Transparent working conditions for false self-employed workers in the European Union
The Directive (EU) 2019/1152, of June 20, 2019, aims to improve working conditions by promoting employment that offers greater transparency and predictability, while ensuring the ability to adapt the labor market . Thus, it establishes the minimum rights applicable to all Union workers who have an employment contract or an employment relationship as defined by legislation, collective agreements or practice in force in each Member State.
The new forms of employment
The new regulation recalls that since the adoption of Directive 91/533 / EEC, which is now repealed, labor markets have undergone profound changes, induced by demographic changes and digitalization, which have led to the creation of new forms of employment , some of which diverge significantly, as regards their predictability, from traditional labor relations, which generates uncertainty regarding the rights and social protection applicable to the affected workers. In this changing work environment there is therefore a growing need for workers to have complete information regarding their essential working conditions.
Provided they meet the criteria established by the Court of Justice to determine the status of a worker, domestic workers, on-demand workers, intermittent workers, workers compensated by vouchers, workers on online platforms, trainees and apprentices may be included in the scope of the new Directive. Not so the workers who really are on their own, since they do not meet these criteria.
False self-employment occurs when a person is declared as a self-employed worker even when the conditions of an employment relationship are met, in order to avoid certain legal or fiscal obligations. These workers, says the text that has just been approved by the Union, must fall within the scope of application of the Directive, since the determination of whether or not there is an employment relationship should be guided by the facts relating to the work actually performed.
Area of application
Member States should be able to decide, when justified by objective reasons, that certain provisions of the new Directive do not apply to certain categories of public officials, public emergency services, armed forces, police authorities, judges, prosecutors , investigators or other security forces or bodies, or natural persons acting as employers of domestic workers in the home, to whom certain requirements will not apply.
In addition, Member States may decide not to apply the obligations laid down for workers who have an employment relationship in which the predetermined and actual working time is equal to or less than an average of three hours per week in a reference period of four years. consecutive weeks. The time worked for all employers who are part of the same company, the same group or the same entity, or belong to them, will count for the average of three hours. This will not apply to an employment relationship in which a guaranteed amount of paid work has not been predetermined before employment begins.
In addition, the requirements for parallel employment should not be applied to seafarers or fishermen when it is incompatible with the work done on board vessels or fishing vessels, the minimum predictability of work, the sending of workers to another State Member State or a third country, the transition to another form of employment and the provision of information on the identity of the social security institutions receiving social contributions.
Information about the employment relationship
With regard to the obligations regarding the information that must be provided to workers, the rule stipulates that employers must inform employees in writing about the essential elements of their employment relationship, detailing the minimum content of such information: training , work schedule, remuneration, work time, procedure to terminate the relationship, social security systems and rights and obligations arising from their employment relationship, among others.
The text regulates the moments in which this information has to be provided to the worker and contemplates the possibility that it may also be presented in electronic format.
It also provides for the Member States to prepare templates and templates for the documents in which the aforementioned information must appear, which must be made available to workers and employers, including by making them available on a single official website at national or by other suitable means. It must also be ensured that information regarding legal, regulatory, administrative or statutory provisions or universally applicable collective agreements that regulate the applicable legal framework that employers must communicate is available in a generalized, free, clear, transparent and exhaustive manner. easily accessible remotely and by electronic means, included through existing online portals.
With regard to the modification of the employment relationship, the rule provides that employers provide the worker, in the form of a document, any change in aspects of the employment relationship included in the information provided, unless such changes simply reflect a change of the legal, regulatory, administrative or statutory provisions or of collective agreements.
Finally, the text includes the complementary information that must be provided to workers sent to another Member State or to a third country, specific to their situation. At a minimum, it should refer to the country or countries in which the work should be carried out and the expected duration of the work; the currency for the payment of the retribution; where appropriate, benefits in cash or in kind linked to the assigned task, and information on whether repatriation is planned and, if so, the repatriation conditions of the worker.
Minimum requirements related to working conditions
In the first place, the new Directive establishes that the trial period should not exceed six months. It may exceed that period when justified by the nature of the job or in the interest of the worker. In fixed-term employment relationships, the duration of the trial period must be proportional to the expected duration of the contract and the nature of the work. And in case of renewal of a contract for the performance of the same function and tasks, the employment relationship will not be subject to a new trial period.
Regarding parallel employment, the rule states that no employer should be able to prohibit a worker from accepting work from other employers outside the work schedule established with that employer, nor subjecting a worker to unfavorable treatment for that reason. However, Member States may establish conditions for recourse to incompatibility restrictions based on objective grounds such as protection of the health and safety of workers, including working time limits, protection of business confidentiality, integrity of public service or the prevention of conflicts of interest.
On the other hand, the text provides that workers with a total or mostly unpredictable work pattern must have a minimum level of predictability if the work schedule is determined mainly by the employer, either directly, for example, by assigning tasks, or indirectly, for example, forcing the worker to respond to customer requests.
Thus, the days and hours of reference must be established in writing at the beginning of the employment relationship, which must be understood as time frames in which the employer can request the worker’s services. And the period of notice is considered a necessary element of predictability of work, the duration of which may vary according to the needs of the sector in question, provided that adequate protection of the workers is guaranteed. Workers must have the possibility to reject an assigned task if it is outside the reference days and hours or if they have not been notified of the assigned task within the established minimum notice period.
The new Directive also contemplates the adoption of complementary measures for contracts on demand, such as limitations on the use and duration of contracts on demand or similar labor contracts, a rebuttable presumption of the existence of a work contract with a minimum amount of hours paid on the basis of the average number of hours worked during a specific period or others that guarantee an effective prevention of abusive practices.
The regulation regulates the transition to another form of employment, with Member States guaranteeing that a worker with a minimum of six months’ employment with the same employer, who has completed his probationary period, if required, can apply for a form of employment with working conditions that offer greater predictability and security, if any, and receive a motivated response in writing.
Likewise, the Member States must ensure that the employer provides free of charge to the worker the training that is required either legally or by collective agreement during work hours, if possible, and calculated as working time.
Dispute resolution
The norm incorporates an early dispute resolution mechanism if the worker has not received all the documentation with the information that must be provided to him (or the worker will benefit from the favorable presumptions defined by the member state, that the employers will have the possibility of refuting, or may submit a claim to a competent authority or body and receive adequate reparation in a timely and effective manner).
In addition, Member States must ensure that workers, including those whose employment relationship has ended, have access to effective and impartial dispute resolution and the right to redress in case of non-compliance with the rights recognized. In addition, they must incorporate necessary measures to protect workers, including those who represent workers, against any unfavorable treatment by the employer or against any unfavorable consequences resulting from the filing of a claim against the employer or any proceedings initiated with the employer. objective of enforcing the rights established in the Directive.
Legislative modifications
Directive 91/533 / EEC is repealed with effect from 1 August 2022. References to the repealed Directive shall be construed as references to the new Directive.
Entry into force, transposition and transitional regime
The Directive (EU) 2019/1152, of June 20, 2019, will enter into force on July 31, 2019, twenty days after its publication in the Official Journal of the European Union.
The Member States shall take the necessary measures to comply with the provisions of the new Directive no later than 1 August 2022.
The rights and obligations established in the new Directive will apply to all labor relations no later than August 1, 2022. However, an employer will submit or complete the documents referred to in Article 5, paragraph 1, Article 6 and Article 7 only upon request of a worker who is already hired on that date. The absence of such a request shall not result in the exclusion of workers from the minimum rights provided for in articles 8 to 13.