With the recent labor law (: law 5053/2023), our country incorporated, albeit late, the Directive (:2019/1152/EU) on transparent and predictable working conditions of the European Union. Even before the draft law was put into public consultation – with only its relevant announcement – there was an intense exchange of opinions and the formulation of strong objections; among other things, regarding the possibility of parallel employment. Objections were raised and distortions were subsequently identified, both on the draft law and on the ultimately passed relevant regulation. What is impressive is that they come from both the employees and the employers. Why is that?
Regime that prevailed
Legislative Regulation
According to the previous law (: art. 16 §3, ed. c’ and d’ Presidential Decree 27/1932) the employer was not allowed to employ within the same day an employee who worked in another factory or in another place of work for the legal daily working time. They could only employ workers who worked on the same day for other employers, for fewer hours than those determined by the above-mentioned Presidential Decree; however, only for the remaining time until the completion of the legal upper limit of daily work.
There arose, therefore, an explicit prohibition of the employment of any employee within the same 24 hours for the same or a different employer, after providing work throughout the legal maximum time of daily employment. As accepted by the jurisprudence, the specific regulation was intended to limit the strain on the employee’s physical forces and to protect his free time and his personal life. Therefore, any employment contract, which provided for the provision of work beyond the legal hours, was considered invalid, as contrary to a prohibitive provision of the law. In fact, the relative nullity was characterized as absolute and was therefore examined ex officio (680/2011 AP, TNP LAW).
Any violation of this obligation by the employer will result in the imposition of an administrative fine, in the event of an inspection by the Labor Inspectorate (2684/2018 STE, TNP LAW).
Clauses Prohibiting Concurrent Employment
Outside the context of the above time limitation, the employee was, in principle, free, during his employment relationship, to work for another employer at the same time. However, it was not uncommon to find in employment contracts (contractual) clauses prohibiting parallel employment during the employment relationship.
The prohibition clauses in question differed in their scope. It was possible to prohibit any parallel employment of the employee regardless of its object. Also mCivil Codee the ability to provide it dependent on the prior consent of the employer. Sometimes, in fact, it was possible that they only concerned parallel employment that affected the legitimate interest of the employer (e.g. parallel employment in a competing company).
The theory criticized the relevant clauses in those cases where the scope of their prohibition infringed on the professional freedom of the employee. Clauses prohibiting any parallel employment (it was claimed) should be considered invalid. Alternative clauses, which, although requiring prior permission from the employer for the parallel employment, did not foresee a relative obligation of the employer to consent – as long as the parallel employment did not affect their justified interests.
The above clauses should, according to part of the theory, be considered invalid due to “immorality” as they cause an excessive commitment of the professional freedom of the employee (art. 178 and 179 Civil Code). Otherwise, and since it was accepted that the relevant clauses could not be characterized as “immoral”, their potential abuse should be investigated (281 Civil Code). In the latter case, the relevant clauses should be considered invalid as abusive if there was a disproportion in the distribution of contractual rights and obligations.
However, jurisprudence has hesitantly considered any clauses prohibiting parallel employment to be invalid. On the contrary, given the lack of specific legislative provision for the invalidity of relevant clauses, the jurisprudence relied on the contractual freedom of the parties in order to judge their validity. In fact, the acceptance of their validity took place even in cases of generalized restriction (e.g., when the prohibition of parallel employment concerned employment with any other employer, regardless of the object of their activity – see ind.: 1992/1992, Legal Database QUALEX).
Directive 2019/1152/EU
The Directive incorporated into national law (with the recent law 5053/2023) includes – among other things – a provision for parallel employment. It is specifically established (:no. 9 §§1 & 2) the obligation of the member states to ensure that the employer is not going to prohibit an employee from working for other employers, outside of the working hours determined by the first (employer). Also, not to reserve unfavorable treatment to an employee for this reason.
At the same time, the Directive in question provides the member states with the possibility to set conditions for the use of the restrictions on incompatibility by employers for objective reasons. Examples include health and safety, the protection of business confidentiality, the integrity of the public sector or the avoidance of conflict of interest.
The current provisions
…On Parallel Employment
The existing legislative regime prohibited parallel employment within the same day for the same or a different employer – as long as work was previously provided throughout the legal maximum daily employment time. It was changed by the recent labor law, which incorporated the corresponding provision of the above Directive.
It amended (: art. 9, law 5053/2023), specifically, article 189 of presidential decree no. 80/2022 and the codified -mentioned above- article 16 of presidential decree no. 27/1932. In particular, the above sec. c and d of §3 of article 16 were repealed. It was expressly provided, among other things, that parallel employment for another employer is permissible, subject to the restrictions that apply to the daily and weekly work and rest time of employees (in particular, articles 162 to 179 of presidential decree no. 80/2022). The relevant reservation/clarification is, of course, for the safety of the employees and the removal of any doubt (see Memorandum to law 5053/2023, on art. 9). Therefore, the employee is now legally entitled to be employed by a different employer beyond the maximum daily working time, subject to compliance with the working time limits. In fact, in case of multiple insurance or multiple payment of contributions, the monthly pensionable earnings of the employee are increased, respectively (according to paragraph a of §2 of article 28 of law 4387/2016).
Similarly, with the aim of protecting employees in case they choose to take advantage of the possibility of parallel employment, it is expressly provided that: “… any unfavorable treatment of the employee by the employer due to the provision of work to other employers is prohibited”.
In order to avoid abuses at the expense of employees, it is clarified (Memorandum to law 5053/2023 on article 9) that “…to avoid abusive application, parallel employment is not understood between affiliated companies, as defined by the applicable legislation.”.
…. On the Clauses Prohibiting Parallel Employment
Furthermore, the above regulation (: art. 9, law 5053/2023) expressly provides that “it is not allowed to conclude agreements or set clauses by which the employee is prohibited from providing work to other employers outside the working hours agreed with a specific employer, unless justified by objective reasons such as health and safety, protection of business confidentiality, working for competing businesses or avoiding conflicts of interest. Agreements or clauses prohibiting the provision of work to other employers are void.”.
The above regulation regarding the clauses prohibiting parallel employment incorporates the Directive almost to the letter and seems to be drawn up with the above-mentioned position of the theory. The relevant clauses are, in principle, void. There is now, therefore, a special provision of the law, which directly establishes the invalidity of the relevant clauses. And this without requiring recourse to the general provisions of Articles 178 and 179 or 281 of the Civil Code and invoking the assistance of their conditions.
However, such clauses may exceptionally become permissible if they are justified by objective reasons. For example: the health and safety of the employee (reasonably, one would expect a full-time employment contract, e.g., driver, to have a relevant clause prohibiting parallel employment). Also for reasons linked to the employer’s justified and, clearly, worthy of protection, professional interests. Such, indicatively, could be the protection of business confidentiality, the prevention of employment in businesses competing with the employer or the avoidance of conflict of interest between employee and employer.
Pending Ministerial Decision
The procedure for implementing parallel employment is expected to be clarified by a Ministerial Decision, the issuance and publication of which is still pending. Specifically, it is foreseen that by decision of the Minister of Labor and Social Security, every necessary issue regarding informing the employer about the existence of parallel employment will be dealt with, as well as any more special/additional issue arising from the implementation of the new regulation.
The Problems
While waiting, however, for the immediately above-mentioned Ministerial Decision, various concerns are raised (both for employees and employers) regarding the implementation of the institution of parallel employment. In more detail:
…For Employees
As already mentioned, the pre-existing prohibition of the employee’s employment beyond the legal maximum daily working time was intended to prevent straining their physical capabilities. In the protection, also, of their free time and personal life. The present regulation may, according to the opponents, call into question their security.
It could, further, be argued (in exaggeration) that any employment of an employee by more than one employer is likely to deprive them of the (extraordinary) salary increases that they would be entitled to receive in the event of their employment – in excess of the time limits work for the same employer.
However, the most important (and more tangible) risk seems to be the possible complete circumvention of the institution and regulations for parallel employment, in the case of employment of an employee (without payment of increments) in a second company (not connected-by law) of the same employer, which will provide its services to the first (e.g. outsourcing).
…For The Employer
The eventual employment of the employee with a different employer is possible to prevent (sometimes for reasons of objective impossibility) their overtime and (mandatory for the employee) overwork – even if this became absolutely necessary for the first employer.
Further, the possibility of application of the working time arrangement system, calls into question the possibility of its coexistence with any parallel employment of an employee.
Finally, with the (as mentioned above) new regulation, it is not specified which of the most employers will bear the responsibility in case of violation of the daily and weekly employment and rest time limits of the employees. Nor is it specified which employment will be considered, e.g., main, with the result that any violation of said time limits will not establish the responsibility of the “main” employer.
The institutionalization of, as stated above, the possibility of parallel employment of an employee for several employers was an obligation arising from the above-mentioned European Directive. We will not doubt, of course, the good intentions of the legislator in dealing with an old (and not unusual in Greek reality) problem. It managed, however, to create strong concerns – among employees and businesses. Some of them are evaluated as absolutely reasonable; neither are they of minor importance nor, would it be possible to characterize all of them as theoretical. We look forward, for the time being, to their successful tackling by the expected issuance of the relevant Ministerial Decision.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 15th, 2023).
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