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