Employees and invoices

According to the content of the circular issued by the Ministry of Labor (F.80000 / oik.2460 /106) and the relevant circular of EFKA (DIEISFMM / 26/87160), when the income derives from a systematic -and not opportunistic – exercise of an occupational activity and only when the provision of services refers to one or two persons (natural or legal), only then exclusivity to the person/s who accept these services can be proved. As a consequence, the insured employees, related to one or two employers, are now required to declare each month to their invoices this working relationship, which indicates dependent employment.

 

Based on the above wording of the new provision, it becomes, first of all, particularly difficult and "problematic", from a legal standpoint, the distinction between “permanent” and “temporary” employment, since not a safe criterion is established for the employee (nor the EFKA, which will be invited to "ratify" the nature of employment), in order to make the correct classification of his/her employment. Secondly, the above measure is expected to cause a discord in the relationship between the two parties, as the "counterparty" employer should be convinced by the employee to undertake in advance the responsibility of the corresponding contributions and mention in written this employment relationship to the Analytical Periodic Report, which shall be submitted each month to EFKA.

If, for whatever reason, the employer refuses to proceed on the relevant registration in the Analytical Periodic Report (either because he/she disagrees with the permanent nature of the relationship, either because the cost of the social security contributions will be unprofitable), the employee should notify this refusal to EFKA and deliver the required evidence. Until, however, the competent bodies of EFKA rule definitively on the employment relationship, the insured employee will bear in total the social security contributions, as a self-employed person, which means that he/she will be asked to pay 20% of his income. The only case, where the employer is bound to undertake a part of the corresponding contributions, takes place when he/she employs someone as a salaried employee and gives additional remuneration, for which the employee is editing an invoice.

Following the above, it is definitely clear that many companies, which employ workers solely with invoices or insures them as employees and simultaneously grant them additional fees, based on invoices, are entering a deep questioning, for which the following could be noted:

  1. Facing the possibility to launch lengthy administrative procedures and litigation, it is required, in our opinion, at first, to launch as soon as possible an effective and fruitful dialogue between the two parties, aiming at the rational evaluation of the new contributions’ framework and its economic impact to the business. The aim of this valuation should be, in any case, the preservation of all working posts, by taking any appropriate measure from the company's side.
  2. In the case of company’s employees, who supplementary edit invoices (due to the additional fees that they receive), it should be the company to think very seriously to bear the burden of the social security contributions on their behalf.
  3. In the case of employees who solely edit invoices, the company should again exhaust, at first, any possibility of sharing contributions (13.33%) with the employees (6.67%), recognizing, however, the dependent nature of the job strictly to those, who actually fulfil the required criterion of "duration".
  4. As an "abusive exercise of a right" should be considered, in any case, the claim of the employee, who apparently retains a 'flexible' relationship with the employer, to share the total amount of the contributions due.
  5. If the nature of the work of some employees, who edit invoices, rests on the boundary between "permanent" and "temporary" employment, we believe that the application to the competent bodies of EFKA for resolving the dispute is one-way.
  6. The practice of transferring the social security contributions’ cost to the monthly salary of the employee (causing a reduction of up to 22%), in order to avoid the burden of contributions (13.33%), in cases of an evident and proven dependent employment, is reprehensible and legally checked, as a unilateral action, in any case. The adjustment, however, of the terms of the employment relationship and, therefore, the modification of the person, set to be responsible to pay social security contributions, since it is freely negotiated between the two parties, is an independent issue and is under discussion.

In any case, the role of the legal advisor to "illuminate" the "gray zone" between dependent and independent service providers appears more compelling than ever.

 


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