Safe Operation Personnel vs Unilaterally Imposed Rotational Work (: crisis management)
The effort to support entrepreneurship and, in an inextricable link, job security continues, at the legislative level, at a steady, rapid, pace. The recent publication of MD 13564 / Δ1.4770 / 30.3.20- Government Gazette, Β ‘/ 1161 / 3.4.2020 gave us the missing pieces regarding the application of the measure of the Safe Operation Personnel (: article 9 LD / 20.03.20). This measure is, to a large extent, similar to the (Unilaterally imposed) Rotational Work. Therefore, it is necessary to review those two measures comparatively, in order to assist with the application of the optimal, at each case, option.
Introduction
Labor Law is (and should be) adapting. It is changing and adapting to the current economic and social circumstances.
The principle at its very core is the protection of the (presumably) weak in the employment relation: the employee.
In times of crisis and, of course, of economic recession, the goal of Labor Law is to contribute to the maintenance of jobs. Something that is necessary for the development, for which the State is primarily responsible.
Flexible forms of employment: the tool that seems to be chosen, over time, by the legislature as a means of maintaining jobs. And even more: as a means of balancing the reduction of wage costs and the avoidance of redundancies.
In the recent past, we have encountered such legislative interventions. Dealing with the financial crisis made such interventions necessary. Law 3846/2010 introduced regulations and amended existing ones concerning, among other things, flexible forms of employment. According to the explanatory memorandum of the law, these provisions are aimed “on the one hand in maintaining the existing jobs, and on the other hand in improving the competitiveness of the Greek economy”.
Most recent legislative interventions (in the form of Legislative Decrees and Ministerial Decisions this time around) are aiming in this direction.
The specific forms of flexible employment of Safe Operation Personnel and Rotational Work.
Among the flexible forms of employment, the Rotational Work system is particularly important. Either if it is contractually agreed upon or unilaterally imposed by the employer. The “rotational work” (which we analyzed extensively in our previous article), first appeared with the Act 2000/1939 “On taking measures to combat unemployment. In 1990, the institution of “part-time employment” was introduced (article 38 of Law 1892/1990) – and was legislatively re-approached in 2010.
The decade of the economic crisis is over. Rotational Work remained a potential business choice. Its purpose? Dealing with a new potential crisis. Unfortunately, a new crisis was not as far as we hoped.
The coronavirus pandemic is bringing a new recession to the global, this time, economy. Unprecedented measures have been imposed to deal with it. Suspension and prohibition of the operation of businesses and lockdowns are just some of them. It must be stressed that, among other things, the vast majority of businesses have been hit hard.
The situation of extreme urgency led to the adoption of urgent legislative measures. Another form of flexible form of employment was introduced. Specifically, the appointment, by decision of the employer, of Safe Operation Personnel in the business (article 9 LD / 20.03.20). We have briefly analyzed this scheme in our previous articles. Indicatively:
- Coronavirus & Businesses: Basic (legislative) survival measures (: 5.4.20)
- Coronavirus and Businesses: The details (and contradictions) of the obligation to maintain jobs (: 4.4.20)
- Coronavirus and Businesses: 10 + 20 Critical Responses relating to Employment Relations in Businesses Affected or Suspended(3.4.20)
- Coronavirus: the invisible (?) enemy of jobs (: dismissal prevention measures)(29.3.20)
- Coronavirus and businesses: one + one Decalogues about their operation and their employment relationships (: “pitfalls” and “business opportunities”)(24.3.20)
- Coronavirus And Businesses: The Second Decalogue For Businesses And Employment Relations (:Tough Times And Business Opportunities) (:22.3.20)
- Teleworking: A Modern and, Under Conditions, Valuable Form of Work (: 15.3.20)
This particular form of employment (: Safe Operation Personnel) is similar, as we mentioned in the introduction, to the (unilaterally imposed) Rotational Work. What do they have in common? The alternation of working (and non-working) days. However, these (flexible) forms of employment also present significant differences. This is because the scheme of the Safe Operation Personnel of businesses undertakes to cover extremely urgent and absolutely temporary needs.
A comparative overview of the Rotational Work scheme and the scheme of Safe Operation Personnel
The introduction of the Safe Operations Personnel scheme has not suspended (or overturned) the provisions for Rotational Work.
The right choice between them presupposes a comparative overview of the individual conditions and consequences. This is what we are attempting with the present article.
1. Reduction of the activity of the employer
1.1. In the case of safe operation personnel
The reduction of the employer’s activity is not a condition of Article 9 of the LD / 20.03.20. It is, however, considered a given. However, it becomes a prerequisite in the context of no. MD 13564 / D1.4770 / 30.3.20- Government Gazette, Β ’/ 1161 / 3.4.2020. Based on this, the specific measure concerns businesses-employers operating in the affected sectors [as defined in chapter A.2. of no. 12998/232 / 23-3-2020 JMC (B ‘1078 / 28-3-2020)].
1.2. In the case of (unilaterally imposed) Rotational Work
The reduction of the employer’s activity is a prerequisite. The concept of the reduction is not specified in law. However, it has been set out in case law. Case law has accepted that the viability of the business must be at risk. However, the (temporary) financial or monetary difficulty of the employer to repay their obligations is not enough. It is required that ” reduction of the volume of the activity” must be such that “there is a surplus of staff due to the reduction of available work”.
1.3. Conclusion
All, without exception, businesses whose activity has been affected (depending on the NACE Revision 2 classification of their business activity) may resort to the (unilaterally imposed) Rotational Work system. And even further than that: All businesses that present (for whatever reason) activity reduction.
In contrast, the Safe Operation Personnel measure has a limited subjective scope (depending on the NACE Revision 2 classification of their business activity). Therefore, it cannot be implemented by all businesses.
2. The organization of work
2.1. In the case of safe operation personnel
In this case, the alternation between working and non-working days of the employees who participate in the scheme is provided for.
(a) Reference period: The reference period is determined exclusively on a monthly basis. Within a month, the employee must be employed (as a Safe Operation Personnel) for at least two weeks. The two-week work can be offered continuously or intermittently. There is no corresponding restriction on Rotational Work. The distribution of the working (and non-working) days/weeks is at the discretion of the employer.
(b) Number of employees participating: At least 50% of the employees must participate per week in the above way of organizing employment. Consequently: within the same department of a company, some employees may be employed as Safe Operation Personnel and simultaneously others may still work full time.
(c) Time of organization: The specific organization of working time is performed by the employer once a week.
2.2. In the case of (unilaterally imposed) Rotational Work
According to the established case law of the Supreme Court, the system of Rotational Work necessarily requires: (a) alternation of employees of the same business (undertaking or part of business or undertaking), (b) in the same or in more jobs, (c) at different time periods, but at regular intervals, (d) while the business operates continuously.
In particular, as far as the rotation of employees is concerned, it can involve:
(a) either groups of employees, one of whom will replace the other in succession in employment and in non-employment,
(b) or one employee at a time, in the sense that one employee at a time will be placed on a compulsory leave, while the other employee will be employed full-time.
The organization can be implemented only once, At the beginning of the implementation of the Rotational Work System.
Compliance with these conditions is important. Without some of them, the implementation of the system would hardly be acceptable.
2.3. Conclusion
Both of the above ways of employment present different possibilities and limitations. The needs of the business (in terms of organizing the work) will be crucial in choosing one or the other option.
3. Prior notification and consultation of the employee’s representatives
3.1. In the case of safe operation personnel
Pursuant to Article 9 of the LD / 20.03.20, no prior consultation is required in this case.
3.2. In the case of (unilaterally imposed) Rotational Work
The previous consultation is a formal requirement of the unilaterally imposed Rotational Work. The process is not simple or quick.
The employer announces their decision on the forthcoming application of Rotational Work. Also, the place and time of the consultation. They also inform employees (either directly or through their representatives) of the reasons that make it necessary to impose this scheme.
From the time of the invitation to the consultation until the time it is held, the necessary time (for the preparation of the employees) must have elapsed. The subject of the consultation will be the exchange of views on the problems that have arisen. Also: for the appropriate measures to be taken.
The successful outcome of the consultation is not a requirement. Not even the employee-employer agreement. However, it is not possible to omit the consultation. In any other case, the Rotational Work becomes illegal. The risk? That it will be interpreted as a unilateral detrimental change in working conditions.
Under the current circumstances, teleworking basically dominates the Greek reality. This consultation now has additional practical difficulties. However, we cannot rule out its implementation through teleconferencing systems.
3.3. Conclusion
The consultation when unilaterally imposing Rotational Work is pointless. But it remains a formal requirement. Under the current circumstances: undoubtedly more difficult.
On the other hand, the selection of the measure of Safe Operation Personnel does not presuppose any, not even an apparent, consultation. One moment the company will decide on the measure, the next it will start its implementation. Time in some cases can prove valuable…
4. Maximum duration of the imposition of Rotational Work
4.1. In the case of safe operation personnel
The application of this measure may not exceed 20.09.20 (Article 9 LD / 20.03.20). MD 13564 / D1.4770 / 30.3.20- Government Gazette, Β ’/ 1161 / 3.4.2020 sets an interesting time limit: Businesses that may designate Safe Operating Personnel, are entitled to use this measure“ for as long as they are affected ”.
4.2. In the case of (unilaterally imposed) Rotational Work
The duration of this measure may not exceed nine (9) months within the same calendar year.
4.3. Conclusion
The Safe Operation Personnel measure seems temporary and short-lived.
On the contrary, the unilaterally imposed Rotational Work is intended to cover longer-term crises.
5. Registration of the employer’s decision in ERGANI
5.1. In the case of safe operation personnel
The affected businesses, which will utilize the above measure, are obliged to declare it to ERGANI within the first ten days of the month following the application of the above mode of work.
5.2. In the case of (unilaterally imposed) Rotational Work
A prerequisite (for the legality) of the imposition of a Rotational Work system is the notification (via an electronic submission) of the relevant decision within eight (8) days, from the preparation or its receipt, to ERGANI.
However, according to Article 4 of the 11.3.2020 LD, the obligation of the Employer to inform ERGANI of “any change or modification of the working hours or organization of the working hours of the employees” was suspended. The respective updates must take place collectively within the first 10 days of each following month. Of course, the issuance of a MD is expected for the specification of the application of the provision.
5.3. Conclusion
The (consolidated and retroactive) registration in ERGANI of the changes in the working hours and the way of organizing the work is an obligation of the employer for both of the above flexible forms of work.
6. Obligation to maintain the same number of employees as the one employed at the beginning of the implementation of the measure
6.1. In the case of safe operation personnel
In case the employer chooses the application of the specific measure, they undertake a very heavy obligation. Specifically: to maintain the same number of employees who were employed at the beginning of the implementation of the measure for as long as the measure was implemented. In other words, they are obliged to maintain the same employees and, in fact, under the same working conditions.
Employers are therefore explicitly prohibited from terminating employment contracts for all of their staff and, in the event of its occurrence, such termination is invalid.
However, the obligation to maintain the same number of employees excludes the termination of an employment contract due to resignation or retirement.
Exceptions, however, are not enough. Although in a previous regulation regarding the suspension of employment contracts (article 1 §5 of chapter A2 of No. 12998/232 / 23-3-2020 JMC (Government Gazette B ‘1078 / 28-3-2020), fixed-term contracts that expired are also excluded from the concept of “the same number of jobs”, there is no corresponding exception for the measure of safe operation personnel. However, this omission sometimes leads to (absolutely) unfair solutions, not just simple contradictions (as we analyzed in a previous article). Indicatively: What will happen when a certain fixed-term contract expires? In how much time does the employer have to find a replacement (or replacements) of these employees, which, ipso facto, the contract is terminated within the period of the implementation of this measure?
In any case, the reason for this measure is the safeguarding / securing of jobs. The employer is (reasonably) not entitled to make any dismissals.
6.2. In the case of (unilaterally imposed) Rotational Work
There is no obligation of the employer to maintain the same number of employees at the beginning and end of the implementation of this measure.
Of course, even when the rotational work scheme is enforced, the employer’s ability to dismiss is significantly limited. The restriction, however, is not absolute. In particular, the jurisprudence has ruled that “… the fact that the enforcement of the rotational work scheme is provided as a measure instead of terminating the employment contract and the purpose of enforcing the rotational work system, which is basically the maintenance and not the termination of the employment relationship , it is clear that —at least in principle— the combination of this system with the termination of the employment contract is excluded… This means, on the one hand, that the termination of the contract is not permitted in principle during the enforcement of a rotational work system, and that the enforcement of this scheme does not allow for a simultaneous implementation of rotational work after the termination of the employment contract or during the course of that period (ie in case of regular termination). In the event that the employer terminates the employment contract without proving the assistance of a reason that exceptionally justifies it, the termination will be illegal and therefore invalid.” (1091/2016 Court of First Instance of Athens).
Therefore, if there is a justifiable reason for the termination, despite the imposition of the rotational work system, the termination will be permissible.
6.3. Conclusion
Both measures are aimed at safeguarding jobs. The first one – (: Safe Operation Personnel) aims at exactly that. However, omitting the inclusion of fixed-term contracts in the exceptions from the concept of “maintaining the same number of employees” when implementing the measure of safe operation personnel will certainly make its implementation problematic.
7. The sanctions
7.1. In the case of safe operation personnel
In case of violation of the aforementioned obligations of the employer, it would be possible, under certain conditions, to claim that the loss of benefits from the extension of the payment of: (a) insurance contributions due (JM 13226/325- Government Gazette BD / 1044 / 26.3.20 ), (b) certified and overdue debts and installments (MD Α1053- Government Gazette Β΄ / 949 / 26.3.20) and (c) certified and overdue debts and installments from VAT (MD Α1054-Government Gazette Β΄ / 950 / 26.3.20 ). Employees are also given the opportunity to consider the imposition of this measure as a detrimental change in their working conditions.
7.2. In the case of (unilaterally imposed) Rotational Work
On the contrary, the breach of the relevant obligations of the Employer has no corresponding penalties. Its most important result: the ability of employees to consider its imposition as a detrimental change in their working conditions.
Times are demanding “crisis management”.
On an international and national level. Even on a personal one. All the more so at the level of each business.
The burden of those who are called upon to make the best decisions is heavy.
The focus is on the survival of the people.
Then follows in the survival of the businesses. And, of course, of the jobs.
In any case: It is up to the entrepreneur to adopt the best options for their business. And, of course, the most appropriate measures.
What seems to be the most important (under the current circumstances) measure, is that of the Safe Operation Personnel. However, the relevant regulations prove to be incomplete. Some of them are problematic and potentially dangerous.
The introduction of the measure of the Safe Operation Personnel does not preclude the unilaterally imposed Rotational Work.
The adoption of the applicable measure, as the case may be, is the responsibility of the entrepreneur. Its careful implementation, in order to avoid the most severe sanctions, is also theirs.
Us, advisers, carry the responsibility to best understand the existing institutional framework.
To advise on the best option among the available measures but also on their correct application.
And, lastly, to assist on the most difficult (under the current circumstances) work of entrepreneurs, the top management and of course the HR managers…
Everyone’s goal remains the same (after ensuring the life and health of the general population):
The survival of business.
And, of course, the survival of jobs…
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.