Work on the sixth day of the week (: The five-day working week system)

Work on the sixth day of the week (: The five-day working week system)

Work on the sixth day of the week (: The five-day working week system)

The six-day working week system is one hundred and ten years old in our country. The equivalent of forty-hour and five-day working week system. What happens when the business’s needs may require work on the sixth day of the week (Saturday or Sunday)? Is such employment legal? And, in the affirmative, what regulations govern it? What are the business’s obligations and what are the risks?

 

Regarding the (distant) history

The limited, in a number of days, employment is a (very) old story: “Six days thou shalt labour, and shalt perform all thy work. But on the seventh day is the sabbath of the Lord thy God».

Saturday, according to Mosaic law and Jewish tradition, is a day dedicated to God, family and rest. Absolute abstinence from all kinds of work is required. Sunday is of similar importance for Christians, although the relevant restrictions are less important.

Sunday was established as a holiday, though not by all, by the government of Kyriakoulis Mavromichalis. The relevant law came into force on January 4, 1910.

These days have been of great importance in labor relations. They have been (and continue to be -as one would expect) a cause for controversy. Sometimes intense. In this context, Sunday was established as a holiday in Thessaloniki in the 1920s. The Jewish merchants on Saturday (of course) did not work. The obligatory Sunday holiday essentially imposed a five-day working week on them. There was no doubt that it was detrimental to their financial interests. Intensities and intense confrontations were, justifiably, to follow.

Nevertheless, the foundations of the six-day work week proved strong.

 

 The introduction of the five-day work week

The establishment of the five-day work week was not absolute. The General National Collective Employment Convention of 26.02.1975 established the five-day work week, the implemetation of which was left “at the discretion of the employer” (Article 6 §4).

The LD/29.12.1980 (ratified by Law 1157/1981), provided for the possibility of establishing the five-day employment system as mandatory, in accordance with the provisions of Law 3239/1955 (Article 2). That is, through Collective Employment Agreements and arbitration decisions (D.A.).

The distribution of working time and, in general, working time limits are particularly important issues. We have already addressed them in our previous articles. (Ed .: Organization of Working Time: Eight-Hours: An Old, Very Old, Story… and Organization of Working Time: A New Perspective, Free From Rigidities)

The five-day work week has ended up being identified with the five working days of the week. However, the weekly needs of businesses are not necessarily met in the five working days. Sometimes a sixth is required. This (sixth) day is usually Saturday.

Work on the sixth day, in the cases were the five-day work week system was applied, was not immediately regulated by law. As a result, various views have been formed on the provision of labor on that day. Particularly regarding the employee’s due remuneration.

 

Work on Saturday

Difference of opinion

Saturday is a day of mandatory rest when five-day work weeks apply. (Respectively so is any other day that is considered as the sixth day of employment.) This is a position on which everyone agreed/agrees.

However, there were disagreements regarding whether or not Saturday should be considered a business day and, in addition, whether or not to count it in the working hours of the other five working days:

 

The past

The non-prevailing view – Its rejection by the majority of case law

The majority of the legal theory supported the view that working hours on Saturday should be counted in the working hours of the other five workdays.

This view was based on the GNCEC of 26.02.1975. That’s because it envisioned the five-day work week – but without abolishing the six-day work week. In other words: it established the possibility of five-day work weeks without, at the same time, prohibiting work on the sixth day.

Saturday is different from Sunday, which is a mandatory holiday. In this context, Saturday is a day when it is possible, legally, to provide work, resulting in it being treated as such in terms of the remuneration offered as well.

According to the above view, it was correct for Saturday’s working hours to be counted in the working hours of the other five working days. Also in the calculation of the total weekly working time. Thus, working hours on Saturdays, as they were added to the working hours of the other five days, led to exceeding the contractual (or, as the case may be) legal hours. As a result, they was “overwork” or overtime – with the relevant, in each case, increases in the remuneration (which we mentioned in a previous article).

 

The prevailing view in jurisprudence and the need for intervention by the legislator.

The above view did not prevail in case law.

According to the prevailing view (indicatively: 268/2016 Court of Appeal of Piraeus), the work of an employee on Saturday, it being the sixth day in a five-day work week, does not constitute “overwork” or overtime. Unless it exceeds the daily work limit and only for the part of the possible excess. Even in cases where a court (of first or second instance) has considered it as such, the Supreme Court of Cassation has intervened.

Indicatively, with its decision no. 312/2010, the Supreme Court ruled: “With this ruling the Court of Appeal… that is, by accepting as valid in this case, based on an agreement, the six-day work week and subsequently, by classifying the employment of the appellants as illegal overtime during the ninth hour and by taking into account the working hours on Saturdays for the determination of overtime hours, it violated “provisions of substantive law”.

Thus, based on the held position of case law, the (voluntary or forced) employment on Saturdays is prohibited by public order rules. This is because it is a day of obligatory rest due to the exhaustion because of the five days of work. Therefore: null and void. Thus, such a null and void employment benefit does not give rise to an obligation to pay the due salary or the corresponding part of the salary. As a result, the employee’s claim is limited to the benefit the employer enjoyed from the provision of their invalid work. This claim is based on the principles and provisions of unjust enrichment-articles 904 et seq. of the Civil Code. The benefit, in this case, “consists in the remuneration that the employer would pay to another employee, who would be validly employed under the same conditions as the one who had been invalidly employed for the time mentioned above, without taking into account the latter’s personal circumstances. » (indicatively: 191/2011 SC).

This view, however, posed a problem. It significantly decreased the burden of the (illegally acting) employer. And also: at a cost free of the surpluses being added when the maximum working hours are exceeded.

This fact made the intervention of the legislator inevitable.

 

The present: The (seperate) regulation on work on the sixth day, despite the “five day work week” rule.

Resolving the difference of opinion

The above “dispute” tormented the Greek legal order for forty-five years. Only in 2010 did the legislator decide to address and resolve the problem.

The relevant provision (art. 8 of Law 3846/2010) stipulates that: “The work, provided on the sixth day of the week, in violation of the five-day work system, regardless of the penalties provided, shall be remunerated by the paid wage increased by 30%.” Those working in hotel and catering businesses were excluded from this regulation.

According to the specific legislative intervention, work on the 6th day in a five day work week is still illegal, as long as it is against a law or a provision of a Collective Employment Convention or of an Arbitration Award. It is therefore invalid. Therefore, it would be more appropriate to talk about “compensation” and not “remuneration” of the work provided under such circumstances (: 5618/2019 Court of Appeal of Athens).

 

In brief…

Until 10.5.2010, those who worked on Saturday were entitled to compensation based on the provisions for unjust enrichment. No increase was provided for.

Since 11.05.2010, those who work on Saturday (in cases where Saturday is the sixth day of the week), are entitled to a 30% increase in their salary (indicatively: 493/2019 Supreme Court, 46/2018 Court of Appeal of Thessaloniki, 456/2019 Court of Appeal of Larisa).

 

The criminal dimension

The five-day work week, as mentioned above, can be exclusively applied if such a restriction is introduced via a provision of a Collective Employment Convention or of an Arbitration Award. In case this restriction is violated, the penalties of article 21 of law 1876/1990 apply (“fine of at least 200,000 drachmas”).

 

The administrative dimension

The non-payment of the (increased by 30%) labor remuneration -for work provided  on the sixth day in violation of the restriction for the five day work week- imposes an administrative fine of € 800 per affected employee (MD 60201 / D7.1422 / 31.12.19, Government Gazette B ‘4997 / 31.12.19).

 

Work on Sunday as the sixth day of employment

In General

We have already mentioned that in the five-day work week the sixth day is usually Saturday. It is possible, of course, for it to be any other working day. Maybe Sunday too.

However, the provision of work on Sunday falls under a special provision. Both in the five-day employment and in the six-day week system.

Work provided on a Sunday did not rise corresponding differences of opinion as those of the work provided on a Saturday.

The Greek legislator dealt with work on Sundays, and other holidays, very early on. It quickly developed a separate regulation that is not addressing the working hours of other working days (see No. 8900/1946 JMC “regarding the determination of increased wages for employees in general on Sundays and holidays”, as JMC No. 25825/1951 interpreted art. 2 of law 435/1976 and art. 10 par. 1 of RD 748/1966).

 

In particular: Sunday as a compulsory holiday

As we already mentioned, Sunday is a compulsory holiday. Therefore, employment on this day is expressly prohibited. However, the law also provides for some exceptions to the above prohibition on certain types of work (Article 2 & 7 of RD 748/1966).

Working hours on Sundays are not counted in the hours of work provided on other days of the week. They are, therefore, not taken into account for determining any possible exceeding of the conventional or legal schedule and for determining any overwork or overtime. However, in the event of exceeding the legal daily schedule for Sunday (ie eight hours), those hours are overtime.

 

 The consideration of work on Sunday

Employment on Sunday (legal or illegal) is paid with a 75% surcharge. The surcharge is on top of the legal (not the one actually paid) hourly wage.

At the same time, in case the employment exceeds 5 hours, the employee is entitled to rest, lasting 24 consecutive hours, on another working day of “… the week which starts on Sunday”.

Depending on the way the employee is paid, their salary for their employment on Sunday is calculated as follows:

Daily Wage: Those who are paid a daily wage, regardless of the increase of 75% they receive, are entitled to a fee corresponding to the hours they worked on Sunday. This fee is independent of the provision or not of the rest day.

Salary: Those who are paid a salary are not entitled, in principle, to any remuneration other than the surcharge. The reason is that their remuneration for Sunday is included in their salary. Of course it is only included if they receive the compulsory 24-hour rest on another working day of the week following the Sunday in question.

Otherwise, the provision of work on all five (or six depending on the work system) working days of the following week is illegal for one of these days, because it conflicts with a public order provision (Article 10 §1 RD 748/1996). Therefore, the employer is obliged in this case to reimburse the employee for the benefit they gained from the employee’s work, based on the provisions of unjust enrichment. According to case law, this benefit amounts to 1/25 of the paid salary. That is, the amount that the employer would pay to the same employee if they worked on their day off, without this work increasing the overtime of other days and the ratio of leave and holiday allowances (Supreme Court 191/2011, 339/2011, 436/2010, 1117 / 2017).

The surcharge of 75% of the legal hourly wage is also paid in cases of employment during other mandatory holidays. However, there is no obligation to provide the relevant 24hour rest to the employee in these cases.

Regulations regarding work provided on Saturdays (and possibly on Sundays) could already be considered obsolete.

 

In times of recession, such as the current one, it is especially important to save jobs. Flexible forms of employment are a solution. Will they prove to be sufficient?

Most of the time, life is what shapes the need for legislation. The law rushes to catch up with it. Shaping the employment time is already a European reality. The regulation is ready to go.

Why didn’t we include the possibility of extending/arranging of working time on Saturday as well? Maybe on Sunday too? (But always respecting the limits set by European legislation).

Wouldn’t it be a tool for safeguarding and strengthening jobs?

A tool to strengthen businesses?

A tool to help national economy recover and develop?

The SURE program of the European Union and the “Cooperation” Program of our country have an end.

The search for more permanent solutions is the responsibility of every business and, of course, of the Greek government and the Greek legislator.

Let’s not leave things to chance…

stavros-koumentakis

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.

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