Part-Time Employment (and Exceeding the Agreed Upon Working Hours)
I. Preamble
The majority of businesses have relatively stable operating conditions. But there are a few businesses whose needs may differ from time to time. At regular or irregular intervals.
It would be unreasonable to force these companies to hire all the staff they may need full-time.
Such a logic would run counter to their growth prospects. It would certainly be a question of jeopardizing their existence. And of course all the jobs they offer. To the detriment of the national economy.
In this context, reasonably flexible work schemes are sought. One of them: the part-time work scheme.
II. Part-time work scheme – in General
1. A part-time work scheme was first introduced with Article 38 of Law 1892/1990. This provision was replaced by Article 2 of Law 2639/1998, in the context of the harmonization of national legislation with Directive 1997/81. It was later amended by the provisions of Articles 2 of Law 3846/2010 and 59 of Law 4635/2019.
2. The provisions of Article 38 §1 & §2 of Law 1892/1990, as it is in force today, provide:
“Article 38
Part-time employment
- At the time of drawing up the employment contract or during the time it is in force, the employer and the employee may, by a written individual employment contract, agree on a daily or weekly or fifteen day or monthly work for a fixed or indefinite period shorter than the normal period. (part time employment).
If this agreement is not drawn up in writing or it is not notified within eight (8) days of its establishment to the relevant Labor Inspectorate, the full-time employment of the employee shall be presumed.
- For the purposes of this Article:
(a) “part-time employee” means any employee being employed under an employment contract or relationship, whose working hours, calculated on a daily, weekly, fifteen-day or monthly basis, are less than the normal full-time equivalent of the comparable full-time employee;
(b) “comparable full-time employee” means any full-time employee employed in the same undertaking by an employment contract or relationship and performing the same or similar duties under the same conditions. Where there is no comparable full-time employee in the business, the comparison is made with reference to the collective arrangement to which the employee would be subject if they had been employed full-time. Employees working under a part-time employment contract or relationship shall not be treated less favorably comparable to full-time employees, unless there are objective reasons justifying it, such as a differentiation in working hours.
3. In the context of the above provisions:
(a) Part-time employment is the daily or weekly or fifteen-day or monthly work (agreed between the employer and the employee), the duration of which is shorter than the normal (full time, ie full time employment). This agreement may be for a fixed or indefinite period.
(b) A part-time employee is one whose working hours (calculated on a daily, weekly, fifteen-day or monthly basis) are less than the comparable employee’s normal working hours (detailed below under V.2).
4. The part-time work scheme is widely accepted by undertakings which are required to manage changing conditions in their operation. These businesses can, through it and based on their needs, adjust their resources and operation over a given period of time.
III. The part-time work scheme, the content and the “written form”
1. The content of the part-time employment contract is not strictly defined in the law. It rests with the contractual freedom of the employer and the employee. But it is the law that sets clear limits on this particular freedom of contract. Accordingly, the contract is a prerequisite for the application of the specific rules governing it.
2. The provision of Article 38 § 5 of Law 1892/1990, as in force, provides:
“5. The written individual contracts referred to in the preceding paragraphs shall include:
(a) the identity of the parties;
(b) the place of employment, the place of business or the address of the employer;
(c) the working hours, the allocation and working periods;
(d) the method of remuneration; and
(e) any conditions for amending the contract.
In seasonal hotels and catering establishments the written individual contracts referred to in paragraph 1 herein shall be of a daily or weekly working period.”
3. Individual part-time employment contracts should include the information mentioned above (under 2).
A key requirement for the validity of the part-time employment contracts is that it is concluded in written (Article 38, §1, b’ of law 1892/1990). This contract must be registered within eight (8) days on the ERGANI Information System.
4. The written form (the written, that is, the imprint of the relevant agreement between the employer and the employee) is required by law. Until very recently, non-compliance with the requirement to conclude such contracts in written resulted in: (a) either the invalidity of the whole contract when a contract was first entered into or (b) the invalidity of the term providing for part-time employment when we had a full-time contract amended. This invalidity was absolute. This meant that the courts should on their own rule them invalid, without one of the opposing parties having to previously ask the courts to do so.
However, by the provision of Article 50 of Law 4611/2019, the last paragraph of Article 38 § 1 of Law 1892/1990 was replaced. It was therefore stipulated that in the absence of a formal document, the validity of a part-time agreement would not be affected. There is simply a rebuttable presumption in favor of a full-time contract. The same effect occurs when the relevant contract is not registered (within eight days) in the ERGANI information system.
IV. The daily working hours of part-time employees
1. The provision of § 7 Law 1892/1990, as in force today, provides:
«7. If part-time employment is fixed on a daily schedule shorter than normal, the agreed upon part-time work must be continuous and provided once a day.
The preceding subparagraph shall not apply to car drivers of pupils, toddlers and infants and their attendants who work in private schools, nurseries and kindergartens, as well as teachers working in foreign language and secondary education student tutoring centers. “
2. Under this provision, the employment of part-time employees should be continuous and provided only once a day. The exceptions to this rule are: (a) car drivers for pupils, toddlers and infants and their attendants working in private schools, nurseries and kindergartens, and (b) teachers working in foreign language and secondary education student tutoring centers.
V. The remuneration of part-time employees
1. The provisions of §§ 6, 9 & 10 of Article 38 of Law 1892/1990, as in force today, provide:
“6. In any case, employment on a Sunday or other public holiday, as well as night work, entails the payment of a regulatory premium.
9. The remuneration of employees working under a part-time contract or relationship shall be calculated in the same way as the remuneration of a comparable employee and correspond to the part-time working hours.
10. Part-time employees shall be entitled to annual paid leave and holiday pay, on the basis of the remuneration they would have received if they had worked at the time of their leave, for which the provisions of Article 2 (1) and (2) of law 539/1945, as in force, apply accordingly.”
2. The remuneration of part-time employees is therefore not freely agreed between the employer and the employee. The provision of § 9 (above under 1) specifies the minimum threshold. In this context, the remuneration of part-time employees may not be (proportionally) lower than the statutory remuneration of full-time employees for the same work.
The remuneration of part-time employees shall be calculated in proportion to those of the comparable employee. They correspond (proportionately) to the part-time working hours.
A comparable full-time employee (section b’, §2, article 38 of Law 1892/1990-above under II.2) means any full-time employee employed in the same undertaking under an employment contract or relationship and performing the same or similar tasks, under the same conditions. However, there may not be a full-time comparable employee in the business. The comparison is then made with reference to the collective agreement to which the employee would be subject if they had been employed full time.
3. Regarding the calculation of the minimum monthly wage of a part-time employee (Doc. No. 36311/840 / 5.11.2013 of the Labor Ministry):
Weekly earnings are first calculated (the hourly wage of the comparable full-time employee times the part-time working hours on a weekly basis). What follows is divided by 6 and then multiplied by 25. [On the basis of the general principle that the monthly wage corresponds to 25 business days per month (on average) and 6 days of each week].
Example:
In a company that employs for five days a week and for 40-hours a week its full-time employees, the (part-time) employment of a employee was agreed to 25 hours of work per week, further distinguished by a five-day (Monday to Friday) five-hour work.
Given that the remuneration of the comparable worker amounts to € 800 per month, the remuneration of the part-time worker will be as follows:
(a) Hourly wage:
Monthly renymeration for a comparable full-time employee/25 x 6/40
[that is, Monthly Fee x 0.006
-> 800,00 x 0,006
-> 4,80 €.
(b) Monthly remuneration of a part-time employee:
Weekly part-time hours x Comparable hourly wage x Comparable hourly wage/6×25 x 6/40
-> 25 x 4,8 / 6 x 25
-> 500€
VI. Work of the part-time employee beyond the agreed upon working hours
1. The provision of Article 38 § 11 of Law 1892/1990 (as in force today after its replacement by Article 59 of Law 4635/2019) provides:
“11. If there is a need for additional work beyond what is agreed, the employee is obliged to provide it if they are able to do so and if their refusal would be contrary to good faith.
If work is provided beyond the agreed upon time, the part-time employee shall be entitled to a corresponding remuneration of twelve percent (12%) on top of the agreed remuneration for each additional hour worked. The part-time employee may refuse to provide work beyond the agreed time when such additional work is normally carried out. In any case, such additional work may be carried out up to the full day’s work of the comparable employee.”
2. It is therefore possible that additional work may, temporarily, be required from the part-time employee. On the basis of the above (under 1), if the need arises, the employee concerned is, in principle, obliged to provide it. They, however, are not liable to provide it where the additional work requested: (a) is normally carried out or (b) exceeds the full time of the comparable employee or (c) cannot, in good faith, be provided by the employee.
3. Additional, on top of the agreed upon, work shall, as already mentioned, be subject to a specific limit. It cannot exceed the daily working hours of the comparable employee. That is: (a) up to eighty (8) hours of daily work when the comparable employee is working five days a week; and (b) up to six (6) hours and forty (40) minutes of daily work when the comparable employee is working six days a week.
4. Where work is provided beyond the agreed upon hours on an exceptional basis, the part-time employee shall be entitled to additional remuneration. Specifically, a twelve percent (12%) increase on top of their agreed upon salary for each additional hour of work.
5. It is possible that the alteration in the work pattern is not exceptional. In this case there is no question of the employee’s obligation to comply. However, there may be a particular written agreement between the employer and the employee stating that the part-time employee’s weekly working hours or days will change on a regular basis. In the latter case, the part-time employee is not entitled to a 12% surcharge.
Thus, in the context of the above (under IV.3) example, the part-time employee may be required to provide (on a non-regular basis) their work for one (1) extra hour each day within a given week. The remuneration for the five (5) extra hours worked (in excess of the agreed time) will be as follows:
(a) Hourly wage:
800,00 x 0,006 -> 4,80 €.
(b) Overtime remuneration:
Hourly wage x Extra Hours x 1,12 ->
4,80 x 5 x 1,12 ->
26,88€ (ie 5,376 € for each additional hour of employment).
VII. Is the 12% surcharge in accordance with EU law?
As mentioned above (under II.1), in the context of the harmonization of national legislation with Directive 1997/81, Article 38 of Law 1892/1990 was replaced by Article 2 of Law 2639/1998.
The purpose of this Directive was to promote part-time work. This Directive also laid down the obligation of Member States to identify, address and, where necessary, remove barriers of a legal or administrative nature which may restrict part-time work opportunities.
According to the Explanatory Memorandum of Law 4635/2019, the purpose of the above (under VI.1) regulation (referring to the 12% increase) is to “enhance the protection of part-time employees” and address the problem of underdeclared employment. That is to say, those cases where employment contracts only appear to be part-time. And, in fact, they “conceal” full-time employment.
This recital does not seem sufficiently convincing. This is because it contradicts the principle of proportionality. The 12% surcharge is, in fact, an appropriate means of enhancing the protection of part-time employees and tackling the problem of underdeclared employment. On the other hand, this provision is not a necessary step to achieving these objectives. The State has and must have the appropriate means and measures to achieve its main objective. For example: by improving the means of surveillance and control. These instruments and measures would be both milder and less dangerous for the development, promotion and the very existence of part-time work as a form of flexible work organization.
In this context, the legislator (with an increase of 12% in case of exceeding the agreed timetable) seems to have achieved the exact opposite of what they (allegedly) pursued. It is the legislator itself who creates an obstacle to the operation of part-time employment schemes. An obstacle that will, in any event, deter future contracts of this nature. To stop, in other words, the promotion of part-time employment.
VIII. In conclusion
There is no doubt that the part-time employment scheme can work in a business with changing needs. It has a positive effect on their development, there is no doubt about that. In the combat against unemployment. Sometimes in the survival of businesses but also in securing other jobs.
The increase of 12% (introduced by the recent Law 4635/2019 – Article 59) is, according to its author, intended to protect part-time employees. Also: to address the problem of underdeclared labor.
In reality, however, it intends to cover for the State’s inability to monitor. Burdening the business goes against the very institution of part-time employment. In so doing, it contradicts the European legislation itself (Directive 1997/81).
The provision imposing a 12% surcharge on additional (part-time agreed) work should therefore be abolished.
Immediately.
Stavros Koumentakis
Senior Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 12th, 2020).
