Directive on transparent and predictable working conditions

On 13 June 2019, the Council of Ministers approved the Directive on transparent and reliable working conditions adopted by the European Parliament on 16 April 2019. The legislation introduces new minimum rights and rules on information on working conditions to be made available to workers. Member States now have three years to transpose the Directive into national law.

 

The Directive is closely linked to the proclamation of the European Pillar of Social Rights by the European Parliament, the Council and the Commission on 17 November 2017. The aim is to extend the protection of workers in non-standard forms of employment (see also article Feb-2019).

Overview of the Directive

The new Directive will apply to workers in Europe who work more than 12 hours a month. It will also apply to forms of employment which, up to now, have not been sufficiently protected. This includes domestic workers, part-time workers and those with very short contracts. New forms of employment will also be covered, such as on-demand workers, voucher-based workers and platform workers.

Employer’s obligation to provide information when establishing an employment relationship

An employer is obliged to inform the employee promptly of the essential conditions of the employment relationship. This changes the previous provisions of the Directive on an employer’s obligation to provide information. The German Act on Notification of Conditions,  which is a transposition of the Council Directive, requires employers to document the essential employment conditions in writing, sign the documentation and hand it over to the employee no later than one month after the agreed commencement of the employment relationship.

 

According to the new Regulation, the employer must provide the employee with the most important information within the first week (electronic format is now also possible) and all further information within the first month. This most important information includes the personal details of the parties to the employment relationship, the place of work, the type of work, the agreed working hours, the initial basic amount of remuneration and the amount of paid leave.

 

There are additional rules for on-demand work. An employer must inform the employee of the time slots in which they can be asked to work, the minimum notice period they are to receive prior to the start of a work order, and the number of guaranteed paid hours.

Minimum conditions for workers

The Directive sets out a number of additional minimum rights for workers, including the following:

• they can simultaneously take up employment with another employer;
  
• the probation period shall not exceed six months, and
  
• longer probation periods are permissible only if this in the interest of the employee or is justified by the nature of the employment;
  
• workers who have worked with the same employer for at least six months may request a form of employment with more predictable and secure working conditions; and
  
• training must be provided free of cost if required by Union or national law.
  

Right of recourse for workers

The Directive provides Member States with two options for responding to a failure to inform a worker:

 

Either there is a presumption, which the employer can rebut, that the worker concerned is employed full-time and without a probationary period for an indefinite period if the employer does not inform them of the duration, scope and probationary period,

 

or

 

the worker has the opportunity to lodge a complaint with a competent authority in a timely manner and to receive a satisfactory reply within a reasonable time period. If the competent authority finds that the complaint is justified, it shall instruct the employer or employers concerned to provide the missing information. If the employer fails to provide the missing information within the time limit set by the competent authority after receipt of the instruction, the authority shall have the possibility of imposing an appropriate penalty, even after the end of the employment relationship.

 

The burden of proof in the event of dismissal has now been reversed. If the employer terminates the employment relationship and the employee disputes this, the burden of proof now lies with the employer to prove that this dismissal did not take place because the employee exercised the rights provided for in the Directive.