Greece

    1.1 In what circumstances does the employee transfer law apply?

    A ‘transfer’ is the reassignment of an economic unit that keeps its identity. A transfer will occur if an undertaking is:

    • permanently relinquished by sale or by other legal transaction (e.g. by division or gift);
    • reorganised (e.g. by hiring a co-partner); or
    • reassigned to a new owner by hereditary succession.

    The transferred enterprise must continue to be operated as a fiscal unit: sufficient business elements must be transferred to enable the transferee to continue its activities.

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    Author: Kremalis Law Firm

    Date: July 2016

    1.2 Does the employee transfer law apply to (a) a sale of a business or (b) outsourcing?

    (a) Sale of a business

    Employee transfer law applies to every contractual or mandatory business transfer; acquisition; takeover or merger of a company or any part of one, or its business facilities, to or with another employer.

    ‘Business facilities’ includes not only physical assets or facilities but also the people and technical or other means of production, as organised by the employer for the purpose of realising a productive or technical goal, i.e. both tangible and intangible assets.

    The leasing or rental of the assets of the business will not be deemed to constitute a business transfer.

    (b) Outsourcing

    Outsourcing can be regarded as a transfer if the transferee takes on the economic activity of the transferred business, including both tangible and intangible assets, and its workforce.

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    Author: Kremalis Law Firm

    Date: July 2016

    1.3 In outline, what are the implications of the employee transfer law?

    The employee transfer rules entail the statutory automatic transfer of the employment relationship as a whole, as it was at the time of the transfer. This includes the transfer of any faults of the former employer, e.g. an unlawful dismissal. The new employer is obliged to respect the working terms set out in collective bargaining agreements and work regulations.

    The transferor and transferee are required to inform employees of any significant consequences of the transfer that will affect them and if they intend to take measures to the status of the employees, they must consult to try to reach a mutual agreement.

    Note that a transfer does not in itself constitute grounds for the dismissal of workers.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.1 Who transfers?

    All of the transferor’s employees with an employment contract in force at the date of transfer (even if they have been suspended) will be reassigned to the transferee. Thus for example, secondees, apprentices and employees on maternity leave would be covered. Whether the contract is for a fixed or indefinite term is not an issue, as both are protected under the transfer law.

    All those employed in the transferring activity, however few or many hours they work on this activity, are deemed to transfer across.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.2 Can employees object to transferring?

    A transfer may take place without the employees’ consent. Transferred employees should offer their services to the transferee but are entitled to terminate their employment contracts before or after the transfer if they do not agree with it or do not intend to work for the new employer.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.3 What happens to terms of employment contracts?

    All rights and obligations of the transferor in relation to the employment contract or employment relationship are automatically transferred to the transferee at the date of transfer.

    After the transfer, the transferor and transferee will be jointly and severally liable for all obligations arising from both the contract and the employment relationship until the activity is transferred.

    The transferee will then take on all rights and obligations of the transferor toward every employee.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.4 What about other employee benefits?

    Following transfer, all employees’ existing rights and legitimate expectations continue to exist. Rights associated with seniority and advancement bind the transferee in the same way and so past employment with the transferor counts as ‘continuous employment’ with the transferee.

    Hard-to-transfer benefits are also required to be offered. If the new employer cannot offer the same benefit, it is required by law to consultation with the employees in order to reach a common agreement. The law imposes fines on transferees who breach their obligations.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.5 What happens to pension rights?

    The transferee can refuse to continue a pension scheme or an insurance agreement (for life insurance, medical cover etc.) whether in the form of a policy with an insurance company or in the form of an account operated by the company, if the costs involved would substantially impede the transfer of the undertaking. It does not matter what kind of schemes these are (.e.g. both defined contribution and defined benefit schemes can be liquidated in this way). Alternatively, the transferee may either continue the policy under the same, or different, terms.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.6 What liabilities transfer?

    After the transfer date, the transferor is jointly liable with the transferee for all obligations arising under the previous contract or employment relationship. From the point of transfer onwards, the new employer is solely liable for all new obligations that arise.

    Note, however, that criminal liability for actions that took place before the transfer is not transferred to the transferee.

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    Author: Kremalis Law Firm

    Date: July 2016

    2.7 Do collective agreements transfer?

    The transferee must observe the terms and conditions of the employment contract as supplemented by all applicable collective agreements, mediation decisions, bye laws and individual employment contracts, without distinction.

    At any time after the transfer the new employer may negotiate a new collective agreement. Any new terms can be implemented even if they are to the detriment of the employee. This will not be regarded as a change to the terms and conditions of employment because collective agreements are not incorporated into individual contracts and are considered simply as a general standard to be applied.

    However, if the new employer decides to renegotiate an existing collective agreement, it will be bound by the terms of the old agreement for three months after its expiry and it will have to adhere to those terms regarding all benefits to employees.  

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    Author: Kremalis Law Firm

    Date: July 2016

    2.8 How does the transferee obtain information on transferring employees?

    The transferee obtains information on transferring employees through negotiations with the transferor. The transferor must disclose any ‘necessary’ information about the unit to be transferred, including information about the number of employees, their employment contracts and the obligations and financial condition of the transferring unit.  If the transferor does not disclose this information it will be liable for any harm caused to the transferee by the non-disclosure.

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    Author: Kremalis Law Firm

    Date: July 2016

    3.1 Can employers make changes to employment contracts?

    Generally the term of the employment relationship, any obligations on the employer and any employee rights existing at the time of transfer must be transferred to the new employer without modification. This includes:

    • employees’ salary;
    • any additional voluntary benefits and allowances;
    • promotions, as these will have formed part of the internal regulations applicable at the transferor;
    • additional rights connected to termination of the employment contract;
    • calculation of severance pay;
    • annual leave, working time and recognition of previous employment.

    The employees’ rights and their employment terms and conditions must not be amended in a way which is detrimental to employees without their consent. Any change made as a result of the transfer should be consulted on with the employees before the transfer takes place. It is not sufficient to show that the new terms are equivalent in aggregate (unless employees agree to the proposed alterations), because the ‘content’ of the employment contract must remain unchanged. It will be a matter of fact whether the new terms are actually equivalent or not.

    The termination of employment contracts and changes concerning working hours, for example, are acceptable if they are made for economic or organisational reasons and are not done as a result of the transfer.

    Employment terms can be harmonised by the transferee provided the employees are informed about the changes before the transfer date. After the transfer date, the transferee can only harmonise terms if it can show it is imposing the changes for reasons other than the transfer.

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    Author: Kremalis Law Firm

    Date: July 2016

    3.2 When can employers safely dismiss employees before or after a transfer?

    The normal rules apply to dismissal and therefore there is no ‘safe’ time after which it is reasonable to dismiss employees following a transfer.

    The transfer must not be the sole reason for an employee’s dismissal and this prohibition applies to both the transferor and transferee. If the transferee dismisses employees solely as a result of the transfer, those dismissals will be unlawful and therefore invalid. The dismissed employees will be entitled to claim that their employment contracts should continue and that they should be paid wages which match the period they did not work because of the invalid dismissal.

    However, this does not prevent the employer from dismissing employees for economic, technical or organisational reasons in connection with the transfer, provided the law regulating redundancies is complied with (e.g. dismissals of surplus staff as a result of organisational changes and dismissals for economic reasons). There is no general requirement for an employer to justify the termination of an employee under an indefinite term contract, and the burden of proof is on the dismissed employee.

    Where the employee terminates his or her employment contract because the transfer has caused detrimental changes to its terms and conditions, it will be deemed that the employer caused the dismissal. However, it is also possible for an employer to dismiss an employee on account of his or her ‘unconventional attitude’ (i.e. the attitude of the employee towards his or her duties and towards the employer).

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    Author: Kremalis Law Firm

    Date: July 2016

    4.1 Who must employers consult?

    The transferor and transferee must inform the employee representatives of the transfer. They need not consult with a trade union (unless required by other provisions), if there are existing employee representatives. If the number of employees and the structure of the work council changes, its tenure will expire and a new one should be elected, but the employee representatives will remain protected for as long as they would have been protected had the transfer not occurred.

    If there are no employee representatives, the employees must elect a three-member Committee through which the consultation can take place.

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    Author: Kremalis Law Firm

    Date: July 2016

    4.2	What information must they provide?

    The employee representatives should be informed of:

    • the date or proposed date of transfer;
    • the reasons for the transfer;
    • the legal, economic and social consequences that the transfer could entail for employees; and
    • the measures that will be put in place in relation to the employees.

    The transferor should provide the above information to the employee representatives in good time before the transfer. The transferee has a similar obligation and must meet it before any employees suffer any detriment as a result of the transfer.

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    Author: Kremalis Law Firm

    Date: July 2016

    4.3	What does consultation involve?

    The transferor and transferee must consult with the employee representatives before the transfer about any measures which will change the conditions of employment of the transferring employees, with a view to reaching a consensus. The results of the consultation, including the final opinions of the interested parties, should be recorded in writing.

    There is no requirement that the consultation should result in an agreement, but if there is no agreement the employees affected by the changes can appeal to the courts for the defence of their right in law.

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    Author: Kremalis Law Firm

    Date: July 2016

    4.4	How long does consultation last?

    There is no specific timeframe within which the consultation should be completed. However, the consultation should be done in due time and end before the transfer takes place.

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    Author: Kremalis Law Firm

    Date: July 2016

    4.5	What happens if an employer fails properly to inform or consult?

    The consultation obligation requires a consultation to be held for the purpose of achieving a consensus. The performance of the consultation procedure and actually achieving consensus are not preconditions for the validity of the transfer.

    The sole sanction for breach of employees’ rights to participate in the process is a fine, but infringement neither affects the validity of the transfer nor blocks it. These provisions merely reduce the right of employers to change the working conditions of the employees unilaterally.

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    Author: Kremalis Law Firm

    Date: July 2016

    5.1	Identify up to three issues in this country of which employers should be aware?

    First, the transfer law provides that if the undertaking preserves its autonomy the elected works council continues until its term of office expires, unless any reorganisation of the undertaking by the transferee changes the conditions for a reconstitution of the works council (e.g. a change in numbers). If the undertaking loses its autonomy, then the existing works council will continue until a new one is elected. Rules on protection against dismissal assume that this protection will continue until one year after the end of the original term of office.

    Second, national law does not take advantage of the option granted under Article 6 of Directive 98/50/EEC to institute special measures ensuring the representation of employees in cases where the transferor is the subject of insolvency proceedings. This means that the general provisions regarding employee representation apply in such cases.

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    Author: Kremalis Law Firm

    Date: July 2016

    5.2	Would the employee transfer law apply on a cross-border transfer into or out of this country?

    The law applies to the transfer of an undertaking situated in Greece. With regard to transfers out of Greece, the relevant European legislation and respective national law will need to be considered as well.

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    Author: Kremalis Law Firm

    Date: July 2016

    6.1	What are the main national laws protecting employees upon transfers of businesses?

    Greece has adopted provisions necessary to comply with Directive 98/50/EU by means of Presidential Decree No 178/2002 (on measures relating to the protection of employee rights in the case of transfer of a business etc.). This Decree replaced Presidential Decree No 572/98 that was issued in order to implement the provisions of former Directive No 77/187/EU and includes all changes to the old Directive as provided in the new Directive 98/50/EU.

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    Author: Kremalis Law Firm

    Date: July 2016

     

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