In order to improve working conditions, the European Council will adopt the Directive in order to increase the transparency and predictability of working conditions throughout the European Union. The new legislative text sets out new minimum rights and new information that employees should receive regarding their working conditions. The main objective is to respond to the challenges facing the labor market, as a consequence of demographic developments, new technologies and new forms of work provisions.
With the adoption of the Directive 2019/1152 (EU) of the European Parliament and Council (20th June 2019), millions of employees will have more transparent and foreseeable working conditions within the European Union, modernizing and adapting European labor legislation to the new working environment. A significant percentage of these workers support the provision of services on atypical forms of employment, such as zero-hour or part-time contracts. This regulation aims to define a series of minimum workers’ rights, such as the limitation of testing periods, clearer working conditions and the minimum hours of service provision.
It is important to clarify that the Directive does not establish laws, nor methods; nor does it provide specification in its application, a rule which is instead carried out by the Member States. However, in compliance with the requirements laid down by the Court of Justice of the European Union regarding the determination of the worker’s “status”, domestic workers, as well as on-demand workers, intermittent workers, voucher-paid workers, digital platform workers, trainees and apprentices may fall within the scope of this Directive.
Those who are self-employed are left out of such a “status”, although it is important to note that the new figure of the “false self-employed” would fall within the scope of the Directive, which will give more than one headache to the lax Member States in the regulation of this pseudo-legal figure which we have created.
Member States shall decide on the application of certain provisions of the Directive to public officials, armed forces, police, judges and prosecutors, or domestic employees, as well as part-time contracts which are less than four hours per week. It shall not apply to sea workers.
The obligations established by the Directive are set out around the essential elements of the employment relationship and employment contracts:
- Free compulsory training
- Work schedule
- Test period (six months maximum)
- Remuneration
- Working hours
- Termination of the work contract
- Functions and tasks of the job
- Transition to other forms of contract
- Prevention of over-time employment (health and safety reasons)
This information, and that relating to laws, regulations, administrative, statutory or conventional provisions governing the legal framework of the employment relationship, must be available in a general, free, clear, transparent, comprehensive and easily accessible remotely and by electronic and digital means.
The regulation considers measures for on-demand contracts, limiting the use and duration of contracts and their abusive and/or fraudulent use, establishing a minimum number of hours paid on the average number of hours worked over a given period.
States shall also ensure that elderly workers be given a period of six months in order to transition to other forms of employment, establishing, through the foreseen procedure, working conditions that offer predictability and security, the response of which should be motivated in writing.
Regarding employees who are posted elsewhere, the Directive lays down a provision with information which should be provided to posted workers to another member country or third party countries:
- Country or countries of provision of services and expected duration
- Determined currency with which it is remunerated
- Conditions of posting
- Information on repatriation
Member Countries may not apply such provisions on posted workers if the duration of travel is equal to or less than four consecutive weeks.
The Directive also takes conflict and litigation into account, proactively resolving disputes, and if the employee does not receive the information then the regulation established must be provided. To this end, States may assert favorable presumptions and coordinate competent and appropriate conciliation mechanisms upon termination of this rule. Member States shall ensure that workers have access to impartial and effective dispute resolution, with the capability to enforce and repair legal breaches by employers and businesspeople. The protective measures necessary for workers and their representatives shall be included to avoid any unfavorable treatment as a result of actions in order to enforce the provisions of the Directive and its effective transposition into the law of Member States.
It is important to note that the Directive 91/533/EEC, which will be repealed with effect from 1st August 2022, remains in force, and the measures of the current Directive shall be applicable three years following the entry of the Directive.
Authors: Patricia Arias and Ricardo Acosta
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