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<\/p>\nDuring the first wave of the pandemic, we faced unprecedented circumstances\u2014at a personal, national and global level. Objectively speaking, however, the State managed the overall situation successfully. It achieved the greatest possible protection of human life and health, as well as of businesses and employees.<\/p>\n
One would have expected that, during the second wave, everything would have improved: the measures required, the timing of their adoption and their effectiveness. Yet we managed the seemingly impossible: over the past two months, every necessary measure was consistently adopted late. In some cases, so late that its adoption became entirely ineffective.<\/p>\n
The overwhelmed National Health System (NHS) and the shortage of Intensive Care Unit (ICU) beds in public hospitals bear this out. The necessary legislative measures were also introduced with remarkable delay\u2014the [Repayable Advance] and the [Reduced Rent Payment] being obvious examples. Unfortunately, the same applies to the provisions governing the suspension of employment contracts.<\/p>\n
Subsequent legislation on matters of such importance, coupled with provisions having retroactive effect, undoubtedly creates legal uncertainty. It also suggests limited administrative capacity.<\/p>\n
It is worth recalling the normal sequence for implementing a legislative measure: (a) enactment and publication of the law; (b) issuance and publication of a Ministerial Decision, where required; (c) a circular from the competent Ministry providing the necessary guidance; and (d) implementation.<\/p>\n
Let us consider, however, what actually happened with the suspension of employment contracts and remote working.<\/p>\n
The Prime Minister\u2019s address of 31 October 2020 had already signalled the introduction of measures aimed, among other things, at protecting businesses and employees. A Ministry of Finance press release dated 5 November 2020 announced, among other measures, the suspension of employment contracts, applying not only to businesses whose operations had been suspended by order of a public authority but also to businesses affected by the second wave of the pandemic.<\/p>\n
On 15 November 2020, the Ministry of Labour issued the first instructions for submitting suspension declarations to ERGANI for the month of November\u2014a month already halfway over in practical terms. Supplementary instructions followed on 18 November. It should be noted that these instructions were issued without any legislative basis or supporting legal framework.<\/p>\n
Three full weeks later, on 26 November 2020, Law 4756\/2020 was finally published (Government Gazette A\u2019 235\/26.11.2020). Articles 68 and 69 finally addressed the suspension of employment contracts for the month of November. On the very same day, Joint Ministerial Decision 48713\/1232\/26.11.2020 (Government Gazette B\u2019 5246\/26.11.2020; hereinafter the \u201cJMD\u201d) was published, further regulating the same matter\u2014again, for November.<\/p>\n
On what basis, one might reasonably ask, could affected businesses\u2014already operating under restrictions\u2014have made business decisions for November when the applicable regulatory framework did not even exist until 26 November?<\/p>\n
In any event, this left only two working days to deal with the entire matter, both for affected businesses and for those whose operations had been suspended\u2014not to mention their unfortunate accountants: Friday, 27 November and Monday, 30 November. And all this, of course, retrospectively for the entire month of November.<\/p>\n
Clearly, none of this can be regarded as serious policymaking.<\/p>\n
Let us nevertheless examine the principal provisions of the JMD. Unless otherwise stated, the provisions referred to below are those of the JMD.<\/p>\n
The measures applied to businesses whose registered office or branch(es) were located in regional units where the operations of their registered office or branches had been suspended by order of a public authority, on the basis of Activity Code Numbers (KAD) determined by the Ministry of Finance (Chapter A, Article 1(1)).<\/p>\n
The measure applied to employees of the above businesses (Question 1) who had been hired on or before 4 November 2020. Their employment contracts were mandatorily suspended\u2014or an existing suspension was extended\u2014for the applicable period from 1 November 2020 to 6 November 2020 or from 7 November 2020 to 30 November 2020 (Chapter A, Article 1(1) and (2)).<\/p>\n
The same applied to employees included in the SYN-ERGASIA Mechanism (Chapter A, Article 1(3)), as well as to employees subsidised under the Open Programme for 100,000 New Subsidised Jobs (Chapter A, Article 1(4)(b)).<\/p>\n
Fixed-term employment contracts expiring after the date on which the employer\u2019s operations were suspended by order of a public authority were mandatorily suspended.<\/p>\n
Upon expiry of the suspension period, those employment contracts continued for the remaining period originally agreed. This obligation did not apply where performance was objectively impossible, for example in the case of businesses whose form, nature or activity meant that they operated only for a specific period (Chapter A, Article 1(4)(b)).<\/p>\n
In respect of activities exempted from the prohibition on operating, the businesses concerned were entitled:<\/p>\n
(a) to place employees whose employment contracts had not been suspended on a remote-working arrangement, where their work could be performed remotely (Chapter A, Article 1(5)(a)); and<\/p>\n
(b) to recruit employees under the \u201cOpen Programme for 100,000 New Subsidised Jobs\u201d. Such employees could work remotely, but their employment contracts could not be suspended (Chapter A, Article 1(5)(b)).<\/p>\n
The businesses concerned could only temporarily revoke the suspension of employees\u2019 employment contracts in order to meet extraordinary, temporary, urgent and non-deferrable needs arising in the context of addressing COVID-19 (Chapter A, Article 1(6)).<\/p>\n
For as long as their employees\u2019 employment contracts remained suspended and, in any event, until 30 November 2020, the businesses concerned were prohibited from reducing their workforce through termination of employment contracts.<\/p>\n
Any termination effected in breach of this prohibition was null and void (Chapter A, Article 1(7)).<\/p>\n
The measures applied to businesses designated by the Ministry of Finance, on the basis of their Activity Code Numbers (KAD), as businesses affected by the pandemic (Chapter B, Article 1(1)).<\/p>\n
The measure applied to employees of the above businesses (Question 7). Their employment contracts could be suspended\u2014or an existing suspension extended\u2014for a maximum period from 1 November 2020 to 30 November 2020 (Chapter B, Article 1(1)).<\/p>\n
The same applied to employees participating in the SYN-ERGASIA Mechanism (Chapter B, Article 1(4)).<\/p>\n
It also applied to employees subsidised under the Open Programme for 100,000 New Subsidised Jobs, provided that the employment contracts of all employees of the business were suspended (Chapter B, Article 1(3)).<\/p>\n
The suspension of fixed-term employment contracts that had previously been suspended could be extended until 30 November 2020 at the latest.<\/p>\n
Following the end of the suspension period, the employment contracts continued for the remaining agreed period. This obligation did not apply where performance was objectively impossible, for example in the case of businesses whose form, nature or activity meant that they operated only for a specific period (Chapter B, Article 2(3)).<\/p>\n
The businesses concerned could revoke the suspension of their employees\u2019 employment contracts and subsequently place those contracts under suspension again until 30 November 2020 (Chapter B, Article 2(4)).<\/p>\n
Unlike businesses whose operations had been suspended by order of a public authority, affected businesses were not required to invoke any particular reason in order to revoke a suspension.<\/p>\n
The businesses concerned were required to place 50% of employees whose work could be performed remotely on a remote-working arrangement (Chapter B, Article 2(5)(b)).<\/p>\n
The businesses concerned were prohibited from reducing their workforce through termination of employment contracts for as long as their employees\u2019 contracts remained suspended and, in any event, until 30 November 2020. Any termination effected in breach of this prohibition was null and void (Chapter B, Article 2(1)).<\/p>\n
They were also required to maintain the same number of jobs, under the same types of employment contract, for a period equal to the total period during which their employees\u2019 employment contracts had been suspended.<\/p>\n
This obligation did not apply where compliance was objectively impossible, such as in the case of businesses whose form, nature or activity meant that they operated only for a specific period. Employers were not required to replace employees who voluntarily resigned, retired or died, or employees whose employment contracts expired during the relevant period.<\/p>\n
Employees whose employment contracts were suspended were entitled to special-purpose compensation proportionate to the number of days for which their contracts remained suspended, calculated on the basis of \u20ac800 for thirty (30) days (Chapter C, Article 1(1)).<\/p>\n
The compensation was funded entirely by the State Budget (Chapter C, Article 1(1)).<\/p>\n
The special-purpose compensation was tax-free, non-assignable and exempt from seizure in the hands of the State or third parties.<\/p>\n
It was not subject to any withholding, fee or contribution, could not be frozen and could not be set off against assessed debts owed to the tax authorities, the State generally, municipalities, regions, social security funds or credit institutions (Chapter C, Article 1(2)).<\/p>\n
Under normal circumstances, an employee\u2019s annual leave could not be carried over to the following year.<\/p>\n
However, businesses employing workers whose employment contracts had been suspended from March 2020 and remained suspended\u2014continuously or intermittently\u2014until 31 December 2020 were entitled to carry over all or the remaining days of annual leave due for 2020 until 30 June 2021 (Article 69(1), Law 4756\/2020).<\/p>\n
It is noteworthy, however, that payment of the annual leave allowance was not similarly \u201ccarried over\u201d (Article 69(1), Law 4756\/2020).<\/p>\n
The legislation in question\u2014Law 4756\/2020 and JMD 48713\/1232\/2020\u2014was published at the very end of the month, on 26 November 2020, to regulate extremely serious issues that had arisen as early as 1 November. It could hardly be described as timely.<\/p>\n
Nor could it reasonably be characterised as serious legislation, given that it effectively expired only two working days after its enactment.<\/p>\n
It does no credit to the State.<\/p>\n
More importantly, it fails to demonstrate the respect owed to businesses and employees.<\/p>\n
Let us hope that we will not again witness legislation of this kind.<\/p>\n
Either because we will have succeeded in bringing the pandemic under control, or because the State will have proved more responsible and better prepared.<\/p>\n
Preferably, both.<\/p>\n
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