Digital Card and other issues from Law 4808/2021

The recording of working time is an important issue in the case of telecommuting because it should be monitored through organized systems, which prove the working time to the competent authorities and the employer. Law 4807/2021 in article 8 and 10 provides extensive regulations regarding working time and Law 4808/2021 stipulates the introduction of the digital work card, with which working hours and overtime are monitored and recorded in real time. The implementation of the digital card, despite the fact that it is expected to be implemented in 2022, will be able to track employment in various sectors of the economy in real time. Also, the use of the digital card is mandatory on the part of employers with a fine amounting to 10,500€ per card that is not activated The distinction between “rest period” and “working time” is a major issue from the point of view of legal developments and affects the distinction of work readiness into “genuine” and “non-genuine”. According to the settled jurisprudence of the Greek Courts (as determined by the Plenary Session 10/2009 of the Supreme Court) in the case of a contract, with which one contracting party undertakes to partially limit the freedom of movement in favor of the other, without readiness (either at the level of physical or mental forces), it is like an employment contract, unless something to the contrary has been agreed upon. In this case, the distinction between “readiness for work” applies, depending on the degree of readiness, a distinction is made between “genuine readiness for work” and “non-genuine readiness or call readiness”. In the first case, where all the provisions of labor legislation are applied, the employee must be at a certain place and time, keeping their mental and physical strength in tension to offer their services in case of need. This preparedness is assimilated in its entirety to normal work because there is an alertness of the worker’s powers but also a commitment to freedom. In the second case of “non-genuine readiness or call readiness” the employee is not obliged to be alert, so not all the provisions of the labor law apply. In particular, the provisions regarding minimum wage limits, surcharges for providing night work or overtime do not apply unless otherwise agreed. The organization of working time is one of the most important issues that the legislator has to deal with in the case of teleworking and in the rest of Europe. Based on the decision of the CJEU in Case C-84/94[1], in the context of the organization of working time, specifically the United Kingdom of Great Britain and Northern Ireland requested, pursuant to Article 173 of the EC Treaty[2], the annulment of Directive 93/104/EC of the Council of 23 November 1993 on certain elements of the organization of working time. However, as pointed out in the decision, Member States should promote axes related to the improvement of working time, to protect the safety and health of workers and aim to harmonize the conditions that exist in this field within a perspective progress. In support of its position, the United Kingdom Government considers, inter alia, that there is no specific guidance on important issues such as the working week, paid annual leave and rest time which are issues that have a ‘loose’ relationship with the occupational health and safety issues[3].

The Court ruled on the annulment of Article 5, second paragraph, of Council Directive 93/104/EC of 23 November 1993, regarding certain elements of the organization of working time, specifically the weekly rest period. Specifically, it decided to accept the annulment of Article 5, paragraph 2 of the directive as it is not inextricably linked to the other provisions of the directive. Despite the fact that if Sunday is included in the weekly rest period it is not inextricably linked to the other provisions of the directive, it was decided to cancel it in order not to affect any social or even religious preferences.

Based on the C-55/18[4] case and specifically the answer to the request for a preliminary question of the Central Court of Spain, it is the employer’s obligation to apply “the implementation of an objective, reliable and easily accessible system for measuring the daily working time, is imposed in general for all employees”. The same is true based on law 4808/2021, i.e. “Business employers are obliged to have and operate an electronic system for measuring the working time of their employees, directly connected and interoperable, in real time, with the P.S. ERGANI II”.

Regarding the measurement of working time, it should be noted that the working time directive, but also other directives and the agreement on teleworking are sufficient to protect workers (Eurofound, 2020, p. 54). European jurisprudence stating that “(...) member states must impose on employers the obligation to implement an objective, reliable and easily accessible system for measuring the daily working time of each employee”[5], is important mainly because it can lead to development of systems that take into account the important differences by sector. The EESC, in this context, recommends that businesses use mechanisms for calculating regular work time and overtime work that are appropriate, depending on the type of work (Trindade, 2020).

The previous law on tele-readiness stipulated that its conditions and time limits should be communicated by the employer. Also, teleworking hours were declared by the employer in the “ERGANI” system without any additional monitoring of working hours. Also, according to the second paragraph of article 5 of the previous law 3846/2010, “if the normal work is also converted into teleworking, an adjustment period of three months is specified in the agreement, during which any of the parties, after meeting a deadline of fifteen days, can put an end to teleworking and the employee can return to work in a similar position to the one they held”. Based on the purpose of the regulation in question, that is to alleviate the misgivings that may exist regarding the shift to teleworking, there was a recognized attempt to adapt to the special situations created during teleworking but there is no longer any possibility of applying such a rule according to today’s developments. Therefore, it becomes clear that the previous legislation provided some minimal guidelines regarding the above characteristics of teleworking, and in contrast to the recent legislation which covers most issues in a wide range, but some other new ones emerge.

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References

Audiencia Nacional, Spain, Case C-55/18 (2018)

Eurofound [Internet]. Teleworkability and the COVID-19 crisis: a new digital divide?; [updated 2022 September 15, cited 2020]. Available from: https://euagenda.eu/upload/publications/wpef20020.pdf

Trindade, C. 2020. The challenges of teleworking (SOC/660). European Economic and Social Committee.

Decision of the CJEU of 12 November 1996. - United Kingdom of Great Britain and Northern Ireland v Council of the European Union. - Directive 93/104/EC of the Council, regarding certain elements of the organization of working time. (1996)

Judgment of the Court of Justice in Case C-55/18, ECLI: EU 2019: 402, paragraph 60. On teleworking, case law: C-518/15, C-344/19, C-580/19, C-214/20, C-84/94.

par 13 of the Case C-84/94

[1] Decision of the CJEU of 12 November 1996. - United Kingdom of Great Britain and Northern Ireland v Council of the European Union. - Directive 93/104/EC of the Council, regarding certain elements of the organization of working time. (1996)

[2] The Union and the Member States shall ensure that the conditions necessary to ensure the competitiveness of Union industry are ensured

[3] See par 13 of the Case C-84/94

[4] Audiencia Nacional, Spain, Case C-55/18 (2018)

[5] Judgment of the Court of Justice in Case C-55/18, ECLI: EU 2019: 402, paragraph 60. On teleworking, case law: C-518/15, C-344/19, C-580/19, C-214/20, C-84/94.