Explanatory Memorandum to COM(2017)797 - Transparent and predictable working conditions in the EU

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2017)797 - Transparent and predictable working conditions in the EU.
source COM(2017)797 EN
date 21-12-2017



Contents

1.

CONTEXT OF THE PROPOSAL



The world of work has evolved significantly since the adoption of Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship ("Written Statement Directive"). The last 25 years have brought about a growing flexibilisation of the labour market. In 2016 a quarter of all employment contracts were for 'non-standard' forms of employment and in the last ten years more than half of all new jobs were 'non-standard'. 1 Digitalisation has facilitated the creation of new forms of employment whereas demographic changes have resulted in a greater diversity of the working population. The flexibility coming with new forms of employment has been a major driver of job creation and labour market growth. Since 2014, more than five million jobs have been created, of which almost 20% in new forms of employment. The adaptability of new forms of employment to changes in the economic context has enabled new business models to develop, including in the collaborative economy, and has offered entry into the labour market to people who previously would have been excluded. The employment level in the EU is an all-time high, with 236 million men and women employed.

However, these trends have also led to instability and an increased lack of predictability in some working relationships, especially for workers in the most precarious situations. Inadequate legal frameworks can subject workers in non-standard employment to unclear or unfair practices and make it difficult to enforce their rights. Between 4 and 6 million workers are on on-demand and intermittent contracts, many with little indication when and for how long they will work. Up to 1 million are subject to exclusivity clauses, preventing them from working for another employer. 2 Only a quarter of temporary workers transition to a permanent post, and the rate of involuntary part-time had reached some 28% by 2016. 3 More flexible work arrangements can create uncertainty as to applicable rights. 4

In response some Member States have put in place new regulations and national social partners have developed new collective agreements, leading to an increasingly diverse regulatory system across the EU. This increases the risk of competition based on undercutting social standards, which has harmful consequences also for employers, who are subject to unsustainable competitive pressure, and for Member States, who forego tax revenue and social security contributions. The challenge is to ensure that dynamic innovative labour markets underpinning EU's competitiveness are framed in a way that offers basic protection to all workers, longer-term productivity gains for employers and allows for convergence towards better living and working conditions across the EU.

This initiative is one of Commission's key actions to follow up on the European Pillar of Social Rights, jointly proclaimed by the European Parliament, the Council and the Commission at the Social Summit for Fair Jobs and Growth in Gothenburg on 17 November 2017. 5 The Pillar serves as a compass for the renewed upwards convergence in social standards in the context of the changing realities of the world of work. This Directive contributes mainly to the Pillar's Principle 5 on 'Secure and adaptable employment' and Principle 7 on 'Information about employment conditions and protection in case of dismissals'. 6 The initiative was announced in the Letter of Intent of President Juncker and First Vice-President Timmermans of 13 September 2017 and is part of the Commission's Work Programme.

The proposal addresses two interlinked challenges. Firstly, the evaluation of Directive 91/533/EEC conducted under the Commission's Regulatory Fitness and Performance Programme (REFIT) 7 identified weaknesses in the personal and material scope of the Directive and indicated how its effectiveness could be improved. Secondly, the public consultation on the European Pillar of Social Rights 8 highlighted gaps between the current EU social acquis and recent developments on the labour market. This was also emphasised in the European Parliament's Resolution of January 2017 on the Pillar. The Parliament called to extend existing minimum standards to new kinds of employment relationships, improve enforcement of EU law, increase legal certainty across the single market, and prevent discrimination by complementing existing EU law to ensure for every worker a core set of enforceable rights, regardless of the type of contract or employment relationship. 9 The Resolution of the European Parliament on working conditions and precarious employment of July 2017 calls on the Commission to revise the Written Statement Directive to take account of new forms of employment. 10 The European Economic and Social Committee and the Committee of the Regions in their Opinions on the Pillar highlighted gaps in protection for workers and the need to act at EU level to set a framework for fair working conditions and to strike a balance between flexibility and security. 11

On 26 April 2017 and 21 September 2017, respectively, the Commission launched two phases of the consultation of the European social partners on the possible direction and on the contents of Union action as provided for under Article 154 of the Treaty on the Functioning of the European Union (TFEU). 12 The social partners did not initiate the process of dialogue with the aim of establishing contractual relations, including agreements, on the topic as provided for in Article 155 TFEU. Building on the views expressed in the social partners' consultation, the Commission is bringing forward this proposal for a Directive in accordance with the provisions of the TFEU.

The general objective of the proposed Directive is to promote more secure and predictable employment while ensuring labour market adaptability and improving living and working conditions.

The specific objectives through which the general objective would be addressed are:

to improve workers' access to information concerning their working conditions;

to improve working conditions for all workers, notably those in new and non-standard employment, while preserving scope for adaptability and for labour market innovation;

to improve compliance with working conditions standards through enhanced enforcement; and

to improve transparency on the labour market while avoiding the imposition of excessive burdens on undertakings of all sizes.

The proposed Directive will replace the Written Statement Directive with a new instrument that ensures transparency about working conditions for all workers and defines new substantive rights to improve predictability and security of working conditions, particularly for those in precarious employment. It does so through the provision in Chapter II of updated essential information about the employment relationship to all workers in the Union, including the estimated 2-3 million currently excluded from the scope of the Written Statement Directive, which leaves the notion of 'employee' and 'employment relationship' to be defined by Member States' law. The personal scope of the Directive will be clarified by defining a notion of 'worker' based on established case-law of the Court of Justice of the European Union (CJEU) for determining worker status, and extended by reducing the possibilities for Member States to exclude workers in short or casual employment relationships. A new set of minimum requirements in Chapter III establishes a limit to the duration of any probationary period, a general rule that a worker cannot be prevented from taking up work with another employer outside the work schedule, rights to greater predictability of working time and reasonable advance notice for those on variable work schedules, a possibility to request a transition to a more predictable and secure form of employment, and a right to mandatory training without cost. The rights are underpinned by provisions that address weaknesses in the enforcement of Directive 91/533/EEC and adapt enforcement measures from other elements of the EU social acquis which address comparable situations. 13

Rather than addressing a particular type of employment, as is done in the Directives on part-time or fixed-term or temporary agency work, 14 the proposed Directive will ensure a basic level of universal protection across existing and future contractual forms. Such a Directive will be a more effective instrument than separate legislative initiatives targeted at specific forms of employment that may easily become superseded by the rapid pace of changes on the labour market. The proposed Directive should set the legal framework for a future positive development of new adaptable forms of employment.

This proposal is expected to offer a range of benefits. All workers, including those in short-term and casual employment relationships, will benefit from clarity about their working conditions and new minimum standards. While possibly losing some flexibility at the margin, employers are expected to benefit from more sustainable competition with greater legal certainty and from a more motivated and productive workforce, with increased contractual stability and retention. Society at large would benefit from a wider base for taxation and social security contributions.

·Consistency with existing provisions in the policy area

The proposed Directive complements the following acts of EU secondary legislation :

3.

Directive 96/71/EC on the posting of workers in the framework of the provision of services


Article 6 of the proposed Directive specifies the written information that must be provided to workers being sent abroad, including those being posted to another EU Member State, drawing on the relevant provisions of Directive 96/71/EC, as recommended in the REFIT evaluation.

4.

Council Directive 97/81/EC on part-time work and Council Directive 1999/70/EC on fixed-term work


Article 10 of the proposed Directive complements provisions of those two directives aimed specifically at part-time workers and fixed-term workers, establishing the possibility for a worker to request a form of employment with more predictable and secure working conditions, where available, and to receive a written response from the employer.

5.

Directive 2008/104/EC on temporary agency work


The REFIT evaluation found that the Written Statement Directive could take better account of Directive 2008/104/EC by explicitly covering agency workers and specifying that the user undertaking has the obligation to inform the agency worker directly on the conditions of employment. This is reflected in Article 2 of the proposed Directive, which sets out criteria for defining worker and employer status and in Article 1 which specifies that the functions of employer may be fulfilled by more than one entity.

In addition, the provisions in Chapter III of the proposed Directive support the achievement of an organisation of working time protective of safety and health of workers, addressed by Directive 2003/88/EC concerning certain aspects of working time.

As regards trainees, the Commission notes that they are already subject to protection under the Council Recommendation of 10 March 2014 on a Quality Framework on traineeships. The Commission has proposed a similar framework for apprentices. 15

The enforcement provisions contained in Articles 13 to 18 of the proposed Directive are derived from, and complement, provisions in the existing EU social acquis as detailed in the section describing the articles of the proposed Directive.

·Consistency with other Union policies

The proposed Directive contributes to implementing the following Principles set out in the European Pillar of Social Rights:

Principle 1: Education, training and lifelong learning. The information requirements in Article 3 are extended to cover training provided by the employer and Article 11 requires the Member States to ensure that employers provide cost-free mandatory training to their workers, as required in relevant Union or national legislation or collective agreements.

Principle 2: Gender equality. The workforce engaged in new and non-standard forms of employment, who would particularly benefit from the material rights created in Chapters III to VI of the proposed Directive, is predominantly female. 16 The Directive will therefore contribute to the Principle of improving equality of treatment and opportunities regarding participation in the labour market.

Principle 5: Secure and adaptable employment. The extension of scope of the proposed Directive set out in Articles 1 and 2 addresses the Principle that workers have a right to fair and equal treatment regarding working conditions, access to social protection and training 'regardless of the type and duration of the employment relationship'. The overall content of the proposed Directive is intended to strike a balance between enhancing rights for workers and maintaining the 'necessary flexibility for employers to adapt swiftly to changes in the economic context' referred to in Principle 5(b), including by allowing the possibility for modifications to the minimum requirements on working conditions by means of collective agreements (Article 12). The proposed Directive also addresses Principle 5(d): 'Employment relationships that lead to precarious working conditions shall be prevented, including by prohibiting abuse of atypical contracts. Any probation period should be of reasonable duration.' The new material rights to increased predictability, to request a new form of employment, as well as the limitations on the use of exclusivity clauses and incompatibility clauses address the first part. Setting a six-month limit for probationary periods addresses the second.

Principle 7: Information about employment conditions and protection in case of dismissals. The proposed Directive reinforces the current obligation to provide written information, by extending and updating the scope of the information to be provided as a minimum, and by reducing the deadline for its provision from 2 months to the first day of the employment relationship, so addressing the element of Principle 7(a) that the information must be provided 'at the start of employment.'

Principle 8: Social dialogue and involvement of workers. Social partners were consulted under Article 154 TFEU on the possible scope of Union action to revise the Written Statement Directive, and their responses were taken into account in the development of the Commission's proposal. Article 12 of the proposed Directive provides flexibility for the minimum requirements set out in Chapter III to be varied by collective agreement, as long as the result respects the overall protection afforded by the proposed Directive.

Other initiatives contributing to the implementation of the European Pillar of Social Rights are closely related to and complementary to this proposed Directive, notably the legislative proposal on work-life balance of parents and carers (COM(2017)253 final), a social partners' consultation on access to social protection for workers and the self-employed (C(2017)2610 final and C(2017)7773 final), and an interpretative communication on working time (C(2017)2601 final). The proposal for a Directive on work-life balance for parents and carers introduces a right for workers with children up to at least 12 years old, to request flexible working arrangements for caring purposes; employers then have a duty to consider and respond to requests for flexible working arrangements, taking into account the needs of both employers and workers, and to justify any refusal of such a request. Employers would also have the obligation to consider and respond to requests to return to the original working pattern. The proposed Directive on transparent and predictable working conditions would complement this by creating a possibility for workers to request a more secure, rather than a more flexible, form of work.

Finally, account has been taken of the proposal on the revision of the posting of workers Directive (COM(2016)128 final) and of the proposals made under the transport 'mobility package' of 31 May 2017, in particular the proposed specific rules concerning the posting of drivers in the road transport sector (COM(2017)278 final).

6.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY


·Legal basis

The proposal is based on Article 153(2)(b) TFEU, which provides for the adoption of directives setting minimum requirements with respect to, inter alia, 'working conditions' as set out in Article 153(1)(b) TFEU, while avoiding imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

·Subsidiarity

Information obligations relating to working conditions have been established at EU level by Directive 91/533/EEC. The REFIT evaluation of that Directive has confirmed that EU-level action in this area remains necessary, in line with the principle of subsidiarity. Amendments are necessary to bring that Directive into line with developments on the labour market since its adoption in 1991, and to address the shortcomings identified in the REFIT evaluation.

The additional material rights created in Chapter III are justified at EU level insofar as action solely by Member States in response to new and non-standard forms of employment would not necessary have the same level of protection in terms of transparency and predictability and would risk increasing divergences between Member States with potential competition on the basis of social standards. Business would therefore continue to compete on an uneven playing field, which would hamper the operation of the internal market.

The proposed Directive is based on a minimal degree of harmonisation of Member State systems which respects Member States' competences to set higher standards and provides the possibility for social partners to vary the mix of material rights and obligations by collective agreement. In line with Article 153(2)(b) TFEU, it will support and complement the activities of the Member States through minimum requirements for gradual implementation.

·Proportionality

The proportionality principle is fully respected as the scope of the proposal is limited to ensuring the provision of consistent information to workers about their working conditions, and to ensuring basic rights for workers, the absence of which could create a race to the bottom in social standards. The proposed Directive includes measures for mitigating burdens and supporting compliance. As indicated in the Impact Assessment, the costs are reasonable and justified in light of the accrued and longer-term benefits in terms of more secure employment, increased productivity and simplified procedures for both workers and employers, matching the wider social ambitions of the EU.

The proposal leaves the Member States the option of keeping or setting more favourable standards for workers and taking into account features specific to their national situations, and allows for modifications in the composition of the material rights by means of collective agreements. As a consequence, it leaves room for flexibility as regards the choice of actual implementing measures.

·Choice of the instrument

Article 153(2)(b) in combination with 153(1)(b) TFEU foresees explicitly that Directives are the legal instrument to be used for establishing minimum requirements concerning working conditions to be gradually implemented by Member States.

7.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS


·Ex-post evaluations/fitness checks of existing legislation

A REFIT evaluation of the Written Statement Directive was published in April 2017. 17 It concluded that the Directive is considered relevant by all stakeholders and that compliance with the Directive in Member States and across sectors is medium to high. The Directive has been to a significant extent effective in reaching its objectives. Its effectiveness could be further enhanced through a revision of its scope to ensure a broader coverage of workers, including those in new forms of employment, shortening the two-month deadline for providing information to workers and improving enforcement by revising the means of redress and sanctions in cases of non-compliance. Regarding efficiency, the transposition of the Directive does not appear to have significantly increased costs for companies. On external coherence, there is scope for further convergence with the rules covering posted workers, temporary agency workers and trainees.

The evaluation further confirmed that the Directive brings clear EU added value. Having minimum standards at EU level on information to employees is essential as it increases certainty for both employers and employees and prevents a detrimental race to the bottom between Member States in terms of working conditions. It also increases predictability for businesses and facilitates the mobility of workers within the internal market.

·Stakeholder consultations

Between 26 January and 20 April 2016, the Commission carried out a public consultation on the Written Statement Directive. A summary of these responses is annexed to the REFIT evaluation.

An open public consultation on the Commission's proposal for a European Pillar of Social Rights ran from March to December 2016. As this public consultation clearly revealed, 18 there is a growing need to define and apply appropriate rights for many workers in new and non-standard forms of employment relationships. Such contractual arrangements are creating opportunities for people to enter or remain in the labour market and the flexibility they offer can be a matter of personal choice. However, inadequate regulation means that many people in work are stuck in legal loopholes, which may make them subject to unclear or unfair practices and make it difficult to enforce their rights.


Pursuant to Article 154 TFEU, the Commission undertook a two-phase consultation with the social partners on a possible revision of the Written Statement Directive.

The views of the social partners were mixed on the need for legislative action to revise Directive 91/533/EEC and there was no agreement among social partners to enter into direct negotiations to conclude an agreement at Union level.

In both phases trade unions were in favour of clarifying and broadening the personal scope of the Directive, in particular through removing exclusions from personal scope and including criteria to assist with identifying the existence of an employment relationship. In addition, they argued for the inclusion of self-employed in the scope of application. With regard to the information package, trade unions agreed with the list suggested in the Commission's consultation document and argued for further additions to the package. They called for written statements to be provided prior to the start of the work or immediately on signing the contract. The need to improve access to sanctions and means of redress was acknowledged, including by calling for the introduction of a presumption of employment in case the employer fails to provide a written statement. Finally, they were strongly in favour of new minimum rights aimed at improving transparency and predictability of working conditions. They however requested more rights than those presented in the second consultation document including a complete ban on forms of contractual arrangements not guaranteeing workers a minimum of paid hours and a right to adequate remuneration.

In both phases employers’ organisations opposed the extension of the scope of application of the Directive and the insertion of a definition of worker, based on concerns related to flexibility for business and job creation potential as well as to subsidiarity. A majority did not support amending the information package nor reducing the 2 months' deadline. No organisation supported changes at EU level to the system of redress and sanctions. With very limited exceptions, employer organisations were opposed to the inclusion of new minimum rights in a revised Directive. For that reason, they preferred not to express views on specific minimum rights set out in the consultation document, arguing that such issues were a matter of national competence and that it was not necessary, or even contrary to the principle of subsidiarity, for the EU to act in these fields.

·Collection and use of expertise

The Commission awarded a contract for the analysis of the costs and benefits of possible EU measures contained in a revised Directive. It has also reviewed some principal sources of analysis and data concerning new and non-standard employment, notably those compiled by the European Parliament, 19 the European Foundation for the Improvement of Living and Working Conditions (Eurofound), 20 the International Labour Organisation (ILO), 21 and the Organisation for Economic Cooperation and Development (OECD). 22

·Impact assessment

The Impact Assessment was discussed with the Regulatory Scrutiny Board (RSB) on 29 November 2017. The RSB issued a positive opinion with comments, which have been addressed by further clarifying the scope, the choice of options and expected benefits of this initiative and explaining how potential unintended consequences of the initiative could be mitigated. 23

The combination of measures put forward in this proposal was assessed in the Impact Assessment as the most effective, efficient and coherent. The quantitative analysis of the preferred combination of measures shows that a substantial improvement of working and living conditions is expected. Most notably, at least 2-3 million non-standard workers will enter into the scope of the Directive. Enhanced predictability for some 4-7 million workers should have a positive impact on work-life balance and health. Some 14 million workers might request a new form of work. Lack of exclusivity clauses will allow some 90,000-360,000 on-demand workers to seek additional work and earn 355-1,424 million EUR per year extra. Workers' right to receive cost-free mandatory training would be confirmed and they would have easier access to redress. Employers would benefit from more sustainable competition, increased legal certainty and an overall improvement in transparency in the labour markets. Non-quantified benefits for employers include higher retention and loyalty, improved worker relations, fewer complaints and court cases, better resource planning, contributing to an overall increase in productivity.

The expected costs of the preferred combination of options are for employers: the cost of issuing a new or revised written statement is expected to be 18-153 EUR for SMEs and 10-45 EUR for larger companies. Companies would also have one-off costs related to familiarisation with the new Directive: an average of 53 EUR for an SME and 39 EUR for a larger company. Costs of responding to requests for a new form of employment are expected to be similar to those deriving from issuing a new written statement. Employers anticipate also some modest indirect costs (legal advice, revised scheduling systems, HR management time, information for staff). Flexibility will only be lost at the margin (i.e. for the small proportion of employers making extensive use of the most flexible forms of employment). The preferred combination of options takes into account unintended effects and includes mitigating measures. No significant aggregate impacts on wages are expected, though reduced underemployment, lower incidence of exclusivity clauses and more predictable working conditions can be expected to allow increased individual earnings. No costs are expected to be incurred by workers.

The specific impacts per Member State would depend on a number of factors, including the extent of necessary legislative adjustments, the incidence of non-standard forms of employment, and the broader socioeconomic context. Overall, benefits can be expected in terms of a reduction in undeclared work as the proposed measures will facilitate inspection and enforcement. At EU level, the value of undeclared work brought into formal economy is estimated at 40-120 million EUR per year. Associated benefits could amount to 8-25 million EUR annually in increased tax revenues and 4-24 million EUR annually in reduced social security payments. There could also be an increase of some 46-185 million EUR per year in tax revenues as on-demand workers will be able to seek additional employment. Non-quantified benefits could include increased productivity, enhanced adaptability of the workforce, increased mobility both within the national labour markets and across the EU, and enhanced social cohesion. Enhanced access to redress could improve the consistency in the application of the legal framework. Some modest one-off transposition and ongoing implementation costs can be expected as legal frameworks of Member States will need to be adapted.

·Regulatory fitness and simplification

As this is a revision of an existing piece of legislation, the Commission has looked at opportunities to simplify and reduce burdens. The analysis shows that costs deriving from the Directive are modest and no evidence was presented that cheaper ways of fulfilling the same objectives with the same effectiveness were available. However, there is scope to clarify and increase the transparency and legal predictability of employment contracts. The clarification of the scope of the Directive will make the regulatory framework easier to understand and more predictable. Also, concrete simplification elements have been included in the Directive. Given the limited availability of data, the simplification elements have not been quantified, but are explained throughout the explanatory memorandum. Regarding the establishment of new obligations, a lighter regime for SMEs has been foreseen for a request to transition to another form of employment, and templates and models for written statements and to make information on national laws or provisions and relevant collective agreements available to employers in an accessible format are to be provided to reduce burdens on employers. Based on the Impact Assessment, such mitigation measures could decrease the cost of producing written statements by 30 to 40%.

·Fundamental rights

The objectives of this proposal are in line with the Charter of Fundamental Rights of the European Union, in particular Article 31 on fair and just working conditions, which provides that ‘Every worker has the right to working conditions which respect his or her health, safety and dignity’.

2.

BUDGETARY IMPLICATIONS



The proposal does not require additional resources from the European Union's budget.

8.

5. OTHER ELEMENTS


·Monitoring, evaluation and reporting arrangements

Member States must transpose the Directive two years after the adoption and communicate to the Commission the national transposition measures via the MNE-Database. In line with Article 153(3) TFEU they may entrust the social partners with the transposition through collective agreements.

To assess the effectiveness with which this initiative achieves its general and specific objectives, the Commission has identified core progress indicators to monitor successful implementation. 24 These indicators will be regularly monitored by the Commission and serve as the basis for its evaluation of and reporting on the impact of the Directive eight years after its entry into force.

·Detailed explanation of the specific provisions of the proposal

Chapter I – General provisions

Article 1 – Purpose, subject matter and scope

Paragraph 3 allows Member States not to apply the provisions of the Directive to an employment relationship of up to 8 hours per month. This derogation replaces the existing possibilities for exclusion from the personal scope in Article 1 of Directive 91/533/EEC (employment relationship not exceeding one month or a working week not exceeding 8 hours or of a casual and/or specific nature), which according to the REFIT evaluation were applied inconsistently and excluded increasing numbers of workers. 25 Paragraph 4 provides that, where the working hours are not determined in advance, for instance in on-demand employment, that derogation should not apply because the duration of the work is not known.

Under paragraph 5 the definition of employer in Article 2 is complemented by a clarification that the function of employer for the purpose of the proposed Directive may be fulfilled by more than one entity. For instance, in the case of a temporary agency worker, the information requirements in Article 3 may be fulfilled partly by the temporary work agency and partly by the user undertaking. In order to avoid placing disproportionate burdens on private households, Member States may disapply the rights to request a new form of work and to mandatory training without charge and the application of favourable presumptions in case of missing information with respect to natural persons employing domestic workers.

Directive 2009/13/EC implementing the Social Partner Agreement on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC and Directive (EU) 2017/159 implementing the Social Partners' Agreement on the Work in Fishing Convention contain specific provisions on seafarers’ employment agreements and fishermen’s work agreements. Therefore, paragraph 7 of Article 1 clarifies that Chapter II of the proposed Directive will apply without prejudice to these directives.

Article 2 – Definitions

This article lays down criteria for establishing worker status for the purpose of the proposed Directive. These criteria are based on the case law of the CJEU as developed since case C-66/85 Lawrie-Blum, as most recently recalled in C-216/15 Ruhrlandklinik. It is necessary to specify such criteria in view of the findings of the REFIT evaluation that the scope of application of the Written Statement Directive varies among Member States depending on their concepts of employee, employment relationship and employment contract, 26 and risks excluding growing numbers of workers in non-standard forms of employment, such as domestic workers, on-demand workers, intermittent workers, voucher-based workers and platform workers. The proposed Directive would apply to such workers, as long as they fulfil the criteria set out above. 27

9.

Chapter II - Information on the employment relationship


Article 3 – Obligation to provide information

This provision updates the minimum information requirements set out in Article 2 of the Written Statement Directive, taking into account results of the REFIT evaluation 28 and the inputs from Social Partners, by introducing new elements relating to:

·duration and conditions of probation (Article 3.2.f);

·training entitlement (Article 3.2.g);

·arrangements for overtime and its remuneration, in the light of the judgment of the CJEU in Case C-350/99 Lange that such information forms part of the essential aspects of the employment relationship about which the worker should be informed in the written statement (Article 3.2.k);

·key information about the determination of variable working schedules, to take account of the increasing prevalence of such types of work organisation such as casual or zero-hours contracts or work in the collaborative economy (Article 3.2.l);

·information about the social security system(s) receiving contributions (Article 3.2.n).

In addition, the information requirements relating to the place of work (Article 3.2.b) have been modernised to allow for forms such as platform work, where the workplace is not determined by the employer, and the procedure for termination of employment (3.2.i) has been included.

Article 4 – Timing and means of information

Paragraph 1 replaces the current maximum timeframe of 2 months for provision of a written statement set out in Article 3 of Directive 91/533/EEC with the first day of the employment relationship, in line with Principle 7 of the European Pillar of Social Rights referred to above. It also sets out that the statement may be provided electronically.

In order to reduce burdens on employers, and in line with the recommendation in the REFIT evaluation, 29 paragraphs 2 and 3 require Member States to produce templates and models for the written statement and to make information on national laws or provisions and relevant collective agreements available to employers in an accessible format.

Article 5 –Modification of the employment relationship

This provision updates Article 5 Modification of aspects of the contract or employment relationship of Directive 91/533/EEC, to require that all modifications to the working conditions notified under Article 3 or to the information provided under Article 6 of the proposed Directive must be transmitted at the latest on the day they take effect, rather than up to two months afterwards as in the current Directive.

Article 6 – Additional information for workers posted or sent abroad

This provision updates Article 4 Expatriate workers of Directive 91/533/EEC, to align with the relevant provisions of Directives 96/71/EC on posted workers and the related enforcement Directive 2014/67/EU. In order to limit burdens on employers the obligations set out in this Article apply only if the duration of the work period abroad is more than four consecutive weeks, unless Member States specifically provide otherwise. Information provided before the first departure may cover several grouped work assignments and may be subsequently modified in case of change.

Chapter III – Minimum requirements relating to working conditions

Article 7 –Maximum duration of any probationary period

This provision sets a maximum duration of six months for any probationary period, unless a longer duration is justified by the nature of the employment, such as a managerial position, or where it is in the worker's interest, for instance an extension following long illness.

This provision reflects Principle 5(d) of the European Pillar of Social Rights: '5(d): Any probation period should be of reasonable duration.'

Article 8 – Employment in parallel

This article provides that no worker may be prevented by his or her employer from taking up another employment (so-called exclusivity or incompatibility clauses), unless this is justified by legitimate reasons such as the protection of business secrets or avoidance of conflicts of interest.

Article 9 – Minimum predictability of work

This article provides that, if a worker has a variable work schedule where the employer, rather than the worker, determines the timing of the work assignments,

(a) the employer must notify such workers of the periods of hours and days within which they may be required to work. That would enable workers to use the time not covered by such reference hours/days in other employment, in education or to fulfil care obligations. Workers may agree to work outside the reference hours and days, but cannot be obliged to do so, and must not be subject to detriment if they refuse (see Article 16).

(b) workers cannot be required to work if they receive less than a reasonable advance notice from their employer, set out in advance in the written statement. They may agree to do so but must not be subject to detriment if they refuse (see Article 16). What is considered a reasonable advance notice may vary across sectors.

These provisions do not apply in cases where the employer sets a task to be achieved, but the worker is free to determine the time schedule within which he or she performs the task.

Article 10 – Transition to another form of employment

This article establishes that workers will be able to request a more secure and predictable form of work, where available e.g. workers wishing to transition to full-time working relationship, or a working relationship with a higher number of guaranteed paid hours or a less variable work schedule. Employers are required to respond in writing.

The deadline for the employer to respond will be three months for natural persons, micro, small or medium enterprises, and one month for larger enterprises, so as to reduce the burden for smaller enterprises that may not have the same access to dedicated human resource management services. Moreover, the response to subsequent requests from the same worker to an employer which is a natural person or a micro, small or medium enterprise, could take an oral form, if the justification for the reply remains unchanged.

This provision reflects Principle 5(a) of the European Pillar of Social Rights: 'The transition towards open-ended forms of employment shall be fostered.'

Article 11 –Training

This provision ensures that employers provide workers with any training to carry out their tasks that they are required to provide under Union or national legislation or collective agreements, without charging its cost to the workers.

Chapter IV – Collective agreements

Article 12 – Collective agreements

This provision permits modifications of the minimum standards set out in Articles 7 to 11 (i.e. the material rights but not the information package) by means of collective agreements concluded between the social partners under national law or practice. The overall degree of protection for workers must not be less than that provided for in Articles 7 to 11 taken together.

Chapter V – Horizontal provisions

Article 13 – Compliance

This provision, along with Articles 16 to 18, follows the same approach as adopted by the co-legislator in Directive 2006/54/EC, Directive 2000/43/EC, and Directive 2000/78/EC.

Article 13 requires Member States to ensure that the necessary amendments are made to individual or collective agreements, internal rules of undertakings and any other arrangements so as to align them to the provisions of the proposed Directive. This obligation does not concern modifications of the minimum standards set out in Articles 7 to 11 laid down in accordance with Article 12.

10.

Article 14 - Legal presumption and early settlement mechanism


This article provides, on the basis of existing good practice among Member States, for two alternative avenues of redress for failure to provide all or some of the information set out in Article 3, either

·the use of favourable presumptions proportionate to the missing information, including at least a presumption of an open-ended relationship if no information is provided about the duration of the employment relationship, a presumption of a full-time position if no information is provided on the guaranteed paid hours, and a presumption of absence of probationary period where no information is provided on the existence or duration of a probationary period; or

·access to an administrative procedure under which a competent authority (which may be an existing body such as a labour inspectorate or a judicial body) has the authority to establish the facts of the case, to order the employer to issue the missing information, and to impose a fine if this is not done.

This provision addresses weaknesses in the existing mechanisms identified in the REFIT evaluation, which concluded that redress systems based on claims for damages are less effective than those based on other forms of penalty such as lump-sums. 30

In order to avoid the burden of formal redress procedures in situations where incorrect or missing information can be easily remedied, any omission of information must be first notified to the employer, who has 15 days to supply the missing information.

Article 15 – Right to redress

This provision establishes the principle that Member States must ensure that national legal systems provide access to effective and impartial dispute resolution and a right to redress and, where appropriate, compensation, for infringements of the rights established under the proposed Directive. It reflects Principle 7 of the European Pillar of Social Rights.

Article 16 – Protection against adverse treatment or consequences

This provision requires Member States to provide workers complaining about breaches of provisions adopted pursuant to this Directive with adequate judicial protection against any adverse treatment or consequences by the employer.

Article 17 – Protection from dismissal and burden of proof

If a worker considers that he or she has been dismissed or subject to equivalent detriment (such as on-demand worker ceasing to be assigned work) on the ground that he or she applies or enjoys the rights established in this Directive, and is able to establish facts which support this assertion, this provision places on the employer the burden to prove that the dismissal or alleged detrimental treatment was based on other objective reasons.

Article 18 – Penalties

This provision requires Member States to provide for effective, proportionate and dissuasive penalties for breaches of the obligations under this Directive, and to make sure that they are applied.

Chapter VI – Final provisions

Article 19 – More favourable provisions

This is a standard provision allowing Member States to provide a higher level of protection than that guaranteed by the proposed Directive, and preventing its use to lower existing standards in the same fields.

Article 20 – Implementation

This provision establishes the maximum period that Member States have in order to transpose the Directive into national law and communicate the relevant texts to the Commission. This period is set at two years after the date of entry into force. Moreover, it highlights that pursuant to Article 153(3) TFEU Member States may entrust the Social Partners with the implementation of the Directive, where Social Partners request to do so and as long as the Member States take all the necessary steps to ensure that they can at all times guarantee the results sought under this Directive.

Article 21 – Transitional arrangements

This article provides for the transition between Directive 91/533/EEC and the entry into force of the proposed Directive.

Article 22 – Review by the Commission

This is a standard provision requiring the Commission to report to the co-legislator on the application of this Directive including the assessment of any need to revise and update the Directive.

Article 23 – Repeal

This provision stipulates the date on which Directive 91/533/EEC is repealed, specifying that all references to the repealed Directive shall be construed as references to the new one.

Article 24 – Entry into force and Article 25 - Addressees

These are standard provisions stipulating that the Directive is to enter into force on the twentieth day following its publication in the Official Journal and is addressed to the Member States.