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

The Employment Regime On Sundays

The Prohibition of Employment on Sundays

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

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

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

The Compensation For Employment On Sunday

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

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

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

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

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

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

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

The Exceptions

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

The recent law provided a series of exceptions:

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

(b) Food industry.

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

(d) Organization of conferences.

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

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

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

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

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

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

Stavros Koumentakis
Managing Partner

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

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

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

The Regime – Before The Changes

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

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

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

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

The Arrangements For The Sixth Day

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

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

Businesses Or Holdings Of Continuous Operation

Field of application

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

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

Provisions

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

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

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

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

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

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

Businesses Or Holdings That Are Not Of Continuous Operation

Field of application

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

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

Provisions

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

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

Exceptions

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

The issue of the Pending Ministerial Decision

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

The Problems

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

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

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

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

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

Stavros Koumentakis
Managing Partner

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

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

The employment contract presupposes the coincidence of the wills of the employer and the employee in terms of its conclusion. Certain of her, precisely, at the moment, her solution – but uncertain of the time and the manner in which it will come. The contract can be terminated (of course) by agreement of the parties. Also after its termination: either by the employer (:dismissal) or (expressly or implicitly) by the employee (:resignation or voluntary withdrawal). In both cases, however, the employer is burdened with specific obligations. In the present we will deal with the last of them: the voluntary departure of an employee.

We were already concerned with this case in our previous article. There, we dealt with the prescribed procedure, which – under the previous regime – the employer was obliged to follow after the voluntary departure of his employee (art. 38 n. 4488/2017, as codified in art. 320 p.d. 80/2022). Also, with the issues arising from the relevant procedure. However, the recent labor law (:n. 5053/2023) changed the applicable procedure. About the recent-relevant legislative changes, the present!

Notice of Voluntary Resignation

As expressly provided (and, under the previous regime, it was provided), the employer is obliged to announce, in the P.S. INSTRUMENT II, every case of voluntary resignation of an employee – by electronic submission of the provisions under no. 40331/13.9.2019 HR of the Minister of Labor and Social Affairs forms. [Such as, respectively, any case of termination of an open-ended employment contract or termination of a fixed-term employment contract or project. As well as any case of voluntary termination of the trial period (which is provided for in art. 1A p.d. 80/2022) or consensual termination of the employment contract, such as voluntary exit (art. 320 § 1 p.d. 80/2022)].

Preceded Regime

Under the previous regime, it was stipulated that the aforementioned notice of voluntary resignation of the employee had to be accompanied by an electronically scanned form signed by the employer and the employee. Alternatively: from an out-of-court statement by the employer to the employee, informing him that he has voluntarily left and that this will be announced in the “ERGANI” information system. In the latter case, the employer’s extrajudicial statement had to be served on the employee no later than four (4) working days after his voluntary departure. The relevant announcement should have been made the next business day after the extrajudicial statement was served.

The procedure in question created questions and difficulties regarding its application, in particular, in two cases of the employee’s implicit will to terminate the employment relationship. Specifically: (a) in the event that the employee refused to sign the form for their resignation (: Form E5), as well as (b) in the event that the employee stopped coming to work, with the result, likewise, of not signing the relevant printed material. It should be noted, of course, that the employee’s non-attendance at work should be unjustified. Naturally, the employee’s justified absence from his duties (e.g. in cases of leave, pregnancy, childbirth, military service and illness – provided that the legal conditions are met) cannot be considered as an implicit termination of the employment contract by him employee.

In the aforementioned two cases, the cooperation of a bailiff was necessary. At the same time, however, the employer had to safely conclude – how? – the implicit complaint on behalf of the employee. Also, service and notification by the employer had to take place within strict deadlines.

Law 5053/2023 improved the (obviously) problematic process of resignations – to a certain extent.

Purpose of the New Regulation

The new regulation for the resignation of an employee aims – according to the Explanatory Report of Law 5053/2023 – to simplify the process of electronic announcement in the ERGANI II Platform of the resignation. Also, in assisting businesses in capturing the true status of employees who have resigned, they still appear as employees.

At the same time, with the new regulation, the legislator provides for the provision of insurance barriers, to prevent its circumvention by employers (or at least they declare that they are doing so) (see related Memorandum to law 5053/2023 on article 23).

Current Status

It is now provided (in the newly introduced § 3 of art. 3 of the Presidential Decree 80/2023), that the employee’s unjustified (arbitrary) absence from work for more than five consecutive working days can be considered as termination of the contract on their part. It is required, however, that an additional period of five consecutive working days has passed since their compulsory employment by their employer, which (a) is posted on the ERGANI II Platform and cumulatively – as specified in the Memorandum of Law 5053/2021 on art. 23- (b) evidenced by any suitable written means. In this case, the employer is obliged, on the next working day after the end of the period of five consecutive working days of the unjustified (arbitrary) absence of the employee (which follows the period of five consecutive working days from the employer’s compulsory harassment), to announce the employee’s resignation to the ERGANI II Platform, without requiring the employee’s signature.

The new provision does not require the cooperation of a bailiff. It also delimits – in a more specific and safe way – the relevant time limits: the termination by the employee and the obligation to announce the resignation by the employer.

However, cumulatively, the process of such resignation requires the passing of, as a minimum, ten consecutive working days. This period is evaluated as, obviously, excessive. In particular, the period of five consecutive working days that must elapse from the employer’s mandatory notification of the employee. There can be no doubt that the requirement to pass such a long period of time creates the conditions for abusive behavior on the part of (malicious) employees. The latter will have at their disposal a sufficient period of time to change their possible (implicit) will to leave their job. Also to delay their departure from work or, simply, to inconvenience (:revenge) their employer. In other words: an unjustified absence of an employee for nine consecutive days does not count as resignation in the event that one, and only, working day follows(!!!). Even if it is followed by another nine-day (unexcused) absence. And one more. And so on…

A problem also arises regarding the completion of the day of the employee’s departure in the -to be submitted- form E5: it is more correct to declare the first day of their unexcused absence.

In the case of the employee’s return to work – either before or after the relative inconvenience of the employer – it is reasonable for the employee not to be paid nor to be insured for the days of their unjustified absence. Coincidentally, of course, the relevant provision in their employment contract.

The Legal Consequences of Non-Compliance with the Employer’s Obligations

In the event that the employer does not comply, within the deadline, with the obligations of announcing the resignation, the employment contract is considered to have been terminated by the employer’s irregular termination (art. 320 §4 Presidential Decree 80/2022). It is, in this case, an establishment of a presumption in favor of the employee. The employee then has three options:

(a) To accept (expressly or implicitly) as correct the process of their resignation – then the employment relationship will be terminated.

(b) To claim the payment of severance pay, due to untimely termination of their employment relationship.

(c) To bring an action for the claims arising from the invalid dismissal (due to non-compliance with the formal conditions of dismissal). That is, to ask for overdue wages and their re-employment at their job.

In each of the last two cases, the employer will have the burden of proving that the termination of the employment relationship occurred due to resignation and not due to dismissal.

Work Retention

But what happens in the case of work retention? In the event, i.e., that the employee exercises their right to refuse the fulfillment of their benefit, until the employer fulfills an obligation incumbent upon them (e.g. payment of accrued wages). Based on an explicit legislative provision (: art. 320§5 Presidential Decree 80/2022-as amended by art. 23 law 5053/2023) the provisions of the law (specifically §§2, 3 and 4 of the disputed provision) do not apply in the case of work retention.

It should be noted that the specific regulation/clarification regarding the suspension of work was not included in the bill, as it was submitted to the Parliament. Also, it was not added with a timely amendment (therefore, the Memorandum of Law 5053/2023 does not include a reference to the relevant regulation).

The resignation of an employee from their job is probably the most common way to terminate the employment relationship. The recent legislation simplified and made more rational the existing relevant regulations. However, it did not deal with problematic situations that, on a practical level, can be dealt with: long, for example, unjustified (but not ten days continuous) absence of the employee from their work. The long maintenance of such a serious pending in a working relationship, obviously strikes, in the end, against the business itself and its sustainability. Indirectly (but not clearly-voluntarily though) also against the other employees. A three-day, only, (proven) unjustified absence of the employee would, in any case, be enough to terminate the employment relationship. Justifiably, therefore, we look forward to the next, relevant, legislative regulation.-

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 12th, 2023).

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

In our previous article, we examined the disclosure and content of the essential terms of employment, as they were formed after the very recent Law 5053/2023. We also dealt with the differentiation of the essential terms from the (not defined by law) basic terms of the employment contract. As well as with the (excessively) complicated way and time of their notification to the employees. In the present article we will examine the employer’s managerial right and the (sometimes unilateral-damaging) change in the employee’s working conditions.

The Managerial Right of the Employer

Law 5053/2023 incorporated into the national legal order the 2019/1152/EU Directive on transparent and predictable working conditions in the EU. The need to define working conditions is indeed necessary and ensures the interests of both the employee and the employer. However, in a steady legal relationship, as is the employment relationship, the detailed and unequivocal definition of the terms of employment in the individual contract is not at all realistic. Clearly, not desirable either – at least from the business’ side.

The specification of working conditions (should) take place through instructions from the employer to the employee during the employment relationship. Practically, through the exercise of the former’s managerial right, which is transformative in nature. This exercise, however, in order to be legal, should be subject to specific conditions.

Content of the Managerial Right

As is consistently accepted by jurisprudence, “the employer, exercising their managerial right, according to article 652 of the Civil Code, has the authority to determine the content of the employee’s obligation to provide work by determining the conditions of its provision, the place, the time and manner, if these terms have not been determined by legal rules or by the employment contract. In other words, they have, as the manager of the entity, the authority to organize and manage their business based on the criteria they consider to be the most effective for it” (ind.: 906/2023 Supreme Court, NOMOS legal database).

Limits & Limitations of the Managerial Right

Therefore, the exercise of the managerial right (must) take place within specific limits and restrictions (ind.: 1248/1993 Supreme Court, NOMOS legal database). It must not, in any case, contradict the sources of formation of working conditions that have a regulatory nature (: law, Collective Work Agreements, arbitration decisions, labor regulation). Also, with the provisions of the individual employment contract. In fact, the more the last (: individual employment contract) specifies the terms of employment, the more (unfortunately for the employer) the managerial right is limited. Whereas, the broader the working conditions become (within tolerable limits, always), the more expanded (fortunately for the employer) the limits of the managerial right become. At the same time, the employer can expand, explicitly through contractual clauses, the limits of the managerial right.

In those cases, e.g., where the employment contract describes in detail the provision of work, the limits of exercising the managerial right in terms of the type of work due are extremely narrow. Conversely, the contract may mention the employee’s specialty/position and its subject, without a detailed description of their duties. Or, even better for the employer, to have reserved in their favor, through a contractual clause, the ability to assign, at their discretion, the employee to perform “inferior” tasks. Therefore, the escalation in the expansion of the limits of the managerial right in terms of the type of work due becomes clear.

The exercise, however, (also) of the managerial right is subject to an abuse control of article 281 of the Civil Code. It cannot, in other words, exceed the limits imposed by good faith or morals or the social or economic purpose of the right.

More specifically, the unilateral determination of working conditions attempted by the employer based on their managerial right must serve their purposes: the optimal utilization of work and the most convenient organization of the business. The unilateral determination of the provision of work, is a possibility that does not aim at the realization of the specific purposes but other, unrelated, pursuits of the employer. As such they could be the satisfaction of motives, reprehensible (also) by the legal order (eg empathy towards the employee). In this case, there is no utilization, but abuse of the managerial right. And this, because good faith obliges the bearer of the right to take into account, during its exercise and to the extent required by the circumstances, the justified interests and justified expectations of the other party (ind.: 1326/2017 Supreme Court, Nomos Legal Database).

As long as any changes to the working conditions on the part of the employer constitute a legal exercise of the managerial right, they are not only tolerable but also permissible. More precisely, the employer acts within the contractual terms and it is not, literally, a change in the terms of employment. The employee, therefore, undertakes to follow the relevant instructions of the employer and to provide, based on them, their services.

An issue, however, arises in those cases in which the employer exercises their managerial right in excess of its limits.

Unilateral Change of Employment Terms

In the event that the employer exceeds the limits of the exercise of managerial right, the employee is not obliged, according to the jurisprudence, to follow their instructions. Any change, therefore, of the working conditions on the part of the employer, by abuse of the managerial right or, similarly, in a manner contrary to the aforementioned sources of formation of the employment relationship, provides the employee, disjunctively, with the following possibilities:

(a) To accept the change. In this case, a new employment contract is concluded, amending the original one. This will prove to be valid as long as it does not contradict a prohibitive provision of the law or the principles of morality. The acceptance may be express (written or oral) or be implied (eg through the employee’s provision of work on the basis of the new terms of employment – unconditionally).

(b) To consider the employment relationship as terminated (for an open-ended contract) or to terminate (for a fixed-term contract).

In particular, in the event of a change in the working conditions by the employer in breach of the contract or in excess of the limits of the managerial right, the employee is entitled:

In the case of an open-ended contract, to consider the unilateral change as a harmful and disorderly termination of the employment contract by the employer. [Let us note here that any change in working conditions which causes, either directly or indirectly, material and/or moral damage to the employee is considered harmful (1426/2004 Supreme Court, NOMOS Legal Database). In fact, in the case of the employee leaving their job, they are entitled to demand the payment of the legal severance pay (art. 7 Law 2112/1920).

In the case of a fixed-term contract, to terminate the employment contract and claim compensation (according to article 673 of the Civil Code). [This, in light of the fact that the unilateral harmful change constitutes an important reason for the early termination of the contract (art. 672 Civil Code)].

(c) To adhere to the contractual conditions, offering its services according to the conditions before the change. [In this case, if the employer does not accept the services of the employee, they become overdue regarding the acceptance of the work and owes overtime wages (656 Civil Code). The employee has the right, of course, to provide the new job while expressing, at the same time, their opposition; in this case, a parallel appeal before the competent court is necessary, with a request that the employer be obliged to employ them in accordance with the conditions in place before the change].

Unilateral Prejudicial Change in Terms of Employment vs Abusive Exercise of Managerial Right

We must stress that in the case of a unilateral harmful change to the terms of the contract, the employer modifies, without the employee’s consent, these terms, without the relative freedom granted to them by the contract or the law. On the contrary, in the case of the abusive exercise of the managerial right, the unilateral change takes place in accordance with the terms of the contract, however, in excess of the limits imposed by good faith, good morals, the social or economic purpose of the relevant right.

Notice of Terms vs Employment Contract

The labor legislation (of course also the above-recent labor law) aims – by disclosing the essential and basic terms – to ensure transparent and predictable terms of the work. Beyond the requirements set (also) by the new law, however, the need for adaptability of working conditions to the changing conditions of the permanent employment contract remains. More precisely: It becomes necessary! With express provisions, in fact, in the employment contract, which will provide, in a lawful manner, the possibility of changes in the employment relationship – without the risk of being evaluated as harmful. From the employment contract, after all, derives (also) the scope of the content of the managerial right. A content, which can ensure the necessary flexibility of the working relationship, without affecting the employee’s rights. The individual employment contract, therefore, is reduced to a necessary lever to ensure the functionality of the employment relationship but also, sometimes, the development and survival of the company itself.

We have repeatedly examined, in the context of our articles, the value and importance (especially for the company) of the existence of a dependent labor contract against the simple disclosure of the essential (and still unknown basic) working conditions of its employees. Then, in fact, and from the recent labor law, the (obvious) necessity of written (and tailor made) employment contracts. If there are no such contracts in place, businesses are at great risks. In any case: the risks of characterizing a unilateral change in working conditions as harmful can be drastically reduced.-

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 5th, 2023).

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

From the prime minister’s lips – but also those of the then Minister of National Economy – we had heard, before the elections, that the past four years worked in favor of businesses and the next four years (: the current ones will work) in favor of employees. Regardless of the evaluation, each of us, of the specific statements and choices, we already meet a first sample of writing with the passing of the recent labor law (: law 5053/2023). The occasion was, indeed, opportune: During the long economic crisis we encountered significant pressures (but also reductions) in wages and salaries through (also) legislative interventions. The latter concerned, on the one hand, the determination of their amount and, on the other hand, their increments. Indicative through the suspension of the increases resulting from the passage of a certain working time (e.g. a three-year allowance). The recent labor law (law 5053/2023) abolished, among other things, the above suspension. This is article is about that.

Suspension of Increases With the Passage of Working Time

Already, from 14.2.2012, the validity of provisions of laws, regulatory acts, collective agreements or arbitration decisions, which provide for increases in wages or daily wages, was suspended (: Act of the Ministerial Council no. 6/2012-art. 4). In the same context, the application of the increases related to seniority was also suspended, with the only condition that a specific working time has passed. These were: the working time allowance, the multi-year allowance, the five-year allowance and the three-year allowance. Based on the specific legislative provision, the aforementioned suspension would last until the unemployment rate is below 10%. For the implementation of the relevant regulation, it was defined that the average of the national unemployment rate of the last four quarters, as reflected in the Labor Force Survey of the Hellenic Statistical Authority, will be taken into account.

…Especially Towards the Three Years

With the Approval of the 2013-2016 Medium-Term Fiscal Strategy Framework (law. 4093/2012), in the midst of the economic crisis, the minimum (and sub-minimum) salary was determined (€586.08 for employees over 25 years old and €510.95 for workers under 25). Issues of the three years were also regulated. Regarding the latter and:

(a) with regard to workers over 25 years of age it was provided that:

the minimum salary of employees is increased by 10% for each three years of service and up to a maximum of three years (increase, i.e., up to 30% for nine years of service or more);

the minimum daily wage of artisans is increased by a percentage of 5% for each three years of service and up to a maximum of six three years (increase, i.e., up to 30% for eighteen years or more of service).

(a) with regard to workers under the age of 25 it was provided that:

the minimum salary of employees is increased by 10% for three years of service and for three years of service or more.

the minimum daily wage of artisans is increased by 5% for each three years of service and up to two three years at most (increase, i.e., up to 10% for six years or more of service).

The specific legislation provided, however, that the three-year allowance will be paid to those employees who had completed a corresponding period of service by 14.2.2012. For previous service, on the contrary, which would be completed after 14.2.2012, the increase of the minimum wage and daily wage was suspended.

Abolition of the Suspension of Increases

The recent labor law (law 5053/2023-art. 33) significantly changes the above data. It specifically abolishes (art. 33 §8), from 01.01.2024, the above-mentioned suspension (of no. 4 of PYS 6/2012) of salary and daily wage increases; among them and those mentioned in seniority – with the only condition after a certain working time.

In this context, from 01.01.2024, the validity of provisions of laws, regulatory acts, collective agreements or arbitration decisions, which provide for increases in wages or daily wages, is reinstated. The validity of those relating to seniority is also restored, with the only condition being the passage of a specific working time; among these are working time allowances, multi-year, five-year and three-year allowances (art. 33 §1). It is noteworthy, in fact, that all this takes place before the fulfillment of the heresy for the formation of the national unemployment rate of the last four quarters at a rate below 10% (as this is reflected in the Labor Force Survey of EL.STAT. – see related Explanatory Report n. 5053/2023). Based, in fact, on the currently existing rate of unemployment reduction, it was estimated that the aforementioned lifting of the suspension (and reinstatement of the above regulations) would take place in 2025.

Purpose Of Lifting The Suspension

The above regulation is expected (Explanatory Report n. 5053/2023) to boost the income of employees and partially address the issue of persistent inflationary pressures, which weaken their purchasing power. Moreover, the increase in workers’ income is compatible with the convergence of the wage level with that of the other member states of the European Union. Also, with the increase in the level of the average salary in our country.

How to Apply the Lifting of the Suspension

Completion of employees’ seniority is distinguished in terms of its implementation as follows (art. 33 §2):

(a) For employees who were hired (and started working) before 14.02.2012, their seniority continues to be completed from 01.01.2024.

(b) For employees hired after 14.02.2012, their seniority starts to be completed after 01.01.2024.

The period of time between 02.14.2012 and 01.01.2024 is considered, for the purposes of this regulation, as non-existent.

In order to avoid misunderstandings, the law explicitly clarifies (art. 33 §5), that for the period from 14.02.2012 to 31.12.2023 no claim is made, nor are salary or daily wage increases due – including those related to seniority – with the sole condition that a specific working time has passed. Also, it does not allow the calculation of seniority completed from February the 14th 2012 to December the 31st 2023.

…Especially Regarding the Three Years

As, in particular, it is provided (art. 33 §3), for the increase due to seniority to those employees who are paid the minimum statutory salary or daily wage, the time of seniority is recognized as the time of a dependent contract or employment relationship, which has been spent with any employer and in any specialty before 14.02.2012 and after 01.01.2024. The specific, due to seniority, increase (given also the abolition, already, from 2019, of the minimum wage) is determined as follows:

(a) For employees at a rate of 10% for each three years of service and up to a maximum of three three-year terms (increase, i.e., up to 30% for nine years of service);

(b) For craftsmen at a rate of 5% for each three years of service and up to six three-year terms (increase, i.e., up to 30% for eighteen years or more of service).

Based on the above data as well as the recent increase in the minimum wage, the salary that an employee will receive, from now on, after the above suspension is lifted, is as follows: (i) at €780 – as long as they have not completed three years, (ii) at €858 -if they complete, with the above calculation, three years, (iii) at €936 -if they complete two three-year terms and (iv) €1,014 -if they complete three three-year terms. Further adjustment will occur if, of course, a new increase in the minimum wage takes place.

Set-off with the highest legal wages

The payment of the above salary and daily wage increases, which arise based on the passage of working time, depends on whether the employees receive higher wages than the legal ones.

In the case, i.e., when the paid regular wages of an employee are higher than the legal ones, the relative increases are set off with the difference that arises between the paid and legal ones. By paying the difference in question, the above increases are paid in full or in part (art. 33 §4). Therefore, only the remaining amount is paid.

The Impermanence Of The Lift

The legislation to lift the suspension of increases based on the passage of working time is not permanent. The continuation of the payment of the relevant increases depends, directly, on the formation of the unemployment rates. Specifically, it is foreseen that from 01.01.2027, if the unemployment rate exceeds 10% – and until it reaches a rate below 10% – the relevant increases will be automatically suspended (as described in art. 33 §1 & art. 33 §6). For the implementation of the relevant forecast, the average of the national unemployment rate of the last four quarters, as reflected in the Labor Force Survey of the Hellenic Statistical Authority, will be taken into account.

We are used to hearing the above regulations under the general heading ” three-year unfreeze”. They aim at the (even partial) restoration of workers’ income. In restoring, also, favorable for those arrangements to the pre-crisis levels. The (alleged) defenders of workers’ rights complain, on the one hand, about the lack of regulations and the limited restoration of their incomes. Businesses, on the other hand, treat them with skepticism considering their total costs, the related burdens on their products and services as well as, of course, their competitiveness. The ruling majority chose, however, the middle path.

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 8th, 2023).

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

The salary was connected, at least until recently, with employees and the daily wage, respectively, with the craftsmen. The distinction between them used to be to the benefit of the former, throughout time. However, alongside the concept of salary and daily wage we encounter, in most cases, the concept of hourly wage. Are individual distinctions and use of individual concepts, institutions, values and calculations necessary? Do they exist, perhaps, for the benefit of businesses or employees? Do the relevant legislative regulations and ministerial decisions (especially those related to minimum wage limits) unnecessarily create serious “headaches” and problems for businesses and (justified) feelings of injustice for employees? And what would the abolition of the salary and daily wage and the uniform application of the hourly wage mean for all, without exception, cases? And if, in the end, its (excellent) application turns out to be nothing short of terrifying, would it simply solve all the relevant problems?

Employees and Craftsmen, Salary and Daily Wage

With the passage of time, we notice that the regulations of the law increasingly equate Employees and Craftsmen.

In this direction we find the recent labor law (:law 4808/2021), by virtue of which (art. 64 §1), previous differences between employees and craftsmen were equalized, as all discrimination “…regarding the deadline” was already abolished notice and the termination of dependent labor contracts”.

The most important thing: in a previous article we established, with certainty, that despite the usual practice, it is clearly permissible (according to the law and jurisprudence) to pay a salary to the craftsmen and, respectively, a daily wage to the employees.

Minimums (salary and daily wage)

The very recent Decree No. 31986/2023 of the Minister of Labor and Social Affairs (: Official Gazette B’ 2023/28.3.2023 ) provides for the determination of “…the legal minimum wage and the legal minimum daily wage, for full-time employment, for employees and the craftsmen of the whole country…, as follows:

780. a) For employees, the minimum salary is set at seven hundred and eighty euros (€ 00).
781. b) For craftsmen, the minimum daily wage is set at thirty-four euros and eighty-four cents (€34.84).

Salary vs daily wage: the considerations

Salaried employees and salaried craftsmen

As we have already pointed out, employees and craftsmen can be paid a salary or a daily wage – whatever they agree with their employer. And the above Ministerial Decision (no. 31986/2023) links, unfortunately-according to established practice, the minimum wage with employees and the minimum daily wage with craftsmen.

The calculation – the amount of the consideration

Based on the above data, an employee (employee or craftsman) is likely to be paid a salary – in which case they will receive €780. However, it is possible (the same employee or their colleague performing the same work) to be paid a daily wage. In this case – in the system, e.g., of six-day employment – they will receive €871 (times 25 daily wages x €34.84) or, as the case may be, €905.84 (times 26 days’ wages x €34.84).

It is easy to see that the specific differences lack not only legal background but also seriousness. All the more so as it is possible for them to concern the same worker (: employee/craftsman) or their colleague who performs the exact same work and is paid in a different way. (It should be noted, of course, that equal treatment is, logically, subsequent to considerations) …

The method of calculating severance pay

Furthermore, the legislator, in order to calculate the employee’s severance pay (: art. 64 §3 law 4808/2021- art. 327 3§3 Presidential Decree no. 80/2022), considers that their (supposed) monthly salary equal to 22 days’ wages (when not already paid a monthly salary). That is €766.84 (:22 x €34.84). It therefore falls short of the minimum wage – under any method of calculating it.

If one looks for logic in all of the above, we could safely assume the unfortunate outcome of their efforts…

The hourly wage: an unprecedented concept?

In most regulations we find the concept of hourly wage. Indicative in overtime, legal & illegal overtime employment as well as part-time employment.

Overwork

overtime is paid at the paid HOURLY WAGE increased by 20%.

As we mentioned in the past, (statutory) overtime (: art. 58 law 4808/2021) is considered the time of employment that exceeds the contractual hours, but not the maximum legal hours. In companies with a five-day working system from the 41^st to the 45^th hour and in companies with a six-day working system from the 41^st to the 48^th hour.

Overtime

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

Statutory Overtime

Overtime (legal) workers receive as remuneration for each hour of overtime work an amount equal to the HOURLY WAGE paid, increased by 40%.

It is noted that legal overtime is that which (after the necessary notifications) is provided for work beyond 45 hours per week in five-day businesses and 48 in six-day businesses. It cannot, however, exceed three (3) hours per day and one hundred and fifty (150) hours per year.

Illegal Overtime

Overtime work may take place without complying with the legal requirements or in excess of the maximum limits. The illegally (overtime) employed employee is entitled to compensation equal to the paid HOURLY WAGE increased by 120%.

Overtime Leave

Under certain conditions, it is possible to grant an overtime work permit to companies, in addition to the maximum permitted overtime work limits. Such (after permission from the competent body of the Ministry of Labor and Social Affairs) overtime employment is paid with an amount equal to the paid HOURLY WAGE increased by 60%.

Part time job

Based on the HOURLY WAGE of a comparable employee, the remuneration of the part-time employee is calculated (Art. 38 §9 Law 1892/1990). And, in the event of exceeding their agreed hours, they are entitled to a corresponding consideration with an additional twelve percent (12%) on the agreed consideration for each additional HOUR of work they will provide (art. 38 §11 law 1892/1990).

It is reminded that part-time employment of an employee can be agreed during the drawing up of the employment contract (or during it) between the employer and the employee. This agreement must be enclosed in a formal document and may refer to daily or weekly or fortnightly or monthly work of shorter duration than normal, for a definite or indefinite period (: art. 38 §1, law 1892/1990).

Hourly wages and labor rights

The replacement of the hourly wage and the daily wage by the hourly wage and the universal application of the latter would be likely to raise reasonable concerns among the well-meaning and vehement objections from the usual and all-out naysayers. Both logically expected. But this happens in every change. In this particular case, however, it would be advisable to have (in parallel with the establishment of a generalized and only application of the hourly wage) a generally worded “reassuring” provision. A provision with the content of, in any case, ensuring – and not worsening – the contractual and legal rights of employees, regarding (also) their working time limits & remuneration.

The maintenance (to this day) of matching the salary with the employees and the daily wage with the craftsmen, is (already/also) legally consequential. The maintenance (to this day) of the differentiation of the way employees are paid by salary or daily wage creates legal and practical inconsistencies. It obviously lacks logic and, ultimately, seriousness. It only creates problems for businesses and serious injustices for employees. And if one considers the current necessity of calculating (some) hourly wages for exceeding daily hours and also for part-time work, one will reasonably wonder: Will the generalization of the method of remuneration of employees on the basis of hourly wages solve all, without exception, the related problems?

Only one answer is appropriate: obviously.–

Stavros Koumentakis
Managing Partner

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

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