The basic set of European social rights is beginning to take shape. On Thursday 21 December, European Commissioner for Employment and Social Affairs Marianne Thyssen presented her initiative for revising the “Written Declaration” directive (91/533/CEE) – which is now already 25 years old. Her objective is to modernise contractual relations between employers and employees and make them more “transparent" and “predictable” and to extend the scope of application to new contractual forms. Self-employed workers, however, are not covered by the proposal.
In an effort to illustrate the advances made in the proposal, the commissioner asked: “Is there a probation period? What is my working schedule? Do I have mandatory training? For you and for me it sounds obvious to know that but many workers in the European Union don’t receive that basic information, especially vulnerable ones”. The directive will also help to maintain a level playing field between employers, she stated.
What are the proposals in practice? Firstly, against the advice of employers, the Commission is amending the notion of “worker” aligning it with the case law of the European Court of Justice (cases C-66/86 Lawrie-Blum and C-216/15 Ruhrlandklinik). Thus, a worker is a person who provides a service for a certain period for and under the guidance of another person who provides remuneration in return. According to the Commission, this definition will help to guarantee the same category for all workers. The definition of employer was also clarified, so that this function can also be fulfilled by one or several entities.
The scope of the directive was extended to new workers to cover temporary workers (casual and those carrying out on-demand or intermittent work), people occupying short-term jobs, domestic workers, platform workers (Uber), workers undertaking implement in exchange for voucher-based workers.
Clearer contracts with new rights. The Commission is, above all, introducing new workers’ rights by making it compulsory to include a whole range of new contractual elements: probation period, overtime pay, information involving working time for workers with very variable working hours and a social security system into which contributions are paid. The Commission also amended the current timescale for provision of information, which is two months, to make it compulsory from the very first day of work – trade unions wanted this be done before the start of work.
The Commission is modernising and clarifying the way of communicating information and stipulates that the document can be in electronic form. The member states will have to use set formats in an effort to make the information more accessible. The Commission is also introducing a limit for trial periods to 6 months, except when a longer duration is “objectively” justified. It is banning exclusivity clauses and restricting the use of incompatibility clauses. In practice, this means that a worker can no longer be banned by their employer from working for another company. The worker will have the possibility of requesting more stable employment from their employer, who will be obliged to respond in writing and give reasons within a one-month timeframe or three months in cases involving SMEs.
With regard to implementation and in respect of application of the directive, the Commission stipulates that, in addition to legal means, there will also be an administrative procedure introduced for rectifying the lack of contractual information. The Commission also introduces the concept of “favourable presumption”, a concept under which it will be considered that there is no trial period or that the work relationship is permanent or full-time, when it is not stipulated otherwise. It also includes the possibility of imposing penalties on employers. Here, Thyssen said that sanctions would be defined by the member states.
Self-employed are not covered but interns are, subject to certain conditions. Contrary to the wishes of the trade unions, the directive will not cover self-employed workers. This is because the directive focuses on labour law. For self-employed workers, there is no contractual relationship between an employer and an employee, explained the commissioner, pointing out that the self-employed would be covered by a proposal planned for next spring as part of the social fairness package. Interns who have no written contractual relationship will not be covered by the said directive, the commissioner said.
Possible derogations to certain provisions. The member states will not be able to apply the directive on contracts of less than eight hours a month. When asked by EUROPE, the commissioner indicated that this derogation would only involve contracts that state that the contract is for less than eight hours a month. When working time is not stated (zero hour contracts), the directive applies. The text also stipulates that member states may not apply the rights to request a new form of work or to request free training. The Commissioner said that the member states can develop alternatives to protect workers but on condition that the level of protection is at the same level as that provided by the European Commission.
Posted workers. It should be pointed out that the proposal includes the concept of posted workers, a concept that did not exist when the directive was adopted in 1991.
Directive modernised and renamed. The directive on the written declaration was renamed to become a directive on transparent and predictable working conditions, to make the name more intuitive and to underline the innovations introduced by the European Commission.
Contrary to certain directives that focus on certain kind of contracts, the current directive relates to all contracts or 200 million workers. Thanks to today’s proposal, 31 million workers will be able to request additional contractual information and 4-7 million workers will be able to work more because the exclusivity clause has been scrapped, and according to the European Commission 2-3 million additional workers will be covered. (Original version in French by Pascal Hansens)