Europaudvalget 2017-18
KOM (2017) 0797 Bilag 4
Offentligt
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POSITION PAPER
Commission proposal for a Directive on transparent and
predictable working conditions – BusinessEurope’s views
KEY MESSAGES
1
2
It is in the interest of companies and employees to provide clarity on the
employment relationship. Policy makers should support this by modernising the
written statement directive. The proposal should also encourage a dialogue
between Member States and national social partners on the implementation and
coverage of the directive.
Unfortunately, the Commission’s proposal disrespects the principles of subsidiarity
and proportionality:
It introduces a number of bureaucratic elements that will create
unnecessary costs and fundamental legal uncertainty for companies and
employees, as well as undermine national legal structures.
The EU should not interfere with Member States’ definitions of the term
“worker/employee”. The proposed definition of a ‘worker’ would cover
people that are self-employed such as consultants or freelancers. National
definitions have been adapted over the years in law, collective agreements
and jurisprudence, to take into account new forms of work and changes in
national labour law and social security. An EU definition would not be able
to capture different situations and would be much more difficult to adapt to
future developments. It would lead to more rigidity.
Minimum rights proposed by the Commission concern issues that are best
dealt with at national, sectoral or company levels, including in collective
agreements. Details of work organisation such as probation periods,
working time schedules or parallel employment should not be regulated at
the EU level. The proposal also fails to take into consideration the specific
nature of certain sectors, such as mobile work or the road transport
industry.
WHAT DOES BUSINESSEUROPE AIM FOR?
A targeted revision of the written statement directive, focused on modernisation
and adapting the information framework in line with the principles of subsidiarity
and proportionality.
Ensure that the directive continues to apply to employees only and is not
broadened to include self-employed people.
Ensure that the sanctions are proportionate to the damage suffered by the
employee and that national rules on dismissals are not undermined.
BUSINESSEUROPE a.i.s.b.l.
AVENUE DE CORTENBERGH 168 – BE 1000 BRUSSELS – BELGIUM
TEL +32 (0)2 237 65 11 – FAX +32 (0)2 231 14 45 – E-MAIL
[email protected]
WWW.BUSINESSEUROPE.EU
– Follow us on
Twitter @BUSINESSEUROPE
EU Transparency register 3978240953-79
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26 February 2018
Commission’s proposal for a Directive on transparent and predictable
working conditions – BusinessEurope’s views
I.
Introduction
On 21 December 2017 the Commission published a proposal for the Directive on
transparent and predictable working conditions in the European Union (COM (2017) 797
final). The proposal is based on Article 153(1) (b) TFEU which provides for adoption of
minimum standards at the EU level with respect to “working conditions”. The proposal
follows the REFIT evaluation of the written statement directive, which the new directive
is intended to replace. With this position paper BusinessEurope would like to offer views
on the proposal.
II.
General comments
1. The Commission has launched a revision of the written statement directive as a
REFIT exercise. The purpose of REFIT is - in the Commission’s own words - “to
make sure that EU laws deliver their intended benefits for citizens, businesses and
society while removing red tape and lowering costs. It also aims to make EU laws
simpler and easier to understand”.
BusinessEurope fully supports this objective.
2. However, introducing minimum rights completely changes the character of the
directive and goes much beyond the scope of the REFIT evaluation. Moreover, a
number of elements of the Commission’s proposal will create unnecessary new costs
for companies and legal uncertainty, going against the purpose of REFIT and the
purpose of the directive to create “transparent and predictable working conditions”.
3. In line with the idea of “doing less more efficiently” at EU level, the Commission
should avoid regulating on issues that are best addressed by law or collective
agreements closer to employers’ and workers’ realities. The Commission should
always consider first if adaptations to the legal framework can be made more
efficiently at national level. We believe issues such as probation periods, work
scheduling, parallel employment and training provision, are issues best dealt with at
lower levels, including in collective agreements.
4. We believe further EU legislative discussions should be focused solely on
modernising the written statement directive, for example giving the possibility to
employers to deliver the written statement electronically, encouraging Member
States to develop model documents with social partners, as well as updating the
deadline to provide information in line with national developments. The proposal
should in addition encourage a dialogue between Member States and national social
partners on the implementation and coverage of the directive.
5. The revised directive should, as the existing directive, leave it to Member States to
define the term “worker/employee”. Labour market practices differ between countries
and the national definitions have been adapted over years in law, collective
agreements and jurisprudence. Any EU definition would be less agile and lead to
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legal uncertainty. Self-employed should not be covered by the written statement
directive as they do not have an employer.
6. Also, the Commission’s assumption throughout the proposal that employees all have
work schedules, either variable or not variable, needs to be corrected. The fact is that
a significant part of employees in Europe do not have work schedules, in particular
professionals and managers whose working time cannot be predicted.
7. The proposed minimum rights introduce restrictions that would not be limited to the
targeted vulnerable groups, but would in effect have broader implications for labour
markets going beyond the Commission’s announced intention. The proposal
therefore introduces restrictions for often high-paid, high-skilled employees and other
key staff for companies, harming the competitiveness of companies.
8. The directive should not challenge the existing national rules on termination of
employment. There is no reason why all employees would need special protection in
case of dismissal, including the change in the burden of proof. In the Commission’s
proposal, this protection broadly covers all rights provided in the directive, including
in relation to the information employers have to provide on the main aspects of the
employment relationship. The proposed burden of proof has so far been and should
continue to be restricted to the protection of fundamental rights like equal treatment
between women and men and vulnerable groups, including those more likely to suffer
from discrimination.
9. We welcome that the Commission’s proposal includes a possibility for social partners
to conclude collective agreements that differ from the minimum requirements in the
directive. However, in order for the directive to fully respect the role of the social
partners, it should be made clear that existing collective agreements can continue to
remain in force and will not need to be renegotiated. And the directive must not
introduce limits for the social partners. They should be free to agree how best to
balance the needs of the companies and employees they represent.
III.
Specific comments
Chapter I. General provisions
Scope (Article 1)
10. The Commission proposes to limit the exemptions from the application of the
directive. Member States would be allowed not to apply the provisions of the directive
to an employment relationship of up to 8 hours per month.
11. While BusinessEurope does not see in practice any significant gaps in coverage of
the directive that could not be dealt with in a dialogue with Member States, it may
indeed be possible to look into simplification of the exemptions under Article 1(3) to
better align the directive with national practices across the EU. However, we assess
that the Commission proposal is far too restrictive. A wider exemption is needed in
order not to place a disproportionate burden on employers. This is especially
important in sectors, for example hotel and restaurants, where demand varies greatly
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and there is a need to adapt work supply quickly. A lot of short-term employees with
a limited number of hours are used in these situations. Flexibility can have particular
importance for micro and small enterprises. Therefore, short-term contracts of up to
one month should in any case continue to be exempted from the scope of the
directive.
Definitions (Article 2)
12. The Commission suggests to align the notion of worker to the case-law of the
European Court of Justice (ECJ). It proposes that for the purpose of the application
of the directive a “worker” should be defined as
a natural person who for a certain
period of time performs services for and under the direction of another person in
return for remuneration.
13. BusinessEurope is strongly against introducing a broad EU definition of a “worker”,
basically leaving it to the ECJ to define the application. It must remain a political
decision in Member States to define in national legislation who is an employee and
who is self-employed, and for the social partners to decide when it concerns
collective agreements.
14. The definition used so far by the ECJ in concrete cases is broad and extensive. It
fails to adequately address the complex nature of the issue of who is an employee
and who is self-employed.
15. National definitions used for the purpose of the application of labour law or social
security provisions are more precise. For example, in Austria,
subjection to personal
instructions is only one of six elements of personal dependency (in addition to
integration in the company organization, compliance with regulations, control
subjectivity, disciplinary responsibility and personal duty to work), which in turn is a
prerequisite for the existence of an employment relationship.
In Belgium, the intention
of the parties has to be taken into consideration in any assessment. In Ireland, the
legal tests developed over time take account of factors such as control, mutuality of
obligation, level of enterprise or entrepreneurship and integration into the business.
The definition proposed by the Commission fails to address many of these factors.
16. National definitions sometimes vary between sectors, branches of law (social
security & labour law) and collective agreements, and this is considered useful in
order to adapt to different work organisation practices. National definitions are
adjusted when needed, including by case law, to the new developments on the labour
markets. As developments and practices differ between countries (e.g. the ways
casual work is organised including the existence of e.g. voucher work, zero hours
contract), introducing a “one size fits all” forever EU definition would not be agile and
therefore harmful for the creation of well-functioning labour markets and social
security systems adapted to future developments.
17. The Commission states that the self-employed will not be covered by the directive.
However, there is a risk that the use of the definition of a “worker” proposed by the
Commission would lead to a very wide application of the directive, covering people
that are in most cases classified as self-employed such as consultants or freelancers.
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In the existing written statement directive, the term employee is applied, which is
more accurate to use in particular in this directive, which concerns exclusively
persons in an employment relationship. The term worker/working is defined in
Member States, covering broader situations than employment relationships.
18. Introducing the EU definition of a “worker” would lead to legal uncertainty. Any EU
definition would necessarily create clarification issues. It would trigger EU
jurisprudence over the coming years, e.g. on how to interpret being “under the
direction”. The interpretations developed in national case law on which companies
rely could become irrelevant.
19. Moreover, while the Commission states that the impact of the EU definition of a
“worker” will be limited to the application of the proposed directive, we assess that
there could be wider implications on classification of work relationships in general.
This is because giving someone a written statement (especially with detailed
information regarding work schedules, notice period, social security payments etc.)
may be seen as an indication of a subordinate work relationship and lead to
classification of a person as an employee for other labour law and social security
purposes.
20. The Commission also proposes to define the term “employer” as
one or more natural
or legal person(s) who is or are directly or indirectly party to an employment
relationship with a worker.
BusinessEurope is against developing such a definition.
The proposal is unclear and will raise doubts in practice. For example, the notion of
being “indirectly party to an employment relationship” is not known and would lead
to legal uncertainty and numerous court cases. The proposed definition could thus
cover the relationship between a host company and a temporary worker, which is
already ruled by Directive 2008/104/EC and national regulations. It could also lead
to wrongly categorise as work the subcontracting relationship between a contractor
and the subcontractor when the latter’s employees are involved in service provision.
21.
Having several parties to an employment relationship blurs who the responsible
employer is, which is also to the detriment of the employees.
Chapter II. Information on the employment relationship
Obligation to provide information (Article 3)
22. The Commission proposes to enlarge the list of items to include information on e.g.:
probationary period, training entitlement, any arrangements for overtime and its
remuneration, reference hours and days when the worker may be required to work
and minimum advance notice before the start of work assignment in case of variable
schedules entirely or mostly determined by the employer, and social security
institution(s) receiving social contributions attached to the employment relationship.
23. In principle, it is important not to multiply information obligations or to impose on
employers an obligation to inform on issues for which they are not fully responsible.
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24. Information about probation period is usually already included in the written
statement, so this could be reflected in the revised directive as proposed in paragraph
2 (f).
25. Including information about “training entitlement” as proposed in paragraph 2(g)
would not always be practicable. In many cases training is decided during the course
of the employment relationship depending on the needs of the company and the
employee. Therefore, providing advance information can be misleading for an
employee - there may be no formal right to training, but the training will usually take
place. If the proposal was maintained, it would be important to clarify that this
paragraph is about the entitlements for training, if any, that the employer is required
to provide under the applicable law or collective agreement.
26. Paragraph 2 (k) and (l) concerning information about work schedules as well as the
linked minimum requirements in Article 8 and 9 need further consideration as it
seems to assume that all employees have a work schedule. Work schedule is defined
in Article 2 (d) as determining hours and days on which performance of work starts
and ends. Many, in particular high skilled, high paid employees do not have a work
schedule.
27. For those who have a variable work schedule, the proposed information obligations
as well as the proposed new minimum requirements in terms of notice would make
planning and changing the work schedule significantly more difficult and hinder the
use and availability of employees. Many employers will simply not be in a position to
provide particulars of the “reference hours and days within which the worker may be
required to work”. This affects sectors broadly and will create even more problems
for some specific sectors such as healthcare, social care, retail and hospitality.
28. Moreover, many terms used in the proposal, such as work schedules “mostly
variable” or “mostly determined by the employer” are totally unclear and will lead to
legal uncertainty and endless court cases. Another example is paragraph 2 where
(k) includes work schedules
mostly not variable
and (l) includes work schedules
mostly variable.
This makes it difficult to decide who falls into which category.
29. The problems with defining and applying the term work schedules in an EU directive
illustrates that such details are best defined and applied at Member State and social
partner level. In contrast, in the existing directive the obligation is simple and
practical: “the length of the employee’s normal working day or week”.
30. As for the information on the social security institution(s) receiving the social
contributions attached to the employment relationship - as suggested in paragraph 2
(n) - this is usually not indicated in the written statement for good reasons. Paragraph
2 (n) should thus be deleted.
31. For example, in Finland the occupational pensions are pillar I pensions,
unemployment insurance is taken up by the employee and many other parts of social
security are universal. It would be ill-fitted to require employers to provide information
on this.
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32. Another example is Luxembourg where it will often not be feasible for companies to
give advance information about social security affiliation, as the majority of
employees are non-residents. Their affiliation often changes during the course of
their employment if they happen to work more than 25% in their home country or in
a third country e.g. due to telework or professional travel. In other cases, the
employer has no control over the affiliation and may not even know that the affiliation
should change. For example, when an employee who is under a part-time contract
with employer A in Luxembourg, takes up another part-time employment with
employer B in his country of residence the affiliation might change without employer
A even knowing about it.
33. In paragraph j) the Commission proposes to add information about the “method
of
payment of the remuneration to which the worker is entitled”.
Such an information
remains unclear and would create legal uncertainty. It is unclear whether what is
meant with “method of payment” is the way the remuneration is paid (i.e. transfer,
cash, check), or that the worker should be informed about how the employer pays
social contributions and declares elements of remuneration to the competent
authorities.
34. Finally, the scope of Article 3.3 is not broad enough. Employers should be allowed
to refer not only to laws, regulations, administrative provisions and collective
agreements but also to internal company rules. Moreover, companies should be
allowed to refer to these sources not only in paragraph 2 (f) to (k) and (n) but also in
paragraph 2(l) concerning variable work schedules. This is because there are many
collective agreements that regulate work schedules.
Timing and means of information (Article 4)
35. The Commission proposes that the information should be provided at the latest on
the first day of the employment relationship. BusinessEurope believes that a deadline
of 1 month, currently used in the majority of Member States, or a deadline in line with
national developments seems more appropriate, as also indicated in the REFIT
study. Any deadline which is shorter could lead to problems.
36. While in most cases the contract is signed before the work starts, sometimes the
negotiations between an employer and employee or internal procedures take more
time. In Belgium for example it is quite common in case of mobile staff to agree first
on a “letter of intent” containing the most important terms and conditions, and sign a
full employment contract at a later stage. In Poland, an employment contract signed
at the start of employment relationships includes only the most important information,
while complementary information can be delivered within 7 days.
37. In any case it should be foreseen that a “reasonable delay” is allowed in case of
legitimate reasons e.g. due to sickness of the relevant HR staff, if an employee has
been recruited at short notice due to urgent business needs or if negotiations are still
ongoing in respect of certain terms for example during a probation period.
38. Article 4.1 explicitly allows for information to be provided in electronic form, easily
accessible by the worker. BusinessEurope welcomes this provision. However it is out
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of touch with future developments to detail that easily accessible means that “it can
be stored and printed”. It also seems too detailed that the information has to be
transmitted in the form of a document. The information could also be provided
through an online portal or any other future means of communication.
39. Article 4.2 obliges Member States to develop templates and models for the written
statement/employment contract and make them available for employers and
workers. BusinessEurope believes that such templates could be helpful, especially
for SMEs, if Member States and national social partners agree. However, it is
important that such templates are developed taking into account, if need be, diverse
requirements in different sectors or regions.
40. Article 4.3 obliges Member States that information governing the legal framework
applicable is to be communicated by the employer to inform workers on the
employment relationship. It is important to clarify that, as regards collective
agreements, it is often for the social partners to communicate, not the Member States
or the individual employer. And when it concerns internal company work rules this is
for the company to communicate, and the information does not concern any outsider.
Therefore, it would not be appropriate to include such information on online portals
for Union citizens or businesses, as proposed.
Modification of employment relationship (Article 5)
41. The Commission proposes that any change in the aspects of the employment
relationship referred to in Article 3(2) and to the additional information for workers
posted or sent abroad in Article 6 shall be provided in the form of a document by the
employer to the worker at the latest on the day it takes effect.
42. To avoid excessive administrative burdens, it should be clarified that changes
resulting from modifications in applicable law, regulations and administrative
provisions or collective agreements do not need to be individually communicated by
the company as in many Member States this is communicated by the legislator and
the social partners. This is also what applies in the existing directive.
43. Information that concerns changes made by the employer should be allowed to be
provided with a “reasonable delay” in case of legitimate reasons and also collectively
for example regarding changes in internal company work rules.
Additional information for workers posted and sent abroad (Article 6)
44. The posting directive 96/71/EC is currently being revised. It is unclear when the
revised directive will come into force. The revised directive obliges Member States to
include information on remuneration applicable to posted workers on a single
national website. The notion of remuneration remains however unclear and the single
national websites have not been finalised. The Commission proposal should not
oblige employers to provide information which – according to the posting directive –
should be provided by national authorities. Paragraph 2 (a) should thus be deleted.
An obligation to provide a link to the information on a national website as provided in
point 2 (b) should be sufficient.
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45. Finally the scope of Article 6.3 is not broad enough. Employers should be allowed to
refer not only to laws, regulations, administrative provisions and collective
agreements but also to internal company rules. Moreover companies should be
allowed to refer to these sources not only in paragraph 1(b) but also 1(c) benefits and
1 (d) conditions governing repatriation.
Chapter III. Minimum requirements related to working conditions
46. The proposal introduces a number of substantive minimum rights for all “workers” as
defined in the directive. Article 7 provides for a maximum duration of probation period
of 6 months (longer if justified). Article 8 provides that an employer cannot prohibit
workers from taking up employment with other employers outside the work schedule
established with that employer - any restrictions to employment in parallel have to be
justified by legitimate reasons. Article 9 provides the right to predictability of work
schedule - in case of variable schedules established entirely or mostly by an
employer, work can only be required on indicated reference days and hours and only
if “reasonable” advance notice is provided. Article 10 provides the right to the worker
to request another form of work contract and the obligation for the employer to reply
in writing. Article 11 provides that mandatory training necessary to carry out work
should be provided free of charge to the worker.
Probation period (Article 7)
47. BusinessEurope believes it is not appropriate for the EU to interfere in the setting of
probation periods in national law, collective agreements and agreements between
the employer and the employee. Notwithstanding this general concern, we are of the
view that the 6-month period chosen is too short even if many Member States provide
for such a period. National legislation and collective agreements need to be able to
change in line with changing labour markets requirements.
48. In any case, while we note that there is provision for probation periods to be extended
in certain circumstances, it is unbalanced as it only says that it can be extended when
it is in the interest of the worker. The employer can also have a need to see whether
an employee is up to the job. This can in particular be the case for high-skilled, high-
paid employees. The proposal does provide as a reason for extension “the nature of
the employment”, which the Commission states in the explanatory memorandum and
whereas 19 can cover managerial positions. However it has to be clear and made
broader in the directive itself as a reason to extend.
49. Furthermore, there is a risk of unintended consequences for employees. Employers
sometimes extend probation periods to allow employees further time to prove
themselves in a position including to find out if they can fulfill the job through training
or support. Restricting the probation period to 6 months in most circumstances would
only serve to discourage employers from providing this additional time to employees.
50. It is also of great concern that the proposed EU rule on a maximum of 6 month
probation will interfere in national unfair dismissal policies and the qualifying periods
for right to protection against unfair dismissal.
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Parallel employment (Article 8)
51. Many Member States have specific laws, collective agreements and practice,
including at sectoral level, on legitimate restrictions to parallel employment. This can
in particular concern high-skilled, high paid employees from managers to IT persons.
This is particularly challenging for key personnel across these categories, i.e. those
employees who are essential for the running of the company. Since they are key
personnel, they often do not have a work schedule or the work schedule is very
flexible. The Commission, however proposes a right to parallel employment “outside
the work schedule established with the employer” which seems to assume that all
have or shall have a work schedule.
52. Such a broad right for parallel employment will be harmful for the employer in
particular for key personnel, as such employees cannot at the same time be available
for several employers.
53. The Commission proposes that employers may restrict access to parallel
employment if justified by legitimate reasons such as protection of business secrets
or avoidance of conflicts of interest. Recital 20 specifies that such
Incompatibility
clauses,
understood as a restriction on working for specific categories of
employers,
may be necessary for objective reasons, such as the protection of
business secrets or the avoidance of conflicts of interests.
Limiting restrictions to
“working for specific categories of employers” seems to not allow necessary
restrictions for key personnel in particular, no matter which other category of
employer they would like to work for.
54. The Commission’s impact assessment only mentions that the proposal will allow
some 90,000 – 360,000 on-demand workers to seek additional work. There is no
mentioning of all the other groups affected by the proposal. Article 8 therefore seems
to go much further than intended.
55. Finally Recital 20, linked to Article 8, risks interpreting the Working Time Directive
2003/88/EC. It may give the impression that the employer will be required to monitor
total working time of a person (rather than working time per specific contract), also in
case this person works for several employers. This would bring employers in a very
difficult situation, in particular in sectors with strict working time rules and variable
situations like road transport. In any case, an obligation of the employee to notify the
employer must therefore be provided for.
56. There is no need for EU intervention in the area of parallel employment. On the
contrary, EU provisions may interfere with well-functioning rules at national level.
Article 8 should thus be deleted.
57. Furthermore, due to the specific character of road transport (uneven distribution of
orders, unpredictability of road conditions/traffic situation, weather situation,
unpredictability of loading and unloading times, etc.), it is very often not possible to
specify and plan the work schedule in advance.
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Minimum predictability of work (Article 9)
58. BusinessEurope shares the Commission’s objective of ensuring some degree of
predictability of working time for those working in shifts, on-call or on-demand.
However, these issues are in many countries at the core of social partners’
competences and are often well regulated through collective agreements or
legislation. Arrangements differ between sectors and companies. We believe that EU
intervention in this area would not respect the subsidiarity principle, as decisions
regarding work organisation and working time arrangements need to be taken at
lower levels to reflect the changing economic and social realities at company and/or
sectoral level in the Member States.
59. Paragraph 9a) specifies that work may be required only if it takes place within
reference hours and days specified “at the start of the employment relationship”.
Such a strict provision does not leave the necessary space for changes to the
reference hours and days to occur during the employment relationship. The
employee’s obligation to work only in announced reference hours and days would
make planning and changing the work schedule difficult and hinder the use and
availability of employees. Such changes may be necessary and beneficial for an
employee (e.g. a student whose class schedule changes in a new semester) or a
company (e.g. when the demand pattern changes).
60. Article 9 includes employment relationships where the workers’ schedule is entirely
variable or entirely decided by the employer. Therefore, as for Article 8 it seems that
the proposal will also affect high-paid key personnel for companies, who since they
are key for the running of the company often have no time schedule. If so, it would
seriously affect the competitiveness of companies.
61. Furthermore, in the Commission’s explanatory memorandum it is stated that article
9 applies “if a worker has a variable work schedule where the employer, rather than
the worker, determines the timing of the assignments”. The only restriction to the
application of the provision is “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 a
task”. Many if not most key, often high-paid employees, for whom the employer or a
customer determines the timing of the assignment, seem to be included under article
9.
Transition to another form of employment (Article 10)
62. BusinessEurope shares the goal of facilitating transitions in the labour market and
helping individuals progress in their careers. However, policy measures to support
that aim should be efficient, proportionate and should not place unnecessary
administrative burdens on companies. This is especially important for SMEs.
63. The Commission proposal can cause significant additional administrative burden for
employers and it may encourage excessive claims by employees in particular when
it would provide them with protection from dismissal and a change of the burden of
proof (Article 17 in particular). While on paper it may often seem that plenty of working
hours are available within the company, these may accumulate on certain days
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and/or hours, meaning that no extra hours can be offered to a single person. The
employer must have the possibility to make part-time contracts / on-call contracts
when needed.
64. Moreover, the Commission states that workers “may request a form of employment
with more predictable and secure working conditions”. In recital 25 it states “Where
employers have the possibility to offer full-time or open-ended labour contracts to
workers in non-standard forms of employment, a transition to more secure forms of
employment should be promoted.” To indirectly describe fixed-term contracts and
part-time work as unpredictable and insecure is not acceptable and misleading. The
EU directives/agreements on part-time work and on fixed-term work have provisions
to prevent abuse and discrimination. The directives recognise that fixed-term and
part-time work can respond to the needs of employers and employees and obstacles
for those forms of work should be eliminated.
65. However, in some Member States overprotection of open-ended contracts may mean
that fixed-term work is the only option for people who want to enter the labour market.
That however is not the situation in Member States that apply the flexicurity
principles. Therefore to promote transitions from fixed-term to open-ended positions
what is important is to ensure that regulations are balanced and the rules governing
open-ended contracts are not overly strict, which could prevent companies from
offering open-ended positions.
66. Finally the Commission’s proposal goes much further than what applies according to
Directive 1999/70/EC concerning the framework agreement on fixed term work
concluded by ETUC, BusinessEurope and CEEP and the Directive 97/81/EC
concerning the Framework Agreement on part-time work concluded by
BusinessEurope, CEEP and ETUC. And Directive 2008/104/EC on temporary
agency work. These directives all include provisions concerning request for transition
to another form of employment. Also for that reason the Commission’s proposal is
not acceptable.
Training (Article 11)
67. First of all it is unclear how article 11 should be interpreted, e.g. what kind of training
is meant in this article and what the content of the term "cost free" is.
68. In some countries there are collective agreements foreseeing that the costs of certain
training are shared between the employer and employee. Furthermore, some training
is intended e.g. for employee representatives and is organised and financed by the
trade unions. This should not be prevented in the directive.
69. If the employer has to bear the costs of mandatory training, the directive should
explicitly allow for the introduction of a “reimbursement clause” in case the employee
resigns at an early stage after the training. This is important especially in professions
where training is very expensive.
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Chapter IV. Collective agreements
Collective agreements (Article 12)
70. The Commission proposes that Member States may allow social partners to
conclude collective agreements which - while respecting the overall protection of
workers - establish arrangements concerning the working conditions which differ
from those provided in Chapter III of the directive. In principle, we welcome Article
12. However, it must be made clear that the proposed article fully respects the role
of the social partners, as this is also a condition to deliver on the European Pillar of
Social Rights, as the Commission intends with this proposal.
71. For example, the condition that social partner agreements must respect “the overall
protection of workers” in the directive is quite ambiguous.
72. It is also ambiguous when it is stated in recital 27 “Social partners may consider that
in specific sectors or situations different provisions are more appropriate”. And the
following mention in the explanatory memorandum is too narrow: “This provision
permits modifications of the minimum standards set out in Articles 7 to 11”.
73. Respecting the autonomy and competences of social partners is particularly
important in this proposal, which goes into the very heart of collective agreements.
74. It order for the directive to respect the role of the social partners it should be clarified
that existing collective agreements can continue to remain in force and will not need
to be renegotiated. And that the directive does not introduce limits for the social
partners. On the issues covered by the proposed minimum requirements, the social
partners must be free to agree how best to balance the needs of the companies and
employees they represent, which is the very essence of a collective agreement. It
must not be for the ECJ to rule on the role of the social partners.
75. We note that provisions to respect the role of the social partners already exist, e.g.
in the directives on national information and consultation, on part-time work, fixed-
term work and agency work. On top of this, respecting the role of the social partners
is consistent with the normal implementation clause giving the right to social partners
to implement a directive, which is the procedure regularly used by some countries for
implementing social directives.
Chapter V. Horizontal provisions
76. The Commission introduces a number of articles aimed at compliance, dispute
settlement, protection against adverse treatment as well as dismissal and transitional
arrangements.
Compliance (Article 13)
77. The Commission proposes that Member States shall take all necessary measures to
ensure that provisions contrary to this directive in individual or collective agreements,
internal rules of undertakings, or any other arrangements shall be declared null and
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void or are amended in order to bring them into line with the provisions in this
directive.
78. Member States as well as social partners have well established procedures to
guarantee compliance when implementing directives. That Member States and social
partners with this directive should be obliged for example to declare collective
agreements and/or internal company rules null and void or amend them is not in line
with practice in most Member States. Furthermore it does not respect the role of the
social partners and would also mean that the legislator has to intrude into the internal
life of companies and their employees.
79. Such wide-ranging obligations for Member States have so far only been used in very
few directives that concern equal treatment (non-discrimination) linked to a person’s
racial or ethnic origin as well as a person’s religion, disability, gender, sexual
orientation etc. The proposed directive is completely different as it concerns
information about working conditions and certain minimum requirements.
Legal presumption and early settlement mechanism (Article 14)
80. Generally, BusinessEurope underlines that there is no evidence that there are any
major problems in compliance with the written statement directive that would justify
strengthening the sanctions. On the contrary, the REFIT study prepared for the
Commission assesses the level of compliance as high. BusinessEurope is of the
opinion that sanctions, where they are justified, should be as far as possible
corresponding to the damage suffered by an employee. When sanctions can be
imposed even if there is no damage to employees, this can encourage litigation for
even small technical breaches of the directive.
81. The Commission proposes that when a worker has not received in due time all or
part of the information required, employers would have 15 days to rectify any such
omission after its notification. BusinessEurope supports such a provision.
82. Article 14 (a) allows Member States, as one of two options in an early settlement
system, to introduce a presumption that the worker has an open-ended employment
relationship, full-time employment and no probationary period if the employee has
not received in due time full information on the employment relationship. This is not
a settlement provision but a sanction that furthermore is extreme, taking into account
the matter in question. It should be left to Member States to decide on appropriate
sanctions. Furthermore, it assumes that full-time and open-ended contracts is what
the worker and the employer want, implying that part-time or fixed-term contracts are
insecure.
Protection from dismissal and burden of proof (Article 17)
83. The Commission states that similar provisions have already been introduced in
Directive 2006/54/EC (equal treatment of men and women), Directive 2000/43/EC
(equal treatment irrespective of racial or ethnic origin) and Directive 2000/78/EC
(general equal treatment directive). There is however a considerable difference
between the nature of these directives and that of the current Commission proposal.
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Contrary to the equal treatment directives, the proposal does not include any
fundamental rights of the employees that would justify special protection and is not
focused on protecting specific vulnerable groups that could face discrimination.
There is no reason why all employees would need special protection in case of
dismissal, including a change of the burden of proof. Such a proposal would go
against
many established national rules on dismissals
.
84. Furthermore, the Commission proposes that the worker can request from the
employer to provide duly substantiated grounds for the dismissal or its equivalent.
The employer shall provide those grounds in writing. This proposal goes much further
both compared to existing EU directives and rules in law and collective agreements
in general in Member States and interferes in national judicial systems concerning
dismissal procedures.
85. BusinessEurope is therefore strongly against Article 17, and believes Article 15 and
16 provide sufficient levels of protection. As rules and procedures on dismissals are
very much a competence of Member States, Article 153 (1) (d) of TFEU provides that
the Council shall act unanimously if adopting EU directives concerning “protection of
workers where their employment contract is terminated”. The Commission proposal
does not respect this as it is based only on Article 153 (1) (b) and 2(b) (qualified
majority voting in Council).
Transitional arrangements (Article 21)
86. The Commission proposes that the rights and obligations should apply to existing
employment relationships. However, for information rights, the directive would apply
only if requested by the worker.
87. Even if the Commission limits the application of the new information rights to those
situations in which the employee explicitly requests the provision of information, the
additional bureaucracy and administrative workload for companies could be
substantial, especially for SMEs. Furthermore, companies would face great
uncertainty as to whether or not additional requests will occur. It is therefore important
to introduce a general protection of existing work relationships.
88. Furthermore, to apply the minimum requirements even to existing employment
relationships is for companies a very costly and unacceptable intrusion into an
employment relationship where the conditions are already agreed between the
employer and the employee. In case the Commission’s proposed minimum
requirements were to be adopted this would in many cases add substantial costs for
companies, including administrative costs.
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