Directive for more transparent working conditions
Surprise twist for access to social security.
Dr. WSW – 11/2018
European Commission’s proposal for a Directive on transparent and predictable
working conditions is being treated in the European Parliament as a model for
establishing further minimum social standards. It is no longer just about an employer’s
obligation to provide information, but rather the minimum content contained in
employment contracts. The comprehensive amendments requested by the Parliament’s Committee on Social Affairs and Employment at its
meeting on 26 October 2018 reflect this.
remains relatively unchanged is the employer’s obligation to clearly identify
not only the minimum advance notice period prior to commencing a new work assignment
but also the permissible deadline for cancelling the assignment. If the
deadline is missed, the worker’s right to claim remuneration remains.
Parliament does not define minimum periods, but rather leaves this to the
Member States, if they think it necessary. The same applies to the number of
guaranteed working hours. In the future, however, the lack of a minimum guaranteed
number of hours must be justified by ‘objective reasons’.
Parliament is more specific when it comes to the admissibility of probationary
periods. Furthermore, the proposal that the principles of equal pay and equal conditions
apply to all workers regardless of employment status is likely to cause some
problems in practice.
Directive should continue to only apply to employed workers and not to the
self-employed. As far as the definition of ‘worker’ is concerned, Parliament
also largely refrains from making any further clarifications, and noticeably leaves
open the extent to which people who work via online platforms are covered.
However, a new article proposed by the Committee (Article 17a) would create a
kind of reversal of the burden of proof: in the future, the potential employer
will bear the burden of proof ‘of absence of an employment relationship’.
However, in terms of the Directive, this reversal of the burden of proof
appears to apply only to the rules on dismissal.
a further obligation fits seamlessly into the regulatory purpose of the
Directive: the employer must provide the employee with proof of registration
with the social security authorities.
little out of place is Article 18b (new), which requires Member States to ‘ensure
that workers have access to social protection by extending formal coverage on a
mandatory basis to all workers, regardless of the type of their employment
relationship.’ This goes far beyond the intention to ensure greater
transparency of rights and obligations. Although this is ‘only’ a Directive,
the legal effect goes well beyond just a ‘Recommendation’. For example, the
admissibility of marginal wage thresholds is questionable, specifically
mini-jobs in Germany.
Parliament’s plenary is still to adopt the amendments.