Since the spring of 2020, the signatory has been concerned with the need to simplify, expand, rationalize and effectively utilize the institution of working time arrangements. To deal with it, a simplified legislative regulation was required. The relevant proposal (according to the standards of Germany and Cyprus – which successfully utilize the institution) would undoubtedly work to the benefit of employees and businesses. The immediately preceding labor law (Law 4808/2021) did not seize the relevant opportunity. It reformed the arrangement for the settlement, showing obvious audacity by avoiding noteworthy reforms. And this is because, according to the then Minister of Labor, the employee should be given the opportunity to request (: only them!!!) an arrangement… “to gather their olives”(!!!). The recent labor law (: law 5053/2023) further rationalized the institution, establishing the only logical condition for its application: the agreement of the employee and the company. Unfortunately, again, cowardly…
What is Working Time Arrangement?
The arrangement of working time constitutes a case of permissible offsetting of working hours. This offsetting can take place between the increased hours (of work) of one time period, with the decreased hours of another. It is important to note that, despite the fluctuations in the working hours in the individual periods, the salary remains the same in each time period. It will be equal, in any case, to the remuneration for work of forty 40 hours/week – as long as the specific hours apply in the company. And if the weekly hours are less than 40 hours, the pay to be paid during the settlement period will be equal to the pay provided for the weekly hours (art. 192 §4 Presidential Decree no. 80/2022).
Settlement Systems
The method of settlement is determined by law. The recent legislative changes (laws 4808/2021 and 5053/2023) did not change the already existing dual settlement system of law 1892/1990. We had, however, the addition (: law 4808/2021) of an additional settlement system.
The Dual Settlement System
The more than twenty years in disuse, according to the following, regulation (: art. 41 n. 1892/1990-as kept in force based on art. 192 Presidential Decree no. 80/2022) provides for a dual system of arranging working time in companies, in which contractual hours up to 40 h /week apply. This means that the settlement agreement can take place within the time limits specified by each of the following alternatives:
(a) First alternative: The employee may work up to two hours in addition to their contractual hours for a certain period of time (: period of increased employment). The extra hours of increased employment are subtracted from another time period (: period of reduced employment). During the latter time period, the employee will work fewer hours than their contractual hours or will receive a corresponding daily rest (day off) or will enjoy a combination of them. The reference period (increased and reduced employment), although freely chosen, cannot exceed six (6) months in a twelve (12) month period (art. 192 §1.a. Presidential Decree no. 80/2022).
(b) Second alternative: It is possible to allocate 256 working hours, within a calendar year, to periods of increased work that cannot exceed 32 weeks per year (: eight months) and ten hours per day. During the remaining period until the completion of the year, the employee has a correspondingly reduced employment (art. 192 §2.a. Presidential Decree no. 80/2022). Instead of reduced working hours – and to offset the additional hours worked during the period of increased working hours – the employee may receive a corresponding daily rest (day off) or a corresponding increase in annual paid leave or a combination of reduced hours and rest days or leave days (art. 192 §3 Presidential Decree no. 80/2022).
Common Arrangements
In both, above, two settlement systems:
(a) The protective provisions for the employees’ mandatory rest time are fully applicable also during the period of increased employment (art. 192 §§ 1.c., section a’ and 2.c. section a’ Presidential Decree no. 80/2022).
(b) The average weekly work during the reference period (6 months or year) remains at forty hours/week. (And since a shorter contractual hour is applied, the average weekly term cannot exceed it). At the same time, if the hours of overtime or overtime work (which may take place during the period of reduced employment) are taken into account, the average cannot exceed 48 hours/week (art. 192 §§ 1.c., ed. a’, 2.c. ed. a’ and §5 Presidential Decree no. 80/2022).
(c) The employee has the right to refuse the provision of this additional work, if they are unable to perform it and their refusal is not contrary to good faith. This refusal of the employee for the extra work cannot constitute a reason for terminating their employment contract (art. 192 §§ 1.b. and 2.b. Presidential Decree no. 80/2022).
(d) If the employment contract is terminated before the completion of the settlement system, then as long as the employee did not provide reduced employment, they will be paid for the period of their increased employment based on the arrangements for exceeding work time limits (art. 192 §§8 and 12).
(e) The arrangement system can also be applied to seasonal businesses and to employees with an employment contract of less than one year (art. 192 §9 Presidential Decree no. 80/2022).
The (Third) System of Law 4808/2021
Law 4808/2021 seems to have (“quietly”) introduced an additional system for arranging working time (art. 55 §2): “In the context of arranging the working time of article 192, full-time employment also means working 4 days a week” (182 §2 Presidential Decree no. 80/2022). It was envisaged, in other words, the possibility of dividing the full weekly schedule into 4 working days and for 10 hours per day.
Concerns were expressed about the relevant system. Among others, the Scientific Service of the Hellenic Parliament. In its relevant report, it is stated that the specific provision “…if it does not refer to a four-day ten-hour work day, this cannot be offered as part of the arrangement, as the logic of the arrangement consists of 40 hours of weekly employment (or the shorter applicable contractual hours), but as an employment average. The said average is obtained through the combination of periods of increased and decreased employment within a broader reference period”.
As, however, it was also pointed out in Circular no. 64597/2021, the specific system of arranging working time can be applied either to a reference period of six (6) months within one (1) calendar year or to a reference period of one (1) calendar year.
Settlement System Determination Beneficiaries
Under The Original Law That Established The Settlement (: Law 1892/1990)
Under Law 1892/1990 (art. 41 – as it was in force before Laws 4808/2021 and 5053/2023), the adoption of working time arrangements systems could be determined: (a) with a company-level Collective Labor Employment Agreement, (b) with an agreement of the employer with a trade union in the undertaking which concerned its members, (c) with an agreement of the employer and the works council or (d) with an agreement of the employer and association of persons.
It was not possible, i.e., to adopt a settlement system by a unilateral decision of the employer or an agreement between them and the employee. Quite naturally, therefore, the application of the possibility of arrangement, under the then current conditions, fell into disuse.
Under Law 4808/2021
Before the (given) uselessness of such an interesting institution – due to the limitations of the law that established it (: the necessity of the existence and consent of a trade union organization for its entry into force), Law 4808/2021 attempted a (still timid) leap. It provided, in particular, that if there is no trade union or no agreement is reached between the trade union and the employer, it is possible, at the request of the employee (“to gather their olives” – according to the introduction) to activate the settlement system of working time. (Presupposed, here too, that there is a relevant written agreement in place).
The purpose of the relevant addition – as pointed out in the Memorandum of law 4808/2021 on art. 59 – was to deal with the impossibility of applying the work arrangement system in the following cases: (a) On the one hand in companies where there is no trade union organization, (b) On the other hand in cases where, while there is a desire of the employee for the arrangement of working time in a way that corresponds to the adaptation sought by them of their personal and professional life, there is no corresponding employer-union agreement. It was made clear, however, that settlement by individual agreement was a secondary option. The lead was maintained in favor of the trade unions.
The settlement agreement, according to Law 4808/2021, could be initiated by the employee and not by the employer. The priority, however, could not be the needs/desires of the employee but the needs of the business. After all, how would it be possible to implement such a system, without taking into account the way of operation and the needs of the business?
An attempt was made, in retrospect, to deal with the (lacking logic) malfunctions by issuing an interpretive Circular. With the aforementioned Circular (with law 64597/2023) it was clarified that, for the convenience of the parties, the employer has the possibility to notify the employees of the possibility to submit an application for settlement. Also, the fields of individual operational needs, which would be receptive to the implementation of a working time arrangement system.
It was expressly provided, in order to secure the employees, that it is forbidden to terminate the employment contract because the employee did not submit a request for settlement (art. 59 §1 in fine law 4808/2021). Therefore, the obvious is confirmed: the formulation of the company’s needs and the activation of the specific institution must precede and, subsequently, the request of the employee to be submitted to it. Not, of course, the opposite!
Under the Recent Labor Law
The recent labor law (Law 5053/2023) addressed the above logical inconsistency. It predicted, in particular, that: “if there is no trade union organization or no agreement is reached between the trade union organization and the employer, the working time arrangement system can be applied, after a written agreement between the employer and the employee is drafted”. At the same time, it was provided that “termination of the employment contract is prohibited for the reason that the employee did not consent to an arrangement of working hours.”.
With the relevant reform of the regulation for the possibility of individual arrangement, even if auxiliary, the legislator aims to address the need to facilitate the utilization of the system of arrangement of working time by employees and employers (see in this regard, Memorandum to law 5053/2023 on art. 28). In any case: the provision for a written agreement (without the employee’s prior request) is, obviously, facilitative, it responds to reality and also to the needs of the employees and the companies.
The regulation of employment time is not an invention of the Greek legal order. The basic regulation that, at least at the European level, applies (and the relevant one proposed by the signatory) provides for the determination of its exact context by the directly interested parties: the company and the employee. Let’s trust them! Overregulation (always present in the Greek legal order) helps, in any case, beggars, alleged beggars and, obviously, us lawyers.
But the immediate stakeholders?
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 17th, 2023).
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