Flexible forms of employment have been instrumental in tackling the adverse effects of coronavirus on entrepreneurship. They will also be a means of managing the deep recession we have already entered. However, they will remain present and will be further utilized. Anyone can confirm this – without, in fact, having special knowledge or foresight. Let’s face it. The future ahead of us cannot be the same as the past. This also goes for labor relations.
Can we react?
Of course! We can choose what the ostrich (allegedly) does in the face of danger. Let’s put our heads in the sand! To pretend the non-existence of what we have before our eyes!
Labor relations in the recent and distant past
The first of May: a day to enjoy spring or a day to celebrate labor?
A celebration of labor in the minds of most – a holiday/abstinence from work. The opportunity, for this reason, for the celebration of spring.
This year’s first of May was, of course, different from the rest. No gatherings or excursions to celebrate spring.
This spring, like the ones to follow: just as beautiful.
But what about labor relations?
Absolutely Different.
In May 1886 the labor unions in Chicago demanded eight hours of work and improved conditions. The slogan “eight hours of work, eight hours of rest, eight hours of sleep” summed up their demands. And all this in the traditional working model that was sufficiently responsive to the way the business is organized. In other words, in businesses that had a closed system of organization-structured according to the Ford production model.
There have been significant changes over the years. The concern for employees’ rights has increased. And so has the concern to ensure employment.
Labor relations are already adequately safeguarded. At the global, European, and of course national level. The result (among others): eight hours of work and a contract of employment. And, according to the classic model, at the employer’s premises.
The third industrial revolution in the late 20th century was characterized by the use of electronics and computer science. It was an important milestone. It marked the beginning of the departure from the classical systems of production and offering of services. It has dramatically expanded capabilities. It has created new, unprecedented, needs. Needs that, to some extent, resulted in the creation of new forms of employment-deviations from the traditional working model.
To meet these needs, more and more flexible forms of employment have been gradually utilized. The recent outbreak of the Covid-19 pandemic has pushed them into the foreground.
It has already been proven that their utilization (or their necessary application) is a means of business survival. For the continuation of their operation and, of course, for the rescue of jobs.
But what are, after all, the flexible forms of employment?
Flexible forms of employment are those that, while based on the model of a typical employment relationship, at least one parameter is different. These are also characterized by the term “informal employment relations”.
Their flexibility can be traced to individual aspects of the employment relationship. It is possible, for example, for this flexibility to regard:
(a) The time when (but also the place where) the work is provided.
These are the forms of flexible employment whose duration and distribution of working time go beyond the (normal) time limits of a full-time employee. Such forms of employment do not require a physical presence at the business’s premises. Work is organized in ways that take advantage of new possibilities. That satisfy new needs. Among them are the new, already formed, needs of the market. Of course, of the corresponding needs of the employees as well. We have already addressed typical cases of these forms of employment in our previous articles. Indicatively: part-time employment, rotational work, shifts, telework, standby contracts.
(b) The employment status.
According to the traditional model, employment contracts were concluded for an indefinite period. As time passed, fixed-term employment contracts are becoming more and more common. Furthermore: Employees whose (direct) employers are Temporary Work Agencies (TWA) provide their services to another (indirect) employer for a limited period of time in the form of temporary employment.
(c) Remuneration systems.
Flexibility can also affect the structure of employees’ wages and other benefits. The voluntary payments offered by the employer may be related to the productivity and results of the business.
(d) Employees’ labor and insurance rights.
Flexibility in the employment status of employees clearly affects their salaries, benefits, insurance coverage, pension rights, etc.
However, the development and dissemination of flexible forms of employment has been accompanied by specific problems, which require the modernization of the regulations concerning them. The problems, mainly associated with the insecurity of employees and the (given) legislative loopholes, have already mobilized the European Union. Its goal is to balance between flexibility and protection.
The past: Flexible forms of employment over time
Flexible forms of employment are gaining ground. However, they are not a (very) recent invention of the legislator. At least not all of them. In our country, the national legislator has been concerned with flexible forms of employment since 1939, when rotational work was first provided for. Part-time employment was legalized in 1990. Teleworking was introduced relatively recently: in 2010.
The implementation of flexible forms of employment was, initially, limited. They were brought in the spotlight due to the economic crisis of 2009. They were then (as well) used as a means of survival for businesses and job security.
Significant reform of Labor Law in the field of flexible forms of employment took place in 2010. Specifically, Law 3846/2010 addressed, among other things, issues of temporary and part-time employment, teleworking, working time. Among its objectives: (a) the provision of guarantees in all cases where the hitherto existing regulations on flexible forms of employment did not prevent the creation of insecurity, (b) effective treatment of non-compliance with the working conditions provided for by law, (c) reduction of inequalities in the treatment of those working with flexible forms of employment.
The recent, ten-year-long economic crisis has come to an end. The advantages of flexible forms of employment remain visible. Businesses have started making the most of them. This did not only happen in our country. According to a relatively recent (2019) survey by the International Workplace Group, 55% of businesses wanted to become more flexible, with immediate consequences, among others, for the forms of employment.
The turn of businesses towards more flexible forms of operation (and, of course, employment) was not meant to be gradual. The reason for the (largely) violent, specific, transition of the majority of businesses to flexible schemes was the escalation of the pandemic caused by coronavirus (SARS-CoV-2).
Present: Flexible forms of employment as means of saving employment relations from the pandemic
The escalation of the pandemic has created a new, unprecedented reality in the field of labor. Businesses whose operations were not suspended by public order were faced with a dramatic reduction in their revenues. The reduction in their productive activity was logically expected to lead to layoffs of redundant staff in order to reduce wage costs.
Therefore, it became necessary to take urgent measures, which on the one hand aim to protect employees and maintain their jobs, on the other hand to save business activity and the continuation of the operation of businesses, in the light of the protection of public health.
We have already attempted to decode these measures in our previous articles.
Among the measures taken to address the effects of the pandemic on workplaces (which we have already addressed), flexible forms of employment play a leading role. The specific forms (differentiated from the ones mentioned above) cover the special needs of businesses and employees created due to the pandemic. Particularly:
(a) Regarding the safe operation personnel
Article 9 of LD / 20.03.20 (as specified by No. 13564 / D1.4770 / 30.3.20-Government Gazzette, B ‘/ 1161 / 3.4.2020 MD), provided the possibility of the employer to appoint safe operation personnel. This temporary measure of flexible employment (which we analyzed in our previous article) is similar to the (unilaterally imposed) rotational work. What do they have in common? The alternation of working and non-working days.
However, the temporary measure of safe operation personnel has distinct application requirements.
In particular, this measure only applies to businesses that are (depending on the NACE Revision 2 classification of their business activity) among those affected by the pandemic. These businesses are entitled to implement the measure of safe operation personnel. This measure will cover at least 50% of the total staff of the business. In addition: each employee can be employed at least two (2) weeks per month, continuously or intermittently.
As for the obligations of employers, they owe salaries to the safe operation personnel corresponding to their employment. At the same time, however, they are obliged, for as long as they use the measure, to maintain the same jobs, that is, the same employees and on the same terms. Those who quit or those who retire are exempt from the above provision.
Relevant to this measure are the subsequently issued No. 13564 / D1.4770 / 30.3.20-Government Gazette, Β ‘/ 1161 / 3.4.2020 MD and 12998/232 / 23-3-2020 CMD (Government Gazette Β’ 1078 / 28-3-2020). However, there are still problems that we pointed out in our previous articles (Coronavirus and Businesses: The obligation to maintain jobs).
(b) With regard to the transfer of personnel to businesses within the same group
This measure, like that of safe operation personnel, aims to prevent redundancies. This measure offers flexibility to the employer. This flexibility regards the business in which, in the end, the employee provides their services, regardless of their (initial) employer. Therefore, the deviation from the traditional working relationship model.
If this measure is utilized (Article 10 LD / 20.03.20), the business affected by the pandemic or the business whose operation was prohibited or suspended is entitled to transfer its staff to another business of the Group to which it belongs. A condition is a relevant agreement between the two businesses involved. In addition, the businesses involved are required to maintain a total of the same number of employees as before the transfer. In this case, the clause excludes those who resigned and retired.
It should be noted that this measure, although newly introduced, had already been addressed by jurisprudence. The Supreme Court accepted the employment of an employee in other businesses of the same Group as possible. And this, regardless of which business of this Group is an employer (10/2018 CS). We have already addressed this issue in our previous article.
(c) Regarding remote work
The need for people to stay home for the protection of public health has highlighted the value of teleworking. We addressed the subject and its importance in our previous article. The points worth stressing are the following:
LD / 11.03.20 provided for the possibility for the employer to unilaterally determine “… that the work provided by the employee in the place provided for by their individual employment contract, will be carried out with the system of remote work” (art. 4 par. 2 LD / 11.03.2020).
The majority of businesses is already taking advantage of the possibility of unilaterally imposing remote work. Teleworking, although temporarily detached from its voluntary nature, has emerged as the most appropriate measure to continue the operation of businesses and the provision of services by employees.
It should be noted here that in the case of teleworking, the employer is not charged with additional commitments (such as the obligation to maintain the same jobs). However, in this case, the issue of accident at work becomes worthy of attention for the employer. This is because, in the event of a work accident, the employer’s liability is not waived in the case of telework from home. Therefore, it is necessary for the employee to make a statement regarding the safety of the performance of their work from their home.
The future: Flexible forms of employment after the pandemic
It is a given that flexible forms of employment have, by some, been demonized. However, they did not appear “yesterday” for the first time. (We have also seen that a form of rotational work has been around for almost a century). Nor will they ever leave us. Quite the opposite.
Flexible forms of employment, regardless of the statute of limitations, are already a reality. Internationally for a long time. Nationally, very intensely, during the last two months.
Businesses, in order to survive, have focused on reducing their expenditure – flexible or other. The reduction of wage costs is of great importance. And, to a significant degree, it has been achieved by reducing employment. The legislator had already (even before the pandemic) provided several options to businesses. And because of the recent crisis, those options have expanded. And rightly so.
Utilizing flexible forms of employment has already created a new norm. A reality that is not expected to dissapear with the (not yet visible) end of the pandemic.
On the contrary:
Flexible forms of employment, with their now broader part, will help entrepreneurship. They will help tackle the new, rather profound, recession. In maintaining wage and other costs at lower levels. In the (further) modernization of the way businesses operate. In the modernization of labor relations. In their adaptation to current social, economic and technological data.
Flexible forms of employment will also help to secure jobs. The benefits they recently offered will in time be proven crucial for the national economy (among others). This just not only regard employees. Nor is it limited to national authorities. The European Union has already started heading towards the right direction – especially with regard to reduced working hour schemes.
The reduced work schedules and the SURE Program
Reduced work schedule schemes are very important in the world of flexible forms of employment. These schemes allow businesses with financial difficulties to temporarily reduce their employees’ working hours. Indicatively, regarding our country: part-time employment, shift work, readiness contracts, Safe Operations Personnel.
It is logical that these programs raise concerns about employees’ incomes and the insurance of a minimum (tolerable or desirable) standard of living. And it is logical that the employees are not the only ones burdened with these concerns. This issue is also troubling, of course for different reasons, the national and European authorities.
Because of these concerns, the European Commission has launched a new instrument. More specifically, it has provided temporary support for the mitigation of Unemployment Risks in an Emergency (SURE). SURE aims to protect jobs and employees affected by the coronavirus pandemic.
In fact, the procedures have already been launched so that the specific instrument can take the form of a Regulation.
SURE will provide a financial assistance of up to €100 billion in total. This assistance will be provided in the form of loans granted by the EU to the Member States on favorable terms. These loans are expected to help Member States cope with a possible sudden increase in public spending to maintain employment. More specifically, it is intended to help Member States cover costs directly related to the creation or expansion of national systems for reduced working hours and other similar measures established for the self-employed in response to the current coronavirus pandemic.
The reason for the introduction of this particular medium was the finding that there are many businesses that face significant difficulties because of the pandemic. In order to manage them they are forced, not infrequently, to temporarily suspend or significantly reduce their activity and the working hours of their employees. By avoiding unnecessary redundancies, systems that will reduce working hours can prevent the most serious and long-term negative consequences of a temporary shock to the economy and the labor market in the Member States. In this way, they contribute to the maintenance of household income and to the maintenance of productive capacity and human capital of enterprises and the economy as a whole.
SURE will provide additional EU support to Member States to finance their systems on a part-time basis. In this way, job protection is expected to be achieved and so is, ultimately, the support of the member states’ economies.
SURE, albeit temporary, aims to become part of the Commission’s overall strategy to protect citizens and mitigate the extremely negative socio-economic consequences of the pandemic.
In other words:
(a) The EU accepts the reduced working hours of employees as a means of managing the crisis on the part of businesses.
(b) The EU prioritizes reduced working hours (against redundancies) as a means of managing the crisis.
(c) The EU has already initiated procedures for the financing of Member States in order to make it possible for them to (further) finance reduced working hours programs in order to save jobs.
Some government announcements have already taken place regarding the use of the facilities offered by this program.
Instead of an epilogue
Flexible forms of employment are not the worst thing that could happen to us after the pandemic. Let’s not treat them with fear. Let’s not treat them with introversion. Let’s not treat them as a disaster.
Let’s turn our attention to technology and focus on our own skills. Let’s see it as a chance to move forward. Let’s act positively and be active. Let’s take advantage of the flexible forms of employment and the opportunities they create.
Could an executive, freelancer or entrepreneur consider not having a laptop? Not being able to use applications for online meetings? Not being able to remotely connect to their business?
And why should we deny part-time work, rotational work, safe operation personnel?
Can we, using logical arguments, react when the world seems to be coming to an end? Or even when a particular business is about to close? Or can anyone seriously argue that they prefer to stick to a full-time employment contract that is about to be terminated?
Let’s not forget, however, that in the end:
Globalization is not just about others. It’s not just about international business giants. Almost every employee can now provide their services anywhere in the world.
But also viewed from another point: Almost every employer can “buy” services from employees anywhere in Greece. Or / and the world.
This is the reality.
Ostriches have no place in it.
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.