General Federation of employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) against Greece, Complaint No. 66/2011
(Adopted by the Committee of Ministers on 5 February 2013
at the 1161st meeting of the Ministers' Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 21 February 2011 by the General Federation of employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) against Greece,
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concludes that there is a:
- violation of Article 7§7 of the 1961 Charter (unanimously)
The young persons aged between 15 and 18 who are employed on apprenticeship contracts are excluded from the scope of the labour legislation and are not entitled to three weeks’ annual holiday with pay.
Therefore, there is a violation of Article 7§7 of the 1961 Charter.
- violation of Article 10§2 of the 1961 Charter (unanimously)
Under Article 10§2, young people have the right to access apprenticeship and other training arrangements (Conclusions XIV-2, Interpretative statement of Article 10§2, p. 61).
Apprenticeship is defined for the purpose of assessing conformity with Article 10§2 as involving “training based on a contract between the young person and the employer” which is regulated by a body of rules which govern the length of the apprenticeship, the division of time between practical and theoretical learning, the manner in which apprentices are selected, the selection and qualifications of trainers; the remuneration of apprentices; and termination of the apprenticeship contract.
Besides the traditional apprenticeship system, other training arrangements can also be implemented in order to satisfy Article 10§2 as long as they combine both theoretical and practical vocational training and maintain close ties between training establishments and the working world (Conclusions XIV-2, Interpretative statement of Article 10§2, p. 60).
Except for the length of the apprenticeship contracts (one year) and the matter of remuneration (70% of the minimum wage or daily wage set by the National General Collective Agreement), Section 74§9 does not regulate the other key aspects listed above of an apprenticeship relationship: it merely states that such contracts are to be concluded to enable the young persons concerned to acquire vocational skills.
The provisions of Act No. 3475/2006 do not provide any indication as to how time should be divided between theoretical and practical instruction, how apprentices should be selected, how trainers should be selected, and how apprentices should be remunerated. Furthermore, the relationship between the secondary vocational training introduced by the above-mentioned act and the “apprenticeship contracts” referred to in Section 74§9 of Act No. 3863/2010 are not clearly delineated. With this in mind, the apprenticeship system provided for in Act No. 3475/2006 cannot be deemed to “compensate” for the deficiencies noted in relation to the “special apprenticeship contracts”.
Since the provisions of Section 74§9 do not provide for an adequate system of apprenticeship and other systematic arrangements for training young boys and girls in their various forms of employment, they are not in conformity with Article 10§2 of the 1961 Charter.
Therefore, there is a violation of Article 10§2 of the 1961 Charter.
- violation of Article 12§3 of the 1961 Charter (unanimously)
The provisions contained in Section 74§9 represent a substantial change in the social security system, which appear to establish a distinct category of workers with qualified entitlement to social security.
Changes to the social security system are first of all assessed under Article 12§3 which provides for the obligation to raise progressively the social security system to a higher level (Conclusions XIV-1, Interpretative statement of Article 12, p. 47 ; Conclusions XVI-1, Interpretative statement of Article 12, p. 11). In that respect, the complainants’ allegations, in substance, concern Article 12§3 and not Article 12§2 as originally argued.
Article 12§3 requires State Parties to “endeavour to raise progressively the system of social security to a higher level”. In this respect, it may be necessary to introduce measures to consolidate public finances in times of economic crisis, in order to ensure the maintenance and sustainability of the existing social security system. However, any such measures should not undermine the core framework of a national social security system or deny individuals the opportunity to enjoy the protection it offers against serious social and economic risk. Therefore, any changes to a social security system must maintain in place a sufficiently extensive system of compulsory social security and refrain from excluding entire categories of worker from the social protection offered by this system) (Conclusions XVI-1, Interpretative statement of Article 12, p. 11).
Financial consolidation measures which fail to respect these limits constitute retrogressive steps which cannot be deemed to be in conformity with Article 12§3.
The highly limited protection against social and economic risks afforded to minors engaged in ‘special apprenticeship contracts’ under Section 74§9 of Act No. 3863/2010 has the practical effect of establishing a distinct category of workers who are effectively excluded from the general range of protection offered by the social security system at large and that this represents a deterioration of the social security scheme which does not fulfil the criteria to be compatible with Article 12§3 of the 1961 Charter.
Therefore, there is a violation of Article 12§3 of the 1961 Charter.
- violation of Article 4§1 of the 1961 Charter in the light of the non-discrimination clause of the Preamble to the 1961 Charter (unanimously)
The question of fair remuneration is assessed separately from the question of age discrimination.
In order to be considered fair within the meaning of Article 4§1, a wage must be above the poverty line in a given country i.e. 50% of the national average wage (Conclusions XIV-2, Interpretative Statement of Article 4§1, p. 50-52). In addition, in principle a wage must not fall below 60% of the national average wage (including special bonuses and gratuities and after deduction of taxes and social security contributions; social transfers – e.g. social security allowances or benefits – are taken into account only when they have a direct link to the wage), unless a State is able to demonstrate that the wage is sufficient for a decent standard of living, e.g. by providing detailed information on the cost of living. However, a net wage which is less than half the net national average wage will be deemed to be unfair. When a national minimum wage exists, its net value is used as a basis for comparison with the net average wage. The yardstick for comparison is otherwise provided by the minimum wage determined by collective agreement.
From a general point of view, it is permissible to pay a lower minimum wage to younger persons in certain circumstances (e.g. when they are taking part in an apprenticeship scheme or otherwise engaged in a form of vocational training). Such a reduction in the minimum wage may enhance the access of younger workers to the labour market and may also be justified on the basis that it reflects a statistical tendency for them to incur lower expenditure on average than other categories of workers when it comes to housing, family support and other living costs. However, any such reduction in the minimum wage should not fall below the poverty level of the country concerned.
On the basis of Ministerial Council Act No. 6/2012, Section 74§8 of Act No. 3863/2010 is abolished and the reduction of 32% of the minimum wage set out in Council Act No. 6/2012 now applies to all employed persons under the age of 25.
Taking this data and the submissions of the parties into account, and considering in particular the extent to which the minimum wage for younger workers is now substantially below the national minimum wage, the minimum wage for younger workers now appears to have fallen below the poverty level.
The provisions of Section 74§8 of Act No. 3863/2010 and now Section 1§1 of Ministerial Council Act No 6 of 28-2-2012 constitute a violation of Article 4§1 of the 1961 Charter insofar as they provide for the payment of a minimum wage to all workers below the age of 25 which is below the poverty level.
In respect of the allegation of age discrimination, Article 1§2 of the 1961 Charter being a substantial provision belonging to Parts I and II of the Charter – contrary to Article E of the Revised Charter which belongs to Part V – cannot be taken together with any other substantial provisions of the 1961 Charter in the same vein as Article E can.
With this in mind, any allegation of discrimination related to the implementation of Article 4§1 of the 1961 Charter can only be read in the light of the non-discrimination clause of the Preamble to the 1961 Charter. Moreover, the allegation, presented by the complainants, of a violation of Article 4§1 read in conjunction with Article 1§2 is, in substance, an allegation of a violation of Article 4§1 read in the light of the Preamble to the 1961 Charter, which in respect of discrimination reads as follows: “(…) Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin; (…)”.
Providing for the payment of a lower minimum wage to workers below the age of 25 involves a difference of treatment based on age. However, it is open to a State to demonstrate objective justification for the payment of a lower minimum wage to younger workers, if this can be shown to further a legitimate aim of employment policy and be proportionate to achieve that aim. Applying this test to the facts at issue, the Committee is of the opinion that the less favourable treatment of younger workers at issue is designed to give effect to a legitimate aim of employment policy, namely to integrate younger workers into the labour market in a time of serious economic crisis. However, the extent of the reduction in the minimum wage, and the manner in which it is applied to all workers under the age of 25, is disproportionate even when taking into account the particular economic circumstances in question.
The provisions of Section 74§8 of Act No. 3863/2010, and now Section 1§1 of Ministerial Council Act No. 6 of 28.2.2012, are not in conformity with Article 4§1 in the light of the non-discrimination clause of the Preamble of the 1961 Charter.
Therefore, there is a violation of Article 4§1 of the 1961 Charter in the light of the non-discrimination clause of the Preamble to the 1961 Charter.
- non-violation of Article 1§1 of the 1961 Charter (unanimously)
Article 1§1 is concerned with the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment. It is not concerned – as the complainants assert – with the protection afforded by labour and/or social security law. As a result, the arguments adduced by the complainants to the effect that the ‘special apprenticeship contracts’ at issue in this complaint do not provide adequate job security or adequate social protection, are not relevant to the question of whether the situation in Greece is in conformity with Article 1§1 of the 1961 Charter.
Furthermore, States enjoy a wide margin of appreciation when it comes to the design and implementation of national employment policies.
In view of the above, Article 74§9 of Act No. 3863/2010 does not constitute a violation of Article 1§1 of the 1961 Charter.
- non-violation of Article 7§§2 et 9 of the 1961 Charter (unanimously)
In view of this information provided by the respondent government, the situation satisfies the requirements of age limit in respect of dangerous or unhealthy occupations provided for by Article 7§2 as well as the requirements regarding regular medical control provided for by Article 7§9 of the 1961 Charter.
Therefore, there is no violation of Article 7§§2 and 9 of the 1961 Charter.
Having regard to the information communicated by the Greek delegation during the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 25 October 2012,
1. takes note of the information provided by the respondent government on the follow-up to the decision of the European Committee of Social Rights (see Appendix to the resolution);
2. notes that the respondent government states that the measures constituting a violation of the 1961 Charter are of a provisional nature and that they will be revoked as soon as the economic situation of the country would allow;
3. calls for Greece to revoke the above-mentioned measures as soon as possible and keep the Committee of Ministers regularly informed of all progress made.
Appendix to Resolution CM/ResChS(2013)3
Reply by Greece to the conclusions of the European Committee of Social Rights (ECSR), submitted by the Representative of Greece at the GR-SOC meeting of 25 October 2012
(cf. document GR-SOC(2012)CB5 of 5 November 2012, §§12-13)
“12. The Greek delegation (…) stated that the Greek authorities did not contest the conclusions of the ECSR and accepted that the specific labour laws of 2010 in question were not in conformity with the Charter. The delegation pointed out that this situation had come about because of the financial vortex threatening the survival of its country’s economy. (...).
13. Against this background, the Greek delegation reiterated the fact that its government accepted the conclusions of the ECSR concerning the issues of non-conformity with the European Social Charter. Secondly, it pointed out that the measures were of a provisional nature. Thirdly, it stated that the Greek Government had the firm intention to revoke these measures as soon as the economic situation of his country would allow. However, in this respect, and with regard to the political and economic constraints, it was not possible to envisage a set timeframe, although it was unlikely that tangible results in Greece would be apparent before 2015. (…)”.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.