The principle of the most favourable rule as a basic principle of Greek Labour Law
The principle of the most favourable rule (Günstigkeitsprinzip)
constitutes a distinct characteristic of Greek labour law as it introduces a
noteworthy exception to the strict pyramidal hierarchy that regulates by and
large the relationship of the rules of law in the Greek legal order. Its
application presupposes that two labour law legal sources of different legal
nature and in any case of different origin co-exist and therefore demand to be
implemented at the same time, given that they regulate the same issue, such as
the days provided for a leave. On the condition, that an employment
relationship falls within the ratione materiae, personae, temporis and loci of
those both legal instruments and cumulatively both of its parties, namely the
employer and employee, are bound by them, then the primacy will not be
determined in accordance with the formal weight of each one, but pursuant to their
substantive content according to the principle of the most favourable rule. In
turn, this one designates the implementation of the most beneficial regulation
for the employee, irrespective of the consequences incurred for their employer.
A pretty classic example entails the conflict between collective labour agreements
on the one side and the individual employment agreements on the other. Based on
the general rules, the former (collective labour agreements), which according
to the Greek labour law introduce ius cogens, had to take precedence over the
latter (individual labour agreements) in any event. However, this is not the
case by virtue of the principle of the most favourable rule, which is
applicable hereinto and allows the individual agreement to prevail over the
collective labour one on the inviolable condition that it provides for a more
propitious for the employee solution. The principle concerned dominates in
Greek labour law as regards the regulation of conflicts between labour law legal
sources as despite the fact that it is expressly adopted only by concrete
legislative provisions for specific categories of labour law regulations’
clashes, it is, however, unanimously accepted by the legal scholarship along
with a long-established jurisprudence of the Supreme Court (Areios Pagos) and
the courts of the first and second instance, as well, that its application is
extended to each and every sort of clash of any kind labour law rules. Specifically:
The principle of the most favourable rule is articulated in
broad terms in Greek labour law basically in three provisions, article 7 § 2, 7
§ 3 and 10 § 1 of the Law No. 1876/1990 "concerning free collective
bargaining and other provisions"[1].
In particular, article 7 § 2 hereof regulates the relationship between
collective and individual labour agreements, afterwards article 7 § 3 concerns
the interrelation between (state) laws and collective labour agreements and
finally article 10 § 1 refers to the interplay between the different types of
collective labour agreements[2].
All the aforementioned provisions enjoy a distinguished legal gravity as they
regulate the most essential labour law legal sources’conflicts while they
manifestly share a minimum common denominator, the fact that they serve the
protection of the intrinsically weakest party to the labour law relationship,
the employee. From that angle, they are based on exactly the same rationale (ratio
legis), which teleologically interpreted is equally valid in all the other cases
of labour law legal sources’ clashes, as well. Hence, eventually it is overall
embraced that the principle of the most favourable rule applies to any kind of
labour law legal sources’ conflicts and exactly from that perspective as such
it has resulted in becoming a basic principle of the Greek labour law.
In this vein, it is worth clarifying that this logic applies
to the relationship between (state) laws and individual labour agreements and
thus despite the fact that article 3 of the Hellenic Civil Code prohibits party
autonomy, meaning individual agreements, to derogate from (state) laws
introducing ius cogens in an absolute way, in the theatre of labour law battle
the aforementioned prohibition is relativized to a single direction. Indeed,
individual labour law agreements are vested the power to adopt a regulation
contradicting the existing ius cogens contained in (state) laws, on the strict
condition that they are more favourable for the employee (one-sided ius cogens).
This is the reason why in these cases (state) laws are considered to introduce
"one-sided ius cogens" since they are allowed to be deviated from by
individual labour agreements provided that the latter are more propitious for
the employee, namely in order to serve the protection of the weakest
contractual party. The single one case, where (state) laws, which adopt ius
cogens, prevail without exceptions towards any kind of individual labour law
agreements, irrespective of the substantive content of the latter for the
employee, is in the much fewer comparatively occasions when they are regarded as
being "both-sided ius cogens".In such an event, individual labour
agreements are totally prohibited to be diverged from (state)laws’ regulations, namely even when
favouring employees, since (state) legislator hereinto is regarded as defending
not employees’ legal status, but the general interests of legal order.
Nonetheless, it is to be emphasized that this is only an exception that does
not reduce the basic norm pertaining to the application of the most favourable
rule principle.
Apparently, the cardinal dogma lying at the heart of the
general principle of the most favourable for the employee rule is the very
notion of equity and in particular the idea of safeguarding the weakest party
to the labour law relationship. In other words, the principle of the most
favourable rule materializes another fundamental principle of Greek labour law,
the principle of protectionism, which pursues to restore the deeply injured
balance in the employment relationship in favour of the underprivileged party,
the employee. So, for example, the classic manifestation of the principle of
the most favourable rule in the case of collective and individual labour law
agreements’ conflict, in the framework of which the latter precedes towards the
former when being more advantageous for the employee, is nothing more than an
expression of the protectionist spirit.
Furthermore, it is of outmost legal significance to stress that
despite the legislative adoption of the principle of the most favourable rule
in some principal labour law legal sources’ clashes, as noted above, and the
even further overall interpretative embracement of its application by Greek scholars
and Courts to any other kind of labour law regulations’ conflicts, some crucial
questions regarding its application remain still open. Namely:
First of all, a pivotal issue is as to whether the power of
the principle of the most favourable rule is equipped with a constitutional
armor. The prevailing opinion advocates that it does and it specifically
considers that the most favourable rule principle expresses nothing more than
the constitutionally acknowledged party autonomy (art.5§ 1 of Hellenic
Constitution, hereinafter HC). Nevertheless, this approach is very restrictive
as it ignores the penetration of the principle concerned to all kind of labour
law sources’conflicts and not only to the clash between collective and
individual labour law agreements. So, through such a prism, it is necessary to
place the given principle in a more broad constitutional spectrum, taking into
account that additionally it guarantees the observance of a minimum threshold
for the protection of human dignity (art.2 § 1 of HC), outlines a basic frame
for the development of human personality (art. 5 § 1 of HC), determines
collective autonomy as a means of ensuring minimum and not maximum limits for
employees’ protection (art.23 § 1 of HC) and last, but not least, in general
vindicates the basic demand of the social right to work (22 § 1 of HC), namely
the safeguarding of decent working conditions, that literally gives breath to
the sense of social state (art.25 § 1a΄ of HC). Consequently, the principle of
the most favourable rule is to be accepted that it is based on a series of
constitutional provisions that in turn set a serious impediment not only to its
abolition as such, but its unreasonable limitation, as well, even in the
extreme financial circumstances that Greece has experienced in the last years.
Secondly, another basic problem regarding the application of
the principle concerned is to identify the exact objective scope and subjective
shades of comparison, within which courts are called upon to ascertain the favourability
of the regulations being each time at stake. So, as regards, the first question
(objective scope of comparison), Greek law in principle silents, except for the
case of the conflict of collective labour agreements of different kind to each
other where it provides for that the comparison shall take place on groups of
terms. Specifically, article 10 § 1b of the Law No. 1876/1990 distinguishes two
groups of terms, the "group of salary’s terms" and the "group of
all the other terms". However, this classification should be perceived
solely as a guideline as the latter category covers a great range of employment
conditions, which differ to each other and therefore are not eligible to be
compared with. In that respect, the sense of the "group of all the other
terms" is proposed to be teleologically expanded in order to be further
subdivided to more groups of terms that are interconnected with the same aim,
namely they serve the same functional goal. Only this reading secures that the
comparison each time takes place between homogeneous terms and does not involve
heterogeneous ones, confusing completely different kinds of them, which would
lead to unfair solutions. As regards, the second question (subjective shades of
comparison), which raises the issue as to whether the employee’s opinion upon
the favourability is to be taken into account, there is no legislative
directions. Therefore, it is answered by the legal theory and courts based on
the well-established premise that a judge cannot support its judgment on the
employee’s subjective perceptions since the latter can be easily manipulated by
the employer. On the contrary, they shall evaluate the case at stake with the
application of objective criteria, deriving from the legal order’s values with special
focus on the predominant views of the employment sector concerned.
In addition, apart from the objective scope and the
subjective shades of comparison, it is important to underline that there are
different opinions as regards the level, at which the comparison has to be
viewed, as well. Some voices advocate that the comparison shall take place on a
collective basis, when the legal source given has been shaped collectively,
irrespective of its legal nature per se. For example, exactly this is the case
as regards the standard contract terms, which are repeatedly concluded with all
the staff. They might ostensibly enjoy the legal nature of individual contract,
but in reality they are produced under the employer’s omnipotence collectively
without any bargaining be taken place between the parties of the employment
relationship. Nevertheless, in our perception, this factum cannot transfer the
level of comparison from the individual to the collective plane since the
principle of the most favourable rule in order to serve its purpose, meaning
the employee’s protection, shall be a clearly quantifiable figure, specifically
capitalized in favour of the employee, something that cannot be the case when
evaluating the collective interests of the emloyees as a unity. Therefore, at least
in the aforementioned version, the individual comparison seems to be the only
viable solution for the effective application of the principle concerned.
All the above referred to legal points express only some
rudimentary remarks regarding the implementation of the principal of the most
favourable rule in Greek labour law for in fact it has not been approached in
detail in Greek legal theory and case-law to the extent required. Consequently, from that point of
view, it is demanded a thorough legal research to be conducted in order for it
to be analyzed properly, considering that the financial turmoil that Greece has
undergone due to the debt crisis and the ongoing pandemic has underlined even
further its crucial value as a legal tool for the sake of employee, standing at
the forefront of their struggle to obtain decent working conditions. (photo: pixabay)
Read more articles by Evlampia Tsolaki here
*Evlampia Tsolaki (linkedin Evlampia Tsolaki 1st) :
-Attorney at law qualified at the Thessaloniki Bar
Association
-Ph.D. candidate at the Faculty of Law of the Aristotle
University of Thessaloniki
-LL.M. in Transnational and European Commercial Law,
Mediation, Arbitration and Energy Law, School of Economics, Business
Administration & Legal Studies of International Hellenic University (IHU, Thessaloniki)
-LL.M. in Civil, Civil Procedural and Labour Law at the Faculty of Law of the Aristotle University of Thessaloniki
[1] See its English translation
in http://ilo.org/dyn/natlex/docs/ELECTRONIC/20025/117820/F-757641532
/ GRC20025%20Eng.pdf
(accessed 23.01.2021 at 11.45 a.m.).
[2]Article 3 of the Law No. 1876/1990 explicitly
determines a numerus clausus for the Greek
collective labour agreements by classifying them restrictively into: a) the national general labour agreements,
which are applicable to all workers, b) the sectoral
labour agreements, which are applicable to workers of similar or related
undertakings (Betriebe) and businesses (Unternehmen) in a specific brand of
economic activity in a given town or area, or throughout the country, c) the enterprise agreements, which are
applicable to the workers of a single undertaking (Betrieb) or business
(Unternehmen), d) the national occupational agreements, which
are applicable to workers engaged in the same occupation or in related
occupations or trades throughout the country and e) the local occupational agreements, which are applicable to workers in
the same occupation or in related occupations or trades in a given town or
area.
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