Which company executives are excluded from the new employment ‘status’ of employees

By Dimitris Katsaganis

The “regime” for the exclusion of company executives from the new framework governing employment under the law of the Minister of Labor, Mr. Kostis Hatzidakis, is clarified in a circular.

As it typically states, the provisions of the Washington Convention International Convention do not apply to persons holding positions of supervision or management or confidence in limiting working hours in industrial enterprises.

These persons, although they do not cease to be employed in a dependent employment relationship, are exempted from the application of the provisions of the labor legislation concerning working time limits, the provisions of 8 hours, weekly rest and compensation or surcharge for overtime and overtime work. work or work on Sundays and special holidays or at night or away from home, which are incompatible with their prominent position and the fulfillment of the obligations undertaken by their employment contract.

In any case, with regard to their registration in P / S ERGANI, the capacity of the person holding a position of supervision or management or trust should be an explicit condition of the individual employment contract.

For the needs of the registration in P / S ERGANI, as such employees, who hold a position of supervision or management or trust are presumed those who:

“AA Exercise the managerial right over other employees of the company or

b. represent and commit the business to third parties, or

c. are members of the board of directors or corresponding governing body of the employer or

d. are shareholders or partners holding more than 0.5% of the employer’s voting rights

the

B. are in charge of Departments, Units or Departments or other independent organizational units of the employer enterprise that are identified in its organization chart, provided that these employees are remunerated with agreed monthly salaries that are not less than six times the minimum statutory salary,

the

C. shall be remunerated with agreed monthly remuneration not less than eight times the statutory minimum wage “.”

i) Case A., concerns employees who must meet one or more of the four conditions set out in sub-cases a, b, c, d.

In particular, for sub-cases a) and b) it is pointed out that they refer to cases of employees who due to the skills and the special trust of the employer towards them,

– whether they manage and supervise an entire enterprise or holding,

– or are in charge of an independent or substantial management or division or operation of the business or its operation (Financial Management, Sales / Commercial Management, Human Resources Management, Technical Management, IT Management, Supply Chain, Controlling, etc.) which they manage, and to decisively influence the directions and its evolution,

– whether they hold a position of supervision or trust of the employer, and who, regardless of the number of their subordinates, are clearly distinguished from other employees, in particular because they exercise for the most part the rights of the employer, e.g. the recruitment and dismissal of staff against whom they hold an employer position, the representation of the company to third parties (regardless of the thematic or financial scope of their mandate and the position they hold), the taking of important decisions to achieve its purpose employer, etc. Representation and commitment means that which is associated with the development of initiative and not with simple management operations, such as the signing of checks for small amounts to pay incurred liabilities of the company or the signing or co-signing of balance sheets.

ii) Case B. concerns cases of employees who must meet the following two conditions:

– to be in charge of Directorates, Units or Departments or other independent organizational units or functions of the employer company according to its organization chart, if the employer company entrusts them with the supervision of part of its continuous, intermittent or extraordinary, but essential operation, regardless of any number their subordinates,

and

– their agreed monthly earnings in any case do not fall short of six times the statutory minimum wage.

Regarding the meaning of the monthly salaries agreed upon above, according to the case law, the agreement can be written or oral, explicit or implicit. Thus, for example, voluntary benefits become mandatory, if their granting is continued and repeated for a long time and even at regular intervals without the prior reservation of their unilateral abolition, the business habit can be a generator of rights and obligations etc. All these are considered to become part of the individual employment contract, through the above mechanisms, if they are granted, not as a reward for the result, but in exchange for the work. Therefore, any kind of remuneration (eg monthly salary in the narrow sense, commissions, bonus paid in exchange for work, etc.) and benefits (eg car use, mobile phone coverage, group insurance contract, etc.), if and when they have acquired a mandatory character according to the above and are granted in exchange for the work provided, they are taken into account in the calculation of the dismissal compensation and are considered regular salaries. However, benefits are not included, which are uncertain whether they will be granted (eg bonuses associated with the achievement of individual or business goals).

Therefore, when calculating the agreed monthly remuneration for the application of the above case B (and C below), the explicitly agreed in writing monthly remuneration is taken into account, as well as any other amount or benefit taken into account by the calculation of compensation due to termination of the employment contract. It goes without saying that if there are no such amounts and benefits, which are taken into account when calculating the above compensation due to termination, only the explicitly agreed in writing, monthly paid salaries are taken into account.

Moreover, the statutory minimum wage in each case means the unit reference amount of the legally defined minimum monthly wage of the unskilled worker, without the calculation of any surcharge. Therefore, if the above conditions are not met cumulatively, the said employees do not fall within the scope of the above CA and consequently should not be declared to P / S ERGANI as employees who hold a position of supervision or management or trust.

iii) Case C. concerns any employee who is paid with agreed monthly salaries that are not less than eight times the minimum statutory salary. In this case, too, the calculation takes into account the agreed monthly earnings and the statutory minimum wage, as defined above.

Therefore, if the condition regarding the amount of the agreed monthly salary is not met, the employee in question does not fall within the scope of the above CA and should not be declared to P / S ERGANI as an employee who holds a position of supervision or management or trust.

It is pointed out that in cases B and C the restriction imposed on the agreed monthly remuneration (more than six or eight times the statutory minimum wage respectively) as a prerequisite for the employee to be given the status of person or manager compensates for their exemption from the specific provisions of labor law, taking into account in particular the level of the average wage paid in the country.

In conclusion, an employee, regardless of the capacity assigned to him, if he does not fall into one of the above cases A, B, C, leaves the scope of application of ΥΑ 90972 / 15.11.2021 and consequently should not be declared in the P / S INSTRUMENTS as an employee who holds a position of supervision or management or trust.