The management of working time (as regulated in Article 41 of Law 1892/1990), has repeatedly occupied us. Also, in the spring of 2020, we were concerned, on the basis of the issues relating to eight-hour working days, with the possibilities of reforming the system of the management working time. In fact, the signatory proposed, for the first time in our country, a specific legislative provision for the management of working time – in the standards, in fact, of Germany and Cyprus, which successfully utilize the institution. For the benefit of both employees and businesses.
Opponents of the reform and the legislator’s timidity
It is well known that every reform meets opponents. Sometimes fierce ones. Often without logical arguments.
The recent labor law (: law 4808/2021) proceeded to a very comprehensive reform of labor law. With some of its provisions, it attempted to re-approach the regulation of the management of working time.
The legislator, however, was extremely timid.
The regulation of the management of working time has met, already at the stage of its drafting, a significant number of opponents. They claimed that the new regulation is being introduced: “to abolish the eight-hour working days”, “to abolish overtime” or “to pay the overtime of employees on a break”.
Such and corresponding, absolutely illogical, accusations as well as the pressures that, in general, were exerted on the parliamentary majority led, as we will analyze below, to a simple re-approach of the legislation of a decade ago. A historic opportunity for legislative modernization, in the context of European legislation and modern European practices, has been lost (: Working Time Management – A Missed Opportunity?).
The aim of the present article, however, is not another critical evaluation of the new regulation (: article 59 of Law 4808/2021). We will attempt, however, a brief analysis of the new data.
The dual system of managing working time
The older provision (: art. 41 law 1892/1990-as maintained in force by law 4808/2021) provides for a dual system for the management of working time. This means that the management agreement can take place within the time limits specified by each of the following alternatives:
(a) First alternative: Ability to provide additional working hours for a specific period (: increased employment) which will be subtracted, respectively, from the working hours of another period (: reduced employment). The periods of increased and decreased employment may not exceed a total of 6 months in a period of 12 months (d. 42 §1 a’) and
(b) Second alternative: Ability to allocate 256 working hours, within a calendar year, to periods of increased work that cannot exceed 32 weeks per year. During the remaining period of the year, work is provided of reduced duration, respectively, in relation to the maximum legal time limits (d. 42 §2 a’).
Who was entitled to agree on such a management of working time?
Under the previous legislation, the management of working time could not be the product of an individual employer-employee agreement. It could be determined only: “… by business collective labor agreements or by agreements of the employer and the union of the business or the employer and the employees’ council or the employer and the associations of persons…” (art. 42 §6 Law 1892 / 1990).
This restriction has rendered, in essence, the legislative provision inapplicable. The lack of a collective entity within a company (the most common case) was an inaccessible obstacle to the implementation of a working time management system.
The management at the request of the employee
The recent, relevant regulation (: article 59 §1 law 4808/2021) removed, in essence, the previous restriction. It is now possible to manage working time, as described above in its two alternatives, at the request of the employee and after a written individual agreement with the employer.
A prerequisite, however, for such an individual agreement to be permissible, is: (a) either the lack of a trade union organization in the company, (b) or the failure to reach an agreement between the (existing) trade union organization and the employer.
The specific conditions
A recent Circular of the Ministry of Labor and Social Affairs (: protocol no. 64597 / 03.09.2021-hereinafter “Circular”) sets three conditions for the adoption of a management system, at the request of the employee.
The specific conditions are:
(a) Submission of a signed application of the employee: As discussed above, the law requires a prior application of the employee to the employer, as in the above Circular, the application of the employee must be signed. It may, however, be in written (: printed) or in an electronic form. At the same time, it must exist and be kept in the employer company.
(b) Explicit term in the employment contract and its amendment: In addition, the Circular stipulates the existence of an explicit term in the individual employment contract on the agreement of the applicant employee and employer for management. And then, “the modification of the individual contract in the part concerning the duration of daily and weekly employment, by notifying the employee of the applied settlement system agreed in accordance with the provisions of Presidential Decree no 156/1994″ Obligation of the employer to inform the employee about the conditions governing the employment contract or relationship”.
The wording of the Circular raises questions. The management of working time at the request of the employee is a facility provided by law. At the same time, from the wording of the provision of article 59, there is no obligation to include the above possibility in the individual employment contract. Especially if one considers that the latter, as a rule, is not required to be subject to a written form. Therefore, the requirement of the Circular for the existence of an explicit condition in the individual employment contract obviously has no legal basis. Such a term can only be informative.
The distorted wording of the condition of the Circular seems to stem from the unfortunate, as it turns out, identification of the individual employment contract with the document notifying the essential terms of the working conditions. However, the employment contract should not be confused with the notification document of its terms [for the distinction: Employment contract = Written Notification of Essential Terms (Urban Myth Ή, Maybe, Not?)].
The document notifying the working conditions is an obligation of the employer, arising from the Presidential Decree no. 156/1994. This obligation of the employer relates to the essential terms of the employment contract or relationship. Specifically, the employer must fulfill the above obligation within a period of two months from the preparation of the employment contract (article 3 §1 Presidential Decree 156/94). Also, within one month from the realization of a possible change (article 5 §1 Presidential Decree 156/94). Among the essential terms are included “the duration of the normal daily and weekly employment of the employee” (article 2, §2 h’ of Presidential Decree 156/94).
It is therefore reasonable to notify the employee with the working conditions notification document, following the modification of daily and weekly employment due to the implementation of a management system. This happens, after all, in any case of change of the conditions recorded in the above document.
On the other hand, any individual management of the settlement system does not reasonably require the individual employment contract to be amended. The latter, after all, may not even describe the daily and weekly working hours.
(c) Obligation to submit a supplementary staff list: Lastly, the Circular emphasizes the obligation of the employer to submit a staff list (E4 Supplementary schedule) to the ERGANI Information System (obligation defined, after all, in article 78 of law 4808/2021). This list should be accompanied by an attached program, which will capture the applicable management system of the working hours. This will provide, respectively, the applicable reference period.
In any case, the above documents should be kept by the employer and provided to the Labor Inspectors at a possible scrutiny.
The law (: art. 59 law 4808/2021) provides for the protection of the employee involved, as follows:
Protection against dismissal
As mentioned above, the individual employer-employee agreement for the management of working time requires a prior request of the employee. It is therefore at the discretion of the employee to initiate the management system agreement procedure. Given the specific regulation, Law 4808/2021 explicitly prohibits the termination of the employment contract of the employee who requested a regulation of their working time.
The absolute protection of the employee from the termination of their employment contract is found, respectively, in article 66 §1 c.cjc’ Law 4808/2021. However, the wording of the law in the above-mentioned regulation deviates slightly from what we have noted above about the individual management of working time.
In particular, it is provided that: “The termination of the contract of employment for an indefinite period of time by the employer is invalid, if: c) it is contrary to another special provision of law, in particular, in the case of dismissal: cjc) …of the employees who did not submit a request for management, according to par. 6 of article 41 of law 1892/1990, although they were requested by the employer. ”
It does not follow from article 59 §1 of law 4808/2021 that the employer can request the management of working time from the employee. However, the legislator in Article 66 seems to reflect the logical sequence that the process of individual management of working time would be expected to have. As well as the notification of the possibilities and needs of the business by the employer the management would reasonably be the trigger for a corresponding request from the employee.
Protection in case of termination of the employment contract
In addition to the above, Law 4808/2021 regulates the case of termination, for any reason, of the employment contract, while a system of management of working time is applied (article 59 §2). Before, however, the employee receives, in whole or in part, the time compensation provided during the period of reduced employment.
In this case, the employee receives, at the termination of their employment contract, compensation for the overtime hours they worked during the period of increased employment. Their compensation in this case is calculated on the basis of the remuneration provided for overwork and overtime, as defined in Article 4 of Law 2874/2000 (as amended, in force by Law 58 of Law 4808/2021 – with which we were occupied in a previous article).
An important opportunity was lost, as mentioned in the introduction, for the modernization and rationalizing of the management of working time – based on European legislation and good practices.
But the problem was not limited to the loss of the relevant opportunity: Unreasonable pressures led to unreasonable distortions: The management of working time can, already, take place only at the request of the employee [as if it was prohibited (!) to be requested by the employer- there are no threated sanctions for the potential offender]. And even more: we see legislative attempts being made through a Circular of the competent Ministry, with serious legal problems.
In any case: the management of working time, as in force at European level, will inevitably be implemented in our country as well. Despite the reactions. Despite the setbacks. Despite the delays. For the benefit, however, as has been shown, of both employees and businesses.
We hope, for now, for the correction of the wrongdoings.
The soonest possible.-
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 7th, 2021).
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.