Koumentakis

Tag: τηλεργασία

  • Teleworking: The protection of the teleworker and the right to disconnect

    Teleworking: The protection of the teleworker and the right to disconnect

    The recent labor law (: law 4808/2021), reformed -among other things- the legal status of telework. In a previous article, we already mentioned issues related to the teleworking agreement and its terms. Concluding the basic overview of the issues that concern it, we will now attempt an approach to the issues related to employee protection as well as health and safety issues. Also, the extremely important (and interesting on many levels) right to disconnection.

     

    Maintaining the type of employment relationship

    The legislation on teleworking focuses, in particular, on the (multifaceted) protection of the (teleworking) employee.

    The (teleworking) employee can be employed under a contract of employment (full: full-time or part-time). The teleworking agreement does not affect or change the employment status and employment contract of the already employed (teleworking) employee. It simply changes the way the job is done.

    Additionally: Teleworking can be provided in full-time, part-time or rotational employment, solely or in combination with employment in the employer’s facilities (art. 67 §6).

     

    Prohibition of discrimination between employees and teleworkers

    Any discrimination between employees and teleworkers (§7) is not tolerated. The business is obliged to treat them equally – with the (self-evident) reservation of differences due to the nature of teleworking.

    Teleworkers are recognized with the same rights and obligations as the (comparable) employees employed on the premises of the enterprise or holding, in particular in relation to: (a) workload, (b) evaluation criteria and procedures, (c) rewards, (d) access to information concerning the enterprise, (e) their training and professional development, (f) membership in unions, (g) their trade union activity and (h) their unimpeded and confidential communication with the trade union representatives.

     

    Protection of personal data

    The monitoring of the teleworker’s performance by their employer must take place in a way that respects the privacy of the former. Also, it must be in compliance with the protection of personal data (§8 a΄).

    Particularly important (and on a practical level) is the explicit prohibition of the use of a camera to monitor the performance of the employee (§8 a΄). It is of course easy to understand that in cases where the use of a camera is allowed (inside: above the store cash register or in the context of the examination process for obtaining a certification, etc.) one could hardly imagine how the evaluation of the employee by their employer would not factor in (albeit implicitly) the recording of the relevant cameras…

     

    Protection of the health and safety

    The protection of the health and safety of teleworkers is a very important, complex and, practically, thorny issue.

    The teleworker usually provides their work from home (potentially from other places as well, eg telecentres). However, the actual fact of providing work from a place other than the business’s premises deprives, in practice, the employer of the possibility of controlling that space.

    This finding brings, in a way, the teleworking space to be under the term “workplace”. This is because the place of work is (: art. 3 §1 e’ law 3850/2010) every place “… where the employees are or go to because of their work and which is under the control of the employer”. A counter-argument to this position is, inter alia, the provision of clause 8 of the Framework Agreement on Teleworking. The latter explicitly provides for the possibility of the employer, employees’ representatives and the competent authorities to have access to the telework site, in order to be able to verify the correct application of the health and safety provisions. Clearly, after consultation with the employee.

    The fact of the impossibility of real control of the teleworking space seems to have been taken into account, to a certain extent, by the legislator.

    The employer, on the one hand, has the obligation (: art. 9) to (specifically) inform the teleworker about the business’s policy regarding health and safety at work. The relevant policy should include, in particular, the specifications of the telework site, the rules for the use of visual displays, the breaks, the organizational and technical means required to ensure the right to disconnection, and any other necessary elements.

    The teleworker, on the other hand, is obliged to apply the legislation for health and safety at work. They obliged (!), at the same time, not to exceed their working hours.

    Given, in fact, the specific practical difficulties with which the employer is faced, the legislator introduces a presumption of compliance with the above obligations. During the provision of teleworking, it is presumed (article 67 §9 law 4548/2018) that “… the teleworking space meets the … specifications and that the teleworker complies with the rules on hygiene and safety”.

     

    The right to disconnect

    For the first time in the national legal order, we see provisions for the identification and securing of the right to disconnection (: §10 article 67 of law 4808/2021).

    This particular right has already occupied us in our previous article. We have pointed out, since then, that this is a right reserved for teleworkers. We noted, however, its importance in those cases where the employee, given the technological development, may be employed after the end of their work (eg through answering phone calls and e-mails). Especially in cases of readiness to provide work. The above cases do not appear to justify (at least sufficiently) the differentiation. They also do not seem to justify the non-reservation of the right to disconnection in these cases as well, as is the case for employees teleworking.

    The right to disconnection consists (: §10) of the possibility / right of the teleworker «… to abstain completely from the provision of their work and in particular, to not communicate digitally and to not answer phone calls, emails or any form of overtime communication during their legal leave”.

    The specific, absolute, wording about banning any communication raises concerns, as it may lead to unfair outcomes for the business. Especially when emergencies or incidents arise that constitute force majeure (or are on the verge of constituting force majeure), and they make necessary the provision of telework – in excess of the schedule, of course. Based on the specific data, the teleological contraction of the specific regulation is deemed necessary. At the base, of course, of good faith.

    It must, of course, be accepted that the right to disconnection covers only communications which constitute provision work. This means that arrangements between the employer and the employee on the terms of employment (eg shift change) do not violate the right to disconnection. Therefore, it would be reasonable to consider that the employee is not entitled to refuse such communications.

    It is further provided (: §10) that, in order to ensure the exercise of the right of disconnection, “any discrimination against a teleworker is prohibited, because…”, precisely, they exercised it. A special regulation (art. 66 §1 g.j.d.) explicitly provides for the invalidity of a possible termination of the employment contract of a teleworker due to the exercise of the right to disconnection (as we have pointed out in a relevant article).

    Ensuring the teleworker’s right to disconnect requires a number of technical and organizational means. The specific means are, according to the law (art. 67-10), a mandatory condition of the telework contract and are agreed between the employer and the employees’ representatives. But such an agreement is not, in the end, necessary. When missing, the specific means are determined by the employer who then discloses them to all employees.

    A Presidential Decree is expected to be issued to determine, inter alia, these means (: §12-and immediately thereafter). However, from today, an interesting facilitation emerges: The disconnection of the employee can easily be achieved by the action of the latter or, more precisely, by their failure to communicate in any way (by telephone or digitally). Such an omission does not require (nor is it served) by technical or organizational means. The provision of such instruments may relate, in particular, to the accurate recording of working time, in which case their role becomes basically precautionary.

     

    The enabling provision

    As we mentioned immediately above, the issuance of a Presidential Decree is expected (: §12) which will regulate and specify particularly important issues related to the provision of telework. The issuance of this PD will take place after a proposal of the Minister of Labor and Social Affairs but also after the opinion of the Authority for Ensuring the Confidentiality of Communications and the Authority for the Protection of Personal Data.

    Its subject:

    (a) the specific rules for the health and safety of telework;

    (b) the minimum technical and organizational means to ensure the exercise of the right to disconnection;

    (c) the declaration of teleworking hours at the ERGANI Information System,

    (d) the inspection process by the Labor Inspectorate. In particular, its access to business and employee metadata and communication data via private or public telephone or internet networks and digital data transmission, which is necessary to monitor compliance with working hours. And,

    (e) any other details related to the application of article 67 of law 4808/2021.

    However, the issuance of this decree is (also) pending.

     

    We also mentioned in the previous article of the series (related to teleworking) the introduction of teleworking into daily lives – both ours and businesses’. As is usually the case, the legislator came afterwards to cover the needs that life creates and the gaps that we already experience.

    The point, however, is that in this case (also) the regulation comes not only late but also incomplete.

    Several months after the enactment of the (indeed) important labor law (: Law 4808/21), its basic parameters are missing. In fact, as far as telework is concerned, the absolutely necessary parameters are missing: a Ministerial Order and a Presidential Decree, which will clarify the (really blurry) landscape and will assist, to the absolutely necessary degree, both the companies and the (teleworking) employees.

    We look forward not only to their as soon as possible issuance, but also to their limitation, within logic.-

    Stavros Koumentakis
    Managing Partner

     

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

     

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

  • Teleworking. Agreement and terms

    Teleworking. Agreement and terms

    The recent labor law (: Law 4808/2021), brought about a number of amendments to the labor legislation – many of them have also occupied us in our recent articles. It replaces, among others, the current regulation, in place until recently, for teleworking (: no. 5, law 3846/2010). For now we will deal with issues related to the teleworking agreement and its terms. In the next article we will deal with issues related to employee protection, health and safety issues. Also, the (particularly important) right of disconnection.

     

    What is teleworking?

    According to the law (: art. 67, law 4808/2021): “teleworking is the remote provision of the employee’s dependent work also with the use of technology, under full-time, part-time, rotational or other form of employment contract, which could also be provided by the employer”.

     

    The voluntary nature

    The recent (as well as the older) regulation provides for the basically voluntary nature of teleworking. In this context, an employer-employee agreement is required (art. 67 §2, law 4808/2021).

    The teleworking agreement can (and is) verbal. As long as the written form is not required by the type of employment contract (in part-time employment contracts, e.g.). Furthermore, the teleworking agreement may be the subject of both the original agreement between the employer and the employee – upon recruitment or after a subsequent amendment.

    However, in the latter case (: modification of an existing employment contract), the question arises as to the existence (or not) of a right of revocation. In contrast to the previous regime, article 67 no longer regulates this right.

    The answer to this question depends on whether or not we accept the parallel implementation of the Framework Agreement [: integration into the national legal order (: General National Collective Employment Convention 2006-2007-Appendix B’) of the European Agreement- Framework for Teleworking]. The new provision (: art. 67) seems to be in force along with the Framework Agreement on teleworking. This conclusion is deduced from the letter of the law, which explicitly provides that the new regulation replaces, only, article 5 of law 3846/2010.

    Clause 3 of the above Framework Agreement provides that: “If teleworking is not part of the initial job description, the decision to switch to teleworking is revoked by individual and / or collective agreement. Revocation may involve a return to work on the employer’s premises at the request of the employee or employer. The details of this revocation shall be determined by individual and / or collective agreement”.

    Based on these data, the teleworking agreement is freely revocable when it is agreed with a later employer-employee agreement. In this case (also) the contractual arrangement of the details of the revocation should therefore be considered safer.

    Individual parameters of teleworking (: teleworking hours and ratio of teleworking and work in the employer’s facilities) must, however, be declared to the Information System ERGANI (art. 67 §11).

     

    The unilateral imposition of telework

    Despite the essentially voluntary nature of teleworking, it can sometimes be imposed unilaterally. This can exceptionally happen (if the work can be provided remotely) for specific reasons only:

    (a) Following a decision by the employer, for reasons of public health protection. A relevant CMO of the co-responsible ministers is required (art. 67 §3 per. Α΄, law 4808/2021).

    (b) At the request of the employee, in case of documented risk to their health, which will be avoided if they telework. The diseases, disabilities and illnesses that can document such a risk are expected to be determined through a CMO (art. 67 §3 para. b΄). However, the issuance of the latter is pending. Nonetheless, the employer may, for some reason, disagree with the satisfaction of the employee’s request. The resolution of the relevant dispute will take place by the relevant Labor Inspectorate.

    (c) At the request of parents of children up to twelve (12) years of age or caregivers, who are entitled to request, for their convenience, flexible work arrangements, including telework (art. 31). This right has already occupied us in our previous article. There, we have already pointed out that the precondition 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.

    (d) As a temporary measure of protection against an imminent danger to the life or health or safety of an employee from an incident or conduct of violence and harassment. This temporary measure is imposed either by a decision of the employer or following an order, with immediate effect, by the Labor Inspector (the role of the Labor Inspectorate, in general, in cases of violence and harassment have also occupied us in the context of our previous article).

     

    The obligation to notify the terms of telework

    The informal, in principle, nature of the telework contract is relativized. This is because there is an obligation for written notification of the terms of telework (art. 67 §5 law 4808/20215). The written notification of the working conditions – in general, concerns an already known obligation of the employer. It stems from the Presidential Decree no. 156/1994 and has occupied us in our previous article). In this case, however, the obligation to notify the terms of teleworking constitutes (according to the explicit provision of Law 4808/2021), an additional obligation of the employer-in relation to what is provided under this Presidential Decree.

    This obligation to notify must be fulfilled within 8 days from the start of the telework. It refers to the terms of the employment contract that are modified due to teleworking. These are, for example:

    (a) The right to disconnect.

    (b) The analysis of the additional costs, which are periodically borne by the teleworker due to the telework.

    (c) The equipment necessary for the provision of telework (available to the teleworker or provided by the employer) as well as the procedures for technical support, maintenance and repair of the damage of this equipment.

    (d) Any restrictions on the use of IT equipment or tools and penalties in the event of their breach.

    (e) Agreement for readiness to provide telework, its time limits and employee response deadlines.

    (f) The hygiene and safety conditions of teleworking observed by the teleworker and the procedures for announcing a possible work accident.

    (g) The obligation to protect the professional data as well as the personal data of the teleworker and the actions and procedures required for the fulfillment of said obligations.

     

    The notification to the respective employee of the terms of their employment contract, which differ due to telework, can take place in any way. Even via email. Moreover, when these terms do not apply individually to an employee, they may be communicated collectively. In particular, the law provides that these terms may be communicated to interested parties by posting on the company’s intranet or by notifying a relevant business policy.

    Individual parameters of teleworking (: teleworking hours and ratio of teleworking and work in the employer’s facilities) must, however, be declared to the ERGANI Information System (art. 67 §11).

     

    The cost of telework

    According to the explicit provision of the law, the cost of teleworking is borne by the employer (art. 67 §4 law 4808/2021). This is the total cost of telework [: equipment costs (eg ergonomics or electronic equipment), telecommunications, equipment maintenance, fault repair or equipment replacement].

    However, by agreement of the parties, the costs incurred by the employer may be reduced. This happens if it is agreed that the employee will use their personal equipment. Similarly, the cost of repair can be agreed to be borne by the employee, if they use their equipment. Otherwise, the costs of repairing the employee’s equipment are borne, based on the above, by the employer.

    The costs of teleworking are explicitly excluded by law from the employee’s salary. On the contrary, the law stipulates that these costs constitute a deductible expense for the employer. Given its specific nature, the cost of teleworking is not subject to tax or fee, nor are insurance contributions due to it. While, although not explicitly provided, this cost, since it does not constitute a salary, is not protected under criminal law, it can be offset and confiscated.

    The method of monetary reimbursement of the above mentioned expenses must be defined in the contract or employment relationship of the employee. However, the determination of these costs was not possible until the very recent issuance of the MO which proceeds to determine the above costs.

    Specifically, the authorizing provision of article 79 §1 of law 4808/2021 provides that “by decision of the Minister of Labor and Social Affairs the minimum amount of par. 4 of article 67 is determined, in particular based on the frequency and duration of telework, the provision or not of equipment by the employer, the direct coverage of expenses by the employer or not and any relevant details “. However, the issuance of this MO is still pending.

    The delegated MO determines the minimum amount of teleworking expenses as follows:

    For the use of the home as the workplace, 13 euros.

    To cover the cost of communications, 10 euros.

    For the maintenance of the equipment, 5 euros.

     

    Teleworking not only entered violently, due to the lockdown, in our life and in the labor relations of our country but also (as, again we have supported in a series of presentations, workshops and articles) “is here to stay”.

    And it has stayed.

    The provisions of the recent labor law are moving in the right direction. But they prove to be incomplete. And this, because for a significant period of time after its passing, the (absolutely necessary) Ministerial Orders, which would have filled its gaps, had not been issued.

    Businesses have been and are still called upon to improvise, taking the risks themselves.

    Once again.-

     

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 28th, 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.

  • Rest Time, Readiness to telework and Right to Disconnect

    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.

  • Lockdowns, Internet and … Christmas

    Lockdowns, Internet and … Christmas

    With the arrival of the pandemic in our country, the State did what it considered it should to deal with the health and economic crisis. For the protection of life, health, jobs and businesses, among other things. (Unsuccessfully-to a significant degree…)

    We are experiencing, already for the second time, a compulsory curfew and a ban on (normal) operation. We reconsidered what it means to coexist with ourselves and our family (more precisely: we had the opportunity to recollect).

    Things, in most cases, did not go as smoothly for everyone. Having lost the alibi of long hours, due to professional obligations, our absence from home we had time with our children, our spouses, our partners, ourselves. In other words, we lost our “normalcy”. Did we seize the opportunity to experience and enjoy the “togetherness”?

    Teleworking was the sufficient excuse to stay “stuck” on our laptops, ipads and smart phones. And since we were “forced” in long hours of professional self-isolation, that reasonably led to corresponding connections with the relevant devices and the internet. And to disconnections from the “togetherness”. And Christmas?

     

    Internet addiction

    Internet addiction is a disease. This assumption (already adopted by the WHO) confirms the extent, range and depth of our exposure on the internet.

    The pandemic and the second “lockdown” aggravate the problem.

    We (both adults and minors) always have sufficient excuses to spend endless, as a rule, hours on the internet. But our exposure to the internet is inevitably linked to corresponding risks. We have already experienced some of them. And they never are of minor importance.

    We become more and more aware of the dangers of the internet for children (and rightly so). But: cybercrime potentially affects us all. Without exception.

     

    Prevention and repression

    Prevention concerns the State, the Society, the Competent Bodies & Organizations, the family and, of course, each of us, individually.

    What happens when prevention either does not work or completely fails? When do the perpetrators identify the “cracks” in our devices, networks, systems and attention? When do they manage to penetrate our exclusively personal world? And when does this happen to our children?

    When prevention does not work (or fails), repression follows – under the self-evident condition of locating the perpetrator. And then again, we focus on prevention…

    The State must create a grid of necessary regulations that provide for severe penal sanctions for those behaviors that go beyond what is socially, morally and legally tolerable. There are a number of criminal regulations concerning cybercrime and the treatment of those who adopt intolerable behaviors (as they are determined by society and the State that expresses it).

     

    The criminal provisions

    The pace of technological developments is remarkably fast. The legislature in an attempt to follow them, even panting heavily, has enacted a series of provisions concerning offenses committed through computer programs, the internet and unlawful interference with software and devices (which we all use daily to communicate, work, entertain ourselves, trade…). We mainly find them in the Penal Code.

     

    In general: provisions referring to cybercrime

    Most of them are the relevant provisions in the Penal Code. With time, the legislator tries to manage unknown, until recently, behaviours nobody was concerned about thirty years ago, for example, child pornography on the internet, exposure of our personal moments on social media. Such issues already concern us all – of course the legislator as well.

    Penalties for cybercrime may relate to damage to major social goods. Such provisions concern, for example, insults to the democratic regime (Article 135 of the Penal Code), crimes against public order (incitement to disobedience-183 of the Penal Code, incitement to commit crimes, violence or discord-184 of the Penal Code, terrorist acts-terrorist organization) 187A PC, threat of committing crimes-190 PC, spreading of false news-191 PC, crimes related to currency-211 PC).

    Of particular interest, however, are those provisions concerning ancillary goods of major value. As such: crimes against the security of telephone communications (292A PC), obstruction of the operation of information systems (292B & C PC), violations of the secrecy of public telecommunications (292D PC), obstruction of telecommunications (292E PC).

    Such are those that concern crimes against personal, individual goods, such as social representation – honour (insult, defamation – 361 to 363 PC). Also, those that refer to violations of privacy and communications (breach of confidentiality of documents-370 PC, breach of privacy of telephone communications and oral conversations -370A PC, illegal access to information systems or data-370B, C, D & E PC.

    One of the provisions that is gaining more and more interest (due to the frequency of such incidents) is that of computer fraud (386A PC).

     

    Sex crimes

    Of particular importance are the crimes related to the love life of the individual and are committed through the internet and / or by electronic means.

    They have a special social and moral value when it comes to children. Provisions concerning sexual offenses involving child victims are, for example: insult of sexual dignity (337 PC), facilitation of insults to minors (338 PC), and especially child pornography (348 PC), attracting children for sexual reasons (348 PC), pornographic representations of minors (348C PC).

    Of course, it is not only children who are harmed by possible public exposure of “non-public” acts. The examples are, unfortunately, innumerable. As a rule, we usually become aware of such incidents involving public figures.

    The recent, relevant, mistake of the legislator is serious: Unfortunately, with the reform of the penal code in July last year, the provision of 370A of the Penal Code was re-approached, I want to believe with negligence, which provided that “whoever illegally monitors by special technical means or imprints in a medium a non-public act of another, is punished with imprisonment of up to ten years”. The legislator reserved the same treatment for the one who would make use of the above medium. The specific criminal sanction does not exist, although the provision itself is maintained. Therefore, public exposure (eg circulation on social media or, more generally, on the internet) of a “non-public act of another” – such as so many serious and recent examples – is dealt with by the current Article 370A of the Penal Code, in conjunction with other provisions, no longer as a felony but as a serious misdemeanour.

    A counter- argument would appear reasonable. Why is it a crime to photograph a non-fasting priest during a period of fasting? On the other hand, isn’t the circulation on social media and on the internet of a couple’s “personal” moments by an ex-partner a crime of grave social and moral depravity? Aren’t the consequences irreparably catastrophic?

    Let us hope for a brief, relevant, redress – especially in the direction of independent addressing of such a crime.

     

    And after the prosecution, what?

    The aforementioned provisions concern only the sanctions that are threatened in case of occurrence of criminal behaviour and are always imposed a posteriori. It is doubtful whether the perpetrator of such a criminal act will be sent to prison – other than in absolutely extreme cases. The trauma left on the victim will be deep and last a lifetime. Therefore, the solution is only one: prevention. And prevention requires knowledge (but also a lot of effort).

     

    Specifically: child pornography

    Along with the development of the internet, child pornography began to flourish in the 1990s. It is, without a doubt, one of the scourges of the modern age. An industry that in 2010 was valued (based on a study by the United Nations Office on Drugs and Crime) at an annual turnover of twenty, at least, billion USD. And, already, a decade has passed with an explosive further increase in the use of the internet and cybercrime. We assume that the increase in the relevant valuation will be exponential. And, of course, dramatic – as are its consequences.

    It is common ground that the rise of cybercrime is unfortunately linked to the use of the internet. The pandemic and (in particular) the “lockdown” both act as a fertilizer. The addiction (which we allow – and perhaps unconsciously promote) of children to the internet. Respectively, the departure from the traditional family ties, essential relationships, honest, personal and human contact.

    We probably all know what to do (and what to avoid) to reduce cybercrime which affects our daily lives and beyond. The actions of Institutions and Organizations are not, of course, sufficient to address it. Nor does policing seem feasible or democratically tolerated by logic: one police officer per citizen. There is a question of internalizing the reason that justifies the ban. An issue of understanding the value of personal responsibility.

     

    The dangers of the internet: The second lockdown & beyond it

    The dangers of the internet are present. And as time goes on, they magnify. The second “lockdown”, just a few months after the first, the new curfew (which we experience cumulatively with the first), the increased exposure to our computers and smart devices, telework and e-learning make us more vulnerable.

    We must all be vigilant: the State, the Society, the Authorities, the Institutions, the School, the Family, each of us. We must protect the most vulnerable groups. The elders and our children. And it is important, without a doubt, to turn to experts. Caution: not to those who work for their own, ultimately, benefit. To those who are proven to work with social responsibility for the common good.

     

    Let us not forget: our knowledge of cybercrime will always be limited compared to the perpetrators.

    If we accept this, the next day will certainly be better. And even more: we will all be safer and, of course, happier.

    And beyond (on the occasion of the already ongoing second lockdown):

    Let’s reduce our exposure to the internet.

    Let’s reduce the use of our laptops, iPads and smart phones.

    Let’s invest in self-improvement, let’s invest in our loved ones, let’s invest in our family.

    Together.

    Let’s start one of these days.

    (After all: it is CHRISTMAS…) .-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper and makthes.gr (December 20, 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.

  • Vulnerable Groups and (tele)work in the time of the pandemic …

    Vulnerable Groups and (tele)work in the time of the pandemic …

    The issue of the (current) pandemic concerns everyone. But more so what concerns us is the risks we run – we all, after all, would like to reduce them. Teleworking is a step towards exactly that. This particular topic (of teleworking) has occupied us repeatedly (in our articles as well). Most recently, on the occasion of the Legislative Decree of 22.8.2020 (Government Gazette A ‘161 / 22.8.20) – [ratified by article 2 of law 4722/2020 (A’ 177) and supplemented by article 21], which attempted to manage the issue of  . However, this Legislative Decree was not complete: it neither identified the vulnerable groups, nor was it accompanied by a relevant Ministerial Order. It referred to a future CMO to be issued by the Ministers of Labor & Social Affairs and Health. It took two (2) whole months and two CMOs to clarify, to some extent, the issue.

    The agitation that it, meanwhile, created in businesses and employees was (unnecessarily) great.

     

    Employees vs Businesses

    Had employees have the choice they would all choose, probably without exception, teleworking. But not all businesses would. Businesses that do not adopt it as an option in general, receive heaps of requests from employees for the exceptional(?) approval of teleworking (“for them only”). The reasons put forward are, basically, of a medical nature. Sometimes they concern the employees themselves or their relatives. Sometimes they are a manifestation of the desire of employees to reduce their exposure to the risk of contracting the (sometimes deadly) virus. Moving with public transportation, moreover, raises reasonable concerns. The long coexistence with more (colleagues) does so too. Both the invoked reasons and relevant concerns are respected.

    But what is legally provided for? When is it mandatory for employees to request to telework? And when is it not?

     

    Let us try to decipher the relevant institutional framework.

    Question 1: Which employees belong to vulnerable groups?

    The employees who belong to the category of vulnerable groups are identified in the provision of article 1 of the CMO No. 37095/1436 [of the Ministers of Labor & Social Affairs and Health (Government Gazette B ‘4011 / 18.9.20)]. They are divided into two major categories: High and Intermediate Risk (Article 1.1). Detailed determination of the content of the specific categories as well as the relevant case study also takes place in the specific provision.

    It is noteworthy that “when an individual meets more than one criteria of the intermediate risk category, then they are automatically considered to belong to the High Risk group” (Article 1.2 37095/1436 CMO and Article 1 last paragraph of CMO No. 39363/1537 CMO [ of the Ministers of Labor & Social Affairs and Health (Government Gazette B ‘4262 / 30.9.20)]).

     

    Question 2: Who certifies and how the inclusion of an employee in a category of vulnerable groups?

    It is not enough for the employee to assure their employer that they belong to a specific category of vulnerable groups. Relevant certification is required. This certification takes place with a reasoned opinion of the doctor of a relevant specialty. The consulting physician can be either the therapist or a third “(public or private) Healthcare Facility for cases of special therapies such as chemotherapy, radiotherapy and immunotherapy”.

    However, it is important to note that in this opinion “the employee’s affiliation” to one of the aforementioned categories of high or intermediate risk should be precisely mentioned (article 2, 39363/1537 CMO). It is not enough to simply report the employee’s illness.

     

    Question 3: What right is recognized to employees belonging to vulnerable “High Risk” groups?

    Employees belonging to High Risk groups have the right to (request to) provide their work with the system of distance work (article 2.A.1 of 39363/1537 CMO). However, this is a right, not an obligation of the employee who belongs to the specific group.

    Therefore: an employee belonging to a High Risk group may exercise (or not exercise) his / her specific right. But even if they choose to not exercise it, the employer is not released from any obligation (ref.: 12th Question).

     

    Question 4: How does the employee inform the employer that they belong to a High Risk group and require applies for distance work?

    The employee’s request is forwarded “in a timely manner to the employer, by any appropriate means, such as telephone, e-mail or text message of a mobile phone” (article 2.A.2 of 39363/1537 CMO).

    However, it is not enough to submit the employee’s request to their employer. It is required to provide “within a reasonable time… a relevant medical certificate”. (article 2.A.3 of 39363/1537 CMO). This is, in essence, the opinion of their inclusion in the High Risk category -above 2nd Question).

     

    Question 5: What are the obligations of the employer regarding the employees who belong to a High Risk group?

    The nature of the work of the employee belonging to a High Risk group determines their ability (or not) to work remotely.

    If teleworking is possible, “the employer must accept the employee’s request” (article 2.A.4 of 39363/1537 CMO). In this case, the employee will continue, through teleworking, to provide their services to the employer.

     

    Question 6: What happens when teleworking of an employee belonging to a High Risk group proves impossible?

    Teleworking of an employee belonging to a High Risk group may prove impossible (because, for example, the employee provides manual labor). In this case “the employer must take measures so that the applicant employee belonging to a vulnerable group does not provide work for the execution of which they come in contact with the public”. (however, other employees in the same business are not considered as public).

    The employer is further obliged to “…consider, depending on the needs of the business, the possibility of temporary employment of the applicant employee in another job, in order to ensure the protection of their health”. On the other hand, “the employee must accept the… proposal of the employer, unless are unable to do so for a significant and serious reason.” The specific reason should be “… reported in writing to their employer”. (article 2.A.5 of 39363/1537 CMO).

     

    Question 7: Under what conditions (and for how long) is the employment contract of an employee belonging to a High Risk group suspended?

    Teleworking of an employee belonging to a High Risk group may prove impossible. It is also possible that the business’s efforts to employ them “in another job, in order to ensure the protection of their health” will be fruitless. In this case, the employer informs, in writing, the specific employee “for the reasons of inability to implement them and suspends their employment contract” (article 2.A.6 of 39363/1537 CMO).

    The employer has this right regardless of the NACE Revision 2 classification of their business activity. This suspension may not extend beyond 31.12.20 (article 3 of 39363/1537 CMO).

     

    Question 8: Do employees who belong to a High Risk group receive a salary or compensation and their contracts are suspended?

    These employees (belonging to a High Risk group and whose employment contracts are suspended) are not required to provide their work to the business in which they work. Nor is their employer, logically, obliged to pay them a salary. To the extent that these employees are not bound by a contract of employment with another employer, they are entitled to special purpose remuneration (Article 4§1 of 39363/1537 CMO).

     

    Question 9: What is the amount and what is the treatment of the special purpose remuneration?

    The special purpose remuneration “…is calculated per month in proportion to the days during which the employment contract of the above employees is suspended, based on the calculation of the amount of… 534.00 euros corresponding to thirty (30) calendar days”. The specific employees “…are provided with full insurance coverage on their nominal salary, for the days when the employment contract is suspended” (article 4§2 of 39363/1537 CMO).

    Special purpose remuneration “… is tax-free, non-transferable and cannot be confiscated … it shall not be subject to any withholding tax, fee or levy, including the special solidarity levy…, cannot be siezed and offset by certified debts to the tax administration and the State in general, municipalities, districts, insurance funds or credit institutions” (article 4§3 of 39363/1537 CMO).

     

    Question 10: What is the procedure for receiving special purpose remuneration?

    The payment of the special purpose remuneration presupposes the submission and registration of relevant statements related to the issue to the ERGANI platform by both the employers and the employees (article 5 of 39363/1537 CMO).

     

    Question 11: What is the treatment of employees belonging to Intermediate Risk groups?

    The employer who is notified of the employee’s inclusion in an Intermediate Risk group, is initially obliged to investigate the possibility of teleworking. In case this is not possible, the employee is temporarily employed in a job in which they do not come in contact with the public (article 2.B of 39363/1537 CMO).

    In any case: there is no issue of suspension of the employment contract of an employee who belongs to an Intermediate Risk group.

     

    Question 12: What are the General Protection Measures that the business should take anyway?

    An employee belonging to a vulnerable group (whether High or Intermediate Risk) is entitled to exercise (or not) their right to work remotely or to provide their services away from the public.

    However, the employer is obliged, in any case, “to take increased protection measures, based on the occupational risk assessment, as well as to fully implement the legislation on health and safety at work”. They are also obliged to comply with the more specific provisions “governing issues of implementation of public health measures, such as social distancing and using a mask, in workplaces, by sector and place of economic activity” (Article 2.C of 39363/1537 CMO).

    The (of great significance) additional importance and value of the occupational risk assessment should be stressed at this point. This assessment proves, once again, extremely important. Even more so, the alignment of all businesses with it.

     

    Question 13:  What is the duration of these measures?

    The period of validity of the specific, aforementioned, measures extends until 31.12.20 (article 6 of 39363/1537 CMO).

     

    All the measures taken since the beginning of the pandemic had / have aimed to ensure the protection of life and health.

    The Joint Ministerial Orders that define the meaning of the vulnerable groups but also the treatment of the employees that are part of them, move in the specific direction. They adequately aim to secure the specific goods (: of life and health) of the employees.

    But they are also aiming for something more important: crystalizing the balance between the reasonable needs of employees who belong to vulnerable groups and those of the businesses that employ those employees.

    They achieve it, to a sufficient degree.-

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 11, 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.

  • Teleworking and vulnerable groups: 9 questions and their answers for Legislative Decree / 22.8.20

    Teleworking and vulnerable groups: 9 questions and their answers for Legislative Decree / 22.8.20

    The second wave of the pandemic is, unfortunately, in progress. The numbers of (spotted) coronavirus vectors are increasing rapidly and on a daily basis. The coordinated management of the whole issue from the part of the Stateis necessary. Business and labor relations are areas in which the State is once again focusing its attention. Providing work with physical presence can only aggravate the already problematic situation. Teleworking was used as a means of stopping the first wave of the Covid-19 Pandemic. It is already used as a means of stopping the second wave. More enhanced though. The Legislative Decree of 22.8.2020 (Government Gazette A ‘161 / 22.8.20) gives us the relevant position, focusing on the protection of vulnerable groups.

     

    Teleworking as a flexible form of employment and a means of management of the pandemic

    On the basis of the introductory data, we could only be particularly and extensively looking into teleworking.

    Initially as an institution and on the occasion of the 11.3.20 Legislative Decree. In this context, we did look into the individual forms of teleworking, its advantages and disadvantages, the regulatory framework at European and national level. We were also concerned with teleworking and personal data. We were lastly concerned with the past, present and future of teleworking.

    Teleworking is one of the most flexible forms of employment. As such it is to be further developed and further consolidated. We will know its further development, in any case, with the arrangement of the working time, to which, inevitably, we will be led. As long as we unhook ourselves from the  shortcomings of the past, regarding the already obsolete eight-hour employment.

    In our aforementioned article on the past, present and future of telework we referred to the then (until 31.3.20) developments. We specifically mentioned that: “The German Minister of Labor, positively evaluating the results of telework during the pandemic, stated that he is already working towards the institution of a (unilateral) right to employees to provide their services by telework. This, in fact, regardless of any pandemic! “.

    This information seemed impressive at the time. We logically expected similar developments in our country. A relevant press release of the Ministry of Labor inclined us towards the drafting and submission of a bill for telework in our country. But developments are marching ahead. The rapid growth of the confirmed carriers of Covid-19 acts as their accelerator.

    However, we see elements of the relevant legislation expected in Autumn, infiltrating the aforementioned-recent Legislative Decree of 22.8.2020. Let’s approach the relevant provisions.

     

    Teleworking in the light of the Legislative Decree of 11.3.2020

    The provision of article 4 par. 2 a of the Legislative Decree of 11.3.20 [(A’ 55), ratified by article 2 of law 4682/2020 (A’ 76)], provided:

    “The employer may by its decision determine that the work provided by the employee at the place of work provided by the individual contract, will be carried out by the system of distance work.”

    On the occasion of the commentary of this specific Legislative Decree, we were concerned, among other things, with the following question:

    “But what happens when the employee submits (independently-regardless of the position adopted by his employer) a request for distance work”?

    Based on the existing, then, institutional framework, our answer to this question could not be different:

    “Both the specific request and the supporting document should be freely evaluated (as there is no relevant legal provision) by the employer. It will be accepted as long as the relevant conditions are met. These include: (a) teleworking is possible in the specific case and (b) the request is assessed as “reasonable”. And, ultimately, as long as the employer has no (any) other objections.”

    But things are already changing.

     

    Teleworking and vulnerable groups in the light of the Legislative Decree of 22.8.2020

    Question 1: Does the employer still have the right to impose telework?

    Answer: The employer (still) reserves the right to impose the system of distance work until 30.9.20. The provision, in other words, of the agreed work by telework (instead of the physical presence of the employee at the agreed place of work) (article 4 par. 2.a of the Legislative Decree of 11.3.2020-as already in force after its amendment by the Legislative Decree of 22.8.20).

    Question 2: Are employees entitled to claim / enforce teleworking?

    Answer: Employees (in general) have the right to ask, but not to impose telework.

    However, employees belonging to vulnerable groups have the right to apply to their employer for teleworking. This request can be made “by any appropriate means, such as by telephone, e-mail or text message on a mobile phone” (article 4 par. 2.b of 11.3.2020 Legislative Decree).

    Question 3: Are employers obliged to accept the telework that their employees request?

    Answer: In order to answer this question, we need to make a differentiation – depending on the category to which each employee belongs:

    (a) Employees who do not belong to vulnerable groups

    A request for teleworking coming from an employee of the specific category is freely evaluated by their employer – according to what is currently in force. It is accepted, indicatively, if: (a) teleworking is possible in the specific case, (b) the request is assessed as “reasonable” and, finally, (c) if the employer has no (any) other objection.

    (b) Employees belonging to vulnerable groups

    The employer must, in principle, accept the request for teleworking of an employee belonging to vulnerable groups. Under a specific condition: That it is possible for the work to be provided remotely (article 4 par. 2.c of from 11.3.2020 Legislative Decree).

    Question 4: Who will evaluate the possibility (or not) of the work to be provided remotely?

    Answer: This assessment cannot be left to the employee. It obviously is the right of the employer.

    Question 5: What happens when the applicant employee belongs to vulnerable groups and teleworking is not possible?

    Answer: In this case, “the employer takes measures so that the applicant employee who belongs to a vulnerable group does not provide work for the performance of which they come in contact with the public” (article 4 par. 2.d of 11.3.2020 Legislative Decree).

    But what are the jobs with which an employee comes into contact with the public? It would be simple, for example, to accept that there is “contact with the public” for a bank cashier. Also, for a saleswoman in a department store. But is it the same with an office worker where a client or associate will be present, at most, on a daily basis?

    No rule is established. Each case should be evaluated independently. The evaluation is to be made, here as well-of course-, by the employer.

    Question 6: What happens when the applicant employee belongs to a vulnerable group and it is not possible to provide their work by teleworking or by (physical) work without contact with the public?

    Answer: When (cumulatively) the conditions of the specific question are met, the employer has the right to suspend, unilaterally, the employment contract of the (belonging to a vulnerable group) employee. This suspension, based on the specific Legislative Decree, can extend up to 30.9.20 (article 4 par. 2.e of the 11.3.2020 Legislative Decree). We will consider it as a logical assumption that, since work will not be provided, no salary will be due (at least based on what this Legislative Decree stipulates).

    Question 7: What are the “vulnerable groups” and what medical certificates prove that the applicant employee belongs to them?

    Answer: This Legislative Decree does not address this issue. It refers to the Common Ministerial Order to be issued by the Ministers of Labor and Social Affairs and Health (article 4 par. 2.f of the 11.3.2020 Legislative Decree).

    Pending…

    Question 8: What about the implementation details not tackled by this Legislative Decree?

    Answer: We expect, in this case as well, for a relevant CMO to be issued by the Ministers of Labor and Social Affairs and Health. The specific CMO will concern the details of implementation of this Legislative Decree.

    Corresponding CMO will be able to extend the time of its application beyond 30.9.20. Depending, of course, on the evolution of the pandemic in our country (article 4 par. 2.f of the 11.3.2020 Legislative Decree).

    Question 9: What if, nevertheless, the employer does not comply with their obligations?

    Answer: This Legislative Decree imposes very specific obligations on the employer in the event that an employee has notified and proven that they belong to vulnerable groups.

    If the employer is indifferent to the (according to the specific Legislative Decree) management of the whole issue, a significant administrative penalty is provided. Specifically: “a fine of five thousand euros (5,000 €) for each violation”. (article 4 par. 2.g of the 11.3.2020 Legislative Decree). It should be noted here that the specific administrative sanction does not exhaust any relevant obligations of the employer acting illegally.

     

    Time flows (rather) torturously in relation to the pandemic.

    The number of (reported) coronavirus vectors sets a daily record.

    The number of our fellow citizens in the ICU is not decreasing.

    Teleworking has proven to be a means of managing the multifaceted (and not just health) crisis.

    The State has adopted (with the Legislative Decree of 22.8.20) another series of relevant measures. It is guided by the convenience, health and life of vulnerable groups. And, of course, the operation of business and the economy.

    Strict sanctions accompany its implementation.

    But let the fear of sanctions not be the reason for the compliance.

    Individual, social and business responsibility is really worth prevailing….

    stavros-koumentakis

    Stavros Koumentakis
    Managing Partner

     

    P.S. A brief version of this article has been published in NAFTEMPORIKI Newspaper (August 28, 2020), MAKEDONIA Newspaper (August 30, 2020). You may also listen to a radio interview in north98.

     

    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.

  • Teleworking (Yesterday. Today. Tomorrow. The plot twist)

    Teleworking (Yesterday. Today. Tomorrow. The plot twist)

    The next day is not tomorrow. It is today. And it’s not, in any way, the same as the one before. The majority of employees can already provide their services remotely to the businesses in which they are employed. And businesses no longer need to (permanently) have an office available to their employees. No one should look for an employee depending on the area or city where their business has offices. Most importantly: not even depending on the country their offices are…

    In a rather violent way, most of us understood (?) all of this. The existence, the individual parameters, the advantages but also the disadvantages of telework.

    The reason? A pandemic. (The first important, and hopefully the last, of our lives).

    The means; Α Legislative Decree.

    Did the state need to impose it? Not even slightly! Because (as Lenin already noted): “terror is an instrument of for social hygiene” …

    Was telework pre-existing? In what form and to what extent? What is its application today? And what is to happen the “next” day?

    Let’s take a closer look at these questions. Questions that, more or less, concern us all.

     

    Teleworking and flexible forms of employment

    Teleworking has already proven to be extremely interesting as an institution. And that’s why we’ve already dealt in detail with it in our previous article. We have also expressed an opinion on the future of flexible forms of employment. Telework indeed is a form of flexible employment.

    Flexible forms of employment are steadily gaining ground over the traditional “full-time, indefinite employment contract.” It is not uncommon to enter into part-time and / or fixed-term contracts. Nor is it uncommon to conclude rotational employment contracts.

    Even if it does not escape our attention, the development of technology is proving to be more and more rapid. New forms of employment are presented, depending on the development of technology. Employees and businesses are working hard. Of course, so does the legal world.

    Outsourcing, networking, crowdsourcing and telecommuting are already a reality. This fact cannot be ignored. Instead, we must take advantage of all the new opportunities. And now, because of the critical situation we are living in, we are called to immediately take advantage of them.

     

    Teleworking And Its Individual Forms

    Teleworking is the form of work that makes it possible to provide the services of an employee in a place other than that of the business that hired them. It is possible to take the form of full or part-time employment. It always takes advantage of IT and communications.

    Teleworking comes in many forms. Its individual forms are determined (among other things) by the place it is offered. Depending on this criterion, the following forms of teleworking are encountered -among other. Forms which, in detail, we analyzed in our previous article and briefly, we mention below:

    (a) Home-Based telework: The most common and useful form of it. The teleworker’s house is used as a workplace. This form of teleworking has proven to be the most appropriate way to provide employment in the context of the emergency caused due to the pandemic.

    (b) Mobile Teleworking: The teleworker moves to different places / facilities (eg to their employer’s client’s facilities).

    (c) Telecentres: These are small units-workplaces properly equipped to perform certain tasks. They belong to the employer. Employees from different parts of the business may be involved.

    (d) Functional Relocation: It regards entire departments detached from the business’s headquarters (eg the Customer Service Department).

    (e) Telecottages: These are areas of teleworking belonging to local communities. They do not belong to a specific business. Their broader purpose is to educate residents of remote areas.

     

    The Advantages of Teleworking

    We already have very recent images and experiences from the implementation of teleworking. As a result, there are not many questions about its importance and positive effects.

    Teleworking is part of the broader consept of distance work. Through this, a dual purpose is achieved. The possibility of the employee staying at home (the most common purpose). And, in addition, the uninterrupted continuation of their employment.

    In emergencies (such as, for example, the one we live in due to the pandemic) we achieve: the continuation of the offering of the employee’s services, the assurance of the continuation of the operation of the business-employer, the elimination (or, at least, mitigation) of financial loss of both.

    In times of crisis, such as the present, the positive effects are greater. Indicatively: in public health, in the economy, of course in businesses as well. But even under normal circumstances, teleworking offers, without a doubt, a number of advantages. These benefits apply to the employee, the employer, and even society as a whole. Briefly:

    (a) With respect to the employee

    Teleworking makes it possible for the employee to organize their working time themselves. And to protect their health. To save time and money on their commute. It creates opportunities for (re)integration into the labor market of those burdened with family obligations, with health problems and / or those with special needs. The employee can provide their work anywhere in their country and / or in the world.

     

    (b) With respect to the employer:

    Teleworking is an important tool for reducing the (until recently) inelastic business costs. The employer is no longer “obliged” to create, maintain and offer office spaces and, accordingly, the related facilities. In addition: teleworking expands the number of eligible candidates-employees. Their place of residence / country of residence is no longer a problem. At the same time, absences associated with objective reasons (eg public transport strikes) through teleworking cease to be a reason for non-employment.

     

    (c) As to society as a whole:

    Minimizing the commute of employees has a positive effect on the environment and on public health. Teleworking can assist with the development of remote areas and reduce urbanization.

     

    The Disadvantages of Teleworking

    Teleworking does not, of course, have only advantages. Some of its disadvantages:

    (a) With respect to the employee:

    When the place of residence coincides with that of work, the teleworker is basically isolated from their colleagues. And, more broadly, from society as a whole. Their professional life infiltrates their private life, breaking down the relevant boundaries. In addition, they are (potentially) constantly available to their employer. While at the same time, their potential competitors can live in all parts of the world …

     

    (b) With respect to the employer:

    The ability to control the teleworker is basically limited to the result of their work. The employer bears(?) the obligation to support technical equipment in an indefinitely large geographical area. Lastly: the data of the business, which it is necessary for the teleworker to use, is disseminated outside the secure, internal, networks of the business. With all the dangers this entails.

    It should be noted here that the Personal Data Protection Authority has already recommended that certain measures be taken during teleworking. These measures include: (a) Internet access, (b) the use of e-mail applications / messaging, (c) the use of terminals / storage devices, (d) teleconferencing. We have mentioned the relevant concerns in our relevant articles (: Teleworking and Personal Data)

     

    Teleworking-Yesterday

    Absolutely no one would even consider (even two decades ago) the possibility of an employee providing their services remotely. In recent years, teleworking has begun to gain momentum, slowly at the beginning and more rapidly as time passed, on a global level. The rates of its adoption have not been at all similar in our country.

    However, March 11, 2020, was a milestone: The WHO declared as a pandemic the COVID-19 infection coming from the Coronovirus-2019 SARS-CoV-2. Restrictions on the operation of some businesses, restrictions on travel and, most importantly, fear played a catalytic role in the rapidly wide implementation of teleworking.

    Thus, teleworking has come to the fore in the last month.

    In our country as well.

    In particular: The corresponding legal phramework

    One would expect a complete set of regulations for tackling telework. This, however, has never happened before. The relevant legislation was (and unfortunately proved to be) incomplete.

    1. The EU’s provision for teleworking: The signing of a framework agreement and its “hesitant” initial adoption in our country.

     (a) The European countries, trying to adapt to developments, proceeded on 16.07.2002 to sign a framework agreement for teleworking. This agreement sought to fill the legal gap for this type of work. Also, the (corresponding) modernization of labor law. This is because teleworking has already been assessed as a means of modernizing the organization of work. Through the specific framework agreement, the reconciliation of the private and professional life of the teleworkers was sought. Providing greater autonomy in their work.

    However, the framework agreement on teleworking never took the form of a Directive. Its implementation was left to the initiative of individual social partners and to the choices, procedures and special practices of each country.

    Our country did not choose to abstain. This European Framework Agreement was incorporated into the Greek legal order as an appendix to the National General Collective Labor Agreement (NGCLA) of 12.04.2006.

    (b) In the framework agreement, a definition of teleworking has been included by the social partners. Probably (and not with a negative connotation) a quite wide one!

    According to this definition, “Telework is a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employers’ premises, is carried out away from those premises on a regular basis” (Article 2). It is becoming clear that telework is accepted as an employment contract.

    The social partners wanted to highlight the voluntary nature of teleworking (Article 3). This contract may be concluded (at the beginning or at a later time of the employment relationship) on a voluntary basis only. And this, after the necessary information on how the work will be executed is first provided, in writing, to the teleworker.

    (c) The above Framework Agreement shall, in addition, contain provisions relating to:

    1. Equalizing and safeguarding the rights of teleworkers with those of comparable workers. (Comparable workers among those who work within the premises of the employer-company – Article 4). Also, ensuring equal professional opportunities between the two groups of workers concerned (Article 10).
    2. Protecting business data. The employer must provide the necessary, relevant, updates to the teleworker. Indicatively, information on restrictions on the use of the Internet, equipment and IT tools. Also on penalties for non-compliance (Article 5).

    iii. Protecting employees’ privacy and personal data (Article 6).

    1. The employer’s obligation to provide, at their own expense, appropriate technical support to the teleworker. The obligation of the teleworker to take care of the equipment provided by the employer (Article 7). Provision of appropriate training in the use of the equipment provided (Article 10).
    2. Protecting the health and occupational safety of the teleworker (Article 8).
    3. The autonomy of the teleworker to determine the organization of their working time within the framework of the applicable laws, collective agreements and working regulations of the company concerned (Article 9).

    vii. Ensuring that the employer takes measures to avoid the isolation of their staff (Article 9).

    viii. Ensuring the collective rights and collective action of teleworkers (Article 11).

     

    2. National legislation

    (a) The presumption of emmployment

    In our country, legislative reference to teleworking is found in Law 2639/1998. Article 1 of that law is entitled: ‘Special forms of employment’. It states that: ‘The agreement between the employer and the person employed for the provision of services or work for a fixed or indefinite period, especially when relating to job-processing contracts, teleworking, home employment, shall be presumed to conceal a contract of employment, provided that work is provided by the person employer themselves, exclusively or primarily to the same employer for nine (9) consecutive months’.

    (b) The independent legislative regulation of telework

    Teleworking has become a separate type of national legislation, as a form of employment, by Article 5 of Law 3846/2010. The national legislator has attempted to specify some of the provisions of the European Framework Agreement.

    As regards the obligation of the employer to inform the employee, it was stipulated that: “When the employer draws up a teleworking contract, they shall be obliged to provide the employee, in writing, with all information relating to the performance of the work within eight (8) days” (duties, remuneration, hours, cost of equipment and cost of repair if damaged by the employer, etc.). In fact, the legislator also made an innovation, stating that “if the contract contains a standby clause, the time limits and deadlines for the employee’s response are set.” (Standby contracts have already been addressed in our previous article).

    The legislator acknowledged the difficulties in transitioning from common work to teleworking. It recognized, in this context, the right of withdrawal for both the employee and the employer. It offered a three month adjustment period. It granted both of them the right to return to the previous employment status within that quarter, with a 15-day deadline.

    However, the national legislature imposed two more obligations on the employer: i. The obligation to bear any associated costs of the employee (in particular relating to telecommunications) and, in addition, ii. The obligation of written information of the teleworker, within 2 months of the conclusion of the employment contract, of the latter’s representatives. That is, the employer must provide the teleworker with the contact details of those who represent the labor rights of the staff within the company. (This is in order to provide additional safeguards for teleworkers’ union rights).

    The latest national legislation on teleworking, the most recent, as of 11.3.2020, Legislative Decree, which regulates the employer’s right to work remotely. The specific LD (which is discussed, in particular, below), while not specifying the content of teleworking, nevertheless highlights its value and usefulness.

     

    Telework and Employment

    For the application of the (protective) provisions of labor legislation on telework, an employment contract is required. Employment-related (traditional) employment theories and related criteria have been developed in the context of the ‘normal work’ regime. Upcoming forms of employment – such as teleworking – could not have be taken into account. The relevant legal provisions in this case are almost inapplicable.

    The place, the way, and especially the working time, are de facto and, to a significant degree, decided by the teleworker. The prevailing theory of dependency seems to be waning. The managerial right of the employer seems insufficient (criterion) to classify telework provided as employment.

    On the contrary, business risk appears as a safer criterion. In the event that the employer bears the business risk, telework is a form of employment. If the person offering their services bears it, then we would be safe to assume the latter is self-employed. Of course, in this case, the provisions of labor law will not apply.

    The lack of adherence to obsolete perceptions is also necessary in this case. It is also necessary to understand developments and adapt Labor Law (as well) to them.

     

    Teleworking – Today

    Businesses had to continue, and under the current pandemic, to operate (the widely known, as well as necessary, business continuity). Employees could not be put at risk. (But neither should they become a link in the chain of the spread of the virus). The way for employees to remotely provide their services to employees was sought. The experience already existed. Teleworking became at once widely known and widely used.

    The Legislative Decree of 11.3.2020 (Government Gazette vol. A 55 / 11.3.2020) concerned the taking of urgent measures to deal with the adverse effects of the COVID-19 pandemic and the need to limit its dissemination. One of the (many) interesting provisions of it (: article 4 §2) was the possibility it provided to employers to determine (by their own, unilateral, decision) that some of their employees will be subject to the remote work system. Initially until 10.4.2020. Already extended today until 31.5.20.

    This LD stipulates that: “The employer may, by its decision, determine that the work provided by the employee in the workplace provided for in the individual contract shall be carried out under the remote work system.” In fact, it provides the possibility of extending the time of application of the above extraordinary and temporary measure, “by joint decision of the Ministers of Finance, Labor and Social Affairs and Health” (article 4 par. 2).

    The imposition of this measure seems simple – at a first glance (although the theoretical possibility of an accident in the employee’s home cannot be ruled out and the relevant provisions that the employer must take are necessary).

    The issuance of the above, first, from the long series of LDs was followed by the issuance of an executive JMC [12998/232 / 23-3-2020 JMC (Government Gazette B ‘1078 / 28-3-2020)]. According to it (Article 4 §3 of Chapter A2), employers-employers, depending on the NACE Revision 2 classification of their business activity, “may agree with their employees whose employment contracts are suspended and are entitled to special compensation, for the provision of employment via teleworking, only for covering temporary needs of the business”.

    The remuneration of (tele-) employees is made by the employer, proportionally, based on their paid gross salary. The amount of remuneration paid for this work may reach the amount of the legal remuneration of each employee, deducting the amount of the special compensation to which they are entitled (Chapter A.2 no. 4 par. 3 of the MD).

    The specific employers-employers are obliged to submit, until the first ten days of the following month from the application of this measure, a relevant information to ERGANI.

    A few days later, the (long-awaited) decision No. 13564 / Δ1.4770 / 30.3.20 of the Minister of Labor and Social Affairs (Government Gazette vol. B ‘1161 / 3.4.20) was issued, which clarified critical, up for debate until then, issues. One of them: the percentage reduction of those who could be employed by telework to meet the “temporary needs”. It was specifically stated that: “Up to 10% of suspended workers may be used to meet these temporary needs.”

    It was also stipulated that: “Employers who make use of the above regulation are obliged for as long as they use the measure to maintain the same number of jobs …”

    In fact, the specific employers-employers, “are obliged to declare to ERGANI this temporary telework, before the beginning of its realization“.

    But what happens when the employee submits (independently-regardless of the position adopted by their employer) a request for distance work?

    Both the specific request and the supporting document should be freely evaluated (as there is no relevant legal provision) by the employer. It will be accepted as long as the relevant conditions are met. These include: (a) teleworking is possible in the specific case and (b) the request is assessed as “reasonable”. And, ultimately, as long as the employer has no (any) other objections

     

    Teleworking-Tomorrow

    We mentioned at the beginning of this article: “The next day is not tomorrow. It is today. And it’s not, in any way, the same as before. ”

    It would be more accurate to argue that the next day has already begun, since yesterday.

    Technology is already intertwined with our daily lives. Let’s also use it in the context of teleworking.

    A few decades ago, touch-typing was considered a qualification. Younger people have the right not to even know what a typewriter is. Its image is blurred on minds of the elders…

    But today, would an executive, freelancer, or entrepreneur consider not having a laptop? Not being able to use applications for online meetings? Not being able to remotely connect with the (their) business?

    In countries of the European Union (and / or outside of it) this specific, flexible form of employment is already enjoying significant prosperity.

    For this institution to be further utilized in our country, concerns and reservations should be raised. Ensuring the interests of those involved (: employee and employer) will contribute in this direction. Ensuring the proper functioning of teleworking would do so as well. Clarifying certain critical and important parameters of teleworking (eg equipment maintenance costs, telecommunication costs, labor accident issues) will prove important.

    Adequate regulatory framework seems like an insurmountable need.

    The German Minister of Labor, positively assessing the results of teleworking during the pandemic, said that he was already working towards the establishment of a (unilateral) right of employees to provide their services by teleworking. This, in fact, regardless of any pandemic!

    Our country has begun and will likely continue to encourage teleworking.

     

    The upheavals (and our attitude towards them)

    We are facing upheavals that no one can stop. And the sooner we accept it (: businesses, employees, the state), the better. For all of us….

    Let’s face it!

    For a long time now: Every employee can provide their services anywhere in Greece. And / or in the world.

    For a long time now: Every employer can “buy” services from employees anywhere in Greece. And / or in the world.

    This is the reality.

    Let’s not turn a blind eye!

    Remarkable is the explanatory memorandum of the law, where for the first time teleworking was addressed (Law 3846/2010). In this specific explanatory memorandum, it is emphasized that its provisions are aimed “on the one hand in maintaining the existing jobs, and on the other hand in improving the competitiveness of the Greek Economy“.

    A decade later we can confirm: The competitiveness of the Greek economy is a one-way street!

    Teleworking is one of the tools to achieve it.

    One of the tools to achieve growth.

    One of the tools to recover.

    In a recent webinar (: Coronovirus & Businesess in Crisis: Labor Relations Management) I concluded, among other things, that a pandemic is intertwined in our thinking with disaster. Do we choose to be trapped in it? Can we do something different?

    But of course!

    Let’s focus on the future! – Not as daydreamers!

    Let’s work for the next day – As realists!

    Let’s make the crisis an opportunity!

    Let’s solve the problem!

    It is a given that the future will be better!

    Let’s take steps towards that!

    The catastrophe we have in front of us, let it become a turning point for each of us!

    stavros-koumentakis

    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.

  • Flexible Forms of Employment (: past, present and future …)

    Flexible Forms of Employment (: past, present and future …)

    Flexible forms of employment have been instrumental in tackling the adverse effects of coronavirus on entrepreneurship. They will also be a means of managing the deep recession we have already entered. However, they will remain present and will be further utilized. Anyone can confirm this – without, in fact, having special knowledge or foresight. Let’s face it. The future ahead of us cannot be the same as the past. This also goes for labor relations.

    Can we react?

    Of course! We can choose what the ostrich (allegedly) does in the face of danger. Let’s put our heads in the sand! To pretend the non-existence of what we have before our eyes!

     

    Labor relations in the recent and distant past

    The first of May: a day to enjoy spring or a day to celebrate labor?

    A celebration of labor in the minds of most – a holiday/abstinence from work. The opportunity, for this reason, for the celebration of spring.

    This year’s first of May was, of course, different from the rest. No gatherings or excursions to celebrate spring.

    This spring, like the ones to follow: just as beautiful.

    But what about labor relations?

    Absolutely Different.

    In May 1886 the labor unions in Chicago demanded eight hours of work and improved conditions. The slogan “eight hours of work, eight hours of rest, eight hours of sleep” summed up their demands. And all this in the traditional working model that was sufficiently responsive to the way the business is organized. In other words, in businesses that had a closed system of organization-structured according to the Ford production model.

    There have been significant changes over the years. The concern for employees’ rights has increased. And so has the concern to ensure employment.

    Labor relations are already adequately safeguarded. At the global, European, and of course national level. The result (among others): eight hours of work and a contract of employment. And, according to the classic model, at the employer’s premises.

    The third industrial revolution in the late 20th century was characterized by the use of electronics and computer science. It was an important milestone. It marked the beginning of the departure from the classical systems of production and offering of services. It has dramatically expanded capabilities. It has created new, unprecedented, needs. Needs that, to some extent, resulted in the creation of new forms of employment-deviations from the traditional working model.

    To meet these needs, more and more flexible forms of employment have been gradually utilized. The recent outbreak of the Covid-19 pandemic has pushed them into the foreground.

    It has already been proven that their utilization (or their necessary application) is a means of business survival. For the continuation of their operation and, of course, for the rescue of jobs.

     

    But what are, after all, the flexible forms of employment?

    Flexible forms of employment are those that, while based on the model of a typical employment relationship, at least one parameter is different. These are also characterized by the term “informal employment relations”.

    Their flexibility can be traced to individual aspects of the employment relationship. It is possible, for example, for this flexibility to regard:

    (a) The time when (but also the place where) the work is provided.

    These are the forms of flexible employment whose duration and distribution of working time go beyond the (normal) time limits of a full-time employee. Such forms of employment do not require a physical presence at the business’s premises. Work is organized in ways that take advantage of new possibilities. That satisfy new needs. Among them are the new, already formed, needs of the market. Of course, of the corresponding needs of the employees as well. We have already addressed typical cases of these forms of employment in our previous articles. Indicatively: part-time employment, rotational work, shifts, telework, standby contracts.

    (b) The employment status.

    According to the traditional model, employment contracts were concluded for an indefinite period. As time passed, fixed-term employment contracts are becoming more and more common. Furthermore: Employees whose (direct) employers are Temporary Work Agencies (TWA) provide their services to another (indirect) employer for a limited period of time in the form of temporary employment.

    (c) Remuneration systems.

    Flexibility can also affect the structure of employees’ wages and other benefits. The voluntary payments offered by the employer may be related to the productivity and results of the business.

    (d) Employees’ labor and insurance rights.

    Flexibility in the employment status of employees clearly affects their salaries, benefits, insurance coverage, pension rights, etc.

    However, the development and dissemination of flexible forms of employment has been accompanied by specific problems, which require the modernization of the regulations concerning them. The problems, mainly associated with the insecurity of employees and the (given) legislative loopholes, have already mobilized the European Union. Its goal is to balance between flexibility and protection.

     

    The past: Flexible forms of employment over time

    Flexible forms of employment are gaining ground. However, they are not a (very) recent invention of the legislator. At least not all of them. In our country, the national legislator has been concerned with flexible forms of employment since 1939, when rotational work was first provided for. Part-time employment was legalized in 1990. Teleworking was introduced relatively recently: in 2010.

    The implementation of flexible forms of employment was, initially, limited. They were brought in the spotlight due to the economic crisis of 2009. They were then (as well) used as a means of survival for businesses and job security.

    Significant reform of Labor Law in the field of flexible forms of employment took place in 2010. Specifically, Law 3846/2010 addressed, among other things, issues of temporary and part-time employment, teleworking, working time. Among its objectives: (a) the provision of guarantees in all cases where the hitherto existing regulations on flexible forms of employment did not prevent the creation of insecurity, (b) effective treatment of non-compliance with the working conditions provided for by law, (c) reduction of inequalities in the treatment of those working with flexible forms of employment.

    The recent, ten-year-long economic crisis has come to an end. The advantages of flexible forms of employment remain visible. Businesses have started making the most of them. This did not only happen in our country. According to a relatively recent (2019) survey by the International Workplace Group, 55% of businesses wanted to become more flexible, with immediate consequences, among others, for the forms of employment.

    The turn of businesses towards more flexible forms of operation (and, of course, employment) was not meant to be gradual. The reason for the (largely) violent, specific, transition of the majority of businesses to flexible schemes was the escalation of the pandemic caused by coronavirus (SARS-CoV-2).

     

    Present: Flexible forms of employment as means of saving employment relations from the pandemic

    The escalation of the pandemic has created a new, unprecedented reality in the field of labor. Businesses whose operations were not suspended by public order were faced with a dramatic reduction in their revenues. The reduction in their productive activity was logically expected to lead to layoffs of redundant staff in order to reduce wage costs.

    Therefore, it became necessary to take urgent measures, which on the one hand aim to protect employees and maintain their jobs, on the other hand to save business activity and the continuation of the operation of businesses, in the light of the protection of public health.

    We have already attempted to decode these measures in our previous articles.

    Among the measures taken to address the effects of the pandemic on workplaces (which we have already addressed), flexible forms of employment play a leading role. The specific forms (differentiated from the ones mentioned above) cover the special needs of businesses and employees created due to the pandemic. Particularly:

    (a) Regarding the safe operation personnel

    Article 9 of LD / 20.03.20 (as specified by No. 13564 / D1.4770 / 30.3.20-Government Gazzette, B ‘/ 1161 / 3.4.2020 MD), provided the possibility of the employer to appoint safe operation personnel. This temporary measure of flexible employment (which we analyzed in our previous article) is similar to the (unilaterally imposed) rotational work. What do they have in common? The alternation of working and non-working days.

    However, the temporary measure of safe operation personnel has distinct application requirements.

    In particular, this measure only applies to businesses that are (depending on the NACE Revision 2 classification of their business activity) among those affected by the pandemic. These businesses are entitled to implement the measure of safe operation personnel. This measure will cover at least 50% of the total staff of the business. In addition: each employee can be employed at least two (2) weeks per month, continuously or intermittently.

    As for the obligations of employers, they owe salaries to the safe operation personnel corresponding to their employment. At the same time, however, they are obliged, for as long as they use the measure, to maintain the same jobs, that is, the same employees and on the same terms. Those who quit or those who retire are exempt from the above provision.

    Relevant to this measure are the subsequently issued No. 13564 / D1.4770 / 30.3.20-Government Gazette, Β ‘/ 1161 / 3.4.2020 MD and 12998/232 / 23-3-2020 CMD (Government Gazette Β’ 1078 / 28-3-2020). However, there are still problems that we pointed out in our previous articles (Coronavirus and Businesses: The obligation to maintain jobs).

    (b) With regard to the transfer of personnel to businesses within the same group

    This measure, like that of safe operation personnel, aims to prevent redundancies. This measure offers flexibility to the employer. This flexibility regards the business in which, in the end, the employee provides their services, regardless of their (initial) employer. Therefore, the deviation from the traditional working relationship model.

    If this measure is utilized (Article 10 LD / 20.03.20), the business affected by the pandemic or the business whose operation was prohibited or suspended is entitled to transfer its staff to another business of the Group to which it belongs. A condition is a relevant agreement between the two businesses involved. In addition, the businesses involved are required to maintain a total of the same number of employees as before the transfer. In this case, the clause excludes those who resigned and retired.

    It should be noted that this measure, although newly introduced, had already been addressed by jurisprudence. The Supreme Court accepted the employment of an employee in other businesses of the same Group as possible. And this, regardless of which business of this Group is an employer (10/2018 CS). We have already addressed this issue in our previous article.

    (c) Regarding remote work

    The need for people to stay home for the protection of public health has highlighted the value of teleworking. We addressed the subject and its importance in our previous article. The points worth stressing are the following:

    LD / 11.03.20 provided for the possibility for the employer to unilaterally determine “… that the work provided by the employee in the place  provided for by their individual employment contract, will be carried out with the system of remote work” (art. 4 par. 2 LD / 11.03.2020).

    The majority of businesses is already taking advantage of the possibility of unilaterally imposing remote work. Teleworking, although temporarily detached from its voluntary nature, has emerged as the most appropriate measure to continue the operation of businesses and the provision of services by employees.

    It should be noted here that in the case of teleworking, the employer is not charged with additional commitments (such as the obligation to maintain the same jobs). However, in this case, the issue of accident at work becomes worthy of attention for the employer. This is because, in the event of a work accident, the employer’s liability is not waived in the case of telework from home. Therefore, it is necessary for the employee to make a statement regarding the safety of the performance of their work from their home.

     

    The future: Flexible forms of employment after the pandemic

    It is a given that flexible forms of employment have, by some, been demonized. However, they did not appear “yesterday” for the first time. (We have also seen that a form of rotational work has been around for almost a century). Nor will they ever leave us. Quite the opposite.

    Flexible forms of employment, regardless of the statute of limitations, are already a reality. Internationally for a long time. Nationally, very intensely, during the last two months.

    Businesses, in order to survive, have focused on reducing their expenditure – flexible or other. The reduction of wage costs is of great importance. And, to a significant degree, it has been achieved by reducing employment. The legislator had already (even before the pandemic) provided several options to businesses. And because of the recent crisis, those options have expanded. And rightly so.

    Utilizing flexible forms of employment has already created a new norm. A reality that is not expected to dissapear with the (not yet visible) end of the pandemic.

    On the contrary:

    Flexible forms of employment, with their now broader part, will help entrepreneurship. They will help tackle the new, rather profound, recession. In maintaining wage and other costs at lower levels. In the (further) modernization of the way businesses operate. In the modernization of labor relations. In their adaptation to current social, economic and technological data.

    Flexible forms of employment will also help to secure jobs. The benefits they recently offered will in time be proven crucial for the national economy (among others). This just not only regard employees. Nor is it limited to national authorities. The European Union has already started heading towards the right direction – especially with regard to reduced working hour schemes.

     

    The reduced work schedules and the SURE Program

    Reduced work schedule schemes are very important in the world of flexible forms of employment. These schemes allow businesses with financial difficulties to temporarily reduce their employees’ working hours. Indicatively, regarding our country: part-time employment, shift work, readiness contracts, Safe Operations Personnel.

    It is logical that these programs raise concerns about employees’ incomes and the insurance of a minimum (tolerable or desirable) standard of living. And it is logical that the employees are not the only ones burdened with these concerns. This issue is also troubling, of course for different reasons, the national and European authorities.

    Because of these concerns, the European Commission has launched a new instrument. More specifically, it has provided temporary support for the mitigation of Unemployment Risks in an Emergency (SURE). SURE aims to protect jobs and employees affected by the coronavirus pandemic.

    In fact, the procedures have already been launched so that the specific instrument can take the form of a Regulation.

    SURE will provide a financial assistance of up to €100 billion in total. This assistance will be provided in the form of loans granted by the EU to the Member States on favorable terms. These loans are expected to help Member States cope with a possible sudden increase in public spending to maintain employment. More specifically, it is intended to help Member States cover costs directly related to the creation or expansion of national systems for reduced working hours and other similar measures established for the self-employed in response to the current coronavirus pandemic.

    The reason for the introduction of this particular medium was the finding that there are many businesses that face significant difficulties because of the pandemic. In order to manage them they are forced, not infrequently, to temporarily suspend or significantly reduce their activity and the working hours of their employees. By avoiding unnecessary redundancies, systems that will reduce working hours can prevent the most serious and long-term negative consequences of a temporary shock to the economy and the labor market in the Member States. In this way, they contribute to the maintenance of household income and to the maintenance of productive capacity and human capital of enterprises and the economy as a whole.

    SURE will provide additional EU support to Member States to finance their systems on a part-time basis. In this way, job protection is expected to be achieved and so is, ultimately, the support of the member states’ economies.

    SURE, albeit temporary, aims to become part of the Commission’s overall strategy to protect citizens and mitigate the extremely negative socio-economic consequences of the pandemic.

    In other words:

    (a) The EU accepts the reduced working hours of employees as a means of managing the crisis on the part of businesses.

    (b) The EU prioritizes reduced working hours (against redundancies) as a means of managing the crisis.

    (c) The EU has already initiated procedures for the financing of Member States in order to make it possible for them to (further) finance reduced working hours programs in order to save jobs.

    Some government announcements have already taken place regarding the use of the facilities offered by this program.

     

    Instead of an epilogue

    Flexible forms of employment are not the worst thing that could happen to us after the pandemic. Let’s not treat them with fear. Let’s not treat them with introversion. Let’s not treat them as a disaster.

    Let’s turn our attention to technology and focus on our own skills. Let’s see it as a chance to move forward. Let’s act positively and be active. Let’s take advantage of the flexible forms of employment and the opportunities they create.

    Could an executive, freelancer or entrepreneur consider not having a laptop? Not being able to use applications for online meetings? Not being able to remotely connect to their business?

    And why should we deny part-time work, rotational work, safe operation personnel?

    Can we, using logical arguments, react when the world seems to be coming to an end? Or even when a particular business is about to close? Or can anyone seriously argue that they prefer to stick to a full-time employment contract that is about to be terminated?

    Let’s not forget, however, that in the end:

    Globalization is not just about others. It’s not just about international business giants. Almost every employee can now provide their services anywhere in the world.

    But also viewed from another point: Almost every employer can “buy” services from employees anywhere in Greece. Or / and the world.

    This is the reality.

    Ostriches have no place in it.

    stavros-koumentakis

    Stavros Koumentakis
    Senior 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.

  • Teleworking: a modern and, under conditions, valuable form of work

    Teleworking: a modern and, under conditions, valuable form of work

    Teleworking: A Modern and, Under Conditions, Valuable Form of Work

    I. Preamble

    (1) Beginning of the 1st millennium BC: The galley appeared. It was mainly propelled with paddles. It was used until the early 19th century. We are all familiar with the (cinematic) images of the dozens of paddlers who, with their coordinated actions, were moving huge, for the time, ships.

    All together. Simultaneously. Inside the gallery.

    We can be relatively certain that none of the puddlers (: either they were free or slaves) would then think of offering their services remotely.

    (2) Early 20th century AD: Henry Ford adopts an innovation at his factory in Detroit in 1914: the production line. The production line simultaneously employs a homogeneous workforce. The work consisted of individual simple and repetitive movements that served mass production.

    All together. Simultaneously. Inside the factory.

    We can, in this case, also be fairly certain that none of the employees at the Ford plant would even consider offering their services remotely.

    (3) March 11, 2020: WHO declares the COVID-19 infection, caused by Coronavirus-2019 SARS-CoV-2, a pandemic. Businesses must continue to operate. Employees should not be at risk. (And they should not cause further dissemination of the virus). Ways for employees to remotely provide their services were sought. There was already the relevant experience. Teleworking is becoming widely known and widely used…

     

    II. The Appearance of Labor Law and the Individual Forms of Labor

    Industrialization has undoubtedly been the reason for the emergence of Labor Law. The Fordian model of production (seemingly) played a decisive role in its formation. (That is, the system that was adopted by the aforementioned Henry Ford).

    The descriptions in the preamble of the present article is quite inconsistent with what is happening today. Industrial production seems to be rapidly replaced by service industries.

    Flexible forms of work are steadily gaining ground over the traditional ‘full-time, part-time employment contract’. Full-time and/or part-time employment contracts are not uncommon. Nor are rotational work employment contracts.

    The development of technology is more rapid by the day. New forms of work are introduced as technology evolves. Both employees and businesses are seriously concerned with those new forms. And of course so is the legal world. Outsourcing, networking, crowdsourcing and telecommuting are a reality. This particular reality cannot be ignored. On the contrary, we must utilize it. And now, because of the critical situation we are living in, we are urged to take advantage of it immediately.

     

     III. Coronavirus And Teleworking…

    Telework has been at the forefront in recent days. In our country as well.

    Legislative Decree of 11 March 2020 introduced “Urgent measures to counter the negative effects of the occurrence of COVID-19 coronavirus and the need to limit its spread”.

    The Decree provides that: “The employer may decide that the work provided by an employee at the place of work as per their individual employment contract shall be carried out in accordance with the system of distance work.” In fact, the Decree provides the possibility of extending the time of application of the above extraordinary and provisional measure, “by joint decision of the Ministers of Finance, Labor and Social Affairs and Health” (Article 4 par. 2), after 10.04.2020.

    Teleworking is part of the wider context of distance working. Part of it is teleworking at home. This way of working thus achieves the twofold purpose of: (i) The possibility of employees to stay at home. (ii) The continuation of the employment of the employee.

    In emergency situations (such as the one we live in because of the coronavirus), teleworking achieves: the continuation of the employee’s job, ensuring the continued operation of the employer-business, the elimination (or at least, reduction) of both employer and employees’ financial loss.

     

    IV. Teleworking And Its Individual Forms.

    Teleworking can take the form of full-time or part-time employment. It utilizes IT and communications. It makes it possible for the employee to provide services at a location other than the location of their employer.

    Teleworking comes in many forms. Its individual forms are (also) identified by the place the work is offered. Based on this criterion, the following forms of teleworking are encountered, inter alia:

    (a) Home-Based Telework: As already mentioned above (under III), due to the emergency caused by the pandemic, this is the most appropriate way of providing work. We would even dare to add: it also is the most common one globally. This is the main and most widely used form of teleworking. It is seen as a development of traditional, home-based work. The teleworker, in this case, uses their home as their base for their work. Their home instead of their employer’s premises.

    It is important to note, however, that the employer’s liability for an accident at work is not waived in the case of home-based teleworking. In this context, it is necessary for the employee to obtain a statement on the safety of their work from home. A relevant “Declaration” document should be signed by the employee and submitted to the employer.

    (b) Mobile Teleworking: The teleworker does not, in this case, have a fixed working base – e.g. their house. They can be in a number of locations / establishments, which constitute the place where their work is performed (eg the provision by the employee-accountant of corresponding services to the premises of their employee’s [(accounting) firm] clients. This is a widely used form of teleworking in the US. It is already developing in our country.

    (c) Telecentres: These are small workstations – premises with appropriate equipment to perform the necessary work. Telecentres are owned by the business-employer. They are smaller holdings, away from the employer’s central location and close to the workers’ residence. At telecentres, more teleworkers have the opportunity to offer their work.

    (d) Functional Relocation: This regards whole sections of the business, which are detached from its headquarters. These sections are established separately. However, teleworkers have direct access to the company’s systems. They show a significant resemblance to telecentres. Their main difference, however, is the fact that telecentres can concern employees from different parts of the business. On the other hand, functional relocation relates to the relocation of an entire division (or entire divisions) of a business and to all employees of that division. For example, the Customer Service Department of a business can be functionally relocated. It is not uncommon for this department to be located at a place outside of the businesses headquarters.

    (e) Telecottages: This form first appeared in the Scandinavian countries. Telecottages resemble telecentres. However, they do differ on an essential point. Teleworking sites are owned by local communities and not by a business, thus providing public access to computers. Their broader purpose is to educate residents of remote regions.

     

    V. Advantages of Teleworking

    There is no questions on the importance and positive effects of teleworking.

    In times of crisis, such as the present one, the positive effects abound. Indicatively: for public health, for the economy and, of course, for business. But even under normal circumstanses, teleworking undoubtedly offers a multitude of advantages. These benefits apply to the employee, the employer, and even the community as a whole. In a nutshell:

    (a) For the Employee: Teleworking helps employees organize their own working time. Protect their personal health. Save time and cost of moving to (and from) their workplace. It is an opportunity for people with serious family responsibilities or with health problems to (re)integrate into the labor market. It is also an important weapon for the (re)integration into the labor market of people with disabilities. In addition: for the removal of discrimination against them.

    (b) For the employer: Teleworking is an important tool for reducing the cost of the business. In particular, the costs relating to the establishment and maintenance of the necessary facilities. Further, the employer, through teleworking, is expanding the number of its eligible employees. Their place of residence is no hindrance to teleworking. Also: absenteeism is not uncommon in the context of (regular) employment. Some of these are linked to objective reasons (eg strikes on public transport or mild illness). Such difficulties in teleworking do not constitute a reason for not providing work. The employer can also look forward to increased employee productivity as work is provided in the familiar environment of their home.

    (c) For the community: Reducing employees’ mobility clearly has an environmental impact. In addition, teleworking can contribute to the development of remote areas. Urbanization for professional reasons is, of course, reduced through teleworking. Lastly: it protects public health.

     

    VI. Cons of Teleworking

    Teleworking does not, of course, have only advantages. Some of its disadvantages are:

    (a) For the Employee: When the place of residence is the same as that of the workplace, the teleworker is, in principle, isolated from their colleagues. And, more broadly, from the community. Their professional life strongly interferes with their private life, as the relevant boundaries are broken. Also: the teleworker is (potentially) on a permanent basis available to their employer. The potential for collective organization and action of teleworkers is subsiding.

    (b) For the Employer: When work is not provided at the employer’s premises, the employer loses significant control. The ability to monitor employees is limited to the result of their work. Also: business data, which the teleworker needs to use, is disseminated outside the secure, internal, business networks. Along with whichever risks this entails. Finally, the employer is obliged to support technical equipment in an indefinitely wide geographic scope.

     

    VII. The Legal Status of Telecommunication

    One would expect that there would be comprehensive legislation on teleworking. However, this is not the case. The relevant legislation is incomplete.

    1. The EU provision for telework: The signing of a framework agreement

    (a) European countries, attempting to adapt to developments, signed on 16.07.2002 a Framework Agreement on telework. This agreement sought to close the legislative gap for this type of work. Also, the (relative) modernization of labor law. This is because teleworking had already been evaluated as a means of modernizing labor. The purpose of this Framework Agreement was to reconcile the private and professional lives of teleworkers. Providing greater autonomy in their work.

    However, the Framework Agreement on telework did not take the form of a Directive. Its implementation has been left to the initiative of each social partner, to the choices, procedures and specific practices of each country. Our country chose not to abstain. This European Framework Agreement was incorporated into the Greek legal order as an annex to the National General Collective Labor Agreement dated 12.04.2006.

    (b) A definition of teleworking was included by the social partners in the provisions of the Framework Agreement. A rather wide one (not that this is bad)! According to this definition, “Telework is a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employers’ premises, is carried out away from those premises on a regular basis” (Article 2). It is clear that teleworking is accepted as an employment contract.

    The member-states wanted to point out the voluntary nature of teleworking (Article 3). This contract may be concluded (at the beginning or at a later time of the employment relationship) only on a voluntary basis. And this, after the necessary information on how the work will be executed is first provided, in writing, to the teleworker.

    (c) The above Framework Agreement contains, in addition, provisions relating to:

    1. Equalizing and safeguarding the rights of teleworkers with those of comparable workers. (Comparable workers among those who work within the premises of the employer-company – Article 4). Also, ensuring equal professional opportunities between the two groups of workers concerned (Article 10).
    2. Protecting business data. The employer must provide the necessary, relevant, updates to the teleworker. Indicatively, information on restrictions on the use of the Internet, equipment and IT tools. Also on penalties for non-compliance (Article 5).

    iii. Protecting employees’ privacy and personal data (Article 6).

    1. The employer’s obligation to provide, at their own expense, appropriate technical support to the teleworker. The obligation of the teleworker to take care of the equipment provided by the employer (Article 7). Provision of appropriate training in the use of the equipment provided (Article 10).
    2. Protecting the health and occupational safety of the teleworker (Article 8).
    3. The autonomy of the teleworker to determine the organization of their working time within the framework of the applicable laws, collective agreements and working regulations of the company concerned (Article 9).

    vii. Ensuring that the employer takes measures to avoid the isolation of their staff (Article 9).

    viii. Ensuring the collective rights and collective action of teleworkers (Article 11).

    1. National legislation

    (a) The presumption of employment

    In our country, legislative reference to teleworking is found in Law 2639/1998. Article 1 of that law is entitled: ‘Special forms of employment’. It states that: ‘The agreement between the employer and the person employed for the provision of services or work for a fixed or indefinite period, especially when relating to job-processing contracts, teleworking, home employment, shall be presumed to conceal a contract of employment, provided that work is provided by the person employer themselves, exclusively or primarily to the same employer for nine (9) consecutive months’.

    (b) The independent regulation on teleworking

    Teleworking has become a separate type of national legislation, as a form of employment, by Article 5 of Law 3846/2010. The national legislator has attempted to specify some of the provisions of the European Framework Agreement.

    As regards the obligation of the employer to inform the employee, it was stipulated that: “When the employer draws up a teleworking contract, they shall be obliged to provide the employee, in writing, with all information relating to the performance of the work within eight (8) days” (duties, remuneration, hours, cost of equipment and cost of repair if damaged by the employer, etc.). In fact, the legislator also made an innovation, stating that “if the contract contains a standby clause, the time limits and deadlines for the employee’s response are set.” (Standby contracts have already been addressed in our previous article).

    The legislator acknowledged the difficulties in transitioning from common work to teleworking. It recognized, in this context, the right of withdrawal for both the employee and the employer. It offered a three month adjustment period. It granted both of them the right to return to the previous employment status within that quarter, with a 15-day deadline.

    However, the national legislature imposed two more obligations on the employer: i. The obligation to bear any associated costs of the employee (in particular relating to telecommunications) and, in addition, ii. The obligation of written information of the teleworker, within 2 months of the conclusion of the employment contract, of the latter’s representatives. That is, the employer must provide the teleworker with the contact details of those who represent the labor rights of the staff within the company. (This is in order to provide additional safeguards for teleworkers’ union rights).

    Latest national legislation referring to teleworking is the very recent Legislative Decree of 11.3.2020 (above under III). This Legislative Decree, while not specifying the content of teleworking, nevertheless highlights its value and usefulness.

     

    VIII. Telework And Employment

    For the application of the (protective) provisions of labor legislation on telework, an employment contract is required. Employment-related (traditional) employment theories and related criteria have been developed in the context of the ‘normal work’ regime. Upcoming forms of employment – such as teleworking – could not have be taken into account. The relevant legal provisions in this case are almost inapplicable.

    The place, the way, and especially the working time, are de facto and, to a significant degree, decided by the teleworker. The prevailing theory of dependency seems to be waning. The managerial right of the employer seems insufficient (criterion) to classify telework provided as employment.

    On the contrary, business risk appears as a safer criterion. In the event that the employer bears the business risk, telework is a form of employment. If the person offering their services bears it, then we would be safe to assume the latter is self-employed. Of course, in this case, the provisions of labor law will not apply.

    The lack of adherence to obsolete perceptions is also necessary in this case. It is also necessary to understand developments and adapt Labor Law (as well) to them.

     

     IX. In Conclusion

    It is necessary to detach from perceptions that go back three thousand years or more (the case of galley rowers, for example). Even from perceptions of the past hundred years (eg the Fordian model of production).

    Developments are fast. We cannot ignore them.

    Teleworking offers, as a form of employment, significant opportunities for employees and employers. (Even in a pandemic environment from the COVID-19 infection). In countries of the European Union (and / or abroad), this particular, flexible, form of employment is already booming.

    In order to further utilize this institution in our country, concerns and reservations must be removed. Safeguarding the interests of stakeholders (: employee and employer) will help in this regard. And so will the proper application of teleworking.

    Adopting an adequate regulatory framework seems to be a necessity.

    It must be taken for granted that removing legal uncertainty will help to remove existing rigitness.

    In development as well.

    stavros-koumentakis

    Stavros Koumentakis
    Senior 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.

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