Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on transparent and predictable working conditions in the European Union • MEUSAC Consultation Session • 21 st May 2018 1
Reasons for proposal In the last 25 years, there has been a growing flexibilisation of the labour market. In the last ten years, more than half of all new jobs were ‘non - standard’ . Inadequate legal frameworks can subject ‘non - standard’ workers to unclear and unfair practices. 2
Reasons for proposal Member States and national social partners have tackled this differently and this has led to an increasingly diverse regulatory system across the EU. The REFIT programme identified weaknesses in the existing Directive. Public Consultation on the European Pillar of Social Rights highlighted gaps between the current EU social acquis and recent developments on the labour market. 3
Objectives Generally, to promote more secure and predictable employment Specifically, to improve - • workers’ access to information regarding their working conditions • working conditions of all workers (including new/non standard employment) • compliance through enhanced enforcement, and • transparency while avoiding imposition of burdens on the employer. 4
Consultation Public Consultation (Jan-April 2016): There is a growing need to define and apply appropriate rights for ‘non - standard’ workers. Two-phase Consultation with social partners: Trade Unions in favour of clarifying and broadening the personal scope of the current Directive; Employers’ organizations opposed the extensions of the scope and the new deadline within which the written statement is to be provided. 5
(1) MS may decide not to apply the obligations to workers who have an employment relationship equal to or less than 8 hours in total in a reference period of one month. Current Directive/Maltese Law – Regulations do not apply to employees • engaged for less than a month, or • with a working week up to eight hours, or • who have been employed to perform a specific defined task as long as the non-application is justified by objective considerations. 6
(2) Information to employees – New requirements: • The place of work; where there is no fixed or main place of work, the principle that the worker is employed at various places or is free to determine his or her place of work; • The duration and conditions of the probationary period, if any • Any training entitlement provided by the employer • The procedure, including length of notice, in case of termination 7
• If the work schedule is entirely or mostly not variable, the length of the worker's standard working day or week and any arrangements for overtime and its remuneration; 8
• if the work schedule is entirely or mostly variable, the principle that the work schedule is variable, the amount of guaranteed paid hours, the remuneration of work performed in addition to the guaranteed hours and, if the work schedule is entirely or mostly determined, by the employer: the reference hours and days within which the worker may be required to work; the minimum advance notice the worker shall receive before the start of a work assignment; 9
• the social security institution(s) receiving the social contributions attached to the employment relationship and any protection relating to social security provided by the employer. 10
(3) The information shall be provided individually to the worker in the form of a document at the latest on the first day of the employment relationship. Current directive holds that this information is to be provided within 2 months from the commencement of employment. Our regulations hold that this information shall be forwarded by not later than eight working days from the commencement of employment. 11
To facilitate matters for the employer, this proposal includes the requirement that Member States are to develop templates and models for the written statement and to make information on national laws or provisions and relevant collective agreements available to employers in an accessible format. Malta may have a problem with the availability of collective agreements clause as these are enterprise-based and are considered to be private agreements. 12
(4) Any change shall be provided in the form of a document by the employer to the worker at the earliest opportunity and at the latest on the day it takes effect. The previous directive held a two month limit, in our case this is a 8-day limit (from the date on which the changes come into effect). 13
(5) Where a worker is required to work in another Member State or third country, including posted workers, the document shall be provided before his or her departure and shall include additional information such as the country, duration, currency etc. Already implemented in our law 14
(6) Where an employment relationship is subject to a probationary period, that period shall not exceed six months, including any extension. Member States may provide for longer probationary periods in cases where this is justified by the nature of the employment or is in the interest of the worker. New proposal but already implemented in our law; the first 6 months of a contract of employment unless parties agree to a shorter period, one year in case of TEAM employees who earn at least double the minimum wage unless contract/collective agreement sets otherwise. 15
(7) An employer shall not prohibit workers from taking up employment with other employers, outside the work schedule established with that employer. May however lay down conditions of incompatibility where such restrictions are justified by legitimate reasons such as the protection of business secrets or the avoidance of conflicts of interests. This would be a new legal provision for Malta. 16
(8) Where a worker's work schedule is variable and determined by the employer, the worker may be required to work by the employer only: (a) if work takes place within predetermined reference hours and reference days, established in writing at the start of the employment relationship, (b) if the worker is informed by the employer of a work assignment a reasonable period in advance. This would be a new introduction in our law. 17
(9) workers with at least six months' seniority with the same employer may request a form of employment with more predictable and secure working conditions where available. The employer shall provide a written reply within one month of the request. This would be a new introduction in our law. 18
(10) It is being proposed that where employers are required to provide training, such training shall be provided cost-free to the worker. This would also be a new introduction in our law. 19
(11) Where a worker has not received in due time all or part of the documents and the employer has failed to rectify that omission within 15 days of its notification, one of the following systems shall apply: (a) the worker shall benefit from favourable presumptions . Employers shall have the possibility to rebut the presumptions; or 20
(b) the worker shall have the possibility to submit a complaint to a competent authority and if the latter finds that the complaint is justified, it shall order the relevant employer(s) to provide the missing information. If the employer does not provide the missing information within 15 days following receipt of the order, the authority shall be able to impose an appropriate administrative penalty. 21
(12) Workers to have access to effective and impartial dispute resolution and a right to redress, including adequate compensation, in case of breach. In our case, the Regulations do not provide for compensation. 22
(13) Prohibition of Victimisation Law is already in place in Malta 23
(14) Prohibition of dismissal on the grounds that a worker exercised the rights provided for in this Directive. Workers may request the employer to provide duly substantiated grounds for the dismissal or its equivalent. The employer shall provide those grounds in writing. When such workers establish, before a court or other competent authority, facts from which it may be presumed that there has been such dismissal or its equivalent, it shall be for the respondent to prove that the dismissal was justified. 24
(15) Effective, proportionate and dissuasive penalties. Criminal fines are imposed in our law. 25
Thank You • 26
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