Meaning of working experience in terms of annual leave
Regarding the meaning of the term “work experience” in terms of the right of the employee to annual leave, it is pointed out that this term is found in article 6 of National General Collective Employment Agreement dated 2001, to which par. 7 article 2 Mandatory Law 539/1945 refers and which remains in force at this issue. The provision is expressly referring to the employee’s right to annual leave of 25 working days, when his/her “working experience” exceeds 10 years in the same employer or 12 years in any employer.
The fact that National General Collective Employment Agreement, where “working experience” is found, applies strictly to employees who are employed under dependent employment agreement, in combination with the wording of the provision itself, which expressly refers to “employer”, seems to leave no doubt that “working experience” has exclusively the meaning of being employed under dependent employment agreement.
However this is not a generic definition of the term “work experience” and in fact there is not such definition given in one legal text/law provision, covering all cases where the term is found in practice and all meanings this term may have. On the contrary, it is found in several law provisions having a different meaning each time, depending on the matter/case each law provision regulates (for example its meaning differs when found in provisions concerning salary/pension etc).
Even in the above case, where the wording of the term is used to regulate the employee’s stricto sensu right to annual leave, although it may seem clear that working experience concerns only private sector employees, working under the specific legal status of dependent employment agreement, however a wider interpretation of the term may occur, on the grounds that in fact during the last years it is possible and often that a dependent employment agreement may be covered by another legal status working relationship.
In such cases where employees were engaged under another legal type of agreement (for example free lancers) rather than that of a dependent employment agreement, while this was the true nature of their working relationship, this working experience should be taken into account in favor of the employee for the calculation of days of annual leave, no matter how the previous employer had characterized such working relationship, provided that all other prerequisites for the recognition of working experience are met. In any case, given the difficulties to prove such a working relationship on behalf of the employee, it remains in the employer’s discretion to take into account any working experience the employee may have established under any legal status, even as a freelancer.
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