The new regulations for overwork, the declaration to the Informational System ERGANI of the ‘managing employees’ and the costs of teleworking
With the new labour law 4808/2021, multiple regulations were implemented, reforming largely the current employment regime, including regulations related to overwork, managing employees and teleworking.
According to Law 3385/2005, as replaced by Law 3863/2010, overwork is defined as the employment of 5 hours more per week after 40 hours for businesses that apply a five-day employment system and 8 hours more per week, for businesses that apply a six-day employment system. The overwork is paid with the hourly wage paid increased by 20% and it is at the discretion of the employer to request such work while, if requested by the latter, the employee is obliged to provide it.
The article 78 of Law 4808/2021 provides for the obligation of the employer to register in the I.S. ERGANI any change or modification of the working hours or the organization of working time, as well as the legal overtime of the employees, and thus there is no longer, as was the case under the previous regime, any employer’s obligation to also register overwork. Moreover, article 79 of the same law provided, inter alia, that a decision of the Minister of Labour and Social Affairs shall determine the registration procedure, the information to be communicated and any other details necessary for the implementation of Article 78. Following this, the Ministerial Decision 90972/15.11.2021 was issued, where no overwork notice form is provisioned. In accordance with the above Ministerial Decision, from 29.11.2021, the obligation of employers to make a prior announcement for the overwork of employees ceases to exist. However, the obligation to announce overtime continues to apply. This regulation has provoked numerous reactions, with certain people claiming that there has been taken a step towards the elimination of unwanted bureaucracy, and some talking about circumventing the protection of workers because of the difficulty to prove any overwork and consequently the payment of the extra entitled remuneration.
In the same Ministerial Decision, a new obligation is imposed on employers to declare in a separate field those employees who are managing employees, pursuant to article 79 par. 5 subpar. f’ of the new law 4808/2021. The deadline for the declaration is for the year 2021 the 20th of December 2021.
The provision of article 2 of the International Labour Convention, which was ratified in Greece by Law 2269/1920, stipulates that the provisions regarding the time limits of work do not apply to persons who hold a position of supervision or management or trust. It is provided, e.g., that those persons who have the status of managing employees, although they are still employees, linked to the employer by an employment relationship, are excluded, inter alia, from the provisions of labour law on working time limits, on weekly rest, on compensation or increase for overtime, etc., which are incompatible with their prominent position and the performance of their duties under their contract. The criteria of who is a managing employee have been shaped to a large extent and refined by the case law of the Supreme Court, judging by the latter ad hoc.
The above Ministerial Decision now defines the criteria according to which it is determined whether an employee holds a position of supervision or management or trust. These criteria are laid down alternatively and in principle be taken up by employees who exercise the employer’s managerial right over other employees of the undertaking or who represent and bind the undertaking to third parties, or who are members of the employer’s Board of Directors or equivalent management body, or who are shareholders or partners, holding more than 0.5% of the employer’s voting rights.
Also, managing employees are considered to be those employees who head directorates, units or departments or other independent units of the employer’s enterprise identified in its organizational chart, which entrusts them with the supervision of part of its continuous, interrupted or extraordinary, but nevertheless substantial operation, provided that they are paid with no less than six times the minimum statutory salary. At this point, the criteria for the job position of the employee and the level of remuneration shall be cumulatively laid out in order to ascertain whether or not the status of the managing employee exists.
Finally, those, who are paid at least eight times the minimum statutory salary, are also characterized as managerial employees.
The aforementioned employees are presumed to be managerial employees. With these regulations, the auditing bodies now have a clear, but rebuttable in any case, evidence that an employee is a managerial employee and is exempted from specific labour provisions that fall within their competence to control, while employers can now, if the above criteria are met, prove that the specific employees are exempted from these provisions.
It should be noted, however, that regardless of whether or not the title of the managerial employee is explicitly stated, this status is in any case attributed to the employee, in accordance with the objective criteria of good faith and trading experience and depends on the nature and type of services provided and on the particular position of the person providing them vis-à-vis both the employer and the other employees. In the event of any dispute between any administrative audit or the employee and the employer concerned, only the courts have jurisdiction to determine the true status of the employee at hand.
Finally, in view of article 67 of Law 4808/2021 regarding the regulation of teleworking, the Ministerial Decision 98490/3.12.2021 was issued, determining the minimum monthly cost of teleworking that the employer is required to pay. In particular, the compensation covers the use of the household space as workplace amounting to 13 euros, the cost of telecommunications amounting to 10 euros, as well as the maintenance cost of the equipment amounting to 5 euros. The payment by the employer is made in the employee’s payroll account with cause of payment “teleworking costs”. In case, the days worked via teleworking are less than 22 in a month, then the employer has to pay the 1/22 of the above expenses for each day of actual teleworking. If the employer has separate contracts with fixed and mobile communication providers and directly pays the cost of telecommunications as well as if the employer provides the equipment to the employee, then no amount is due for the cost of telecommunications and equipment maintenance. These amounts are not subject to employer’s and employee’s social security contributions, nor do they have any tax and constitute deductible expenses for the employer.
It is worth noting that the above-mentioned regulations for teleworking are a turning point for the Greek legal order and reality, as until recently Greece had one of the lowest rates of teleworking within the European Union. The COVID-19 pandemic has altered the previously reality, and as a result teleworking became, for a certain period, mandatory for a specific percentage of employees, while it is now up to the employer to determine this percentage.
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