I.
General comments
On  21  September  2017  the  Commission  published  the  second  phase
consultation  of  social  partners  on  a  possible  revision  of  the Written  Statement
Directive  (Directive  91/533/EEC).  After  the  ETUC  decision  not  to  enter  into
negotiations  with  employers,  BusinessEurope  would  like  to  present  to  the
Commission the following general comments:
-  BusinessEurope offered to the ETUC negotiations on the revision of the
Written Statement Directive to ensure it continues to reflect the needs of
companies  and  workers  and  practices  across  the  EU.    BusinessEurope
was ready through such negotiations to improve the directive which brings
clarity for companies and employees on what rights and obligations apply
in an employment relationship, including addressing some of the related
concerns on minimum rights, without changing the nature and purpose of
the directive.
-  Employers  are  disappointed  that  the  ETUC  has  rejected  this  offer  in
particular  as  the  directive  deals  with  issues  at  the  core  of  employment
relations between employers and workers. The European social partners
would  have  been  much  better  placed  than  EU  institutions  to  consider
changes.
-  The  Commission  has  launched  a  possible  revision  of  the  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 agrees with the objectives of REFIT. We therefore expect
the Commission to preserve the nature and purpose of the directive which
is  to  inform  employees  about  their  working  conditions.  Introducing
minimum rights would completely change the character of the directive and
go much beyond the scope of the REFIT evaluation.
-  We reaffirm the Commission should pay particular attention to Article 153
TFEU,  which  sets  out  that  EU  directives  shall  achieve  the  objectives  of
Article  151  TFEU  which  includes  taking  account  of  national  practices  in
particular  the  role  of  social  partners  and  the  need  to  maintain
competitiveness of the EU economy.
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-  Furthermore, the Commission’s initiative is taken in the framework of the
inter-institutional proclamation on the European Pillar of Social Rights. We
therefore  expect  that  the  Commission  will  respect  what  is  stated  in  the
Pillar i.e. that it “should be implemented at both Union and Member State
level within their respective competences, taking due account of different
socio-economic  environments  and  the  diversity  of  national  systems,
including the role of social partners, and in accordance with the principles
of subsidiarity and proportionality”. Moreover, the Commission’s upcoming
proposal should respect the pillar principle 5.b stating that “the necessary
flexibility for employers to adapt swiftly to changes in the economic context
shall be ensured”.

-  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.

-  BusinessEurope  is  particularly  concerned  that  a  number  of  the
suggestions  on  minimum  rights  in  the  consultation  document  risk
interfering  in  national  collective  agreements  thereby  not  respecting  the
Pillar. Introducing a derogation possibility for social partners - as proposed
by  some  stakeholders  –would  not  solve  that  problem.  Social  partners
would  have  to  renegotiate  existing  agreements.  And  in  a  number  of
Member States legislation would be introduced where today it is only for
social partners to regulate.

-  If the Commission decides to follow a REFIT approach, the directive could
be  improved  in  a  number  of  ways.  Consideration  could  for  example  be
given to simplification of the exemptions under Article 1(2) of the Written
Statement Directive, shortening the deadline to provide information in line
with  national  developments,  giving  possibility  to  deliver  the  written
statement electronically, as well as adapting the information package for
example on timely information on vacancies as foreseen in the existing EU
directives/agreements on part-time and fixed-term work.

-  The revised directive should, as the existing directive, leave it to Member
States to define who are workers/employees. Self-employed should not be
covered  by  the  written  statement  directive  as  they  do  not  have  an
employer.

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II.
Specific comments
Scope of application of the Written Statement Directive

The Commission suggests clarifying the scope of the Written Statement Directive
“in  line  with  the  parameters  set  out  by  the  CJEU  to  identify  an  employment
relationship by including criteria which would help achieve more consistency in
the  personal  scope  of  application  of  this  Directive  while  making  clear  that  it
applies to every type of person that for a certain period of time performs services
for and under the direction of another person in return for remuneration, including
domestic workers, temporary agency workers, on-demand workers, intermittent
workers, voucher based-workers, and platform workers.”

BusinessEurope  is  against  the  idea  of  developing  an  EU  definition  of
worker  or  employee  for  the  purpose  of  the  application  of  the  Written
Statement Directive.

The EU definition of a worker used in the context of the free movement of workers
is  broad  and  extensive.  National  definitions  used  for  the  purpose  of  the
application of labour law or social security provisions are more precise, as over
years they have been clarified by case law. Introducing the EU definition would
lead to  legal  uncertainty,  as  the  interpretations  developed  in  national  case  law
could become irrelevant. Any EU definition would necessarily create clarification
issues; triggering EU jurisprudence over the coming years.

Moreover,  at  national  level,  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 realities and work organisation
practices.

National definitions are adapted 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” EU definition would not be practical and less agile.

We are also concerned that the impact of such an EU definition would in fact not
be limited to the application of the Written Statement Directive. There could be
wider  implications  on  classification  of  work  relationships  in  general.  This  is
because giving someone a written statement may be seen as an indication of a
subordinate  work  relationship  and  lead  to  classification  of  a  person  as  an
employee e.g. for social security purposes.

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The  Commission  consultation  document  also  suggests  to  provide  in  the
Written  Statement  Directive  the  list  of  particular  forms  of  work  to  be
covered by the directive (domestic workers, temporary agency workers, on-
demand  workers,  intermittent  workers,  voucher  based-workers,  and
platform workers)).

Listing specific forms of employment as suggested by the Commission would be
impractical given the forms of employment and types of work contracts available
differ between countries and change over time. Voucher work, for example, exists
only in a few EU countries.

Moreover, the term “platform worker” used by the Commission is unclear and can
be misleading  as  it does  not  correspond  to any  specific form  of  work  contract.
People providing services with the help of online platforms can be employees but
can – and often are - self-employed. There is no “one-size-fits-all” solution and
national criteria to determine the status of the person (employee/self-employed)
can be applied on a case-by-case basis. In any case, self-employed should not
be covered by the written statement directive. We are thus concerned that
the reference to “platform workers” in the written statement directive would
risk reclassifying genuinely self-employed as employees.

As for apprentices/trainees, it is important to note that in many countries they are
not  considered  employees,  but  rather  students  as  their  training  is  part  of  an
educational  programme.  Therefore,  information  to  be  provided  regarding  their
work placement is often covered by specific legislation. We appreciate that the
Commission  –  in  its  second  consultation  document  –  decided  to  respect  this
diversity.

The Commission consultation document suggests that “consideration should also
be  given  to  the  removal  of  the  exclusion  provisions  under  Article  1(2)  of  the
Directive, under which Member States may exclude people working less than 8
hours a week or whose employment relationship lasts less than one month or is
of a casual and/or specific nature”

While  BusinessEurope  does  not  see  in  practice  any  significant  gaps  in
coverage  of  the  Directive,  the  Commission  may  indeed  look  into
simplification  of  the  exemptions  under  Article  1(2)  to  better  align  the
Directive with national practices across the EU.  However, some exemptions
are needed in order not to place disproportional burden on employers, especially
micro and small enterprises in sectors where demand varies greatly and there is
a need to adapt work supply frequently and fast.

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Extending information package

Overall,  BusinessEurope  believes  there  is  no  particular  need  to  extend  the
information package required by the Directive, however some adaptations can be
done.

Information  about  probation  period  is  usually  already  included  in  the  written
statement, so this could be reflected in the revised directive.

On  the  contrary,  including  information  in  a  written  statement  about  “training
entitlements  under  the  work  contract”  would  not  always  be  practicable.
Businesses  are  committed  to  provide  appropriate  training  to  employees.
However, in many cases training is decided together by employer and employee
depending  on  the  needs  of  the  company  and  the  employee,  with  a  mix  of
collective and/or individual frameworks tailored to ensure the relevance of training
in  the  light  of  changing  labour  market  needs.  It  is  thus  difficult  to  include
information about training upfront.  Providing such advance information could in
fact be misleading for an employee (I.e. there may be no formal right to training,
but the training will usually take place).

As  for  the  social  security  system  to  which  the  worker  and  the  employer
contributes, according to our members this is not usually indicated in the written
statement. It is perceived as potentially superfluous obligation. Information about
social  security  contributions  is  usually  mentioned  in  the  pay  slips.  Moreover,
certain  types  of  pension  institutions  have  to  inform  members  about  their
contributions. It is important not to multiply information obligations.

The  Commission  suggests  that  in  order  to  facilitate  compliance,  templates  for
written  statements/  employment  contracts  could  be  developed  and  made
available  by  the  Member  States.  This  can  be  helpful,  especially  for  SMEs,  if
Member States and social partners agree. However it is important such templates
are  developed  at  national  not  the  EU  level, and  if need be  taking into account
diverse requirements in different sectors or regions.

Reducing the two month notification deadline

It has to be taken into account that 22 Member States already impose a stricter
deadline  in  their  transposition  of  the  Directive.  If  it  is  decided  to  change  the
Written Statement Directive, a deadline of 1 month, used currently in the majority
of Member States, could seem appropriate, as also indicated in the REFIT study.
Shorter  deadline  could  lead  to  problems.  In  some  Member  States  and  in  big
organisations,  having  the  contract  signed  and  approved  by  relevant  staff  may
take  time.  While  in  most  cases,  the  contract  is  signed  before  the  work  starts
sometimes  negotiations  between  an  employer  and  employee  and  internal
procedures  may  take  more  time,  particularly  in  the  situations  of  cross-border
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mobility. Also, small employers could have problems in providing all the required
information in a short timeframe.

Redress and sanctions

The Commission is suggesting that the means of redress and sanctions could be
strengthened e.g. by providing that sanctions can be imposed on the employer
for failure to issue the written statement in addition to compensation for damage
suffered granted to employees.

BusinessEurope finds the proposal neither necessary nor justifiable. First of all,
there is no evidence that there are any major problems in compliance with the
written statement directive that would justify the need for strengthening sanctions.
On the contrary, REFIT study prepared for the Commission assesses the level of
compliance as high. BusinessEurope members are also of the opinion that there
are not many legal cases linked to the directive.

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  written
statement directive. Frivolous litigation is already a problem (not directly linked to
this directive) in a number of countries.

Defining minimum workers rights

In its second consultation document the Commission proposes to focus on “rights
which address directly the key gaps in protection arising from the expansion of
non-standard  and  casual  forms  of  work,  and  which  derive  directly  from  the
bilateral relationship between worker and employer. In particular the Commission
proposes  the  right  to  predictability  of  work  for  workers  in  “casual  or  on-
demand employment relationships” (the obligation to agree on reference days
and  hours,  right  to  minimum  advance  notice,  recourse  to  exclusivity  clauses
limited to full-time employment relationships only).

First of all, the Commission’s analytical document and other available figures do
not provide evidence of “expansion of non-standard and casual forms of work”.
On  the  contrary,  the  vast  majority  of  employment  contracts  are  open-ended.
According to Eurostat, in 2016 88 % of employees in the EU-28 had contracts of
unlimited  duration  and  this  figure  has  barely  changed  in  the  last  ten  years.
Eurofound reports that: “in the last decade, there has been no upward trend in
the rate of temporary contracts overall in the European Union; indeed, there was
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a  slight  decline  from  14.5%  in  2006  to  14.2%  in  2016”1.  This  should  be
acknowledged more clearly by the Commission.

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  regulated  through  collective  agreements.
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. In this respect, and positively, a key
finding  of  the  European  Working  Conditions  Survey  is  that  in  2015  82%  of
workers considered that their working hours fit well or very well with family and
social commitments.

The  Commission  document  is  unclear  about  what  is  meant  by  casual  or  on-
demand  employment  relationships.  Difference  should  be  made  between  on-
demand work (where worker is not obliged to take up any work proposed by a
company) and on-call work (where worker has to be available for the employer at
the workplace, or at a home). On-call work situations are already regulated by the
Working  Time  Directive.  When  it  comes  to  on-demand  work,  we  note  that  –
according to the Commission analytical document – such working arrangements
(zero hour contracts) exist only in a few countries (e.g. Ireland, United Kingdom,
Netherlands, Italy).  Therefore, we do not consider it an issue to be regulated at
the EU level. In any case, it would not make sense to regulate such a specific
work contract in a Written Statement Directive which is a cross-cutting directive
applicable to various forms of contracts.

The Commission also proposes the “right for a worker who is not employed
on  a  permanent  basis  to  request  another  form  of  employment  after
achieving a certain degree of seniority with his/her employer, and to receive
a reply in writing within a set timeframe from the employer” According to the
Commission  this  would  help  increase  transitions  rates  from  temporary
employment contracts to open-ended contracts.

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.


1 “Non-standard forms of employment – recent trends and future prospects. Background paper for
Estonian presidency Conference “Future of Work – making it E-easy”, 13-14 September 2017”
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We note that the fixed-term directive (Directive 1999/70/EC), negotiated by the
social  partners,  foresees  a  clause  obliging  employers    to    inform    fixed-term
workers  about  “vacancies  which  become  available  in  the  undertaking  or
establishment  to  ensure  that  they  have  the  same  opportunity  to  secure
permanent  positions  as  other  workers”.  This  clause  helps  fixed-term  workers
access opportunities for internal mobility.

More  generally,  to  promote  transitions  from  fixed-term  to  more  open-ended
positions it is also important 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. etc).

We  believe  that  the  EU  should  make  better  use  of  the  European  semester
process  to  ensure  that  member  states  learn  from  each  other  and  reform  their
labour market regulations and social systems in line with renewed principles of
flexicurity.

The focus should be on:

  Providing a suitable employment protection legislation environment
to  stimulate  recruitment  in  different  forms  of  employment,  taking  into
account the needs of those who are already in employment and of those
looking for a job;
  Ensuring  that  companies  have  enough  flexibility  to  adapt  work
organisation to changing economic needs;
  Focusing  on  “employment”  security  through  well-functioning
employment  services,  safety  nets  and  well-performing  labour  markets,
rather than “job” security;
  Putting in place the conditions to smooth workers’ transitions on the
labour  market  between  jobs,  sectors  and  employment  statuses,
while  respecting  the  diversity  of  industrial  relations  practices  across
Europe;
  Promoting  dialogue  between  management  and  workers,  leaving  in
particular the space need for social partners at the appropriate levels to
ensure  that  investments  in  training  reflect  the  changing  needs  of  the
labour markets.

*****

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Document Outline

1027_001
2017.12.08_BE_position_written_statement_final