Tag: labor law

Working Time Arrangements: The Diffidence

Since the spring of 2020, the signatory has been concerned with the need to simplify, expand, rationalize and effectively utilize the institution of working time arrangements. To deal with it, a simplified legislative regulation was required. The relevant proposal (according to the standards of Germany and Cyprus – which successfully utilize the institution) would undoubtedly work to the benefit of employees and businesses. The immediately preceding labor law (Law 4808/2021) did not seize the relevant opportunity. It reformed the arrangement for the settlement, showing obvious audacity by avoiding noteworthy reforms. And this is because, according to the then Minister of Labor, the employee should be given the opportunity to request (: only them!!!) an arrangement… “to gather their olives”(!!!). The recent labor law (: law 5053/2023) further rationalized the institution, establishing the only logical condition for its application: the agreement of the employee and the company. Unfortunately, again, cowardly…

What is Working Time Arrangement?

The arrangement of working time constitutes a case of permissible offsetting of working hours. This offsetting can take place between the increased hours (of work) of one time period, with the decreased hours of another. It is important to note that, despite the fluctuations in the working hours in the individual periods, the salary remains the same in each time period. It will be equal, in any case, to the remuneration for work of forty 40 hours/week – as long as the specific hours apply in the company. And if the weekly hours are less than 40 hours, the pay to be paid during the settlement period will be equal to the pay provided for the weekly hours (art. 192 §4 Presidential Decree no. 80/2022).

Settlement Systems

The method of settlement is determined by law. The recent legislative changes (laws 4808/2021 and 5053/2023) did not change the already existing dual settlement system of law 1892/1990. We had, however, the addition (: law 4808/2021) of an additional settlement system.

The Dual Settlement System

The more than twenty years in disuse, according to the following, regulation (: art. 41 n. 1892/1990-as kept in force based on art. 192 Presidential Decree no. 80/2022) provides for a dual system of arranging working time in companies, in which contractual hours up to 40 h /week apply. This means that the settlement agreement can take place within the time limits specified by each of the following alternatives:

(a) First alternative: The employee may work up to two hours in addition to their contractual hours for a certain period of time (: period of increased employment). The extra hours of increased employment are subtracted from another time period (: period of reduced employment). During the latter time period, the employee will work fewer hours than their contractual hours or will receive a corresponding daily rest (day off) or will enjoy a combination of them. The reference period (increased and reduced employment), although freely chosen, cannot exceed six (6) months in a twelve (12) month period (art. 192 §1.a. Presidential Decree no. 80/2022).

(b) Second alternative: It is possible to allocate 256 working hours, within a calendar year, to periods of increased work that cannot exceed 32 weeks per year (: eight months) and ten hours per day. During the remaining period until the completion of the year, the employee has a correspondingly reduced employment (art. 192 §2.a. Presidential Decree no. 80/2022). Instead of reduced working hours – and to offset the additional hours worked during the period of increased working hours – the employee may receive a corresponding daily rest (day off) or a corresponding increase in annual paid leave or a combination of reduced hours and rest days or leave days (art. 192 §3 Presidential Decree no. 80/2022).

Common Arrangements

In both, above, two settlement systems:

(a) The protective provisions for the employees’ mandatory rest time are fully applicable also during the period of increased employment (art. 192 §§ 1.c., section a’ and 2.c. section a’ Presidential Decree no. 80/2022).

(b) The average weekly work during the reference period (6 months or year) remains at forty hours/week. (And since a shorter contractual hour is applied, the average weekly term cannot exceed it). At the same time, if the hours of overtime or overtime work (which may take place during the period of reduced employment) are taken into account, the average cannot exceed 48 hours/week (art. 192 §§ 1.c., ed. a’, 2.c. ed. a’ and §5 Presidential Decree no. 80/2022).

(c) The employee has the right to refuse the provision of this additional work, if they are unable to perform it and their refusal is not contrary to good faith. This refusal of the employee for the extra work cannot constitute a reason for terminating their employment contract (art. 192 §§ 1.b. and 2.b. Presidential Decree no. 80/2022).

(d) If the employment contract is terminated before the completion of the settlement system, then as long as the employee did not provide reduced employment, they will be paid for the period of their increased employment based on the arrangements for exceeding work time limits (art. 192 §§8 and 12).

(e) The arrangement system can also be applied to seasonal businesses and to employees with an employment contract of less than one year (art. 192 §9 Presidential Decree no. 80/2022).

The (Third) System of Law 4808/2021

Law 4808/2021 seems to have (“quietly”) introduced an additional system for arranging working time (art. 55 §2): “In the context of arranging the working time of article 192, full-time employment also means working 4 days a week” (182 §2 Presidential Decree no. 80/2022). It was envisaged, in other words, the possibility of dividing the full weekly schedule into 4 working days and for 10 hours per day.

Concerns were expressed about the relevant system. Among others, the Scientific Service of the Hellenic Parliament. In its relevant report, it is stated that the specific provision “…if it does not refer to a four-day ten-hour work day, this cannot be offered as part of the arrangement, as the logic of the arrangement consists of 40 hours of weekly employment (or the shorter applicable contractual hours), but as an employment average. The said average is obtained through the combination of periods of increased and decreased employment within a broader reference period”.

As, however, it was also pointed out in Circular no. 64597/2021, the specific system of arranging working time can be applied either to a reference period of six (6) months within one (1) calendar year or to a reference period of one (1) calendar year.

Settlement System Determination Beneficiaries

Under The Original Law That Established The Settlement (: Law 1892/1990)

Under Law 1892/1990 (art. 41 – as it was in force before Laws 4808/2021 and 5053/2023), the adoption of working time arrangements systems could be determined: (a) with a company-level Collective Labor Employment Agreement, (b) with an agreement of the employer with a trade union in the undertaking which concerned its members, (c) with an agreement of the employer and the works council or (d) with an agreement of the employer and association of persons.

It was not possible, i.e., to adopt a settlement system by a unilateral decision of the employer or an agreement between them and the employee. Quite naturally, therefore, the application of the possibility of arrangement, under the then current conditions, fell into disuse.

Under Law 4808/2021

Before the (given) uselessness of such an interesting institution – due to the limitations of the law that established it (: the necessity of the existence and consent of a trade union organization for its entry into force), Law 4808/2021 attempted a (still timid) leap. It provided, in particular, that if there is no trade union or no agreement is reached between the trade union and the employer, it is possible, at the request of the employee (“to gather their olives” – according to the introduction) to activate the settlement system of working time. (Presupposed, here too, that there is a relevant written agreement in place).

The purpose of the relevant addition – as pointed out in the Memorandum of law 4808/2021 on art. 59 – was to deal with the impossibility of applying the work arrangement system in the following cases: (a) On the one hand in companies where there is no trade union organization, (b) On the other hand in cases where, while there is a desire of the employee for the arrangement of working time in a way that corresponds to the adaptation sought by them of their personal and professional life, there is no corresponding employer-union agreement. It was made clear, however, that settlement by individual agreement was a secondary option. The lead was maintained in favor of the trade unions.

The settlement agreement, according to Law 4808/2021, could be initiated by the employee and not by the employer. The priority, however, could not be the needs/desires of the employee but the needs of the business. After all, how would it be possible to implement such a system, without taking into account the way of operation and the needs of the business?

An attempt was made, in retrospect, to deal with the (lacking logic) malfunctions by issuing an interpretive Circular. With the aforementioned Circular (with law 64597/2023) it was clarified that, for the convenience of the parties, the employer has the possibility to notify the employees of the possibility to submit an application for settlement. Also, the fields of individual operational needs, which would be receptive to the implementation of a working time arrangement system.

It was expressly provided, in order to secure the employees, that it is forbidden to terminate the employment contract because the employee did not submit a request for settlement (art. 59 §1 in fine law 4808/2021). Therefore, the obvious is confirmed: the formulation of the company’s needs and the activation of the specific institution must precede and, subsequently, the request of the employee to be submitted to it. Not, of course, the opposite!

Under the Recent Labor Law

The recent labor law (Law 5053/2023) addressed the above logical inconsistency. It predicted, in particular, that: “if there is no trade union organization or no agreement is reached between the trade union organization and the employer, the working time arrangement system can be applied, after a written agreement between the employer and the employee is drafted”. At the same time, it was provided that “termination of the employment contract is prohibited for the reason that the employee did not consent to an arrangement of working hours.”.

With the relevant reform of the regulation for the possibility of individual arrangement, even if auxiliary, the legislator aims to address the need to facilitate the utilization of the system of arrangement of working time by employees and employers (see in this regard, Memorandum to law 5053/2023 on art. 28). In any case: the provision for a written agreement (without the employee’s prior request) is, obviously, facilitative, it responds to reality and also to the needs of the employees and the companies.

The regulation of employment time is not an invention of the Greek legal order. The basic regulation that, at least at the European level, applies (and the relevant one proposed by the signatory) provides for the determination of its exact context by the directly interested parties: the company and the employee. Let’s trust them! Overregulation (always present in the Greek legal order) helps, in any case, beggars, alleged beggars and, obviously, us lawyers.

But the immediate stakeholders?

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 17th, 2023).

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

December 17, 2023
Termination of the Employment Contract for an Indefinite Time. The Substantive Conditions

Termination of the employment contract is one of the most important sections of Labor Law. The recent labor law (: law 4808/2021) brought changes in this part as well.

In our previous article, we were concerned with the reapproaching of the formal conditions for the validity of the termination of the employment contract of indefinite period by the employer. We were also concerned about the legal consequences of non-compliance.

In this article we will deal with its substantive conditions, the burden of proof and the legal consequences of the defective termination by the employer.

List of cases of invalidity

Article 66 §1 of Law 4808/2021 records specific cases of invalidity of the termination of the employment contract of indefinite period. Indicatively, if it:

(a.) is due to discrimination against the employee or due to revenge, or

(b.) occurs in response to an exercise of an employee ‘s legal right; or

(c.) is contrary to another specific provision of law, in particular when it comes to dismissal:

(c.a.) due to discrimination or due to a request for legal protection, to ensure compliance with the principle of equal treatment;

(c.b.) due to the exercise of rights in case of violence and harassment;

(c.c.) is a dismissal of pregnant women and women in the postpartum period, as well as of the father of a newborn child, when there is no grerat reason;

(c.d.) is in response to a request or authorization or flexible arrangement for childcare;

(c.e.) is during the annual leave,

(c.f.) is of persons with many children, of disabled and generally of persons under a protective regime, who have been forcibly placed when the legal conditions have not been met,

(c.g.) is of persons in the military,

(c.h.) is of trainee employees in tourism enterprises,

(c.i.) is implemented in violation of the legislation on collective dismissals,

(c.j.) is of trade unionists, members of employees’ councils, when there is no great reason;

(c.k.) is due to legal union action of the employee,

(c.l.) is due to non-acceptance by the employee of the employer’s proposal for part-time or rotational work;

(c.m.) is of employees who refuse the management, which has been collectively agreed and whose refusal is not contrary to good faith, as well as of employees who have not applied for a management, even though they have been asked to do so by the employer;

(c.n.) is of employees exercising the right to disconnection.

If the cause of such a termination falls into one of these cases, the already known legal consequences occur. Practical: the employee is entitled to claim recognition of the invalidity of the termination of their contract. In addition, they are entitled to request their re-employment but also the payment of arrears of wages for the period when the employer did not accept their services.

The list of cases of invalidity is indicative. This is clear from circumstance c΄ of §1. The latter stipulates that the termination of the employment contract by the employer is invalid, as long as it is contrary to “… special provision of law and in particular…” to specific special regulations which, subsequently, the legislator explicitly invokes (ca. c.a.-c.j.).

The burden of proof

Regarding this issue, it is provided that (art. 66 §2): “if the employee proves in court facts that can support the belief that the dismissal took place for one of the reasons of par. 1, it is up to the employer to prove that the dismissal did not take place for the alleged reason.”

This is obviously a (proof) facility in favor of the employee. In particular, if the employee invokes and proves a fact which may support the belief that their dismissal took place because of the fact invoked, then the employer must prove otherwise. The burden of proof, that is, is reversed and the employer must prove that they did not terminate the employment contract for the prohibited reason alledged by the employee.

Of course, the evidentiary facility seems to concern, at a first level, all the cases of §1. This, however, loses its meaning for some of the cases provided there. Indicative: dismissal during the period of the leisure leave which, in any case, is prohibited and for this reason there is no question of proof (beyond the time of its execution). Also, the termination of the employment contract of a pregnant woman who, in any case, also requires the existence and invocation of an important reason by the employer, otherwise it becomes invalid (art. 15 §1 law 1483/1984).

The possibility of paying additional compensation

To the consequences of the invalid termination of the employment contract of indefinite duration by the employer an alternative one is added (§3, art. 66) this time: In cases of defective termination (with the exception of those already mentioned above – §1 i.e. of the same article), the court, instead of another consequence, awards an additional amount of compensation in favor of the employee.

The aforementioned restriction leads to the conclusion that §3 includes cases of invalid dismissal which are either not explicitly listed in paragraph 1 or are not contrary to a specific provision of law, even if the latter is not specifically mentioned in §1. Therefore, the scope of this provision (§3 of art. 66) includes any termination of an employment contract that is contrary to a general provision of law. Also, that is, those that are exercised abusively (: article 281 of the Civil Code).

The review of the abuse of the right of termination

Despite the non-casual nature of the termination of the employment contract of indefinite duration, it is not possible (according to both theory and case law) to oppose good faith and fair dealing. It is therefore possible to have a judicial review on the basis of the relevant provision (: art. 281 of the Civil Code).

The case law has created criteria for reviewing the termination on the basis of 281 of the Civil Code, the non-observance of which affects its validity. These criteria include:

(a) The principle of the ultima ratio: Both the Supreme Court and the courts of the substantive assess whether the reasons which led to the termination of the employment contract, make, in fact, the termination necessary. In particular, the termination is the most onerous measure for the employee. Therefore, it should be the last resort of the employer. In case the interests of the employer can be satisfied with less burdensome measures for the employee, the termination from the part of the employer is void.

(b) The principle of proportionality: This principle is used by the jurisprudence as a criterion for specifying the general clause of good faith (int .: 897/2012 Supreme Court). Any, in fact, violation of art. 281 of the Civil Code and in particular of the principle of proportionality is reviewed by case law in the case of termination of an employment contract for failure to comply with the prescribed disciplinary procedure.

(c) The correct choice of the dismissed: In cases where economic and technical reasons justify the employer’s choice to terminate the employment contract, the latter may be considered invalid as abusive, if the employer does not select the employee to be dismissed based on social and financial criteria. As such criteria are defined by the jurisprudence as the seniority, age, financial and family status of each of the comparable employees (int .: 722/1999 Supreme Court). And this obligation derives, as the case law accepts, from the principle of good faith.

(d) The amending termination: The amending termination is a milder measure than the (common) termination. This is a continuation of employment with different working conditions than the agreed upon. And this termination is subject to the review of 281 Civil Code.

(e) The submission of a complaint before the court as a mere pretence: The exercise of the right of termination is also subject to abuse review in cases in which, although a complaint or lawsuit has been filed against the employee, it is filed as a mere pretence. Specifically, when the criminal prosecution constitutes the reason for the termination, the validity of the latter suffers, when the employer knows the false accusations against the employee.

How to exercise the right to additional compensation

We have seen above that the termination of the employment contract may suffer for some other reason than those mentioned above – and explicitly refer to §1 (which brings about its invalidity). In this case it is possible, as already mentioned, to ask the court, alternatively (instead of the consequences of the invalidity: re-employment and arrears of wages) for additional compensation. The request can be submitted either by the employee or by the employer at any stage of the proceedings (in the first or second instance).

The amount of the additional compensation

The amount of the additional compensation cannot (art. 66 §3) be less than the regular salary of three (3) months nor more than twice the legal compensation – due to termination at the time of dismissal. As a criterion for determining its amount, the court takes into account (in particular) the severity of the employer’s fault and the property and financial situation of both (employee and employer).

The possibility of paying additional compensation at the request of the employee

The employee can request the payment of the above additional compensation in case the complaint suffers for some reason mentioned in §1 -for a reason, ie, which falls within the list of cases of complaints listed there. In this case, the employee is given the right to claim the aforementioned additional compensation – instead of acknowledging the invalidity of the complaint and the occurrence of its consequences.

The prohibition of cumulation of claim for invalidity and additional compensation

In case the employer files a lawsuit with a request for additional compensation, if one of the prohibitive reasons of §1 is met, «… no request can be accumulated for the recognition of the invalidity of the complaint and the occurrence of the legal consequences of the invalidity, provided that the two requests are based on the same historical and legal basis” (art. 66 §6). According to the letter of the law, this accumulation, even if ancillary, “… leads to the rejection of both as unacceptable.”.

Therefore, in order for the employee to claim, in this case, the additional compensation, it is presupposed that they cannot claim, at the same time, the occurrence of the legal consequences of the invalidity of the termination of their employment contract (eg re-employment and arrears of wages).

The law of termination of employment contract for an indefinite period is being modernized and rationalized.

It is already moving in the direction of avoiding time-consuming and costly procedures, in the direction of alleviating the significant burden of cases that concern the courts, in the direction of easing companies and facilitating employees.

It is ultimately moving towards the benefit of the real economy.

The (positive) results will soon begin to appear

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 21st, 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.

November 21, 2021
Managing Working Time

The management of working time (as regulated in Article 41 of Law 1892/1990), has repeatedly occupied us. Also, in the spring of 2020, we were concerned, on the basis of the issues relating to eight-hour working days, with the possibilities of reforming the system of the management working time. In fact, the signatory proposed, for the first time in our country, a specific legislative provision for the management of working time – in the standards, in fact, of Germany and Cyprus, which successfully utilize the institution. For the benefit of both employees and businesses.

Opponents of the reform and the legislator’s timidity

It is well known that every reform meets opponents. Sometimes fierce ones. Often without logical arguments.

The recent labor law (: law 4808/2021) proceeded to a very comprehensive reform of labor law. With some of its provisions, it attempted to re-approach the regulation of the management of working time.

The legislator, however, was extremely timid.

The regulation of the management of working time has met, already at the stage of its drafting, a significant number of opponents. They claimed that the new regulation is being introduced: “to abolish the eight-hour working days”, “to abolish overtime” or “to pay the overtime of employees on a break”.

Such and corresponding, absolutely illogical, accusations as well as the pressures that, in general, were exerted on the parliamentary majority led, as we will analyze below, to a simple re-approach of the legislation of a decade ago. A historic opportunity for legislative modernization, in the context of European legislation and modern European practices, has been lost (: Working Time Management – A Missed Opportunity?).

The aim of the present article, however, is not another critical evaluation of the new regulation (: article 59 of Law 4808/2021). We will attempt, however, a brief analysis of the new data.

The dual system of managing working time

The older provision (: art. 41 law 1892/1990-as maintained in force by law 4808/2021) provides for a dual system for the management of working time. This means that the management agreement can take place within the time limits specified by each of the following alternatives:

(a) First alternative: Ability to provide additional working hours for a specific period (: increased employment) which will be subtracted, respectively, from the working hours of another period (: reduced employment). The periods of increased and decreased employment may not exceed a total of 6 months in a period of 12 months (d. 42 §1 a’) and

(b) Second alternative: Ability to allocate 256 working hours, within a calendar year, to periods of increased work that cannot exceed 32 weeks per year. During the remaining period of the year, work is provided of reduced duration, respectively, in relation to the maximum legal time limits (d. 42 §2 a’).

Who was entitled to agree on such a management of working time?

Under the previous legislation, the management of working time could not be the product of an individual employer-employee agreement. It could be determined only: “… by business collective labor agreements or by agreements of the employer and the union of the business or the employer and the employees’ council or the employer and the associations of persons…” (art. 42 §6 Law 1892 / 1990).

This restriction has rendered, in essence, the legislative provision inapplicable. The lack of a collective entity within a company (the most common case) was an inaccessible obstacle to the implementation of a working time management system.

The management at the request of the employee

The recent, relevant regulation (: article 59 §1 law 4808/2021) removed, in essence, the previous restriction. It is now possible to manage working time, as described above in its two alternatives, at the request of the employee and after a written individual agreement with the employer.

A prerequisite, however, for such an individual agreement to be permissible, is: (a) either the lack of a trade union organization in the company, (b) or the failure to reach an agreement between the (existing) trade union organization and the employer.

The specific conditions

A recent Circular of the Ministry of Labor and Social Affairs (: protocol no. 64597 / 03.09.2021-hereinafter “Circular”) sets three conditions for the adoption of a management system, at the request of the employee.

The specific conditions are:

(a) Submission of a signed application of the employee: As discussed above, the law requires a prior application of the employee to the employer, as in the above Circular, the application of the employee must be signed. It may, however, be in written (: printed) or in an electronic form. At the same time, it must exist and be kept in the employer company.

(b) Explicit term in the employment contract and its amendment: In addition, the Circular stipulates the existence of an explicit term in the individual employment contract on the agreement of the applicant employee and employer for management. And then, “the modification of the individual contract in the part concerning the duration of daily and weekly employment, by notifying the employee of the applied settlement system agreed in accordance with the provisions of Presidential Decree no 156/1994″ Obligation of the employer to inform the employee about the conditions governing the employment contract or relationship”.

The wording of the Circular raises questions. The management of working time at the request of the employee is a facility provided by law. At the same time, from the wording of the provision of article 59, there is no obligation to include the above possibility in the individual employment contract. Especially if one considers that the latter, as a rule, is not required to be subject to a written form. Therefore, the requirement of the Circular for the existence of an explicit condition in the individual employment contract obviously has no legal basis. Such a term can only be informative.

The distorted wording of the condition of the Circular seems to stem from the unfortunate, as it turns out, identification of the individual employment contract with the document notifying the essential terms of the working conditions. However, the employment contract should not be confused with the notification document of its terms [for the distinction: Employment contract = Written Notification of Essential Terms (Urban Myth Ή, Maybe, Not?)].

The document notifying the working conditions is an obligation of the employer, arising from the Presidential Decree no. 156/1994. This obligation of the employer relates to the essential terms of the employment contract or relationship. Specifically, the employer must fulfill the above obligation within a period of two months from the preparation of the employment contract (article 3 §1 Presidential Decree 156/94). Also, within one month from the realization of a possible change (article 5 §1 Presidential Decree 156/94). Among the essential terms are included “the duration of the normal daily and weekly employment of the employee” (article 2, §2 h’ of Presidential Decree 156/94).

It is therefore reasonable to notify the employee with the working conditions notification document, following the modification of daily and weekly employment due to the implementation of a management system. This happens, after all, in any case of change of the conditions recorded in the above document.

On the other hand, any individual management of the settlement system does not reasonably require the individual employment contract to be amended. The latter, after all, may not even describe the daily and weekly working hours.

(c) Obligation to submit a supplementary staff list: Lastly, the Circular emphasizes the obligation of the employer to submit a staff list (E4 Supplementary schedule) to the ERGANI Information System (obligation defined, after all, in article 78 of law 4808/2021). This list should be accompanied by an attached program, which will capture the applicable management system of the working hours. This will provide, respectively, the applicable reference period.

In any case, the above documents should be kept by the employer and provided to the Labor Inspectors at a possible scrutiny.

Employee protection

The law (: art. 59 law 4808/2021) provides for the protection of the employee involved, as follows:

Protection against dismissal

As mentioned above, the individual employer-employee agreement for the management of working time requires a prior request of the employee. It is therefore at the discretion of the employee to initiate the management system agreement procedure. Given the specific regulation, Law 4808/2021 explicitly prohibits the termination of the employment contract of the employee who requested a regulation of their working time.

The absolute protection of the employee from the termination of their employment contract is found, respectively, in article 66 §1 c.cjc’ Law 4808/2021. However, the wording of the law in the above-mentioned regulation deviates slightly from what we have noted above about the individual management of working time.

In particular, it is provided that: “The termination of the contract of employment for an indefinite period of time by the employer is invalid, if: c) it is contrary to another special provision of law, in particular, in the case of dismissal: cjc) …of the employees who did not submit a request for management, according to par. 6 of article 41 of law 1892/1990, although they were requested by the employer. ”

It does not follow from article 59 §1 of law 4808/2021 that the employer can request the management of working time from the employee. However, the legislator in Article 66 seems to reflect the logical sequence that the process of individual management of working time would be expected to have. As well as the notification of the possibilities and needs of the business by the employer the management would reasonably be the trigger for a corresponding request from the employee.

Protection in case of termination of the employment contract

In addition to the above, Law 4808/2021 regulates the case of termination, for any reason, of the employment contract, while a system of management of working time is applied (article 59 §2). Before, however, the employee receives, in whole or in part, the time compensation provided during the period of reduced employment.

In this case, the employee receives, at the termination of their employment contract, compensation for the overtime hours they worked during the period of increased employment. Their compensation in this case is calculated on the basis of the remuneration provided for overwork and overtime, as defined in Article 4 of Law 2874/2000 (as amended, in force by Law 58 of Law 4808/2021 – with which we were occupied in a previous article).

An important opportunity was lost, as mentioned in the introduction, for the modernization and rationalizing of the management of working time – based on European legislation and good practices.

But the problem was not limited to the loss of the relevant opportunity: Unreasonable pressures led to unreasonable distortions: The management of working time can, already, take place only at the request of the employee [as if it was prohibited (!) to be requested by the employer- there are no threated sanctions for the potential offender]. And even more: we see legislative attempts being made through a Circular of the competent Ministry, with serious legal problems.

In any case: the management of working time, as in force at European level, will inevitably be implemented in our country as well. Despite the reactions. Despite the setbacks. Despite the delays. For the benefit, however, as has been shown, of both employees and businesses.

We hope, for now, for the correction of the wrongdoings.

The soonest possible.-

Stavros Koumentakis
Managing Partner

P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 7th, 2021).

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

November 7, 2021
Work Time Limits

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

Establishment of working time limits

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

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

The four-day work week

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

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

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

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

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

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

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

Break during working hours

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

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

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

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

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

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

Additional work of part-time employees

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

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

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

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

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

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

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

Stavros Koumentakis
Managing Partner

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

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

October 17, 2021

This site is registered on wpml.org as a development site. Switch to a production site key to remove this banner.