It is a common phenomenon that in practice (both by entrepreneurs and by HR managers) the document disclosing the individual terms of employment is confused with the written employment contract. However, these two documents are of particular importance and value should not be confused. Much more: the value and importance of existence of a dependent labor contract. In the present article we will examine the document of the disclosure of the individual terms of employment. In particular, the changes brought about in its regulatory framework by the recent labor law (: law 5053/2023).
The Distinction From The Written Employment Contract
However, before examining the differences brought about by the recent law in the disclosure of individual terms of employment, it would be useful to recall some basic distinctions between it (the Notice) and the Employment Contract.
Document Type & Content of Employment Contract
The written form is not, first of all, a condition for the validity of the employment contract. An exception, however, to the rule of non-necessity of the written form applies in two cases. In particular, when the written form: either (i) is provided as necessary (component) by a special provision of the law (e.g. in the case of part-time contracts – art. 38 Law 1892/1990) or (ii) is chosen by the parties involved (employee-employer) as necessary.
Of course, from the point of view of expediency and assurance of the contracting parties (especially the business), the existence (tailor made) of a written dependent contract proves to be absolutely necessary. This, because the written contract regulates (but it is also appropriate and mandatory to regulate) – in a way, in fact, easily demonstrable and binding the set of rules that (it would be good to) govern the employment relationship. Not only essential-basic terms.
Obligatoriness
The employment contract is therefore not binding on any of the contracting parties (employer & employee). On the contrary, the document notifying the terms of employment is characterized, in advance, by its obligation. It is noteworthy, in fact, that it is an obligation of the employer. And its purpose, primarily, is to inform the employee about the conditions of their employment.
The said obligation of the employer derived, until recently, from the Presidential Decree no. 156/1994. However, Law 5053/2023, incorporating the 2019/1152/EU Directive, repealed, from its entry into force (i.e., on 26.09.2023), the aforementioned Presidential Decree. The said, recent, labor law reformed: on the one hand, the content and conditions of the relevant document notifying the working conditions, and on the other hand, the manner and the time within which the employer is obliged to provide relevant information to the employee.
Essential Terms
Under the current regime, in compliance with Article 4 of the above Directive, the essential terms of the contract or employment relationship, which employers are obliged to communicate to employees, were enriched by the introduction of new elements, in relation to the existing regime (Memorandum to Law 5053/2023 on Article 6).
Specifically new (beyond those provided for in Presidential Decree no. 156/1994), cases of providing information were introduced (: art. 6 of law 5053/2023 which replaced article 70 of the Individual Labor Law Code). Among other things, information about the workplace and the procedure for terminating the contract or employment relationship with termination, the duration and conditions of the trial period of employment, the right to training as well as the program for organizing working time – when this is in full or as mostly unpredictable.
In particular, the essential terms now include:
(a) The identity details of the contracting parties,
(b) The place of providing the work (including the case of providing work in various places or, in case the place is not specified by the employer, the possibility of choosing it by the employee). Also, the company’s headquarters or the employer’s residence.
(c) The position or specialty of the employee, their grade, the category or – as will now be further defined – the branch of their employment as well as the subject of their work.
(d) The date of commencement of the contract or employment relationship.
(e) The end date or its intended duration – if it is a fixed-term employment relationship.
(f) The details of the indirect employer, if it is a job provided through a temporary employment agency.
(g) The duration and terms of the probationary period – if such has been agreed (given the possibility of foreseeing, under the recent arrangements, a six-month probationary period).
(h) The training provided by the employer – if any such provision exists for the employee.
(i) The duration of the paid leave to which the employee is entitled as well as the manner and time of its granting.
(j) The procedure followed by the employer and the employee in case of termination of the contract or the employment relationship, in accordance with the applicable legislation; in particular the obligation to give written notice to the other party. Also, as under the previous regime, the notice periods and the determination of the amount of the compensation. Finally, the existence of a great reason, if such is required for the termination.
(k) All types of remuneration to which the employee is entitled, as well as the periodicity and manner of their payment.
(l) The duration of the employee’s normal daily or weekly employment, the arrangements for overtime or overwork and their pay and arrangements regarding shift changes. (And all this under the condition that their program is entirely or mostly predictable).
(m) When, however, the working time schedule is entirely (or mostly) unpredictable:
(i) the principle that working hours are variable, the agreed number of guaranteed paid hours as well as the remuneration paid for work performed in addition to or beyond those guaranteed paid hours;
(ii) the reference hours and days, as their determination is prescribed in the law (art. 69 §6 para. b’ Presidential Decree no. 80/2022).
(iii) the minimum period within which the employer must notify the employee before assigning work and the deadline within which (according to Law: article 182 of Presidential Decree no. 80/2022) the employer has the ability to cancel the assignment.
(n) The collective agreement that defines the minimum remuneration and working conditions of the employee as well as the collective bodies that co-sign it.
(o) The social security institutions in which the employee is insured (currently: EFKA-exclusively) as well as any other benefit from the employer related to social security.
As expressly defined, information on the above elements of cases (g), (h), (i), (j), (k), (l) and (j) can also take place by referring to the applicable provisions of the labor legislation (art. 70 §2 Presidential Decree no. 80/2022).
While, further, it is defined that when the employee is employed through a temporary employment agency or with a loan agreement, in addition to the above-mentioned information obligations of the direct employer that result, the indirect employer has the obligation to notify them of the details of par. (ib) and (ic) (: art. 70 §3 Presidential Decree no. 80 /2022).
A written employment contract is valuable (although not legally required). The written notification of the essential terms of the employment contract is, however, mandatory and legally binding for the employer. The content of the essential terms which such disclosure should include is interesting but also extremely extensive. However, the differentiation of the essential terms from the (not defined by law) basic terms of the employment contract is of interest. Also the (excessively) complicated way and time of their notification to the employees. About them, however, see our next article.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 22nd, 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.