With the issuance of the (long-awaited – Ministerial Decision no. 113169/28.12.2023, Government Gazette Β΄ 7421/28.12.2023) of the Minister of Labour and Social Security, important issues regarding the Digital Work Card and the Registration of Changes in Working Time are addressed, among other things. The said Ministerial Decision was also expected to amend the current provisions concerning the electronic submission of forms under the responsibility of the Labor Inspectorate (ΣΕΠΕ) and the Manpower Employment Organization (ΟΑΕΔ). It actually reformats (in Part C’) the upgraded ERGANI II platform, with the aim (also) of adapting it to the provisions of the recent labour law (Law 5053/2023). Among the reforms it implements is the ability to choose between a pre-announcement or a reporting system for recording schedule changes, working time organization and overtime. That’s all for now!
Digital Work Card: The Provision of the Law (Art. 22 §1 Law 5053/2023)
The law (Art. 22 §1 of Law 5053/2023) has already introduced a particularly significant provision for employers whose businesses or enterprises have joined the electronic system for measuring working time using the digital work card for their employees. Accordingly, these employers are entitled not to register in the ERGANI II platform any changes or modifications to working hours, the organization of working time or overtime work before they begin.
However, a significant fine is threatened for the employer in the event that a change in working hours, the organization of working time or overtime is implemented by the them and such is not identified/matched by the marking of the digital work card. The amount of this fine reaches €10,500(!) per employee whose digital work card does not allow the aforementioned matching/identification.
The Purpose of the Regulation
The above regulation (according to the Explanatory Memorandum to Law 5053/2023 on Article 22) is intended to contribute to addressing the administrative burden borne by a specific category of businesses – namely those that register in the ERGANI II platform changes or modifications to working hours, the organization of working time or overtime, while at the same time implementing the electronic system for measuring working time using the digital work card. Moreover, as noted therein, the marking of the digital card proves in real time the start and end of working hours, as well as any legal exceeding of the declared hours (overtime).
The Concerns
The content of the above legislative provision gave rise to specific concerns.
- The first concerned (and still concerns) the amount of the threatened fine in the event of failure to identify any changes in working time by marking the digital work card of a specific employee. The fine of €10,500 is considered unreasonably high – all the more so since it is equal to the fine for undeclared work.
- The second concerned procedural issues. Specifically, it was necessary to clarify the method of determining any non-identification/non-matching of the digital work card marking with the change or modification of working hours, the organization of working time or overtime for employees, given the lack of obligation to announce the relevant changes in advance.
However, as provided in the relevant regulation of Article 21 of Law 5053/2023, the registration procedure, the information to be disclosed, as well as the procedure for checking and imposing the fine, and any other matter related to its implementation, were to be determined by decision of the Minister of Labour and Social Security.
The Ministerial Decision’s Answers: The Distinction Between Systems
The above-mentioned Ministerial Decision came to provide answers to the procedural concerns. It introduces a particularly interesting distinction between the systems for recording changes in working time: the pre-announcement system and the reporting system. The provision for the reporting system, in particular, makes the implementation of Article 22 of Law 5053/2023 tangible and practical.
The Two Systems
As specifically provided in the aforementioned Ministerial Decision (Article 1), the declarations submitted digitally to the ERGANI II platform include – among many others –: (a) the digital declaration of choice of a pre-announcement or reporting system for recording changes in working hours, working time organization and overtime, and (b) the digital reporting declaration of changes in working hours, working time organization and overtime.
The employer may choose either of the two registration systems.
In case they opt for the pre-announcement system, the employer is obliged to register the changes in working hours before they are implemented. On the other hand, in case they choose the reporting system, registration takes place after the changes have been implemented.
Employers are entitled (and of course obliged) to choose between the two systems within a specific deadline. The basic parameters of the regulation are as follows:
- Subjective scope of application: Employers whose businesses or enterprises have joined the electronic system for measuring working time using the digital work card.
- Selection deadline: Until the last day of the month preceding the reference month.
- Choice content: The aforementioned employers are obliged, within the above deadline, to make the “Digital Declaration of Choice of a Pre-Announcement or Reporting System for Recording Changes in Schedule, Working Time Organization and Overtime”, for the following period (which cannot be less than one month), whether they will register changes in working time: (a) in advance – and in any case before the start of their implementation, or (b) by reporting – after their implementation, as provided by law (Article 22 of Law 5053/2023).
…Especially Regarding the Reporting System
As further provided for the reporting system, employers who choose to record changes in working hours, working time organization and overtime for their employees are required to make the relevant declaration/registration again within a specific deadline: specifically, by the end of the next calendar month following the date of occurrence of the changes.
The relevant reporting data recorded in the ERGANI II platform will be cross-checked with the corresponding markings on the digital work card and will be subject to the control of the Labor Inspectorate.
Digital Work Card & Registration of Working Time Changes | Effective Date
The above-mentioned Ministerial Decision, as regards the regulations on the pre-announcement and reporting system for recording changes in working hours, entered into force on 1 March 2024.
The recent Ministerial Decision, as described above, comes vigorously to address the procedural concerns created by the recent legislative regulation (Art. 22 of Law 5053/2023). However, the core problem remains: if deviations are detected in a company between the declared working time and the marking of the digital card of a specific employee, the threatened fine of €10,500 is unjustifiably and blatantly high. It does not seem at all logical to impose, in this case, a fine of €10,500 – the same amount as in the case where a company employs an employee with their work totally undeclared. As lawyers, we must invoke the principle of proportionality (or rather, the lack thereof). As people, pure logic! We therefore look forward to the next, corrective, legislative regulation.
Senior Associate Koumentakis and Associates Law Firm
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