors. Of course, given the fluidity of the relevant limits, the scope for shareholder intervention must be assessed on a case-by-case basis and always in accordance with the prevailing circumstances. Greater freedom of intervention by the General Assembly in matters of corporate organization is recognized, provided that it is an unlisted company. On the contrary, in listed companies, given the asymmetry of interests between the General Assembly and the Board of Directors, the involvement of the General Assembly is understood in decisions that (in terms of subject matter and importance) escape the current management of the Board of Directors.

    Binding Force of General Assembly Decisions – Conditions

    The decisions of the General Assembly produce, according to the aforementioned, binding results and develop legal consequences for all shareholders of the SA. And this, regardless of whether the shareholders participated or not in the crucial meeting (and/or vote). Regardless, in fact, of whether they voted for or against.

    Binding force, however, is produced by the legal decisions of the General Assembly. Legality is examined at two levels: (a) compliance with the legal decision-making process and (b) compliance of the content of the decision taken with the law and the statutes.

    In particular, the General Assembly takes valid decisions if it has been convened, constituted and decided in accordance with the legal forms and the (possibly existing more specific) statutory provisions. In the event that a relevant defect is found, the decision will be voidable. This practically means that it will produce, normally, legal effects, until it is voided by a final court decision (: art. 137).

    As for its content, in the event that the decision taken contradicts the law and/or the statutes, it will be invalid (art. 138 – however, the possibility of curing the invalidity is provided for under §4 of the same article).

    Shareholders – as already mentioned – have the possibility to make a decision without a meeting. Either remotely at the General Assembly using electronic means (art. 135) or through the countersigning of minutes without a meeting (art. 136). Similarly, the decisions of the previous paragraph are also binding on dissenting shareholders. However, in the case of countersigning of minutes, for the decision to be valid, it is required that it bear the signatures of all shareholders.

    Finally, in the event that more than one class of shares has been issued in the SA, for the legal adoption of certain decisions by the General Assembly (e.g. to increase or decrease the share capital), relevant approval is required from the special meeting of the class of shareholders affected by the specific decision. Similarly, a decision of the special meeting is required to be taken by the shareholders representing preferred shares upon a decision of the company to abolish or limit their privilege (art. 38 §7).

    There is no doubt that the General Assembly of a company is the highest body of the company. However, this does not mean that it can abolish or replace its other bodies. It also does not mean that it can operate without rules. Moreover, its operation and decisions are subject to judicial review for their legality. We must be particularly careful in this regard at all stages: convening, conducting, decisions. However, for its exclusive competence, decisions, in our next article.

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 14th, 2024).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

  • Punishment (penalty), without (?) a crime

    Punishment (penalty), without (?) a crime

    Punishment (penalty), without (?) a crime

    Punishment (penalty): The draft law of the Ministry of Justice, in the part that concerns substantive criminal law, aims to “strengthen the crime-preventive function of punishment through the principles of general and specific prevention“.

    The following are chosen as means, among others:

    • at the level of threat of penalties, the increase in their limits ⸱
    • at the level of sentencing, the tightening of the framework of reduced sentences and sentencing rules ⸱
    • at the level of imposing sentences, the tightening of the conditions for suspending their execution.

    The punishment must be proportionate to the injustice and the guilt of the perpetrator.

    The message is addressed both to the general population ( threat of harsher penalties ) and to the specific perpetrator ( imposition and execution of harsher penalties ). The drafter invokes the anti-criminal / punitive function of criminal law: protection of legitimate goods.

    The question is whether his choice is limited by the appropriate guarantees in favor of the suspect/accused/convicted person (guaranteed/liberal function of criminal law) or whether the latter (potentially, each of us) is abandoned exposed to repressive arbitrariness.

    Criminal science was positioned: at the level of principle, serious cracks are being caused in the liberal penal edifice ⸱ at the level of result, stricter measures have not yielded the expected results in terms of reducing crime.

    The perpetrator of a crime displays antisocial behavior , and is punished for it. However, he remains a member of society, with ties to it. He serves his sentence there, to which he returns at the same time or after serving it.

    In a democratic state, punishment, due to its harmful, painful and stigmatizing nature, requires legalization (a particularly complex issue), both in terms of its size and type.

    The punishment must be proportionate to the injustice (the evil caused by the perpetrator) and his guilt (the antisocial nature he demonstrated with his act). This is also required by the Constitution.

    In this case, reforms are proposed that focus unilaterally on the perpetrator and his projected future antisocial behavior. The sentence is disconnected from the actual outcome of the act and the perpetrator’s contribution to its occurrence.

    Thus, in the case of an attempted crime, the criticized regulation is reinstated, whereby the court can impose on the perpetrator, instead of a reduced sentence, the sentence provided for the completed act. The possibility of imposing on the (simple, as it is concluded) accomplice the sentence of the perpetrator is also proposed. In both cases, it is sufficient for the court to foresee (with opaque criteria) that the reduced sentence will not prevent the perpetrator from committing other acts in the future.

    The concern for the prevention of evil is unfortunately exhausted in the threat, imposition and execution of a greater evil, at the expense of an individual, on the precarious basis of an unverified prognosis regarding its future dangerousness.

    The perpetrator is punished once for the crime he commits and a second time because it is assumed (how unknown) that he will repeat it, as if the crime (and evil) is simply a matter of one person’s decision, and not a multifactorial problem (a riddle). The risk of ineffective, disproportionate and unjust punishments becomes visible.

    With such sentences, however, the social fabric is not restored ⸱ it is torn apart, as it is torn apart by crime and even more so , and the interventions are revealed to be illegitimate, both as “measures of freedom” and as “measures of protection”, according to the classic saying of I. Manoledakis.

     

    George Karanikolas

    Senior Associate Koumentakis and Associates Law Firm

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 7th, 2024).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

     

     

  • Single or multi-member criminal courts

    Single or multi-member criminal courts

    Ι

    On November 28, 2023, a draft law of the Ministry of Justice entitled: ” Interventions in the Criminal Code and the Code of Criminal Procedure to speed up and improve the quality of the criminal trial […] ” was put into public consultation.

    Among the declared (legitimate) aims of the legislator: ” the acceleration and qualitative upgrading of the criminal trial “.

    Among the (indicatively) proposed means: ” the transfer of the judicial matter of the misdemeanor court and the court of appeal from multi-member courts to small-member courts”.

    The (at first sight, logical) stated reasoning: “the same number of judges […] can set up more courts and thus a multiple number of cases can be heard “.

    The above legislative initiative concerns: (a) the more general issue, the, from a numerical point of view, composition of the criminal courts and (b) the more specific question: single or multi-member criminal courts?

    Legal theory has rulled: “the advantages of the multi-member criminal court” do “outweigh the dissadvantages” (see N. Androulakis, Fundamental concepts of criminal proceedings, A. N. Sakkoulas, 1994, p. 105 ff.).

    In the recent past, the establishment of single-member courts of appeals for the adjudication of felonies was discussed with particular acuity: they were established, but with limited competence.

    This debate, in the end, was not closed and is being “rekindled” with the proposed transfer of important material to the jurisdiction of these courts.

    In addition to this, however, for the first time, generalized material competence of the single-member misdemeanor court is proposed, which will adjudicate all misdemeanors, except for (although important, but few) exceptions.

    This is an innovation: cases that are particularly complex in terms of evidence, for which a prison sentence of up to 5 years is threatened, will be tried for the first time by a single judge.

    The proposed change is assessed as major and should be discussed, since it potentially concerns a large (perhaps the largest) part of everyday delinquency, and a correspondingly large number of people are involved, either as perpetrators or as victims. The present article constitutes a small contribution to this discussion.

     

    ΙΙ

    Although the legislator sets a dual purpose (: speeding up and qualitatively upgrading), they nevertheless justifiy only one (: the speeding up of the process).

    No one (not even the legislator) claims that the single-member composition in itself constitutes “upgrading the criminal trial”.

    The admittedly increased “sense of responsibility” of the single-member composition harmonizes with and transforms into “freedom and independence of opinion” within the more fruitful, corresponding, multi-member one (see N. Androulakis, p. 106-107).

    The advantages of the single-member composition are said to be primarily of an economic nature. This, however, must be proven.

    However, the legislator does not provide statistics which prove that indeed the single-member composition adjudicates faster (: acceleration) and more correctly (: quality upgrade) the same highly complex case by a three-member composition.

    In this case, speed is assumed to occur simply as a result of freeing up and redistributing existing human resources.

    However, to date the draft law is not accompanied by the necessary, in our opinion, plan for the practical implementation of the proposed section:

    how many judges, currently of three-member courts, will be freed up in order to set up single-member compositions and with what criteria but also in which chambers and with what secretarial support, at the moment when the three-member misdemeanor court is maintained (albeit deforested) both as a first instance (with adjudication in the second instance by a single-member composition court of appeal) as well as an appellate court? What are the benefits and costs (economic and social) of all the changes? Is the change positive?

    The legislator bears the burden of proving that the instrument they propose achieves the dual purpose they proclaim, that the social footprint and economic cost of this initiative is positive, much more so when it is carried out by a technocratic – in the sense of non-ideologically anchored – approach ⸱ otherwise, they are exposed to the criticism that they turn (without being in their intentions) a sloppiness of the executive power into a problem of the judiciary and its officials and co-officials.

     

    ΙΙΙ

    The debate is just beginning, and the arguments that are and will be formulated relate, in addition to the above, to the extent to which the specific legislative initiative is consistent with the principles, values, rights, rules and provisions of criminal and constitutional law order, which could be summed up in the question: is it theoretically and systematically consistent but also juridically correct and safe for a single judge to rule on a complex, particularly discreditable act?

    The answer to the question cannot but take into account research coming from the field of psycology, that highlights how we perceive the world, recall events and form judgments, and how vulnerable we are to errors and misinterpretations along the way (see L. Mlodinow, Under the Threshold, University Press of Crete, 2021).

    But we choose to close by answering a different question: is it reasonable for a single judge to rule on a complex, particularly dispicable act ?

    Logic precedes any other assessment: the latter (should) be absent when the former is not established. So what does simple common sense tell us?

    Let’s say that judge X decides more often correctly, at least 60% of the time, and acquits the one who should be acquitted and convicts the one who should be condemned.

    If judge X is on a three-member panel, then, taking into account all possible negative cases (: two of the three panel members are wrong but the third is not, and all three panel members are wrong) the probability of an “error of the majority” is already decreased by 5% (see L. Zourou, When Hodjas met Einstein, University Press of Crete, 2019, pp. 80-81).

    In other words, where judge X alone used to get 60% right, when they judge with two others together, they get 65% right together, even when all three are wrong.

    The above indicative improvement is obviously important: the percentage of wrong criminal decisions must (from a logical and juridical point of view) be annihilated, and the multi-member compositions, in the first and second degree, make a key contribution to this.

    Logic cannot help but want (and the State cannot but must ensure that) the chances of the judge being exposed to the inevitable choices are minimized, especially the conviction of an innocent person, but also the acquittal of a guilty person. Otherwise, the first negates itself and the second undermines itself.

    The above is a “dry” way of expressing the benefit of logic that comes from simply co-deciding, which can be reasonable assumed that it is magnified when it is preceded by a fruitful dialogue – a conference in this case.

    The above calculation can only give the opposite results if the basis is different: only if the X judge wrongly decides more times. Then, and only then, does the three-member composition mean that the possibility of “majority error” increases and the advantage becomes a disadvantage.

    Conclusion: since we start from the assumption that judge X decides correctly most of the time, we can only defend multi-member compositions for complex and highly dispicable acts. Common sense wants them to be preserved.

    Primarily, however, multi-member compositions, in complex and highly discreditable acts (and such are now also misdemeanors) constitute a necessary procedural guarantee of correctness, proof of the social body’s trust in the judges that they decide correctly most of the time and a practical manifestation of the State’s care so that they decide correctly on even more.

    George Karanikolas
    Senior Associate

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 24th, 2023).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

  • Working Time Arrangements: The Diffidence

    Working Time Arrangements: The Diffidence

    Since the spring of 2020, the signatory has been concerned with the need to simplify, expand, rationalize and effectively utilize the institution of working time arrangements. To deal with it, a simplified legislative regulation was required. The relevant proposal (according to the standards of Germany and Cyprus – which successfully utilize the institution) would undoubtedly work to the benefit of employees and businesses. The immediately preceding labor law (Law 4808/2021) did not seize the relevant opportunity. It reformed the arrangement for the settlement, showing obvious audacity by avoiding noteworthy reforms. And this is because, according to the then Minister of Labor, the employee should be given the opportunity to request (: only them!!!) an arrangement… “to gather their olives”(!!!). The recent labor law (: law 5053/2023) further rationalized the institution, establishing the only logical condition for its application: the agreement of the employee and the company. Unfortunately, again, cowardly…

     

    What is Working Time Arrangement?

    The arrangement of working time constitutes a case of permissible offsetting of working hours. This offsetting can take place between the increased hours (of work) of one time period, with the decreased hours of another. It is important to note that, despite the fluctuations in the working hours in the individual periods, the salary remains the same in each time period. It will be equal, in any case, to the remuneration for work of forty 40 hours/week – as long as the specific hours apply in the company. And if the weekly hours are less than 40 hours, the pay to be paid during the settlement period will be equal to the pay provided for the weekly hours (art. 192 §4 Presidential Decree no. 80/2022).

     

    Settlement Systems

    The method of settlement is determined by law. The recent legislative changes (laws 4808/2021 and 5053/2023) did not change the already existing dual settlement system of law 1892/1990. We had, however, the addition (: law 4808/2021) of an additional settlement system.

    The Dual Settlement System

    The more than twenty years in disuse, according to the following, regulation (: art. 41 n. 1892/1990-as kept in force based on art. 192 Presidential Decree no. 80/2022) provides for a dual system of arranging working time in companies, in which contractual hours up to 40 h /week apply. This means that the settlement agreement can take place within the time limits specified by each of the following alternatives:

    (a) First alternative: The employee may work up to two hours in addition to their contractual hours for a certain period of time (: period of increased employment). The extra hours of increased employment are subtracted from another time period (: period of reduced employment). During the latter time period, the employee will work fewer hours than their contractual hours or will receive a corresponding daily rest (day off) or will enjoy a combination of them. The reference period (increased and reduced employment), although freely chosen, cannot exceed six (6) months in a twelve (12) month period (art. 192 §1.a. Presidential Decree no. 80/2022).

    (b) Second alternative: It is possible to allocate 256 working hours, within a calendar year, to periods of increased work that cannot exceed 32 weeks per year (: eight months) and ten hours per day. During the remaining period until the completion of the year, the employee has a correspondingly reduced employment (art. 192 §2.a. Presidential Decree no. 80/2022). Instead of reduced working hours – and to offset the additional hours worked during the period of increased working hours – the employee may receive a corresponding daily rest (day off) or a corresponding increase in annual paid leave or a combination of reduced hours and rest days or leave days (art. 192 §3 Presidential Decree no. 80/2022).

    Common Arrangements

    In both, above, two settlement systems:

    (a) The protective provisions for the employees’ mandatory rest time are fully applicable also during the period of increased employment (art. 192 §§ 1.c., section a’ and 2.c. section a’ Presidential Decree no. 80/2022).

    (b) The average weekly work during the reference period (6 months or year) remains at forty hours/week. (And since a shorter contractual hour is applied, the average weekly term cannot exceed it). At the same time, if the hours of overtime or overtime work (which may take place during the period of reduced employment) are taken into account, the average cannot exceed 48 hours/week (art. 192 §§ 1.c., ed. a’, 2.c. ed. a’ and §5 Presidential Decree no. 80/2022).

    (c) The employee has the right to refuse the provision of this additional work, if they are unable to perform it and their refusal is not contrary to good faith. This refusal of the employee for the extra work cannot constitute a reason for terminating their employment contract (art. 192 §§ 1.b. and 2.b. Presidential Decree no. 80/2022).

    (d) If the employment contract is terminated before the completion of the settlement system, then as long as the employee did not provide reduced employment, they will be paid for the period of their increased employment based on the arrangements for exceeding work time limits (art. 192 §§8 and 12).

    (e) The arrangement system can also be applied to seasonal businesses and to employees with an employment contract of less than one year (art. 192 §9 Presidential Decree no. 80/2022).

    The (Third) System of Law 4808/2021

    Law 4808/2021 seems to have (“quietly”) introduced an additional system for arranging working time (art. 55 §2): “In the context of arranging the working time of article 192, full-time employment also means working 4 days a week” (182 §2 Presidential Decree no. 80/2022). It was envisaged, in other words, the possibility of dividing the full weekly schedule into 4 working days and for 10 hours per day.

    Concerns were expressed about the relevant system. Among others, the Scientific Service of the Hellenic Parliament. In its relevant report, it is stated that the specific provision “…if it does not refer to a four-day ten-hour work day, this cannot be offered as part of the arrangement, as the logic of the arrangement consists of 40 hours of weekly employment (or the shorter applicable contractual hours), but as an employment average. The said average is obtained through the combination of periods of increased and decreased employment within a broader reference period”.

    As, however, it was also pointed out in Circular no. 64597/2021, the specific system of arranging working time can be applied either to a reference period of six (6) months within one (1) calendar year or to a reference period of one (1) calendar year.

     

    Settlement System Determination Beneficiaries

    Under The Original Law That Established The Settlement (: Law 1892/1990)

    Under Law 1892/1990 (art. 41 – as it was in force before Laws 4808/2021 and 5053/2023), the adoption of working time arrangements systems could be determined: (a) with a company-level Collective Labor Employment Agreement, (b) with an agreement of the employer with a trade union in the undertaking which concerned its members, (c) with an agreement of the employer and the works council or (d) with an agreement of the employer and association of persons.

    It was not possible, i.e., to adopt a settlement system by a unilateral decision of the employer or an agreement between them and the employee. Quite naturally, therefore, the application of the possibility of arrangement, under the then current conditions, fell into disuse.

    Under Law 4808/2021

    Before the (given) uselessness of such an interesting institution – due to the limitations of the law that established it (: the necessity of the existence and consent of a trade union organization for its entry into force), Law 4808/2021 attempted a (still timid) leap. It provided, in particular, that if there is no trade union or no agreement is reached between the trade union and the employer, it is possible, at the request of the employee (“to gather their olives” – according to the introduction) to activate the settlement system of working time. (Presupposed, here too, that there is a relevant written agreement in place).

    The purpose of the relevant addition – as pointed out in the Memorandum of law 4808/2021 on art. 59 – was to deal with the impossibility of applying the work arrangement system in the following cases: (a) On the one hand in companies where there is no trade union organization, (b) On the other hand in cases where, while there is a desire of the employee for the arrangement of working time in a way that corresponds to the adaptation sought by them of their personal and professional life, there is no corresponding employer-union agreement. It was made clear, however, that settlement by individual agreement was a secondary option. The lead was maintained in favor of the trade unions.

    The settlement agreement, according to Law 4808/2021, could be initiated by the employee and not by the employer. The priority, however, could not be the needs/desires of the employee but the needs of the business. After all, how would it be possible to implement such a system, without taking into account the way of operation and the needs of the business?

    An attempt was made, in retrospect, to deal with the (lacking logic) malfunctions by issuing an interpretive Circular. With the aforementioned Circular (with law 64597/2023) it was clarified that, for the convenience of the parties, the employer has the possibility to notify the employees of the possibility to submit an application for settlement. Also, the fields of individual operational needs, which would be receptive to the implementation of a working time arrangement system.

    It was expressly provided, in order to secure the employees, that it is forbidden to terminate the employment contract because the employee did not submit a request for settlement (art. 59 §1 in fine law 4808/2021). Therefore, the obvious is confirmed: the formulation of the company’s needs and the activation of the specific institution must precede and, subsequently, the request of the employee to be submitted to it. Not, of course, the opposite!

    Under the Recent Labor Law

    The recent labor law (Law 5053/2023) addressed the above logical inconsistency. It predicted, in particular, that: “if there is no trade union organization or no agreement is reached between the trade union organization and the employer, the working time arrangement system can be applied, after a written agreement between the employer and the employee is drafted”. At the same time, it was provided that “termination of the employment contract is prohibited for the reason that the employee did not consent to an arrangement of working hours.”.

    With the relevant reform of the regulation for the possibility of individual arrangement, even if auxiliary, the legislator aims to address the need to facilitate the utilization of the system of arrangement of working time by employees and employers (see in this regard, Memorandum to law 5053/2023 on art. 28). In any case: the provision for a written agreement (without the employee’s prior request) is, obviously, facilitative, it responds to reality and also to the needs of the employees and the companies.

     

    The regulation of employment time is not an invention of the Greek legal order. The basic regulation that, at least at the European level, applies (and the relevant one proposed by the signatory) provides for the determination of its exact context by the directly interested parties: the company and the employee. Let’s trust them! Overregulation (always present in the Greek legal order) helps, in any case, beggars, alleged beggars and, obviously, us lawyers.

    But the immediate stakeholders?

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 17th, 2023).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

  • Trial Period of Employment Contracts

    Trial Period of Employment Contracts

    The recent labor law (: law 5053/2023) incorporated the 2019/1152 Directive (“Transparent and predictable working conditions in the EU”) into the national legal order. Among the regulations of this law, which have raised particular debates and serious questions, is the one that concerns the trial period (art. 4) in case of entering into a dependent labor contract. Through this trial period, the employer intends to determine the skills and suitability of the employee, before committing through the definitive employment contract.

     

    The Status before Law 5053/2023

    Trial Employment Contract

    Until today (and before the above law) transactional practice allowed the contracting parties to agree that the definitive employment contract of indefinite or definite duration would be drawn up after a successful trial of the employee.

    The probationary contract could take the form of a fixed-term employment contract, in which case it would be automatically terminated at the end of that period. The employer would, in fact, be the one who would decide, after the trial period, whether or not to enter into a (new) definitive contract. Any termination of the employment contract before the expiration of the agreed certain time, would require a material reason (672 Civil Code). Unless the employer has reserved in their favor the right to terminate the contract freely and at any time – by observing the conditions for termination of the employment contract of indefinite duration.

    The trial contract could also take the form of an indefinite term employment contract with clause (usually dilutive). The employer would be able to reserve in their favor a right on the basis of which, for a certain reasonable time from the beginning of the contract, it would have a trial character. During this reasonable time (and even before its expiration) it would be possible to terminate it without compensation. This if, “according to an objective and fair judgment” the employee was not found to be suitable for their work (1719/2012, NOMOS Legal Database).

    As there was no specific legislation, the duration of the trial period in trial contracts could be determined by the individual employment contract. However, it should not exceed the reasonable time limit that would be necessary for the employer to assess (or not) the suitability of the employee they hired. This was required by the principles of good faith, so that the employee’s uncertainty regarding the finalization of the employment contract would not be maintained for a long time. Also, in order to avoid the circumvention of the provisions concerning the termination of the employment contract. The, case by case, reasonable (on the upper) limit was dependent on the type and nature of the work for which the recruitment is made. Besides, for the assessment of professional abilities, sometimes more time is required and sometimes (due to the nature of the work) the minimum (1719/2012, NOMOS Legal Database).

    The “Trial Period” In the Case of the Contract of Indefinite Period

    Based on the pre-existing regulation (article 74 §2 section a’ of Law 3863/2010, added by Art. 17 §5a of Law 3899/2010): “…employment under an employment contract of indefinite duration is considered as employment of a trial period for the first twelve (12) months from its effective date and which may be terminated without notice and without severance pay, unless otherwise agreed by the parties”. According to jurisprudence, this provision establishes a legal scheme. Specifically, it characterizes for the first time, legislatively, the aforementioned twelve-month waiting period as probationary employment. That is, a period during which the employer has the opportunity to ascertain the skills and suitability of the employee. In fact, in the event that they judge, in an objective and fair judgment, that they are not suitable for the position in which they were hired, the employer was entitled to terminate the contract, without warning and without payment of severance pay. In this case, however, the review of a complaint for the abuse of powers was not excluded (258/2019 Supreme Court, NOMOS Legal Database). It should be noted, however, that the aforementioned twelve-month duration has been criticized by the theory as contrary to the aforementioned Directive (:2019/1152).

     

    The 2019/1152 Directive

    As stated in the above Directive, every entry into the labor market or transition to a new position should not be subject to prolonged insecurity from the part of the employee. Therefore (and according to the European pillar of social rights), trial periods should have a reasonable duration (27). It sets, to this end (art. 8 §1), a maximum duration: “ Member States shall ensure that, where an employment relationship is subject to a probationary period as defined in national law or practice, that period shall not exceed six months.».

     

    The New Regulation

    For the integration of the aforementioned Directive, a special regulation was introduced (: art. 4 n. 5053/2023) (: art. 1A in Presidential Decree no. 80/2022) for the probationary period and the probationary employee. In fact, it concerns both open-ended and fixed-term contracts.

    Regarding open-ended contracts: The employer has the possibility, when concluding an open-ended employment contract, to agree with the employee a trial period of up to six (6) months. During this period, the contract or the employment relationship is under test (art. 1A §1 Presidential Decree no. 80/2022).

    Regarding fixed-term contracts: The trial period, in these cases, is proportional to the total time provided for in the contract. In any case, it cannot exceed ¼ of the total employment period – with a maximum of six months. In the event that the contract is renewed for the same position and with the same duties, provision for a new probationary period is not allowed (art. 1A §4 Presidential Decree no. 80/2022).

    The Case Of The Successful Trial Period

    But what will be considered as the starting time of the employment contract? In the event that the employer considers that the employee’s probationary service is successful and retains them in their company (after the end of the probationary period or even before it), the starting time of the contract is considered the initial date of employment of the employee. And this concerns all of their rights based on their employment (art. 1A §2 Presidential Decree no. 80/2022).

    The Case Of The Unsuccessful Trial Period

    Serious questions, however, arise in the event that, during or at the end of the probationary period, the employer determines that the employee’s probationary service has not been successful. In this case the contract under trial is “automatically terminated”. The time of (trial) employment is counted as work time for all the rights that were produced up to the point of its termination (art. 1A §3 Presidential Decree no. 80/2022). But what does ” self-justified solution” mean?

    (a) It could, in one sense, be argued that after the trial period the employer chooses at their (unchallenged) discretion whether to terminate or continue the contract. And if during (and not at the end of) the probationary period, the employer rules that the probationary service of the employee has not been successful, how, if at all, will this ” self-justified” solution of the employment contract come about?

    (b) In another sense “self-justified solution” could be argued to mean (contra to the letter of the law) termination of the employment contract – without the need to meet the formal conditions of the termination (given that for the first twelve months the provision for no notice and no compensation is still in force). This, however, means that it would be possible, in this case, to check the essential conditions of the complaint.

    (c) According to a third, finally, point of view it could be argued that a heresy is established. Possibly: solvent. In case, therefore, of its payment, the contract will be automatically terminated for the future (1719/2012 Supreme Court). Alternatively: deferral under which the conclusion of the definitive contract takes place. However, in the case where we accept the existence of a heresy, the solution could not be uncontrolled: its fulfillment (or not) is controlled on the basis of good faith (207 Civil Code).

    Extension Of The Trial Period

    The new regulation, as mentioned above, also concerns the fate of the trial period in case of suspension of the employment contract: In the event that the employment relationship is suspended, for any reason, during the trial period, then the duration of the last period is extended accordingly. (: art. 1A §5 Presidential Decree no. 80/2022).

    Application of Protective Provisions

    During the trial period, all the protective provisions for the employee linked to their contract or employment relationship apply. In particular (i.e. indicatively), articles 162 to 179 and §1 of article 339 of Presidential Decree no. 80/2022.

     

    Maintaining the Validity of the (Effectively) Twelve-Month “Trial Period”

    The recent labor law (: law 5053/2023) attempted to regulate the trial period of the dependent labor contract. Unfortunately, however, they did not link this trial period with the conditions for terminating the indefinite-term employment contract.

    It is recalled that by express regulation (: art. 325A Presidential Decree no. 80/2022-as added by article 19 of law 5053/2023), employment with an employment contract of indefinite duration for the first twelve months from the day of its validity (which, in this case, are not referred to as a probationary period) may be terminated without notice and without severance pay. Unless otherwise agreed by the parties.

    In the event that the contracting parties agree on the trial period of article 1A, the time period of the trial period is counted in the time of the aforementioned twelve months.

    The retention, however, of the twelve-month waiting period regarding the (non) obligation to pay compensation and give notice in the event of termination of the indefinite-term employment contract, raises concerns (it could be argued: unreasonable ones) regarding the compatibility of the national legal order with the above Directive.

     

    The need to establish a trial period of a reasonable duration at the start of the dependent labor contract is a European reality. It also constitutes a reasonable business necessity. Under the current legislative conditions, a series of important problems are created, the resolution of which is not sought by the recent labor law. It is better not to extend the legal uncertainty that has been created nor to wait for the jurisprudence to deal with it: it is desirable that they be clarified legislatively (or in another, legally tolerable way).-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 10th, 2023).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

  • Unpredictable Work Pattern

    Unpredictable Work Pattern

    Among the particularly interesting regulations of the recent labor law (law 5053/2023) is the one that introduces the schedule for unpredictable work patterns. An arrangement that provides special opportunities but also rises, at the same time, significant questions. On them, the present article!

     

    Contracts made to Order

    The aforementioned recent labor law introduces the hitherto unknown – as far as the national legal order is concerned – contracts “made to order” (art. 10 of law 5053/2023, 182A Presidential Decree 80/2022). The contracts, i.e., within which (and under specific conditions) a framework is set, where the employer has the opportunity to call the employee to provide their services – if the relevant need arises. In the specific contracts there is no (entirely or mostly) fixed working hours.

     

    Conditions of Acceptance on the Part of the Employee

    The “new” law sets two specific conditions for the implementation of this provision. These should be fulfilled cumulatively, in order for the employee to be obliged to accept the terms of the employment, in cases where there is (entirely or mostly) an unpredictable work pattern (art. 182A § 1 Presidential Decree 80/2022). Specifically:

    (a) Work must be provided within pre-specified reporting days and times. The days and hours in question are part of the essential terms of the contract or employment relationship, which the employer is obliged to notify, in writing, to the employee. Either by delivery of a tangible form or in an electronic form (under the conditions of the law – art. 70 § 1, paragraph ic΄, subparagraph icb’).

    (b) The employee must have been notified, a reasonable time in advance, by the employer of the assignment of the work in a specific way: via the delivery of relevant documents, via text message on a mobile phone (: sms), via e-mail or via another convenient way. The specific, reasonable, time cannot be less than 24 hours before the work is due to start. Unless there are cases that justify, objectively, a shorter notice. And in this case, the employer is obliged to notify the employee of the (objective) condition in question (art. 70 §1, para. i΄, subpara. ig΄).

    In the event that the two, above, conditions are not met, cumulatively, the employee has the right to refuse to take up the work. In fact, in order to safeguard the employee, the legislator expressly states that in this case any adverse discrimination against them by the employer is prohibited (art. 182A § 2 Presidential Decree no. 80/2022).

     

    Canceling an assignment

    In the event that at any time, after the employee has been notified of the provision of work (and, in any case, before the provision of work has been taken up), the employer cancels the assignment, the employee is entitled to compensation. The amount of the compensation corresponds to the hourly wages of the working hours that were not assigned to them (art. 182A § 3 Presidential Decree 80/2022). The choice, therefore, of the national legislature was not to allow the employer to cancel the assignment of work, in principle, without compensation and the payment, in the end, of it, if they call off the assignment of work after a certain reasonable period.

     

    Guaranteed Hours Agreement

    In order to safeguard the employees, the obligation to agree on guaranteed hours is established. That is, if the employer and the employee enter into a contract with the immediately above content (:unpredictable schedule) they must, at the same time, agree on a minimum number of paid working hours. This number cannot be less than 1/4 of the agreed total number of hours. Otherwise, the contract is void (art. 182A §4 Presidential Decree no. 80/2022). The provision for guaranteed hours has the effect that the above contracts do not constitute (nor can they constitute) zero – hours contracts. In the event that the specific guarantee was not in place, such a characterization would be appropriate.

     

    Employee Protection

    The above arrangements aim to ensure the employee a minimum level of predictability regarding their working hours. To also provide them with protection against loss of income due to late cancellation of the agreed work (see in this regard, Memorandum to law 5053/2023 on art. 10).

    Furthermore, in the event of the conclusion of the above-mentioned contracts, all protective provisions related to the employee’s contract or employment relationship shall apply to the employee. Any conversion (unilaterally made by the employer) of a full-time or part-time employment contract to a bespoke employment contract is expressly prohibited by law. Such a (unilateral) conversion is considered as a unilateral detrimental change in working conditions (art. 182A § 5 Presidential Decree no. 80/2022).

     

    The Problems

    The above regulation (: art. 10 law 5053/2023 – art. 182A Presidential Decree no. 80/2022), creates a multitude of concerns for those who are asked to apply it. The most important ones:

    (a) As to the range of reference hours and days

    Would it be possible for an employer to determine (on a reference day) as reference hours – the hours within which the employee will be called upon to provide work – any number of hours? E.g. from 08:00 in the morning to 20:00 at night? Could the said period even approach 24 hours? What, then, are the limits of abuse? (if, of course, there are any).

    (b) As to the type of contracts in question

    Do the above contracts constitute full-time or part-time contracts, in the event that the total number of working hours agreed in them amounts to 40h/week? What are those hours that will be taken into account for their qualification? The agreed or the guaranteed ones? Is there, subsequently, an obligation to prepare them in writing (:constituent form) and notify them within eight days to the Labor Inspectorate (:submission of form E9 to the ERGANI platform)?

    (c) Regarding the remuneration of the agreed and guaranteed hours of employment

    It becomes apparent, in the writer’s view (although contrary views have been expressed), that both agreed and guaranteed working hours (which are subset to the relevant agreement) are paid based on the agreed hourly wage. What happens, however, if the agreed total number of working hours falls short of a full-time employment contract? Let’s remember here the legislator’s explicit reference to the application to “custom” contracts of the provisions protecting the employee, linked to the contract or dependent employment relationship. One could thus support that the position that for hours of employment beyond those agreed upon, an increase of 12% is due on the hourly wage paid (art. 106 § 11 Presidential Decree no. 80/2022).

    (d) As to exceeding working time limits

    In the event that the agreed total number of working hours falls short of the full-time hours, are the full-time hours set as the maximum daily limit of the employer? Is, therefore, possible-in this case, to apply the provisions set for overwork and/or overtime (art. 106 §11 Presidential Decree no. 80/2022)?

    (e) Regarding the possibility (or not) of interrupted hours

    In the event that the agreed total number of working hours falls short of the full-time working hours, must the working hours be consecutive (art. 106 §11 Presidential Decree no. 80/2022)? And in the event that full time is agreed, can it be intermittent? And, in the affirmative, under what conditions (art. 165§3 Presidential Decree no. 80/2022)?

     

    The arrangements for the unpredictable work time schedule are, of course, extremely interesting. And they will certainly prove to be valuable for those companies that have similar needs. The interest in making use of these arrangements (which has already become particularly lively) proves the truth of the matter. We await with great interest the implementing ministerial decision that will provide answers to the crucial, as stated above, questions and related concerns.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 3rd, 2023).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

  • Working On Sundays (Or Holidays)

    Working On Sundays (Or Holidays)

    In our previous article we explored the concept of employment on the sixth day – on Saturday, in excess of the fifth day. On the day, i.e., of mandatory rest (which, usually, coincides with the Saturday). There, we referred to the changes and problems of the recent labor law (: law 5053/2023). We will look, in this article, into work on Sunday – a mandatory holiday. Also, during the other mandatory holidays.

     

    The Employment Regime On Sundays

    The Prohibition of Employment on Sundays

    We have already explored the concept of work on Sundays in a previous article. The relevant legislative regime also governs the equivalent of the other mandatory holidays. The recent law did not differentiate the basic, relevant, parameters and regulations.

    As Sunday is a mandatory holiday, work on this day is, in principle, expressly prohibited. It is allowed, however, exceptionally, in the cases provided by law (as will be analyzed below).

    The hours worked on Sunday are not counted towards the hours worked on the other working days of the week. They are not taken into account, therefore, for the determination of any exceeding of contractual or legal hours. Consequently, neither for finding any overwork or overtime employment. However, in the event that the legal daily hours (eight hours) are exceeded on a Sunday, the additional hours constitute overtime.

    The Compensation For Employment On Sunday

    Employment on Sunday (legal or illegal) is paid with a 75% surcharge on the legal hourly wage. The same surcharge is paid in cases of employment on mandatory holidays.

    At the same time, in case the (legal or illegal) employment on Sunday exceeds five hours, the employee is entitled, as a rule, to a compensatory rest, lasting 24 consecutive hours, on another working day “…of the week that started on Sunday, which starts from the end of the provision of the work”. However, there is no corresponding obligation to provide mandatory rest for employment on a mandatory holiday.

    On the contrary, in the event that employment on Sunday is less than or equal to five hours, the employee is entitled to request an equivalent weekly rest period. This rest is provided during the working time of another day of the following week. In the event, however, that the employee is employed less than five days a week, the grant of supplementary rest is not due in case of employment on Sunday.

    Depending on the method of remuneration of the employee, their wages for their employment on Sunday are calculated as follows:

    Daily wage: Those who are paid a daily wage, regardless of the 75% increase on the legal daily wage they receive, are entitled, in addition, to remuneration corresponding to the hours worked on Sunday. This remuneration is independent of the provision of compensatory rest or not.

    Salary: Those who are paid a (monthly) salary are not, in principle, entitled to any other remuneration, apart from the increment. The reason is that their Sunday pay is included in the salary. A condition, of course, for the inclusion is the provision of the mandatory substitute 24-hour rest on another working day of the week following the Sunday in question.

    Otherwise, the provision of work on one of the five (or six depending on the work system) working days of the following week is illegal, because it violates the public order. Therefore, the employer is obliged, in this case, to give the employee the benefit they obtained from their employment, based on the provisions of unjust enrichment. According to the case law, this benefit amounts to 1/25 of the salary paid. That is, what the employer would pay the same employee if they worked on a non-rest day, without the addition of overtime on other days and the proportion of holiday and holiday allowances.

     

    The Exceptions

    As already noted above, Sunday employment is permissible for an extremely long list of cases. The exceptions provided are related to the type and form of the business/holding or the type of work provided. It may also depend on whether the business (or parts of it) operates in shifts.

    The recent law provided a series of exceptions:

    (a) Training centers for pilots, crews and aircraft technicians, as well as training centers for aircraft and passenger ground handling personnel, if they serve businesses or holdings that operate twenty-four (24) hours a day and seven (7) days a week.

    (b) Food industry.

    (c) Bottling of natural mineral water, production of soft drinks by manufacturing their bottling products.

    (d) Organization of conferences.

    (e) Greenhouse cultivation with manufacture and packaging of greenhouse products.

    With regard to the above exceptions, the employment of workers on Sunday becomes possible without the obligation to comply with other formalities.

     

    The needs (in this case the business needs as well as those of the citizens) are those that determine the legislative adjustments. Legislation, as always, follows. And in this case: the arrangements concerning work on Saturdays, Sundays and holidays, could reasonably be characterized, for a long time, as obsolete.

    For what serious reason should we not allow employment on Sundays and holidays (primarily, of course, on Saturdays) on the basis (also) of business needs – while respecting the limits and regulations of European and national legislation? Wouldn’t it be a tool to preserve and strengthen jobs? A tool to strengthen and develop business activity and the national economy?

    Further lengthening the already extremely large list of (already 78!!!) exemptions for Sunday employment does not seem serious. Much more, it is yet another example of political audacity (if not hypocrisy).

    Let’s avoid occasional (and piecemeal) handling of critical issues – depending on the pressures applied. We can (co)shape tomorrow respecting development and also people.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 26th, 2023).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

  • Work On The Sixth Day: The Changes

    Work On The Sixth Day: The Changes

    We have already examined, in our previous article, the concept of work on the sixth day of the week- in excess of the fifth day. There are two cases that, in particular, concerned us: the sixth day as a day of mandatory rest (usually Saturday) and the day of mandatory holiday (:Sunday). We will look into, in the present article, the sixth day of employment, in excess of the fifth day, on the basis, in particular, of the changes brought by the recent labor law (law 5053/2023).

     

    The Regime – Before The Changes

    According to the law: “the work, provided on the sixth day of the week, in violation of the five-day work system, regardless of the prescribed sanctions, is paid with the payable daily wage increased by 30%” (art. 8 law 3846 / 2010- as codified with art. 186 of the Presidential Decree no. 80/2022).

    Therefore: employment on the sixth day does not give rise to the right to increase the daily wage by 75%, as in the case of employment on a Sunday. Nor, respectively, the right to grant a substitute day of rest (Royal Decree 748/1966).

    Despite the above regulation, according to established jurisprudence, on a five-day work system, the sixth day constitutes a mandatory rest day. This means that, if the employee is employed on the sixth day, the work in question, as contrary to a prohibitive provision of the law, suffers from nullity and is considered not to have been realized (ind. 1413/2009 Supreme Court, Nomos Legal Database).

    At the same time, according to the prevailing jurisprudence, in the event that a five-day work system is applied, the work provided on the sixth day -within the (agreed) daily hours- is not taken into account for the assessment of existence of overtime or “overwork” employment on a weekly basis (ind. 1017/2003 Supreme Court, Nomos Legal Database).

     

    The Arrangements For The Sixth Day

    The recent law made arrangements regarding the -exceptional- employment of workers on the sixth day in excess of the five-day period. However, these arrangements do not, in general, concern all businesses and holdings. On the contrary, they concern, on the one hand, businesses or holdings in continuous operation, i.e. 24/7 businesses (art. 25 of Law 5053/2023 – art. 182C Presidential Decree no. 80/2022). Also, businesses or holdings, which, by their nature, are not in continuous operation but can operate 24 hours five or six days a week (art. 26 law 5053/2023 – art. 182B Presidential Decree no. 80/2022).

    The legislator points out that, in order to support the work of the other working days after the five days, new staff is required. They find, however, that today this is not the case. Also that the offer for specialized jobs cannot be covered. There is, therefore, the risk of undeclared work for existing employees, so that they cover the gap with an extra shift (see Memorandum to Law 5053/2023). The legislator intends to deal with this risk through the new regulations.

     

    Businesses Or Holdings Of Continuous Operation

    Field of application

    As mentioned above, the recent labor law regulated the exceptional employment on the sixth day in enterprises or holdings of continuous operation (: art. 1 §2 Presidential Decree 27.6./4.7.1932: “as continuous operating factories or parts of factories or projects are considered to be those in which the duration of the actual daily work of their workers exceeds 10 hours”).

    In these enterprises, in which the work takes place through successive changes of staff groups (shifts), it is allowed to exceed eight hours per day and 48 per week, until the completion of 56 hours per week. Provided, however, that the average weekly working time (in a maximum period of eight weeks) does not exceed the weekly working time applicable to other employees (ie 40 hours). Also, in this case, it is required (a) that the work order of the groups of workers be changed every week, in such a way that any group that provides night work one week is employed during the day the following day. At the same time, (b) when a team is employed on a Sunday, it should be granted a 24-hour rest on another day of the week (art. 8 Presidential Decree no. 27.6./4.7.1932).

    Provisions

    As provided, therefore, after the recent labor law (: law 5053/2023), in cases of businesses or holdings in continuous operation with a system of alternating shifts, in which employees are employed five days a week, it is possible to employ them on the sixth day of the week (art. 182C §1).

    In order, however, for the aforementioned employment to be legal, it is necessary to meet specific conditions:

    (a) First of all, it is required that before the employee starts work on the sixth day, the employer must make an entry in the ERGANI II Platform (art. 182C §1). Also,

    (b) the employment of the employees, during this additional day, must not exceed eight hours. Overtime or “overwork”, on this day, by the employee is not allowed (art. 182C §2, sec. a΄ & b΄). The consequences of not complying with this prohibition, however, are not specified. It is reasonable that any provision of non-permissible (overtime and overwork) employment be considered to entail administrative sanctions. Also, that allows the employee to refuse their provision. Conversely, it would not be reasonable to argue that any (impermissible) employment becomes void, resulting in the employee claiming compensation for their employment through the unjust enrichment provisions. Furthermore,

    (c) the legislator increased the increment provided for the sixth day of employment. Specifically, as expressly regulated, the employee is paid the daily wage of the sixth day, increased by 40% (art. 182C §2, sec. c΄). Lastly,

    (d) the legislator requires that the relevant employment is subject to the observance of the working time limits of the employees, as well as the application of the rules for the health and safety of the employees (articles 162-179 of the Presidential Decree 80/2022 apply in any case – art. 182C §3).

     

    Businesses Or Holdings That Are Not Of Continuous Operation

    Field of application

    The other category of businesses or holdings in which the legislator regulates (with Law 5053/2023) the employment on the sixth day, are those that are not by their nature of continuous operation but can operate from Monday to Saturday, for 24 hours, with a system of alternating shifts, and in which the workers are employed in a five-day work week.

    Specifically, as expressly provided, enterprises or holdings, which are not by their nature of continuous operation, may operate continuously in their entirety or in parts, with a system of operation of four alternating work groups, provided that the employee who participates in them consents (art. 40 §1 of Law 1892/1990, 190 §1 of Law 80/2022). Clearly, for the operation in question, the fulfillment of the other conditions of article 40 of Law 1892/1990 (as codified in art. 190 of the Presidential Decree 80/2022) is required.

    Provisions

    In the above businesses or holdings, therefore, similarly, employment on the sixth day is possible, as an exception. However, a particular strictness of the legislator in terms of the terms and conditions of its permissibility is detected: In contrast to employment in businesses/holdings of continuous operation, the legislator asserts, in this case, an additional claim: said employment is permissible in exceptional cases, during which the company presents an unforeseeable particularly increased workload (182 B §1, section a). In order to safeguard, in fact, the position of the employees, it is made clear that this possibility of employment is provided exclusively in exceptional cases and since the particularly increased workload is of an unforeseeable nature (see related Memorandum). In fact, there is also an additional declaration obligation by the employer: In this particular case, the presence of the above conditions and in general this special condition is notified by the employer and checked by the Labor Inspectorate (art. 182 B §1, last period). On the other hand, it follows that in the absence of a corresponding condition of exceptional cases for the businesses in continuous operation, the extraordinary employment on the sixth day is, in reality, ostensibly extraordinary.

    For the rest, with regard to the previous registration in the ERGANI II Platform, the working time limits and the health and safety of the employees as well as their pay for the sixth day of employment, the same applies as noted above to the enterprises/holdings of continuous operation.

     

    Exceptions

    From the scope of application of articles 182B & 182C, those employed in hotel and catering businesses are expressly excluded (§4 in both). A corresponding exception is also provided for in the regulation of article 8 of Law 3846/2010 regarding (illegal) work provided on the sixth day of the week in violation of the fifth day (art. 186 Presidential Decree no. 80/2022).

     

    The issue of the Pending Ministerial Decision

    For the implementation of both of the above-mentioned regulations (art. 182B and 182C Presidential Decree no. 80/2022), the issuance of a decision by the Minister of Labor and Social Security is expected. As provided for in the authorizing provision (182B §6 and 182C §5), the said decision will determine the procedure for registering the additional day on the ERGANI II Platform. Also, as well as any other issue related to the implementation of said regulations. Finally, especially with regard to businesses/holdings that are not by their nature of continuous operation, the respective Ministerial Decision will also determine the procedure for declaring the additional day to the Labor Inspectorate.

     

    The Problems

    First of all, the first problem concerns the remuneration provided for by the new regulations. Article 182C provides that “the employee shall be paid the salary of the sixth day, increased by 40%” (§2, last ed.). Accordingly, article 182B provides that “the employee is paid the payable daily wage of that day, increased by 40%” (§3, last period). The legislator did not choose to use the concepts of statutory or paid daily wages. On the contrary, the way they chose to determine the said surcharges may create interpretative issues. Preferably, however, the choice of the payable sum as the basis of calculation (and) of the surcharge.

    At the same time, the choice of the legislator of Law 5053/2023 to regulate the – exceptional employment – of workers on the sixth day in excess of the fifth day in businesses or holdings of continuous operation, as well as in businesses or holdings, which are not by nature of continuous operation, but it is possible to operate respectively, creates the following paradox:

    The addition of the provisions in question to the current legislation does not seem to result in the repeal of the existing, relevant, provisions. On the contrary, the provision for work, which is provided on the sixth day of the week in violation of the fifth day (art. 186), remains in force. This, therefore, seems to still regulate the – illegal, however – employment on the sixth day for other businesses, which do not fall within the scope of the new regulations. Accordingly, the remuneration due.

    This means that the workers of the vast majority of said, other, businesses are still paid with the paid daily wage increased by 30%. (And this despite the fact that it would be possible to baselessly claim that the “daily wage of this day is the already increased by 30%, which is further increased by 40%).

     

    The recent labor law addressed the issue of employment on the sixth-day in two very specific categories of businesses: (a) those in continuous operation, and (b) those that are not by their nature continuous in operation but are capable of operating, 24 hours a day, five or six days a week. The vast majority of businesses (:others) are, unfortunately, not covered by the new regulations. The work remains (semi) legal and, at the same time(!), (semi) illegal. The employees are paid with the paid daily wage increased by 30%. And businesses continue to wonder. Finally, we, their legal representatives, continue to try to explain the inexplicable…

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 19th, 2023).

     

    Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.

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