It has been two years since we informed you through our article about the approval of the proposal for a Directive, currently known as Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (the “Directive“).
As the deadline for transposition of the Directive into the legal systems of the Member States expires on 1st August 2022, the aim of this article is to provide an update on the state of the transposition process and, in particular, to point out the major changes that can be expected within it.
On the transposition of the Directive and its direct effect
It is already clear that the Directive will not be transposed into Czech law, in particular the Czech Act No. 262/2006 Coll., the Labour Code, as amended (“Labour Code”), within the deadline. According to the information available to us, the version for the internal ministerial comment procedure is currently being finalised and should be published in August 2022.
It is important to note the direct effect of the Directive, which should be applicable to the state and entities under its direct control, and should also apply to certain state-controlled companies (e.g. post offices or municipal transport companies) in addition to authorities and security forces.
What does the Directive entail?
The aim of the Directive is to introduce terms and conditions into employment law that make employment more transparent and predictable, while at the same time making the labour market more responsive to current employment trends.
The Directive thus introduces common standards for minimum rights at EU level and new rules relating in particular to:
- the employer’s duty to inform the employee about essential aspects of the employment relationship;
- the predictability of working conditions;
- probationary periods;
- concurrent employment with another employer and non-competition;
- transfer to another form of employment; or
- compulsory training.
The Directive applies to all workers in the European Union, i.e., both those who have concluded employment contracts and those who are in any other employment relationship, including non-traditional employment relationships concluded under other legislation or collective agreements. The Directive thus provides a minimum standard of rights for, inter alia, casual workers, on-call workers, trainees, persons with very short hours or unpredictable working patterns, domestic workers, etc.
You can read more about the content of the Directive itself in our earlier article.
Essential issues
Given that some of the requirements of the Directive are already enshrined in the Labour Code, we offer below a selected list of the most important changes that should be reflected in the Labour Code in some way once the transposition of the Directive is duly completed.
Employer’s obligation to provide information
The Directive establishes the minimum information that the employer will be obliged to provide, the time limit for providing it or extends the range of persons entitled to receive the information.
As a consequence, the following changes should be made to the Labour Code:
- Extending the information obligation to include information on any overtime provisions, the duration and conditions of any probationary period or training requirements (if provided by the employer);
- reducing the time limit for providing specific information (such as the identification of the parties, the place of work and nature of the work or the amount of remuneration) to as little as 7 days from the start of the employment relationship, while maintaining the current 1-month time limit in relation to the remaining information;
- the information obligation will apply to all employment relationships, regardless of their duration, even in cases where no contract of employment has been negotiated at all, but only an oral agreement
Minimum work predictability
The Labour Code does not yet provide for this institution, which should be reflected in particular in the regulation of agreements on work performed outside the employment relationship, especially as follows:
- a worker’s work can only be requested and performed within a fixed period of time during which the worker can be called upon to perform work, i.e. the concept of ‘reference days and hours’ will need to be introduced;
- the worker shall be informed by the employer of the work task within a reasonable period of time in advance (the exact period to be determined by legislation or collective agreement);
- the worker will be entitled to compensation if the employer cancels the assigned work task without compensation and without reasonable notice (the method and amount of compensation is no longer provided for in the Directive).
The question remains what the actual impact of the amendments to the Labour Code in connection with the Directive will have on the practical use of FTEs and FTEs.
Trial period
Although the Labour Code meets the condition regarding the maximum accessible length, it will have to be supplemented by the new requirement of the Directive according to which the length of the probationary period should correspond to the nature of the work.
At the same time, the Directive allows a longer probationary period to be agreed (i.e., exceeding the statutory limit of 6 months), but only if the nature of the employment requires it or if it is in the interest of the worker, leaving the introduction of an extension of the probationary period to the discretion of the Member State.
The right to request a form of employment with more predictable and secure working conditions
The Directive also allows workers who have completed any probationary period and have worked for the same employer for at least 6 months to apply for a form of employment with more predictable and secure working conditions (provided that such a position is available), and the employer must provide a reasoned written response to such a request within 1 month at the latest.
Again, this is a worker’s right not yet regulated by the Labour Law and therefore we should expect its transposition in this case as well. Within this framework, the legislator should also remember to specify the reasons why the employer will not be obliged to comply with the worker’s request.
Conclusion
The above summary describes, in our opinion, the most important changes that are likely to be introduced as part of the transposition of the Directive into the Czech legal system. Although no specific proposals have been published so far as to how the Labour Code will be amended, it is already clear that the introduction of the changes will entail certain administrative requirements and necessitate changes to the currently used employment law documentation.
We will continue to monitor the process of transposition of the Directive for you and will keep you informed of further significant changes.
If you have any questions related to this topic or employment law in general, we are gladly at your disposal.
Mgr. Kateřina Lansdorfová, junior lawyer – lansdorfova@plegal.cz
Mgr. Jakub Málek, managing partner – malek@plegal.cz
29.07.2022