Koumentakis

Tag: εργασιακά

  • Salary and Daily Wage: Three years and not only…

    Salary and Daily Wage: Three years and not only…

    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.

  • Speaking of hourly wages…

    Speaking of hourly wages…

    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:

    1. a) For employees, the minimum salary is set at seven hundred and eighty euros (€ 00).
    2. 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 41st to the 45th hour and in companies with a six-day working system from the 41st to the 48th 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.

  • Employees and Craftsmen, Salary and Daily Wage

    Employees and Craftsmen, Salary and Daily Wage

    An old Labor Law distinction is that between employees and workers/craftsmen. A distinction that often resulted in significantly more favorable arrangements for the former. The legislative provisions, however, equalize, more and more over time, the specific categories. The recent labor law (:n. 4808/2021), which abolished the most important differentiation in force (:the amount of severance pay due), is another step to this direction. However, the specific distinction (: employees and craftsmen) still creates problems. And so do the regulations of the relevant Ministry. Is there an inseparable link between the salary and the employee and between the daily wage and the craftsman? Can we agree that they will be compensated the other way around?

     

    Employees and craftsmen: the criteria of distinction

    The substantive criterion

    The criterion for distinguishing between employees and craftsmen is the type of work provided. Physical labor is intertwined with the craftsman; intellectual labor with the employee.

    According to the law: “An employee of the private sector, within the meaning of this Law, is considered to be any person who is professionally occupied in exchange for remuneration, regardless of the method of payment, by a private shop, office or in general a business or any work and is one who provides work exclusively or mainly of a non-physical nature. They are not considered employees of the private sector those who are providing work in production directly as an Industrial, Craftsman, Mining or Agricultural worker or as an assistant or apprentice of the categories in above or who provide servile service in general” (art. 1 legislative decree 2655/53 “on amendment… of law 2112/1920 on termination of the employment contract”).

    The Supreme Court, specifying the specific-substantive criterion, consistently accepts: “…The work of a worker is considered to be that who provides exclusively or mainly physical labor, while, when the work is a product of mental labor, then and if the worker has the training and experience required for it and performing it responsibly, is considered the work of an employee and those who exercise it belong to the category of employees of the private sector.

    Therefore, in order to qualify a person as an employee, specialized experience, theoretical education and especially the development of initiative and taking responsibility during the execution of the work are required, because only when these elements are present during the execution of the work, the mental element outweighs the physical (Plenary Session of the Supreme Court 295/1969, Supreme Court 661/2019, Supreme Court 1391/2018, Supreme Court 1114/2017, Supreme Court 1405/2014).” (ind.: 355/2021 Supreme Court).

    In the above context of determining the content of the substantive criterion, the following have been ruled as employees (incl.): the supervisor of workers in a textile factory (257/1990 Supreme Court), the maintenance engineer (743/1993 Supreme Court), the foreman in a soap factory who is charged with the responsibility of production (591/1953 Supreme Court), the hairdresser (1437/2004 Supreme Court). On the contrary, they were found to be workers: the usher (132/1990 Supreme Court), the cleaner (464/2014 Supreme Court), the factory guard (932/1983 Supreme Court), the cutter of men’s clothes who uses technical means (1461/1987 Supreme Court).

    The formal criterion

    In some cases, however, there is no point in checking, under the prism of the substantive criterion, for the characterization of an employed person as an employee or craftsman. This happens when the law itself assigns to some categories of workers the status of an employee – subject to the presence of specific formal conditions (: formal qualifications).

    The legislator has characterized, e.g., as employees: junior health workers (legislative decree 199/1936), graduates of the School of Tourism Professions (law 567/1937), electricians, welders, radio technicians and shore heaters (law 3763/1957) etc.

    It is true that some of the above-mentioned cases of workers could possibly be characterized as craftsmen, using the essential, only, criterion – without the relevant legislative provision.

     

     The irrelevance of the payment method

    The distinction between employees and craftsmen is particularly difficult in some cases. Accordingly, so is the characterization of an employee as an employee or craftsman. One thing is certain: the method of remuneration of the employee cannot be a criterion for the characterization.

    The usual method of remuneration for craftsmen is the daily wage. On the other hand, common the method of remuneration for employees is the salary. However, despite the common practice, it is clearly permissible to pay a salary to the craftsmen and correspondingly, a daily wage to the employees.

    This is clearly evident from the above-mentioned provision (: article 1, legislative decree 2655/53), where an employee of the private sector is defined as “…any person whose main occupation is engaged for remuneration regardless of the method of payment…”.

    The exact same position is adopted by jurisprudence. Specifically, it is accepted that: “…the distinction of the employed person as a worker or an employee depends on the type of work provided and not on the content of the contract characterizing them or the method of their remuneration.” (ent.: 9671/1999 Court of Appeal of Athens, 839/1987 Supreme Court).

     

    Employees and craftsmen: the importance of the distinction

    They regime previously in force

    Before the entry into force of Law 4808/2021, the distinction between employees and craftsmen continued to be of particular importance (almost exclusively) in the case of termination of an indefinite-term employment contract.

    The first distinction between the two categories concerned the condition of warning before termination. While such a condition was (and is) provided for employees, there was no corresponding provision for craftsmen.

    More important, however, was the second and dubious constitutional differentiation, which related to the amount of severance pay. The severance pay of employees was significantly higher than that of craftsmen.

    The current regime

    As we already pointed out, in a previous article, the above differences were equated with Law 4808/2021.

    Specifically, the provision of art. 64 Law 4808/2021 is titled: “Abolition of discrimination between employees and craftsmen” – and its provisions have recently (from 01.01.2022) entered into force (Article 80 §2 Law 4808/2021). Of course, the provisions of this article are limited, in the end, to the abolition of discrimination in terms of the termination of the employment contract of indefinite duration. Based on the specific provision (§1), any distinction “…with regard to the notice period and the termination of labor contracts” is abolished.

    And further: “Law 2112/1920…, Law 3198/1955… and any other provision, which governs the termination of the contract or employment relationship of employees, are also applied to craftsmen. For the implementation of this, twenty-two (22) daily wages are considered as the monthly salary of the craftsman, unless they are already paid a monthly salary” (§§ 2 & 3).

     

    The question of the remuneration of the craftsmen

    Minimums (salary and daily wage)

    The choice of 22 daily wages by the legislator raises some questions (art. 64§3 Law 4808/2021). The connection of the craftsman’s monthly salary with the sum of 22 daily wages has no previous legislative basis.

    However, it could be argued that this choice of the legislator reflects the impasse in the way of determining the remuneration of the craftsman.

    Specifically, the very recent Decree No. 107675/2021 of the Minister of Labor and Social Affairs (Government Gazette B’ 6263/27.12.2021) provides for the determination “…in accordance with the provisions of Article 103 of Law 4172/2013 (A’ 167), of the legal minimum wage and the legal minimum daily wage, for full-time employment, for employees and craftsmen throughout the country, without age discrimination, as follows:

    a) For employees, the minimum salary is set at six hundred and sixty-three euros (€663.00).

    b) For craftsmen, the minimum daily wage is set at twenty-nine euros and sixty-two minutes (€29.62)”.

     

    The concerns

    The method of payment (:salary vs daily wage)

    First of all, the very letter of the above Ministerial Order is troubling. As we have already pointed out, the way employees and craftsmen are paid is not a criterion for distinguishing them. Both employees and craftsmen may be paid in whichever way they agree with their employer.

    However, the MO unfortunately links the minimum wage to employees and the minimum daily wage to craftsmen.

    How compensation is calculated

    Furthermore, as we mentioned above, the legislator in article 64 §3 of Law 4808/2021, in order to calculate the craftman’s severance pay, considers that their assumed monthly salary is equal to 22 days’ wages. That is: (22 X €29.62:) €651.64. It therefore falls short compared to the employee’s minimum wage.

     

    The distinction of workers in the two major categories (: employees and craftsmen) is a given. Indeed, the specific distinction exists at a theoretical level and will remain so as will the relevant legislative regulation mentioned in the introduction. However, the intention of the legislator for the equalization of the two separate categories is already apparent (see severance compensation equation).

    The way we see it, however, the connection of employees with a monthly salary and workers with a daily salary is a given, albeit incorrect. Even the relevant Ministry continues, completely missing the mark, to adopt this specific, without any legs to stand on, position and matching; we look forward to its amendment.

    Lastly, the complete elimination, in time, of the distinction between employees and workers is a given (and is expected).

    However, until the complete elimination of this discrimination, any of its effects will become less and less visible.

    However, of course we are entitled, until then, to agree on the payment of wages to craftsmen (as well as daily wages to employees).-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (February, 6th, 2022).

     

    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.

  • Equal Treatment of Employees & Prohibition of Discrimination

    Equal Treatment of Employees & Prohibition of Discrimination

    Employees usually have different qualifications. They have, also as a rule, different tasks assigned to them. Sometimes, however, their qualifications and duties coincide. In these cases, at least in theory, one of the fundamental principles of Labor Law is activated: the principle of equal treatment. Under this principle, unequal treatment of comparable employees by the employer is not allowed. It is often identified, even in legislative texts, with the principle of non-discrimination (on which our previous article).

    What is the content of the principle of equal treatment? What has that got to do with non-discrimination? And what, after all, is the (relevant) situation in our country?

     

    The content of the principle of equal treatment

    The content of the principle of equal treatment in the context of the employment contract is determined by the case law (ind.: Supreme Court 1031/2012): Based on this principle, the employer is not allowed to treat unequally employees of the same holding. As long as they have the same qualifications but also as long as they provide the same services – under the same conditions.

    A basic condition for the application of this principle of equal treatment is that the benefit provided by the employer is not required by law. That is, it must be provided voluntarily, in other words, it must be granted on the employer’s own initiative (ind.: 536/2018 Supreme Court, 673/2014 Supreme Court, 808/2012 Supreme Court).

    Based on the above principle, then, the employer should extend to all employees, who provide the same work under the same conditions and having the same qualifications, any salary benefits (eg wage development, benefits-such as extra allowances for extreme working conditions, shifts). Also, any other service benefits (eg promotions). And all this, regardless of whether it is unilateral voluntary benefits of the employer or benefits that they have contractually undertaken towards certain employees (int.: 1554/2004 Supreme Court).

    On the other hand, this principle is not violated when those who are excluded from certain benefits belong to a different category of employees and provide different work (248/2008 Supreme Court).

    Finally, it should be noted that a specific deviation from this principle is possible when it is adequately justified by a specific and serious, objective, reason (inter: 673/2014 Supreme Court, 1031/2012 Supreme Court, 1144/2012 Supreme Court).

     

    Equal treatment in practice

    It is true that there is no other Authority more competent than the Ombudsman, to express an opinion on Equal Treatment, its implementation and its violations.

    The most recent, relevant, Report is the one that refers to 2020: a year with peculiarities and difficulties – because of the pandemic and the measures that accompanied it. According to the information note of the special report on equal treatment in 2020: “As early as the beginning of 2020, the disproportionately severe consequences of the pandemic, which threaten socially vulnerable groups or groups with special characteristics, became apparent.”

    The persons for whom special planning was required by the State were (among others): “Employees belonging to vulnerable groups, employees / parents, employees with children or a spouse with a disability…”

    The findings are extremely interesting, especially in the field of work, as: “… a significant percentage of the reports received by the Ombudsman are directly related to the effects of the pandemic and the measures taken to deal with it (: special leave, special purpose leave, increase in incidents of domestic violence…). In labor disputes, the new element relates to complaints and concerns abusive dismissals or changes that have occurred in the detriment of employees who have received special leave.

    Complaints of discrimination between men and women concern: “dismissals of pregnant women or protected mothers, difficulties in professional development or in occupying or retaining positions of responsibility of working mothers or women, as well as changes to their detriment after returning from maternity leave. Also: “unfavorable treatment of mothers after returning from a special purpose leave or the abusive suspension of pregnant women”. Finally, “difficulties in obtaining maternity leave or benefits are identified, in connection with the difficulties of easy access to services during the imposition of restrictive measures”.

    Based on the data of the special report of the year 2020, it appears that, during the specific year, 951 new reports were submitted to the Ombudsman. The majority of them concern cases of discrimination based on gender (51%). 73% are directed against public bodies and services and 27%, only, against individuals. However, the reports of gender discrimination in the private sector account for an even higher proportion: 69%. In more detail:

    2021, however, contributed an extremely important event: the passing of the recent labor law (: 4808/21). The relevant legislative improvements are expected to have a positive effect, as assessed, in “mitigating and streamlining the large and often unjustified differences that exist between categories of public and private sector employees, in matters of maternity leave, upbringing or other family benefits”.

    The data for the current year are expected to prove (?) the expectations of the Ombudsman. The time is near…

     

    Legislative basis of the principle of equal treatment

    The principle of equal treatment could not have a stronger legal basis:

    According to the Treaty on the Functioning of the European Union (art. 157): ” Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”.

    According to the Greek Constitution: “Greeks are equal before the law” (art. 4 §1 Constitution) and “All employees, regardless of gender or other differences, have the right to equal pay for work provided of equal value” (art. 22 §1 in fine Constitution).

    According to case law, the principle of equal treatment derives (also) from the provision of article 288 of the Civil Code. According to the latter, “the debtor has an obligation to fulfill the benefit as required by good faith, taking into account the commercial practices “.

     

    Equal treatment and non-discrimination: identification (?) And / or confusion (?)

    The principle of non-discrimination is only a subset of the principle of equal treatment (ECJ: C-441/14).

    The two principles are partially identical. Regarding the introduction, in particular, of restrictions on the exercise of the managerial right: the treatment of employees in a comparable position must be uniform. It is this obligation that results in the restriction of business freedom itself.

    The EU legislator seems to almost identify the same principles. Directive 2000/78 (on the scope of which we referred to in our above-mentioned article) states that (art. 2 §1): “The principle of equal treatment means the absence of direct or indirect discrimination for one of the reasons set out in 1” (ie due to religion or beliefs, special needs, age or sexual orientation).

    The affinity of these specific principles, but also, in particular, the confusion as to their identification, is exacerbated by the legislative environment itself: Laws incorporating Anti-Discrimination Directives into national law (which we also analyzed in our above article) attribute to the Ombudsman the special responsibility of combating discrimination and the application of equal treatment (: no. 14 Law 4443/2016, 25 Law 3896/2010). The competence also to issue special reports, regarding its action in both the private and public sector and the labor relations in the specific sectors (already from the year 2005-and the entry into force of law 3304/2005, as replaced by Law 4443/2016).

     

    The differences of the two principles

    It is rightly argued, in our opinion, that the two principles, although related, differ in terms of mission, operation and conditions of their application (inter: Zerdelis, Labor Law, Individual Labor Relations, 2019, p. 307).

    The basis and targeting of the two principles

    The principle of equal treatment derives, as already mentioned, from the constitutional principle of equality. It therefore aims to achieve the principle of “distributive justice” in the workplace. For this reason, moreover, it is usually applied in the field of voluntary benefits provided by the employer (446/2019 Supreme Court).

    On the contrary, the principle of non-discrimination derives, in principle, from the (also constitutionally provided) recognition of human dignity (: art. 2 §1 Constitution). It is intended, therefore, primarily to protect an employee from being treated unfairly because of a particular feature.

    The scope of the two principles

    The principle of equal treatment seems to have a limited scope. In particular, this principle can be applied only to active employment relationships. That is, it is not possible to apply it during the recruitment procedure, before it or at the time after the termination of the employment contract (inter: 853/2020 Court of Appeal of Thessaloniki, 1080/2011 Supreme Court).

    The principle of non-discrimination is characterized, on the contrary, by the time span of its application. It is applied before the conclusion of the employment contract, during its force and during its termination. The recent labor law is a tangible, relevant example (: Law 4808/2021). The prohibited grounds for termination of the employment contract include cases where the termination “… is due to discrimination for one of the reasons provided in Article 1 of Law 4443/2016… as a countermeasure to a complaint or request for legal protection, to ensure compliance with the principle of equal treatment, in accordance with article 10 of law 4443/2016”.

    The scope of the principle of non-discrimination is also found in an additional point. The principle of equal treatment presupposes benefits for some employees, from which the employer excludes unjustifiably comparable employees. On the contrary, the prohibition of discrimination concerns every individualized and individual employment relationship, without requiring a decision of the employer for collective, for example, benefit.

    The possibility of limiting the two principles

    The principle of equal treatment and that of non-discrimination also differ regarding the possibility of their restriction.

    The principle of equal treatment may be restricted by the employer themselves if there is an objective reason. In particular, the reasons which the employer may rely on to justify the difference in treatment do not constitute numerus clausus. On the contrary, the purpose of each benefit which they provide may justify any unequal treatment (eg financial benefits in order to retain certain categories of workers, who, according to the criteria of the labor market, are not easily available).

    On the contrary, exceptions to the application of the prohibition of discrimination are explicitly (and restrictively) provided by law. Such a case of non-prohibited discrimination is the different treatment on the basis of a protected criterion, which is linked to some essential and crucial professional condition [e.g. for the distribution of the role of a young man of color, of a racial origin and age in a play are, decisively, according to the above, a professional requirement (art. 4 of Directive 2000/78 and art. 4 of law 4443/2016)]

     

    The principle of equal treatment of employees is enshrined, as extremely important, by law of higher order in the hierarchy of legal norms. Its affinity with the prohibition of discrimination is clear. To such an extent, in fact, that even in important legislative texts it seems that their meanings are identical or, as the case may be, confused. There is no doubt, however, that the principle of non-discrimination is only a special manifestation of the principle of equal treatment.

    The competent Body (: Ombudsman) records, manages and groups the relevant complaints. Let us not forget, however: There cannot be 951 (only) cases of violation of the principle of equal treatment in our country – as many, that is, as are the relevant reports to the Ombudsman.

    The recent labor law has further shielded the principle of equal treatment.

    And, although the omens are not positive – at least in the short term, let us hope that the incidents of its violation (and not only the relevant complaints) continue to decrease. For the benefit not only of the employees but also, of course, of the smooth and efficient operation of the businesses.

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 9th, 2022).

     

    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.

  • Executives: A Ministerial Order full of problems

    Executives: A Ministerial Order full of problems

    Executives are particularly important category of employees for businesses (on many levels). These are the employees who are assigned responsibilities that are specific to the powers of the business. They are the ones who hold “…the position of supervision or management, or the position of trust” (: Article 2 a’ of the International Convention of the Washington International Conference, ratified by Article 1 of Law 2269/1920).

    We have already approached, in our previous article, the criteria for identifying an employee as an executive. Also, the legal consequences that this determination brings to the employment relationship. Finally, we referred to the formulation by case law of the specific criteria as a relevant legislative regulation was missing at that time.

     

    Executive Officer: the criteria for court decisions

    The position of the case law as to the criteria for the designating an employee as an executive is firm. The executive is the one who, “… as a result of their exceptional qualifications (specialization, technical or commercial, education and extensive experience) or the special trust in them by the employer – the owner of the business, is assigned the duties of general executive of the whole business or of an important sector of the business and they not only decisively influence the direction and development of the business, but also are obviously distinguished from other employees by exercising the rights and powers of the employer, such as recruitment and dismissals of staff, they have a high degree of initiative and independence, even if they are obliged to comply with the provisions of laws, plans and general guidelines of the employer, sometimes bears criminal responsibilities for compliance with the provisions, which have been established in the interest of employees and is usually paid a salary much higher than the law minimum limits and the salary paid to other employees”(ind .: 1065/2020 Supreme Court, Supreme Court 249/2019, Supreme Court 1467/2012, Supreme Court 74/2011, Court of Appeal of Piraeus 480/2015).

    The specific criteria are already differentiated. At least some of them.

     

    The Ministerial Order for the Designation of the Executive

    The relevant Order No. 90972 / 19.11.2021 of the Minister of Labor and Social Affairs was finally published (: Government Gazette B ‘5393 / 19.11.21). The latter attempts (: Part B’) to list the criteria on the basis of which it is ascertained whether the employee has one of the qualities mentioned in Article 2 of the International Convention of the Washington International Conference.

    According to this MO:

    “Employees who hold a position of supervision or management or of a confidential nature, are presumed to be the employees who, according to an explicit term or terms that are reflected in their individual employment contract and are declared to the ERGANI information system:

    Α. a. Exercise management rights over other employees of the business or

    1. represent and bind the business to third parties, or
    2. are members of the board of directors or corresponding governing body of the employer or
    3. are shareholders or partners holding more than 0.5% of the employer’s voting rights; or
    4. are in charge of Directorates, Units or Departments or of other independent staff of the employer enterprise which are specified in its organization chart, provided that the employer entrusts them with the supervision of part of its continuous, intermittent or extraordinary operation, but in any case, these employees are remunerated in accordance with earnings not less than six times the statutory minimum wage, or
    5. are paid with agreed monthly salaries that are not less than eight times the minimum statutory salary “.

    It is true that these provisions create multiple issues and raise serious concerns.

     

    The Failures of the Ministerial Order

    As to the (necessary?) Content of the employment contract

    As explicitly stated in the specific MO, the conditions which must be met for the designation of an employee as an executive should be reflected in an explicit term of the relevant employment contract.

    These cases include employees who represent and bind the business. Also, those who have the status of a member of the Board or of another administrative body. Or those who have a shareholding or partnership in the employer.

    However, these cases – if true – are not reasonably expected, nor is it probable, to be recorded in individual employment contracts that are often for an indefinite period. It is known that the powers of representation and commitment of the business to third parties are provided by the respective Board of Directors (or any corresponding body), with a relevant decision, which is recorded in the minutes for a limited time. In any case, the maximum duration of the commitment powers and representation provided to the current executive extends, at the latest, to the end of the term of office of the administrative body that assigns them.

    Therefore, a condition in the individual employment contract regarding the way the business is bound and represented to third parties is not legally correct (and not even tolerable). And, much more, such a term (even as an assumption) cannot bind each subsequent governing body, which is entitled and must decide, again, on the delegation of the relevant powers.

    Accordingly, it is not reasonable for the employment contract to contain as a condition the employee’s status as a member of the Board of Directors or another management body, as well as their shareholder or partnership status. These are, after all, traits that may be differentiated-even lost in a short period of time.

    In any case, the specific powers derive and are evidenced by documents provided by business law (eg minutes of formation of the Board of Directors in a body, shareholders’ book, etc.).

    Based on the above data, it is necessary for the presumption for the above-mentioned conditions (incl. Right of representation, board member, shareholder) to derive not only from the terms of the individual employment contract but also from any other document, as provided by the provisions of business law.

     

    Regarding the exercise of the executive right

    The employees who ” … exercise the managerial right over the other employees of the business.” are presumed to be executives”, according to the above-mentioned MO.

    However, this wording raises (legal, among others) concerns. An executive does not exercise the managerial right – that is, all the powers deriving from it. If this were to happen, it would be a substitute for the employer as a whole. The executive, on the other hand, exercises duties and powers that are specific to the business entity either as the latter or (more importantly in this case) as the employer.

    Therefore, it is deemed necessary for this presumption to (also) be related to the employees who exercise part (and whole) of the managerial right.

     

    Regarding the wage conditions

    Approaching the concept of executives in the context of the above article, we mentioned that, clearly, the salary of the executive must be very high. We stressed, however, that “there are no (and could not be – of course) absolute approaches. At the same time, we noted that “Particularly high salaries do not always lead, in an inevitable consequence, to an employee being classified as an executive. Especially when those high salaries are associated with the employee’s long experience and several years of prior professional experience (Supreme Court 1148/2017, Supreme Court 747/2007) “.

    The new MO came to change, in a problematic way, the above assumptions. The salary criteria that it introduces, raise significant concerns. This is for two reasons:

    (a) An executive is considered, according to the above MO, a senior employee if paid “with agreed monthly salaries that are not less than six times the minimum statutory salary”. What if they are paid 5.9 times (only) more than the minimum wage? What if, further, an executive is paid 7.9 times (only) more than the minimum wage? Should they not / can they not be considered executives? The lack of logic is obvious in case we give a negative answer to these questions.

    (b) And further: one reasonably wonders whether, after the ten-year financial crisis and the current health crisis, it is theoretically possible – for the vast majority of businesses, to provide levels of remuneration of executives such as those mentioned in this MO.

    In the context of the above data, this definition already poses a serious problem to the majority of businesses. This is because absolutely few, in number, employees exceed the limits set by the MO- even though they would be accepted as Executives according to the case law to date.

    Therefore, it is considered necessary for the employers to be able to (counter) prove that -especially- the persons of case B ‘(: heads of Directorates, Units or Departments, etc.) who are not paid with six times the minimum wage, are executives in the business, if they receive remuneration significantly higher than the average remuneration received by the other employees in the specific employer. And also, in the case that they have been assigned the responsibility of key sectors for the operation of the business (even when the sector in question, despite its importance, only has one employee).

    In addition, in any case, it must be accepted that to the minimum, according to the specific MO, monthly salaries are added and distributed – as moreover the relevant case law always accepts (inter: 1724/2008 Supreme Court, 1030/2005) the benefits in kind to the executives (inter: car, travel and maintenance expenses, residence, mobile phone, etc.).

     

    The Introduction of Presumptions

    As we have already pointed out, the MO introduces a series of presumptions. If one of the listed cases occurs, it is presumed that the employee is an executive.

    However, the MO does not clearly state whether this is a rebuttable or not presumption. When the law does not discriminate, it is concluded that this is a rebuttable presumption. This means that although one of the divisively reported cases may occur, this presumption is not irrebuttable. It is possible, in this case, to counterprove that the employee does not fall into the category of employees holding a supervisory or managerial or confidential position.

    At the same time, however, this presumption can also be approached vice versa: Can an employee who does not meet the listed conditions be considered, in the end, an executive (?).

    In the event that we finally accept (and rightly so) that the presumptions of this MO are rebuttable, the criteria that, to date, have been formulated by the jurisprudence, will continue to be of particular importance.

     

    Entry into Force

    The entry into force of the above MO, in terms of its part concerning the introduction of a presumption for the characterization of an employee as an executive “… begins after the deadline for submission of the annual E4 Staff List for the year 2021”.

     

    The identification of some employees as Executives is an issue that has occupied, for many years, jurisprudence, business, employees and, ultimately, the economy. The criteria were set by court decisions. But there were no absolutely safe criteria. Each case was considered separately. The court decisions took into account the overall picture formed by the employee’s job and the tasks assigned to them. Therefore: there was no legal certainty.

    The above MO attempts to fill a particularly important gap in terms of establishing safe criteria regarding the characterization of an employee as an executive. Some move, inefficiently, in the right direction. Others are just wrong. And, finally, others are very problematic. It is therefore important that the necessary improvements are introduced.

    Such is important for another reason as well: for the Ministerial Order to become a useful and safe tool for assisting both businesses and employees.

    We all need it.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 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.

  • Prohibition of discrimination at work

    Prohibition of discrimination at work

    The workplace is a pocket version of our society. It is therefore also a place of discrimination. Discrimination, in fact, seems to find more fertile ground in the workplace. It is true that important steps have been taken towards the elimination of stereotypes and social prejudices. The phenomena, however, of unfavorable treatment of employees due to their physical or acquired characteristics have not disappeared; they continue to be identified throughout the employment relationship: from hiring to termination.

    The legislator’s goal is to eliminate discrimination in the workplace. Attempts are being made in this context (at international, EU and national level) to address any discriminatory (and ultimately unfavorable) treatment through the introduction of prohibitive rules.

     

    The prohibition of discrimination in EU law

    Prohibition of discrimination has been a goal of the EU legislature (among others) for decades. Relevant regulations can be found, for example, in the Treaty on European Union (Article 19 §1) and in the Charter of Fundamental Rights (Article 21).

    Of particular importance are the Anti-Discrimination Directives: Directives 2000/43 and 2000/78 aim to combat discrimination based on racial or ethnic origin (the first) and to combat discrimination based on religion or belief, special needs, age or sexual orientation (: the second). Finally, Directive 2006/54 aims to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of work and employment.

     

    The prohibition of discrimination in national law

    The prohibition of discrimination is adopted and imposed by the national legislator through the transposition into national law of the above Directives:

    The transposition of Directives 2000/43 and 2000/78

    The transposition of the specific Directives was carried out with law 3304/2005. Its purpose was to establish a general regulatory framework for combating discrimination based on racial or ethnic origin, religion or other belief, disability, age or sexual orientation in employment and work, in order to ensure that the principle of equal treatment is applied (Article 1).

    Law 3304/2015 was limited to repeating the reasons for discrimination, as they were included in the aforementioned Directives. It was subsequently replaced by the current Law 4443/2016, which aims to create a single, clear and legally sound framework for the application of the principle of equal treatment. This law adopted, moving in this direction, the prohibition of the discriminations mentioned immediately above, but chose to add others as well: (a) color, (b) ethnic origin, (c) descent, (d) chronic illness, (e) marital status, (f) gender identity, (g) gender characteristics. It replaced the term “gender orientation” as anachronistic (see Explanatory Memorandum) with the term “sexual orientation”.

    This law added to the concepts of discrimination (in addition to the concepts of direct and indirect discrimination – as will be discussed below) the concepts of “discrimination on the basis of relationship”, “discrimination on the basis of mental characteristics”, “multiple discrimination” and “denial of reasonable adjustments”.

    Part of the legal theory maintained a critical attitude towards the specific expansion of the reasons that are forbidden to be a reason for discrimination. Their main argument was the possibility of potential interpretive issues based on the overlap of certain (pre-existing and added) personal traits. Also, the vagueness of the wording in relation to some of them. The concern (reasonably) recorded is that the widening of grounds for discrimination may lead to the excessive restriction of contractual and business freedom. And this without necessarily providing a higher level of protection.

    The transposition of Directive 2006/54

    Directive 2006/54 was transposed with law 3896/2010 (which replaced the pre-existing law 3488/2006). The purpose of the law is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of work and employment, with regard to (Article 1):

    (a) access to employment (including vocational development), and vocational education (including vocational training);

    (b) working terms and conditions, including pay; and

    (c) occupational social security systems.

     

    Critical concepts

    In order to understand the prohibition of discrimination sought through the Directives and consequently the regulations of the national legal order, it is not enough to mention the features that are not allowed to become grounds for discrimination. Further, it is much needed to approach some critical concepts, which are mentioned in national legislation (as well).

    Direct discrimination

    Direct discrimination is considered to be the least favorable treatment of a person because of a personal trait, which is forbidden to be a reason for discrimination. A measure of comparison is the treatment that another person receives, has received or would receive in a similar situation (article 2 of laws 4443/2016 and 3896/2010).

    Indirect discrimination

    The provision of effective legal protection against discrimination, however, and the avoidance of circumvention practices, in addition, require the prohibition of indirect discrimination (as well).

    Indirect discrimination exists when a seemingly neutral provision, criterion or practice may cause a person who bears one of the protected personal characteristics to be treated less favorably than others (Article 2 of Laws 4443/2016 and 3896/2010).

    In the case of indirect discrimination, however, the fact that disadvantageous treatment is not due to the protected trait is to be proved. This occurs when: (a) the provision, criterion or practice in question is objectively justified by a legitimate goal and (b) the means to achieve that objective are appropriate and necessary.

    Harassment

    The concept of discrimination also includes the case of harassment. Harassment occurs when unwanted behavior is associated with one of the protected traits, with the intent or effect of violating the dignity of that person and creating a threatening, hostile, degrading, humiliating or aggressive environment.

    The concept of harassment is of special importance and needs to be effectively addressed in the context of the new labor law (: 4808/2021), as we analyzed extensively in our relevant article (on the prohibition of violence and harassment).

     

    Grounds for discrimination

    The prohibition of discrimination has not become (and rightly so) absolute. On the contrary, according to Law 4443/2016, specific objective reasons are recognized which, if any, justify certain discriminations. The legal theory, however, argues that the non-absolute nature of the prohibition of discrimination must be accepted also in the case of Law 3896/2010.

    The provision of a. Law 4443/2016 provides for exceptions (general and specific) that render conditional the protection against discrimination.

    In particular, the general exception may apply to any protected personal trait. In this context, any discrimination is not considered prohibited, in case the different treatment is connected with a substantial and decisive professional condition and if the relevant purpose is legitimate and the condition is proportional. For example, the distribution of a role to an elderly person does not constitute a prohibited discrimination, if this is required for reasons of authenticity.

    Special exceptions include any discrimination based on religious or other beliefs or age. The exceptions regard discriminatory treatment that is an essential, legitimate and justified professional requirement.

     

    Procedural facilities

    Effectiveness in tackling discrimination is also sought through the procedural facilities provided to victims of discrimination. These facilities include:

    (a) Reversal of the burden of proof: In the event that a case of prohibited discrimination is brought before the courts (or other competent authorities), it is provided that it is sufficient that the plaintiff proves the facts (to provide indications) from which the existence of direct or indirect discrimination is presumed. This means that the defendant is required to prove that any discrimination, if it took place, is not based on a protected feature (Article 9 of Law 4443/2016 and 24 of Law 3896/2010).

    (b) The possibility of representing the alleged victim of discrimination: The alleged victim may be represented before the courts, administrative authorities and bodies by an organization whose purpose is – inter alia – to ensure compliance with the principle of equal treatment. Necessary condition is the consent of the victim (article 8 §3 law 4443/2016 and 22 §2 law 3896/2010).

     

    Discrimination, as mentioned in the introduction, is, unfortunately, a trait of our society.

    However, it significantly and with great intensity burdens the workplace.

    Several pieces of legislation (national and EU) aim to reduce discrimination and its consequences, with the aim of assisting (for a number of reasons) those affected.

    The protection, however, of those employees who have certain characteristics or who, for some reason, have a disadvantage compared to others, should not take place because of an obligation to comply with the law but it should rather be an act of individual and social responsibility. That is when the undoubted positive results will not only affect those with the special characteristics mentioned in the law, those who have a disadvantages and the workplace.

    They will primarily affect the businesses and society itself.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 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.

  • 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.

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