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  • Managing Working Time

    Managing Working Time

    The management of working time (as regulated in Article 41 of Law 1892/1990), has repeatedly occupied us. Also, in the spring of 2020, we were concerned, on the basis of the issues relating to eight-hour working days, with the possibilities of reforming the system of the management working time. In fact, the signatory proposed, for the first time in our country, a specific legislative provision for the management of working time – in the standards, in fact, of Germany and Cyprus, which successfully utilize the institution. For the benefit of both employees and businesses.

     

    Opponents of the reform and the legislator’s timidity

    It is well known that every reform meets opponents. Sometimes fierce ones. Often without logical arguments.

    The recent labor law (: law 4808/2021) proceeded to a very comprehensive reform of labor law. With some of its provisions, it attempted to re-approach the regulation of the management of working time.

    The legislator, however, was extremely timid.

    The regulation of the management of working time has met, already at the stage of its drafting, a significant number of opponents. They claimed that the new regulation is being introduced: “to abolish the eight-hour working days”, “to abolish overtime” or “to pay the overtime of employees on a break”.

    Such and corresponding, absolutely illogical, accusations as well as the pressures that, in general, were exerted on the parliamentary majority led, as we will analyze below, to a simple re-approach of the legislation of a decade ago. A historic opportunity for legislative modernization, in the context of European legislation and modern European practices, has been lost (: Working Time Management – A Missed Opportunity?).

    The aim of the present article, however, is not another critical evaluation of the new regulation (: article 59 of Law 4808/2021). We will attempt, however, a brief analysis of the new data.

     

    The dual system of managing working time

    The older provision (: art. 41 law 1892/1990-as maintained in force by law 4808/2021) provides for a dual system for the management of working time. This means that the management agreement can take place within the time limits specified by each of the following alternatives:

    (a) First alternative: Ability to provide additional working hours for a specific period (: increased employment) which will be subtracted, respectively, from the working hours of another period (: reduced employment). The periods of increased and decreased employment may not exceed a total of 6 months in a period of 12 months (d. 42 §1 a’) and

    (b) Second alternative: Ability to allocate 256 working hours, within a calendar year, to periods of increased work that cannot exceed 32 weeks per year. During the remaining period of the year, work is provided of reduced duration, respectively, in relation to the maximum legal time limits (d. 42 §2 a’).

     

    Who was entitled to agree on such a management of working time?

    Under the previous legislation, the management of working time could not be the product of an individual employer-employee agreement. It could be determined only: “… by business collective labor agreements or by agreements of the employer and the union of the business or the employer and the employees’ council or the employer and the associations of persons…” (art. 42 §6 Law 1892 / 1990).

    This restriction has rendered, in essence, the legislative provision inapplicable. The lack of a collective entity within a company (the most common case) was an inaccessible obstacle to the implementation of a working time management system.

     

    The management at the request of the employee

    The recent, relevant regulation (: article 59 §1 law 4808/2021) removed, in essence, the previous restriction. It is now possible to manage working time, as described above in its two alternatives, at the request of the employee and after a written individual agreement with the employer.

    A prerequisite, however, for such an individual agreement to be permissible, is: (a) either the lack of a trade union organization in the company, (b) or the failure to reach an agreement between the (existing) trade union organization and the employer.

     

    The specific conditions

    A recent Circular of the Ministry of Labor and Social Affairs (: protocol no. 64597 / 03.09.2021-hereinafter “Circular”) sets three conditions for the adoption of a management system, at the request of the employee.

    The specific conditions are:

    (a) Submission of a signed application of the employee: As discussed above, the law requires a prior application of the employee to the employer, as in the above Circular, the application of the employee must be signed. It may, however, be in written (: printed) or in an electronic form. At the same time, it must exist and be kept in the employer company.

    (b) Explicit term in the employment contract and its amendment: In addition, the Circular stipulates the existence of an explicit term in the individual employment contract on the agreement of the applicant employee and employer for management. And then, “the modification of the individual contract in the part concerning the duration of daily and weekly employment, by notifying the employee of the applied settlement system agreed in accordance with the provisions of Presidential Decree no 156/1994″ Obligation of the employer to inform the employee about the conditions governing the employment contract or relationship”.

    The wording of the Circular raises questions. The management of working time at the request of the employee is a facility provided by law. At the same time, from the wording of the provision of article 59, there is no obligation to include the above possibility in the individual employment contract. Especially if one considers that the latter, as a rule, is not required to be subject to a written form. Therefore, the requirement of the Circular for the existence of an explicit condition in the individual employment contract obviously has no legal basis. Such a term can only be informative.

    The distorted wording of the condition of the Circular seems to stem from the unfortunate, as it turns out, identification of the individual employment contract with the document notifying the essential terms of the working conditions. However, the employment contract should not be confused with the notification document of its terms [for the distinction: Employment contract = Written Notification of Essential Terms (Urban Myth Ή, Maybe, Not?)].

    The document notifying the working conditions is an obligation of the employer, arising from the Presidential Decree no. 156/1994. This obligation of the employer relates to the essential terms of the employment contract or relationship. Specifically, the employer must fulfill the above obligation within a period of two months from the preparation of the employment contract (article 3 §1 Presidential Decree 156/94). Also, within one month from the realization of a possible change (article 5 §1 Presidential Decree 156/94). Among the essential terms are included “the duration of the normal daily and weekly employment of the employee” (article 2, §2 h’ of Presidential Decree 156/94).

    It is therefore reasonable to notify the employee with the working conditions notification document, following the modification of daily and weekly employment due to the implementation of a management system. This happens, after all, in any case of change of the conditions recorded in the above document.

    On the other hand, any individual management of the settlement system does not reasonably require the individual employment contract to be amended. The latter, after all, may not even describe the daily and weekly working hours.

    (c) Obligation to submit a supplementary staff list: Lastly, the Circular emphasizes the obligation of the employer to submit a staff list (E4 Supplementary schedule) to the ERGANI Information System (obligation defined, after all, in article 78 of law 4808/2021). This list should be accompanied by an attached program, which will capture the applicable management system of the working hours. This will provide, respectively, the applicable reference period.

    In any case, the above documents should be kept by the employer and provided to the Labor Inspectors at a possible scrutiny.

     

    Employee protection

    The law (: art. 59 law 4808/2021) provides for the protection of the employee involved, as follows:

    Protection against dismissal

    As mentioned above, the individual employer-employee agreement for the management of working time requires a prior request of the employee. It is therefore at the discretion of the employee to initiate the management system agreement procedure. Given the specific regulation, Law 4808/2021 explicitly prohibits the termination of the employment contract of the employee who requested a regulation of their working time.

    The absolute protection of the employee from the termination of their employment contract is found, respectively, in article 66 §1 c.cjc’ Law 4808/2021. However, the wording of the law in the above-mentioned regulation deviates slightly from what we have noted above about the individual management of working time.

    In particular, it is provided that: “The termination of the contract of employment for an indefinite period of time by the employer is invalid, if: c) it is contrary to another special provision of law, in particular, in the case of dismissal: cjc) …of the employees who did not submit a request for management, according to par. 6 of article 41 of law 1892/1990, although they were requested by the employer. ”

    It does not follow from article 59 §1 of law 4808/2021 that the employer can request the management of working time from the employee. However, the legislator in Article 66 seems to reflect the logical sequence that the process of individual management of working time would be expected to have. As well as the notification of the possibilities and needs of the business by the employer the management would reasonably be the trigger for a corresponding request from the employee.

    Protection in case of termination of the employment contract

    In addition to the above, Law 4808/2021 regulates the case of termination, for any reason, of the employment contract, while a system of management of working time is applied (article 59 §2). Before, however, the employee receives, in whole or in part, the time compensation provided during the period of reduced employment.

    In this case, the employee receives, at the termination of their employment contract, compensation for the overtime hours they worked during the period of increased employment. Their compensation in this case is calculated on the basis of the remuneration provided for overwork and overtime, as defined in Article 4 of Law 2874/2000 (as amended, in force by Law 58 of Law 4808/2021 – with which we were occupied in a previous article).

     

    An important opportunity was lost, as mentioned in the introduction, for the modernization and rationalizing of the management of working time – based on European legislation and good practices.

    But the problem was not limited to the loss of the relevant opportunity: Unreasonable pressures led to unreasonable distortions: The management of working time can, already, take place only at the request of the employee [as if it was prohibited (!) to be requested by the employer- there are no threated sanctions for the potential offender]. And even more: we see legislative attempts being made through a Circular of the competent Ministry, with serious legal problems.

    In any case: the management of working time, as in force at European level, will inevitably be implemented in our country as well. Despite the reactions. Despite the setbacks. Despite the delays. For the benefit, however, as has been shown, of both employees and businesses.

    We hope, for now, for the correction of the wrongdoings.

    The soonest possible.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 7th, 2021).

     

    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.

  • Policies for violence and harassment at work

    Policies for violence and harassment at work

    Policies for violence and harassment at work (Content, deadlines and threatened sanctions)

    It would not be an exaggeration to say that the recent labor law (Law 4808/21, Government Gazette A 101 / 19.6.21), in essence, it “rewrites” labor law. It has already proven to be of major importance and seriousness to employees, businesses and the economy. We are therefore concerned with a number of our articles. The issues it deals with are many and very important. Of particular importance, among them, is its Part II which refers to the measures taken and the regulations adopted to prevent and manage acts of violence and harassment in the workplace. An important obligation, among other things, that arises for Businesses is the establishment (and implementation) of Policies: to combat violence and harassment but also to manage internal complaints. But what is their content? How will businesses align with this obligation? How will they manage the expiration, without their fault, of the deadline provided by the law but also the threatened-very serious, relevant, sanctions?

     

    Policies to combat violence and harassment

    The new law (mentioned in the introduction) introduces, for the first time (art. 9), the existence and implementation of Policies to combat violence and harassment.

    It should be noted that their introduction that implementation should take place, according to the law, by 19.9.21.

    The existence of these Policies is identified as mandatory for businesses with more than twenty employees. They must include the employer’s declaration of zero tolerance for violence and harassment. Also, the rights and obligations (of both employees and the employer) to prevent and deal with such incidents or behaviors.

    They also include (at least – among other things, according to the explicit, but absolutely general, wording of art. 9 §2): assessment of the relevant risks at work, measures for the prevention, control, limitation, treatment & monitoring of such incidents or behaviors and risks, actions taken for the information and awareness of the staff, appointment of a liaison person, ie person responsible for guiding and informing employees on such issues, care for the protection of employment and support for employees-victims of domestic violence.

     

    Policies for managing internal complaints

    Along with the existence of policies to combat violence and harassment, the Policies for the management of related internal complaints are also mandatory (art. 10). These policies, too, regard businesses with more than twenty employees.

    These Policies concern the management as well as the process of receiving and examining the specific complaints (with respect for the protection of the victim and human dignity).

    They include (at least according to the explicit, also absolutely general, wording of art. 10 §2) secure and easily accessible communication channels for the reception of complaints, identification of the persons responsible for their receipt, their examination and management. They are obliged to investigate complaints with impartiality and protection of the confidentiality and personal data of victims and complainants. They institute the (absolutely necessary) prohibition of retaliation and further victimization of the affected person and the cooperation with the competent authorities. They determine the consequences in case of violations.

     

    Policies: Procedure and conditions for their implementation

    Policies for the prohibition of violence and harassment (art. 9) as well as those for the management of internal complaints (art. 10) should be the subject of collective bargaining (as content of the General National Collective Employment Convention or the Rules of Procedure – art. 11). However, in the absence of trade unions and employees’ councils, the relevant Policies are drawn up by the employer after informing the employees and posting the relevant policy plan or its notification in the workplace, in order to receive the employees’ views.

    When there is a Rules of Procedure (or the obligation to draft one), its content must include provisions for disciplinary offenses, disciplinary proceedings and disciplinary penalties in the context of or following complaints of incidents of violence and harassment.

     

    The (long-awaited) Ministerial Order

    The wording adopted by the Law on the Content of Policies [: (a) on combating violence and harassment and (b) on the management of related internal complaints] is completely general and, therefore, problematic. In other words, it would be impossible to draft, serious in terms of their content, texts that would fulfill the current liability of employers and businesses under the law.

    A specific authorizing provision (art. 22 §1), on the basis of which: “By decision of the Minister of Labor and Social Affairs, policy templates are issued to combat violence and harassment and to manage internal complaints under Articles 9 and 10 with the minimum content set by law, as well as relevant instructions to the obligors”, seems to provide a solution.

     

    The deadline for the implementation of the Policies

    According to the transitional provision of art. 23 §1: “the obligation of the employer is fulfilled with the entry into force of the specific policies by their own decision taken within three (3) months from the entry into force hereof, after consultation with employees or their representatives, in accordance with what is defined in par. 1 of article 11”.

    The entry into force of this law took place with its publication (: 11.6.2021). Therefore, the deadline for implementation of the above Policies expired, as mentioned above, on 19.9.21.

    But how could it be possible to draft the Policies and implement them in time (after following the above-mentioned consultation procedure) without the issuance of the (long-awaited) Ministerial Order?

     

    The issuance of the (long-awaited) Ministerial Order

    After a long waiting period, the (long-awaited) Ministerial Order was issued!

    We expected it to contain (according to the legislation – art. 22 §1) “policy templates for the fight against violence and harassment and for the management of internal complaints” (as the signatory had requested in a dialogue with the Social Partners) .

    We were disappointed, however, finding that in place of the critical (and legally necessary) elements of the Templates there were… ellipsis (…) (!). The “instructions” for completing them contained, for the most part, theoretical directions.

    One of the topics that concerns, in particular, businesses, HR managers, legal advisors of businesses and professionals who deal with these issues, is the section on the assessment of the risks of violence and harassment at work. Specifically, however, with regard to this section, the above MO (art. 3 §1.a) states: “The policy identifies the risks associated with violence and harassment, taking into account, inter alia, any inherent danger arising from the nature of the activity, the job, factors such as gender and age or other characteristics which constitute grounds for discrimination…”.

    It is, indeed, impressive: Does the political leadership of the Ministry and / or the auditing bodies of the Labor Inspectorate expect that the existence of a (professional) risk of violence and harassment within its a business is to be accepted by any business?

    And even more so:

    We expected that the (long-awaited) MO:

    (a) would be issued in time for the businesses to comply, as they are already, from 19.9.21, overdue,

    (b) would provide some sort of a “grace period” or extension to the already existing deadline for compliance (in the sense, for example, of notifying the commencement of the relevant audits three months after its publication – although more correctly legislative extension would be required, and why not),

    (c) would provide useful templates to businesses; the businesses would not have to improvise or be burdened financially in order to hire the right consultants; it would not result in the threat of businesses with extremely onerous sanctions -without even their own responsibility.

    We have been rebutted!

     

    The threatened sanctions from the (untimely) drafting of the Policies

    As businesses are, without exception, overdue due to their non-timely compliance with the drafting and implementation of the above Policies, it is obvious that sanctions against them are already threatened. The provisions of a. 24 Law 3996/2011 and of a. 71, 72 §1 Law 3850/2010 specify said sanctions, as follows:

    (a) administrative sanctions (: fine from € 300 to € 50,000 and / or temporary cessation of the operation of a specific production process or of part or parts or of the whole enterprise or holding for a period of up to six days) and

    (b) similar penalties (: imprisonment of at least six months or a fine of at least € 900 and / or both of these penalties).

     

    It is obvious that the implementation of important legislation should be imposed by the State (also) with the threat of severe sanctions for violators.

    In this case, however, without the responsibility of the businesses, (already) delinquent behavior is identified on their part (: non-drafting and implementation of the above Policies) with very severe sanctions being threatened against them. The signatory, in the context of the dialogue of the Social Partners with the Ministry of Labor, had proposed a three-month transitional period (which, moreover, the law also provided under the responsibility of the competent Ministry was unnecessarily spent) – but: ” voices crying out in the desert “…

    It is obvious that the political leadership of the Ministry of Labor should take the appropriate decisions and provide the obligated businesses with the absolutely necessary (and morally necessary) extension of the deadline for compliance.

    Immediately.-

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 31st, 2021).

     

    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.

  • Overtime and “Overwork”: Exceeding work time limits

    Overtime and “Overwork”: Exceeding work time limits

    The time limits of work occupied us in our previous article-in the light of the regulations of the recent labor law (Law 4808/2021). We will be concerned, here, with the cases where they are exceeded: “overwork”, legal and illegal overtime (article 58 of law 4808/2021). We approached the specific issues within the framework of the previous legislative regime. However, as there are significant differences in overtime employment, it is also interesting to re-approach the issues concerning, in general, the exceeding of time limits for work.

     

    The regulation of working time at the national level

    The Legal Working Hours

    In our country, the working time limits of employees have been determined by special provisions – of public order, in fact.

    The maximum working time limits are calculated, basically, with a reference period per day (daily schedule). The weekly schedule is calculated based on the corresponding daily schedule.

    In most people’s minds the maximum daily schedule is intertwined with the 8-hour work day. And that’s right! (in the first place).

    One hundred years ago, in 1920, Law 2269/1920 was passed. The law provided for industrial enterprises that working hours may not exceed eight hours per day and forty-eight hours per week. The 48-hour period returned with law 3385/2000-despite its previous reductions. The 8-hour period was gradually extended to employees in other sectors.

    The above time limits, however, apply to businesses that apply six-day work weeks.

    With the of 26.02.1975 General National Collective Employment Convention the five-day work system was adjusted. According to this system, the maximum legal daily schedule was 9 hours, while the maximum weekly schedule was set at 45 hours.

    The Conventional Working Hours

    Conventional working hours are defined (probably unfortunately) as those regulated by collective employment conventions and arbitration awards. This (most likely) was introduced to distinguish them from the legal ones (as discussed immediately above). The conventional schedule was the means of reducing the weekly schedule – without the corresponding reduction of the monthly salary. With the 14.02.1984 General National Collective Employment Convention, the weekly schedule was limited to 40 hours-without a corresponding reduction of the legal salary.

    The legal and conventional working hours are those that define the time limits of overtime and overtime.

     

    Overwork

    As (institutionalized) “overwork” is considered the working time that exceeds the conventional schedule but not the maximum legal one [for the concepts of conventional and legal schedule, etc.: “Organization of working time (eight hours: an old, very old, story…”)]. Institutionalized overwork is calculated on a weekly basis.

    In businesses where a five-day work system and a weekly contractual schedule of 40 hours is applied, the employee can be employed five (5) additional hours per week-at the discretion of the employer. These hours constitute overwork.

    Respectively, in the businesses in which a six-day work system is applied, (institutionalized) overwork is the hours beyond the conventional hours (40 hours) and up to the legal hours (48 hours) per week.

    Institutionalized overwork is remunerated with the paid hourly wage increased by 20%. According to the explicit provision of the law, overwork hours are not included in the permitted overtime limits, in accordance with the applicable provisions.

     

    Overtime

    Overtime means the provision of work in excess of the conventional and legal hours. The law (: art. 58 law 4808/2021) distinguishes between legal and illegal overtime.

    Legal Overtime

    The recent law makes it simpler and easier to define legal overtime – on a daily, weekly and annual basis. It eliminates, in particular, past discrimination between different branches of economic activity. It imposes common time limits for legal overtime work for all employees-regardless of the business or economic activity of their employer. Specifically:

    In businesses where the five-day work system is applied, overtime work (in terms of all legal consequences, formalities and approval procedures) is already considered to be the employee’s employment of more than 45 hours per week. Respectively, in the businesses in which the system of six-day employment is applied, the employment beyond 48 hours per week is considered as overtime.

    The maximum number of overtime hours per year is increased to 150 hours. Under the previous regime, it was limited (generally) to 120. However, especially for workers in small-scale and industrial businesses, the overtime limits were set on a semi-annual basis, based on decisions of the Minister of Labor and Social Affairs.

    The maximum daily overtime is set at three (3) hours. Under the previous regime, the maximum daily overtime limits were also, similarly, set at three (3) hours for workers in small-scale and industrial businesses. On the contrary, for the other branches of economic activities, these ceilings were set at two (2) hours per day.

    It is important to note, however, that legal overtime is always carried out without prejudice to the observance of the provision of article 6 of the Presidential Decree no. 88/1999 (: “the weekly working time of employees may not exceed per period of four (4) months on average forty-eight (48) hours a week, including overtime.”.

    Overtime employees are remunerated for each hour of overtime work equal to the hourly wage paid, increased by 40%.

    Finally, Circular No. 64597 / 03.09.2021 of the Ministry of Labor and Social Affairs clarifies that the hours of overtime worked in 2021, before the entry into force of Law 4808/2021, are deducted from the maximum annual limit of 150 hours. And this, regardless of the sector of economic activity.

    Illegal Overtime

    Overtime may take place without complying with legal requirements. This happens: (a) when the legal formalities of announcement (declaration) of overtime are not observed in the ERGANI Information System, or (b) when overtime is provided in excess of the maximum permitted time limits. That is, based on what is in force today, in excess of three (3) hours per day and 150 per year. In these cases, Law 4808/2021 characterizes as illegal any overtime work provided – contrary to what was valid under the previous institutional framework. It provides, in fact, that the employee illegally doing overtime is entitled to compensation equal to the paid hourly wage increased by 120% for each hour of illegal overtime.

    On the contrary, before the entry into force of Law 4808/2021, the employee who was employed overtime in excess of 120 hours, was entitled to a salary equal to the paid hourly wage increased by 60%. In addition, the term “exceptional overtime” was used to describe overtime work for which the formalities and approval procedures provided by law were not complied with. In this case, for each hour excluding overtime, the employee was entitled to compensation equal to the hourly wage paid, increased by 80%.

    Permit for Overtime Employment

    The provision of a. 58 Law 4808/2021 significantly simplifies the process of granting permit to businesses for overtime in excess of the maximum permitted overtime limits.

    Specifically, the granting of such a permit requires a decision of the competent body of the Ministry of Labor and Social Affairs. This permit can be granted for the employment of employees of all businesses and jobs, in cases of urgent work, the execution of which is considered absolutely necessary and cannot be postponed.

    The change brought about by Law 4808/2021 lies in the fact that the opinion of the Supreme Labor Council is no longer required (article 1 of Law 264/1973).

    Such (with the permission of the Minister of Labor) overtime work is remunerated in an amount equal to the paid hourly wage increased by 60%.

     

    The recent labor law (: law 4808/2021) re-approaches the exceeding of the time limits of work. Without differentiating from what applied to overwork, it improves, simplifies and rationalizes the regulations concerning overtime employment.

    The whole legislative approximation but also the specific, individual regulations are moving in the right direction.

    We must, therefore, take for granted (and not only reasonably expect) that they will have a positive impact on employees, labor, businesses and the economy.

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 24th, 2021).

     

    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 Time Limits

    Work Time Limits

    Issues related to work time limits have been addressed, based on the previous legislation, in a number of our previous articles. The recent law (Law 4808/2021) addresses the relevant (among others) issues in its Part IV. In the context of the current series of articles, which refer to the new labor law (and having already analyzed the issues related to violence and harassment as well as the issues of leave), we will deal with important, relevant, regulations. Those, in particular, concerning the time limits of work, the four-day work week, the break of the employees. Also, the additional work by those who provide their services on a part-time basis (Articles 56, 57 and 58).

     

    Establishment of working time limits

    The Explanatory Memorandum of Law 4808/2021 notes that article 55 §1 addresses the issue of defining basic working hours. Under this regulation, the new law confirms: (a) eight hour work days in full-time contracts in a five-day work week, and (b) six hours and forty minutes, respectively, during the six-day work week.

    The specific provision refers to the possibility of allocating 40 hours in five-day or six-day work weeks, based on the provisions in force, the collective labor agreements (Collective Employment Conventions) and the arbitral awards (Arbitration Awards). At this point, there seems to be a gap in the distribution of weekly working hours on the basis of individual contracts and agreements. Shorter full-time hours (on a daily and weekly basis) continue to apply.

     

    The four-day work week

    Impressive, indeed, is the regulation that identifies as full-time the forty working hours per week, which are divided into only four days per week (d. 55 §1). A condition of this distribution is its application in the framework of a system of arrangement of working time – basically at the request of the employee (a. 59 §1, law 4808/21 and §6 a. 41 law 1892/21).

    The specific regulation (: four days work per week-ten hours per day) raises concerns in relation to the basic similar one, which establishes the regulation of working time (art. 41 law 1892/1990). This is because, according to the specific-basic law, the arrangement of working time is limited per year: it cannot exceed either the six total months in a period of twelve months (§1.a) or the 32 weeks per year (§2 .a).

    A recent Circular of the Ministry of Labor and Social Affairs (protocol number 64597 / 03.09.2021) provides, inter alia, that in the context of this four-day week employment, work is not allowed to exceed ten (10) hours per day and forty (40) per week.

    It also explicitly states that a new system of organizing working time is being instituted, which is considered to be full-time. One could, moreover, argue that if it were not for such a regulation, its adoption could be limited to the addition of the basic legislation for the regulation of working time (art. 41 Law 1892/1990).

    The fact that this is a new system of organization of working time, which is considered as full-time, is practically confirmed by the provision of this Circular for designation as a reference period: (a) six months within a calendar year or, alternatively, (b) one calendar year (: provision that directly deviates from the respective reference periods of art. 41 Law 1892/1990).

    Based on the above data (and despite the reservations of part of the scientific community), the four-day (and forty-hour) weekly employment of the employee can, without problem, be applied on a permanent basis, under the self-evident condition of the employee-employer agreement.

    Of course, it would be desirable if the introduction of this, new, system took place in a more direct way and not through a circular. A circular that not only the law is not able to amend but, already, has created interpretative concerns.

     

    Break during working hours

    The provision of article 56 (amending Art. 4 of the Presidential Decree no. 88/1999) concerns the rest of the employees and, specifically, it regards their break during working hours. This regulation reduces, by two hours, the minimum working time, which obliged the employer to give a break to the employee. Thus, the current provision stipulates that when the daily working time exceeds four (4) consecutive hours (instead of the six under the pre-existing regime), a break is granted. Its duration extends from fifteen (15) to thirty (30), maximum, minutes and is not included in the working time.

    The introduction of a maximum duration of the break is intended to address abusive practices. To prevent, in particular, the indirect extension of working hours through long lasting breaks during which employees actually provide their work (as, in some cases, was the case under the pre-existing scheme).

    The new regulation maintains in force the §2 of a. 4 of Presidential Decree no. 88/1999, which laid down the technical arrangements for granting the break, including its duration. Specifically, the set of terms for the granting of the break was (and still is) determined by each business and, in particular, on the basis of consultation between the employer and employees’ representatives (Law 1264/1982). In the context of this consultation, the risks associated with the organization of working time must be assessed. These risks are recorded based on the written risk assessment, which concerns the issues of health and safety of employees (Presidential Decree no. 17/1996).

    Regarding this regulation, the Circular clarifies that from the entry into force of article 56, any unfavorable (and logically: any not so favorable) terms of employment contracts relating to the terms of the break cease to apply. Therefore, if it is agreed in a business that the break time is included in the working time (ie, working time is not extended according to the duration of the break), this term is still valid.

    It is clarified, at the same time, that it is possible to give a break of more than thirty minutes. The longer duration must be due to the nature (and intensity) of the work provided. This term must be agreed within the framework of the above-mentioned consultation.

    Finally, §3 of article 56 concerns part-time employees (who work part time for all or for some days of the week). Under the new regulation, these employees are entitled to a break between the individual parts of their schedule. However, the duration of their specific rest cannot, in this case, be less than three hours.

     

    Additional work of part-time employees

    Article 57 regulates the issue of the provision of additional work by employees with a part-time contracts (Art. 38 Law 1892/1990). Under the previous regime, it was already provided that in cases of need for additional work (: beyond the agreed upon), the employee is obliged to provide it. Provided, however, that they are able to do so and their refusal is not contrary to good faith.

    The new regulation, however, provides that additional work may be provided (also) during hours that are not consecutive with the agreed part-time schedule. Provided, of course, that the employee has agreed and subject to the provisions for daily rest.

    Work that may be provided, in addition to the agreed one, is remunerated with a surcharge of 12% on the agreed remuneration for each additional hour of employment (ie, the pre-existing, relevant, provision is maintained). Furthermore, it is pointed out that, even under the current regime, the part-time employee may refuse to provide the above additional work, when it is common that it takes place. It is clarified, at the same time, that this additional work can be carried out, at most, until the completion of the full daily schedule of the comparable employee.

    In essence, the new element introduced by the above-mentioned new regulation is the possibility given to the employer and the part-time employee for the latter to work discontinuously in relation to their agreed hours. This is in contrast to the pre-existing regime (: art. 38 Law 1892/1990), where the additional work of a part-time employee was possible only immediately before the beginning or immediately after the end of the agreed working hours.

     

    The recent labor law confirms, in terms of working time limits, the “sacred” regulation of forty working hours per week. However, it intervenes, for the better, in other important sections of the specific topic (ie the working time limits). Prominent among them is the (timid) introduction of a four-day (and forty-hour) work week. Of equal importance is the obligation that an employee takes a break after four hours (and not after six hours) – lasting from 15′ to 30′- but also the possibility of part-time employees to provide additional work not, exclusively, before or after their initially agreed hours.

    We look forward, based on the above, to the positive utilization of the specific regulations. For the benefit of both employees and businesses.

    Of course, also for the benefit of the country’s economy.-

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 17th, 2021).

     

    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.

  • Annual & unpaid leave – holidays

    Annual & unpaid leave – holidays

    In a previous article, we were concerned with the provisions of Law 4808/2021, regarding the leave of employees related to their family obligations. Specifically, on the leave aimed at balancing work and private life for parents and caregivers. Also, leave aimed at protecting the family. In addition, we analyzed the provisions aimed at ensuring a minimum scope of protection for those exercising their rights in relation to the aforementioned types of leave.

    We will close the series of our articles referring to employee leaves with those that do not fall into the above sections: the annual leave as well as the unpaid leave.

    We will also refer to holidays, as they are codified and established under the same law.

     

    Annual leave

    Every year the employee is given the opportunity to abstain, for a few days, from providing work to their employer, while maintaining their claim for pay. We are referring to the annual leave. Its purpose is the rest and recreation of the employee.

    As the case law of the ECJ has consistently accepted, annual leave has a dual purpose: to provide the employee with a period of relaxation and leisure but also with the possibility of replenishing their powers (indent: C-520/06, paragraph 25). There can, therefore, but be provided to employees. This, in simple words, means that the granting of free time cannot be legally replaced by monetary compensation. Even if the employee consents, accepts or requests it. An exception is the case of termination of employment, in which case, financial replacement of said right is deemed necessary.

    The legislative framework

    At EU level, the right to take annual leave is established by Directive 2003/88. Specifically, Article 7 provides for a minimum duration of the said leave of four (4) weeks. Respectively, at national level, the general legislative framework regarding the annual leave is set by law 539/1945. The latter regulates issues such as the duration of the specific leave, the conditions for obtaining it and the financial benefits associated with its granting.

    In addition, law 539/1945 provided – until the entry into force of law 4808/2021 – that the employer was obliged to grant the specific leave until the end of each calendar year. The last day of the year was considered the “due” date of the granting of the last day of annual leave. As a result, its passing made the employer overdue and resulted in civil, criminal and administrative sanctions against them. In this context and given the provision of the right to transfer the leave, any (remaining-unfulfilled) claim of the employee for obtaining their annual leave was converted, after 1.1 of each year, into cash.

    However, as legal theory (also) pointed out, the absolute prohibition of the right to carry annual leave was contrary to EU law. As accepted by the ECJ, Article 7 §1 of Directive 2003/88 prohibits national provisions or practices which provide that the right to paid annual leave is extinguished at the end of the reference period and / or a transfer period determined by national law. It is interesting to note that this is true even when the employee, due to a problem of theirs (eg sick leave) was not able to exercise their right to paid annual leave (indent: C-520/06, paragraph 25).

    The ECJ, of course, points out that the transfer time cannot be unlimited. The transfer, as it accepts, should not exceed a specific time limit, beyond which the annual leave ceases to have beneficial effects on the employee as a time of replenishment and merely has the meaning of relaxation and leisure time (C-214). / 16 paragraph 33).

    The recent regulation

    Article 61 of Law 4808/2021 brings about interesting changes regarding the time of granting the annual leave. It maintains, first of all, the two existing restrictions on this provision. That is, it provides that the employer is obliged to grant the said leave within two (2) months from the relevant application of the employee. At the same time, the leave of at least half of the staff must be granted from 1 May to 30 September. [Of course, one question is not answered – not even with this provision: what will (should) happen if, in theory, all employees of a company apply for their leave on June 30 of one year for the months of July-August]…

    The innovation is that the above provision modifies the time point of extinction of the right to obtain annual leave. It stipulates, in particular, that “… the eligible leave, per year, must be exhausted by the first quarter of the following calendar year”.

    Despite this addition, the letter of the law does not seem to comply with EU law. Specifically, as shown by the new regulation, and is stressed by Circular No. 64597 / 03.09.2021 of the Ministry of Labor and Social Affairs: “Instructions for the implementation of Chapter A’” REGULATIONS OF INDIVIDUAL LABOR LAW “(articles 55-67) of part IV of Law 4808/2021 (Α’101) “, this addition extends the period of time within which an annual leave can be granted. At the same time, March 31 is considered as a due date for the employee to receive all the leave they are entitled to.

    The new regulation, therefore, does not fill the gap of the lack of the right of transfer. On the contrary, it extends the time of fulfillment, without giving any reasons justifying the granting of the leave after the expiration of the calendar year (see, instead, the relevant provision of German law – Article 7 BUrlG “Time of taking leave, transfer and compensation for leave not taken). Therefore, the new regulation may, again, lead to circumventions.

     

    Unpaid leave

    Article 62 of Law 4808/2021 institutionalizes unpaid leave. This leave is provided by a legal provision, for the first time, in the national legal order. However, it is not an unknown institution as in practice it was already provided to employees even before its general introduction.

    The pre-existing regime

    Given the lack of general legislation under the previous regime, unpaid leave was introduced only for specific categories of employees based on collective arrangements (Collective Employment Conventions or arbitration awards), labor regulations or special provisions.

    Of course, this leave could also be granted to an employee on the basis of an agreement with the employer. Its granting was therefore not obligatory, nor could it be imposed unilaterally by either the employee or the employer.

    As was, however, consistently accepted in case-law, unpaid leave was a formal case of suspension of employment on the basis of an agreement concluded between the employer and the employee. The specific recognition of its character as a contractual suspension affected the formation of the obligations and the rights of the parties.

    In particular, during this leave, the employee did not, of course, have to provide their services. Accordingly, the employer was not required to pay wages and, therefore, was not required to cover the employee’s insurance contributions. However, the duration of this leave was considered working time, since its issuance did not terminate the employment contract. It was therefore measured in determining the amount of any severance pay (end 751/2018 Supreme Court). At the same time, with the expiration of this leave, the employee had to return to their previous job and duties.

    Current regulation

    What is immediately mentioned above was confirmed, basically, by article 62 of law 4808/2021. This provision introduces, as already mentioned, for the first time-explicitly, in fact, the institution of unpaid leave in the private sector.

    The condition for its granting is the individual written agreement between the employer and the employee. The maximum duration of this leave is set at one year. However, it is possible to extend it by a newer agreement of the parties.

    Is it possible to grant unpaid leave of more than one year from the beginning? It is not right, in our opinion, to set a ceiling on its granting, since the possibility of a contractual extension is accepted from the beginning. Therefore: it is obviously possible for the agreement to last longer than one year, but it is preferable to agree on an annual, initially, duration and then, in order to avoid problems and concerns, to extend it according to this regulation.

    The new law explicitly recognizes the nature of unpaid leave as a contractual suspension. It stipulates, in particular, that during it, the employment contract is suspended and no insurance contributions are due. In addition, there is an obligation to post the written individual agreement for the granting of unpaid leave to the Information System “ERGANI” by the employer, while a copy must be notified to e-EFKA.

    In addition, §2 of the same provision stipulates that after the expiration of unpaid leave, the rights and obligations of the parties from the contract of employment are revived.

    Finally, the fact that the duration of unpaid leave is considered working time is confirmed by the recent, No. 64597 / 03.09.2021, Circular of the Ministry of Labor. This Circular points out that for the receipt and calculation of the days of the employees’ annual leave, the period during which the employee was on unpaid leave is taken into account, referring, also, to article 2 §2 of law 539/1945.

     

    Holidays

    With the provision of article 60, law 4808/2021 codifies in a single provision the days of obligatory holiday. In addition, it expands the list of existing holidays. It adds to the existing holidays the 1st of January and the holiday of the Epiphany.

    Therefore, the single list of holidays now includes the following: (a) 1st of January, (b) Epiphany (6th of January), (c) 25th of March, (d) Easter Monday, (e) 1st of May, (f) day of the Assumption of Virgin Mary (: 15th of August), (g) 28th of October, (h) day of the Birth of Christ (: 25th of December), (i) 26th of December.

    At the same time, §2 of the same provision provides for the possibility of designating additional holidays, up to five per year, as days of mandatory or optional holidays for the whole country. The responsibility for this designation is vested in the Minister of Labor and Social Affairs. The relevant decisions are issued after the opinion of the Supreme Labor Council and are published in the Government Gazette.

    In addition, it is possible to set some days as local holidays. Responsible for their appointment are the Regional Governors, without the condition of the previous opinion of Supreme Labor Council. This procedure is followed, respectively, at national and local level, for the abolition or change of the planned holidays.

    Finally, special mention should be made in article 63 of law 4808/2021: it concerns the exceptions from the obligatory rest of Sunday and from the aforementioned public holidays. This provision amends by adding to articles 7 and 9 of the Royal Decree no. 748/1966 additional economic activities of businesses that are allowed to employ staff on Sundays and public holidays. Of course, in these cases the protective arrangements concerning the additional remuneration of the employees and the granting of their weekly rests take place.

     

    The annual leave as well as the (in practice, sometimes, provided) unpaid leave serves different needs of the employees. The new institutional framework attempted to correct the incorrect wording concerning of the first and the legislative gap concerning the second. In both cases the attempt was not successful. It is a fact, however, that they cover, albeit in part, problems that businesses – and of course employees – have been facing for a long time. We look forward to future, necessary, improvements.

    And so we do regarding the subject of the holiday of Sunday (and even more so regarding this specific holiday). The relevant provisions remain incomplete. The steps are taken timidly. We go blind to the point that we choose not to leave the market to self-regulate. We go blind to the point that we believe that we, alone, have the power to prevent what is happening in the western world.

    For now.-

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 10th, 2021).

    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.

  • Employee leave (protection of employees receiving them)

    Employee leave (protection of employees receiving them)

    The recent law on labor relations (: Law 4808/2021) dedicates an extensive section to employees’ leave. We already analyzed the leave aimed at balancing work and personal life for parents and caregivers. We also analyzed the leave aimed at protecting the institution of family. But it is well known to the “inhabitants of Jerusalem” that employees often do not dare, for obvious reasons, to claim all the leave they are entitled to. This was precisely the reason, obviously, that compelled the legislator to provide independent and specific, relevant, protection. In this context, we will deal with the provisions aimed at protecting those employees who exercise their rights to obtain leave or any flexible regulation of their working hours.

     

    Non-discrimination (Article 47)

    The prohibition of discrimination pervades all labor law. This provision is moving in that exact direction. In this context, a ban on unfavorable (or less favorable) treatment for employees who either (a) exercise rights to obtain leave or to obtain a flexible regulation of their work; or (b) file a complaint within the company or initiate legal proceedings for relevant compliance of the business.

     

    Protection against dismissal and burden of proof (Article 48)

    This regulation concerns the protection of employees from dismissal. In particular, the dismissal of an employee is prohibited because he / she requested or received leave or flexible regulation and / or exercised relevant rights.

    However, if, despite the prohibition, an employee is fired for such a reason or after such an event, the employer is obliged to notify, in writing, the reasons for the dismissal. In case, in fact, that the relevant obligation is not observed, a presumption (rebuttable) is created in favor of the violation of the prohibition of dismissal.

    It should be noted, however, that this provision is, unfortunately, not well written. It does not specify as a condition, indicatively, that e.g. the leave should be requested within a specific period. In other words, can the employee raise a relevant ground of invalidity two years after making such a request? This would obviously be abusive, but unfortunately the wording of the provision does not rule it out.

    In the context of the above protection of the employee, there is also a reversal of the burden of proof in favor of them (the employee). Specifically, in the event of such a dispute, the employee only needs to cite facts, which seem to support the belief that they were fired for one of the above, prohibited, reasons. In this case, the employer is the one who bears the burden of proving the effect of the dismissal for reasons other than the ones prohibited. However, this provision does not apply in criminal proceedings.

    This provision also includes provisions for special protection against dismissals. Specifically, according to what was already in force, it is forbidden to dismiss a pregnant woman – and later a mother – for a period of 18 months from the birth (or even longer due to illness), unless there is a great reason. An innovation, however, is the similar ban, which is also introduced for the working father for six months after the birth, provided, here too, that there is a great reason. However, it is expressly provided that the reduction of performance due to the mother’s pregnancy or the family obligations of the working parent cannot be considered as a great reason.

     

    Legal protection (Article 49)

    This provision sets out the legal protection that employees are entitled to when they consider that they have been harmed by a breach of their leave-related rights. Every employee, therefore, has the right to seek protection, for this reason, before the competent courts. Also, to appeal to the competent administrative authorities (including the Labor Inspectorate and the Ombudsman).

    At the same time, the (under certain conditions) possibility is provided for legal entities and associations of persons (including trade unions) to appeal in the name and on behalf of the affected employees.

     

    Penalties (Article 50)

    Violation of employers’ obligations on issues related to leave is not without sanctions and expenses. Specifically, the employer-offender is subject to administrative sanctions (: fine from € 300 to € 50,000). In case of recurrence, a temporary cessation of the operation of the business or its department / division is imposed (article 24 of law 3996/2011). Also, criminal sanctions are provided [: imprisonment of at least 6 months and / or a fine of 900 € (article 28 of law 3996/2011)].

    At the same time, any violation of the principle of non-discrimination leads, inter alia, to a claim for full compensation of the victim (actual loss or loss of earnings and moral damages).

     

    Some employers, as mentioned in the introduction, do not “honor” their obligations regarding the granting of due leave to their employees. The sword of Damocles sword is hanging “over their heads”, as a series of potential sanctions arise from the recent labor law. Civil, administrative and criminal sanctions: And none of them is “minor”.

    And it is true that the threatened sanctions do not make a society fair or its citizens law-abiding.

    It is certain, however, that these (completely dissuasive) regulations will inevitably make employers more cautious about the possibility of violating their employees’ rights.

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 3rd, 2021).

     

    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.

  • Employee leave (: protection of employees and the institution of family)

    Employee leave (: protection of employees and the institution of family)

    The issue of employees’ leave, in the light of the recent law (Law 4808/2021), began to concern us in our previous article. We have already approached the leave aimed at balancing the professional and personal lives for parents and caregivers, which has been provided for in the framework of Directive 2019/1158 / EU. In the present article, we will be concerned with the leave aimed at protecting the family. In this this article, which will be the last on this issue, we will be concerned with the protection of employees who exercise their right to take leave or make equivalent, flexible arrangements.

     

    Leave and special maternity protection (Articles 34 & 36)

    The first of the specific provisions extends the right of working mothers to receive the post-partum part of the maternity leave, lasting nine weeks, to working mothers who adopt a child up to eight (8) years old in their family. The same mothers are also recognized the right to receive all kinds of remuneration and allowances associated with the above leave.

    With the pre-existing regulation, the corresponding rights were provided for surrogate mothers, since the year 2017.

    The second of the above provisions (article 36) extends the benefits of the special maternity protection of article 142 of law 3655/2008 (: allowance from the Manpower Employment Organization etc) to adoptive and presumed mothers.

     

    Leave for medically assisted reproduction (Article 35)

    The specific regulation provides the right to employees who are subjected to medically assisted reproduction methods to take leave of seven (7) working days with remuneration. A relevant certification by the treating physician or the director of the medically assisted reproduction unit is a precondition.

     

    Childcare leave (Article 37)

    This provision codifies the existing arrangements for paid parental leave. It concerns, alternatively, both (natural, adoptive, foster, presumed) parents. It is noteworthy, in fact, that it is provided even if the other parent does not work.

    The time one can take this leave varies. Its starting point is determined by the expiry of the maternity leave or of the special maternity protection (Article 36) or of the parental leave (Article 28). The law, therefore, enacts into law the Opinion of the Legal Council of the State No. 124/2018. The latter makes it clear that childcare leave is granted in full, regardless of the granting of the special maternity protection benefit and parental leave.

    This leave extends for a period of thirty (30) months from the point it can be taken. During this period, the working parent is entitled to reduced working hours [by (1) hour], following a relevant application of theirs. This may, in fact, be implemented by them arriving later than the specified time, leaving earlier or an stopping sometime during the work day. Alternatively, it can be agreed that the employee:

    (a) Will work for two (2) hours less every day for a period of eighteen (18) months and one (1) hour for the following six months,

    (b) Will be granted full days of leave, within the week, of a corresponding total number of hours, to which the working parent is entitled under this leave.

    (c) Will be granted equivalent continuous leave, granted once or in intervals.

    For adoptive or foster parents, the right to obtain this leave is granted from the inclusion of a child of up to eight (8) years of age in the family.

    In cases of divorce, separation or birth of a child out of wedlock, this leave is granted to the custodial parent, subject to a different agreement of the parents.

    At the same time, the law explicitly regulates the cases of part-time employment. In these cases, the childecare leave is granted in proportion to the daily working time.

     

    Leave for the monitoring of school performance (Article 38)

    This regulation provides for the right to leave to working parents with full-time or part-time employment contracts, in order for them to monitor the school performance of their children. It extends, in fact, the right of the parents to the said leave until the 18th year of age (completed) of the child, instead of the 16th that was valid until the previous law, as well as, regardless of age, in the case of children with disabilities.

    This leave (paid leave for up to four working days per year) grants the working parent the right to be absent from work for certain hours (and / or full day) in order to visit their child’s school.

    The right to obtain this leave is common to both parents. Therefore, it is possible that either one of the parents or both of them will use it, by sharing it. Joint statements by parents to their employers are therefore required, including the way that this leave will be obtained.

     

    Marriage leave (Article 39)

    This is a paid leave and is not offset by the employee’s annual leave. Its duration is a full working week. That is five (5) days, ie for five days of work and in six (6) days in cases of six days of work per week. It is also granted in the case of concluding a cohabitation agreement.

     

    Prenatal examination leave (Article 40)

    This provision provides for the right of pregnant employees to be allowed to leave work, without a pay cut, in order to undergo prenatal examinations if the relevant examinations are to be performed during working hours.

     

    Reduced working hours for parents of children with disabilities (Article 41)

    This provision concerns parents (by birth, adoptive, sponsors, presumed), who have children with mental or physical disabilities. These parents are given the right to request a reduction of their working hours by one hour per day, with a corresponding reduction in their salary. The prerequisites are:

    (a) the certification of the disability by the insurer concerned; and

    (b) employment in a company or holding where at least 50 persons are employed.

     

    Leave due to illness of a child or other dependent member (Article 42)

    This provision gives the employee the right to take unpaid leave in case of illness of dependent children or other family members (as defined in §2 of the article). It amounts to up to six (6) working days per year and is administered as a lump sum or in installments. In case of a parent (by birth, adoptive, foster, presumed), who takes care of two children, the duration of the leave is increased to eight (8) days. If they have more than two children, the duration is fourteen (14) days.

    Leave due to serious illness of children (Article 43)

    This provision repeats and codifies the provisions of article 51 §1 of law 4075/2012. Specifically, the right to obtain special parental leave is granted to working parents (by birth, adoptive, foster, presumed) due to serious illnesses of their children. In fact, the new regulation removes – for the granting of this leave – the age limit of eighteen (18) years of children for specific diseases (severe mental retardation, DOWN syndrome, autism).

    The duration of this leave amounts to ten (10) working days per year with remuneration. This leave is an individual right of every working parent. It is granted, with absolute priority, if other paid leave is exhausted – not including the annual not including the annual common leave leave.

     

    Leave due to care of a hospitalized child (Article 44)

    The specific provision repeats and codifies the regulations of article 51 §2 of law 4075/2012. This provision gives working parents (adoptive, natural, sponsors, presumed) the right to receive special parental leave, due to the hospitalization of their children – due to illness or accident. The new regulation removes the pre-existing age limit of eighteen (18) years and is granted regardless of the age of the child.

    This leave is unpaid and lasts as long as the (child’s) treatment. In any case, however, its duration may not exceed thirty (30) days per year. This leave is an individual right of every working parent and is granted if related paid leaves are exhausted – not including the annual regular leave.

     

    Leave for single-parent families (Article 45)

    This provision codifies and gives legislative force to article 7 of the national collective labor agreement / 15.4.2002. It concerns, in particular, working parents (by birth, adoptive, foster, presumed), either widowed or unmarried, who have the sole custody of their child. These parents are granted paid leave of six (6) working days per year, in addition to that to which they are entitled under other provisions. In case the one who has the right to the specific leave has three or more children, its duration is increased to eight (8) working days per year.

     

    As mentioned in the introduction, but also in analyzing individual regulations, an attempt was made with the (above) recent law to compile and codify the provisions that refer to the leave related to the protection of the family. Also, make the (necessary) extension of the relevant leave to employees who need it but also to align with the conditions of the time.

    A common denominator of these regulations is the (absolutely necessary) protection of the family but also, of course, of the working parents.

    It is a given that the specific regulations are not legally sound. Given that regulations like these will not solve the demographic problem of our country but will undoubtedly assist I helping the daily lives of employees, their relief and, through them, assist the businesses in which they provide their services.

    However, in order not to make the specific regulations “void”, the legislator considered it appropriate, and rightly so, to protect employees who exercise their relevant rights. However, we will talk about this protection in our next, and last on this topic, our article.-

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 26th, 2021).

     

    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.

  • Employee leave (: work-life balance for parents and caregivers)

    Employee leave (: work-life balance for parents and caregivers)

    The new labor law (Law 4808/2021), its regulations and the need for a fresh perspective in labor relations concern all of us, even before its enactment. Even more so today. Reasonably, one could note, as the legislator’s view of labor relations and (until recently) labor law differs significantly. Part of the new law refers to employee leave. It expands some of the existing ones and institutionalizes new ones. Most important, in terms of their social value, are those concerning the institution of the family. Particularly important are those that aim to help balance the work and personal lives for parents and caregivers. In this article we will mainly deal with the latter. In the next article we will deal with the arrangements for the employees’ leave related to the protection of the family.

     

    Dealing with stereotypes between men and women

    The regulations for the leaves of Chapter A’ are those that were established within the framework of Directive 2019/1158 / EU. They aim at tackling stereotypes in professions & the roles of men and women; they also tackle discrimination.

    The establishment (and the specific provisions) of a minimum level of protection of employees seeks, in the medium term, the strengthening of women’s employment. Also, the institution of the (“in a broad sense”) family. These goals are achieved through arrangements that allow (and improve) the coexistence of professional and private life. Also, through the effective implementation of the principle of equality between men and women, so that they have equal opportunities to access the labor market.

    In this context, incentives are introduced, so that men also take on more family responsibilities (eg the introduction of remuneration for, until recently, unpaid employee leave). Provisions are taken to protect the employment of men (eg protection of the father from dismissal, in accordance with the protection of the mother-article 66 §1 cc’). The Independent Authority of the Ombudsman is designated as the competent National Body for the monitoring and promotion of the implementation of the principle of equal opportunities and equal treatment of men and women (article 32).

    A number of facilities are also introduced to working parents and caregivers who provide care to relatives or cohabitants with significant health problems.

     

    Paternity leave

    The new law (: article 27) significantly extends paternity leave. Instead of the previous two days, the father to be is now entitled to fourteen (14) days leave. This leave is paid and is provided, without conditions, due to the birth of a child – its duration exceeds ten days, which is set as a minimum duration by the aforementioned Directive. At the same time, a flexible way of distributing it is being introduced. The father to be is entitled to take two days off before the expected date of birth, while the remaining twelve, in total or in part, within thirty days from the date of birth. Alternatively: all fourteen days are taken within the thirty days to follow the birth.

    However, in order to safeguard the smooth operation of the business, the employee notifies the employer, in a timely manner, of the probable day of delivery. The notification may take place in writing, electronically or in any other way serving the parties (: No. 47972 / 07.07.2021 Circular of the Ministry of Labor and Social Affairs).

    The corresponding regulations also apply in case of adoption and fostering of a child up to eight (8) years old in the family-from his / her inclusion in it.

     

    Parental leave

    Its duration and subsidy

    The duration of the parental leave of working parents and those exercising parental care is set (: article 28) at four (4) months. It can be taken continuously or in installments, until the child turns eight years old. Time of commencement of this leave is the birth of the child or (in case of adoption or fostering) its integration into the family.

    This leave was provided, according to the provisions previously in force, as unpaid (article 50 § 3 of law 4075/2012). Law 4808/2021-for the first time, already provides for its subsidy. For a period of two months (out of a total of four) a monthly allowance equal to the sum of the minimum statutory salary and the ratio of holiday gifts and leave allowance is paid by the Manpower Employment Organization. For the remaining period, it is inferred – from the letter of the law – that it is up to the employee and employer to pay any wages (: § 9 in fine).

    The conditions

    Parental leave is not unconditional. The beneficiary is required to have completed one year of work with the same employer. Either continuously or on the basis of successive fixed-term employment contracts (subject to any more favorable arrangements). In the case of several children, the right to parental leave is independent for each of them. However, after the expiry of the leave granted for the previous child, a period of one year of actual employment with the same employer must take place (here too, subject to more favorable arrangements). At the same time, in the case of multiple children, the right to leave concerns each child separately. However, the subsidy from Manpower Employment Organization is paid for four months, regardless of the number of children born.

    Special arrangements for single-parent families

    The new law also introduces special regulation for special categories of single-parent families. It provides, in particular, that single parents, due to death, total removal of parental care or non-recognition of the child by the other parent, are entitled to twice the parental leave provided and to twice the Manpower Employment Organization allowance.

    In case of co-service of both parents

    In the case of employment of both parents by the same employer, with a joint statement, they specify the order in which they will receive their leave and its duration.

    In case of a fixed-term contract

    The expiration of a fixed-term contract marks the termination of a parental leave. It can, however, continue either under the same employer (after renewal or extension of the fixed-term contract) or under a different employer (after completing one year from the start of the new employment contract.

    Replacement with reduced working hours or part-time employment

    Parental leave can be provided in another flexible way (eg reduced working hours or part-time employment) depending on the employee’s request and the company’s capabilities. This request must be submitted (in writing or electronically) at least one month in advance – with the exception of exceptional reasons. The employer, respectively, is obliged to process the request in the requested time, as long as the smooth operation of the company is not seriously disturbed. In any case, however, the employer is obliged to grant the requested leave within two months of the request. At the same time, priority is set in granting relevant leave in special cases. Any refusal of the employer must be substantiated in writing.

    Time of Insurance

    The parental leave is posted on the ERGANI platform. As for the insurance of the employee for the duration of the leave, the following are pointed out. The time of the two months of the subsidy from the Manpower Employment Organization is considered as insured. For the two non-subsidized months – and if the payment of salaries has not been agreed – partial insurance coverage is provided. Full coverage becomes possible, after acknowledging the time of absence.

    Non-discrimination

    Upon expiration of the parental leave, the employee returns to the same or an equivalent or relevant position. Clearly, on the same terms. At the same time, they benefit from any improvements that, rightfully, would be due to them.

    The granting of this leave does not, of course, justify discrimination against the beneficiaries. The specific employees, in their absence, are informed about any promotions and vacancies. Also, the time of absence is considered as service time for the calculation of remuneration, the granting of annual leave and related allowance, the professional development and the dismissal compensation.

     

    Caregiver leave

    This leave (: Article 26) is granted to employees who provide care or support to a relative (as defined in Article 26 f΄) or a cohabitant who needs significant care or support for a serious medical reason (for the definition of caregiver: article 26 par. f). This need must be confirmed by a relevant medical opinion. The purpose of this provision is to prevent exits from the labor market of employees who carry specific, increased, family burdens.

    The condition for granting this leave is the completion of six months of employment (continuous or on the basis of successive fixed-term employment contracts) with the same employer.

    The duration of the caregiver leave is five working days for each calendar year. It is provided without remuneration (see also Circular No. 47972 / 07.07.2021 of the Ministry of Labor and Social Affairs), despite the different provisions of the relevant bill and its explanatory memorandum.

     

    Absence from work due to force majeure

    Law 4808/2021 provides for the possibility of obtaining a leave for reasons of force majeure (article 30). This leave is granted to parents or caregivers in cases of force majeure related to emergency family matters (illness or accident). Illness or accident must be confirmed by a medical opinion of a hospital or of a treating physician. The duration of this leave is up to one day at a time and two days, in total, per year. It is provided with remuneration, although this is not required by Directive 2019/1158 / EU. It is pointed out that this leave is granted in addition to other absences of the employee due to an event not caused by them (: 657 and 658 of the Civil Code).

     

    Flexible regulations for parents and caregivers

    Parents of children up to twelve (12) years of age or caregivers have the right (Article 31) to request, for their convenience, flexible working arrangements (in particular teleworking, reduced employment hours, part-time work). A prerequisite is the completion of six months of employment (continuously or through successive fixed-term employment contracts), at the same employer.

    The employer must consider and process any relevant request within a month. Any rejection or postponement of its processing must be documented.

    At the end of the limited period of any flexible arrangements, the employee returns to the same position and form of work that they previously held. However, they reserve the right to return to the same or equivalent job and earlier than the agreed date, if the data have changed. The relevant application is subject to the approval of the employer.

     

    It is true that female employees are subjected (and on a practical level) to a number of discriminations in their workplace – and not just in our country. Much more so are the mothers.

    The arrangements for the above employee leave are, and rightly so, aimed at removing the relevant discriminations, addressing the (existing) stereotypes between men and women, achieving the (necessary) work-life balance for parents and caregivers, and assisting, ultimately, the functioning of the family — in a broad sense.

    These arrangements are a bold step compared to what used to be the case. Not, possibly, entirely satisfactory but, in any case, capable of providing a basis for references to a State with a “social face”.

    However, we will get a clearer picture of this issue in the next article, which concerns the arrangements for the leaves related to the (absolutely necessary – in any case) protection of the family.

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 19th, 2021).

     

    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.

  • Business Angels – motivation and protection

    Business Angels – motivation and protection

    The issue of the financing of startups has been covered in our previous article. In a previous article, we were given the opportunity to approach and, to a large extent, better understand the operation and importance of Business Angels for startups, in particular, operating in Europe, the US and in our country. In the present article we will focus on the incentives provided by the Greek state for the development of the relevant institution and, through it, for the development of entrepreneurship and the Greek economy. Also, to put it bluntly, in protecting what Business Angels and Businesses should enjoy.

     

    Attracting investment funds from Business Angels-the incentives

    Generally

    The investment culture in our country is not at all typical for the US, nor for the European one. The presence, therefore, of Business Angels in our country could probably be characterized as non-existent. However, their importance in the economies in which they operate is quite obvious. In this context, it seemed necessary to have incentives to attract and involve them.

    For a year now, albeit belatedly, there has been the appropriate legislation (: art. 49, law 4712/2020), which would create the necessary incentives for those who would be interested in acting as Investment Angels. With this legislative regulation, the necessary provision was added to the Income Tax Code (: art. 70A law 4172/2013).

     

    The tax incentives

    The specific provision, therefore, provides (: §1), that when a taxpayer-natural person contributes capital to a capital company, which is registered in the National Register of Startups, an amount equal to 50% of their contribution is deducted from their taxable income. -in fact, within the year in which the contribution was made.

    It also provides (: §2), that:

    (a) the specific tax reliefs may relate to contributions up to a total of € 300,000 per investor and per tax year;

    (b) capital injections are made to a maximum of three (3) different start-ups; and

    (c) up to the amount of € 100,000 per business.

    Finally, in order to avoid problems, it records as necessary (: §3) the deposit of the financing through a bank. It also imposes severe administrative sanctions in the event that there is an intention to circumvent the law and obtain a tax benefit without a real intention to finance.

     

    The long-awaited CMO and the way of capital injection

    The problem with this legislation, however, was that a prerequisite for the start of its implementation, was (: §4) the issuance of a CMO for the necessary details. This CMO was finally published with a delay of one year (!). This is the CMO No. 39937 / 5.4.21 (Government Gazette B 1415 / 9.4.21), which indeed determines the necessary details for the implementation of the aforementioned provision. The provision of §2 of article 3 is interesting, as it stipulates that:

    «2. The capital contribution to a start-up company is made through an increase of its share or corporate capital with the issuance of new shares or corporate shares, respectively, in accordance with the provisions of the existing regulations that regulate the capital increase process of SA, LTD and Private Limited Company”.

     

    Restrictions on tax reliefs

    The way in which Business Angels provide financial support is therefore important to them from a tax point of view. In order to achieve the tax reliefs mentioned above, it is necessary to carry out the financial support of the startups through, exclusively, a contribution to their share capital. More specifically, through an increase in share or corporate capital with the issuance of new shares or corporate shares. An increase which (in whole or in part) will be covered by the Business Angel.

    It follows, by contrast, that the Business Angel do not qualify for tax relief when, among other things, they undertake to cover the financial needs of the startup in another way. Indicatively, through:

    (a) a bond loan convertible into shares;

    (b) common loan or bridge financing.

    Let us clarify, moreover, that of course such a form of financing by the Business Angel is not excluded. They will simply be deprived of the tax advantages, which in case of acquisition of a part of the share capital they would be entitled to.

     

    The protection of Business Angels and startups

    The tax incentives provided by the relatively recent above-mentioned CMO for Business Angels’ investments are consistent with the legislation mentioned in the introduction. This is because only contributions to a capital company (: SA, LTD and Private Limited Company) provide tax incentives to Investment Angels. However, their participation in the share / corporate capital of startups is what calls for both the owners of start-ups and the Business Angels themselves to be alert (of course also from a legal point of view).

    From the point of view of the first (: entrepreneurs) it should be completely understood that the involvement of a direct “partner” in the corporate capital means also their participation in the operation of the bodies of their company. It means running a company that is fairly formal and based on some, minimal, corporate governance rules – even if they are not formally subject to them. It means transparency and tolerance of monitoring. It means separation of the company’s finances from those of the entrepreneur. It means, in the end, that there should be a transition to a new mode of operation, different from the one that was, until recently, familiar to them.

    From the point of view of the latter (: Business Angels) it should be understood that the necessary audits should take place (legal and other). Also they should review the statutory provisions (and possibly require adjustments) on a number of issues. Among them: those concerning the decision-making process, minority rights, quorum and majority percentages, management, transfer of shares or, as the case may be, corporate shares.

    The binding recording of the initial agreement’s individual parameters, the manner of exit of the Business Angels from the investment as well as the safeguarding of both sides (legal and not only) is, of course, up to the provisions of their initial agreement,

     

    The data regarding the role of Business Angels worldwide is impressive. Particularly important, therefore, is their assistance to the economies of the countries where their presence is expanding.

    It is in this context that they were provided with the (mentioned in the introduction) – recent tax incentives. We hope, therefore, in the confirmation of the assessment for: “… revitalization of this institution, which will contribute to the strengthening of entrepreneurship and the economy of our country ” of the late President of EVEA-Konstantinos Michalos.

    But the tax incentives, although they do not cover all the potential contingencies, do not seem enough. Nor is the absolutely necessary safeguarding of those involved (investors and businesses).

    The first thing that should happen is to activate and change the perception of domestic investors-potential Business Angels. (Unless they fall behind and ultimately follow, as is usually the case, foreign Investment Angels, who will be the first to make a move – taking advantage of relevant business opportunities).

    We will see…

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 12th, 2021).

     

    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.

  • Violence and harassment at work: the rights of victims and the role of the Labor Inspectorate

    Violence and harassment at work: the rights of victims and the role of the Labor Inspectorate

    

    In our previous article, we were concerned with the extent of this phenomenon, the obligations of the employer, the new (expanded) role of the Occupational Physician as well as the relevant (now necessary) Policies and relevant provisions of the Labor Regulations. The subject will “close”, in this article, with the rights of the affected persons, the expanded role of the Labor Inspectorate but also some “traps” of the relevant law.
    

    

    Rights and protection of victims (a. 12)
    

    Affected persons (even if the disputed relationship between them and the business has ended), are entitled:
    

    (a) to seek judicial protection by claiming compensation for their positive and detrimental damages as well as their moral damage;
    

    (b) to appeal to the Labor Inspectorate and the Ombudsman and, in addition,
    

    (c) to lodge a complaint within the business.
    

    When the offender is an employee (or works under another relationship), the employer is obliged to take the necessary measures against the accused, in order to prevent similar incidents / behaviors and not have them repeated. Such measures, which the employer is obliged to take, are (indicatively): the recommendations, possible changes in the position, the schedule, the place or the way of providing work of the accused. Also, the termination of the employment relationship or cooperation of the latter (: accused). It should be noted here, of course, that there is a (self-evident) restriction: the right to complain should not be exercised abusively to the detriment of the accused.
    

    The rights of the victim are presented in an extremely extended way:
    

    The victim is entitled to leave the workplace for a reasonable time (but after written notification of the employer). It is noteworthy that the non-provision, for this reason, of their work does not deprive them of their salary. However, in addition, any adverse consequences to them are not tolerated (especially when the employer is the perpetrator or when they do not take the necessary measures or when these measures are not capable of stopping the problematic behavior). In the event that the employer disagrees with the departure of the affected employee from the job, their only option is to appeal to the Labor Inspectorate (a. 18).
    

    Finally, it should be noted that in case of violation by the Employer, or their representative, of the prohibitions set by law regarding the issues of violence and harassment, administrative sanctions are imposed (art. 19, §2 a’).
    

    

    Prohibition of retaliation
    

    In order to provide the necessary support to the affected employee, it is explicitly prohibited to take any retaliation or countermeasures against them (a. 13).
    

    Indicatively, any adverse treatment is prohibited. And so is the termination of their contract (or forcing them to resign). It should be noted that, moreover, such retaliatory actions are identified as invalid in the event that they, nevertheless, take place.
    

    

    Possibility of appeal by associations (a. 14)
    

    Interestingly, the rights of the affected employee can be (also) exercised by legal persons, associations and trade unions. Necessary condition is for them to justify a legal interest and, in addition, to have the consent of the victim.
    

    In this context it is possible e.g. for a trade union organization to exercise an appeal on behalf of the victim (or to intervene in support of the victim) before the competent administrative or judicial authorities.
    

    The affected person is recognized, of course, the right to intervene and / or to cancel such a procedure, which was initiated by a third party on their behalf, regarding the specific issues.
    

    

    The burden of proof and its reversal
    

    The burden of proof rests, according to the law (a. 15), on the accused (with the exception of the criminal trial). What does this mean? It means that the accused is the one with the obligation to prove that the incident / event attributed to them did not take place. Which is illogical and, in fact, impossible. The (legal) argument adopted by the authors of the provision is unsubstantiated.
    

    The reversal of the burden of proof on issues of violence and harassment has occupied us extensively in our previous articles. Closing this article we concluded:
    

    “With all the required (unlimited and absolutely necessary) respect for victims of violence or harassment, it is extremely dangerous to reverse the burden of proof introduced by the bill to be put to the vote. As long as this provision remains as is, it is a given that the one that will be most at risk is the truth: Any dissatisfied employee (or former employee) will be able to invoke an incident of violence or harassment in order to strengthen their place. In this case, the defendant (: colleague, boss, subordinate or employer) will be called to do the impossible: prove the non-existence of the reported event.
    

    Which is illogical. And, of course, unfair.
    

    However, a possible persistence on this provision (under the weight of political choices or, possibly, social pressure) will certainly make some people happy:
    

    Us lawyers!
    

    Let’s choose.- »
    

    

    The role of Labor Inspectorate
    

    An independent Department for the monitoring of violence and harassment at work is established at the Labor Inspectorate (a. 16 & 17). Its object is the resolution of related labor disputes, the monitoring of the observance of the relevant obligations by businesses. Also, the provision of advice to businesses and employees as well as the maintenance of the Register of Employers to whom relevant sanctions were imposed.
    

    In case of complaint (a. 18 & 19) before the Labor Inspectorate, the Ombudsman is informed, where required. The examination of the relevant case is carried out as a priority, in relation to the other cases pending before it. The relevant process must not only be completed within two months but also ensure the privacy of the persons involved and their personal data.
    

    In case of confirmation of incidents that are subject to the provisions of the law, administrative sanctions are imposed at the end of the relevant procedure. They are the ones that will be provided by a Ministerial Decision to be issued (a. 22) which, in addition, will deal with the procedural issues related to the examination of the relevant disputes.
    

    

    Specifically: the interim measures taken by the Labor Inspectorate
    

    Given the specificity (but also the nature of the disputes related to the issue), the possibility of temporary measures imposed by the Labor Inspectorate is necessary (a. 19 §3), in order to have an immediate, as far as possible, management of an emergency situation as a rule.
    

    Therefore, in the event that danger is suspected (for the life, health or safety of an employee), the accused is called “as soon as possible” to provide explanations. The Labor Inspectorate retains the possibility to issue an order, with immediate effect, to the employer subject to one or more of the following temporary measures- with a duration until it is proven that there is no risk. It is entitled, in particular, to order:
    

    (a) the removal of the accused from the place of work with payment of all their remuneration;
    

    (b) staff shift changes;
    

    (c) the transfer of the accused to another department;
    

    (d) the employment of the accused by teleworking or distance work depending on the nature of their duties.
    

    It should be noted here that in the final wording of the law (in contrast to the bill that was put to consultation) it appears, logically, as possible to revoke or maintain the temporary measures that will be decided by the Labor Inspectorate with the conclusion on the dispute or the audit or with a new decision of the Labor Inspector.
    

    Finally, in the event that the employer does not comply with the temporary measures set out in the order, a fine is imposed for each day of failure to implement them.
    

    

    Violence and harassment within the terms of the employment relationship (or on this occasion) is, unfortunately, a phenomenon on a large scale – as recent research has shown.
    

    It is, in fact, a matter of ensuring a sense of security in the workplace for all employees – especially women – who are most likely to be affected.
    

    The provisions of the recent labor law on violence and harassment are absolutely sufficient. In fact, it is expected that they will prove capable of managing the existing, and very serious, relevant problem.
    

    There is, of course, the danger of using the law as a means of pressure to achieve an unfair benefit. Unfortunately, such phenomena have already begun to occur.
    

    We hope, however, for its utilization for the benefit of the afflicted and the weak.
    

    Exclusively.-
    

     
    

    

    Stavros Koumentakis
    
Managing Partner
    

     
    

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 5th, 2021).
    

     
    

    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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