With the issuance of the (long-awaited – under no. 113169/28.12.2023 Government Gazette Β΄ 7421/28.12.2023) Ministerial Decision of the Ministry of Labor and Social Security, important issues regarding the Digital Work Card & Registration of Changes in Working Time are addressed, among other things. The said ΜD was also expected to amend the current provisions regarding the terms of electronic submission of forms under the responsibility of SEPE and OAED. It actually reformates (:Part C’), the upgraded ERGANI II; with the aim (also) of adapting it to the provisions of the recent labor law (law 5053/2023 ). Among the reforms it is implementing is the ability to choose a pre-announcement or 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 made a particularly important provision for employers whose businesses or enterprises have joined the electronic system for measuring working time using the digital work card for their employees with dependent employment. Accordingly, these employers are entitled not to register in the ERGANI II System any changes or modifications to working hours or 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 or the organization of working time or overtime is made by the employee and this is not identified by the marking of the digital work card. The amount of this fine amounts to the amount of €10,500(!) per employee, on whose digital work card the aforementioned identification is not possible.
The Purpose of the Regulation
The above regulation (according to the Request for Proposal of Law 5053/2023 on Article 22) is expected to contribute to addressing the administrative burden borne by a specific category of businesses. Specifically, those that register in the ERGANI II System the changes or modification of working hours or the organization of working hours or overtime. And, at the same time, they implement the electronic system for measuring working hours 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 the legal exceeding of the declared hours (overtime).
The Reflections
The content of the above legislative provision created specific concerns.
- The first concerned (and still concerns) the amount of the fine threatened 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 – much more so if we take into account that 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 of the marking of the digital work card with the change or modification of the working hours or the organization of working time or the overtime work of employees, given the lack of obligation to announce the relevant changes in advance.
However, as provided for in the relevant regulation of article 21 of Law 5053, the registration procedure, the information to be disclosed, as well as the procedure for checking and imposing the fine, as well as any other matter related to its implementation, were to be determined by decision of the Minister of Labor and Social Security.
UNHCR’s Answers: The Distinction Between Systems
The above-mentioned HR came to provide answers to the procedural concerns. This HR proceeds to a particularly interesting distinction between the systems for recording changes in working time: the pre-announcement and the reporting system. The provision, in fact, for the reporting system makes the process of implementing the provision of the aforementioned article 22 of Law 5053/2023 tangible.
The Two Systems
As specifically provided for in the aforementioned MH (article one), 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 of choosing the advance notification system, the employer will be obliged to register the changes in working hours before they are implemented. On the contrary, in case of choosing the reporting system, he will proceed with the said registration after the changes are implemented.
Employers are entitled (and of course obliged) to choose between the two systems within a specific deadline. The basic parameters of the regulation:
- It concerns (subjective scope of application): Employers whose businesses or farms have joined the electronic system for measuring working time using the digital work card.
- Selection deadline: Until the last day of the previous month from the reference month.
- Choice content: The aforementioned employers are obliged, within the specific, immediately above, deadline, to declare in 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 of time, which, in fact, cannot be less than one month, whether they will register the changes in working time:
(a) in advance – and in any case before the start of their implementation or
(b) reporting – after their implementation, as provided for in the law (Article 22 of Law 5053/2023).
…Especially Regarding the Accountability System
As further provided for in 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 from the date of their occurrence.
The relevant reporting data, which will be recorded in the ERGANI II System, will be cross-checked with the corresponding markings on the digital work card and will be under the control of the Labor Inspectorate.
Digital Work Card & Registration of Working Time Changes | Effective Date
The above-mentioned Decree, with regard to the regulations regarding the advance notice and reporting system for recording changes in working hours, shall enter into force on 1 March 2024.
The recent, according to the above, Ministerial Decision comes with vigor to address procedural concerns created by the recent legislative regulation (art. 22, law 5053/23). However, the problem remains: if in a company deviations are detected in the declarations of working time from the marking of the digital card of a specific employee, the amount of the threatened fine is unjustifiably and blatantly high. It does not seem at all logical to impose, in this case, a fine of €10,500, the same as in the case where a company employs an employee with his work, in total, undeclared. As lawyers, we must invoke the (lack of) proportionality. As fools of logic! We look forward, therefore, to the next, corrective, legislative regulation.
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 14th, 2024).
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.