The principle of the most favourable rule as a basic principle of Greek Labour Law

By Evlampia Tsolaki, Attorney at 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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