Tag: νέος εργασιακός νόμος

Work Time Limits

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

Establishment of working time limits

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

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

The four-day work week

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

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

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

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

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

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

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

Break during working hours

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

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

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

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

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

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

Additional work of part-time employees

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

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

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

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

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

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

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

Stavros Koumentakis
Managing Partner

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

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

October 17, 2021
Employee leave (: work-life balance for parents and caregivers)

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

Dealing with stereotypes between men and women

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

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

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

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

Paternity leave

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

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

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

Parental leave

Its duration and subsidy

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

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

The conditions

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

Special arrangements for single-parent families

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

In case of co-service of both parents

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

In case of a fixed-term contract

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

Replacement with reduced working hours or part-time employment

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

Time of Insurance

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

Non-discrimination

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

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

Caregiver leave

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

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

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

Absence from work due to force majeure

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

Flexible regulations for parents and caregivers

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

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

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

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

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

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

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

Stavros Koumentakis
Managing Partner

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

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

September 21, 2021
Rest Time, Readiness to telework and Right to Disconnect

The readiness to provide work has already occupied us in our previous article (: 3/2020). We referred there to the forms of readiness to work that do not have a legal basis but are defined by case law (ie: actual, simple and call readiness). We pointed out the difference that is observed between the Greek case law and the case law of the ECJ in terms of defining the concept of simple readiness; consequently: in terms of the working time. Finally, we mentioned the risk of interfering with the employee’s private life due to the use of technology. As the traditional form of teleworking is increasingly being replaced, these issues are proving to be important and relevant. The rest time that the employee is entitled to, legally and morally, but also their right to disconnect – as a means of ensuring their rest time, are the issues that will occupy us in this article.

Call readiness and digital technology

The continuous availability / readiness of the employee for work, by utilizing / using digital technology, could be equated with call readiness (one of the forms of readiness). A readiness that, in practice, is achieved with the use of the employee’s laptop, tablet and even smartphone.

The employee is, through technology, continuously (on a theoretical, only, level?) at the disposal of their employer. As we acknowledged in our article mentioned in the introduction, the employee “… can, and is no longer unusual, undertake and perform a task that does not require their physical presence.” This was followed by repeated lockdowns and the need to adapt to new data. The emergence of telework as the main, in some cases, way of providing work, proved that the physical presence can easily, and to a greater extent, be replaced, than what we believed here in our country (: in the small “village” in the world).

During the gradual transition to pre-pandemic normalcy, we find that the provision of work with physical presence is increasingly being replaced by telework.

Our concerns at the time are becoming more and more relevant today: “Reading a professional e-mail could be considered equivalent to interfering with the employee’s private life.” The expansion of the use of digital technology at work and consequently, the increased potential for telecommuting, raises serious concerns. Concerns regarding, in particular, the application of the arrangements for working time limits – but most importantly: regarding the employee’s time of rest.

Call readiness and time of rest

Each 24-hour work period corresponds to a minimum rest period of 11, consecutive, hours (: Directive 2003/88-article 3).

Both the ECJ case law and the Greek case law exclude from working time (: therefore, they are included in rest time), the time when the employee is on call. Of course, provided that the employee was not ultimately called upon to work.

However, the means of digital technology provide the possibility of direct, but also instantaneous, communication between the employer and the employee. The latter is often called upon, (also) after working hours (and therefore during their rest time), to deal with matters relating to their work. Sometimes in minutes – maybe less. Often, a short e-mail or, respectively, a phone call is enough.

The major issue that arises, in this case, concerns whether the short-term, sometimes infinitesimal, employment interrupts the employee’s rest time. If we answer in the affirmative, a new (rest) period of duration of 11 (again) consecutive hours for the employee should start, after the interruption of their rest time.

Various views have been expressed on this issue. As far as we know, the issue has not yet been addressed by the ECJ, which could help to draw safer conclusions.

Among the other approaches, the (teleological) reduction of the scope of the provisions of Articles 3 and 5 of the Directive has been proposed (: daily and weekly, respectively, rest), for those cases where working hours outside working hours are too short. This view, however, is, quite rightly, strongly criticized. It is argued, in particular, that this interpretation would require an amendment of the Directive. Otherwise, the assumption of the provision of work for a short period of time, which does not interrupt the rest time, does not seem to be in line with the purpose of Articles 3 and 5 of the Directive (Zerdelis, European Labor Law, 2020, §7 / 42).

But we can go one step further: as the data has changed dramatically since this Directive entered into force, it proves necessary to re-approach its content.

The new labor law, the right to disconnect and readiness to provide telework

Does any short-term employment outside of working hours, through digital technology, in the end, interrupt the rest time? The answer is not easy.

However, the solution can be sought in the provisions of the new labor law (Law 4808/2021) in the case of telework and / or from its provisions-when telework is not provided.

Specifically, the new law provides for the right of disconnection for teleworkers (art. 67 §10 law 4808/2021). It stipulates in particular that: “The employee who teleworks has the right to disconnect, which is their right to abstain completely from the provision of work and in particular, not to communicate digitally and not to answer phone calls, e-mails or any form of overtime communication and during their legal leave. Any discrimination against an employee who teleworks is prohibited, because they exercised the right to disconnect…”

Also, in the same article, it is provided that: “In addition to the obligations under The Presidential Decree no. 156/1994 (A ‘102), within eight (8) days from the start of telework, the employer is obliged to inform the employee in any appropriate way, including by e-mail, the working conditions that differ due to teleworking, which include at least the following:

a) The right to disconnect of par. 10.

(e) Agreement for readiness to provide telework, its time limits and deadlines for the employee’s response.” (article 67 §5 a’ and e’ law 4808/2021).

Readiness to provide telework (as regulated by this law) should be compatible with work and rest time limits. The disclosure, in this context, of the working conditions by the employer, as required by law, should adequately (and contractually) define and structure the right of disconnection.

Telework not only entered our country’s labor relations violently but also (as we have repeatedly argued in a series of presentations, workshops and articles) “is here to stay”.

And it did.

The issues created by the new, at least for our country, specific form of work are many. And, not infrequently, serious and hard to solve. It is a given that not only the national but also the European legislator will be called upon, unfortunately a posteriori, to manage them.

Until then, we are called to manage them using the grid of tools provided by law.

Above all, however, it is necessary for each business that is to meet its needs through telework of their employees, to have a tailor-made employment contract entailing the working conditions regarding telework and readiness to provide it.

Stavros Koumentakis
Managing Partner

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

August 9, 2021

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