Transparent and predictable working conditions in the EU

KEY POINTS

The directive is issued in the context of Article 31 of the Charter of Fundamental Rights of the EU which says that every worker has the right to working conditions which respect the worker’s health, safety and dignity, which limit the maximum number of working hours, to daily and weekly rest periods and to an annual period of paid leave. It is also a concrete follow-up of Principles 5 and 7 of the European Pillar of Social Rights.

Who is covered?

The directive applies to those who work more than 3 hours per week over a 4-week period (i.e. more than 12 hours per month) who are bound by an employment contract or in an employment relationship as defined by national law, collective agreements or practice in force in each EU country — with consideration to the case-law of the Court of Justice of the EU. Persons covered could include workers on zero-hour contracts, such as fast-food-chain workers, workers in logistical centres, shelf-stackers in supermarkets, domestic or voucher-based workers¹ and platform-economy workers, such as on-demand drivers or couriers, provided they fulfil the above criteria defining a worker.

Civil servants, the armed forces or members of emergency and law enforcement services may, on objective grounds, be excluded from Chapter III of the directive (Minimum requirements relating to working conditions).

Employment relationship

Employers must inform workers in writing, and at the latest within a week from the first working day, of the basic elements of the employment relationship, including:

• the identity of the parties to the employment relationship, the place of work and the nature of the activity;
• the start date and, if it is fixed-term, end date, as well as the duration and conditions of any probationary period;
• basic pay, any other component of remuneration, including overtime, and the frequency and method of payment;
• the duration of the normal workday or week when the work rhythm is predictable;
• where the pattern of work is unpredictable, employers must inform workers of the reference hours and days on which they may be called upon to work, the minimum notice before starting work and the number of guaranteed paid hours.

For supplementary information as indicated just below, the deadline for employers to inform workers is at the latest 1 month from the first working day:

• the duration of paid leave;
• any training entitlement;
• any collective agreements governing the worker’s conditions;
• the identity of the social security body receiving social contributions, where this is the employer’s responsibility;
• notice periods where the employment relationship is terminated or the method for determining such notice periods;
• for temporary agency workers, the details of the user-undertakings (i.e. those making use of the agency workers’ services) when and as soon as known.

Workers relocated (posted) to another EU country or to a non-EU country

Employers must provide relevant documents before departure including at least the following additional information:

• countries where the work is to be carried out and its expected duration;
• currency of payment;
• where applicable, benefits in cash or kind relating to the work assignments;
• information on whether repatriation is provided for, and the applicable conditions.

Posted workers covered by Directive 96/71/EC (see summary here) must in addition be notified of, among other things:

• the applicable remuneration under the law of the host EU country;
• where applicable, any allowances specific to posting and any arrangements for reimbursing expenditure on travel and accommodation costs.

Minimum requirements for the employment contract

The directive sets a number of minimum rights for workers, including the right to:

• not have the probationary period exceed 6 months, unless it is in the worker’s interest or when the activity justifies it;
• work for another employer outside the established working hours without unfavourable treatment, unless incompatibility restrictions are justified on objective grounds;
• for workers whose work pattern is decided by the employer and is entirely or mostly unpredictable, the right to refuse a work assignment outside previously defined reference hours and days without suffering adverse consequences;
• request, after six months’ service with the same employer, a job with more predictable and secure working conditions;
• receive training cost free, when the employer is required by EU or national legislation or collective agreements to provide such training.

EU countries may allow the social partners to conclude collective agreements which establish working conditions that differ from those referred to just above, provided that the overall protection of workers is respected.

On-demand contracts²

EU countries which allow the use of on-demand contracts or similar employment contracts (e.g. gig-economy or zero-hour contracts) must take measures to avoid abusive practices, such as:

• limiting the use and duration of on-demand employment or similar contracts;
• putting in place a rebuttable presumption³ that an employment relationship exists, with a guaranteed number of paid hours based on hours worked in a preceding reference period.

Complaints, redress, protections and dismissals

EU countries must:

• ensure that workers who have not received the relevant information in due time have access to at least one of the following two measures:
  • submit a complaint to a competent authority and receive redress in a timely and effective manner; or
  • benefit from favourable legal presumptions
• ensure that workers, including those whose employment relationship has ended, have access to effective and impartial dispute resolution and a right to redress⁴;
• introduce measures to protect workers from any adverse treatment by the employer and from any adverse consequences resulting from a complaint lodged with the employer;
• take measures to prohibit workers being dismissed because they have exercised the rights outlined in the directive.

The directive does not constitute justification for reducing the general level of protection already enjoyed by workers in the EU, and does not prevent EU countries from adopting legislation that is more favourable to workers.

Repeal

The directive repeals Council Directive 91/533/EEC on Informing employees of their working conditions from 1 August 2022.