Tag: εργασιακά

Transfer of business & employment relationships

The entrepreneur has the right, in the context of their business freedom and action, to make the best decisions. Some of their decisions can significantly change the current state of their business. Others may even mean the change of the person who operates and exploits it. Sale, acquisitions, mergers, and secessions are (not infrequently) business decisions, which may mean what the law considers a “transfer of business”. However, when the “transfer of business” occurs, its legal consequences occur automatically. Some of them also concern the automatic transfer of employment relations to the new business. This possibility can be positive. But it can also be dangerous. Especially for the one who acquires them.

The regulatory framework of the institution of the transfer of business

EU law

The first attempt to regulate the issue of business transfer at the level of the European Union took place in 1977 with Directive 77/187. It was subsequently amended in 1998 by Directive 98/50. It was finally codified with the current 2001/23.

The central goal of the first Directive (: 77/187) was the protection of employees and the maintenance of jobs and working conditions. And all this in the case of the change in the structure of the business that is carried out through the transfer of businesses, facilities or parts of facilities to other entrepreneurs. Also, the convergence of the level of protection between the rights of the Member States, and eventually the regulation of a single market.

In its recent decisions, however, the ECJ, deviating from its till then established case law, accepts that the Directive also seeks to protect the interests of the person acquiring the business. It has characteristically considered that the Directive “… does not have the sole purpose of safeguarding, in the event of a business transfer, the interests of employees, but seeks to ensure a fair balance between their interests on the one hand and the interests of the transferee, on the other…” ECJ C-426/11, Alemo-Herron etc).

National law

The legislator’s concern for the protection of employees’ rights, in case of transfer of the business, was manifested early (and) at the level of national law. With the provisions, specifically, of articles 6 §1 L. 2112/1920 and 9 §1 Royal Decree 16 / 18.7.1920 which provide that the change in any way of the employer’s person does not affect the application of the provisions which have been adopted in favor of the employees for the termination of the employment contract. Article 8 of the Presidential Decree of 8.12.1928 stipulated that, in case of enlistment, when a change of the employer’s person occurs, the obligations established by this legislation for employers are automatically transferred to the new employer. Furthermore, according to article 6 par. 2 L. 3239/1955, the obligations and rights arising from a collective employment contract are automatically transferred to the successors of the employer bound by it.

In addition to the above fragmentary arrangements the P.D. 572/2002 was initially issued, in order for the Greek legislation to be harmonized with Directive 77/187. Then, in view of the newer Directive 98/50, the current P.D. no. 178/2002 was issued. (which abolished the previous PD 527/1988).

The conditions of the “business transfer”

Directive 2001/23 provides that: “… as transfer, within the meaning of this Directive, we consider the transfer of an entity that retains its identity, which is understood as a set of organized resources for the purpose of conducting economic activity, either main or secondary. (Article 1 §1 b).

In order for there to be a “transfer of business” and for the implementation of the specific Directive and the P.D. 178/2002, the following conditions must be met:

(a) The transferee shall be an “economic entity” prior to the transfer.

(b) For this economic entity a transfer should take place, which presupposes on the one hand the change of the control and on the other hand the preservation of its identity.

The designation of a unit as an economic entity

From article 1 §1.b. of the Directive and the established case law of the ECJ, it appears that there are two elements that characterize a unit as an economic entity. Specifically:

(a) it should be a set of organized resources, ie a set consisting of human resources, materials and intangibles; and

(b) the organized resources should pursue a certain economic purpose (even non-profit).

The ECJ, in addition, considers that the transfer should concern a, on a permanent basis, organized economic unit. That is, the activity of the latter should not be limited to the execution of a specific project only.

It should also be noted that the ECJ has ruled that the entity is not identified with the very activity it carries out. This assumption leads to the conclusion that if we have a transfer of activity it does not mean, without a doubt, that there is a transfer of the entity.

The concept of an economic entity, in addition to the business as a whole, also includes its individual parts. The division of the business, however, according to the ECJ, must have functional autonomy without, necessarily, being required to be complete (ECJ, C-664/17, Hellenic Shipyards).

The concept of the transfer of the entity

After the existence of the entity is confirmed, based on the two, above-mentioned criteria, the verification of the existence of its transfer follows. Specifically, it is verified:

(a) Whether the transferred entity retains its identity after the transfer.

(b) Whether there is a change in the entity. That is, if the person in charge of the operation of the business changes, without it mattering whether its ownership is transferred.

Maintaining the identity of the entity

According to the case law of the ECJ, the decision to maintain (or not) the identity of the entity depends on the overall assessment of the circumstances of each case. In the above context, the ECJ considers some elements as crucial for the establishment of identity retention.

These are:

(i) the transfer or not of tangible assets (equipment and facilities);

(ii) the transfer or not of intangible assets and their value (including: trade marks, patents, distinctive titles);

(iii) the hiring or not of a significant part of the workforce by the new entrepreneur,

(iv) the transfer or not of the customers,

(v) the degree of similarity of the activities carried out before and after the transfer; and

(vi) the duration of any interruptions of the specific (under v) activities.

The above elements do not need to be cumulative. Instead, they are taken as indications in the context of the specific circumstances that apply in each individual case.

It is crucial, however, to distinguish whether an entity that survives the change of its control is transferred. Conversely, if some assets of the business are simply sold without continuing to operate with each other, then a transfer is not considered to take place.

Change in the control of the economic entity

The transfer of a business presupposes the change of its operator. The operator of the economic entity means the natural or legal person who exploits it and operates it in its name and on its behalf (1553/2002 Supreme Court). The operator is also the employer of the employees of the business. When there is a change of the operator, the employer also changes.

Consequences of the transfer of business

The automatic transfer of the employment relationship

According to our national law (: article 4 §1 PD 178/2002), through the transfer of the economic entity-and from the time of its realization, all the (existing) rights and obligations that the transferor has from the employment contracts (or relationships), are transferred to the successor. This is a transfer by law of all the employment relationships (1478/2006 Supreme Court). From the time of the transfer, then, the successor employer automatically enters the position of the previous one (employer), in terms of rights and obligations arising from the employment relationships. At the same time, with the transfer of employment relations, the new employer is obliged to comply with the working conditions provided by collective labor agreements, arbitration decisions and labor regulations (: article 4 §2 PD 178/2002).

Protection against dismissals

The transfer of a business or establishment does not in itself constitute a reason for dismissal of employees (article 5 §1 PD 178/2002). This regulation introduces, therefore, an independent reason for the invalidity of the dismissal and complements the protection provided by the general provision (: article 4 §1 PD 178/2002).

It is argued, of course, that the provision of article 5 §1 PD 178/2002 does not prohibit dismissals, when they are a consequence of taking measures in order to rationalize and consolidate the business, in view of improving its sales prospects. In any case, however, the violation of article 5 §1 by the successor brings all the consequences of the invalid termination (obligation to pay arrears of wages, claim for actual employment, etc.).

The entrepreneur, of course, is the one to plan for the future of their business. However, their adoption of the best, according to them, relevant options is not, in principle, without consequences. Employment relations are important and should, in this context, be taken into account.

However, it is important to point out that the adoption of one or the other option does not only concern the entrepreneur who, possibly, transfers their business. It concerns, respectively, perhaps even more, the businessman that acquires the business.

The evaluation of the individual data, based on the assumptions mentioned above, is crucial in this context. It is absolutely necessary to reduce the “legal risk” and, consequently, to reduce the related business risk.

It is absolutely necessary, therefore, to dispassionately assess the (legal) data, in order to make the best possible (and of course more ensuring-for everyone) decisions.-

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (May 23, 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.

May 23, 2021
Coronavirus: Is the vaccination of employees mandatory?

AstraZeneca, Pfizer, Moderna, Johnson & Johnson, Sputnik, CoronaVac…: already dominate our lives, the media and our conversations. On the one hand their (few-fortunately) deniers and on the other all those who are eager to be vaccinated or have already been vaccinated. In the middle are those who are still worried. It seems normal that the debate on compulsory vaccination of employees has begun. And it is an intense and, at the same time, global debate. Let us attempt a brief, sober, approach to the subject.

The opening of the debate in our country

The debate on the imposition of the obligation of vaccination started, in fact-without “fanfare”, more than a year ago in our country (: Law 4675/2020, Government Gazette A 54 / 11.3.20-which provided for the possibility of imposition of the obligation to be vaccinated “to prevent the spread of disease”). Ignoring this fact, however, the prime minister brought it back it in a very recent interview. Among other things, he mentioned:

“… I think that the debate on the mandatory vaccination of certain categories of employees, especially those employed in the health sector, must be opened. “I do not want to have this discussion now, but I believe that in September-October … we should discuss very seriously and talk to the other parties about the mandatory vaccination of some categories, especially in the health sector”.

“… We have also set up a new bioethics committee… with scientists of the highest caliber … to give an opinion… on the ethical dimension of compulsory vaccination of categories of employees… especially of health professionals”

He clarified, however, to avoid misunderstandings, that: “… No employer can fire an employee in a private company… because the employee will choose not to get the vaccine”.

The legal framework in our country

The obligation to get vaccinated

The issue of mandatory vaccination against the Covid-19 infection is provided in Article 4 § 3 par. iii.b. Law 4675/2020: “b) In cases of occurrence of risk of transmission of communicable disease, which may have serious effects on public health, by decision of the Minister of Health, after the opinion of the National Committee of Public Health Experts, mandatory vaccination can be imposed in order to prevent spread of the disease. The above decision defines the group of the population for which the vaccination with a fixed vaccine becomes mandatory, the area of the imposition of the mandatory vaccination, the period of validity of the mandatory vaccination, which must always be decided as an emergency and temporary protection of public health for a specific group of the population, the regulation of the vaccination process and any other relevant details”.

No decision of the Minister of Health has been issued yet, determining the relevant vaccination as mandatory. However, based on the above-mentioned prime ministerial declarations, such a thing is not to happen before Autumn.

The obligation to protect the health of employees (and not only…)

Employers are obliged to take care of the health of their employees. It is an obligation of theirs that derives directly from the law (: “the employer is obliged to ensure the health and safety of employees…” -article 42 §1 law 3850/2010). At the same time, however, it is an ancillary obligation (resulting from good faith) to other employees.

And beyond the law: it is not without value to justify the dismissal, on the basis of moral values, of those who refuse to be vaccinated. When, in particular, we are talking about employees in structures that are sensitive by nature (eg hospitals or nursing homes) the answer seems easier.

However, one could reasonably adopt the position that employees who refuse to be vaccinated violate the ancillary obligation to protect the health of their colleagues. Much more of those who are called to care for (patients, the elderly, etc)

“Images” from the USA, Germany and Italy

USA: Of particular interest is the Directive of the Equal Employment Opportunity Commission of the United States dated 16.12.20. Employers, according to it, have the right to demand that their employees be vaccinated. However, they must exclude people who are prevented from being vaccinated, either for health reasons or for religious reasons. For the latter they must find ways of arranging their work (eg teleworking), in order to reduce any risks from non-vaccination. Unless the employer bears a significant burden (eg financial) from this arrangement.

Germany: From the first days of 2021, the Prime Minister of Bavaria, Marcus Zeder, advocated for the mandatory coronavirus vaccination for certain groups of employees. Indicatively, for the nursing staff in hospitals and nursing homes. His proposal provoked strong reactions. Among those opposing was the Minister of Labor, Mr. Hubertus Heil. The government, the opposition and the trade unionists were quickly added to the protesters. It seems that everyone started “casting stones” at him.

Italy: At the judicial level, however, Italy emerges as a leader. After all, it makes sense if we consider the blow it suffered by the pandemic. Nurses at two nursing homes in Veneto, Italy, refused to be vaccinated. The employer put them on compulsory paid leave. The nurses appealed to the Court to return to work. The court rejected their application. Central (and yet very interesting) reasoning for the “validation” of their compulsory leave, was the protection of employees themselves from the risk of contracting Covid-19 infection, due to their contact with patients and their visitors in the health structures.

The first terminations of employment contracts in our country

The first two terminations of employment contracts due to refusal of vaccination are already a fact in our country.

The first case concerns the termination of the employment contract of a physiotherapist, working in a nursing home in Ilia. The latter refused to get vaccinated. His employment contract was terminated due to his specific refusal, on the grounds of the need to protect the elderly in the nursing home.

The second termination of this nature concerns the employment contract of an employee in a charity in Crete. The specific employee, according to the relevant publications, asked for time in order to consider the possibility of vaccination. She was, also, eventually fired.

The contribution of existing case law

Issues related to compulsory vaccination have been addressed in recent decisions by both the Council of State and the ECtHR. The specific cases, however, concerned the refusal to vaccinate infants and the legality of the refusal to accept or enroll them in the nursery school or kindergarten, respectively. The reasoning and ruling, however, of the above decisions give us some first answers to the questions about the necessity or not of vaccination.

Decision No. 2387/2020 of the Council of State

Parents addressed the Council of State requesting the annulment of a decision of the Municipality of Drama for the removal of four unvaccinated infants from the nursery schools of the Municipality. The reason for the decision of the Municipality was the refusal of the parents of the infants to comply with the repeated instructions of the pediatrician of the kindergartens for the start of the vaccination program. The Council of State, with its decision no. 2387/2020, rejected the parents’ application. The Municipality was vindicated.

This decision provides guidelines in trying to find out whether or not vaccination is required in the workplace. Also, for the legality of the (consequent) termination of the employment contract in case of refusal of vaccination.

This is because, as it is accepted in this decision: “The measure of vaccination, in itself, constitutes a serious intervention in the free development of the personality and in the private life of the individual and in particular in their physical and mental integrity, but constitutionally tolerated, under the following conditions: (a) that it is provided for by specific legislation, fully adopting valid and substantiated scientific, medical and epidemiological findings in the relevant field; and (b) that vaccination is exempted in specific individual cases, for which it is contraindicated.’.

Of particular interest is the thought of this decision, according to which the refusal to vaccinate violates the principle of equality. Violation of the principle of equality occurs when a person claims not to have been vaccinated, claiming that “they are not at personal risk, as long as they live in a safe environment due to the fact that other persons in their environment have been vaccinated”.

ECtHR: The case of Vavřička and others v. Czech Republic

In the case of Vavřička and Others v. Czech Republic, the broad panel of the ECtHR (European Court of Human Rights) ruled that compulsory vaccination of children in the Czech Republic was in accordance with the European Convention on Human Rights (ECHR). Specifically, with its absolutely recent decision (of 8.4.21), it assessed that there is no violation of Article 8 of the ECtHR, which guarantees the right to respect private and family life.

As, in particular, the ECtHR points out, compulsory vaccination is in principle part of the protection and respect of privacy under Article 8 of the ECHR, as it constitutes a medical intervention without consent. In the present case, however, no compulsory vaccination took place. It assessed, however, that those who are legally responsible for infant vaccination and refuse to comply should face the consequences of their refusal. These consequences, in this case, consisted of the denial of access to infants to pre-school education as well as the imposition of a fine on a parent who refused to vaccinate their children.

This decision approaches the issue of compulsory vaccination from a different perspective. From the point of view of the legal consequences faced by the one who refuses the vaccination.

The ECtHR, examining, in the specific case, the purpose, the scope of application and the foreseen exceptions of the imposed measure, proceeded to a proportionality check. While acknowledging that the safety and efficacy of vaccines are not guaranteed, it ruled, however, that the consequences of vaccination refusal under Czech law are proportionate to the objective of protecting citizens from serious risks concerning public health.

As mentioned in the introduction, the debate about the obligation (or not) of vaccination in employees is both global and intense. And as time goes on it will become, for sure, more intense.

The issue concerns both businesses and employees. And, finally, all of us.

The legal framework in our country is already ready for the (conditional) imposition of mandatory vaccination. A ministerial decision is left to be issued. But based on the recent prime ministerial declarations, we should not expect it before Autumn. Until its issuance, however, employers are not entitled to terminate their employees’ employment contracts due to their refusal to be vaccinated.

However, if such a Ministerial Decision is issued, the Council of State has already prepared us that we should not expect its annulment.

And if those opposing are thinking of invoking a violation of their rights under the European Convention on Human Rights, the competent court (: ECtHR) has also given us its position.

Fortunately.-

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (May 9, 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.

May 12, 2021
The Safety Engineer and the protection of the life and health of employees
The obligation to protect the life and health of the employee – The Safety Engineer

In our previous article we referred to the ancillary obligations of the Employer deriving from the employment contract and employment relationship that they develop with their employees. The obligations that are characterized as “ancillary” are not, at all, of minor importance and value. After all, how would one characterize as minor obligations related to the protection of the life and health of the employee? Their fulfilment is required (and rightly so) by the existing institutional framework. The advent of the pandemic, moreover, reminded us very strongly of their value. But life and health are goods that we must protect at all times. Of course, in the work environment as well. The Safety Engineer (should) work in this direction. Respectively, the Occupational Physician who occupied us in our aforementioned article.

Let us now try to approach the institution of the Safety Engineer.

Η κύρια και οι παρεπόμενες υποχρεώσεις του εργοδότη από τη σύμβαση εργασίας

The main and ancillary obligations of the employer deriving from the employment contract

We have already seen in our previous articles that the main obligation of the employer is the payment to the employee of the legal or, as the case may be, the agreed upon salary (648 Civil Code). The employer, however, is also burdened with the “welfare obligation” which can be broken down in several ancillary obligations. Among them are those related to the protection of personal and property goods of employees. The protection, ie, of their life and health, their personality and property.

The fulfillment of the specific obligations is not left to the good will of the employer. The State has not chosen to remain a passive spectator. It enforces and supervises their implementation based on the existing institutional framework. A possible breach of the above ancillary obligations is linked to a number of civil, criminal and administrative sanctions. It is these data that, among other things, demonstrate the special care of the State regarding their observance.

Ειδικότερα: η υποχρέωση προστασίας της ζωής και της υγείας του εργαζόμενου

In particular: the obligation to protect the life and health of the employee

The obligation to protect the life and health of employees is ensured by a series of provisions of civil, public and criminal law.

The obligation of the employer to protect the life and health of the employee in the context of the employment relationship is established by the Civil Code. The relevant provision (662 of the Civil Code) provides: “The employer must arrange for the work and its premises, as well as for the accommodation, facilities and machinery or tools, in order to protect the life and health of the employee.”

In addition, there is a set of provisions of public law aimed at the comprehensive protection of employees. These provisions constitute the legislation on health and safety at work.

These are the provisions that are part of either the general or the specific, relevant, legislation. That means that some provisions concern all employees, while others concern only specific categories of employees (eg Presidential Decree 788/1980 “on security measures during the execution of construction projects”).

A milestone in the legislation for the health and safety of employees is Law 1568/1995 (: “Health-Safety of employees”). This law has been innovative in the field of obligation of the employer to precautionary protect the life and health of employees. Its scope extends, with few exceptions, to all activities of the private and public sector. After the adoption of this law, various, supplementary, legislations were issued. All of them were codified by Law 3850/2010.

The innovations of law 1568/1995 concerned the introduction of completely new institutions in the field of safety and health at work in our country. As such are the institutions of the Safety Engineer and the Occupational Physician -already provided for by Law 3850/2010.

The Safety Engineer

The obligation to employ a Safety Engineer

The obligation to employ a Safety Engineer concerns all businesses. And this regardless of the number of employees they employ (article 8 §§1 & 2 law 3850/2010).

The role and duties of the Safety Engineer

The role of the Safety Engineer (who is organizationally directly under the management of the business) is preventive and advisory. It aims to create a safe working environment with the ultimate goal of preventing accidents at work.

The advisory responsibilities of the Safety Engineer are provided in detail in the provision of article 14 of law 3850/2010.

The Safety Engineer ” provides suggestions and advice to the employer, in writing or orally, on issues related to the health and safety of employees and the prevention of accidents at work. The written instructions are recorded by the Safety Engineer in a special book of the business, which is paged and certified by the Labor Inspectorate. The employer is obliged to be informed of (and sign as a testimony that they were informed) of the suggestions that are registered in this book “. (Article 14 §1)

In addition, “advises on the design, planning, construction and maintenance of facilities, the introduction of new production processes, procurement of tools and equipment, selection and control of the effectiveness of personal protective equipment, as well as configuration and arrangement of jobs and work environment and general organization of the production process” (article 14 §2 par. a).

At the same time, the Safety Engineer “checks the safety of the facilities and technical means, before their operation, as well as the production processes and working methods before their application and supervises the implementation of the health and safety measures of the employees and the prevention of accidents, and give the relevant information to the competent heads of departments or to the management of the business (article 14 §2 par. b).

At the same time, the Safety Engineer has supervisory responsibilities, which are provided for in detail in the provision of article 15 §1 of law 3850/2010. Specifically, they must:

“(a) regularly inspect the occupational health and safety of employees, report to the employer any omissions of health and safety measures, propose measures to deal with them and supervise their implementation;

(b) supervise the proper use of personal protective equipment;

(c) investigate the causes of accidents at work, analyze and evaluate the results of their investigations and propose measures to prevent similar accidents;
1. d) supervise the execution of fire safety and alarm drills to determine the readiness to deal with accidents”.
Finally, in order to improve working conditions, they are obliged (article 15 §2 law 3850/2010):

“(a) to ensure that employees in the undertaking comply with the rules of health and safety of employees and inform and guide them to prevent occupational hazards posed by their work;

(b) to participate in the development and implementation of employee health and safety training programs.”

Who can act as a Safety Engineer?

The employer has several options for hiring a Safety Engineer. They can choose as a Safety Engineer someone already employed by their business or a third person. They can also choose to receive these services from a company that provides External Protection and Prevention Services. In some cases, the employer themselves are entitled to perform the duties of a Safety Engineer. The employer can also adopt a combination of the above options (article 9 §1 law 3850/2010).

However, the selection of the Safety Engineer by the employer is not without conditions. It is, on the contrary, a associated with the category to which the business belongs and the number of employees it employs.

Businesses are classified into three categories (A, B and C) depending on the sector of their economic activity (Article 10 of Law 3850/2010). This categorization proves to be particularly important, as it determines: (a) the working hours of the Safety Engineer (article 21 of law 3850/2010) and (b) the qualifications that they must have (article 11 of law 3850/2010).

Η υποχρέωση γνωστοποίησης στην Επιθεώρηση Εργασίας

The obligation to notify the Labor Inspectorate

The employer is obliged to notify in writing to the Labor Inspectorate the information of the one who assumes the duties of the Safety Engineer. When the latter is a third party, the employer is obliged to share a copy of their employment contract In the case of hiring company that provides External Protection and Prevention Services, the employer must also share the relevant contract, which in fact must bear the content defined by law (article 9 §7 of law 3859/2010). Finally, when an employee of the business is appointed as a Safety Engineer, the employer must share with the Labor Inspectorate a copy of the written assignment of duties and, in addition, of the corresponding declaration of acceptance.

Η Εκτίμηση του Επαγγελματικού Κινδύνου

Occupational Risk Assessment

Occupational Risk Assessment is the written assessment of the risks created at work. Risks related to the safety and health of employees. It concerns the existing risks and, in addition, those that are likely to occur. It includes, of course, the groups of employees who are exposed to particular risks.

The Occupational Risk Assessment is, unfortunately, a rather degraded obligation in the minds of most of us. It is, however, particularly important. And, most importantly, legally mandatory for all businesses, without exception. It is subject to the special obligations of the employer (article 43 of law 3850/2010).

The drafting of the Occupational Risk Assessment can be carried out by: (a) the Safety Engineer, (b) the Occupational Physician, (c) the company that provides External Protection and Prevention Services.

Its purpose is:

“a) to identify the sources of occupational risk, ie what could pose a risk to the safety and health of employees;
1. b) to determine whether and by what measures the sources of risk can be eliminated or avoided, and if this is not possible;
2. c) to record the precautionary measures already in place and propose what should be taken in addition to controlling risks and protecting employees. “
Ensuring the life and health of their employees is one of the most important obligations of the Employer. There is an adequate legal framework that defines and sufficiently specifies its obligations. As we mentioned in the introduction, the Safety Engineer, the Occupational Physician and the Occupational Risk Assessment hold important positions among them.

The Safety Engineer and their services should not be approached as another “burden” of the business. We see their value, as a rule, only when something bad happens. We then (we, the Safety Engineer and the Labor Inspectorate) refer to the Safety Engineer’s suggestions in the relevant book – as well as to the Occupational Risk Assessment.

Afterwards.

Unfortunately.

Let’s try to see things “differently”.

The selection and utilization of the services of the appropriate Safety Engineer ensures the life and health of the business’s employees. It is a stabilizing factor in business-employee relations. It increases the degree of satisfaction of the latter. It reduces potential problems (of civil, criminal, administrative nature – and more) of the business. It increases its prestige. Reduces its costs. It helps the entrepreneur and senior management to focus on business development and ultimately prosperity.

And when the (always undesirable) accident at work takes place, one thing is for sure: its consequences will be more mitigated in relation to the (possible) non-implementation of the measures indicated by the Safety Engineer.

Let us therefore support and further strengthen the institution and the work of the Safety Engineer.

Only benefits for employees and, of course, for the business can be obtained!

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 8, 2020).

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.
November 8, 2020
Occupational Physician & Occupational Risk Assessment
Occupational Physician & Occupational Risk Assessment

The obligation to protect the life and health of employees

The sudden arrival of the pandemic was an extremely drastic and multi-layered important reminder to all of us. Among other things, it reminded us the value and importance of life and health. In general. In every aspect of -of all of our lives. Clearly in the work environment as well. As for the latter, we must remember that it is the responsibility of the employer to protect the life and health of their employees. And, although it is not the main obligation of the employer, it does not mean that it is a minor one. That it comes second. The state has, moreover, enacted a set of provisions delimiting this obligation. In this context, the Safety Engineer and the Occupational Physician have a significant role. And, of course, so does the Occupational Risk Assessment.

Let us try to approach the latter.

The main and ancillary obligations of the employer deriving from the employment contract

The employment contract between the employer and employee can be concluded in writing or (even) orally. However, regardless of the way it is concluded, it generates a number of rights and obligations for both the business (employer) and the employee.

The main obligation of the employer is the payment to the employee of the legal or, as the case may be, the agreed upon salary (648 Civil Code). However, the employer also undertakes a series of ancillary obligations. These are the ones that make up the “obligation of care” of the employer.

Among the ancillary obligations are those related to the protection of personal and property goods of employees. The protection, ie, of their life and health, of their personality and of their property.

A possible violation of said obligations is associated with a series of civil, criminal and administrative sanctions. It is this fact that, among other things, demonstrates the special care of the State regarding its observance.

In particular: the obligation to protect the life and health of the employee

The obligation to protect the life and health of employees is ensured by a series of provisions of civil, public and criminal law.

The obligation of the employer to protect the life and health of employees in the context of the employment relationship is established by the Civil Code. The relevant provision (662 of the Civil Code) provides: “The employer must arrange for the work and its premises, as well as for the accommodation, facilities and machinery or tools, in order to protect the life and health of the employee.”

In addition, there is a set of provisions of public law aimed at the comprehensive protection of employees. These provisions constitute the legislation on health and safety at work.

These are the provisions that are part of either the general or the specific, relevant, legislation. That means that some provisions concern all employees, while others concern only specific categories of employees (eg Presidential Decree 788/1980 “on security measures during the execution of construction projects”).

A milestone in the legislation for the health and safety of employees is Law 1568/1995 (: “Health-Safety of employees”). This law has been innovative in the field of obligation of the employer to precautionary protect the life and health of employees. Its scope extends, with few exceptions, to all activities of the private and public sector. After the adoption of this law, various, supplementary, legislations were issued. All of them were codified by Law 3850/2010.

The innovations of law 1568/1995 concerned the introduction of completely new institutions in the field of safety and health at work in our country. As such are the institutions of the Safety Engineer and the Occupational Physician -already provided for by Law 3850/2010.

The Occupational Physician

The obligation to employ an Occupational Physician

Those businesses that employ more than fifty (50) employees are obliged to employ (not only a safety engineer but also) an occupational physician (article 8 par. 2 law 3850/2010). To calculate the number of employees, the employees of all Subsidiary Offices, Branches, separate facilities, and independent holdings of the main business are taken into account.

The role and duties of the Occupational Physician

The Occupational Physician has medical and consulting responsibilities. Their role is basically preventive. Organizationally, they report directly to the company’s management.

The Occupational Physician “provides suggestions and advice to the employer, the employees and their representatives, in writing or orally, on the measures to be taken for the physical and mental health of the employees…”.

The written instructions are recorded by the occupational physician in a special book, which is recorded by the Safety Engineer. The employer becomes aware of said suggestions in written and signed form, as they are registered in the specific book (article 17 par. 1 law 3850/2010).

The Occupational Physician, according to article 17 par. 2 of law 3850/2010, advices on issues regarding the:

“(a) design, planning, modification of the production process, construction and maintenance of facilities, in accordance with the rules of health and safety of employees;
1. b) taking protection measures during the import and use of materials and equipment supply;
2. c) physiology and psychology, ergonomics and hygiene at work, arrangement and shaping of jobs and work environment and organization of the production process;
3. d) organization of a first aid services;
(e) initial placement and change of job for health reasons, temporarily or permanently, as well as inclusion or reintegration of disadvantaged persons in the production process, even with a suggestion of job reform. “.

It should be noted, however, that the occupational physician is not allowed to be used to verify whether or not an employee is absent due to illness.

An important obligation of the occupational physician is the obligation to supervise the health of the employees, as it is, in detail, provided in article 18 of law 3850/2010.

Specifically, the Occupational Physician conducts: “… a medical examination of the employees related to their job position, after their hiring or change of job position, as well as a periodic medical examination at the discretion of the labor inspector… Arranges for medical examinations and measurements of factors of the working environment in application of the provisions that apply each time. Evaluates the suitability of employees for the specific job… “.

In addition, among other things “… oversees the implementation of measures to protect employees’ health and prevent accidents. For that reason, the Occupational Physician:

(a) regularly inspect jobs and report any omissions, propose measures to address the omissions and monitor their implementation;

(b) explain the need for the proper use of individual protection measures;
1. c) investigates the causes of occupational diseases, analyzes and evaluates the results of research and proposes measures to prevent such diseases;
(d) monitors the employees compliance with employees’ health and safety rules, informs employees of the risks arising from their work, and of ways to prevent them;

(e) provides emergency treatment in the event of an accident or a sudden illness “.

Who can act as an Occupational Physician?

The duties of an Occupational Physician are exercised by doctors. The Legislative Decree of 20.3.20 replaced article 16 of the code of laws for the health and safety of employees (KNYAE) which was ratified with the first article of law 3850/2010 (A’ 84). Pursuant to the relevant provision (Article 16-1), the duties of an occupational physician may be exercised by:

“a) Physicians who hold the specialty of occupational medicine,
1. b) Physicians who hold a degree in any specialty other than occupational medicine and who have performed the duties of occupational physician in businesses before the 15th of May 2009;
2. c) Doctors without specialization who have performed the duties of occupational physician in businesses continuously for at least seven (7) years until May 15, 2009.
It is noteworthy, however, the (added by the said Legislative Decree) §2 of the same article, on the basis of which:

«2. The doctors of par. 1 can exercise the duties of an occupational physician in all the regions of medical associations of the country, without the permission of these associations “.

This addition proved to be particularly critical (as we mentioned in our previous article – question 8) “as (legislative) entanglements of the very recent past (associated with bad trade union practices) created serious problems in choosing an Occupational Physician. For the selection of an occupational physician (who did not have the specific specialty-although they were included in the relevant Special Catalogs), until then, a certificate from the relevant Medical Association was required regarding the non-existence of an available Specialist in the same region (!!!) »

For the employment of the Occupational Physician, the employer has the option to choose in the assignment of the duties of the occupational physician: (a) to employees of the business, (b) to persons that are not employed by the business, (c) to a company that provides External Protection and Prevention Services and, finally, (d) a combination of the above (article 9 §1 law 3850/2010).

The obligation to notify the Labor Inspectorate

The employer is obliged to notify in writing to the Labor Inspectorate the information of the one who assumes the duties of the Occupational Physician. When the latter is a third party, the employer is obliged to share a copy of their employment contract. In the case of hiring company that provides External Protection and Prevention Services, the employer must also share the relevant contract, which in fact must bear the content defined by law (article 9 §7 of law 3859/2010).

Occupational Risk Assessment

Occupational Risk Assessment is the written assessment of the risks created at work. Risks related to the safety and health of employees. It concerns the existing risks and, in addition, those that are likely to occur. It includes, of course, the groups of employees who are exposed to particular risks.

The Occupational Risk Assessment is, unfortunately, a rather degraded obligation in the minds of most of us. It is, however, particularly important. And, most importantly, legally mandatory for all businesses, without exception. It is subject to the special obligations of the employer (article 43 of law 3850/2010). In fact, the recent pandemic made it necessary to update it as we were called to manage new, unprecedented, risks (as we pointed out in an earlier, as early as 15.3.20, article of ours- 7th question)

The drafting of the Occupational Risk Assessment can be carried out by: (a) the Safety Engineer, (b) the Occupational Physician, (c) the company that provides External Protection and Prevention Services.

Its purpose is:

“a) to identify the sources of occupational risk, ie what could pose a risk to the safety and health of employees;
1. b) to determine whether and by what measures the sources of risk can be eliminated or avoided, and if this is not possible;
2. c) to record the precautionary measures already in place and propose what should be taken in addition to controlling risks and protecting employees. “
Ensuring the life and health of their employees is one of the most important obligations of the Employer. There is an adequate legal framework that defines and sufficiently specifies its obligations. As we mentioned in the introduction, the Safety Engineer, the Occupational Physician and the Occupational Risk Assessment hold important positions among them.

The obligation to employ an Occupational Physician was, until the beginning of the pandemic, another “burden” with no return for the vast majority of the liable businesses. The entanglements of the existing institutional framework until March 2020 (which succumbed to specific trade union logics) contributed to the feeling of the obligation being a” burden”.

But things have changed. The institutional framework for occupational physicians was relieved of union burdens.

The pandemic changed the lives of us all. It highlighted, even more, the value of occupational physicians.

We already enjoy their services.

It is worth further utilizing them.

Especially in the present circumstances.

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 1, 2020).

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.
November 1, 2020
The recovery οf the economy. 100,000 new jobs & 21 critical questions

The economic crisis that is (not only) nationally linked to the current pandemic seems unprecedented. Measures were taken at a European (e.g. SURE program) as well as in a national level. As far as our country is concerned, we have seen a number of measures whose central focus was on supporting businesses and securing jobs. Some of them: The (temporary) ban on dismissals, the suspension of employment contracts, the safe operation personnel, the transfer of employees to businesses within the same Group, the COOPERATION program. But all this was more temporary. More drastic measures were needed. The further strengthening of flexible forms of employment (among them: part-time work, rotarional work, teleworking, etc.) but also the addition of the regulation of working time are some of them. But what the circumstances really demanded was the strengthening of the real economy. Already, with the addition of one hundred thousand (100,000) new jobs, the necessary impetus is expected. The CMO no. 39539/996/30.9.2020 (Government Gazette Β΄ 4261/30.9.2020) was issued pursuant to powers granted in article 28 ν. 4726/20- Government Gazette Β’ 181/18.9.20. They both concern the “open program for the addition of 100,000 new subsidized jobs” (hereinafter referred to as the “Program”).

Let’s try to decode it.

Question 1: What is the purpose of the Program?

The purpose of the Program is the creation of 100,000 new jobs, with the subsidy of all insurance contributions (made from both employers and employees), for six (6) months, in businesses- employers of the private sector of the country, regardless of their industry and business activity (Article 1 par. 1)

Question 2: What is the time point from which job growth is monitored?

The new jobs subsidized by the Program are additional to the number of existing jobs of businesses- employers on 18.9.2020 (article 1 par. 1)

Question 3: When does the Program start and how long does it last?

The date of entry into force of the Program is set at 1.10.2020 and is valid until the exhaustion of the subsidized 100,000 jobs (article 1 par. 2).

Question 4: What is the amount and duration of the subsidy for each job?

For each new position that is created and included in the specific Program, the total of the employee and employer insurance contributions is subsidized by the state budget, as well as the corresponding insurance contributions in bonuses provided for by law and leave allowance. The specific subsidy takes place for a period of six (6) months and is independent of the amount of the employee’s monthly salary (article 2 par. 1).

Question 5: What is the amount of the subsidy when the person hired under the Program is long-term unemployed?

It is possible that a long-term unemployed person is employed (ie a person registered in the OAED unemployment register for a period of at least twelve months until the submission of the application-declaration of the businesses-employers for participation in the Program).

In this case the new recruitment is subsidized from the state budget (in addition to the subsidy of insurance contributions (Article 2 §1-question 3) with an additional two hundred (200) euros on (exceeding this amount) net monthly salary, before tax and special solidarity contribution (Article 2 §2).

Question 6: Which businesses are affected by the Program? There are conditions.

The Program concerns businesses- employers of the private sector of the country, regardless of their sector and business activity (article 1 §1). However, it concerns only those businesses that are up to date with their tax and insurance contributions or have settled any established debts due to the State and the Electronic National Social Security Agency (e-EFKA), at the time of submitting the application-official declaration for the Program (article 3).

Question 7: Which are the employees affected by the Program and can they participate in it?

Those employees hired from 1.10.2020 onwards can join the Program (article 4§1).

The specific employees must not: a) have worked in the applicant company-employer, for at least one (1) month before the date of their employment nor b) have worked in another business, for one (1) month also before date of their recruitment (Article 4§2).

Question 8: Is it necessary to hire full-time employees?

Recruitment may take place under a full-time or part-time contract of employment for a period of at least six (6) months (Article 4-1).

Question 9: What are the obligations of the businesses that participate in the Program?

The businesses-employers that participate in the Program are obliged to maintain the average number of employees that they had on 18.9.20, increased by the number of new subsidized employees. This obligation is maintained for the period of six months in which each new job is subsidized (Article 5§1).

Question 10: What jobs should the businesses that use the Program keep?

The number of jobs that the beneficiary businesses have to maintain concerns all of their employees in a fixed-term or indefinite employment contract, either full-time or part-time ones. This number also includes the jobs of those employees who have been suspended (Article 5§2).

The positions that the beneficiary businesses are obliged to maintain are those that concern employees:

(a) whose employment contract is terminated due to retirement or death;

(b) whose fixed-term employment contract expires;

(c) who quit.

Question 11: Is it possible to change the working conditions of the employees included in the Program?

It is not possible to change the working conditions of the employees included in the Program. Even if there is consent of the beneficiary employees (Article 5§3). However, it is not possible to suspend their employment contracts either (Article 5§7).

Question 12: Is it permissible to terminate the employment contracts of employees included in the Program?

It is permissible, provided there is a significant reason (article 5§4). Let us remember, of course, that the significant reason is ultimately evaluated by the competent courts.

Question 13: What are the sanctions for the business in case of violation of the obligation to maintain the jobs they had on 18.9.20?

It is not, of course, tolerable for the beneficiary businesses to violate their obligation for six months to maintain the jobs they had on 18.9.20 and the same working conditions (article 7 par. 4 & Question 21). In fact, the observance of their specific obligation is closely monitored on a monthly basis (Article 7§2).

In case of violation of the specific obligation, these businesses-employers, are no more included in the Program and are obliged to return all the subsidies received under it – (Article 7§4).

Question 14: What happens in case of termination of an employment contract of a beneficiary employee for a significant reason?

In case of termination of the employment contract of a beneficiary employee for a significant reason, it is not allowed to replace them with a new subsidized employee for the remaining period until the expiration of the six months. However, the beneficiary businesses are entitled to request the approval of a new subsidized job (Article 5§5).

Question 15: What happens after the subsidized six-month period lapses?

After the lapse of the six-month period in which the insurance contributions (and part of their salary, in case a long-term unemployed person was employed, -article 2 par. 2 and Questions 5 & 20) are subsidized, the company can maintain (or not) the employment relationship with the beneficiary employee. In case of maintenance, the total of the charges (salary and insurance contributions) is borne by the employer exclusively (article 5§6).

Question 16: Can a business partake at the same time both in the Program and in “COOPERATION”?

Employees who are placed in the new jobs of the specific Program cannot be included in the program “COOPERATION” of article 31 of law 4690/2020 (A’104). Their employment contracts cannot be suspended.

However, it is possible for a business to partake at the same time both in the Program and in “COOPERATION”. But strictly for different employees.

Question 17: What is the relationship between the Program and teleworking?

Employees who are part of the Program can also provide their work by teleworking, if this is allowed by the nature of their work. It should be noted here that the (unilateral) choice of telework by the employee who is part of the Program is not possible (with the exception of those belonging to a vulnerable group – Question 18).

Question 18: What happens when the beneficiaries are in vulnerable groups?

As an introduction, we mention that the employees who belong to the vulnerable groups are already identified by the no. 37095/1436 / 17.9.2020 (Government Gazette B’4011) CMO. In addition to the above decision, the details of the application of the protection measures in favor of the vulnerable groups are determined by the CMO with No. 39363/1537 / 30.9.2020 (Government Gazette B’ 4262).

The protective arrangements that concern them in relation to the current pandemic, prevail over those mentioned in the Program (article 5§9).

Question 19: What is the procedure to be followed for joining the Program?

Every business that intends to make recruitments within the framework of the specific Program submits an electronic application to the ERGANI platform for each beneficiary (article 6§1). The details of the application are checked and verified by ERGANI and the businesses receive a response to the application or the rejection of their application. In case of approval, the beneficiary businesses conclude, at the latest on the next day, the relevant employment contract with the specific, beneficiary, employee.

Question 20: What is the procedure for the payment of the € 200 salary subsidy for the long-term unemployed who are included in the Program?

The payment of this subsidy takes place by crediting the bank account of the employer businesses (Article 9§2).

Question 21: What happens in case of false, according to the content, official declarations by the businesses that request their inclusion in the specific Program.

The sanctions are both of criminal and administrative nature. In any case: Amounts that were unduly paid to businesses are collected based on the Code for the Collection of Public Revenue.

As mentioned in the introduction, strengthening businesses and increasing jobs is a prerequisite for managing the financial crisis.

The ball is now in the businesses’ court.

Let’s seize the opportunity!

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 4, 2020).

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.

October 4, 2020
Private School Teachers & Dismissals (: and the absurdity of such argued…)
Recent legislation addresses the conditions for the termination of employment contracts of private school teachers. (Basically: the possibility and conditions of their replacement). Some of the trade unionists (and some of the politicians) are still supporting that such provisions are absurd. They underline, in particular, the need to safeguard the level of private education provided. Also: the, created by this law, “unfair conditions”. The teachers’ union (Federation of Private Educational Officials of Greece) opposes the new law with full force. Mobilizations are already being announced for its abolition.

Proponents of the newly introduced provisions, on the other hand, have been working to make the actual transcript of this statement available online. Removal of old problems and distortions.

The conflict remains intense.

What, in fact, is true?

The challenges in the field of education

The (late) start of the new school year is just around the corner.

School as we knew it (teaching students in person) is no longer granted – and the pandemic is the reason why.

Now more than ever, we are concerned with intertemporal issues (seen, however, from a new perspective). The modernization of Education, the smooth operation of schools, their technological equipment are just some of them.

We do acknowledge that there are some greater issues: Ensuring, for example, the life and health of students and teachers. As well as stopping the pandemic.

The field of private education is concerned with another important issue: The change of the core of its operation. This issue has, to some extent, overshadowed the aforementioned-more critical issues. At least that is what the ones affected are seeking to prove.

Changes in private education

The recent law 4713/20 seeks a substantial modernization of private education. It modified some of the problematic and outdated regulations regarding private education’s operation. It replaced some others.

Among the privileges abolished is the (“de facto”) permanence enjoyed by private school teachers. A “permanence” due to the impressive, indeed, restrictions (and conditions) of terminating their employment contracts. Even for the ones among them who were completely inadequate.

Those who (consider to) have lost privileges due to the introduction of this law are, unanimously, attacking it. And so are their (willing) supporters. We have already talked about the lost privileges and their holders in our previous article. And so have we about their motives.

There are those who, out of conviction, include themselves in the ever-shouting.

There are also those who, soberly, record their concerns. Are they reasonable? Is there adequate protection against a vindictive termination of their employment?

Let us try, in this case too, a structured and argumentative approach. On the basis of the only safe criterion: the existing institutional framework.

The termination of contracts (more precisely: the replacement) of private school teachers

Article 10 of Law 4713/2020

The relevant provision, which replaces the previous article 30 of Law 682/1977, stipulates that:

«1. Teachers in private and equivalent schools are recruited and employed under private law contracts of indefinite duration and are subject to the issues of recruitment, employment and termination of their employment in accordance with the applicable provisions of the common labor law provisions, subject to special provisions for private school teachers and in particular, of article 36 of this law “.
1. During the judicial review of the legality and abuse of the termination of the employment contract of the private school teacher of par. 1, it is examined in particular, whether the termination is an unfair employer reaction to legal and contractual behaviors of the private school teacher. “
The transitional provisions

Article 36 of Law 682/1977 provides that:

«1. Every two-year employment contract of a private school teacher, according to par. 2 of article 30 of law 682/1977, which is expires within 2020, is considered to expire on 31.8.2020 and the legal compensation is paid, unless the parties agree on the conversion of said employment contracts to indefinite ones.
1. From the entry into force of the present, an employment contract of a private school teacher, of a two-year duration, according to par. 2 of article 30 of law 682/1977, which expires within 2021, is automatically converted into an indefinite contract.
2. From the entry into force of the present, any procedure for checking the legality and the abusiveness or non-termination of the employment contract of a private school teacher, which is pending before the independent Committee of article 30 of law 682/1977, is abolished “.
In brief

(a) The employment contracts of private school teachers are now terminated, as are those of other employees – “common mortals” in the private sector.

(b) Special mention is made and significant sensitivity is shown for the judicial review of the (possible) abuse of the termination of their employment contracts.

(c) The activation of the new, relevant, provisions is done gradually.

The pathogens that the new regulations were called upon to address

Article 10 of Law 4713/2020 seeks to deal with the “wrong doings” of the past:

(a) resulting from the (unjustifiably) privileged treatment of private school teachers over other employees

(b) which created impressive (gradually, in fact, reinforced) restrictions on the possibility and process of terminating private school teacher’s employment contracts

(c) which have achieved an equalization of the working status of private school teachers with that of civil servants

(d) which have (“de facto”) achieved for teachers the permanent tenure applicable to civil servants.

Restrictions on the termination of private school teachers’ employment contracts

If one refers to the provision of article 30 of law 682/77 and its pre-existing forms (in combination with article 33 – until its abolition), they will be impressed by the ingenuity of its authors to achieve the permanence of private school teachers. It would not be an exaggeration to argue that it could easily have been the subject of a dissertation entitled: “The inculcation of entrepreneurship by the negative achievements of trade union action and its embrace by politicians.”

Over the years we come across (legally required) fixed-term contracts for teachers. Let’s take a brief look at the restrictions and conditions for terminating their employment contracts:

(a) Numerical constraints

The numerical constraints on termination of private school teachers’ employment contracts are quite interesting. Let’s look at two related examples:

(i) The provision of art. 13 §1 Law 2986/2002 (valid until 2010):

“(B) At the end of the four-year period (note: of the then valid fixed-term contract of the private school teacher) the owner of the private school may terminate the contract without justification for only 33% of the teachers who complete six years of service. In case two teachers complete six years, the contract of one of them may be terminated. In case only one teacher completes six years and another teacher of the school completes six years within the following two years, it is possible to terminate the contract of one of the two).

(ii) The provision of art. 47 §16 Law 3848/2010:

“At the end of each school year it is possible to terminate the employment contract of one teacher per private educational unit and per level of education… Private junior high schools and high schools of the same seat, of the same owner and with the same address are considered to be a single educational unit.”

(b) Procedural conditions

Even more provisions that guaranteed the “de facto” permanence were in place in the last three years and until the entry into force of law 4713/2020. Extensive reference to them was made in our previous article. These assurance provisions can be summarized in the two procedural conditions of the valid termination of private school teachers’ employment contracts.

To recall (very briefly) the provision of article 30 of law 4472/2017:

«1…

«1…
1. Private school teachers …. enter into a fixed-term contract, which… and expires on the 31st of August of the second year following their recruitment. At the end of the two years the owner can terminate the contract. After the lapse of the two years and if the contract is not terminated according to the above, it is automatically converted into a contract of indefinite duration.
2. The contract of indefinite duration can be terminated only for the following reasons:
…
1. e) Private school teachers are dismissed by the owner of the school they serve due to:
…
1. dd) didactic, pedagogical or professional deficiencies based on at least two (2) reports and concerning at least two (2) consecutive teaching years with criteria determined by the Institute of Educational Policy, the first of which is compiled by the principal of the school unit and is notified to the competent educational project coordinator who has the scientific responsibility of the relevant branch and the second is drawn up by the school director and notified to the above educational project coordinator, who adds an additional report, if they deem it appropriate and especially if their opinion differs from that of the Director.
…

The legality of the termination of the employment contract for the reasons provided under a` and e`.dd` of paragraph 3 is judged by an independent Commission, which examines whether the employment contract was terminated legally and whether the termination is abusive or not and decides on the matter.

This Committee is established by a decision of the Minister of Education and Religions, which is issued within one month from the publication of the present, and consists of:
1. a) One (1) Judge of the Court of First Instance, as President, with their deputy, serving in the Labor Disputes Department of the Athens Court of First Instance….
2. b) Two (2) Judges of the Court of First Instance serving in the Labor Disputes Department of the Athens Court of First Instance with their deputies….
One (1) representative of the Federation of Private Educators of Greece indicated by a decision of the Federation of Private Educators of Greece and one (1) representative of the most representative employers’ organization nominated by its decision shall be present as observers, without the right to vote, at the meeting of the Committee.

…

The above Committee also takes into account the official reports, and meets and decides obligatorily within ninety (90) calendar days from the termination and submits its proposal to the competent Director of Education in which it expresses its judgment on the legality of the termination of the employment contract, as stated above. ….

Dismissals of private school teachers that take place without following the above procedure are invalid. ”

In simple words: If, by any chance, a teacher proved (from 2017 onwards) inadequate immediately after being hired, their replacement was possible (at best) after two years and three months.

In conclusion

The legislator, when trying to tackle the issue of private education, had multiple distortions and pathogens to manage.

Among them, the (de facto) inability to replace inadequate private school teachers. (Even if one does not rush to wonder if there were / are such). Also: inequality in relation to other employees in the private sector (health professionals, for example, to whom we owe so much). And yet: the multiple problems that arose in the exercise of business activity and the limited, only, assistance in the provision of high quality services in private education.

The problem seemed complicated…

The explanatory memorandum of law 4713/2020

The solution to the (apparently only) complex problem was (and indeed has proved to be) disarmingly simple. It was limited to one sentence and just twelve words:

Inclusion of private school teachers in the protective field of labor legislation.

But what were the legislator’s thoughts?

Let us refer to the explanatory memorandum of this particular provision in question. There we will identify the distortions that, in their view, the legislator aims to cure. The medium they use. The purposes of this provision (: of the new, that is, Article 10). So, what is the ratio of this provision?

As stated in the explanatory memorandum, the inclusion of the private school teachers’ employment relationship in the common labor law is intended to restore the balance among:

(a) the managerial right of the entrepreneur-employer;

(b) the parallel safeguarding of labor rights, in accordance with the provisions of labor law and Law 682/1977 of private school teachers, but also

(c) ensuring state supervision in the relevant business activity.

It is also noted that the previous legislation in the field of private education affected (insofar as they went beyond the principle of proportionality) the core of the business activity of private schools. And it is not an accidental activity but one that is constitutionally protected (article 16 §8 & 5 §1 of the Constitution). And this by pointing out that the private schools in our country, in contrast to other countries, carry entirely the business risk.

The (sufficient?) Protection of private school teachers from the termination of the employment contract of an indefinite period

Since the submission of the relevant bill of Law 4713/2020, specific voices have adopted (and continue, even today, to cultivate) the position on the now free dismissals of private school teachers. The position, also, of the insufficient protection of the private school teacher from the possible unjustified termination of their employment contract by the respective headmaster.

But what is the truth?

Can the current headmaster, unjustifiably and without restrictions, dismiss / replace their teachers?

Doesn’t labor law, which now includes private school teachers (like all other employees), provide some protection?

The headmaster has the right to say to their teachers: “LEAVE !!!” and are they really obliged to leave with their heads bowed?

The answers to the above questions are obviously negative. Labor law has never been inadequate in protecting employees from illegal dismissals. The law of termination requires the fulfillment of a series of conditions (formal and substantive) in order for the termination of an employment contract to be lawful.

The existing institutional framework

Conditions of termination of employment-in general

Let’s take a look at what is provided by the provision to which all the employees of our country are under (article 5 §3 par. A of law 3198/1955):

«3. The termination of the employment relationship is considered valid, as long as it has been made in writing, the due compensation has been paid and the employment of the dismissed person has been registered in the Greek Social Security Agency payroll or the dismissed person is insured”.

Regarding the (now in place) conditions of dismissal / replacement of a teacher

The dismissal / replacement of a private school teacher with an employment contract of indefinite duration is subject to formal and substantive conditions. Specifically:

Formal conditions:

The common labor laws require the observance of three formal conditions in order for the termination of the employment contract of indefinite duration to be valid. These are:

(a) The observance of a written document of the termination.

(b) The observance of a certain notice period (where provided), after the expiration of which the employment contract may be terminated.

(c) The payment of compensation.

Substantive condition – Restriction of the abusive exercise of the employer’s right:

In addition to the three specific, formal conditions, the validity of the termination of an indefinite contract requires the existence of a fourth, negative-substantive condition. This is the lack of abuse, as it is reflected in the general provision of article 281 of the Civil Code but also in the special provision of article 30 par. 2 of law 682/1977-as in force.

According to the provision of article 281of the Civil Code:

“The exercise of the right is prohibited if it obviously exceeds the limits imposed by good faith or good morals or the social or economic purpose of the right.”

Therefore, the right to terminate the employment contract for an indefinite period of time by the employer – school owner must be respected and not exceed the above limits. Otherwise, their practice is considered abusive.

In line with the above, the current Article 30, paragraph 2, refers to the judicial review of the legality and abuse to which the termination of the private school teacher is subject. As explicitly and specifically it is provided, “During the judicial review of the legality and abuse of the termination of the private school teacher’s employment contract of par. 1, it is examined in particular whether the complaint constitutes an unfair employer reaction to the lawful and common conduct of the private school teacher”.

In short, the termination of an employment contract of indefinite duration in Greece is valid with no need for a special reason to be presented (with reference to the open debate on Article 24 of the Revised European Social Charter). This does not mean, however, that it is not subject to substantial restrictions. Much more, when that adequate protection is not provided to employees. The jurisprudence has proved this for a long time now.

Employees of private clinics, doctors and nurses, offer their services in the field of health – for which specific constitutional provisions are provided.

Journalists working in the field of journalism offer their services in the field of press-for which, also, specific constitutional provisions are provided.

Employees in private schools offer educational services – for which specific constitutional provisions are provided.

Private sector employees are generally subject to the protective provisions of labor law. Doctors, nurses, journalists have always been subject to the protective provisions of labor law.

Private school teachers are now too…

The removal of pathogens and distortions of almost half a century is a fact!

The catalysis of unjustified privileges and distortions, of a corresponding duration, is too.

Let us celebrate the restoration of equality.

But mainly of logic!

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 13, 2020).

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.
September 13, 2020
Private School Teachers (Regarding the “sacred cows” and the lost privileges)
The recent law on private education, which we approached in our previous article, came to change the status quo. To abolish privileges (of a small) portion of employees. Privileges that do not seem to have a place in a country like Greece, where the right to property is constitutionally recognized. Where entrepreneurship is also constitutionally recognized, it exists and it develops. Where the development of the national economy presupposes (regardless of the parliamentary majority) the strengthening of healthy entrepreneurship. Privileges that do not seem to have a place, in general, in the year 2020. Among the privileges that have been abolished, one seems to have created the strongest reactions. The abolition of the (de facto) permanence (or perhaps longevity?) Of private school teachers.

The employment status and employment relationships of private school teachers have, over time, been enjoying impressive privileges. In fact, regardless of the quality of the educational work provided by them. Regardless of the satisfaction of their supervisors, their students and parents. The termination of their employment contracts could not be described as an easy (at a legal level) case. The opposite. This regardless of whether they were excellent, less good, mediocre or bad.

Dismissal or, more precisely, replacement?

But let us list, in quotation marks, some related questions.

Is the termination of a teacher’s employment contract (under any conditions) equivalent to a common termination? The dismissal, in other words, of (any other) employee? In case of termination of the employment contract of a private school teacher, are we talking about the loss of another job in the direction of saving resources from an (analgesic) employer? To burden other employees with the work of the dismissed?

The answer is no, and that is a given!

Educators “fit”, as we all know, in some departments (eg teachers). However, they may also fit into more specific departments (eg philologists, mathematicians). However, all, without exception, cover specific, maximum, teaching hours in specific departments / classes. This means that in each school, without exception, a specific (proportional) number of teachers should serve. If we terminate a teacher’s employment contract, we will have to hire another in their place.

The owner of a private school, therefore, does not have the opportunity to fire a teacher “to save money”. They are obliged (secondarily by law) to cover teaching hours. To meet, above all, the needs of the school and their students. They are consequently obliged to replace the teacher whose contract they intend to terminate.

Therefore, the jobs of private school teachers in a private school always remain stable. Under the self-evident condition, of course, of maintaining the same number of students. Termination of the contract of a private school teacher presupposes their replacement by another.

And seeing the same issue from another point of view: Is it not, for the benefit of the school, its owner (but mainly the students and their parents) to replace the “problematic cases” (which are always found in employees & professionals) with excellent teachers? With teachers who will have excellent educational work to demonstrate and provide?

The attitude of the State, over time, towards private education

The establishment of private schools and the legal regime that governs their operation, has bothered our country for about two centuries.

The Constitution of Greece of 1827 was the one that established (article 20) the principle of freedom of private education. It foresaw the possibility for Greeks to establish schools and to choose educators. («Greeks have the right to establish any educational facility … and to choose the teachers that will be their educators.»).

In the subsequent Constitutions, however, there was a corresponding guarantee. At the same time, the obligation to license the establishment of private schools by the state was provided.

The current Constitution (article 16 §8) recognizes the possibility of establishing and operating “schools that do not belong to the state”. It grants to the law the determination of the conditions and terms of “granting permission for their establishment and operation”, the matters related to the supervision exercised over them… “.

Laws, over time, regulated these issues. Among them is Law 682/1977 “On private schools of general education and boarding schools”. Some provisions of which are still in force. Others have undergone a number of modifications.

The State, therefore, systematically and constitutionally recognizes (for two centuries now) private education. One would expect from the (among other, benefitted) private educators an effort to improve the private education provided. For one simple reason, before others: securing their jobs.

The (fair?) Struggle of the employees for the abolition of the companies for which they work

“The main purpose of the Federation of Employees’ Associations in super markets is the abolition of these super markets.”

“The main purpose of the Federation of Associations of Doctors and Nurses in private clinics is the abolition of said clinics.”

Can one imagine that an employee would fight for the abolition of their profession? How could a collective / trade union body have as its statute the abolition of the companies in which its employees are employed?

Looks like a (double) joke.

It could be…

However, this does not regard the (particularly likeable) employees in the supermarkets. Nor the doctors and nurses working in private clinics. Not even their Federations.

But it really concerns a category of employees. Those to whom we must trust (?) the education of our children. More precisely: the Federation of Private Educational Officials of Greece (: FPEOG)

The statutory purposes of FPEOG

The statute previously in force

In paragraph 7 of article 2 “regarding the Objectives” of the previously in force (legally approved and duly submitted) statute of FPEOG we read:

“… In this context, the main purpose of F.P.E.O.G. is the abolition of private education ”

This provision became a tool to reveal the (true) intentions of FPEOG. It recieved, as long as it lasted, great reactions. It therefore had to be replaced with a more sleek one. More precisely: it was artfully “camouflaged”.

The current statute

In paragraph 7 of Article 2 “regarding the Objectives” of the (currently in force-posted on the relevant website) statute of FPEOG, we read:

“… In this context, the main purposes of F.P.E.O.G. are: a) The strengthening of the public, social and non-profit nature of education of all forms, types and levels, b) for Education to operate under the responsibility of teachers… If the existing protective legislative framework of the above constitutional purposes is abolished, the operation private education will now be in conflict with Article 16 of the Constitution and will have no reason to exist”.

Despite the “artful” cover-up attempt, no doubt remains about the (timeless) true intentions of FPEOG. Intentions summarized in the following sections: Abolition of private education. Abolition of private schools. Abolition of the profession of private school teachers.

The reasons for the (statutory) effort of FPEOG to abolish private education

The (reasonable) questions and the logical answers

Reasonable questions are raised by the timeless (from its statute arising-undisputed and official) effort of FPEOG for the abolition of private education.

In our attempt to approach its true motives, let us attempt a “dive” through time. Let us refer to the pre-existing forms of the basic legislation of Law 682/1977.

The conclusion to be drawn is that private school teachers did not really want to improve the private school education provided. They wanted, over time, to become civil servants. Alternatively: to enjoy the privileges of civil servants. Often in an improved version.

Initial wording of Law 682/1977

The specific law, in its original form (Article 30) provided:

«8. Private educators who are employed on a permanent or indefinite basis and are dismissed due to the closing of the school in which they serve are not entitled to compensation.
1. Those mentioned in the previous paragraph, as well as those belonging to table A` who are dismissed in the case f` of par. 4 of article 33 of the present, are employed upon their request, with the rank they have, in respective schools of public general education under private law for an indefinite period of time, to meet existing needs, with the conclusion of a relevant contract between them and the Minister of National Education and Religions.
Those are placed, by decisions of the Minister of National Education and Religions, in public schools, operating outside the prefectures of Attica and Thessaloniki for at least three years… »

The subsequent amendments of law 682/1977 (of 1980 & 1981)

The formulation of this provision with subsequent additions from Laws 1035/1980 and 1143/1981 (which were valid until 30.9.1985-when they were abolished by article 95 par. 13 of Law 1566/1985), help us to extract critical conclusions. Specifically:

«8. Private educators who are employed on a permanent or indefinite basis and are dismissed due to the closing of the school in which they serve are not entitled to compensation.
1. Those mentioned in the previous paragraph, as well as those belonging to table A` who are dismissed in the case f` of par. 4 of article 33 of the present, are employed upon their request, with the rank they have, in respective schools of public general education under private law for an indefinite period of time, to meet existing needs, with the conclusion of a relevant contract between them and the Minister of National Education and Religions.
(addition with par. 3 of article 11 of L.1035 / 1980 (Government Gazette A 60):

“For those employed by decisions of the Minister of National Education and Religions in Public Schools, the current provisions on Public Education Officers apply regarding their placement and transfer.”

(added by article 30 of Law 1143/1981):

“For the completion of the time of service required by the provisions for the transfer of private school teachers, outside the prefectures of Attica and Thessaloniki, their previous service in public education is taken into account. “Teachers serving in public education in employment under private law do not occupy an organic position in the schools but are placed within the same city to meet existing service needs.”

Useful conclusions

(a) Any private school teacher dismissed after 1977 was employed in a public school. Initially outside Athens and Thessaloniki. However, from the year 1980 until the year 1985, they could be hired in the specific urban centers as well.

(b) The dream of every citizen of modern Greece (: recruitment in the public sector) could therefore, very easily, become reality for a private educator. As long as they were hired (and then fired) by a private school. They would be hired, based on explicit legislation, in the public sector. And not in any capacity: (Obviously) as a teacher-civil servant in a public school.

(c) Employees of the private sector have never enjoyed tenure in their work. But the basic characteristic of civil servants is that of permanence (not to say, in reality, that they are guaranteed employment for life). From the year 1977 onwards (referring to the interim legislative-pre-existing regulations) we find wall (impressive in height and size) for the protection of private school teachers. In order for a private school to replace a (insufficient) teacher, it had to go through hell and back. Their replacement proved, in reality, impossible. The tenure of private school teachers had been achieved in another way. The employment contracts of other common mortals (:employees of the private sector) could be terminated, subject to the law. Labor law, in any case, extended a protective net to (common) employment contracts. The courts have always exercised strict control over the abusive and illegal dismissals of employees of the private sector. For teachers, however, this was never enough.

The abolition of private education would lead to a reasonable (?) Request to hire private school teachers in the public sector to meet the needs that would arise.

The termination of employment contracts of civil servants (and public school teachers)

Termination of employment contracts of civil servants

It is interesting to see the provisions and conditions for the dismissal of civil servants (: Law 3528/2007) -other than those concerning criminal convictions.

(a)

Under Article 152 (: Grounds for dismissal):

“The employee shall be dismissed only for the following reasons:
1. a) the imposition of a disciplinary penalty of permanent cessation;
2. b) physical or mental incapacity,
3. c) removal of the position in which they serve,
4. d) completion of the age limit and of thirty-five years;
5. e) unsuitability according to article 95 of this Code “.
(b)

Under Article 95 (: Referral of an unpromoted employee):

“An employee who is registered in two consecutive lists of non-promoted to the same degree, is referred within two (2) months from the ratification of the relevant list to the service council, which, with a justified decision, and after the employee has been previously summoned in order to provide the necessary clarifications in writing or orally, may dismiss or demote the employee to some degree. An objection to this decision may be submitted to the Secondary Disciplinary Council “.

The basic conditions for dismissal of a civil servant

Continuing, let’s keep in mind that the public school teacher is dismissed from their position (after the two-year, probationary period) for reasons of: (a)… (b) physical or mental incapacity, (c) abolition of the position in which they serve, (d ) … and (e) unsuitability resulting from their inclusion for two consecutive years in two consecutive tables of non-promoted. Let us also look for the relevant provisions regarding the conditions of the termination of the employment contracts of private school teachers according to the pre-existing law.

The termination of private school teachers’ employment contracts – until recently

The institutional framework that was in force during the last three years – until the implementation of law 4713/20

Based on article 30 of law 4472/2017 (: Employment relationship, duration of contract-termination of employment relationship):

«1. Teachers in private schools are employed on a fixed-term or indefinite-term basis as defined in the following paragraphs.
1. Private school teachers are proposed for recruitment by the owner of the private school and after the approval of the proposal by the Director of the relevant Directorate, they conclude a fixed-term contract, which starts on the day the services are provided by the teacher and ends on August 31st of the second year from their recruitment. At the end of the two years the owner can terminate the contract. After the lapse of two years and if the contract is not terminated according to the above, it is automatically converted into a contract of indefinite duration.
2. The contract for an indefinite duration may be terminated only for the following reasons:
3. a) If the employer invokes and proves a sufficiently justified disturbance of the educational climate in the school due to the inability of the employer-teacher cooperation.
4. b) Shutting down of schools.
5. c) Shutting down of classes and class divisions. In this case, it is permissible to dismiss those who have the least previous experience in education and their working hours are zero. Teachers who also the owners of the schools are excluded from these redundancies.
6. d) Completion of the 70th year of the age of the teachers.
7. e) Private school teachers are fired by the owner of the school they work at, due to:
(aa) physical or mental incapacity ascertained by the local primary health committee concerned and, at the objection of the person concerned, by the secondary public health committee;
1. bb) completion of the service time that establishes the right to receive a full pension from an insurance institution of private school teachers. In this case, the termination of the employment relationship occurs at the end of the academic year,
(cc) the imposition of the disciplinary penalty of dismissal by the relevant disciplinary board;
1. dd) didactic, pedagogical or professional inconsistency based on at least two (2) reports and relating to at least two (2) consecutive teaching years with criteria determined by the Institute of Educational Policy, the first of which is prepared by the school principal and is notified to the competent educational project coordinator who has the scientific responsibility of the relevant branch and the second is prepared by the school unit director and notified to the above educational project coordinator, who adds an additional report, if they deem it appropriate and especially if their opinion differs from that of the Director.
(….)
1. A private school teacher is automatically dismissed, if he / she is sentenced by an irrevocable decision to a penalty resulting in dismissal for the civil servants.
(…)
1. The employment contract between the owner of a private school and the teacher is terminated upon death, disqualification, acceptance of resignation and termination of the employment contract and a relevant act is issued by the competent Director of Education.
The legality of the termination of the employment contract for the reasons provided in indent a` and sub-indent dd` of indent e` of paragraph 3 is decided by an independent Committee, which examines whether the employment contract was terminated legally and whether the termination is abusive or not and rules on the matter.

This Committee is established by a decision of the Minister of Education, Research and Religions, which is issued within one month from the publication of this, and consists of:
1. a) One (1) Judge of the Court of First Instance, as President, with their deputy, serving in the Labor Disputes Department of the Court of First Instance pf Athens…
2. b) Two (2) Judges of the Court of First Instance serving in the Labor Disputes Department of the Athens Court of First Instance with their deputies….
One (1) representative of the Federation of Private Educators of Greece and one (1) representative of the most representative employers’ organization nominated by its decision shall be present as observers, without the right to vote, at the meeting of the Committee.

…

The above Committee also takes into account the official reports, and meets and makes a mandatory decision within ninety (90) calendar days from the termination and submits its proposal to the competent Director of Education, before which it expresses its judgment on the legality of the termination of the employment contract, as stated above. The Director of Education has a binding authority to issue a relevant decision on the dismissal or not of the teacher, in accordance with the content of the Commission proposal within three (3) days from the submission of the proposal to them. This decision shall be notified to those concerned. In case of expiration of the said deadline, the legality and non-abusive nature of the dismissal is presumed. The termination of the teacher’s employment contract does not produce legal effects before the expiry of the deadline for the issuance of the relevant decision of the Commission. Following the issuance of the decision of the Director of Education, the interested parties can appeal to the competent administrative courts. In case of untimely issuance of the decision established by the Commission and until its issuance, the above procedure is not required for the termination of the contract.

“Dismissals of private school teachers that take place without following the above procedure are invalid.”

Conclusions

Comparing to the reasons for dismissal of public teachers

Private school teachers during the past three years could be fired:

(i) If the employer invoked and proved a sufficiently justified disturbance of the educational climate in the school due to inability of cooperation between the employer-teacher cooperation

(ii) In case of abolition of schools, classes and classrooms

(iii) In case of physical or mental disability

(iv) In case of retirement

(v) In case of imposition of the disciplinary penalty of dismissal by the relevant disciplinary board

(vi) In case of didactic, pedagogical inadequacy or professional inconsistency based on at least two (2) reports and concerning at least two (2) consecutive teaching years.

Does all this remind you of anything?

Let’s look at the reasons for terminating the employment contracts of civil servants…

The legality of terminating the employment contract of a private school teacher.

For ordinary mortals, the legality of the termination of their employment contract was determined a judge (: Single Member Court of First Instance). It seems that it was not enough to determine the legality of the termination of the employment contract of a private school teacher. Under the pre-existing institutional framework, three judges were required. Also, two observers (one of whom was a representative of FPEOG).

Could we claim that private school teachers were not treated favorably? Does this seem right?

The termination of private school teachers’ employment contracts-today

With par. 1 of the provision of article 10 of law 4713/20, article 30 of law 682/1977 is replaced. Their employment relations are henceforth governed by the “current provisions of common labor law” (par. 1).

But the protection of teachers did not fall exactly to the level of other working-class mortals. A privileged treatment is still reserved for them.

Specifically, in the next paragraph (par. 2) we read: “During the judicial review of the legality and possible abuse of the termination of the private school teacher’s employment contract… it is particularly examined whether the complaint constitutes an unfair employer reaction to the legal and contractual conduct of the private school teacher”

The process of replacing private school teachers (and “dismissing” them) is now governed by labor law.

It proves to be extremely interesting (both from a political and a socio-economic point of view) for someone to go through the “achievements” of the private school teachers’ trade union. Over time. From the year 1977 (especially) until quite recently.

One can also witness the evolution of a part of the political history of Greece.

They will not, however, witness a modern development model. Quite the opposite.

They will also not witness a measure of fair treatment of employees.

They will witness a means of dividing employees into “patricians” and “plebeians”. Or, to put it in Greek terms, into “free” and “slaves”.

The injustices (of decades) have been removed.

In the field of private education.

For other employees in the private sector.

It turns out, in the end, that some employees or industries should not be treated as “sacred cows”. Our faith on the Constitution (article 3) does not provide for their existence.

In the end: mourners were those women in black who usually mourned the dead, for a fee. It was, in the recent past, a profession. We met them again, on the occasion of the (recent) “loss” of specific privileges of private school teachers.

As far as I am concerned, however, I boldly declare that no tears were shed on the right cheek for the lost privileges of private school teachers.

And this is because the capable private school teachers (and not only the excellent ones) have no need for them.

On the contrary!

Besides, with their presence they brighten, for a long time now, the field of private education…

And, fortunately, they are the vast majority ..

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (September 6, 2020).

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.
September 6, 2020
Criminal record and employees: The employer’s right to information

It is important for any business to know its employees. For some, it is not only important but also valuable. Could we trust the management of money to irrevocably convicted for financial offenses employees? The care of children or the transfer of students to their school to employees involved in cases of child pornography? Involvement (or not) in criminal offenses is certified with the criminal record certificate. Does the employer (or prospective employer) have the right to require such a certificate to be handed to them? Could one argue that not only a right but also a relative obligation sometimes exists?

Employment contract and personal data

The parties undertake, in each contract, specific obligations. Main or secondary. The same happens in employment contracts. The obligation of the employer to protect the personality of their employees is included among them. In protecting the employees’ personalities, they must also protect their personal data.

We have repeatedly been concerned with the possibility of collecting and (further) processing personal data of employees. The focus of our interest was, each time, the individual categories of personal data. We were concerned, for example, with the issue of monitoring and visually recording in the workplace. With the right (or not) of the employer to monitor the e-mails of their employees. We were also concerned, throughout the pandemic, with whether the employer is (or not) allowed to process sensitive personal data. More specifically, the health data of their employees.

In this article we will try to investigate the employer’s right to request from an employee (or prospective employee) a certificate for their criminal record.

The criminal record – Distinctions

The Code of Criminal Procedure distinguishes between two types of copies of criminal records. That for general and that for judicial use (271 par. 1 CCP).

The copy for judicial use

The contents of all criminal records, except those that have ceased to be valid, shall be recorded in the copy intended for judicial use. Despite its detailed content, it is administered to a limited, explicitly listed number of persons. Mainly intended for public services and public officials.

Among the cases explicitly mentioned in the Code of Criminal Procedure is the appointment of judicial officers, teachers of all levels, officers of Law Enforcement and candidates for admission to the academies of the Armed Forces and the Law Enforcement (57 CCP).

The copy for general use

The copy for general use shall contain the contents of all criminal records, with the exception of those:

(a) showing a fine or community service or imprisonment for up to six months after the expiration of three years;

(b) stating a sentence of imprisonment of more than six months or a sentence of confinement in a psychiatric ward after the lapse of eight years;

(c) which indicate imprisonment, after the lapse of twenty years (571 par. 3 CCP).

The respective employer can (theoretically) be given a copy for general use only. After all, “… where the law provides for the issuance and providing of a copy of any type or extract of a criminal record, a copy for general use shall be provided.” (570 CCP).

The conflict of interests of both sides

The employer seeks to develop a relationship of trust with their employees. For this reason, they may want / treat as necessary the receipt of the employee criminal record. Even as a condition for their hiring.

The relevant claim of the employer seems reasonable and, above all, legal. Sometimes, as mentioned above, imperative.

An unhindered requirement of criminal records of employees would affect two protected legal goods. Protected, in fact, by the Constitution itself.

The first is the presumption of innocence. However, since in the general criminal record (to which, in theory, the employer is entitled to have access) the irrevocable, only convictions are recorded, the specific good does not look, in the end, affected.

The second is the protection of human value. It covers, of course, the irrevocably convicted, imposing care for their social reintegration. A strict and comprehensive requirement for the absence of (any) criminal conviction would minimize the possibility of social reintegration. Even on the basis of the professional activity of the convicted person as a self-employed person.

But there is also the dimension of personal data protection. An indiscriminate requirement of criminal records of employees would run counter to the principle of proportionality. It would be an overstepping of the processing purpose. In this case, exceeding the protection of the legal interests of the employer. At the same time, it would conflict with the right to oblivion. But when would personal data protection law justify such processing?

They pre-existing law

The legislative framework

Based on the pre-existing law (Law 2472/1997) the criminal record was explicitly included in the category of sensitive personal data. According to article 2 b’ of Law 2471/1997, sensitive data were defined as the “… data concerning racial or ethnic origin, political views, religious or philosophical beliefs, participation in trade unions, health, social welfare and love life, criminal prosecution or conviction, as well as participation in associations of persons related to the above “.

The collection and further processing of the criminal record as sensitive personal data was, consequently, prohibited (Article 7 §1). It was allowed, exceptionally, under the conditions explicitly provided by law (Article 7 §2).

The position of the Personal Data Protection Authority

This issue has always been important. The Authority had to comment several times on the possibility of processing sensitive personal data. Among them, the criminal record.

The subject of some of its opinions was, precisely, the possibility of collecting and further processing the criminal records of the employees by the employer. Its position was gueded by the legal framework in force at any given time. Also, the effort to harmonize the conflicting interests of both sides.

The Authority, in a series of its opinions (including: nos. 101/2016, 4/2013, 115/2001), came to the following conclusions:

The collection and processing of personal data related to the absence of criminal convictions of the candidate for a job was possible when (explicitly and specifically) provided by law. In other words: The law may provide for the mandatory submission by the employee of a criminal record certificate, which will result in the absence of a conviction for specific crimes. Indicative: for the recruitment and occupation of positions in the banking sector, in the companies providing security services (security companies), in the stock broking companies, in the debtor information companies for outstanding debts, and so on.

Would it be possible for this collection and processing to take place without a specific legal provision that would make it permissible?

Such a legislative provision would be, according to the Authority, the provision of article 7 §2 g’ of Law 2472/1997. Provided, however, that the fundamental principle of proportionality is respected in view of the alleged purpose of processing. The protection, for example, of the conceptual interests of the employer.

In particular, the Authority required that the following conditions be met:

(a) The collection of information on the absence of a criminal conviction directly and only from the employee or candidate concerned.

(b) The exclusion of the collection and further processing of copies of criminal records of general use, as they exceeded the alleged purpose of processing. And this, in particular, because such processing could reveal the existence of criminal convictions, which had nothing to do with the main economic and productive activity of the employer company – as the controller.

(c) The qualification of the collection and processing of Official Declarations for the absence of irrevocable conviction (instead of a criminal record) by the candidates for a position. In fact, the absence of a conviction referred to in the Official Declaration should, according to the Authority, relate to acts recorded in the general criminal record.

(d) The collection and further processing of the above Official Declarations not for all categories of staff but for those, only, related to the main economic and productive activity of the employer, as a controller. This relationship arose from the duties of the employees of these categories based on their employment contracts and the document announcing the terms of their work (p.d. 156/1994).

(e) The observance of the above data for a specific time. That is, for a period of 5 years from the termination of the contract for those employed. Whereas, for the candidates who, in the end, were not recruited, for a period of 6 months from the completion of the recruitment process (announcement of recruits).

The applicable law

The legislative framework

Law 2472/1997, which was taken into account by the Authority for its above Opinions, has been repealed.

As of May 25, 2018, the General Data Protection Regulation (EU) 2016/679 (“GDPR”) has entered into force.

GDPR does not place the criminal record in the special category of sensitive personal data (Article 9). However, it reserves a more specific regulation.

To be precise, article 10 of GDPR mentions that “Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. 2Any comprehensive register of criminal convictions shall be kept only under the control of official authority.”

It is therefore doubtful whether the Authority ‘s Opinions now have any legislative basis.

Based on the Authority’s Opinions, the collection and processing of the employee’s criminal record by the employer, as well as any information of personal data relating to the absence of criminal convictions (eg Official Declarations), was, in principle, prohibited. It could, exceptionally, be carried out under the conditions set out by the relevant law.

However, under the current legal framework, the processing of personal data relating to criminal convictions and offenses or related security measures is carried out exclusively “under the control of an official authority”.

In order for such processing to take place by an informal authority (in this case by the employer) there is an important condition. It must be provided for and allowed by Union law or the law of a Member State which provides for adequate guarantees of the rights and freedoms of data subjects.

However, the Greek law implementing the GDPR, ie Law 4624/2019, does not provide for a corresponding regulation.

The position of the Personal Data Protection Authority

The Authority, in its Opinion No 1/2020, makes the following assumptions:

“While the provision of Article 10 of the GDPR shows that the national legislature is empowered (the ‘opening-specialization clause’) to take the necessary measures to provide adequate guarantees for the processing of personal data relating to criminal convictions and offenses, nevertheless No relevant measures are taken by law, nor does the explanatory memorandum indicate the reason for this omission.

In any case, even if the national legislature intended to take measures to implement Article 10 of the GDPR into specific sectoral legislation, contrary to its choice in relation to Article 9 of the GDPR, such measures have not yet been taken, thus making it largely impossible to apply the provision of Article 10 of the GDPR. ”

Therefore, based on the assumptions of the Authority, the receipt of an employee’s criminal record by the employer can still take place under those cases that are explicitly provided by a specific provision of law. However, unless there is an explicit provision in an applicable law, obtaining such a criminal record is not allowed.

As a result, in cases where there is no explicit legal provision, the collection and processing of personal data concerning criminal convictions and offenses of the employee by the employer, cannot be carried out.

In some cases, the employer’s knowledge of the criminal record of their employees (or prospective employees) proves to be important. Sometimes we would even say that the relevant claim is crucial. Shouldn’t an employer know if their (candidate) treasurer has been involved in financial crimes? A caring son if the lady he hired to take care of his elderly father has been involved in crimes against life? A father for the girl who takes care of his daughter or a mother for the teacher who tutors her son in the lessons if they have been involved in crimes against sexual dignity?

The issue turns out to be even more serious and complicated when third parties are (among) the ones who make strong (albeit tacit – as self-evident) relevant claims. Would we criticize the claim of a parent to know that the driver and the attendant of the school bus with which his children travel, have not been involved in crimes of child pornography?

What should we say to all of them? “You know the legislator has not made any relevant provision, so we are not entitled to request a criminal record for these employees.” How logical, moral and fair, after all, does it seem?

Let us not have reservations that the failure of the legislator to include in the (implementing of the GDPR-Law 4624/2019) provisions “for the processing of personal data concerning criminal convictions and offenses” proves to be problematic.

It is a given (obviously and self-evident) that the relevant omission must be remedied quickly.

Until then: I personally would have a hard time fault (more precisely: I could not fault) the caring son who demands a criminal record from the lady who he wants to hire to take care of his elderly father, the mother from the teacher who tutors her son, the father from the girl who babysits his daughter and the headmaster from the drivers and attendant of the school buses …

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (August 16, 2020).

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.

August 16, 2020
New law on private education: back to the likable, for some, Middle Ages?
We are facing the new law on private education (: Law 4713/20, Government Gazette 147 / A / 29.7.20). Opponents and supporters of the law alike will certainly agree on one thing: this is, indeed, an important piece of legislation. A piece of legislation that came to overturn data and acquis. To disturb, according to others, stagnant waters.

Its value and importance

The institutional framework, which this law replaces, intails a “favorite”, for many, subject of discussion. For decades. It concerned, after all, teachers, employees and owners of private schools. It concerned, of course, the students who attend them. Of course, their parents too. A respectable, that is, part of the population of the country. Not to mention those who are indirectly affected.

With this law, drastic interventions take place in the (basic) legislation that would celebrate, in a little while, half a century of life (: exceeding by a lot, indeed, the life expectancy of a law). In fact, the interventions are of such an extent that we can talk about a “NEW law” that governs private education. The reactions, from the very stage of the consultation, have been intense. In fact, the arguments both for and against it were maybe too intense. Even from people who do not seem to have bothered to read it.

But what is really true?

Let us try to approach the new law with sobriety. Through the most important of its provisions. Ten (probably) “provocative” questions will help us approach it more clearly.

However, it is worthwhile to precede a brief introduction about the State and permanence (in general) but also about the intentions of the legislator (in particular).

Regarding the (always attractive) State jobs and guaranteed job security …

Most of us seniors were nurtured (at least for the most part) by the idea of a “public office”. A public sector that provided the “lucky ones” with the security and stability of the “Salary”. And, above all, permanence / guaranteed job security. The extremely high interest in getting one was not, therefore, “too crazy”.

Confirmation of the attractiveness of State jobs: the “clientelistic state”, the reasons for its creation and the (dramatic) consequences of its existence.

And the same confirmation from another point of view: minimum grade required to get accepted in a university. Philosophical School e.g. had, in those years, a minimum grade requirement higher than Law School. Notice their difference? The first provided a guaranteed job for the State. Recruitments were not based on abilities but on time spent waiting to get hired. But with time, things changed. Additional procedures and exams were introduced for being hired for a State job. ASEP has been mediating for more than 25 years. However, in some periods the “restoration” was direct and independent of ASEP (eg the pedagogical schools during the first decade of 2000). Job security, however, is always present in the State. It is, moreover, known that the fulfillment of the necessary criteria at the time of occupying a position, remains a factor sufficient and capable of securing it, for life.

For those not so familiar with the concept, the maintenance of public privileges in a specific sector of the economy makes an impression. In that of private education.

… but also regarding the legislator’s intentions on the “wrong doings”.

Based on the explanatory memorandum of the law, regulations are introduced, which focus on three main pillars:

“A) Enhancing the ability and flexibility of private schools to provide additional educational services, to formulate and organize more freely their extended timetable …” but with a parallel obligation to follow at least the respective timetable of the Ministry Of Education and Religions “.
1. b) Enhance the ability of private schools to better manage their human resources, including the selection and appointment of principals and the evaluation of educational work and teachers, in compliance with current labor law.
2. c) Strengthening the freedom of private schools, regarding the use of their facilities and infrastructure, so that their more efficient use is possible “
But are the legislator’s intentions pure?

It seems that not everyone agrees!

Strong reactions came with the new law, starting from the moment it was submitted to the parliament. The reactions come mainly from teachers’ unions. Also from a portion of the opposition. As they claim, the new regulations signal a “return to the Middle Ages”. The modernization proclaimed by the new law is, according to its opponents, an “empty promise”.

But let us proceed to the analysis of the (most critical) provisions of the new law through ten, rather interesting, questions.

Question 1: Is the evaluation of teachers and the educational work done, finally, with “unwritten” rules? And, in fact, at the free will of the “boss”?

The data:

The provision of article 2 stipulates that for the evaluation of the educational structures, the teachers but also the educational work of the private schools, the corresponding criteria that are used in the public schools are used in a similar way.

However, it is possible to use additional criteria.

For the application of these -any- additional criteria, their prior provision is required in the Internal Rules of Operation of each private school. It is pointed out that we are not talking about differentiated but about additional criteria. The goal behind providing the freedom to introduce additional criteria? The freedom to deepen the evaluation procedures by private schools, depending on the individual physiognomy of each one.

Therefore:

The evaluation of the structures, the teachers and the educational work done is carried out, in an objective way, based on the criteria set by the State. Any additional criteria must be provided in the Internal Regulations of the Operation approved by the relevant Director of Education.

Question 2: Will there be a curriculum in private schools? Or, finally, will each private school follow its own curriculum and provide whatever services and activities it chooses?

The data:

(a) Regarding the Timetable:

Private schools are required to follow the timetable and syllabus of the Ministry of Education and Religions – as will be the case each time. The same, that is, with public schools. In this way, the overall state supervision of the educational process for both public and private education is achieved (par. 1).

(b) Regarding additional educational services

In addition to the compulsory timetable, private schools are entitled to provide additional educational services. These services are provided during extended hours.

However, they presuppose (par. 2) that:

(i) The extended timetable may not exceed 40 hours for each grade level.

(ii) The additional educational services, which concern all students, are notified (included in the extended schedule), to the Directorate of Education and

(iii) The working hours of teachers under the extended schedule for the provision of additional educational services are subject (if assigned) to the hours of regular weekly teaching.

(c) Regarding the afternoon and extracurricular activities

These activities are optional. They are not part of the schedule (neither the mandatory nor the extended). They are performed after the end of the program schedule. As they do not constitute a regular weekly teaching, the regulation of the time limits of employment and the remuneration of the teachers is regulated by labor law (par. 5).

(d) Co-location of private schools with language centers, tutoring centers and other educational institutions

The new law restores the possibility of private schools being under the same roof with language centers and tutoring centers (par. 6). At the same time, it allows the co-location with other private schools, foreign schools, lifelong learning centers and other bodies, (as they are provided in sub-par. I3 of par. I of article one of law 4093/2012).

Therefore:

According to the provision of article 3, the operation of private schools is placed within extended, but clear, limits. Clear provisions are made for: (a) the timetable, (b) additional educational services, (c) afternoon and extracurricular activities, (d) co-location of private schools with language centers, tuition centers and other educational institutions. These limits are defined as absolutely binding for private schools.

Question 3: Is the role of the Director of Education becoming decorative?

The data:

The role of the Director of Education (as the latter is selected under Article 30 of the new law) becomes crucial. The Director of Education is the one who, based on article 4 of the new law, judges the contradiction or not of the Regulation of Operation of the private school with the current provisions and proceeds (or does not proceed) to its approval.

In addition, the important role of the Director of Education is demonstrated by the fact that they make decisions on the appointment and replacement of Principals and Deputy Principals of private schools (as discussed below in question 7).

Therefore:

The role of the Director of Education is proving to be anything but decorative. Among their essential and important responsibilities is the approval of the Regulations for the Operation of Private Schools that they supervise. Also, the appointment and replacement of their Directors and Deputy Directors.

Question 4: Was the manipulation of the teachers finally achieved through the recognition of the owner’s right to participate in the meetings of the Teachers’ Association?

The data:

There has been a lot of talk about the provision of Article 5 of the new law. And, obviously, without any reason whatsoever. The participation of the owner, if they are a teacher, in the meetings of the Teachers’ Association is not new. It was also provided for in the pre-existing law (article 9 par. 3 of law 682/1977). The new provision simply extends the same possibility and under the same conditions to the members, partners and shareholders of the owner-legal entity, in those cases where the owner is not a natural person. The reason? The different, now, organization of many private schools and the non-existence of only one owner-natural person.

Therefore:

The owner of a private school had also in the past the right to participate (anyway – as long as they were a teacher), in the meetings of the Teachers’ Association. The exercise of this right has simply expanded. Owners of the legal entity to which the private school belongs are now entitled to exercise it. Under the same, self-evident condition: that they are teachers.

Question 5: Is it necessary to promote the competition between private schools? And, in addition, should it be borne, again, by the “usual suspects” -teachers?

The data:

Article 6 of the new law adds to the current regime of law 682/1977 (article 12 par. 4) the possibility of further utilization of the facilities of private schools. Their field of their activity is expanding. The (healthy) competition between them is strengthened. Therefore, so does their effort to provide more and quality upgraded services. The only beneficiaries will be, of course, the students.

Expanded educational services obviously require the employment of adequate human resources. New jobs are expected to be created. Especially in the teaching industry – a sector with high unemployment.

The further (additional) employment of teachers is protected by the provisions of labor law. Both in terms of pay and working time limits. This, additional, employment is introduced as optional. It requires, of course, the consent of the teacher. Therefore, any reaction to the misappropriation of teachers in the provision of additional services by private schools is, in fact, against the effectiveness of the labor law itself. The arguments of the opponents of this regulation, perhaps, should look for different bases.

Therefore:

The actions and educational services provided by private schools are expanded, within a predetermined framework. This will benefit not only the competition between them but also, of course, the students. Teachers’ involvement in specific actions and services is not defined as mandatory. In any case: teachers are protected by labor laws and working time limits. The increase of jobs is also logically expected.

Question 6: Will the operation of the private schools be governed by clear rules or is it logically left to the good mood and business freedom of the owner?

The data:

The provision of Article 7 of the new law makes clear provisions regarding the enrollment, transfer and studies of students in private schools.

It clarifies that the rules that apply to students in private schools apply for specific issues. Regarding, in particular: the beginning and the end of the school and teaching year, the registrations, transfers, absences and tests, the grade, the disciplinary penalties, the repetition of the students, the promotion and the dismissal of the students.

It also provides for the direct transfer of a student from a private to a public school, from a public to a private or from a private to another private school, of the same or another owner, throughout the school year. Also: the registration of students in the order of acceptance by the school of their registration application.

It clarifies that the non-re-enrollment or removal of a student from the private school during the school year is not allowed for reasons of poor performance. It allows it for specific reasons. However, in any case, by decision of the Teachers’ Association: (i) for disciplinary misconduct of the student, (ii) for violation of the internal regulations of the school.

Finally, it makes the re-enrollment of a student non-mandatory in case of non-full payment of tuition fees of two (2) school years. The latter regulation aims to discourage strategic defaulters at the expense of the school and, ultimately, other parents.

Therefore:

The rules governing the operation of private schools are not left to the owner. They are set, in a clear and strict way, by the State. The State is the one that, basically, governs the operation of public schools as well. The special arrangements are basically in line with the specific nature of private schools.

Question 7: Principals and Deputy Principals: Whoever the headmaster choose?

The data:

According to article 8 par. 1 of the new law, the Principal of the private school and the optionally appointed Deputy Principals are appointed and replaced by a decision of the Director of Education. The owner of the school simply nominates the (according to them) suitable person for the position of Principal. Their powers were not mentioned.

Furthermore, according to par. 2 of article 8, for the appointment of Principals and Deputy Principals, the assistance of the formal conditions that apply in public schools is claimed. In this case too, however, the assistance (or not) of the required conditions will be judged by the relevant Director of Education.

Therefore:

The selection, placement and replacement of Principals and (possibly) Deputy Principals of private schools is governed by specific criteria and rules. But it is not the privilege of the owner. It is at the discretion of the Director of Education.

Question 8: Was a legal excuse found to reduce teachers’ salaries?

The data:

Article 9 par. 1 of the new law defines the framework within which it is possible to reduce the working hours of teachers. However, their relevant willingness and request is required.

This regulation recognizes a (self-evident) right of teachers.

However, there is another possibility: the non-completion of the working hours of teachers appointed to them when they were hired. Of course, in this case, the teacher’s salary will be correspondingly reduced.

Paragraph 2 of Article 9 regulates issues of strengthening the employment and income of teachers. The possibility of providing their services to schools, foreign language tuition centers and other bodies of the same or different owners is provided. It is therefore possible to boost their income from more sources. The relevant obstacles of appointment are removed.

Therefore:

Teachers’ employment and remuneration are streamlined. However, the possibility of additional employment and income is provided. For the most capable ones. For those who, in the end, will choose it.

Question 9: Are teacher redundancies finally becoming free and not subject to any controls?

The data:

With Article 10 of the new law, private teachers’ employment contracts are placed on a new, completely new basis. They become, in particular, of indefinite duration. Consequently, the recruitment, employment and termination of the contractual relationship are now governed by the provisions of common labor law. (With the explicit reservation of the special provisions for private teachers-especially of article 36 of law 682/1977).

This regulation does not equate to free redundancies, as is (rather in bad faith) supported.

In addition, we must take into account that in other, important, sectors of the economy (which we would characterize as of public interest – eg the health sector) employment contracts are also governed by labor law. (Further: Do we not adequately take into account the ills of job security in the public sector?)

We are talking about the constitutional requirement of the protection of private education (as well). But should we not also take into account the constitutionally protected economic and business freedom?

The owners of private schools bear the entire business risk of the school activity. Is it not really understandable why the removal of a teacher who is not fulfilling their responsibilities should be prevented? Who else is harmed, in this case, besides our students – our children? And yet: why should a teacher enjoy higher protection than other employees in critical areas? From a doctor e.g. and in exactly the same context: For what reason, then, should a teacher (good or bad) enjoy a tenure corresponding to that of a civil servant while a doctor does not?

And regardless of all this: The allegation of free and uncontrolled dismissals of teachers seems completely groundless. Labor law prohibits termination of employment contracts for unlawful reasons. This regulation specifies, in addition, and further extends this prohibition.

Therefore:

The inability to terminate teachers’ employment contracts seemed neither a logical nor a legally appropriate choice. The logic was simply restored by including teachers’ contracts in the protection of labor law. And this protection is, and remains, absolutely strong.

Question 10: Are we in danger from the operation of foreign schools?

The data:

The provisions of articles 12 and 13 of the new law facilitate and strengthen the operation of foreign schools. They now have the opportunity to operate schools of other levels of education, from those for which they were originally established. They also now have the opportunity to bring to Greece and employ foreign teachers. For the latter: For what reason, is the corresponding possibility not provided in Greek private schools?

Therefore:

We are not in danger from the operation of foreign schools. Strengthening and facilitating their operation contributes to healthy competition. And this can only be for the benefit of the students. It is desirable, in this context, to provide the possibility for Greek private schools to recruit foreign teachers.

Some people like to talk about “sacred cows”.

Some, in fact, want to believe that they do exist.

Personally: I DO NOT.

And even more: I do not intend to co-protest in Klafthmonos Square (or anywhere else) for the abolition of privileges harmful to fair play, healthy competition, education and, ultimately, the country and its development.

After all: the drastic intervention of the state in the field of entrepreneurship has historically proved to be an obsolete model. It was time for the necessary corrective actions to take place in the field of private education as well.

The (new) law frees private education from a completely anachronistic and outdated regulatory framework. It is undoubtedly moving in the right direction.

For its positive effect we can all, safely, take a stand.-

Stavros Koumentakis
Managing Partner

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.
August 9, 2020
Apprenticeship Agreement

Acquiring professional experience is a common problem of pupils and students all over the world. Without professional experience, the coveted recruitment seems extremely difficult. Even access to some postgraduate studies is difficult. The solution to this problem? In Greece, the apprenticeship agreement. In the global level, internships. Two sides of the same coin. What is the regime that governs them? The issue seems to concern (less apprentices and) mostly businesses. The fear, for example, of the Labor Inspectorate and the possible litigation claims and administrative sanctions. But let us try to better understand the whole issue. After all, more such contracts and relationships are in place during the summer.

The apprenticeship contract -over time

The apprenticeship contract is not an unprecedented or “imported” institution. We also find it in ancient texts. The issue of regulation and the limits of this relationship has been the concern of those involved ever since.

The Greek philosopher Aristippus (435-355 BC), is said to have received a “salary” from his students. But he made it clear that it was not to make a living but to teach them to spend for the good, the right, things. (:”Aristippus receives a fixed salary from his students, not as a means of living, but for them to learn to spend money at what is good”).

In the older, especially, Greek films we find the “paragio”. That is (the child, teenager or young person) who strives to “learn an art” next to the carpenter, the craftsman, the professional. But it wasn’t just in the movies. So it was in life. But then no one talked of the rights of the apprentice and the obligations of the company…

The internship

As already mentioned, internships are already very widespread in developed countries. Given how established they are, their implementation is very organized. We meet internships in many forms. Indicative: unpaid or paid (in full or partially), with physical presence in the company or from a distance, for a specific project or in the context of the general activity of the company and so on).

What are the restrictions of the apprenticeship agreement in our country?

The scope, seriousness and value of the apprenticeship agreement, emerges as self-evident. Risks (not theoretical) for businesses, are a given. There is, however, no relevant legislative restrictions on it. The case law took the floor, as it should. An apprenticeship contract is therefore, according to the jurisprudence, “… the contract in which one of the parties undertakes to transmit to the other the necessary empirical knowledge, for the exercise by the last of a defined profession or certain art” (Int. : 918/2017 Supreme Court 1592/2009 Supreme Court).

Can this contract be concluded for both fixed and indefinite duration? Does it fall within the limits and scope of labor law? Would it be possible for Aristippus, if he were alive today, to continue to demand a salary from his students? Or, even, should he? Or neither of the two? And what would happen to social security?

The way the legal order, and especially case law, approaches the apprenticeship agreement will help us answer the questions arising. But let’s start with the forms it can take.

The Forms of the Apprenticeship Agreement

In order for any contract to be subject to the provisions of a contract already provided for by regulation, the purpose for which the involved parties aim at its conclusion is sought. This is a common place for us lawyers.

And so do we in the case of contracts. Although there is no legislation, it is distinguished in its most specific forms, based on the purpose that prevails each time. These are the more specific forms: (a) the genuine apprenticeship contract and (b) the apprentice employment contract.

Particularly:

(a) The Genuine Apprenticeship Contract

In a genuine apprenticeship contract, the primary purpose is to provide training to the apprentice. This does not mean, of course, that the apprentice should refrain from providing any work. Such an assumption would deprive the apprenticeship contract of its practical and empirical dimension. Therefore, and as the case law consistently accepts, during the execution of the specific form of the apprenticeship contract “the provision of work by the apprentice is not done for the purpose of performing a productive project, but for the needs of their education and acquaintance with the object of their profession or art.” (ind.: 1373/2018 Supreme Court, 1791/2017 Court of Appeal of Thessaloniki, 1592/2009 Supreme Court).

The lack of relevant, specific, legislative regulation has already been mentioned. On the basis of this fact, what is required is the grid of provisions that govern the genuine apprenticeship contract. What is agreed between the parties is valid (361 CC-principle of freedom of contract). In addition, and, of course, proportionally, the provisions for the employment contract of the Civil Code may apply. A necessary condition is that the provisions of the Civil Code are in line with the nature and purpose of the genuine apprenticeship contract.

It is commonly accepted, however, by case law that some provisions of labor law do not apply to the genuine apprenticeship contract. Indicative: those that refer to the time limits of work, the legal remuneration, the termination of the employment contract, the severance pay and so on. The justification base is the fact that the above-mentioned provisions presuppose the provision of dependent work, a condition that is not a prominent element in the genuine apprenticeship contract (Int .: 1373/2018 Supreme Court, 1791/2017 Court of Appeal of Thessaloniki, 1592/2009 Supreme Court).

In this context, the apprentice’s salary is a product of an agreement with the employer. This agreement is not subject to the limitations of labor law. It can therefore be agreed that the employer will pay the apprentice salary (less than the salary of the trained employee) for the benefit derived from the latter’s work. And even more: it is possible to agree that the apprentice will either not receive any salary or that they will pay a certain amount to the employer for the apprenticeship. (So it seems that if Aristippus was alive today, he would not risk either lawsuits or fines from the Labor Inspectorate).

(b) As for The Apprentice Employment Contract

In the apprentice employment contract (as opposed to the genuine apprenticeship contract) the primary purpose is to provide employment in a business or holding. The parallel pursuit of education of the employee, in this case, does not constitute a special obligation of the employer. The issue, from another point of view: any parallel acquisition of knowledge or skills in a certain specialty or profession and the learning of the employee’s art, occur as an automatic consequence of the implementation of the contract and within the framework of its normal operation (int .: 1373 / 2018 Supreme Court, 1791/2017 Court of Appeal of Thessaloniki, 1592/2009 Supreme Court).

Moreover, it is firmly accepted by the case law that in this particular form of contract both the general and the special provisions of labor law (918/2017 Supreme Court, 2052/1990 Supreme Court) apply, “…as long as the purpose of the above contract is the provision of work by the apprentice, for a fee and an ancillary purpose is the learning of an art or profession by the apprentice, according to the instructions and directions of the employer”.

The Need for a Written Document

The boundaries between the apprenticeship contract and the dependent employment contract prove to be fluid and indistinguishable. This becomes even more understandable as we have already concluded (see our previous article) since the finding of employment contracts is, by itself, at times, a “problem for ambitious solvers”.

Both businesses and employees are at risk. The latter by the drafting of by appearance only apprenticeship contracts. The first (: businesses) by the difficulty of proving the existence of an apprenticeship contract. The solution to both of these problems is common: the written form of the apprenticeship agreement.

The content of the (written) apprenticeship agreement must include its individual terms. The type, in particular, of the education sought. In this way, the purpose of education will emerge more clearly. The purpose that distinguishes it from the contract of employment.

Terms such as the duration of the contract, any salary paid and working hours must be clearly stated in the contractual text. The corresponding gaps in the agreement, moreover, cannot be filled by corresponding provisions of labor law.

The Correct Legal Characterization

The designation by the parties of a contract as an apprenticeship contract is not binding.

As we have already pointed out in our previous article, the judge is the one who sovereignly evaluates any case of questioning the characterization of a contract, which is brought before them. As, the exact (correct) characterization of a contract is pre-eminently the work of the judicial autiority (Int .: Supreme Court 602/2017, Supreme Court 608/2014, Plenary Session of the Supreme Court 7 & 8/2011, Plenary Session of the Supreme Court 6/2001).

Special Apprenticeship Contracts

The Special Apprenticeship Agreement

This is a kind of contract that is, exceptionally, regulated by law. It is concluded between the employer and persons who have completed the 15th year and up to the 18th year of their age (article 74 par. 9 law 3863/2010 and article 1 par. 1 Act of the Ministerial Council 6/2012). Its maximum duration can not exceed one year. The terms of remuneration, insurance and working hours of the above apprentices are also regulated by the same provision. The provisions of labor law do not apply in this case. However, those concerning the health and safety of workers exceptionally apply.

Apprenticeship Contracts Through Educational Structures

All of the above apply to the apprenticeship agreements concluded between the employer and the apprentice. Without the intervention of a third party, without the intervention of an educational institution.

In Greece, however, since 1952, the organized apprenticeship system of the Vocational Schools (EPAS) of OAED has been operating. Now, in addition to EPAS, the apprenticeship is promoted, respectively, by Vocational High Schools and public Vocational Training Institutes.

At the European level, actions have been taken to strengthen the institution of apprenticeship. Indicative examples are on the one hand the Erasmus+ program and on the other hand actions that are part of the NSRF 2007-2013 and the NSRF 2014-2020. Some of them have been adopted by our country. It is therefore not uncommon to encounter programs and apprenticeships that are implemented with the intervention of, for example, university institutions or other educational structures which the apprentices attend.

The implementation of the specific programs is sometimes governed by special regulations (inter: the JMD No. 26385/2017 “Apprenticeship Quality Framework”). These regulations manage issues such as the compensation of apprentices, the announcement of their contracts at ERGANI, the financing of businesses, their employment conditions and so on.

The apprenticeship contract obviously is (and should be treated as) an opportunity.

First and foremost for the apprentices, as, through it, they are given the opportunity to gain valuable professional tools and experience -necessary for their next professional steps.

And then for businesses: They get the opportunity to look for future employees from the (potentially) huge pool of apprentices. In addition: the performance of simple tasks without cost (or at a small cost). To highlight their status by contributing to the vocational education of young people who are going to join the county’s workforce. Also, those who are in the process of reskilling.

The benefits of utilizing the institution of apprenticeship are both tangible and multiple. For apprentices, businesses and society. All that remains is to seize them.

The state should play its part. It is necessary to alleviate the legal uncertainty created by the lack of an adequate regulatory framework. It is necessary to take a clear demarcation of the individual forms of apprenticeship contracts. The individual rights and obligations of those involved (: business-employee). It is crucial (if not also necessary) to create incentives (eg tax alleviations) to facilitate the development of the institution.

After all: High level of training, supplemented with professional experience is not only valuable for future employees. It is also valuable for the companies that are going to employ them and, of course, for the national economy.

Stavros Koumentakis
Managing Partner

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.

August 2, 2020

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