Acquiring professional experience is a common problem of pupils and students all over the world. Without professional experience, the coveted recruitment seems extremely difficult. Even access to some postgraduate studies is difficult. The solution to this problem? In Greece, the apprenticeship agreement. In the global level, internships. Two sides of the same coin. What is the regime that governs them? The issue seems to concern (less apprentices and) mostly businesses. The fear, for example, of the Labor Inspectorate and the possible litigation claims and administrative sanctions. But let us try to better understand the whole issue. After all, more such contracts and relationships are in place during the summer.
The apprenticeship contract -over time
The apprenticeship contract is not an unprecedented or “imported” institution. We also find it in ancient texts. The issue of regulation and the limits of this relationship has been the concern of those involved ever since.
The Greek philosopher Aristippus (435-355 BC), is said to have received a “salary” from his students. But he made it clear that it was not to make a living but to teach them to spend for the good, the right, things. (:”Aristippus receives a fixed salary from his students, not as a means of living, but for them to learn to spend money at what is good”).
In the older, especially, Greek films we find the “paragio”. That is (the child, teenager or young person) who strives to “learn an art” next to the carpenter, the craftsman, the professional. But it wasn’t just in the movies. So it was in life. But then no one talked of the rights of the apprentice and the obligations of the company…
The internship
As already mentioned, internships are already very widespread in developed countries. Given how established they are, their implementation is very organized. We meet internships in many forms. Indicative: unpaid or paid (in full or partially), with physical presence in the company or from a distance, for a specific project or in the context of the general activity of the company and so on).
What are the restrictions of the apprenticeship agreement in our country?
The scope, seriousness and value of the apprenticeship agreement, emerges as self-evident. Risks (not theoretical) for businesses, are a given. There is, however, no relevant legislative restrictions on it. The case law took the floor, as it should. An apprenticeship contract is therefore, according to the jurisprudence, “… the contract in which one of the parties undertakes to transmit to the other the necessary empirical knowledge, for the exercise by the last of a defined profession or certain art” (Int. : 918/2017 Supreme Court 1592/2009 Supreme Court).
Can this contract be concluded for both fixed and indefinite duration? Does it fall within the limits and scope of labor law? Would it be possible for Aristippus, if he were alive today, to continue to demand a salary from his students? Or, even, should he? Or neither of the two? And what would happen to social security?
The way the legal order, and especially case law, approaches the apprenticeship agreement will help us answer the questions arising. But let’s start with the forms it can take.
The Forms of the Apprenticeship Agreement
In order for any contract to be subject to the provisions of a contract already provided for by regulation, the purpose for which the involved parties aim at its conclusion is sought. This is a common place for us lawyers.
And so do we in the case of contracts. Although there is no legislation, it is distinguished in its most specific forms, based on the purpose that prevails each time. These are the more specific forms: (a) the genuine apprenticeship contract and (b) the apprentice employment contract.
Particularly:
(a) The Genuine Apprenticeship Contract
In a genuine apprenticeship contract, the primary purpose is to provide training to the apprentice. This does not mean, of course, that the apprentice should refrain from providing any work. Such an assumption would deprive the apprenticeship contract of its practical and empirical dimension. Therefore, and as the case law consistently accepts, during the execution of the specific form of the apprenticeship contract “the provision of work by the apprentice is not done for the purpose of performing a productive project, but for the needs of their education and acquaintance with the object of their profession or art.” (ind.: 1373/2018 Supreme Court, 1791/2017 Court of Appeal of Thessaloniki, 1592/2009 Supreme Court).
The lack of relevant, specific, legislative regulation has already been mentioned. On the basis of this fact, what is required is the grid of provisions that govern the genuine apprenticeship contract. What is agreed between the parties is valid (361 CC-principle of freedom of contract). In addition, and, of course, proportionally, the provisions for the employment contract of the Civil Code may apply. A necessary condition is that the provisions of the Civil Code are in line with the nature and purpose of the genuine apprenticeship contract.
It is commonly accepted, however, by case law that some provisions of labor law do not apply to the genuine apprenticeship contract. Indicative: those that refer to the time limits of work, the legal remuneration, the termination of the employment contract, the severance pay and so on. The justification base is the fact that the above-mentioned provisions presuppose the provision of dependent work, a condition that is not a prominent element in the genuine apprenticeship contract (Int .: 1373/2018 Supreme Court, 1791/2017 Court of Appeal of Thessaloniki, 1592/2009 Supreme Court).
In this context, the apprentice’s salary is a product of an agreement with the employer. This agreement is not subject to the limitations of labor law. It can therefore be agreed that the employer will pay the apprentice salary (less than the salary of the trained employee) for the benefit derived from the latter’s work. And even more: it is possible to agree that the apprentice will either not receive any salary or that they will pay a certain amount to the employer for the apprenticeship. (So it seems that if Aristippus was alive today, he would not risk either lawsuits or fines from the Labor Inspectorate).
(b) As for The Apprentice Employment Contract
In the apprentice employment contract (as opposed to the genuine apprenticeship contract) the primary purpose is to provide employment in a business or holding. The parallel pursuit of education of the employee, in this case, does not constitute a special obligation of the employer. The issue, from another point of view: any parallel acquisition of knowledge or skills in a certain specialty or profession and the learning of the employee’s art, occur as an automatic consequence of the implementation of the contract and within the framework of its normal operation (int .: 1373 / 2018 Supreme Court, 1791/2017 Court of Appeal of Thessaloniki, 1592/2009 Supreme Court).
Moreover, it is firmly accepted by the case law that in this particular form of contract both the general and the special provisions of labor law (918/2017 Supreme Court, 2052/1990 Supreme Court) apply, “…as long as the purpose of the above contract is the provision of work by the apprentice, for a fee and an ancillary purpose is the learning of an art or profession by the apprentice, according to the instructions and directions of the employer”.
The Need for a Written Document
The boundaries between the apprenticeship contract and the dependent employment contract prove to be fluid and indistinguishable. This becomes even more understandable as we have already concluded (see our previous article) since the finding of employment contracts is, by itself, at times, a “problem for ambitious solvers”.
Both businesses and employees are at risk. The latter by the drafting of by appearance only apprenticeship contracts. The first (: businesses) by the difficulty of proving the existence of an apprenticeship contract. The solution to both of these problems is common: the written form of the apprenticeship agreement.
The content of the (written) apprenticeship agreement must include its individual terms. The type, in particular, of the education sought. In this way, the purpose of education will emerge more clearly. The purpose that distinguishes it from the contract of employment.
Terms such as the duration of the contract, any salary paid and working hours must be clearly stated in the contractual text. The corresponding gaps in the agreement, moreover, cannot be filled by corresponding provisions of labor law.
The Correct Legal Characterization
The designation by the parties of a contract as an apprenticeship contract is not binding.
As we have already pointed out in our previous article, the judge is the one who sovereignly evaluates any case of questioning the characterization of a contract, which is brought before them. As, the exact (correct) characterization of a contract is pre-eminently the work of the judicial autiority (Int .: Supreme Court 602/2017, Supreme Court 608/2014, Plenary Session of the Supreme Court 7 & 8/2011, Plenary Session of the Supreme Court 6/2001).
Special Apprenticeship Contracts
The Special Apprenticeship Agreement
This is a kind of contract that is, exceptionally, regulated by law. It is concluded between the employer and persons who have completed the 15th year and up to the 18th year of their age (article 74 par. 9 law 3863/2010 and article 1 par. 1 Act of the Ministerial Council 6/2012). Its maximum duration can not exceed one year. The terms of remuneration, insurance and working hours of the above apprentices are also regulated by the same provision. The provisions of labor law do not apply in this case. However, those concerning the health and safety of workers exceptionally apply.
Apprenticeship Contracts Through Educational Structures
All of the above apply to the apprenticeship agreements concluded between the employer and the apprentice. Without the intervention of a third party, without the intervention of an educational institution.
In Greece, however, since 1952, the organized apprenticeship system of the Vocational Schools (EPAS) of OAED has been operating. Now, in addition to EPAS, the apprenticeship is promoted, respectively, by Vocational High Schools and public Vocational Training Institutes.
At the European level, actions have been taken to strengthen the institution of apprenticeship. Indicative examples are on the one hand the Erasmus+ program and on the other hand actions that are part of the NSRF 2007-2013 and the NSRF 2014-2020. Some of them have been adopted by our country. It is therefore not uncommon to encounter programs and apprenticeships that are implemented with the intervention of, for example, university institutions or other educational structures which the apprentices attend.
The implementation of the specific programs is sometimes governed by special regulations (inter: the JMD No. 26385/2017 “Apprenticeship Quality Framework”). These regulations manage issues such as the compensation of apprentices, the announcement of their contracts at ERGANI, the financing of businesses, their employment conditions and so on.
The apprenticeship contract obviously is (and should be treated as) an opportunity.
First and foremost for the apprentices, as, through it, they are given the opportunity to gain valuable professional tools and experience -necessary for their next professional steps.
And then for businesses: They get the opportunity to look for future employees from the (potentially) huge pool of apprentices. In addition: the performance of simple tasks without cost (or at a small cost). To highlight their status by contributing to the vocational education of young people who are going to join the county’s workforce. Also, those who are in the process of reskilling.
The benefits of utilizing the institution of apprenticeship are both tangible and multiple. For apprentices, businesses and society. All that remains is to seize them.
The state should play its part. It is necessary to alleviate the legal uncertainty created by the lack of an adequate regulatory framework. It is necessary to take a clear demarcation of the individual forms of apprenticeship contracts. The individual rights and obligations of those involved (: business-employee). It is crucial (if not also necessary) to create incentives (eg tax alleviations) to facilitate the development of the institution.
After all: High level of training, supplemented with professional experience is not only valuable for future employees. It is also valuable for the companies that are going to employ them and, of course, for the national economy.
Stavros Koumentakis
Managing 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.