The Council of the European Union has struck an agreement in principle over a proposed directive on “transparent and predictable working conditions”, which aims first and foremost to lay the ground for minimum protection of workers in new forms of employment (see our update published on EELA’s website here). With its “general approach”, the Council signals that it wants to secure the adoption of the text by the end of its term, so negotiations with the Parliament can begin, even though the proposal was submitted just seven months ago. Exchanges between ministers indicated that there is unanimous support of the objectives of the draft directive, however an agreement was made easier by the fact that, under the compromise reached, member states would be able to set the scope of its application and decide which workers would benefit from such protection.

The draft directive is called the ‘Written Statement Directive’, as it details the obligations to inform workers of the essential aspects of their employment relationship, revises a directive that dates back to 1991 (91/533) in a bid to take into account new “non-standard” forms of employment, such as zero-hour contracts, on demand and intermittent work. Such forms of labour deny workers a clear idea of key aspects of their working conditions: their working hours, timetable and pay. Therefore, with the draft directive, the aim is to offer non-standard workers – despite the increase in number thereof – greater predictability. The draft amends the information that must be provided to workers at the beginning of their contract and also establishes minimum rights. The general approach that was approved by the Council of the EU today, thanks to the commitment of the Bulgarian presidency, in office until 1 July, will seek to accelerate the legislative procedure. It is also hoped that the general approach can help facilitate a quick adoption, as it provides the Parliament with indications as to the Council’s position even before the former has given its opinion after the first reading of the draft.

Definition of worker at the centre of the directive’s scope. The European Commission has upheld an EU-wide definition of a worker, which relies on the criteria developed by the European Court of Justice. The institution believes this is the only way to avoid a situationwhereby, with each new development in the employment market, the workers concerned find themselves without the traditional protections, particularly because national governments create special categories for them. As such, the Commission defines a “worker” as a “natural person who performs services, for and under the direction of another person, in return for remuneration”. When work began on a draft revision of the directive, several delegations were opposed to an EU-level definition of a “worker”, fearing that it could create legal uncertainty, particularly when jurisprudence is developed on a case-by-case basis. Under the compromise that was adopted, despite abstentions from members states including Belgium, Austria and Germany, states have the ability to set out who benefits from such protection. Definitions of a worker, employer or employment relationship were abandoned. Instead an article establishes the scope of the directive, to apply to those “who have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each member state”. It is added that “the interpretation of the Court of Justice of these criteria should be taken into account in the implementation of this directive”. The compromise therefore affords control to member states, to the dismay of Marianne Thyssen, the European Commissioner for Employment, Social Affairs, Skills and Labour Mobility. She hopes that upcoming talks will give the directive a more extensive scope.

During negotiations, several governments flagged the administrative burden resulting from the requirement to inform workers in writing as regards the employment relationship on their first day of work. The Bulgarian presidency proposed that a distinction could be made between important information that must be communicated on the very first day and other details that could be provided within a month. The compromise also provides for seafarers and sea fishermen to be excluded from the scope of the directive, as well as some public service workers such as members of the armed forces and police. It also allows member states to choose not to apply the obligations of the directive to workers who have an employment relationship equal to or less than 5 hours per week on average, over a reference period of four weeks. The Commission had proposed that this permitted in the case of individuals working less than 8 hours per month.

A concern raised by Sweden, which was then supported by other member states, was that the text could weaken the powers of social partners at national level, since it imposed requirements on collective bargaining. However, governments agreed to work on ensuring that social partners are granted greater autonomy when the text is implemented.