The Directive on Transparent and Predictable EUROPEAN

#SocialRights

Transparent and predictable

working conditions

European Pillar

of social rights

EUROPEAN

PILLAR OF

SOCIAL RIGHTS

#SocialRights

The Directive on

Transparent and

Predictable

Working

Conditions

Directive 2019/1152/EU

#SocialRights


working conditions

European Pillar

of social rights

Background

2

• Evaluation of the Written Statement Directive

▪ Some workers get no written information on their working conditions

▪ Some get incomplete information or get it too late

▪ Rules are not sufficiently enforced

▪ Some jobs have become very precarious and unpredictable

#SocialRights


working conditions

European Pillar

of social rights

3

"Building a more inclusive and fairer Union is a keypriority for this Commission“

Proclamation of the European Pillar of Social Rights, Nov 2017

Principle No 5 Secure and adaptable employment :

• Fair and equal treatment as regards working conditions

• Foster transition to open-ended forms of employment

• Flexibility for employers and foster innovative forms of work

• Prevent employment leading to precarious conditions

• Limit duration of probation

Principle No 7 Information about employment conditions:

• Right to be informed in writing at the start of employmentabout their rights and obligations

• Including any probationary period

#SocialRights


working conditions

European Pillar

of social rights

Background

• Increase in non-standard forms of employment;part time, temporary, on-demand and platformwork

• Changes in the labour market – digitalization

• Two-stage consultation of Social Partners

• Consultation on the European Pillar of SocialRights

4

#SocialRights


working conditions

European Pillar

of social rights

Background

5

• Proposal for a Directive on Transparent and Predictable Working Conditions presented by the Commission on 21 December 2017

New rights for all workers

with particular protection for workers

in precarious jobs

while limiting burdens on employers

and maintaining labour market adaptability

#SocialRights


working conditions

European Pillar

of social rights

The new Directive - Scope and information

Written Statem. Dir. Directive 2019/1152/EU

Scope Employees as defined

in national law.

Possible exclusions:

contracts ≤ 8 h per

week (32 h per month),

shorter than one month

and casual workers.

Workers as defined in national law with

consideration to CJEU case-law.

Possible exclusions: Workers who work

≤ 3 hours per week (12 h per month), but

not zero-hour contract workers.

Seafarers and civil servants* excluded

from Chapter III.

Deadline -

Info on

working

conditions

- Within 2 months

receive written info

- A “package” of

essential information is

set

Basic information to be received between

1st and 7th day; supplementary

information within 1 month.

6

#SocialRights


working conditions

European Pillar

of social rights

The new Directive - Information

Written Statement Dirctive Directive 2019/1152/EU

✓ Identity of parties;

✓ Place of work;

✓ Specification of work;

✓ Starting date;

✓ Duration;*

✓ Paid leave;

✓ Notice period;

✓ Remuneration;

✓ Length of working day or week;

✓ Applicable collective

agreements;

✓ Additional information for

expatriate employees.

In addition to current elements,

information on:

✓ Probation (if any);

✓ Training;

✓ Overtime;

✓ Working time for workers with

unpredictable work schedules;

✓ Receiving social security

institutions;

✓ For temporary agency workers,

information about the enterprises

where they will be sent to work.

7

#SocialRights


working conditions

European Pillar

of social rights

The new Directive - Basic information within 7 days:

Written Statement Dirctive Directive 2019/1152/EU

✓ Identity of parties;

✓ Place of work;

✓ Specification of work;

✓ Starting date;

✓ Duration;*

o Paid leave;

o Notice period;

✓ Remuneration;

✓ Length of working day or week;

o Applicable collective

agreements;

o Additional information for

expatriate employees.

In addition to current elements,

information on:

✓ Probation (if any);

o Training;

✓ Overtime;

✓ Working time for workers with

unpredictable work schedules;

o Receiving social security

institutions;

o For temporary agency workers,

information about the enterprises

where they will be sent to work.

8

#SocialRights


working conditions

European Pillar

of social rights

The new Directive - New material rights

WSD Directive 2019/1152/EU

- Limit of probationary periods to 6 months, unless

objectively justified.

- Ban on exclusivity clauses and restrictions on

incompatibility clauses.

- Workers with unpredictable working schedules

determined by the employer (i.e. on-demand work)

should know in advance within which time slots they

can be requested to work.

- Right to compensation when the employer cancels a

work assignment after a specific deadline.

9

#SocialRights


working conditions

European Pillar

of social rights

The new Directive - New material rights


Prevention of abusive practices regarding on-

demand contracts.

- Right to mandatory training* being cost-free.(*mandatory for the employer to provide according to Union or

national law or collective agreement)

- Cost-free mandatory training must count as

working time and, where possible, take place

during working hours.

- Possibility to request a more stable form of

employment and to receive a reasoned written

reply.10

#SocialRights


working conditions

European Pillar

of social rights

The new Directive - Enforcement


General defence of

rights article – but

mainly left to national

level

Comprehensive enforcement provisions:

- early settlement mechanism or favourable legal

presumptions in case of missing information

- right to redress

- protection against adverse consequences

- protection from dismissal and shared burden of

proof

- effective, proportionate and dissuasive penalties.

11

#SocialRights


working conditions

European Pillar

of social rights

The role of collective bargaining

Collective Agreements

• Member States may allow Social Partners to maintain, negotiate, conclude and enforce collective agreements which establish arrangements which differ from Articles 8 to 13.

• Trade-offs are possible, but overall protection of workers must be respected.

• Level of collective agreements is left to national law or practice.

Social dialogue

Member States shall, in accordance with their national law and practice, take adequate measures to ensure the effective involvement of the social partners and to promote and enhance the social dialogue with a view to implementing this Directive.

12

#SocialRights


working conditions

European Pillar

of social rights

Article 1 - Exemptions

• The Directive refers to Article 31 of the Charter

• Article 52 of the Charter: Limitations on the rights and freedoms must respect the essence of those rights

• Principles No 5 and 7 of the EU Pillar of Social Rights

• By analogy: “As exceptions to the [EU] system for the organisation of working time […], those derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected”, cf. C-428/09, para. 40.

13

#SocialRights


working conditions

European Pillar

of social rights

Article 1(6) – Civil servants & certain public functions

Member States may provide, on objective grounds, that the provisions laid down in Chapter III are not to apply to civil servants, public emergency services, the armed forces, police authorities, judges, prosecutors, investigators or other law enforcement services.

Key concepts:

• Objective grounds

• Chapter III vs single provisions

• Civil servants

• Public emergency services

• Armed forces, police authorities etc…14

#SocialRights


working conditions

European Pillar

of social rights

Article 1(6) – Civil servants

• No EU definition of this term as such

• The term “civil servant” is essentially for MS to define in national law

• However, being a civil servant is not sufficient to be exempt from Chapter III – the provision requires “objective grounds”

15

#SocialRights


working conditions

European Pillar

of social rights

Article 1(6)

Public emergency services

▪ No all-encompassing EU definitions as such – for MS to define

▪ Directive (EU) 2018/1972 and Commission Delegated Regulation (EU) No 305/2013 (Art. 2(39) & 2(a)):

▪ ‘emergency service’ means a service, recognised as such by the Member State, that provides immediate and rapid assistance in situations where there is, in particular, a direct risk to life or limb, to individual or public health or safety, to private or public property, or to the environment, in accordance with national law.’

Armed forces, police authorities etc…

▪ For MS to define 16

#SocialRights


working conditions

European Pillar

of social rights

Article 1(6) – “Objective grounds”

Recital (9): It should be possible for Member States to provide, where justified on objective grounds, for certain provisions of this Directive not to apply to certain categories of civil servants, […] , given the specific nature of the duties that they are called on to perform or of their employment conditions.

• The recital provides some guidance on the assessment of objective grounds by highlighting; nature of the duties and/or employment conditions

• Art. 9(2) “[…] on the basis of objective grounds, such as health and safety, the protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interests

• General principle of equal treatment: Comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified, cf. 477/14 para. 35 (Pillbox). 17

#SocialRights


working conditions

European Pillar

of social rights

Article 1(6)

• The related term “objectively justified”

• CJEU in C-410/18 Aubriet para. 29:

▪ “In order to be justified, [indirect discrimination] must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective.”

• Cf. also recital 9

18

#SocialRights


working conditions

European Pillar

of social rights

Article 1(6)

• Inspiration can also be drawn from case law concerning the fixed term Directive: Differential treatment prohibited “unless different treatment is justified on objective grounds”

Objective grounds (C-619/17 paras. 67-68):

▪ Cannot be justified on the basis that the different treatment is provided for by a general or abstract measure, such as a law or a collective agreement

The unequal treatment found to exist to be justified by;

▪ the presence of precise and specific factors, characterising the employment condition to which it relates

▪ in the specific context in which it occurs and

▪ on the basis of objective and transparent criteria,

▪ in order to ensure that that unequal treatment in fact responds to a genuine need

▪ is appropriate for the purpose of attaining the objective pursued and

▪ is necessary for that purpose

19

#SocialRights


working conditions

European Pillar

of social rights

Article 1(7) – employment in households

Member States may decide not to apply the obligations set out in Articles 12 and 13 and in point (a) of Article 15(1) to natural persons in households acting as employers where work is performed for those households.

Key concepts

▪ natural persons

▪ households

▪ acting as employers

▪ work performed for those households

It is only when a natural person belonging to a household acts as an employer – and work is performed for thathousehold – that the derogation is applicable

The derogation encompasses Articles 12, 13 and 15(1) point (a) only 20

#SocialRights


working conditions

European Pillar

of social rights

Article 1(8) – seafarers and sea fishermen

Chapter II of this Directive applies to seafarers and sea fishermen without prejudice to Directives 2009/13/EC and Directive (EU) 2017/159, respectively. The obligations set out in points (m) and (o) of Article 4(2), and Articles 7, 9, 10 and 12 shall not apply to seafarers or sea fishermen.

• For definition of seafarers & sea fishermen; see the above-mentioned directives, cf. recital 10 of TPWCD

• If there is a conflict between Chapter II of TPWCD and the two above-mentioned Directives – the latter shall prevail (take precedence)

• Seafarers and sea fishermen are exempt from the above-mentioned provisions

• However, as this is a minimum Directive, MS are free to provide better protection, i.e. include them

21

#SocialRights


working conditions

European Pillar

of social rights

22

“[…] Together with other initiatives, this Directive shows what this Commission has been doing during its mandate: bringing social Europe back at the centre of European action."

Commissioner Marianne Thyssen, Press conference following the political agreement, 7/02/2019

• Estimated that 200 million workers will benefitfrom better rights

• 2-3 million workers gain the right to a written statement

#SocialRights


working conditions

European Pillar

of social rights

NEXT STEPS

Co-signed on 20 June 2019

Entered into force 31 July 2019

3-year transposition deadline

New rights in all workplaces by 1 August 2022

Transposition by the MS – supported by the Commission

Commission has set up an Expert Group to assist MS in the transposition

23

#SocialRights


working conditions

European Pillar

of social rights

References

• Proposal for a Directivehttp://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1513939591869&uri=COM:2017:797:FIN

• Information on website (including proposal, impact assessment, executive summary of the impact assessment, study to support the impact assessment) http://ec.europa.eu/social/main.jsp?catId=1313&langId=en

• Press material: http://europa.eu/rapid/press-release_IP-17-5285_en.htm

• New Directive: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019L1152

24

http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1513939591869&uri=COM:2017:797:FIN

http://ec.europa.eu/social/main.jsp?catId=1313&langId=en

http://europa.eu/rapid/press-release_IP-17-5285_en.htm

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019L1152

#SocialRights


working conditions

European Pillar

of social rights

Thank you for your attention

25

Documents

The Directive on Transparent and Predictable EUROPEAN