Among the particularly interesting regulations of the recent labor law (law 5053/2023) is the one that introduces the schedule for unpredictable work patterns. An arrangement that provides special opportunities but also rises, at the same time, significant questions. On them, the present article!
Contracts made to Order
The aforementioned recent labor law introduces the hitherto unknown – as far as the national legal order is concerned – contracts “made to order” (art. 10 of law 5053/2023, 182A Presidential Decree 80/2022). The contracts, i.e., within which (and under specific conditions) a framework is set, where the employer has the opportunity to call the employee to provide their services – if the relevant need arises. In the specific contracts there is no (entirely or mostly) fixed working hours.
Conditions of Acceptance on the Part of the Employee
The “new” law sets two specific conditions for the implementation of this provision. These should be fulfilled cumulatively, in order for the employee to be obliged to accept the terms of the employment, in cases where there is (entirely or mostly) an unpredictable work pattern (art. 182A § 1 Presidential Decree 80/2022). Specifically:
(a) Work must be provided within pre-specified reporting days and times. The days and hours in question are part of the essential terms of the contract or employment relationship, which the employer is obliged to notify, in writing, to the employee. Either by delivery of a tangible form or in an electronic form (under the conditions of the law – art. 70 § 1, paragraph ic΄, subparagraph icb’).
(b) The employee must have been notified, a reasonable time in advance, by the employer of the assignment of the work in a specific way: via the delivery of relevant documents, via text message on a mobile phone (: sms), via e-mail or via another convenient way. The specific, reasonable, time cannot be less than 24 hours before the work is due to start. Unless there are cases that justify, objectively, a shorter notice. And in this case, the employer is obliged to notify the employee of the (objective) condition in question (art. 70 §1, para. i΄, subpara. ig΄).
In the event that the two, above, conditions are not met, cumulatively, the employee has the right to refuse to take up the work. In fact, in order to safeguard the employee, the legislator expressly states that in this case any adverse discrimination against them by the employer is prohibited (art. 182A § 2 Presidential Decree no. 80/2022).
Canceling an assignment
In the event that at any time, after the employee has been notified of the provision of work (and, in any case, before the provision of work has been taken up), the employer cancels the assignment, the employee is entitled to compensation. The amount of the compensation corresponds to the hourly wages of the working hours that were not assigned to them (art. 182A § 3 Presidential Decree 80/2022). The choice, therefore, of the national legislature was not to allow the employer to cancel the assignment of work, in principle, without compensation and the payment, in the end, of it, if they call off the assignment of work after a certain reasonable period.
Guaranteed Hours Agreement
In order to safeguard the employees, the obligation to agree on guaranteed hours is established. That is, if the employer and the employee enter into a contract with the immediately above content (:unpredictable schedule) they must, at the same time, agree on a minimum number of paid working hours. This number cannot be less than 1/4 of the agreed total number of hours. Otherwise, the contract is void (art. 182A §4 Presidential Decree no. 80/2022). The provision for guaranteed hours has the effect that the above contracts do not constitute (nor can they constitute) zero – hours contracts. In the event that the specific guarantee was not in place, such a characterization would be appropriate.
Employee Protection
The above arrangements aim to ensure the employee a minimum level of predictability regarding their working hours. To also provide them with protection against loss of income due to late cancellation of the agreed work (see in this regard, Memorandum to law 5053/2023 on art. 10).
Furthermore, in the event of the conclusion of the above-mentioned contracts, all protective provisions related to the employee’s contract or employment relationship shall apply to the employee. Any conversion (unilaterally made by the employer) of a full-time or part-time employment contract to a bespoke employment contract is expressly prohibited by law. Such a (unilateral) conversion is considered as a unilateral detrimental change in working conditions (art. 182A § 5 Presidential Decree no. 80/2022).
The Problems
The above regulation (: art. 10 law 5053/2023 – art. 182A Presidential Decree no. 80/2022), creates a multitude of concerns for those who are asked to apply it. The most important ones:
(a) As to the range of reference hours and days
Would it be possible for an employer to determine (on a reference day) as reference hours – the hours within which the employee will be called upon to provide work – any number of hours? E.g. from 08:00 in the morning to 20:00 at night? Could the said period even approach 24 hours? What, then, are the limits of abuse? (if, of course, there are any).
(b) As to the type of contracts in question
Do the above contracts constitute full-time or part-time contracts, in the event that the total number of working hours agreed in them amounts to 40h/week? What are those hours that will be taken into account for their qualification? The agreed or the guaranteed ones? Is there, subsequently, an obligation to prepare them in writing (:constituent form) and notify them within eight days to the Labor Inspectorate (:submission of form E9 to the ERGANI platform)?
(c) Regarding the remuneration of the agreed and guaranteed hours of employment
It becomes apparent, in the writer’s view (although contrary views have been expressed), that both agreed and guaranteed working hours (which are subset to the relevant agreement) are paid based on the agreed hourly wage. What happens, however, if the agreed total number of working hours falls short of a full-time employment contract? Let’s remember here the legislator’s explicit reference to the application to “custom” contracts of the provisions protecting the employee, linked to the contract or dependent employment relationship. One could thus support that the position that for hours of employment beyond those agreed upon, an increase of 12% is due on the hourly wage paid (art. 106 § 11 Presidential Decree no. 80/2022).
(d) As to exceeding working time limits
In the event that the agreed total number of working hours falls short of the full-time hours, are the full-time hours set as the maximum daily limit of the employer? Is, therefore, possible-in this case, to apply the provisions set for overwork and/or overtime (art. 106 §11 Presidential Decree no. 80/2022)?
(e) Regarding the possibility (or not) of interrupted hours
In the event that the agreed total number of working hours falls short of the full-time working hours, must the working hours be consecutive (art. 106 §11 Presidential Decree no. 80/2022)? And in the event that full time is agreed, can it be intermittent? And, in the affirmative, under what conditions (art. 165§3 Presidential Decree no. 80/2022)?
The arrangements for the unpredictable work time schedule are, of course, extremely interesting. And they will certainly prove to be valuable for those companies that have similar needs. The interest in making use of these arrangements (which has already become particularly lively) proves the truth of the matter. We await with great interest the implementing ministerial decision that will provide answers to the crucial, as stated above, questions and related concerns.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 3rd, 2023).
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.