Chapter June author: Michail Chalaris Hellenic Fire Corps, Greece

Transcription

1 See discussions, stats, and author profiles for this publication at: POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/2000 SCOPE OF THE PRESIDENTIAL DECREE at Book: Th.Sakellaropoulos& A.Stergiou,(2011) (eds.),posted Workers in Europe. The cases o... Chapter June 2011 CITATIONS 0 READS author: Michail Chalaris Hellenic Fire Corps, Greece 40 PUBLICATIONS 368 CITATIONS SEE PROFILE All content following this page was uploaded by Michail Chalaris on 16 April The user has requested enhancement of the downloaded file.

2 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/2000 Michail Chalaris PhD, Executive Secretary of the Hellenic Labour Inspectorate Ministry of Labour and Social Security IN A CRITICAL ERA FOR OUR country, where there is a great effort to put an order and set limits to different situations, I come to salute this international conference, concentrated on a particular form of employment of workers, (with its own peculiarities), of a particular category of workers in our country: posted workers. As undeclared work is lurking to become an essentail part of the Greek employment structure, we must be vigilant and perfectly ready, to face employment status which differs from the normal one. In forms of employment which are not very familiar and at the same time concern workers that come from non member states of the European Union, it is more likely to have phenomena such as undeclared or partially undeclared work, illegal employment, etc. In addition the «3D» characteristics (Dirty, Dangerous, Demeaning) of undeclared work are usually present in these forms of employment.

3 146 MICHAIL CHALARIS The Labour Inspectorate, as the prime control mechanism in the labour area, is also responsible for checking the legality and employment of these workers. The Presidential Decree 219/2000 (Government Gazette 190 / A / ), Measures for the protection of workers posted to perform temporary work in the territory of Greece in the framework of the transnational provision of services, adapted the Greek legislation to the provisions of Directive 96/71/ EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in service» (EEL18/1/ ). SCOPE OF THE PRESIDENTIAL DECREE Presidential Decree 219/2000 shall apply to undertakings, located in a Member State of the EU or state that has signed the Agreement on the European Economic Area, which post workers to the territory of Greece, and falls into one of the following cases: A) Posting of a worker on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, operating in Greece, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting B) Posting of a worker to an establishment or to an undertaking owned by the group, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting

4 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/ C) Posting of a worker by a temporary employment undertaking or placement agency, hiring out a worker to a user undertaking, established or operating in the territory of Greece, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting. This Presidential Decree shall not apply to shipping companies, as far as workers employed in ships are concerned. Definitions 1. Worker means any natural person who is under employment with a company falling within the scope of this Presidential Decree. 2. Posted worker means any worker, according to the above definition, which normally works in the territory of another Member State of the European Union or in the territory of a state which has signed the Agreement on the European Economic Area and is not a member of the European Union, and which the company posts in the territory of Greece, under the scope of this Presidential Decree, to perform his work for a limited period of time. 3. Enterprise group means, each group consisting of controlling and controlled companies, as defined in Article 3 of Presidential Decree 40/1997 (39 / A) Terms and Conditions of Posted Workers Undertakings which post workers in the territory of Greece, according to the previous paragraph, should guarantee, whatever the law applicable to the

5 148 MICHAIL CHALARIS employment relationship, the application of the terms and conditions of employment, laid down by: the Greek labor legislation (laws, decrees, ministerial decisions) the national general collective agreement, which is by law of general application and by the applicable collective bargaining agreements or arbitration decisions which have been declared universally applicable in accordance with Article 11 of Law 1876/1990 free collective bargaining and other provisions (27 / A) and on the following issues: a) maximum work periods and minimum rest periods, b) minimun paid annual holidays, c) the minimum rates of pay within the meaning of paragraph 2 of this Article d) protective measures with regard to the terms and conditions of employment of children and of young people, e) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, f) health, safety and hygiene at work, g) equality of treatment between men and women, h) non-discrimination in employment in terms of: racial or ethnic origin, color, language, physical or mental or psychological disorder where employees are demonstrably able to perform the work assigned, social background, part-time, membership or non-membership in trade unions, political or religious beliefs,

6 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/ i) the position of workers to a user undertaking by temporary employment undertaking or placement agency APPLICATION OF THE ABOVE IN ACCORDANCE WITH THE LABOUR LEGISLATION Minimum rates means gross salary set by the Greek labor legislation (laws, decrees, ministerial decisions), the national general collective agreement, which is of general application and by the applicable collective bargaining agreements or arbitration decisions having been declared universally applicable, and which consist of the basic salary and various allowances provided, including overtime rates. Contributions to supplementary pension schemes and the benefits of these schemes are not included in the minimum rates. Similarly, benefits paid to posted workers because of the posting, if paid in the form of reimbursement of expenses actually incurred, such as travel, and lodging, are not included. EXCEPTIONS In the case of initial assembly and/or first installation of goods where this is an integral part of a contract for the supply of goods and necessary for taking the goods supplied into use and carried out by the skilled and/ or specialist workers of the supplying undertaking, the provisions concerning the minimum paid annual holidays and the minimum rates of pay shall not apply, if the period of posting does not exceed eight (8) days.

7 150 MICHAIL CHALARIS This provision shall not apply to activities in the field of building work relating to the construction, repair, upkeep, alteration or demolition of buildings, and in particular the following work: excavation, earthmoving, actual building work, assembly and dismantling of prefabricated elements, fitting out or installation, alterations, renovation, repairs, dismantling, demolition, maintenance, upkeep, painting and cleaning work, improvements. The length of the posting shall be calculated on the basis of a reference period of one (1) year from the beginning of the posting. For the purpose of such calculations, account shall be taken of any previous periods for which the post has been filled by a posted worker. These provisions shall not prevent application of terms and conditions of employment which are more favourable to workers. REQUIRED DOCUMENTS Undertakings falling within the scope of this decree that post workers in the territory of Greece, are required before the commencement of their service, regardless of its duration, to submit to the competent authorities of the Labour Inspectorate, the following documents in the Greek language: A) A written statement with the following data: the name or business name of the undertaking, its headquarters, the address and its legal form the identity data (name, surname, father s name, mother s name, date of birth, home address, etc.) of the legal representative of the undertaking,

8 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/ the identity data (name, surname, father s name, mother s name, date of birth, home address, etc.) of the representative of the company in Greece during their service, the address of the place or places where the posted workers will work and the name or business name, the headquarters, address, and legal form of the undertaking where the posted workers will work the date of the commencement of the service and the posting of workers and its likely duration the nature of the activity and the use or non-use of dangerous materials or methods. B) A list of posted workers in two copies for approval, that will have the following data for each one of them: name, surname, age and specialty, the starting date of the employment relationship, similar experience to other employers and marital status, duration of daily and weekly working hours, the starting, breaking and finishing hours of daily work, as well as weekly rest, paid remuneration of any kind. One copy of these lists should be displayed in a noticeable spot of the workplace, while the other copy remains in the archives of the competent authorities of the Labour Inspectorate. In case where these data change, undertakings are required to submit for approval a complementary list, within fifteen (15) days after the occurrence of the change.

9 152 MICHAIL CHALARIS In cases where work is conducted in shifts, undertkings are required to submit, for approval a table on the weekly rotation of shifts. Employment of posted workers without prior submission of the above documents is not permitted. The supervision and enforcement of the provisions of this Decree is assigned to the competent authorities of the Labour Inspectorate who act, within the framework of the jurisdiction and responsibilities laid by the relevant provisions of Law 2639/1998, Regulating labor relations, establishment of Labour Inspectorate and other provisions (205 / A) and PD 136/1999, Organisation of the Labour Inspectorate (SEPE). PENALTIES In cases of failure to comply with the Decree 219/2000 sanctions (both criminal and administrative), are imposed by the Labour Inspectorate. Penalties are also laid in Articles 16 and 17 of Law 2639/1998, as amended by Law 3385/2005, which provide that: Administrative sanctions 1. The employer who violates the provisions of labor legislation, after a valid decision of the competent Labour Inspector and after invitation to provide explanations, will be charged with: a) fine for each violation, from 1,000 to 30,000 b) temporary closure of certain production process or units or the whole undertaking for up to three (3)

10 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/ days. Under a Minister of Labour and Social Security decision, at a reasoned proposal by the competent Labour Inspector, a temporary shutdown for more than three (3) days or permanent closure of a particular production process or unit or the whole of of the business may also be imposed. 2. The act of fine imposition, as laid above, shall be notified to the offender and this fine constitutes a revenue. This fine can be appealed, within twenty (20) days from notification, before the Administrative Court. The appeal is inadmissible unless notified to the competent authority of Labour Inspector within ten (10) days after its submission. The appeal has a deterrent effect for 80% of the fine. The competent authority of Labour Inspectorate aknowledges the 20% of the fine imposed, on the timely appeal, which is colleced by the competent authority of Revenue Service, as public revenue. Criminal Sanctions 1. Any employer who violates the provisions of labor legislation, concerning the terms and conditions and more specifically work periods, rates of pay, or safety and health of workers, is punished with imprisonment of at least six (6) months or a fine of at least 900, or both. 2. Specific provisions of labor legislations which provide different criminal treatment still apply. Employees and / or their representatives may also appeal in Labour Inspectorate, directly or through the processes of labor dispute or tripartite representation.

11 154 MICHAIL CHALARIS Jurisdiction Regardless of the law governing the employment relationship, any disputes arising from the provisions concerning the conditions of employment of posted workers may also be solved by a Greek court, under existing provisions. The fact that the available measures do not favor discrimination is illustrated by the fact that in Greek legislation posted workers are treated like other employees and there is no difference between the posted and non- posted workers (the only difference lies in the temporary character of the employment). Moreover, these measures are fully justified and probably essential, in order to ensure a minimum level of protection for workers in this category. Additionally you should know that a cooperation agreement between Greece, Bulgaria and Romania concerning the terms and conditions of employment and the protection of labor rights, was singed on 30/09/2010 in Sofia. The signatory parties will cooperate in the area of terms and conditions of the employment of posted workers, in accordance with Directive 96/71/ EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in services, and reciprocal provision of technical assistance on documented requests for information, including information on specific cases and undertakings suspected of illegal transnational activities. You should also know that the Regional Directorates of Labour Inspectorate across the country have been informed (with document No / ) for their obligation to collect the requested statistical

12 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/ data and send them to the Headquarters of the Labour Inspectorate, on a monthly basis. The following table presents data on posted workers for the years : Year Number of employees Country of origin Italy, Cyprus, United Holland, Hungary, Denmark, Finland, Germany, Lithuania Austria, Italy, Cyprus, United Holland, Denmark, Sweden, Finland, Germany Romania, Slovakia, Scotland, Italy, Cyprus, United Holland, Sweden, Finland, Germany Economic activity Trade, Construction, Tourism, Catering Services, ransportations, Food Industry Trade, Tourism, Catering Services, Food Industry Trade, Construction, Tourism, Catering Services, ransportations Duration of posting 4 days-1 year 2 days-8 months 2 days-22 months

13 156 MICHAIL CHALARIS Romania, Austria, Slovenia, France, Bulgaria, Hungary, Poland, Italy, Cyprus, United etherlands, Denmark, Sweden, Germany Austria, France, Poland, Italy, Cyprus, United Denmark, Scotland, Filandia, Czech Republic Italy, United etherlands, Sweden, Switzerland, Filandia, Scotland, Germany, Poland, France Trade, Tourism, Human health activities Trade, Construction, Tourism, Social welfare activities Trade, Construction, Food Industry, Social welfare activities 2 months-1 year 24 days-1 year 6 days-1 year

14 POSTING OF WORKERS IN ACCORDANCE WITH LAW (PD) 219/ Italy, United Sweden, Ireland, Poland, France, Austria, Germany, Holland Italy, United Sweden, Ireland, France, Austria, Germany, Holland Tourism, Catering Services, Food Industry Trade, Tourism, Catering Services, Social work activities 6 days-1 year 6 months 1 year Finally, it should be also stated that except from the above additional documents, submitted to the Labour Inspectorate, Labour Inspectors also check the implementation of the provisions of labor law. They inspect, whatever the legislation governing the employment relationship is, the working conditions as determined by the Greek labor legislation, the national general collective agreement and the collective bargaining agreements or arbitration decisions which have been declared universally applicable. A typical example of a Labour inspection, where I was also present, was the inspection that we carried out, as soon as I undertook my task as Executive Secretary of the Hellenic Labour Inspectorate, in a major undertaking in northern Greece, where in addition to the fines we also proceeded to the closure of the undertaking. Since we have to, practically, make clear to everyone, that the era of impunity has passed