Legislative Framework

The EU regulation to ensure effective and sustainable respect for employee participation is Directive 2002/14/EC of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community. It emphasises the need to strengthen dialogue and promote mutual trust within undertakings to improve the predictability of risks, make work organisation more flexible and facilitate access to training, while maintaining safety, raise awareness of the need to adapt to new requirements, improve employability, promote workers’ involvement in the activities and future of the undertaking, including the improvement of its competitiveness.

Directive 2002/14/EC of 2002 refers to workers as any person protected in the Member State concerned by national labour law and in accordance with national practice.

In addition, an employer is any natural or legal person who, in accordance with national law and practice, has an employment contract or employment relationship with workers.

IMPORTANT

The employment contract is the legal relationship that provides the most protection for the worker.

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In the eyes of the public, the employment contract is the most desirable basis for employment as it gives most rights to working people.

These include, for example:

• specific wage protection;
• application of working time standards, daily and weekly rest, breaks and time off, limits on overtime;
• granting of annual leave, maternity leave, parental leave;
• limited material liability;
• training;
• compliance with dismissal procedures;
• health and safety at work;
• social security and benefits.

Workers’ rights include participation understood as information on:

• the recent and probable development of the activities of the undertaking or establishment and its economic situation;

as well as consultation on:

• the situation, structure and probable development of employment in the undertaking or establishment and the measures envisaged in the event of a threat to employment;
• decisions which are likely to lead to substantial changes in the organisation of work or in contractual relations.

Timely information and consultation is a prerequisite for the successful restructuring and adaptation of undertakings to the new conditions created by the globalisation of the economy, in particular with regard to the development of new forms of work organisation. The strengthening of social dialogue is aimed at treating employment as a priority objective, for the achievement of which the concepts of “anticipation”, “prevention” and “employability”, integrated in all public programmes and business strategies. The protection of workers’ interests in the context of the emergence of atypical forms of work is provided for in Directive (EU) 2019/1152 of 20 June 2019 on transparent and predictable working conditions in the European Union. This Directive defines new (additional) minimum rights to promote security and expected (planned) employment relationships, while contributing to convergence and maintaining the adaptability of the labour market in view of the development of flexibility and the need for employers to adapt to economic change. Irrespective of the type and duration of paid employment, the right to fair and equal treatment as regards working conditions, access to social protection and training should be guaranteed and the transition to permanent forms of employment should be supported. Innovative solutions to ensure quality in work should also be promoted, as well as the promotion of entrepreneurship and self-employment and the facilitation of labour mobility.

IMPORTANT

According to Directive (EU) 2019/1152 of 2019, the employer should guarantee stable employment and provide decent and safe working conditions. At the same time, he has the right to implement flexibility, but within reasonable limits.

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Atypical contracts should not be abused and should not lead to insecurity in labour relations. National legislation and collective agreements should ensure the safety of workers and a high quality of work, which can be achieved through the necessary flexibility that prevents abuse and does not allow workers to be exploited because of their weaker position in relation to the employer. According to Directive (EU) 2019/1152 of 2019, workers with atypical status, such as homeworkers, on-demand workers, casual workers, those covered by a service voucher scheme, those using intermediary online platforms, as well as trainees and apprentices, may be covered by the Directive, provided that they meet the criteria for being a worker. At the same time, it should be stressed that abusive self-employment is a form of bogus work, where the aim is to avoid legal or tax obligations, although the way the tasks are performed meets the conditions characteristic of an employment relationship. Directive (EU) 2019/1152 of 2019 does not negate atypical forms of work, but supports the transition to more secure employment when employers have the possibility to offer such an arrangement to workers, i.e. full-time and permanent work.

Other directives laying down the principles of protection at work refer to workers in the traditional sense, i.e. those who perform their tasks on the basis of an employment relationship characterised by features such as indefinite, full-time, subordinate, local, team-based, hierarchical.

If fixed-term contracts are considered as flexible employment, Directive 99/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work provides for non-discrimination, prevention of abuse, training, information and consultation, thus bringing the level of protection closer to that of open-ended contracts. However, the main difference concerns the duration of the relationship between the parties, which is limited to a fixed period. Although it is recognised that in certain situations there may be a need for a relatively short-term employment relationship tailored to the needs of both the employer and the employee, the aim should be a legal relationship that binds both parties for an indefinite period.

,IMPORTANT

A fixed-term worker is a person who has an employment contract or employment relationship directly with an employer, the termination of which is determined by objective conditions such as the arrival of a precise date, the completion of a specific task or the occurrence of a specific event.

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Part-time work is one of the flexible forms of employment. In order to improve the situation of this group of workers, Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by the Union of Industrial and Employers’ Confederations of Europe (UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trade Union Confederation (ETUC) laid down general principles and minimum requirements aimed at eliminating discrimination and abuse through the provision of lower-quality work. In some selected sectors and activities, part-time work is a specific feature. It allows workers to prepare for retirement, to reconcile work and family life, and to take advantage of education and training opportunities to improve their skills and develop their careers, which also benefits entrepreneurship, competition and the health of the economy. Employers may not treat part-time workers less favourably than comparable full-time workers unless the difference in working conditions is justified by objective reasons.

IMPORTANT

A part-time worker is a person whose normal number of working hours, calculated on a weekly average or on the basis of an average over a period of employment of up to one year, is less than the normal number of working hours of a comparable full-time worker doing the same or a similar job (occupation), taking into account other factors such as: seniority (experience), qualifications or skills.

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Given the important role of part-time work, it should be encouraged and legal or administrative barriers which may limit its use should be removed. In particular, it should be implemented through collective agreements or other agreements between the social partners. Employers are free to manage work according to their size, but with the proviso that if a worker refuses to move to the proposed full-time position (from full-time to part-time or vice versa), they may not treat this decision as a reason for dismissal or impose a specific penalty.

One of the examples of atypical employment is temporary work, which consists in placing a worker with a user employer to perform tasks for him. The placement is carried out by an agency, which is responsible for the proper selection of staff and the maintenance of employment records. The user employer only supervises and manages the work process. The law regulating working conditions is Directive 2008/104/EC of 19 November 2008 on temporary agency work. It emphasises the importance of this form of work in contributing to job creation and increasing people’s participation in the labour market. It establishes a legal framework for the protection of temporary agency workers and is characterised by non-discrimination, transparency and proportionality, while respecting the diversity of labour demand and labour relations. An important aspect of improving the quality of temporary work is the definition of the grounds on which its use is permitted and the standardisation of the mutual obligations of the temporary agency and the user employer towards the temporary agency worker, which should effectively promote appropriate forms of flexible employment.

IMPORTANT

For the purposes of Directive 2008/104/EC, a worker is any person who, in a Member State, is protected as a worker under the applicable labour law. On the other hand, a temporary agency worker is a person who is employed by a temporary agency under a contract of employment or an employment relationship with that agency for the purpose of performing work on a temporary basis under the supervision and direction of a user undertaking.

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The employment standards document is the European Pillar of Social Rights of 17 November 2017, which is a set of twenty fundamental principles and assumptions adopted to achieve economic growth and fair and desirable working conditions in the Member States. These include:

• equal opportunities and access to employment including education, training and lifelong learning; gender equality, equal opportunities, active employment support;
• fair working conditions including secure and flexible employment, pay, information on working conditions and protection in the event of dismissal; dialogue and social participation of workers, reconciliation of work and family life, a healthy, safe and adapted working environment; and protection of personal data. The adoption of the European Pillar of Social Rights was justified by the fact that labour markets and societies are evolving rapidly, with globalisation, the digital revolution, changes in work patterns and demographic and social trends creating new opportunities, challenges and needs, which certainly include atypical employment.

The European Pillar of Social Rights stresses that the transition towards open forms of employment should be supported and that employers should be given the necessary flexibility, in accordance with legislation and collective agreements, to enable them to adapt smoothly to changes in the economic context. Innovative forms of employment that ensure high quality working conditions should be promoted, entrepreneurship and self-employment should be encouraged, and labour mobility should be facilitated. At the same time, it is necessary to prevent the emergence of employment relationships that lead to precarious working conditions. It is therefore legitimate to prohibit the abuse of atypical contracts.