We have already examined, in our previous article, the concept of work on the sixth day of the week- in excess of the fifth day. There are two cases that, in particular, concerned us: the sixth day as a day of mandatory rest (usually Saturday) and the day of mandatory holiday (:Sunday). We will look into, in the present article, the sixth day of employment, in excess of the fifth day, on the basis, in particular, of the changes brought by the recent labor law (law 5053/2023).
The Regime – Before The Changes
According to the law: “the work, provided on the sixth day of the week, in violation of the five-day work system, regardless of the prescribed sanctions, is paid with the payable daily wage increased by 30%” (art. 8 law 3846 / 2010- as codified with art. 186 of the Presidential Decree no. 80/2022).
Therefore: employment on the sixth day does not give rise to the right to increase the daily wage by 75%, as in the case of employment on a Sunday. Nor, respectively, the right to grant a substitute day of rest (Royal Decree 748/1966).
Despite the above regulation, according to established jurisprudence, on a five-day work system, the sixth day constitutes a mandatory rest day. This means that, if the employee is employed on the sixth day, the work in question, as contrary to a prohibitive provision of the law, suffers from nullity and is considered not to have been realized (ind. 1413/2009 Supreme Court, Nomos Legal Database).
At the same time, according to the prevailing jurisprudence, in the event that a five-day work system is applied, the work provided on the sixth day -within the (agreed) daily hours- is not taken into account for the assessment of existence of overtime or “overwork” employment on a weekly basis (ind. 1017/2003 Supreme Court, Nomos Legal Database).
The Arrangements For The Sixth Day
The recent law made arrangements regarding the -exceptional- employment of workers on the sixth day in excess of the five-day period. However, these arrangements do not, in general, concern all businesses and holdings. On the contrary, they concern, on the one hand, businesses or holdings in continuous operation, i.e. 24/7 businesses (art. 25 of Law 5053/2023 – art. 182C Presidential Decree no. 80/2022). Also, businesses or holdings, which, by their nature, are not in continuous operation but can operate 24 hours five or six days a week (art. 26 law 5053/2023 – art. 182B Presidential Decree no. 80/2022).
The legislator points out that, in order to support the work of the other working days after the five days, new staff is required. They find, however, that today this is not the case. Also that the offer for specialized jobs cannot be covered. There is, therefore, the risk of undeclared work for existing employees, so that they cover the gap with an extra shift (see Memorandum to Law 5053/2023). The legislator intends to deal with this risk through the new regulations.
Businesses Or Holdings Of Continuous Operation
Field of application
As mentioned above, the recent labor law regulated the exceptional employment on the sixth day in enterprises or holdings of continuous operation (: art. 1 §2 Presidential Decree 27.6./4.7.1932: “as continuous operating factories or parts of factories or projects are considered to be those in which the duration of the actual daily work of their workers exceeds 10 hours”).
In these enterprises, in which the work takes place through successive changes of staff groups (shifts), it is allowed to exceed eight hours per day and 48 per week, until the completion of 56 hours per week. Provided, however, that the average weekly working time (in a maximum period of eight weeks) does not exceed the weekly working time applicable to other employees (ie 40 hours). Also, in this case, it is required (a) that the work order of the groups of workers be changed every week, in such a way that any group that provides night work one week is employed during the day the following day. At the same time, (b) when a team is employed on a Sunday, it should be granted a 24-hour rest on another day of the week (art. 8 Presidential Decree no. 27.6./4.7.1932).
Provisions
As provided, therefore, after the recent labor law (: law 5053/2023), in cases of businesses or holdings in continuous operation with a system of alternating shifts, in which employees are employed five days a week, it is possible to employ them on the sixth day of the week (art. 182C §1).
In order, however, for the aforementioned employment to be legal, it is necessary to meet specific conditions:
(a) First of all, it is required that before the employee starts work on the sixth day, the employer must make an entry in the ERGANI II Platform (art. 182C §1). Also,
(b) the employment of the employees, during this additional day, must not exceed eight hours. Overtime or “overwork”, on this day, by the employee is not allowed (art. 182C §2, sec. a΄ & b΄). The consequences of not complying with this prohibition, however, are not specified. It is reasonable that any provision of non-permissible (overtime and overwork) employment be considered to entail administrative sanctions. Also, that allows the employee to refuse their provision. Conversely, it would not be reasonable to argue that any (impermissible) employment becomes void, resulting in the employee claiming compensation for their employment through the unjust enrichment provisions. Furthermore,
(c) the legislator increased the increment provided for the sixth day of employment. Specifically, as expressly regulated, the employee is paid the daily wage of the sixth day, increased by 40% (art. 182C §2, sec. c΄). Lastly,
(d) the legislator requires that the relevant employment is subject to the observance of the working time limits of the employees, as well as the application of the rules for the health and safety of the employees (articles 162-179 of the Presidential Decree 80/2022 apply in any case – art. 182C §3).
Businesses Or Holdings That Are Not Of Continuous Operation
Field of application
The other category of businesses or holdings in which the legislator regulates (with Law 5053/2023) the employment on the sixth day, are those that are not by their nature of continuous operation but can operate from Monday to Saturday, for 24 hours, with a system of alternating shifts, and in which the workers are employed in a five-day work week.
Specifically, as expressly provided, enterprises or holdings, which are not by their nature of continuous operation, may operate continuously in their entirety or in parts, with a system of operation of four alternating work groups, provided that the employee who participates in them consents (art. 40 §1 of Law 1892/1990, 190 §1 of Law 80/2022). Clearly, for the operation in question, the fulfillment of the other conditions of article 40 of Law 1892/1990 (as codified in art. 190 of the Presidential Decree 80/2022) is required.
Provisions
In the above businesses or holdings, therefore, similarly, employment on the sixth day is possible, as an exception. However, a particular strictness of the legislator in terms of the terms and conditions of its permissibility is detected: In contrast to employment in businesses/holdings of continuous operation, the legislator asserts, in this case, an additional claim: said employment is permissible in exceptional cases, during which the company presents an unforeseeable particularly increased workload (182 B §1, section a). In order to safeguard, in fact, the position of the employees, it is made clear that this possibility of employment is provided exclusively in exceptional cases and since the particularly increased workload is of an unforeseeable nature (see related Memorandum). In fact, there is also an additional declaration obligation by the employer: In this particular case, the presence of the above conditions and in general this special condition is notified by the employer and checked by the Labor Inspectorate (art. 182 B §1, last period). On the other hand, it follows that in the absence of a corresponding condition of exceptional cases for the businesses in continuous operation, the extraordinary employment on the sixth day is, in reality, ostensibly extraordinary.
For the rest, with regard to the previous registration in the ERGANI II Platform, the working time limits and the health and safety of the employees as well as their pay for the sixth day of employment, the same applies as noted above to the enterprises/holdings of continuous operation.
Exceptions
From the scope of application of articles 182B & 182C, those employed in hotel and catering businesses are expressly excluded (§4 in both). A corresponding exception is also provided for in the regulation of article 8 of Law 3846/2010 regarding (illegal) work provided on the sixth day of the week in violation of the fifth day (art. 186 Presidential Decree no. 80/2022).
The issue of the Pending Ministerial Decision
For the implementation of both of the above-mentioned regulations (art. 182B and 182C Presidential Decree no. 80/2022), the issuance of a decision by the Minister of Labor and Social Security is expected. As provided for in the authorizing provision (182B §6 and 182C §5), the said decision will determine the procedure for registering the additional day on the ERGANI II Platform. Also, as well as any other issue related to the implementation of said regulations. Finally, especially with regard to businesses/holdings that are not by their nature of continuous operation, the respective Ministerial Decision will also determine the procedure for declaring the additional day to the Labor Inspectorate.
The Problems
First of all, the first problem concerns the remuneration provided for by the new regulations. Article 182C provides that “the employee shall be paid the salary of the sixth day, increased by 40%” (§2, last ed.). Accordingly, article 182B provides that “the employee is paid the payable daily wage of that day, increased by 40%” (§3, last period). The legislator did not choose to use the concepts of statutory or paid daily wages. On the contrary, the way they chose to determine the said surcharges may create interpretative issues. Preferably, however, the choice of the payable sum as the basis of calculation (and) of the surcharge.
At the same time, the choice of the legislator of Law 5053/2023 to regulate the – exceptional employment – of workers on the sixth day in excess of the fifth day in businesses or holdings of continuous operation, as well as in businesses or holdings, which are not by nature of continuous operation, but it is possible to operate respectively, creates the following paradox:
The addition of the provisions in question to the current legislation does not seem to result in the repeal of the existing, relevant, provisions. On the contrary, the provision for work, which is provided on the sixth day of the week in violation of the fifth day (art. 186), remains in force. This, therefore, seems to still regulate the – illegal, however – employment on the sixth day for other businesses, which do not fall within the scope of the new regulations. Accordingly, the remuneration due.
This means that the workers of the vast majority of said, other, businesses are still paid with the paid daily wage increased by 30%. (And this despite the fact that it would be possible to baselessly claim that the “daily wage of this day is the already increased by 30%, which is further increased by 40%).
The recent labor law addressed the issue of employment on the sixth-day in two very specific categories of businesses: (a) those in continuous operation, and (b) those that are not by their nature continuous in operation but are capable of operating, 24 hours a day, five or six days a week. The vast majority of businesses (:others) are, unfortunately, not covered by the new regulations. The work remains (semi) legal and, at the same time(!), (semi) illegal. The employees are paid with the paid daily wage increased by 30%. And businesses continue to wonder. Finally, we, their legal representatives, continue to try to explain the inexplicable…
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 19th, 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.