Surprise twist for access to social security.

Dr. WSW – 11/2018

The 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.

What 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’.

The 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.

The 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.

Finally, 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.

A 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.


The Parliament’s plenary is still to adopt the amendments.