Revised written statement directive: A step forward and missed opportunity at the same time

Today, the European Commission published a long-awaited legislative proposal on a revision of the EU written statement directive 91/533. Along with an extended 'information package' that employees should be obliged to receive when starting a new job and new minimum rights for a better predictability of work, the proposal suggests a rebranding of the legislation as "directive on transparent and predictable working conditions in the European Union". In CESI's view, the European Commission's proposal is a step forward and missed opportunity at the same time.

Revised written statement directive: A step forward and missed opportunity at the same time

The revision of the directive followed a process of two social partner consultations which CESI contributed to. Together with a forthcoming initiative for social protection for all, this revision is one of the European Commission’s cornerstone actions for fairer and better working conditions under the new European Pillar of Social Rights.

CESI Secretary General Klaus Heeger said: “The European Commission’s proposal can lay the foundation for more transparent and less arbitrary employment conditions for some groups of workers. However, it falls short of transforming the directive into a truly overarching framework directive for decent work for all, a priority which CESI had raised during the consultation phase.”

On the positive side, employers would in the future be obliged to provide workers, including those in new forms of employment – such as online and platform workers, should they be considered as employees in a de facto employment relationship – with more detailed information about their employment relationship than before. This could serve, if properly implemented, to bring less haphazard working hours, probation periods, remuneration, social security and more. “A more predictable employment relationship from day one has been a key concern for many workers in atypical forms employment. Effectively providing more information would be a good achievement. A lot would depend on a proper implementation in the Member States”, stated Klaus Heeger.

The European Commission also proposes a set of universal rights that should be valid for all workers, such as:

• a maximum probation duration period of 6 months;
• a ban for employers to prohibit workers from taking up employment with other employers outside the work schedule established with that employer (‘exclusivity clauses’) ;
•  predetermined reference work hours and reference work days for more predicable employment; and
• the possibility to request “a form of employment with more predictable and secure working conditions” for workers in atypical employment relationships with at least 6 months of seniority with the same employer.

“In principle, the set of rights proposed by the European Commission could bring major improvements. However, as always, the devil is in the detail. Exemptions and vague wording in several clauses may leave loopholes and render good ideas less effective.”

For instance:

• Member States may provide for longer probation periods than 6 months “in cases where this is justified by the nature of the employment or is in the interest of the worker”;
• employers may “lay down conditions of incompatibility” to circumvent bans on exclusivity clauses “where such restrictions are justified by legitimate reasons”;
• predetermined reference hours and reference days can be ignored if the workers is informed by their employers of a work assignment “a reasonable period in advance”; and
• the right to request a transition to another form of employment is no more than a right to request: The worker remains powerless if the employer chooses to turn down a request.

The European Commission’s proposal also leaves out any references to self-employed persons. Klaus Heeger noted: “More and more people are -involuntarily- economically active as independent self-employed even though they are in a de-facto dependent work relationship, and as such they cannnot enjoy the same social and labour rights as employees in traditional forms of employment. The role that the revised directive may potentially play to better the lives of those in bogus self-employment is still unclear.”

For the first time, the European Commission proposed in a legislative initiative a broad definition of the term ‘worker’ as “a natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration.” This technically includes those in bogus self-employment. However, during the consultation phase, CESI had advocated to use such a definition to turn the written statement directive into an overarching framework directive on decent work that specifically targets an end of bogus self-employment, as previously also advocated by the European Parliament. “It seems that the European Commission’s proposal constitutes, good ideas that it incorporates, only a ‘light version’ of a framework directive on decent work”, Klaus Heeger concluded.

During the upcoming negotiations on the directive between the European Parliament and the Council, CESI will push for clear wording for better working conditions for workers in Europe. CESI will also analyse to what extent the proposal and definition of the term ‘worker’ enshrined therin may still be useful to drive the agenda of bringing down spreading bogus self-employment in Europe.

The full legislative proposal is available on the European Commission’s website.

Picture: Klaus Heeger © CESI 2017