This April the European Parliament approved a proposal for a Directive on transparent and predictable working conditions in the European Union. [1] The proposal has been made with aim to improve working conditions by supporting safer and more predictable employment while ensuring the adaptability of the labour market.
The Directive should replace the Directive 91/553/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship with a new instrument that insures the transparency of working conditions for all workers and defines new substantive rights in order to improve the predictability and safety of working conditions, especially for people with unpredictable work arrangements and so called gig economy work and on-demand contracts or flexible working arrangements.
What is new?
First of all, the new Directive extends its scope to forms of employment that are today often excluded, such as housework, occasional workers (for example those who does on-demand or intermittent work), short term employees, domestic workers, platform workers, voucher-based workers, trainees and apprentices. The Directive is an expression of the introduction of so called flexicurity into the labour relations.
The Directive also extends and clarifies the scope of information that employers are required to receive in connection with the performance of their work in written or electronic form, and in appropriate form before commencement, on the day of commencement, no later than 7 calendar days from commencement of work or possibly during the employment in case of posting in another Member State or in case of the change of employment. The employer will be required to keep proof of the delivery of such information.
Closer attention is also paid to adjusting the minimum requirements for working conditions, especially in relation to (a) maximum duration of the probationary period, (b) parallel employment, (c) minimum predictability of work, (d) transition to another form of employment, (e) compulsory training and (f) collective agreements.
It is worth to mention the provision which provides the Member States with obligation to ensure that a worker who completed his possible probationary period and was working for the same employer for at least six months can apply for a form of employment with more predictable and secure working conditions, if it is available and that he receive a reasoned written reply to such a request. Primarily it will be situations of transition to work with fixed and predetermined working hours or work without the possibility of on-demand work. The Member States can limit the frequency of requests in relation to the application of the obligation under this Article.
At the same time, the Directive also regulates so-called supplementary measures for on-demand contracts. If the Member States allow the use of on-demand contracts or similar employment contracts, they will have to accept one or more of the following measures to prevent abusive practices:
- will limit the use and duration of on-demand contracts or similar employment contracts;
- will set a rebuttable presumption of the existence of an employment contract or employment relationship with a guaranteed amount of paid hours based on hours worked in a preceding reference period;
- will set other equivalent measures that ensure the effective prevention of abusive practices.
The Directive introduces two alternative procedures for dealing with situations when an employee has not been provided with required information, namely: (a) so-called positive presumptions in favour of the worker or (b) administrative proceeding to issue an order to the employer to provide missing information – to remedy the situation.
In addition, the Member States will be obligated to adopt the necessary measures to protect workers, including workers, who are worker´s representatives from any unfavourable treatment by the employer or from the adverse consequences of a complaint lodged by an employer or any proceedings initiated to enforce the rights set out in the new Directive. Furthermore, the Member States will be obligated to adopt measures to prohibit dismissal or measures with equivalent effect and all preparations for dismissal of workers on the grounds that they have exercised the rights laid down in the new Directive.
Transposition into national law
The Directive will enter into force on the twentieth day after its publication in the Official Journal of the European Union and the Member States will have 3 years to transpose it into the legal system.
The new Directive gives to Members States the possibility of introducing derogating national legislation for certain areas of treatment. In particular, the Member States may decide to exclude from the scope of the Directive a short-term allocation which is less than 3 hours a week on average over a period of 4 consecutive weeks.
With regard to the long-term necessity to amend the labour law in the Czech Republic, primarily the Labour Code, it can be expected that the new Directive will be taken into account in current legislative activities, especially in relation to the legal regulation of so-called flexible labour-law relations. The new legislation should aim to introduce the maximum possible flexibility of labour market relations, while laying down unsurpassed conditions to protecting workers.
If you have any questions about the article or any other labour law topic to discuss do not hesitate to contact us.
Mgr. Jakub Málek, partner – malek@plegal.cz
Kateřina Roučková, legal assistant – rouckova@plegal.cz
17. 05. 2019
[1] Text available here: http://www.europarl.europa.eu/doceo/document/TA-8-2019-0379_EN.html.