ArticlesCoronavirus and Businesses: The obligation to maintain jobs

Coronavirus and Businesses: The details (and contradictions) of the obligation to maintain jobs

The legislation related to the current pandemic continues to be published at dizzying speeds. The end goal? Supporting business survival and job security. In our recent articles, we attempted to (de)codify the most basic of them. We already have a newer, complementary and very important, Ministerial Decision of the Minister of Labor. Its main object? To, again, secure jobs. The logic behind it is that of the previous, relevant legislation: “I help you to survive, but you have to secure the jobs in your business.”

More specifically:

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 clarifies critical issues, quite vague until recently. Its most important concern is the ban on dismissals.

 

Ι. prohibition of dismissals

1. Who does it concern?

It concerns businesses which have been suspended / banned from operating by a decision of a Public Authority, a ban on dismissals is in force from 18.3.2020 (article eleventh §1 Legislative Decree of 20.3.20).

The ban on dismissals does not cover all other businesses. Only those that have been characterized as affected, depending on the class of the NACE Revision 2 of their declared as main (or secondary) business activity as affected by the principal (or their subordinate CAA) – and have utilized the legislative facilities provided under the current pandemic. To be more precise, of the facilities of:

(a) the suspension of employment contracts of their staff

(b) telework for (up to) 10% of employees whose employment contract has been suspended

(c) safe operation personnel (a type of rotational work) and

(d) the transfer of their staff to other companies of the same Group

 

2. Obligation to maintain “the same number of jobs”? What is included;

2.1. The above (under 1) businesses are obliged, for as long as they utilize the measure, to maintain the same number of jobs. And even further: the same employees and the same working conditions. This obligation is specified in the express prohibition to terminate employment contracts for all their staff. In the event of termination, such is void. This provision excludes the termination of employment contracts due to resignation or retirement.

2.2. IMPORTANT: Intense legal insecurity is created by the fact that after the above MD, we are not able to know for sure how many jobs are required to be maintained by businesses that suspend their employees’ employment contracts under these measures.

Particularly:

According to a previous regulation (article 1 §5 ch. A2 Of the JMD no. 12998/232/23-3-2020 (Government Gazette vol. B ‘1078 / 28.3.20) employer-businesses also have the obligation to maintain “the same number of jobs” for 45 days. The concept of “the same number of jobs” does not include fixed-term employees whose contract expires after the start of the suspension (of course also are excluded those who resigned or retired).

In contrast, the the MD’s referenced in the introduction includes to the concept of “the same number of jobs” fixed-term employees whose contracts expire after the start of the suspension of their colleagues’ employment contracts.

And all this despite the fact that those two laws seem to overlap. Although, of course, one might argue that the most recent (and more specific) MD prevails…

 

3. But the problems don’t stop there:

The Legislative Decree of 20.3.20 provided (article 11 par.2.A.c): Businesses of the private sector that make use of the measure of the suspension of employment contracts of part or of all their staff, are obliged (after the expiration of the suspension of their employees’ employment contracts), to maintain the same number of jobs for a period of time equal to that of the suspension. In short: these businesses could not make redundancies: (a) for 45 days (suspension time) and (b) for another 45 days.

This decision refers to a ban on redundancies for the first 45 days and not for the next (45 days). It is clear, however, that, from a legal point of view, the provision of the Decree of 20.3.20 prevails.

 

II. The content of this MD in more detail

1. Businesses that impose telework on their employees

• • It concerns: Businesses -employers who unilaterally impose telework on their employees for whom there was no relevant provision or agreement.
  • By applying: The facility provided by the Decree of 11.3.20-article 4 §2-as applicable
  • Updating ERGANI: The above businesses -employers are obliged to submit a notification, up to the first ten days of the following month from the implementation of this measure, to ERGANI.

 

2. Businesses that employ (up to) 10% of their employees whose contracts are suspended by telework

• • It concerns: Businesses-employers that (cumulatively):

    (a) are classified as affected [as specified in Chapter A.2. of the JMD no. 12998/232 / 23-3-2020 (B ‘1078 / 28-3-2020)] and for as long as they are affected, according on the NACE Revision 2 classification of their business activity,

    (b) will come to an agreement with their employees whose employment contracts are suspended, that the latter will telework in order to meet the temporary needs of the business.

    • Privisions in force:

    (a) Employees with whom telework will be agreed, in this case, may not exceed, at most, 10% of the employees whose contracts are suspended.

    (b) Paragraph 3 of Article 4 of Chapter A.2 of the above (under 2.1.) joint ministerial decision.

    • Updating ERGANI: The above businesses -employers are obliged to declare to ERGANI this temporary telework, before the start of its implementation.

 

3. Businesses operating with a Safe Operating Personnel

• • It concerns Businesses-employers that (cumulatively):

(a) are classified as affected [as specified in Chapter A.2. of the JMD no. 12998/232 / 23-3-2020 JMD (B ‘1078 / 28-3-2020)] and for as long as they are affected, according on the NACE Revision 2 classification of their business activity,

(b) choose to implement a work system with safe operation personnel, in which: a. each employee may be employed for a minimum of two (2) weeks, consecutive or intermittently, per month and b. at least 50% of the bysinesse’s staff is under this scheme.

• In application: Of article 9 par. 1, 2 of the Legislative Decree of 20.3.2020 (Government Gazette A ’68),
• Updating ERGANI: The above businesses -employers are obliged to submit a notification, up to the first ten days of the following month from the implementation of this measure, to ERGANI.

 

4. Businesses that have suspended the employment contracts of some employees and, as for the rest of their staff, they either choose to operate with a Safe Operations Personnel or transfer staff to other companies of the same Group

• • It concerns:

(a) businesses classified as affected [as specified in Chapter A.2. of the JMD no. 12998/232 / 23-3-2020 JMD (B ‘1078 / 28-3-2020)] and for as long as they are affected, according on the NACE Revision 2 classification of their business activity,

(b) have suspended the employment contracts of some of their employees and

(c) as for the rest of their staff, choose to utilize the provision allowing them to operate with Safe Operation Personnel or transfer some of their employees to other companies of the same Group.

• In application: Of par. 3 of article 1 of chapter A.2. of of the JMD no. 12998/232 / 23-3-2020 (B ‘1078 / 28-3-2020)
• Updating ERGANI: The above businesses -employers are obliged to submit a notification, up to the first ten days of the following month from the implementation of this measure, to ERGANI.

 

5. Companies that choose to transfer their employees to other companies of the same Group

• • It concerns:

(a) Any employer whose business activity is severely affected by the negative effects of COVID 19, depending on the NACE Revision 2 classification of their main or secondary business activity (depending on their gross revenue for the year 2018), as such is determined by the Ministry of Finance or whose business operation is prohibited.

(b) transfers personnel between companies of the same group, following a relevant agreement between them, and for as long as they are classified as afected.

• In application: of article ten of the Legislative Decree of 20.3.2020 (A ’68)
• Updating ERGANI: The above businesses -employers are obliged to submit a notification, up to the first ten days of the following month from the implementation of this measure, to ERGANI.

 

6. Affected companies that choose to operate with a Safe Operating Personnel or transfer personnel to other companies of the same Group

• • It concerns:

(a) businesses classified as affected [as specified in Chapter A.2. of the JMD no. 12998/232 / 23-3-2020 JMD (B ‘1078 / 28-3-2020)] and for as long as they are affected, according on the NACE Revision 2 classification of their business activity,

(b) and that will choose to implement a work system with safe operation personnel or to transfer some of their employees to other companies of the same Group,

• In application: of par. 3 of article 1 of chapter A.2. of the JMC no. 12998/232 / 23-3-2020 (B ‘1078 / 28-3-2020)
• Updating ERGANI: The above businesses -employers are obliged to submit a notification, up to the first ten days of the following month from the implementation of this measure of transfer of employees, to ERGANI.

As mentioned in the introduction, in our recent articles we attempted to decode the recent, highly complicated and related to the pandemic, legislation. Indicatively:

• Coronavirus and Businesses: 10 + 20 Critical Responses relating to Employment Relations in Businesses Affected or Suspended
• Coronavirus: the invisible (?) enemy of jobs (: dismissal prevention measures)
• Coronavirus and businesses: one + one Decalogues about their operation and their employment relationships (: “pitfalls” and “business opportunities”)
• Coronavirus And Businesses: The Second Decalogue For Businesses And Employment Relations (:Tough Times And Business Opportunities)
• Pandemic COVID-19: One, First, Decalogue for a Business’s Operation and Its Employment Relations

 

This Ministerial Decision comes to fill some of the existing gaps (already highlighted in the above articles).

It is true that it does not avoid the creation of new concerns. However, no one can dispute that it is consistent with the (appropriate) decision and settled policy for providing for the security of jobs.

Always useful and, under the current circumstances, valuable for the “next day”.

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.