The ongoing pandemic has created new important data – on a global scale. The protection of life and health, the survival of businesses, the safeguarding of jobs were (and rightly so) the object of state concern. The “next” day requires braver decisions. Saving national economies (and jobs) does not seem like a simple matter. Obviously, the ban on layoffs or compulsory employment is not a solution. Unemployment is expected to hit our country hard. Are there tools suitable for dealing with it? Could the organization of working time be one of them?
Does the (134-year-old, then reasonable) claim for “eight hours of work, eight hours of rest, eight hours of sleep” seem (especially under the present circumstances) completely obsolete?
Let’s take a look at the data.
Working time: Eight hours of work and flexible forms of employment
In our recent article on flexible forms of employment, we recorded the use of some of them as a tool for crisis and recession management. The transition from fixed working hours seems, under the current circumstances, another (important) tool in the relevant toolbox.
The time difference in the employment contract is, without a doubt, significant. One would say sacred. Working time is, as a rule, linked to the compensation of labor itself: the salary.
Working hours are inextricably linked to protecting the lives, health and safety of employees. Its multidimensional importance, after all, was the reason why the regulation on the maximum permissible working time limits is met in the first pieces of labor law legislation.
The maximum time limits are determined on a daily and / or weekly basis (daily or weekly schedule-respectively). Going beyond them, above certain limits, is not tolerated. Regardless, in fact, of a possible relevant remuneration or the consent of the employee.
The European Union’s guidelines on working hours
The European Union has chosen to establish, through the Directives, some basic rules for the organization of working time.
Directive 93/104 has provided for the provision of minimum daily, weekly and annual rest periods. Also, for appropriate breaks as well as for the introduction of maximum weekly employment (Rev. Recital 19). It was succeeded by Directive 2000/34.
The 2003/88 Directive in force today, among other things, codified the two previous Directives. It is basically regulated the (minimum) rest the employee must enjoy. Specifically:
With a reference period of twenty-four hours: Each employee must have at their disposal (every 24 hours) a minimum of eleven consecutive hours of rest (Article 3).
With a reference period per week: Each employee should have, every 7 days, a minimum continuous rest period of twenty-four hours. At this specific 24 hours, the eleven hours of (minimum) daily rest are added (Article 5 §1).
This Directive provides for minimum daily rest time limits (: 11 hours). The maximum daily working hours are deduced. Therefore, the daily working hours cannot be more than thirteen.
In contrast, the Directive in question has chosen to regulate directly (and not by contrary inference) the maximum weekly duration of work. It specified, in particular, that in a period of seven (7) days, the working time may not exceed, on average, 48 hours (overtime included).
The omission of an explicit regulation of the daily working hours is not a choice made at random. The goal is to offer flexibility (: Recital 15). And even further: the acceptance of some, potential, deviations (Articles 17 to 22). Prerequisite: the provision for compensatory leave for employees (: Recital 16).
Our country has probably conservatively utilized the above possibilities – especially in comparison with other European countries (eg Germany, Cyprus, England). Conservative utilization which ends up bringing no value. To none: neither employees nor businesses.
The regulation of working time at the national level
The legal working hours
In our country, the working hours of employees are determined by special provisions. Provisions of public order.
In other words, it is acceptable only to limit the maximum (provided by law) working time – by individual or collective labor contracts, by arbitration decision or other normative acts. However, it is forbidden to exceed it without observing what the law provides for overtime employment (indicatively: 288/2018 of the Supreme Court).
The maximum working hours are calculated, basically, with a reference period per day (daily schedule). The weekly schedule is calculated based on the corresponding daily schedule.
In the minds of most people, the maximum daily schedule is intertwined with 8 hours. And that should be it! (in the first place).
One hundred years ago, in 1920, Law 2269/1920 was passed. The law provided that working hours in industrial enterprises may not exceed eight per day and forty-eight per week. The 48 working hours were reintroduced with Law 3385/2000 -despite the intermediate reductions. The 8-hour period was gradually extended to employees in other sectors.
The above time limits, however, apply to companies that apply six-day weeks.
With the of 26.02.1975 General National Collective Employment Convention, the five-day work week was regulated. Under this system, the maximum legal daily working hours were set at 9, while the maximum weekly working hours was set at 45 hours.
Agreed upon working hours
The agreed upon working schedule is defined (rather unfortunately) as the schedule determined by collective labor agreements and arbitration decisions. This (most likely) to distinguish it from the legal one (as analyzed above). The conventional schedule was the means of reducing the weekly schedule – without the corresponding reduction in the monthly salary. With the General National Collective Employment Convention of 14.02.1984, the weekly schedule was limited to 40 hours per week without a corresponding reduction of the legal salary.
The legal and agreed upon working hours are the ones that delimit the time limits of “overwork” and overtime. In more detail:
Overwork provided for by law
Institutional overwork is calculated on a weekly basis. It is the employment time that exceeds the conventional schedule but not the maximum legal one.
In businesses where the five-day and 40-hour week is applied, the employee may be employed five (5) extra hours per week – at the discretion of the employer. These hours are “overwork” (translation from Greek, there is no English term).
Businesses which apply the six-day work week system, (institutionalized) overwork is the hours beyond the conventional schedule (40 hours) and up to the legal (48 hours) per week (article 1 §1 of law 3385/2005-as amended from article 74 §10 of law 3863/2010).
The compensation for institutionalized overwork is the hourly wage increased by 20%.
The (simple) overwork
(Simple) overwork is something different. It refers to those cases where the (agreed) weekly schedule falls short of the conventional one. If, for example, a weekly schedule of thirty-five hours has been agreed, the difference of up to forty hours (the conventional schedule) is a simple overwork. Simple overwork basically requires the consent of the employee.
The compensation for simple overwork is the regular hourly wage. It is not subject to surcharges.
Overtime is work that exceeds the conventional and legal schedule.
On a weekly basis: Over 45 hours in five-day work systems and 48 hours in six-day work systems (Article 1 § 2 of Law 3385/2005).
On a daily basis: Exceeding the legal daily working hours – even when the legal weekly maximum is not exceeded.
The compensation for overtime is the hourly wage increased by 40% for the first 120 hours of overtime per year and, beyond the 120, the hourly wage increased by 60%.
In cases where the legal conditions for the application of overtime have not been met, the surcharge is set at 80% (Article 1 §§3, 4 and 5 of Law 3385/2005). And this regardless of the other (not negligible) administrative and criminal sanctions.
Prohibition of offsetting working hours: the rule and derogations.
The rule: Working hours exceeding the maximum legal daily or weekly hours cannot be offset by corresponding hours of employment remaining below the maximum legal working hours of another day or week.
Overtime seems to give some, in essence, flexibility to the organization of working time. (But only apparently so – it precludes the possibility of offsetting working hours of more days – much less weeks).
True flexibility in the organization time of work would require the possibility of offsetting hours of employment with different days, weeks or months. No increased salary costs. Based on the (possibly) changing needs of the business. Possibly the desire & needs of employees.
The deviations? Minimum!
They are found, for example, in businesses of continuous operation (see our relevant article). Also, in businesses (non-continuous operation but) with alternating shifts (article 14 §2.3. A΄ PD 88/1999).
The needs have proven to be broader than deviations. The latter, moreover, do not address the rigidity of legal working hours. Nor the increased wage costs of overtime.
These needs led to the (failed – in practice) institution of working time settlement. The legal, ie, offset of working hours.
The institution of the settlement of working time (the deviations of Law 3986/2011)
The institution of arranging total working time is a widespread practice of organizing working time at European level (as well).
Simply put: In periods of increased employment, work is provided that exceeds the legal time limits. In other periods, the working hours are, respectively, reduced. Periodic changes in employment (and, ultimately, offset of working hours) do not fluctuate the compensation of the employee.
Such an arrangement does not exist in overtime. This is because (only) the employee’s employment time increases and so does (respectively) the company’s salary costs.
The provision of article 42 of law 3986/2011 is in force today. It provides for two relatively different systems. Both can be applied by companies that apply the conventional 40-hour weekly working hours.
The first system of work: Provides for the possibility of providing additional working hours for a specific period (: increased employment) and their deduction, respectively, from the working hours of another period (: reduced employment). The period of increased and reduced employment periods may not exceed a total of 6 months over a period of 12 months (Article 42 § 1 par. A).
The second system of work: Accepts as possible the distribution of 256 working hours within a calendar year in periods of increased work that cannot exceed 32 weeks per year. During the rest of the year, work is provided respectively reduced in relation to the maximum legal working hours (Article 42 §2 par. A).
In both systems, there are identical restrictions:
Employment during periods of increased employment is not allowed to exceed ten hours per day. In addition, per week-on average:
(a) 40 hours (without any overwork and legal overtime) and
(b) 48 hours (along with any overwork and legal overtime)
The settlement of working time in one of the above-mentioned ways presupposes a Business General Collective Employment Convention. Alternatively, an agreement between the employer and a trade union organization or an employee’s council or association of persons of their business (in more detail: Article 42 §6).
In other words:
Arranging employment time is not an employer’s right.
Unfortunately, it is not a matter of agreement with one or more employees.
And even more: even when the above conditions are met, the employee is entitled, at times, to refuse the above arrangement of their employment time.
Stiffness and distortion …
The importance of flexibility in labor relations, especially in times of crisis (and not only), is undeniable. Attempts to minimize (the expected to skyrocket) unemployment requires an national mobilization.
As we mentioned in quotes (but also in our previous articles), flexible forms of employment are an important tool for business survival and for saving jobs.
However, the institution of employment time regulation (as described above) creates rigidity and distortion. And one wonders, reasonably:
Why is it necessary for a trade union to exist in a business?
Why not be able to arrange the working time by an individual agreement of each employee – depending on their own, personal, needs and capabilities?
Why should this arrangement need to be put in a suffocating context – if the needs (and desires) of the bysiness and / or the employee are different?
Why should overtime be paid for when an employee prefers to receive a leave or a combination of pay and leave instead of pay?
Eight hundred thousand are, by the most modest estimates, the businesses affected by the pandemic (not counting the 700,000 freelancers, self-employed & small businesses). One million seven hundred thousand are their employees (: 8 out of 10 of the total workforce).
Very soon (necessarily temporary) measures to protect jobs will end. The institutionalization of the ban on layoffs in affected businesses will not be a solution, of course. Such a regulation can only be applied by different regimes – and in different times.
The European Union has provided appropriate tools. In our country they have not been sufficiently utilized. Our national policy and legislation seem to be inspired by the rigidity and entanglements of the past.
It’s time to make dissensions and adopt measures– even temporary ones. At least until the day-to-day beast of unemployment is tame.
1886 has begun to disappear in the past.
Would it be bad to recognize flexibility in organizing working time? A flexibility that will help businesses survive and save valuable jobs?
Is it time to try it?
(Or should we, persistently, stuck to the eight-hour day?)
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.