“Minimum rights for each employment contract”, “inclusion of new types of work”, “upwards convergence” through “creation of minimum standards“, “improved enforceability”, as well as “respect for the role of social partners“: all these are features Employment Commissioner Thyssen attributed to the new draft directive of the Commission during this week’s hearing of the Parliament’s Employment Committee.
After the Commission presented its proposal for a new Directive on transparent and fair working conditions on the 21 December 2017, this week (21.02.2018) an exchange with the responsible EP Employment Committee took place for the first time. The Commission Proposal foresees a revision and extension of the current Written Statement Directive (Dir. 91/533/EC) and is one of the follow-up measures of the European Pillar of Social Rights.
Information rights and substantial minimum standards
The draft directive consists mainly of two parts: Chapter II provides for a minimum set of information requirements, which have to be made available to employees on the first day of employment at the latest (current Written Statement Directive: 2 months). Furthermore, the draft includes new provisions in its Chapter III, which now also includes minimum standards for working conditions. According to the definition of the term “Employee” in the Directive, these minimum standards shall apply to a relatively large circle of workers and therefore also include atypical employment.
According to Commissioner Thyssen, the objective of the Commission proposal was to create a framework for new types of work; however, the Commission does not want to go as far as to fully banning these. Until now, Member States could decide, which workers they would include under the scope of the Written Statement Directive. According to the new Commission proposal with a wide scope, which corresponds to ECJ legislation, the Commission expects to include 2-3 million workers that had currently not been included.
European Parliament rapporteur Enrique Calvet Chambon
Overall, the MEPs of the Employment Committee gave a cautiously positive feedback to the directive proposal; however, they requested significant revisions in a wide range of areas. MEP Calvet Chambon (ALDE), Rapporteur for the Directive, talked about a fundamentally successful proposal. In times of a positive economic climate – he stated – that it was only right to pass on these advantages also to employees. However, medium to long-term costs had to be taken into account and a better balance would have to be found between the interests of trade unions and those of employers.
Definition of the term 'employee’
The probably clearest objection to parts of the proposal came from the deputy Chair of the Employment Committee, MEP Marita Ulvskog (S&D), who pointed out that – as already happened in the discussions concerning other EU laws – the Swedish social partners would not agree to a European definition of the term ‘employee’. Hence, this part of the draft directive would not only be met with strong resistance by Sweden, but also by several other Member States in the Council. Other MEPs too raised the question, whether the broad definition of the term ‘employee’ in the directive proposal might also have an impact on other EU legal acts.
Needs for revision in the directive
Social Democrat, Green and Left MEPs (among other MEP López, S&D) welcomed the inclusion of new types of work, employees in precarious jobs and platform workers by the directive proposal as well as the creation of “binding provisions” within the scope of the Pillar of Social Rights (MEP Rodrigues, S&D). The Left parliamentary group (MEP Kari) requested that the Directive would not interfere in collective agreements or even allow an interpretation of collective agreements by the ECJ.
MEPs saw more room for improvement concerning the inclusion of interns and apprentices (amongst others MEP Laura Agea, EFDD) and in respect of the regulations on posted employees (MEP Tatjana Ždanoka, Green). MEPs Simon and Detjen (both S&D) demanded to integrate an explicit ban of zero-hour contracts in the directive. Several Conservative MEPs (amongst others MEP David Casa, EPP and MEP Anthea McIntyre, ECR) addressed the issue of creating bureaucracy, loss of flexibility and excessive burdens for companies, in particular SMEs, through the directive proposal.
Chamber of Labour’s opinion
Austrian Chamber of Labour (AK) too welcomes that employees, including employees in atypical types of employment, which are not covered by the current Written Statement Directive, will now be included in the new directive proposal. However, it must be explicitly specified that the information obligations represent a minimum catalogue. Furthermore, all information should be available at least one week prior to the first day of the employment relationship. Moreover, a significant requirement for improvement exists concerning the information requirements of posted workers.
From the point of view of the Chamber of Labour, Chapter III of the directive proposal on minimum standards, which consists of only five articles, is not ambitious enough. Here, AK is hoping for major additional work by the EU Parliament and the Council during the now commencing legislative process. Otherwise, it has to be feared that the transparency directive will explicitly legitimate precarious types of employment.
Important amendments to the catalogue regarding minimum requirements in the directive are necessary in particular in the following areas: integration of a non-regression clause, banning of zero-hour contracts, protection against involuntary relocation and unfair contract clauses, continued remuneration, quality of internships, sanctioning discriminations at the workplace, paid leave for training and education, minimum level of education during working hours, cost coverage for work supplies as well as payment of a precariousness supplement.