For years, precarious work has been on the increase in Europe. However, with its proposal for a Directive on Transparent and Predictable Working Conditions, the EU Commission too is pursuing the target to combat the phenomenon of precarious work. However, this would have to be accompanied by redefining the concept of ‘worker’ in EU law in order to be able to cover all working models. A relevant discussion, hosted by the Brussels Offices of the Austrian Federal Chamber of Labour (AK EUROPA) and the Austrian Trade Union Federation (ÖGB Europabüro), as well as the European Trade Union Confederation (ETUC) and the European Trade Union Institute (ETUI) took place on 16 October 2018.
AK President Renate Anderl opened the debate by making the case for a social Europe, which must not put corporations at its centre but the people, who carrying out their work every day keep Europe going. The people would justifiable expect to be protected by the EU. On the contrary, the Austrian Presidency does not launch initiatives to ensure that the European Pillar of Social Rights becomes more than just a solemn proclamation. An example for Austria's lack of commitment can be observed in the negotiations upon the European Labour Authority. Currently, one some forces in the EU would urge to put the market freedoms and a strict austerity policy at the centre, whilst other forces would back nationalism. By adopting either of these two orientations, one would remove oneself from the actual objective of the EU, namely to drive forward social progress and to improve the living conditions of millions of EU citizens.
Against the background of the negotiations on the Directive on Predictable and Transparent Working Conditions, Phillipe Pochet, Director of the European Trade Union Institute, pointed out that the study by Martin Risak and Thomas Dullinger had been published exactly at the right time. The issue was now on the political agenda of the EU and it was therefore necessary to find a clear and uniform definition at European level; neither “soft law” nor the national level would be a suitable approach.
Following this, Martin Risak introduced his study on “The concept of 'worker’ in EU law”, which had been commissioned on behalf of the AK. In its jurisdiction, the ECJ has developed an independent understanding for the concept of worker: it mainly follows the criterion of personal dependency. However, Risak criticised this current approach as no longer meeting the needs of current times and called for a new definition, which would also include workers in atypical and precarious working conditions as well as bogus self-employment. With regard to future regulatory steps, the study proposes a wider definition of the concept of worker; one that also takes into account the criterion of economic dependency.
The rapporteur for the Directive on Predictable and Transparent Working Conditions, Enrique Calvet Chambon, informed on the state of negotiations shortly before the vote in the Employment Committee on 18 October 2018. Work in respect of the compromise amendments in Parliament had made a lot of progress. In his opinion, the main resistance came from MEPs of the EPP party. Some MEPs would justify their opposition against widening the definition of workers with reasons of subsidiarity. The opponents of the Directive would work towards delaying the vote. However, given the current tight timeframe in respect of the coming EU elections, a delay would be equivalent to rejecting the report.
Esther Lynch, Confederal Secretary of European Trade Union Confederation, was equally concerned about the Directive not being finalised by delaying tactics at the vote. Although from the point of view of trade unions, the Directive was by no means perfect; still at least the Directive would guarantee a certain amount of basis rights for workers in precarious employment relationships. Furthermore, the legislative implementation of the European Pillar of Social Rights would be of utmost importance and the Directive would be a starting point for this process.
Josef Muchitsch, President of the Austrian Construction and Wood Workers Union, added practical examples from Austria to the discussion. Here, companies would specifically recruit workers from countries that had lowerwage levels; they would issue them with business licenses, although doing unskilled work and therefore forcing them into bogus self-employment. However, it had been possible to close this gap in the commercial law and by doing so to prevent further wage dumping. However, such cases show that each gap, which is allowed to remain in laws, is exploited. It will therefore be important to explicitly also ban zero-hour contracts in the Directive for Transparent and Predictable Working Conditions. Against the background of the current “Gold Plating” debate in Austria, Muchitsch voiced his concern that higher national standards might be put into question. With regard to the trial period, the Directive foresees a probation period of 6 months maximum; in Austria, one month maximum is permitted.