Seasonal work is a flexible form of employment, increasingly prevailing the tourism sector. Its innate peculiarity lies in the fact that seasonal workers provide their work / services only a few months a year, since their employers suspend the operation of their enterprises for the rest of the year. The time between two service intervals is called “dead period”, precisely because enterprises suspend their operation and there is no need for labor.
As useful or necessary it might be, season employment jeopardizes labor rights. For that reason, both the interested parties (i.e., employers and employees) and legislators have wished to regulate seasonal employment through Collective Labor Agreements and legislative provisions. The next few paragraphs concisely yet comprehensively present the labor rights of seasonal workers.
Right to re- employment
The right to re-employment is based on the constitutionally established principles of equality and protection of work (Articles 4 and 22 of the Constitution). Every employer employing seasonal workers must re-employ those who were employed in the immediately preceding season, given that his/her business will continue to operate.
To exercise this right, the employee shall notify his employer that he wishes to work again in the coming season. This notification shall be made in written form until the end of January at the latest.
If the employer fails to fulfill his obligation to re-employ the employee, he is considered delinquent in accepting the work offered and owes salary arrears, as explained below. It should be noted that the right of re-employment is extinguished if the employee does not declare his availability in time and lawfully to the employer, or if he does not appear duly at the premises of the enterprise for work.
The employer shall notify the employee that he intends to re-employ him and the employee shall appear to the premises of the employer to declare his availability for work within five days from the date of said notification, unless there is a legitimate and serious cause of delay.
Part of jurisprudence supports that the new employment contract is not concluded solely by the employee’s declaration to the employer. If, however, despite the timely and lawful declaration of the employee, the employer does not proceed to his recruitment, the employer owes the employee salary arrears (default salaries). In addition, an employee can claim re-employment if the employer refuses to fulfill his obligation by judicially condemning him to a declaration of will (art. 949 code of civil procedure).
Nevertheless, court practice considers the re-employment contract concluded upon the unilateral declaration of the employee. This point of view is based on the possibility given to the employer by the law to terminate the contract by granting redundancy compensation. Therefore, if the employer has not terminated the contract, it is deemed to be valid under the condition of the worker’s declaration. As soon as the declaration is made, the contract is considered attached (201 Civil Code).
In particular, “In hotel businesses of seasonal operation, the employer is obliged to re-employ the same number of employees as was the average of the two previous periods of work and preferably those who worked for the last period”.
How are the hotel staff’s rights exercised?
- the employee declares in writing, by the end of January and through the trade union organization, that he wishes to work in the business during the new working period,
- the hotel resumes operation and reaches a certain level of completeness progressively as follows:
(a) At 20% capacity at least one third of the employees are re-employed.
(b) At 50% capacity at least 2/3 of the workers are recruited.
(c) At 80% capacity all staff shall be re-employed.
Capacity can be confirmed by a work inspection officer by cross-checking the entry book or any other appropriate source.
It is worth noting that the peculiarities of seasonal employment contracts have given rise to controversies in legal science, with regards to their duration and namely whether they are of a definite (fixed-term) or indefinite nature. It is assumed that they are fixed-term, since they have an explicit expiry date at which the employment relationship is automatically terminated. However, despite the stricto sensu interpretation of the term “re-enrollment”, under a broad interpretation of this concept they can be considered as indefinite time contracts based on their nature and mainly because of the existence of the right to re-employment. In other words, since there is an obligation for the employer to accept the work of a seasonal worker by fulfilling only certain conditions set forth by law, the employment contract is not terminated but rather suspended during the interim period.
Especially regarding trade-union members, employers are obliged to re-employ those members who worked in the immediately preceding period. Re-employment occurs at the latest upon reaching 30% of the hotel’s capacity.
Right to compensation – Wage arrears (default salaries)
There is great controversy on whether the employer, who refuses to re-employ the seasonal worker, should pay him compensation for termination of contract (redundancy indemnity) or wage arrears (default salaries).
- Salary arrears (default salaries) are due when the employer, even though the employee has lawfully exercised his right, refuses to re-employ him without proceeding to any other action or complaint. The employer is at fault when, while he is obliged to re-employ the employee, unjustifiably refuses the latter’s offer to work. In the hotel business, employers must inform the employees they don’t wish to re-hire by March 15th, under the condition that the employees have exercised their right to reinstatement. Failure to send negative statement is deemed as acceptance of the proposal for reinstatement. Consequently, the employer is obliged to employ the present staff in the applicable collective arrangements, no later than the 15th of May of that year. In the opposite case he shall be obliged to pay salary arrears.
- Compensation is due if the employer terminates the contract during either the “dead period” or the working period. In both cases the compensation due is the same as dismissal without prior notice. Exceptionally, if there is a legitimate serious reason (a just cause) justifying the termination of the contract, the compensation may be reduced to the amount due for cases where termination takes place with prior notice. The indemnity sum depends on the length of time during which work was provided following the initial recruitment, excluding dead periods. This is reasonable since the employee could have worked elsewhere during that time. Compensation is calculated based on the average earnings of the two previous work periods.
- However, termination of the contract without payment of the redundancy allowance renders the employer liable for payment of late payment wages. The employment contract is still in force until payment of the redundancy indemnity has been duly and lawfully made.
Right to vacation leave and leave wages
Seasonal workers in hotel businesses are entitled to annual leave/vacation. Upon termination of their employment contract, they are entitled to pay equal to two days of work for every month worked, plus two as a bonus. More favorable arrangements are made for seasonal workers who have completed a total of 10 years of service with the same employer or 12 years for any employer.
Special seasonal allowance from O.A.E.D.(Hellenic Manpower Employment Organization)
Seasonal workers who provide their work in Greece and are insured in E.F.K.A. fund (former IKA – ETAM) are entitled to special seasonal allowance, given that they have completed a certain number of working days during the previous year. The minimum number of working days required ranges from 50 to 95 and varies according to the type of seasonal occupation. For instance, workers in touristic and catering businesses must have worked at least 75 days in the previous year to be entitled to this allowance.
It is worth noting that employees in this sector, who have worked more than 50 days’ worth of pay during the period from 01.10 to 31.12, are not entitled to the special allowance.
The conditions and legal framework of the seasonal allowance is defined by the relevant OAED Directive for 2017.