Directive 2019/1152 on Transparent and Predictable Working Conditions, one of the main social achievements of the Commission Juncker, has been officially published on 11 July 2019 and entered into force on 31 July 2019. The member states now have three years (until 1 August 2022) to comply with its provisions.
The TPWC directive is undoubtedly one of the most important steps forward in the development of the EU social policy. It merely started as a revision of the old Written Statement Directive (91/533/EEC), which obliged employers to give their employees certain information at the start of their employment. However, the revisions got tangled up in the ambitious European Pillar of Social Rights project of the Commission Juncker. This did not only result in the widening of the original scope of the Written Statement Directive, but also in the addition of certain important rights for workers.
First, the TPWC Directive is applicable for every worker in the Union who has an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State, with consideration to the case-law of the Court of Justice. There was a long discussion if the concept of ‘worker’ should also include workers with an unclear employment status, e.g. the platform workers or freelancers. Although using the broader term ‘worker’ instead of ‘employee’, the Directive still refers to an “employment relationship as defined by the law”. It will have to be seen how this concept will evolve in the future, as the referral to the case-law of the CJEU leaves some room for interpretation. Moreover, Member States can decide not to apply the Directive to workers who work less than an average of three hours per week in a reference period of four consecutive weeks (thus 12 hours per month). This threshold is way lower than the one of the Written Statement Directive, which allowed the exclusion of employees who have an employment relationship of less than 1 month (or a working week of less than 8 hours).
Second, in Chapter II, the Directive includes the information obligations of the employer. Most of the enlisted information must be given in writing to the employee within seven days (for certain information the deadline is prolonged to a month). These terms are way shorter than the two months that were allowed by the Written Statement Directive.
Third and perhaps most importantly, the TPWC provides certain “new” rights to workers in its third chapter. Amongst others, it sets a maximum term of 6 months for a probationary period at the start of the employment. Also, it gives workers the right to take up employment with other employers, outside their work schedule, and prohibits employers to subject workers to adverse treatment because of this (there can be restrictions because of objective grounds, such as health and safety, the protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interests). Further, the Directive obliges a minimum predictability of work, by i.e. a reasonable notice period. It also asks member states to take actions to prevent abuse of on-demand employment, e.g. by setting limitations on the use and duration of on-demand or similar employment contracts. Next, workers with at least six months’ service with the same employer, may request a form of employment with more predictable and secure working conditions (where available) and receive a reasoned written reply (right to ask). Lastly, where an employer is required to provide training to a worker to carry out the work for which he or she is employed, such training should be provided to the worker free of cost, shall count as working time and, where possible, shall take place during working hours.
This article was provided by the law firm Van Olmen & Wynant, L&E Global’s member firm in Belgium.
For more information about Van Olmen & Wynant, please visit their website at www.vow.be