Developments in the Labour law of Cyprus in May 2014

 

Keywords:  promotions; trafficking; asylum, international protection, on-call, sick leaves, extension of shopping hours.

 Summary:

·       A new law for promotions in the public service without pay rises is enacted.

·       A new anti-trafficking law is enacted, criminalising the purchase of services from trafficked victims under conditions.

·       The asylum law is amended to transpose Directive 2011/95, providing inter alia for immediate access to the labour market and access to social insurance and other working rights for persons granted international protection.

·       There is no precedent in Cyprus on the issue raised by the CJEU ruling in C-539/12 but the Supreme Court does not recognise time during which an employee is ‘on-call’ as working time to be fully remunerated, unless this is expressly provided for in the employment contract.

·       The government examines practices to end the abuse of sick leaves by public employees.

·       Trade unions protest against the practice of the Ministry of Labour to repeatedly issue orders extending the opening hours of retail shops.

National Legislation

1. Promotions in the public service with pay rises suspended

A new law was voted in Parliament on 5^th June 2014 marked as urgent, providing for promotions in the public service without pay increases until 2017. The pay rises will be paid in 2017 provided the current conditions of economic crisis no longer prevail and no pay rise will be paid retrospectively. The text of the new law was not available at the time of writing and therefore no further details are available as yet.

2. New Anti- Trafficking Law

On 15 April 2014 the Parliament voted in favour of a new law intended to combat sex and labour trafficking, purporting to transpose Council Directives 2004/81 and 2011/36 and to better implement a series of international and Council of Europe conventions related to the subject. The new law[1] creates a long list of criminal offences including the withholding of passports and other personal identification documents (which is a common practice of employers in Cyprus who hire third country nationals), the purchase of services from victims of trafficking where it is reasonable to assume that the service provider is a victim of trafficking, the abuse of power for the exploitation of one’s vulnerable position. The law also clarifies that the victim’s consent shall constitute no defense, thus filling a gap which existed in the previous anti-trafficking law. It also provides that the victims will not be further victimized through criminal prosecution and that third country nationals who are trafficked victims will not be prosecuted for immigration related offences but victims whose reflection period comes to an end may not have their visas renewed if the Minister of Interior thinks they have not cooperated sufficiently with the prosecution authorities.

On 23 May 2014 the legal aid law was also revised in order to provide for the right of trafficked victims to seek legal aid in order to pursue a  claim of compensation under the anti-trafficking law.[2]

3. Access to the labour market for persons with international protection

An amendment to the Refugee Law was enacted on 15 April 2014 (Law Ν. 59(Ι)/2014), seeking to better transpose Council Directive 2005/85 and to harmonise the asylum legislation with Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. The new law now clarifies that persons with international protection have the right to access the labour market as employees or as self-employed persons immediately upon being granted international protection.[3] The previous legislation provided for the same right but the timing as to when a person could be granted the right to work was left vague.[4] Also, the amendment now provides that the applicable laws as regards salaries, access to social insurance and other working conditions shall apply to persons with international protection,[5] which were not foreseen under the old legislation. 

Miscellaneous

1. Comment on applicability of CJEU Ruling in C‑539/12

In this case, the CJEU held that the right to annual leave is an important social right, which means that workers must receive their full remuneration for that period of rest. Article 7(1) of the Working Time Directive 2003/88/EC precludes national legislation and practices under which a worker whose remuneration consists of a basic salary and a commission, the amount of which is fixed by reference to the contracts entered into by the employer as a result of sales achieved by that employee, is entitled, in respect of his paid annual leave, to remuneration composed exclusively of his basic salary.

The issue in Cyprus is regulated by the Laws on Annual Leave with Pay,[6] which provide the general framework for paid leave, and the Law on Organisation of Working Time.[7]T he Law on Organisation of Working Time provides that all employees are entitled to four weeks paid leave, in accordance with the terms and conditions provided by legislation or collective agreements and/or the practice on obtaining the right and granting of leave.[8] Replacement of the paid leave with compensation is only possible only upon termination of the employment relationship.[9] There is no reported case law on the subject dealt with in C‑539/12.

The only case in Cypriot courts reported on the issue of working time in general is Attorney General v Michalis Kongorizi[10] which examined the issue of on-call time i.e. periods where a worker is required to remain on call at the workplace, ready to carry out his or her duties if requested to do so. Oddly enough, the Supreme Court[11] citing relevant CJEU case law[12] found that remuneration is not an issue the CJEU has ruled on, or, for that matter any rule of EU or Cypriot Labour Law has dealt with. The Court thus concluded that this is an issue to be dealt with entirely on the basis of the private contract agreed between the two parties, according to which on-call time cannot be counted as working time. The SC ruled that the two cited CJEU case “were not concerned with the issue of remuneration but on matters of labour law”[13] and that the relevant provisions of the Law transposing the Working Time Directive do not have a bearing on the issue of remuneration, nor do they impose a duty to remunerate on-call time as equal to the actual execution of duties by the employee. 
In light of the above, it seems surprising that the Report of the European Commission on the implementation of the Working Time Directive,[14] has listed Cyprus as one of the countries where on-call time at the workplace is entirely treated as working time under national law as the Supreme Court does not recognise such a right unless spelled out in the private employment contract. 

2.    Abuse of the right to sick leave in the public sector

Following  reports from the Auditor General of the Republic about the excessive and exploitative use made of sick leaves by public servants in specific departments, the Minister of Finance stated that this is due to the lack of a monitoring system allowing for the collection and comparison of data as regards sick leaves. Currently, sick leaves and other leaves of public servants are recorded in the individual service files of the Ministries, which allows for the abusive use of regulations. He added that, when finances allow, the Public Administration Department will purchase new software to monitor the time of arrival and departure of employees at work which will render the monitoring of sick leaves more effective. According to the current system, extensions of sick leaves beyond the statutory 42 days, whether fully or partly paid, must be approved by medical councils  of governmental doctors following a request from the heads of departments; the Auditor-General however has established that the medical councils are, as a matter of practice, convened only after the employee returns to work following recovery from illness and in some cases the medical council which convened after the sick leave was taken was not able to verify that the sick leave was rightfully taken.

The practice of the Ministry of Finance to publicise anonymous data regarding sick leaves taken by Ministry personnel in 2013 is seen by the authorities as a ‘good practice’ likely to be adopted by other Ministries as well. An internal audit committee commissioned in 2012 with an investigation into the sick leaves of public servants has been unable to compile a final report because several departments have not responded to its request for data.

3. Trade Unions and SMEs protest against orders of the Ministry of Labour extending the working hours of retail shops

Trade unions of workers in retail trade (i.e. persons working in shops) have joined forces in mobilising against the policy of the Ministry of Labour of issuing orders regulating the working conditions of employees in the retail industry. In their mass mobilisation on 22 May 2014, the trade unions have issued protests against the repeated orders issued by the Ministry of Labour for the extension of working times of shops, which have essentially cancelled the law on retail trade and increased exploitation of workers, often leading to repeated violations of the minimum salary and of other institutionalised working rights in the retail industry (announcement S.E.V.E.T.T.Y.K. PEO and POVEK, the association of SMEs dated 22 May 2014).

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[1] Law revising the legal framework regulating the prevention and combating of the exploitation of persons and the protection of victims N. 60(I)/20013

[2] Law amending the Law on Legal Aid Ν. 64(Ι)/2014.

[3] Article 21A(1) of the Refugee Law as amended in 2014.

[4] Article 21(1)(a) (iA) of the Refugee Law prior to the 2014 amendment.

[5] Article 21A(2) of the Refugee Law as amended in 2014.

[6] Law on Annual Leave with Pay 1967, Ν. 8/1967.

[7] Law 63(I)/2002 as amended.

[8] Art. 8(1)

[9] Art. 8(2)

[10]22/05/2006, no. 34/2005, 55/2005

[11] The unanimous Court judgment was delivered by Constantinides J., on behalf of the three member judiciary consisting apart from the latter by Gavriilides and Papadopoulou.

[12] The Supreme Court referred to the ECJ cases of  Sindicato de Mdicos de AsistenciaPblica (Simap) v. Conselleria de Sanidad y Consumo de la GeneralidadValenciana, C-303/98, 3/10/2000, and Landeshauptstadt Kiel v. Norbert Jaeger, C-151/02, 9/9/2003.

[13]TheGreektextoftheSCjudgmentreadsasfollows: “στις αναφερθείσες αποφάσεις του ΔΕΚ που και εκείνες, [..] δεν αφορούσαν σε ζητήματα αποζημίωσης της εργασίας αλλά σε ζητήματα εργατικού δικαίου.”

[14]REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on implementation by Member States of Directive 2003/88/EC (‘The Working Time Directive’){SEC(2010) 1611 final} COM(2010) 802 final, Brussels, 21.12.2010, p.4.