COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Directive of the European Parliament and of the Council on transparent and predictable working conditions in the European Union - Hoofdinhoud

Council of the European Union

Brussels, 22 December 2017 (OR. en)

16018/17

Interinstitutional File: ADD 1

2017/0355 (COD) i

SOC 829 EMPL 629 DIGIT 290 CODEC 2147

COVER NOTE

From: Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 21 December 2017

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of the European Union

No. Cion doc.: SWD(2017) 478 final

Subject: COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Directive of the European

Parliament and of the Council on transparent and predictable working conditions in the European Union

Delegations will find attached document SWD(2017) 478 final.

Encl.: SWD(2017) 478 final

EUROPEAN COMMISSION

Brussels, 21.12.2017 SWD(2017) 478 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Accompanying the document

Proposal for a Directive of the European Parliament and of the Council

on transparent and predictable working conditions in the European Union

{COM(2017) 797 final i} - {SWD(2017) 479 final}

Table of Contents

• 1. 

  INTRODUCTION: POLITICAL AND LEGAL CONTEXT ............................................................... 5

• 2. 

  PROBLEM DEFINITION .................................................................................................................... 7

2.1 What are the problems? ..................................................................................... 7

2.2 What are the problem drivers? .......................................................................... 9

2.2.1. Some workers do not receive a written statement of their working

conditions .................................................................................................................... 9

2.2.2. The information included in the written statements may sometimes be not

sufficient and/or provided too late ............................................................................ 14

2.2.3. Enforcement mechanisms do not guarantee effective implementation of the

legal provisions ......................................................................................................... 15

2.2.4. An increased instability and lack of predictability in some working

relationships .............................................................................................................. 16

2.2.5. Decreased transparency in the labour market ................................................. 20

2.3 Why is it a problem? ........................................................................................ 21

2.3.1. Workers ........................................................................................................... 21

2.3.2. Business........................................................................................................... 23

2.3.3. Member States ................................................................................................. 25

2.4 How will the problem evolve? ........................................................................ 26

• 3. 

  WHY SHOULD THE EU ACT? ........................................................................................................ 28

3.1 Legal basis ....................................................................................................... 28

3.2 Results of the social partner consultations ...................................................... 29

3.3 Subsidiarity: Necessity of EU action and added value of EU action .............. 30

• 4. 

  OBJECTIVES: WHAT IS TO BE ACHIEVED? ............................................................................... 33

• 5. 

  WHAT ARE THE CONSIDERED POLICY MEASURES? .............................................................. 34

5.1 What is the baseline from which options are assessed? .................................. 34

5.2 Measures discarded at an early stage ............................................................... 35

5.3 Considered policy measures ............................................................................ 37

• 6. 

  WHAT ARE THE POLICY OPTIONS AND THEIR IMPACTS? .................................................... 52

6.1 Options: Four policy packages ........................................................................ 52

6.2 Impacts of the options ..................................................................................... 54

• 7. 

  HOW DO THE POLICY OPTIONS COMPARE? ............................................................................. 65

• 8. 

  PREFERRED OPTION ...................................................................................................................... 68

8.1 Overall impacts ................................................................................................ 70

8.2 REFIT (simplification and improved efficiency) ............................................ 78 8.3 Subsidiarity and proportionality .......................................................................... 81

• 9. 

  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................................. 82

9.1. Monitoring .......................................................................................................... 82

9.2. Evaluation ........................................................................................................... 86

ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 88

ANNEX 2: STAKEHOLDER CONSULTATION ....................................................................................... 92

• 1. 

  Results of the first phase Social Partners consultation .................................... 92

• 2. 

  Results of the Second phase Social Partners consultation ............................... 95

  • 3. 

    Results of the public consultation on the European Pillar of Social Rights ............................................................................................................. 100

  • 4. 

    Results of the public consultation for the REFIT evaluation of the Written Statement Directive .......................................................................... 100

ANNEX 3: WHO IS AFFECTED AND HOW? ........................................................................................ 101

• 1. 

  Practical implications of the initiative ........................................................... 101

• 2. 

  Summary of costs and benefits ...................................................................... 102

• 3. 

  The SME Test – Summary of results ............................................................ 106

• 4. 

  Comparison of administrative costs to employers: SME v large firms ......... 110

• 5. 

  SMEs analysis: employer survey results ....................................................... 112

ANNEX 4: ANALYTICAL METHODS ................................................................................................... 116

• 1. 

  Research stages .............................................................................................. 116

• 2. 

  Approaches used to estimate numbers of non-standard workers .................. 121

• 3. 

  Impact assessment methods ........................................................................... 126

• 4. 

  Some specific methodological assumptions .................................................. 132

• 5. 

  Multi-criteria analysis .................................................................................... 139

ANNEX 5: .................................................................................................................................................. 146

GLOSSARY ............................................................................................................................................... 146

ANNEX 6: FURTHER INFORMATION ON RELEVANT NEW AND NON-STANDARD

FORMS OF WORK .......................................................................................................................... 147

ANNEX 7: SUMMARY OF EU SOCIAL ACQUIS ................................................................................. 169

ANNEX 8: FURTHER INFORMATION ON CONSIDERED POLICY MEASURES ............................ 175

• 1. 

  A scope of application encompassing all EU workers, in particular the most precarious .............................................................................................. 175

• 2. 

  A right to information on the applicable working conditions ............................. 177

• 3. 

  Shortening the two-month deadline for issuing a written statement ................... 178

• 4. 

  New minimum rights for all workers .................................................................. 179

• 5. 

  Enforcement ........................................................................................................ 187

• 6. 

  Overview of legal changes required per Member State ...................................... 190

• 7. 

  Mapping of relevant collective agreements ......................................................... 198

ANNEX 9: FURTHER INFORMATION ON IMPACTS OF POLICY PACKAGES B, C AND D ........ 201

• 1. 

  Impacts of policy package B ............................................................................... 201

• 2. 

  Impacts of policy package C ............................................................................... 205 3. Impacts of policy package D ............................................................................... 210

• 4. 

  Impacts of extending the coverage of the Directive to domestic workers .......... 215

ANNEX 10: COHERENCE ....................................................................................................................... 219

• 1. 

  Coherence with EU labour law ........................................................................... 219

  • 2. 

    Coherence with Principles of the European Pillar of Social Rights .................... 221 1. I NTRODUCTION : P OLITICAL AND LEGAL CONTEXT

Protecting workers' rights and improving working conditions has been at the heart of the

European project since its beginning. The social dimension has developed alongside the

deepening of the single market, to ensure a level playing field for business and to

promote concrete improvements for millions of workers across all Member States.

In recent years the EU labour market has undergone deep transformations. The financial and economic crisis has exposed weaknesses in social protection systems, whereas

globalisation has affected production models and unprecedented technological

development has brought new opportunities and demands for skills and for flexible

working arrangements. There is a growing diversity of forms of work, which has created

new jobs, but has also led to a growing precariousness and gaps in protection.

While economic and financial recovery was the immediate priority at the height of the

crisis, this Commission has put social dimension once again in the very centre of its

political agenda. As President Juncker has declared, 'Building a more inclusive and fairer

Union is a key priority for this European Commission.' 1 In the same vein, the

Commission underlined in its reflection paper on "Harnessing Globalisation" 2 the

importance of addressing the impact of globalisation through strong social policies at EU

and national levels to reinforce the resilience of citizens and workers.

In this context, through the initiative the European Pillar of Social Rights ('the Pillar'),

the Commission launched a debate whether the EU social policy framework is still sufficient to maintain the EU's high social standards. The extensive public consultation on the Pillar 3 in 2016 showed that while the EU acquis is indeed comprehensive, there

are gaps linked to developments on the labour market that need to be addressed in order

for the acquis to retain its relevance. This was also emphasised in the European

Parliament's Resolution of January 2017 on the Pillar, and more recently in its Resolution of July 2017 on working conditions and precarious employment. 4 The Parliament called

to extend existing minimum standards to new kinds of employment relationships,

improve enforcement of EU law, increase legal certainty across the single market, and

prevent discrimination by complementing existing EU law to ensure for every worker a

core set of enforceable rights, regardless of the type of contract or employment relationship. 5

1 See Political Guidelines for the next European Commission, "A New Start for Europe: My Agenda for

Jobs, Growth, Fairness and Democratic Change", 15 July 2014.

2 https://ec.europa.eu/commission/sites/beta-political/files/reflection-paper-globalisation_en.pdf

3 SWD(2017)206 Report of the public consultation accompanying the document establishing a European

Pillar of Social Rights

4 P8-TA(2017)0010 of 19.01.2017 and P8-TA(2017)0290 of 04.07.2017.

5 On 17 November 2017 the Council, the European Parliament and the Commission proclaimed the European Pillar of Social Rights, setting out a number of key principles

and rights to support fair and well-functioning labour markets and welfare systems. The

Principles of the Pillar explicitly address the challenges related to new forms of

employment and adequate working conditions in atypical forms of employment, notably

‘Secure and flexible employment’ (Principle 5) and ‘Information about employment

conditions and protection in case of dismissals’ (Principle 7).

The possible revision of Directive 91/533/EEC i on an employer’s obligation to inform

employees of the conditions applicable to the contract or employment relationship

('Written Statement Directive'), is one of the concrete initiatives announced by the

Commission in April 2017 when presenting the Pillar. Other initiatives, closely related to and complementary to this one, include a legislative proposal on work-life balance of

parents and carers, a social partners' consultation on access to social protection, and an

interpretative communication on working time.

The Written Statement Directive, adopted on 14 October 1991, gives employees the right to be notified in writing of the essential aspects of their employment relationship when it

starts or within a limited time thereafter (two months maximum). Revising the Directive

could contribute to the Pillar principles by improving workers' and employers' clarity on

their contractual relationship and by ensuring this protection is extended to all workers,

irrespective of the type of employment relationship, including those in new and nonstandard

forms of work. The Directive's effectiveness could be enhanced by following up on the conclusions of its recent evaluation conducted in the framework of the European

Commission's Regulatory Fitness and Performance programme (REFIT). 6,7 Furthermore,

by defining a set of minimum rights reflecting the challenges of the new labour market

reality, such a revision could support upward convergence towards equal access to a

number of new rights for all workers, in particular those in precarious employment relationships.

These objectives should be addressed without obstructing the development of new forms

of work. Labour market innovation is a powerful engine of job creation and these new

forms of work can offer opportunities for flexible working arrangements and for the integration in the labour market of people who might have otherwise been excluded. If a

set of minimum fair working conditions were ensured across the EU and across all forms

of contracts, this would set a framework within which new forms of work could further

6 https://ec.europa.eu/info/law/law-making-process/overview-law-making-process/evaluating-andimproving-existing-laws/reducing-burdens-and-simplifying-law/refit-making-eu-law-simpler-and-less- costly_en

7 REFIT Evaluation of the ‘Written Statement Directive’ (Directive 91/533/EEC i), SWD(2017) 205 final, of 26.04.2017; http://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=202

develop. This framework could offer fairer protection to workers, a clearer reference

framework for national legislators and courts, and a better level playing field for business within the internal market, limiting incentives for regulatory arbitrage.

To achieve this goal, between 26 April and 23 June 2017 the Commission conducted a

first phase consultation of the European social partners on the possible direction of Union

action 8 , in accordance with Article 154 TFEU, followed by a second phase between 21 September and 3 November 2017. 9 The social partners decided not to launch the

negotiation foreseen in Article 155 TFEU with a view to reaching an agreement on the

matter. It now falls to the Commission to make a proposal.

This Impact Assessment therefore presents different policy measures that the

Commission is considering in order to improve the effectiveness of the Written Statement Directive and enhance the protection of workers, notably those in new and

non-standard forms of employment. It analyses possible legal, social and economic

impacts of considered policy options and compares them in terms of effectiveness,

efficiency and coherence in line with the Commission's Better Regulation framework.

• 2. 

  P ROBLEM DEFINITION

2.1 What are the problems?

While flexibility on the labour market is necessary, there exists a risk of insufficient

protection of workers, including those in new and non-standard forms of

employment.

The world of work evolved significantly since the time of the adoption of Directive

91/533/EEC. The last 25 years brought about a growing flexibilisation of the labour

market. Demographic changes resulted in a greater diversity of the working population

and digitalisation facilitated the creation of new forms of work.

The recent evaluation 10 of the Written Statement Directive has shown that while the

Directive remains fundamentally relevant, the labour market changes have exposed some

gaps in its protection mechanisms. The following issues have been identified:

8 Consultation Document of 26.04.2017, First phase consultation of Social Partners under Article 154 TFEU on a possible revision of the Written Statement Directive (Directive 91/533/EEC i) in the framework of the European Pillar of Social Rights, C(2017) 2611

9 Consultation document of 21.09.2017, Second phase consultation of Social Partners under Article 154 TFEU on a possible revision of the Written Statement Directive (Directive 91/533/EEC i) in the framework of the European Pillar of Social Rights, C(2017)6121

10 REFIT Evaluation of the ‘Written Statement Directive’ (Directive 91/533/EEC i), SWD(2017) 205 final, of 26.04.2017

 some workers do not receive a written statement of their working conditions at

all;

 the information included in the written statements may sometimes be not

sufficient and/or sometimes provided too late;

 enforcement mechanisms do not guarantee effective implementation of the legal

provisions.

At the same time, as shown in the Pillar consultation 11 , the current EU social acquis does

not sufficiently address some of the new phenomena in the labour market. Labour market

innovation is a positive phenomenon, flexibility and new and non-standard forms of

work 12 contribute to job creation and widen professional opportunities. However, lack of

reasonable advance notice in case of on-demand workers, unjustified exclusivity or incompatibility clauses and long probation periods are measures which may put workers

in overly precarious situations. These contribute, at least to some extent, to another

element of the problem covered in this initiative, namely:

 instability and an increased lack of predictability in some working relationships,

affecting especially workers in most precarious jobs.

Furthermore, access to training is needed to ensure a skilled workforce. Information

about available training and cost-free access to at least training which employers are

required to provide related to basic skillsets necessary for the job is essential from the

point of view of the worker and has many advantages for employers in terms of quality

of outputs and sustainability of workforce. Yet, another problem observed is:

 insufficient access of workers to mandatory training.

Both with regard to the gaps in the provisions of the current Written Statement Directive and the question of broader gaps in the basic rights for workers an additional element of

the problem is:

 diversity of protection among Member States and decreased transparency in the

labour market.

Member States adopt different derogations from the Written Statement Directive, and have different approaches to regulating new and non-standard forms of work. The fact

that the EU intervenes in this area with minimum requirements allows for differences

between Member States but the question arises whether the existing minimum standards

11 SWD(2017)206 Report of the public consultation accompanying the document establishing a European Pillar of Social Rights

12 See Annex 6 for further precision on terminology

are still sufficient to ensure level playing field and effective worker protection across the

single market.

The following figure visualises the problem, its drivers and consequences.

2.2 What are the problem drivers?

The problem to be addressed results from an interaction of labour market developments,

different approaches in national legislation and practice, and gaps in EU social legislation. This section presents how those factors interact.

2.1.1. Some workers do not receive a written statement of their working conditions

The Written Statement Directive gives employees the right to be notified in writing of the

essential aspects of their employment relationship. Having written information about

their rights is, indeed, a prerequisite for workers to invoke their rights. Transparency is also useful for employers and public authorities.

The REFIT evaluation 13 indicated however that the scope of the Directive is

problematic. While there exists a core group of protected persons (typically working under standard open-ended or long-term contracts), many workers are not sufficiently

aware of or do not possess a confirmation of some of their basic rights.

This is a result of (1) diverse application of the exemptions envisaged in the Directive 14 ,

and (2) the fact that Member States have the possibility to define whom they consider as

‘a paid employee’.

As for the first point, some two thirds of Member States use at least one of the three derogations in their national legislation. 15

Regarding the second point, most EU Directives on working conditions, including the

Written Statement Directive, refer to national definitions of 'employees' or

'employment relationship' for defining to whom they apply.

The Court of Justice of the EU has limited the discretion of Member States to define in national law the personal scope of certain EU social law instruments, thereby limiting the

possibility to exclude individuals who do not fall within the definition of worker under

national law. According to the Court's case law on the Working Time Directive as

regards the application of Directive 2003/88 i "the concept of worker has an autonomous meaning specific to EU law". 16

It is settled case-law as regards Article 45 TFEU and other legal acts that make no

reference to the definition of the term “worker” under national legislation that the

essential feature of an employment relationship is that, for a certain period of time, a

person performs services for and under the direction of another person, in return for

which he or she receives remuneration, the legal characterisation under national law and the form of that relationship, as well as the nature of the legal relationship between those two persons, not being decisive in that regard. 17 These criteria for determining the

existence of an employment relationship, and so the status of "worker", were originally

developed by the Court in a 1986 judgment on the application of Article 45 TFEU and

13 REFIT Evaluation of the ‘Written Statement Directive’ (Directive 91/533/EEC i), SWD(2017) 205 final, of 26.04.2017; http://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=202; REFIT study to support evaluation of the Written Statement Directive (91/533/EC); http://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=7941&type=2&furtherPubs=yes

14 According to Article 1.2.b of the Written Statement Directive Member States may decide not to apply the Directive to employees having a contract or employment relationship with a total duration not exceeding one month and/or with a working week not exceeding eight hours; or of a casual and/or specific nature provided, in these cases, that its non-application is justified by objective considerations.

15 Nine Member States did not implement any derogation: BE, BG, HR, FR, PL, PT, RO, SL, LV

16 Fenoll, C-316/13, para 26.

17 Ruhrlandklinik, C-216/15, para 27

(the predecessor of) Directive 2004/38/EC i on free movement of workers, 18 and have

since been widely used by the Court to interpret references to the notion of worker in EU secondary legislation. These criteria should therefore represent the general elements, directly deriving from the Treaty, for the identification of an employment relationship. 19

In the specific context of free movement of workers, activities carried out on such a small

scale as to be regarded as purely marginal and ancillary, do not qualify a "worker" within

the meaning of Article 45 TFEU .

Most recently, with the Ruhrlandklinik judgment 20 the Court has given greater

importance to the autonomous EU definition of worker also in the case where a directive

specifically refers to national law, to prevent any definitions under national law from

depriving the directive of its effectiveness.

Nevertheless, the reference to the Member States' definition of employment relationship

leads to the Directive being applied in the Member States in a different way to the same categories of workers. Furthermore, it leads to inconsistencies in coverage for the

growing category of non-standard forms of employment.

While the situation differs across the Member States, some categories of workers 21 may

be (partially) excluded from the provision of written statements based on the national exemptions or differences in the national definitions of covered workers, as shown in the

following table.

Table 1 – Coverage by the Written Statement Directive – Personal scope 22

Current Yes Partially No coverage by the WSD Domestic AT, BE, CY, FI, FR, DE, BG, HR, CZ, DK, EE, HU, NL, SE workers EL, IT, LV, LT, LU, MT, IE, PL, SK, SL PT, RO, ES, UK Platform BE, CY, FI, DE, ES BG, HR, CZ, DE, EE, AT, FR, HU, LT, LV, workers 23 EL, IE, IT, MT, NL, LU, PL, SL, SE, UK PT, RO, SK Voucher-based BE, HR, FI, FR, NL, ES RO AT, BG, CY, CZ, workers DK, EE, DE, EL, HU,

18 Lawrie-Blum, C-66/85, para 12

19 Also to distinguish such an employment situation from that of self-employed, which on the contrary fall under the scope of Article 56 and ff. of the Treaty, see Asscher Case C-107/94, para 26.

20 C-216/15

21 Further information on these categories and note on terminology is on Annex 6

22 Source "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

23 To be noted that majority of platform workers operate as self-employed and as such are outside of scope of EU labour law.

IE, IT, LT, LV, LU, MT, PL, PT, SK, SL,

SE, UK Paid trainees BE, CY, DK, FR, DE, AT, BG, HR, EE, IE, CZ, FI, HU

EL, IT, LV, LT, LU, MT, RO, SK, SE, UK NL, PL, PT, SL, ES

Workers BE, BG, HR, EE, FR, SE AT, CY, CZ, DK, FI, employed for HU, IT, LV, LU, NL, PL, DE, EL, IE, LT, MT,

less than 1 PT, RO, SL SK, ES, UK. month People working AT, BE, BG, HR, CZ, - CY, DK, MT, SE less than EE, FI, FR, DE, EL, HU, 8h/week IE, IT, LV, LT, LU, NL, PO, PT, RO, SK, SL, ES, UK. Casual workers: BE, FI, FR, EL, NL, ES, BG, HR. CY. CZ, AT, HU, LV, LT, SL 1) Zero-hours SE DK, IE, IT, PL, RO, (illegal) contracts SK, UK EE, DE, LU, MT, PT (do not exist either in law or practice) Casual workers BE, FI, FR, DE, EL, HU, BG, HR, CY, CZ, AT, LV (illegal) 2) On-demand LT, NL, ES, SE DK, IE, IT, PL, RO, EE, LU, MT, PT (do workers SK, SL, UK not exist either in law or practice) Casual workers BE, EE, FI, FR, DE, EL, AT, BG, HR, CY, CZ, LU, MT (do not exist 3) Intermittent LV, LT, NL, PT, RO, ES, DK, HU, IE, IT, PL, either in law or workers SE SK, SL, UK practice) Temporary BE, HR, CY, DK, EE, FI, BG, CZ, EL, ML, SL AT, UK Agency workers FR, DE, HU, IE, IT, LV, LT, LU, NL, PL, PT, RO, SK, ES, SE

The situation is also unclear with regard to the "bogus self-employed". While the Written Statement Directive applies only to workers, and the self-employed are in principle

outside its scope, the boundary between the two categories is in fact becoming more

difficult to draw. Such blurring of status jeopardises the effectiveness of labour law

which is dependent on the status of employment. To the extent that workers are

wrongly categorised as self-employed, they are removed from the protection of the

EU acquis to which they should in fact be subject.

Table 1 in Annex 6 summarises available data concerning the categories of workers

mentioned above. Further information on those forms of work is available in the

Analytical Document accompanying the second stage consultation of the Social

Partners. 24

24 SWD(2017)301 final.

Overall, while relevant data are scarce and difficult to compare, and there are overlaps

between the different forms of employment, an estimated number of 2-3 million workers 25 in those specific forms of work in the EU are excluded from the right to

receive written confirmation of their working conditions. The high diversity of national

approaches constitutes an obstacle to the full effectiveness of the Directive.

Among those who are at least partially excluded from protection of the Written Statement

Directive is a relatively high proportion of vulnerable workers. Available data indicate for example that non-standard jobs - and particularly fixed-term jobs - are

disproportionately held by younger, less-educated and lower-skilled workers. There is

also a gender bias, with women over-represented among non-standard workers. 26

Moreover, while in the original Directive the possible exemptions from scope were

envisaged for marginal situations, available data show that those forms of work have

been growing in the last decades. For example, the number of workers working eight hours or less per week increased from 3.4 million in 2005 to 3.8 million in 2016. 27 The

number of employees on contracts lasting less than one month has grown from

373,000 in 2002 to almost 1.3 million in 2016, 28 indicating that this extremely short

duration of work contracts will continue to be a feature of the EU labour market in years

to come. People active on platforms currently represent 0.5-2% of the workforce according to different studies 29 but their numbers have been increasing significantly over

the last 5 years and thus their share in the workforce might also further increase.

An increasing number of workers are not protected by the Directive, and therefore at risk

of not being (fully) aware of their employment conditions or their rights. While many

Member States have extended their national legal framework to cover these workers; the legal analysis performed at Member-State level for the REFIT evaluation revealed high

levels of variation across countries and uncertainty over whether the new and nonstandard

forms of employment fall within the scope of the Directive. 30

25 Source "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

26 For a full discussion on characteristics of non-standard workers see the Analytical Document SWD(2017)301 final, pages 19-41.

27 Own calculations based on EU-LFS

28 Own calculations based on EU-LFS

29 Inter alia "The Future of Work in the ‘Sharing Economy", Codagnone et al, JRC (2016) and Eurofound (2017), Aspects of non-standard employment in Europe, Eurofound, Dublin

30 See section 5.1.7 of the REFIT Study.

2.1.2. The information included in the written statements may sometimes be not sufficient and/or provided too late

Article 2 of the Directive creates the obligation for employers to notify employees of the

essential aspects of their employment relationship and defines a non-exhaustive list of

these essential elements which, in practice, however, generally constitutes the standard

package of information provided.

The Directive stipulates also that the written statement must be provided to the employee

not later than two months after the commencement of employment. Modifications to any

of the elements in Article 2 must be notified within one month.

According to the REFIT evaluation, while the information package was assessed by most

stakeholders as being sufficient as a minimum standard, the two-month deadline to

provide a written statement creates transparency problems and increases the potential for undeclared work or abuse of employee rights. Receiving a written statement earlier is

also especially important for the growing number of workers whose contracts are of very

short duration.

The REFIT evaluation has shown that a vast majority of the Member States surveyed have introduced more stringent deadlines for the employer to comply with the information obligation. Of these, eight Member States 31 have set the obligation at the

beginning of the employment relationship. According to the national laws transposing the

Directive in these eight countries, the employee is to receive the information required

before the employment starts.

This issue of the right to be informed is taken up in Principle 7a of the Social Pillar: "Workers have the right to be informed in writing at the start of employment about their

rights and obligations resulting from the employment relationship, including on probation period". 32 Currently, every year some 8-16 million EU workers starting a new job receive a written statement later than on the first day. 33

In the light of the Social Pillar principle, and in the light of the very modest costs of providing a written statement, 34 and of the changes to the types and diversity of

employment practices since the Directive was adopted in 1991, an adaptation of the list

contained in Article 2(2) could be appropriate. As indicated by national experts consulted

for the purpose of the external study, in the age of intensive labour migration between the

EU Member States, the standard package of information prescribed by the Directive is no

longer sufficient. Most migrant or low skilled workers lack information about the social

31 BG, HR, LV, LT, LU, PL, RO, SI

32 C(2017)2600 Commission Recommendation of 26.4.2017 on the European Pillar of Social Rights

33 Source "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI. Calculations assuming annual turnover of 10-20%.

34 These are estimated as less than EUR 60 per worker, see SWD(2017)205 final, page 28

security system to which the employer is contributing. This leads to poor social

protection of such workers. Finally, the most pressing issue, as indicated by the national experts, is the lack of information about working time, particularly where the work

schedule is variable.

The consultation process leading to the REFIT evaluation gave some indications of

elements that could be added, namely information on hours the worker is expected to

work, especially when the work schedule is variable; information about overtime regulations or non-competition clauses; the right to sickness, maternity and paternity leave and pension rights; the levels of collective bargaining applicable. 35 Worker

organisations responding to the second phase consultation proposed further additions, as

summarised in Annex 2.

2.1.3. Enforcement mechanisms do not guarantee effective implementation of the legal provisions

Rights are only meaningful when they are implemented and taken up by those they

protect. The 2016 Commission Communication EU Law: better results through better application highlights the importance of accessible and appropriate redress mechanisms for citizens whose rights under EU law have been breached. 36 The public consultation on the European Pillar of Social Rights 37 underlined that workers are often deprived of their

rights by weak enforcement provisions. In the context of EU labour law, unlike in other

areas, there are very few provisions directly concerned with enforcement of rights.

Evidence collected through the REFIT evaluation indicated that there is medium to high observance among employers of the Directive as transposed into national law. The

main issues surrounding observance are associated with the ‘grey’ area between selfemployment

 and subordinate employer-employee arrangements and new and nonstandard

forms of employment.

At the same time, there is a medium to high level of understanding among employers of their information obligations towards employees. The level of awareness seems to greatly

vary across Member States and there are also significant variations relative to the size of

the undertakings: larger enterprises appear to be more familiar with the national

requirements related to the Directive, as compared to micro enterprises.

35 Ramboll Management Consulting, REFIT study to support evaluation of the Written Statement Directive, March 2016, page 57.

36 COM(2016)8600, section 4.

37 Delivering on the European Pillar of Social Rights, http://ec.europa.eu/social/main.jsp?catId=1226&langId=en ;and Public consultation on the European Pillar of Social Rights http://ec.europa.eu/social/main.jsp?catId=333&langId=en&consultId=22&visib=0&furtherConsult=yes

The evaluation further highlighted that the enforcement of workers' rights could be

improved by reviewing means of redress and sanctions in case of non-compliance. 38

The Directive, in its Article 8, establishes the right for employees who consider themselves wronged by an employer’s failure to comply with its obligations arising from

its provisions to pursue their claims by judicial process. Member States may also

establish two steps that would precede judicial proceedings: (i) recourse to a competent

authority such as a labour inspectorate or an administrative body; (ii) a formal notice given to the employer calling on it to issue the written statement within 15 days.

The REFIT evaluation has confirmed that all Member States provide for access to the relevant national court which is in general the Labour Court. 39

As regards sanctions imposed on employers who fail to comply, the REFIT evaluation

distinguishes between: (i) a majority of Member States where financial compensation can

be granted only to employees who prove that they have suffered damage; and (ii) a minority of Member States where sanctions such as lump sum penalties or loss of permits

can be imposed in addition on the employer for failure to issue the written statement.

The REFIT evaluation concluded that redress systems based only on claims for damages

are less effective than systems that also provide for sanctions such as lump sum penalties. The limited extent of case law indicates that workers whose rights under the Directive

have been infringed are reluctant to pursue litigation while in employment.

Generally any litigation is related to the working conditions themselves not to the

absence of information about them.

To achieve the goal of the Directive its enforcement must be ensured through adequate

recourse via enforcement authorities and appropriate and dissuasive sanctions. Greater clarity on legal obligations and raising awareness of employers concerning their

obligations resulting from national transpositions of the Directive could also contribute to

a better implementation of the Directive.

2.2.4. An increased instability and lack of predictability in some working relationships

The European Union has built over the years a strong core of individual rights for

workers, encompassing information to each worker about his/her working conditions;

health and safety protection, including limits on working time; combating discrimination

and abuse of non-standard employment types; equal treatment at the workplace;

conditions for workers posted to another Member State and third country nationals

coming to work in the EU. A further set of Directives provide for minimum standards in relation to collective rights: for representation via European Works Councils; for

38 SWD (2017)205, page 4.

39 SWD (2017)205, page 17.

information and consultation in relation to structural changes in companies; in relation to

collective redundancies; and for transfers of undertakings. 40

These labour market developments have however created gaps and/or deficiencies in EU

and national legal frameworks. As a result, the existing EU labour law acquis,

including but not limited to the Written Statement Directive, does not apply today

uniformly to all workers, creating disparities and leading to inequalities in terms of

working conditions and social protection in general. 41

While a full-time permanent labour contract is still the predominant contractual

employment relationship, non-standard work 42 has increased over the last 20 years.

In 1995, less than 21% of the EU-15 workforce had non-standard contracts. This

proportion had increased to over 25% in the EU-28 by 2016. In the last ten years more than half of all new jobs were non-standard. 43

As the public consultation on the European Pillar of Social Rights clearly revealed, there

is a growing challenge to define and apply appropriate rights for many workers in new

and non-standard forms of employment relationships across the EU. Such forms of work create opportunities for people to enter or remain in the labour market and the flexibility

they offer can be a matter of personal choice. However, inadequate regulation may lead

many of them being stuck in legal loopholes that make them subject to unclear or unfair

practices and make it difficult to enforce their rights. 44

Moreover, for many workers non-standard employment is not a voluntary choice. It is

estimated, for example, that over two thirds of employees who work on temporary

contracts do so involuntarily. This is especially true of prime-age and older workers. In

2016, 76.7 % of prime-age and older temporary employees and 68.5 % of younger

temporary employees were working on a temporary contract because they could not find a permanent one. 45

40 For a summary of EU social acquis see Annex 7.

41 See the parallel European Commission initiative “Social Protection for All” which addresses the challenges of access to social protection for people in all forms of employment in the framework of the European Pillar of Social Rights.

42 Non-standard work here includes permanent part-time, temporary full-time and part-time.

43 In absolute terms, there were 4.9 million more employees on non-standard contracts in 2016 compared with a decade before, but only 3.4 million more employees with standard contracts (permanent full-time). Own calculations based on EU-LFS. The growth of non-standard employment has also been pointed out by the European Parliament, European Parliament resolution of 4 July 2017 on working conditions and precarious employment.

44 See launching Communication COM(2016)127 final i and Report of the public consultation SWD(2017)206 final, pages 18-21.

45 Own calculations based on EU-LFS. See Figure 1 in Annex 6

Additionally, in the new world of work, working lives are expected to be longer and less

linear: they will likely be marked by numerous transitions between jobs and professions, as well as by changing needs in demand, or life-cycle and work-cycle pressures requiring

career interruptions or breaks for caring responsibilities, or for seeking access to reskilling opportunities. 46 Job tenure is changing at a rapid pace. Nowadays only 2 in 5

Europeans work for the same employer for more than 10 years. It was 3 in 5 only 10

years ago. 47

Overall, labour market developments have led to an increase in various mechanisms

which affect working conditions of many workers in the EU, including some in the new

and non-standard forms of work. The challenge is how to ensure that the current

dynamics, while allowing for job creation and labour market innovation, are framed in a

way that allow for upward convergence in social standards across the EU.

 Very variable work schedules

Flexibility is a key charateristic of new forms of work and flexible hours can be positive

for workers, as it generates new jobs and can allow them an entry into the labour market

(e.g. 18% of workers on zero hours contract in the UK are in full-time education), but

workers in lower-level occupations are less likely to have the bargaining power to

negotiate their working schedules, or more likely to have no autonomy or control over their schedules. The consequences of precariousness are often severe for workers who

need stable work schedules and income levels. Lack of reference hours and short or no

advance notice before an assignment are features of working relationships especially

affecting casual workers (on-demand and intermittent). There are some 4-6 million such

workers in the EU (including but not limited to workers on zero-hours contracts). 48

The interval between being requested to work and the actual start of work varies in these types of jobs in line with company practice and the incidence of HR needs. Among the

case studies set out in the Eurofound report, 49 there are examples of employers

summoning casual workers only one hour before the shift starts and others doing so as

long as four weeks in advance. A UK survey showed that one-third of undertakings using

zero-hours contracts have a set policy for the notice period required for staff asked to work, 40% had no policy, and the remainder did not know if they had one. Almost half of

zero-hours workers said they have no notice; workers might even discover at the start of

a shift that their work has been cancelled. On receiving a job offer, a casual worker may

46 European Commission, SWD(2016)51 Key economic, employment and social trends behind the European Pillar of Social Rights.

47 European Commission, Reflection paper on the social dimension of Europe

48 Source "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

49 Eurofound, New forms of employment, 2015, page 48.

decline, in which case, the next candidate is contacted. However, in several case studies,

respondents said that repeated refusal makes it less likely that a worker will be asked to come to work. In a UK survey, 17% of zero-hours workers said that they are sometimes

penalised if they refuse a call-in, and 3% said they were always penalised.

 Exclusivity and incompatibility clauses

Exclusivity clauses prevent workers from taking on any other work at all. Incompatibility

clauses impede them from taking on work with other specific employers ('work

providers'). Exclusivity and incompatibility clauses can put a disproportionate burden on the worker, particularly if not employed full-time, who has limited possibilities for

ensuring not only income security and stability, but also to seek further work to reduce

the risk of poverty. In economic terms, exclusivity and incompatibility clauses can

exacerbate situations of underemployment. 50

In the EU some Member States limit or even ban the use of exclusivity and incompatibility clauses, while in others such clauses are permitted. It is estimated that

among workers who are most negatively affected by such clauses (casual and voucherbased) an estimated 0.5-1.5 million are subject to them. 51

 Limited opportunities to transit to another (more permanent) form of

employment

New and non-standard forms of employment may offer good opportunities to enter labour market for people who would otherwise have difficulties to do so. However, lack

of possibilities to move on to more permanent positions for those who would like to

contributes to labour market segmentation and underemployment.

Indeed, the rate of transitions from temporary to permanent jobs is only some 23%, with

a great variation across the EU (from 10% in France to 59% in the UK). 52

Also among part-time workers there is a growing proportion of people who work parttime

involuntarily and would like to work more hours. Self-reported involuntary parttime

 work increased from 22.4% of all part-time work to 27.7% between 2007 and

2016. 53 Women, younger workers, less educated workers and – especially – workers new

to their current job (tenure < 1 year), those on temporary contracts and in low-paid professions are more likely to be involuntary part-time workers.

50 EP-IPOL Economic and scientific policy, Precarious Employment in Europe: Patterns, Trends and Policy Strategy, 2016

51 Source "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

52 Eurostat. See Figure 2 in Annex 6.

53 Eurostat. Note that part of this may relate to cyclical reasons (remaining labour market slack).

According to the ECB, 3% of the working age population is currently underemployed

(i.e. working fewer hours than they would like). Currently there are around seven million underemployed part-time workers across the euro area – an increase of around one

million since the start of the crisis. Moreover, the number has declined only very modestly over the past two years, despite robust employment growth. 54

 Unjustifiably long probation periods

Probation periods offer the worker the opportunity to be supported and developed to meet

the requirements of the job, and the employer to test the suitability of the worker for that job. During probation periods, the conditions attaching to the termination of the

employment contract are often light and some protective measures that normally apply in

case of dismissal are absent (e.g. notice period and severance pay). Therefore, overly

long probation periods, in which employment rights are inferior to standard employment,

may limit worker protection. 55

 Insufficient access to basic training

Across the EU, 43% of adult employees have seen the technologies they use change in the past five years and 47% have seen changes in working methods or practices. 56 Yet, only 40% of workers in the EU receive training at work. 57 While 40% of workers who do

not receive training state that this is because they do not need it, there is a proportion of

workers who are deprived of training opportunities because of lack of employer's support (4%), too high costs (7.5%) or lack of suitable offer (4%). 58 Access to training is also more limited among workers in non-standard employment. 59 Evidence based on the

OECD Adult Skills Survey shows that on average being on temporary contracts reduces

the probability of receiving employer-sponsored training by 14%. 60

2.2.5. Decreased transparency in the labour market

Apart from improving the protection of workers, the Written Statement Directive aimed

to increase transparency in the labour market and improve the operation of the EU

internal market. 61 Indeed, by setting minimum requirements for the information to be

54 See Figure 3 in Annex 6.

55 This could in practice apply to some 0.5-1.5 million workers in the UK and Ireland.

56 Cedefop’s European skills and jobs survey (ESJS), 2014. For more information, see http://www.cedefop.europa.eu/en/events-and-projects/projects/european-skills-and-jobs-esj-survey 57 EWCS 2015

58 Eurostat 2011 [trng_aes_179]

59 See Figure 4 in Annex 76

60 OECD Employment Outlook 2014, Non-regular employment, job security and labour market divide, p. 141-209

61 Explanatory memorandum to the proposal for a Directive, COM(90) 563 final i.

provided individually to employees, the Directive aimed to reduce differences between

Member States' legislation.

The minimum requirements set in the Directive corresponded to the labour market reality 25 years ago. However, as described earlier, labour markets have since undergone deep

transformations. As the EU level legislation remained stable, some Member States put in

place some new regulations and certain national social partners developed new collective

agreements, leading to an increasingly diverse picture across the EU.

Just as there are significant differences across the Member States with regard to the

personal scope of national transpositions of the Written Statement Directive (see

section 2.2.1), the situation also differs in relation to the protection of workers in the

most precarious situations. Most of the new and non-standard forms of work referred to

above do not have a specific legal or collectively agreed basis in most Member States. 62

This is probably due to their newness and their recent emergence through individual company practice rather than a strategically planned labour market development. They

are regulated (or not) in very different ways across the EU, and the legal frameworks are

in constant change to address these new phenomena. The diversity of regulation is also

related to the fact that in each Member State there is a different mix of the new forms of

employment.

This diversity of national provisions on new and non-standard work as they currently

exist is a further regulatory driver. Some forms of work are not consistently covered by

labour market regulation across the EU, and this diversity hampers equal treatment

between workers in the same situation, who are protected in very different ways in

different EU Member States.

2.3 Why is it a problem?

2.3.1. Workers

The problems described above have an impact on all workers in the EU, in particular

those who find themselves in the most precarious forms of employment.

Those on standard contracts are still relatively well protected: they generally receive

written statements and some of the labour market measures which cause precariousness,

such as lack of reference hours or lack of notice before assignements, do not affect them.

However, also for those workers written statements may be delivered too late, the

information provided may not be sufficient, enforcement mechanisms may not be strong

enough to guarantee protection. Also, some workers on standard contracts can be subject to overly long probation periods and some 55% do not receive training at work.

62 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, page 136.

Lack of written statements, delayed or incomplete information provided to some workers,

as well as the broader issue of insufficient predictability of working conditions have an even more significant impact on workers in non-standard employment, in particular those

in the most precarious employment situations. Some workers suffer negative

consequences due to a combination of all the described problems: not only do they lack

the basic protection of receiving a written statement but also have extremely variable

working schedules, limited access to more permanent positions, limited possibilities to

earn additional income due to exclusivity or incompatibility clauses or unpredictable work patterns.

Non-standard jobs are disproportionately held by women, by young workers, and by lesseducated,

 lower-skilled workers and by migrant workers, generally not on a voluntary

basis.

A combination of many such factors means that workers in new and non-standard forms of employment are more likely to suffer from job insecurity. Non-standard jobs tend to offer lower hourly pay than permanent full-time jobs 63 and as a result pose the highest poverty risk among those in employment. 64 Non-standard employment goes together with a higher risk of unemployment and inactivity. 65 At the same time non-standard

workers tend to have shorter and lower records of social security contributions and this negatively affects their eligibility for social security benefits, as well as the amount and duration of those benefits. 66

Some categories of workers in new and non-standard forms of employment are less

protected from occupational safety and health risks and are more likely to suffer from

stress at work. 67 Such negative health impacts are confirmed even among young people. 68

Workers in the new forms of employment also tend to have more limited access to representation and collective bargaining. 69 Low transition rates from temporary to

63 European Commission (2016), "Employment dynamics and social implications", Chapter 2 in Employment and Social Developments in Europe 2016. Luxembourg: Publication Office of the European Commission.

64 European Commission (2017), "Working lives: the foundation of prosperity for all generations". Chapter 3 in Employment and Social Developments in Europe 2017, published on 18 July 2017.

65 OECD Employment Outlook 2014, Non-regular employment, job security and labour market divide, p. 141-209

66 Matsaganis M., Özdemir E., Ward T., Zavakou A. (2016), "Non-standard employment and access to social security benefits", Social Situation Monitor research note, European Union.

67 Eurofound (2010) Work-Related Stress, p.17.

68 ‘Economic activity and health – Initial findings from the Next Steps Age 25 Sweep’ by Dr Morag Henderson, Centre for Longitudinal Studies, 5.07.2016 (http://www.cls.ioe.ac.uk/shared/getfile.ashx?itemtype=document&id=3301)

69 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, page 139.

permanent jobs suggest that inequalities tend to persist over time. Evidence for EU

Member States shows that less than 50% of the workers who were on temporary contracts in a given year were employed with full time permanent contracts three years later. 70

Inequalities in the access to rights, collective bargaining and enforcement deepen gaps in

job security, income and access to social protection, and limit access to training and

professional development. 71

2.3.2. Business

As described above, the direct consequence of diversity of national implementation of the

Written Statement Directive as well as lack of EU minimum requirements for some of

the most flexible employment practices in new and non-standard forms of employment,

is a decreased effectiveness of the EU internal market. For companies this means a greater exposure to unfair competition, and for those operating across borders the need to

adjust business models to 28 different legislative frameworks.

Some non-standard or atypical forms of employment can offer flexibility both to the

employer and the employee. Employers can benefit from the opportunity to expand or to respond flexibly to fluctuations in demand without having the risks associated with

taking on staff permanently. They can also retain the skills of workers who wish to work

only casually or intermittently (e.g. semi-retired workers, workers with family

responsibilities). Some employees do not wish to commit to regular working hours, such

as students, semi-retired workers, workers with family responsibilities. In some cases, workers may accept a second job with flexible working hours because they want to enjoy

occasional opportunities for additional income rather than committing to regularly

working additional hours with a second employer.

However, employers who rely to a large extent on non-standard work are exposed to

some longer-term disadvantages associated with such a business model.

A frequent issue is that relying on non-standard employment arrangements can have a

negative impact on the commitment of hired-in workers and that the insufficient

protection of working conditions of certain employees leads to a decrease in

70 OECD Employment Outlook 2014, Non-regular employment, job security and labour market divide, p. 141-209

71 European Parliament Policy Department C, Temporary contracts, precarious employment, employees' fundamental rights and EU employment law: A study for the PETI Committee, November 2017, Section 1.2.

commitment. 72 A literature review from the ILO 73 indicates that the weaker attachment is

likely to be manifested in a reduced attempt to assimilate socially, lower performance, lower motivation and effort as compared to regular workers, including higher

absenteeism, lower job satisfaction, or lower commitment to the organization. Innovation

may be negatively affected by insecurity in employment relationships leading to a lack of

trust and risk-averse behaviour. 74

The increasingly widespread use of temporary work risks harming productivity growth (ESDE 2017). 75,76 There is evidence that a high proportion of temporary work, even

when controlling for sectoral differences and for firm size, harms total factor productivity

growth in various ways, with the impact being more damaging in skilled sectors.

Data from the European Union Structure of Earnings Survey (SES) 77 reveals that in

2014, only some 4% of firms used non-standard forms of work intensively (more than

50 % of their workers were either fixed-term or temporary agency workers). 52% of the firms make no use of temporary employees, while for some 44% the share of temporary

workers ranges between 0-50%. In the same vein, 2016 data from the UK shows that

only some 7% of enterprises make some use of contracts that do not guarantee a

minimum number of hours and use of such contracts is significantly more widespread

among the biggest enterprises in comparison with SMEs. 78

This implies that the relatively large number of companies in Europe providing workers

with protection related to standard employment status risk being in a disadvantaged

position in relation to companies which compete on the basis of reduced labour costs.

66% of EU companies provide some vocational training. 79 However, in general, the

greater the proportion of non-standard workers in an organization, the less the

72 World Health Organization, Regional Office for Europe, Enterprise for Health-A joint project between AOK for Lower Saxony and WHO, p.2

73 "Non-standard employment around the world: Understanding challenges, shaping prospects" International Labour Office – Geneva: ILO.

74 The above statements are based on a literature review presented in the "Non-standard employment around the world: Understanding challenges, shaping prospects" International Labour Office – Geneva: ILO 2016, and "Non-standard forms of employment. Report for discussion at the Meeting of Experts on Non-Standard Forms of Employment" (Geneva, 16–19 February 2015)/International Labour Office, Conditions of Work and Equality Department, Geneva, 2015

75 Ibidem

76 OECD Employment Outlook 2014, Non-regular employment, job security and labour market divide, p. 141-209

77 Establishment level survey covering private sector firms with at least ten employees in 22 European countries

78 https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/articles/c ontractsthatdonotguaranteeaminimumnumberofhours/may2017

79 Eurostat 2011 [trng_cvts02]

organization will invest in training and development. 80 Underinvestment in training, both

for temporary and permanent employees, reduces incentives to invest in productivityenhancing technology and patenting, and slows down innovation. An over-reliance on

temporary workers, especially if they are low skilled, may end up deskilling the

organization as a whole and have a detrimental effect on the working environment for all

workers. 81

2.3.3. Member States

Lack of written statements for a growing number of workers, written statements which

are delivered too late or do not contain all the relevant information, as well as

weaknesses in enforcement mechanisms can have direct negative consequences for

Member States in terms of the capacity to prevent undeclared work and prevent abuse of workers' rights.

With regard to the broader question of regulation of new and non-stardard forms of work,

Eurofound 82 points out that these can have positive effects: creating new jobs, allowing

for a professional activation of a greater number of people (including vulnerable workers) and reconciliation between private and professional lives. However, lack of job

predictability, exacerbated by measures such as extremely variable work schedules,

exclusivity clauses, lack of training opportunities or opportunities to move towards

standard forms of employment, contribute to labour market segmentation and impact

most the most vulnerable groups of workers, leading to underemployment, higher

poverty risk and strain on social protection systems. As noted above, non-standard jobs tend to be performed by women, young, migrant, and less educated workers, so

increasing labour market segmentation and the risk of social exclusion for these groups.

Indirectly, there can be negative consequences for the sustainability of public finance, as

well as for demography and social cohesion.

Underemployment caused e.g. by exclusivity clauses and unpredictable work shifts preventing a worker taking on more work has costs in reduced tax contributions, higher

social spending or reduced consumption.

The growing precariousness of the labour market is affecting household decisions across

generations. 83 The increase in non-standard jobs for younger generations has started to

cause discontinuity and variation in income levels. As a consequence it has become more

80 63% of companies with 10-49 employees, 81% in companies with 50-249 employees, 93% in bigger companies.

81 Håkansson and Isidorsson, 2012

83 ESDE, 2017

common for their parents to make financial transfers to assist them with rent expenses or

mortgage costs/deposits, 84 and for those without access to such resources to be excluded

from the housing market or pushed to its margins. Such processes increase the risk of

socio political exclusion.

The widespread increase in non-standard work is likely to be one of the causes of delayed

parenthood. 85 The mean age at which women become mothers is highly correlated to the

proportion of non-standard workers among younger people in the country and is increasing, so exacerbating demographic imbalances.

2.4 How will the problem evolve?

In the absence of EU action the insufficient protection of workers, including those in new

and non-standard forms of employment, and the resulting negative consequences for

businesses, Member States and the internal market will most likely increase.

Firstly, economic, social and technological developments may continue to increase

different forms of non-standard work as well as to further diversify new forms of

employment, thus potentially leading to a further increase in the number of workers

not covered by the provisions of the Directive and/or exposed to some of the measures increasing insecurity of employment.

The future of work will be marked by a growing need for flexibility, fast pace,

adaptability and autonomy, which will increase incentives for companies to use ondemand

work, short-term contracts, or outsourcing. 86

Across the EU, as discussed in section 2.2.1., the volume of non-standard work 87 has

increased over the last two decades. This steady increase indicates that the trend is likely to be of a structural, rather than a cyclical, nature. Some of the new and non-standard

forms of work addressed by this initiative have been expanding particularly strongly over

recent years and have potential for further significant growth in the future. This is the

case e.g. for platform work, temporary agency work, domestic and/or voucher-based work. A growing trend has also been observed in individual Member States. 88

84 "Non-standard employment around the world: Understanding challenges, shaping prospects" International Labour Office – Geneva: ILO. 2016, p.221

85 ESDE, 2017

86 https://ec.europa.eu/epsc/sites/epsc/files/strategic_note_issue_13.pdf

87 Non-standard work here includes permanent part-time, temporary full-time and part-time.

88 Source: EPPO network. For example, in Belgium for the period between 2008 and 2015, there was increase for temporary agency workers (from 384.000 to 424.000), for casual and seasonal workers (4.000 to 6.000). A new regime of flexi-jobs (14.000 in 2015) was created and is likely to expand.

Assuming that the average year-on-year growth rates between 1995 and 2016 for each

type of non-standard work continue into the future, non-standard work would go from

being a fourth of all employment contracts in 2016, to representing more than 35% of all

employment in 2050 (see Chart 1). 89 In addition, these data only partially capture casual

work.

Chart 1 – Evolution of non-standard work (1995-2016) and projection for the future

(2017-2080) by type of contract, EU-15 (1995-2001) and EU-28 (2002-2080)

Note: For the evolution by type of contract from 2016 onwards, average year-on-year growth rates by type of contract

share between 1995 and 2016 were used.

Source: Own calculations based on EU-LFS.

Moreover, it is likely that the extent and direction of national regulatory responses to

the new and non-standard forms of work will continue to be diverse, leading to

diverging levels of protection of workers across the EU and consequently different

conditions for business as regards labour law conditions. Indeed, across the EU the legal

frameworks are in constant change to try to regulate these new phenomena.

89 Projections beyond 20 years are associated with a high degree of uncertainty.

Regulation of on-demand work

An example of developments in Member States' legislation on non-standard work

 No regulation (e.g. PL, BE, FI, CY, HR, GR, SL). Either casual work is not a common

practice, or exists without being regulated. For instance in CZ, agreement on working activities is allowed within a certain number of hours/year but is not subject to regulation

so leads to very limited access to standard worker rights.

 On-demand work and zero hours contracts are considered illegal (e.g. AT, FR, BG, LU,

and LV). For instance in AT, every legally valid employment contract must include the number of hours the employee is expected to work.

 Regulation of zero hours contracts and some types of casual work (e.g. UK, HU, IT,

DE, NL, ES, RO, IT, PT, IE). For instance in DE, an on-demand work contract must specify the number of daily and weekly working hours; by default the amount of daily working hours is deemed to be three. In ES, RO and PT casual work is allowed in the agricultural sector or for seasonal activities. In the NL zero hours clauses can only be

concluded for the first 6 months of employment with the same employer.

• 3. 

  W HY SHOULD THE EU ACT ?

3.1 Legal basis

The initiative will support Union's aims recognised in Article 3 TEU: to promote the

well-being of its peoples, the sustainable development of Europe aiming at full employment and social progress, but also the aim to promote social justice and protection, equality between women and men and solidarity between generations. 90

In the current Treaty framework, 91 the appropriate legal basis would be Article 153

TFEU: 153(1)(b)" With a view to achieving the objectives of Article 151, the Union shall

support and complement the activities of the Member States in the following fields: (b) working conditions"; 153 (2) (b) "to this end, the European Parliament and the Council

may adopt (…) by means of directives minimum requirements for gradual

implementation, having regard to the conditions and technical rules obtaining in each of

the Member States. Such directives shall avoid imposing administrative, financial and

legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

90 TEU Art 3

91 Directive 91/533 i/EU was adopted under Article 100 of the then EEC Treaty.

Indeed, Article 151 TFEU provides that the Union and the Member States aim at the

promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social

protection, dialogue between management and labour, the development of human

resources with a view to lasting high employment and the combating of exclusion.

3.2 Results of the social partner consultations

Consultation of representative social partner organisations in two phases in accordance

with Article 154 TFEU took place previous to the presentation of the proposal.

The views of the social partners were mixed on the need for legislative action to revise

Directive 91/533/EEC i.

In both phases trade unions were in favour of clarifying and broadening the personal

scope of the Directive, in particular through removing exclusions from personal scope

and including criteria to assist with identifying the existence of an employment

relationship. In addition, they argued for the inclusion of self-employed in the scope of application. With regard to the information package, trade unions agreed with the list

suggested in the consultation document and argued for further additions to the package.

They called for written statements to be provided prior to the start of the work or

immediately on signing the contract. The need to improve access to sanctions and means

of redress was acknowledged, including by calling for the introduction of a presumption of employment in case the employer fails to provide a written statement. Finally, they

were strongly in favour of new minimum rights aimed at improving transparency and

predictabiltiy of working conditions. They however requested more rights than those

presented in the second consutlation document including a complete ban on forms of

contractual arrangements not guaranting workers a minimum of paid hours and a right to

adequate remuneration.

In both phases employers’ organisations opposed the extension of the scope of

application of the Directive and the insertion of a definition of worker, based on concerns

related to flexibility for business and job creation potential as well as to subsidiarity. A

majority did not support amending the information package nor reducing the 2 months' deadline. No organisation supported changes at EU level to the system of redress and

sanctions. With very limited exceptions, employer organisations were opposed to the

inclusion of new minimum rights in a revised Directive. For that reason, they preferred

not to express views on specific minimum rights set out in the consultation document,

arguing that such issues were a matter of national competence and that it was not necessary, or even contrary to the principle of subsidiarity, for the EU to act in these

fields.

The social partners did not reach an agreement to launch the negotiation process provided

for under Article 155 TFEU. It is however important to improve protection in this area by modernising and adapting the current legal framework, while taking into account the diverging views expressed by the social partners. 92

3.3 Subsidiarity: Necessity of EU action and added value of EU action

The social dimension of the internal market – promoting fairness and social standards

The described multiplication of forms of work requires an assessment of the need for

additional common standards for working conditions to support equal treatment of

workers, a level playing field across the EU, and upward convergence in employment

and social outcomes.

An increasing number of workers not protected by the Directive, uncertainty over

whether new or non-standard forms of employment fall within its scope and divergencies in (timely) notification of essential elements of an employment relationship may lead to

precarious employment relationships or employment conditions, additional risks to the

health and safety of workers, and harmful social competition within and across Member

States. While collective agreements are an effective tool to complement and extend protection established in national legislation, these are also diverse and workers in the

most casual forms of work are currently often excluded from collective bargaining. There

is therefore a need to explore the opportunity for improved common action at EU level.

Furthermore, there is a risk of race to the bottom in standards applying to new forms of

work where the regulatory framework is weaker and more patchy across Member States, and their efforts to ensure minimum protection of workers is likely to lead to increasingly

divergent and even contradictory national solutions, creating regulatory loopholes when

viewed from an EU perspective, and leading to inequality in the protection of workers

and their living conditions. Eventually it could affect the quality of the workforce, the

relative competitiveness of employers, companies and Member States, and the

functioning of the EU internal market.

By acting at EU level there is a possibility to build on good practices developed in some

Member States, and to create a momentum for Member States to advance together

towards better outcomes, supporting upwards convergence.

While the EU is working to increase fair labour mobility in Europe by removing barriers,

the potential of labour mobility is not yet exploited in full. The EU could further

92 See Annex 2 for a more complete account of social partners' opinions expressed in the two stages of consultation.

contribute to improving internal market mobility for (some categories of) workers and for

businesses operating in different Member States.

Moreover, as highlighted in the Five Presidents' Report on Completing Europe's Economic and Monetary Union, 93 in a single currency area, there is a need to build up the

shock absorption capacity and labour market adjustment mechanisms of Member States.

Enhancing convergence towards robust labour market institutions and social

infrastructure can facilitate resilience, social cohesion and macro-economic adjustment within the euro area and beyond.

The European Parliament, in its Resolution of January 2017, calls on the social partners and the Commission to present a proposal for a framework directive on

decent working conditions in all forms of employment, extending existing minimum

standards to new kinds of employment relationships, in order to improve enforcement of

EU law, increase legal certainty across the single market and prevent discrimination by complementing existing EU law and ensuring for every worker a core set of enforceable rights, regardless of the type of contract or employment relationship. 94 Its request is for

an instrument that guarantees workers' rights across a wide range of fields including

equal treatment, health and safety protection, protection during maternity leave,

provisions on working time and rest time, work-life balance, access to training, in-work support for people with disabilities, adequate information, consultation and participation

rights, freedom of association and representation, collective bargaining and collective

action.

The Parliament's request represents a highly ambitious approach to addressing the

challenges set out in the problem definition section of this Impact Assessment. Indeed, it implies a revolutionary overhaul of the entire EU social acquis, bringing together into a

single legal instrument the widest possible personal and material scope of rights, which

would supersede the existing corpus of EU law.

While the Commission shares much of the Parliament's diagnosis of the challenges and

recognises the need for new material rights for workers in the most precarious and vulnerable situations, who are often currently left outside the scope of protection of the

current acquis, it takes the view that this does not require overhauling the entire acquis,

and that a more proportionate approach lies in a more modest and targeted instrument,

namely a revision and possible expansion of the Written Statement Directive. The

obligation to provide written confirmation of the essential elements of an employment relationship is seen as a basic right that applies "regardless of the type of contract or

93 "Completing Europe's Economic and Monetary Union", Report by Jean-Claude Juncker, in cooperation with Donald Tusk, Jeroen Dijsselbloem, Mario Draghi and Martin Schulz, June 2015.

94 European Parliament resolution of 19 January 2017 on a European Pillar of Social Rights (2016/2095(INI) i)

employment relationship", to use the wording of the Parliament's Resolution. Ensuring

the removal of gaps in coverage of workers in marginal or currently excluded employment relationships is one of the key objectives of this proposed revision, along

with an update in the contents of the information package. The creation of new material

rights particularly for workers in precarious situations with little or no predictability of

work schedules, addresses the essential element of the challenge highlighted by the

Parliament, but by means of a complement to, rather than replacement, of the existing EU

social acquis.

In its Opinion on the Commission's proposal for a European Pillar of Social Rights, the

European Economic and Social Committee draws attention to the increasing diversity of

types of employment and calls for the framework conditions in labour markets to support

new and more diverse career paths, including through providing a suitable employment protection legislation environment to provide a framework for fair working conditions and to stimulate recruitment under all employment contracts. 95 In its Opinion, the

Committee of the Regions states that the emergence of non-standard forms of work leads

to new risks of "grey zones" in terms of labour rights and access to welfare and calls on

the Commission to properly define flexibility in working conditions, so as to strike a balance between flexibility and security. 96 The Commission's analysis of the problem to

be addressed by the proposed Directive is aligned with that of both institutions and the

measures considered in this Impact Analysis and the preferred option follow the lines set

out in their recommendations for action.

The Written Statement Directive

Since the entry into force of the Directive in 1991 and more recently as a result of the economic and financial crisis, diverging and/or precarious working conditions and

insufficient protection of workers have been observed across the EU.

Currently, the Directive is not fully adequate and/or incomplete with respect to its scope,

implementation or enforcement as not every worker can access the same basic rights

everywhere, employers face unfair competition, and there is room for better prevention of undeclared work.

A change to the Directive can only be made at EU level.

EU action to revise the directive can work as a catalyst for a wider-scale improvement of

the employment relationship:

95 Opinion SOC/542 of the European Economic and Social Committee of 25.01.2017, paragraph 3.5.

96 Committee of the Regions, Opinion on the European Pillar of Social Rights, adopted in plenary session 11 October 2017, paragraph 18.

• - 

  for workers, alleviating the 'burden of uncertainty' by providing enhanced workers'

protection (access to information, enforcement mechanisms), less precariousness (security, predictability) or market segmentation (training and transition opportunities)

and better mobility conditions;

• - 

  for businesses, creating a level playing field; better coherence and transparency across

the labour market;

  Member States and the society at large would gain from greater certainty and transparency in labour market functioning and enhanced social convergence.

Achieving our common goals by facing our common challenges: an initiative on the information and better protection of EU workers

Member States, the social partners and the EU institutions aim to use the European Pillar

of Social Rights as a guide towards efficient employment and social outcomes in the

context of current and future challenges, in order to fulfil people's essential needs, and ensure better enactment and implementation of social rights.

Making the Social Pillar a reality for citizens is a joint responsibility. It is in this

framework of common agreement on the need to find common solutions to common challenges that this initiative is developed. It is one of the concrete tools that the

Commission is putting forward to contribute to the delivery on the Pillar.

• 4. 

  O BJECTIVES : W HAT IS TO BE ACHIEVED ?

A revised Written Statement Directive would contribute to the Treaty-based goals of

promoting employment and improved living and working conditions (Article 151 TFEU). It would also address the rights set out in the Charter of Fundamental Rights of

the European Union in relation to workers' right to information (Article 27) and their

right to fair and just working conditions (Article 31).

The general objective of the revised Directive would be to promote more secure and

predictable employment while ensuring labour market adaptability and improving

living and working conditions.

It is appropriate to reflect both elements from Article 151 TFEU, as the goal of the

revision is to secure improvements in working conditions, and thereby also the living

conditions of workers and their families, while taking account of the need to promote

employment and job creation and avoid imposing administrative, financial and legal

constraints in a way which would hold back the creation and development of small and medium-sized undertakings. 65

These aspects are reflected in the specific objectives through which the general objective

would be addressed:

• (1) 

  to improve workers' access to information concerning their working conditions;

• (2) 

  to improve working conditions for all workers, notably those in new and non-standard

employment, while preserving scope for adaptability and for labour market innovation

• (3) 

  to improve compliance with working conditions standards through enhanced

enforcement; and

• (4) 

  to improve transparency of the labour market while avoiding the imposition of

excessive burdens on undertakings of all sizes.

• 5. 

  W HAT ARE THE CONSIDERED POLICY MEASURES ?

5.1 What is the baseline from which options are assessed?

Under the baseline scenario the Written Statement Directive continues to apply without any changes to its personal scope, to the content of the written statement, or to the

deadline for providing the document to workers. No new basic rights for workers are

introduced and the enforcement mechanisms remain unchanged.

Concerning the scope, the gaps in the coverage identified through the REFIT evaluation

and in the context of the Social Pillar consultation, persist, leaving some groups of

workers in some Member States without any written confirmation of their employment conditions and thus making them more vulnerable to abuse. In some cases, other

initiatives or improved enforcement arrangements could partially address the gaps. For

example, the European Quality Framework for Traineeships, recently complemented

with a new proposal for a Framework for Quality and Effective Apprenticeships, could

increase the proportion of paid trainees who receive a written statement. Overall, however, the number of workers not covered by the provisions of the Written

Statement Directive is likely to grow in the next 20-30 years, as the extent of new and non-standard forms of work is expected to increase (see section 2).

As for the content and the deadline for the written statements, the effectiveness of the

Directive would continue to be negatively affected in case of no revision. While a relatively high number of Member States have adopted a range of shorter deadlines than

the maximum set out in the Directive, lack of legislative action at the EU level will make

it difficult to fulfil the Social Pillar principle that workers across the EU get a written

statement at the start of their employment.

Without the proposed revision of the Written Statement Directive, a high level of insecurity in some jobs, notably some new and non-standard jobs, would remain

problematic across the EU. Insufficient access to cost-free mandatory training or

opportunities to move on to more permanent jobs would persist. While new legislation

and collective bargaining in some Member States could gradually improve conditions for some groups of workers, the lack of EU minimum requirements would sustain and

probably deepen divergences across the EU. Those would have a negative impact on equality of treatment for workers and potentially lead to distorted competition within the

single market.

Finally, concerning the enforcement, under the baseline scenario the issues identified

through the REFIT evaluation on obstacles to redress would persist, leading to

insufficient protection of workers and undermined effectiveness of the Directive.

Under the baseline scenario it can be expected divergence between working conditions

across the EU, if not divergence towards lower standards with long-term risks for the

Union as a whole. As pointed in the European Parliament briefing of March 2017, the use

of cheaper and more vulnerable temporary workers can be one of the sources of social

dumping across and within Member States. 97

5.2 Measures discarded at an early stage

Guidance, recommendations, benchmarks

The economic governance through the European Semester process is well suited to set

out EU employment policy guidance in the area of labour market segmentation, but is not a process that can guarantee labour and social rights at the individual level in the Member

States.

Stricter enforcement could improve the effectiveness of the existing Written Statement

Directive as well as other elements of EU's social acquis. However, as shown in the

REFIT evaluation, enforcement shortcomings are related to the lack of adequate

mechanisms in the Directive. Also, enforcement would not address gaps in the social acquis e.g. with regard to predictability of work schedules.

Greater clarity on legal obligations and raising awareness of employers could also

contribute to a better implementation of the Directive. To some extent, interpretative

guidance (e.g. on the issue of blurred lines between employment and self-employment) could increase the clarity for employers and those tasked with enforcement such as

inspectorates or labour courts. Such guidance could however not amend the personal

scope of the Directive, would not address the existing exclusions from its scope, and also

would not be an effective tool to introduce any new rights for workers.

The growth of new and non-standard forms of employment has resulted in groups of

workers finding themselves excluded from the benefits of transparency on working conditions, and more generally from the scope of EU labour law, as it has up to now been

97 http://www.europarl.europa.eu/RegData/etudes/BRIE/2017/599353/EPRS_BRI(2017)599353_EN.pdf

largely framed around the concept of the standard employment contract or relationship.

Therefore, legislative changes appear to be the more adequate response to this fundamental challenge, particularly in respect of a transparency objective on working

conditions that should apply to the widest concept of worker.

Discarded legislative options

As explained in the Section 3, the Commission took note of the Parliament's call for

establishing a new framework directive on decent working conditions in all forms of employment but considered that at this stage a more proportionate approach lies in a

more targeted instrument.

Indeed some of the actions proposed by the Parliament would have improved the

protection of workers more, and more decisively challenged some of the issues raised in

the problem description, specifically for workers in new and non-standard forms of

employment. Nonetheless they would not have answered to the policy aim of reducing the risk of insufficient protection of workers while at the same time balancing necessary

flexibility on the labour market.

Furthermore, the option of proceeding with a proposal centred on one type of

employment relationship (for instance a directive on on-call or casual work) has been

discarded. Indeed, the problem that this proposal aims to address relates to the multiplication of forms of employment relationships, some of which lack basic levels of

protection of working conditions. The aim is to ensure a common minimum level of

universal protection across existing and future contractual forms for which the provision

of universal rights via a revised Written Statement Directive would be a more effective

entry point than a dedicated legislative instrument targeted at a form of employment that may become superseded by the rapid pace of change on the labour market. This

approach, in line with the universality of the Principles of the European Pillar of Social

Rights, aims at ensuring that the provisions are future-proof, apply broadly and remain

relevant also in case of future innovation in contractual forms.

The reasons for discarding other options are twofold. The first is the need to ensure that the cumulative effect of the different provisions does not create excessive burdens for

employers or excessive rigidity on the labour market at this stage of its development. The

importance of this consideration takes into account the diverging views of the social

partners and the obligation in Article 153(2) TFEU to avoid imposing administrative,

financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. The second reason relates to the

Treaty basis, and the need to ensure that proposals not only respect EU competence,

proportionality and subsidiarity, but also that they are consistent with the scope of Article

153(1)(b) on working conditions.

Taking into account these aspects, the Commission discarded some of the avenues of

action reflected upon in its first stage social partners consultation document: a right to a reasonable notice period in case of dismissal/early termination of contract, to receive the

reason for the dismissal and to adequate redress in case of unfair dismissal or unlawful

termination of contract; and a right to guaranteed hours after a certain seniority with the

same employer set at the average level of previous worked hours.

The rights relating to dismissal could indeed create an excessive burden if introduced together with other information and material rights. Additionally, they relate to another

legal basis (Art 153(1)(d) requiring unanimity voting in Council. The avoidance of

cumulative burden was the reason to exclude also the right to guaranteed hours.

Regarding training, the Commission initially considered introducing an obligation for

employers to provide free of charge training necessary to enable workers to carry out the

work for which they are employed. This was however considered as a disproportionate measure from the point of view of costs (which could amount to 1-4 billion EUR per year

and be especially burdensome for SMEs) and lack of clarity on what constitutes training

necessary for the job, which could lead to problems of transposition and implementation.

Additionally, for the same two types of reason, the Commission did not pursue certain

proposals put forward during the consultation by the trade unions.

 In exercising these considerations, the Commission addresses the need to balance

essential protection for workers with the scope for job creation and labour market

innovation.

Repeal of the Directive

A complete repeal of the Directive without replacement would leave it entirely to the Member States to determine what information a worker should receive about his or her

employment relationship and to establish any new material rights. This scenario has been

discarded at the outset as it could result in a wider divergence of worker protection across

the EU as well as deterioration in existing rights to information and material protection,

in complete contrast with the aim of supporting upwards convergence.

5.3 Considered policy measures

Given the drawbacks in the protection through the Written Statement Directive identified

by the REFIT evaluation as well as the challenges related to labour market developments,

the Commission is considering a range of legislative measures. Those measures will be

combined into options presented as policy packages in Section 6). They are all aimed at promoting more secure and predictable employment while ensuring labour market

adaptability and improving living and working conditions, to support upward

convergence in working conditions across the Union.

Indeed, these measures aim at limiting unfair competition based on employment

conditions, inside and across Member States. Building measures that allow common minimum social standards across both traditional and new business models seems central

to set a level playing-field. This can support technological and organisational innovation

within a common regulatory framework, and limit competition on the basis of social

standards. Only the first is a sustainable long-term strategy to support a more productive

economy and fairer Union.

Measure one relates to ensuring a scope of application encompassing all EU

workers, in particular the most precarious.

The proposed measure aims to extend the scope of the Directive by removing the

exclusions now allowed under the Written Statement Directive (sub-measures 1 to 3) and

codifying criteria derived from CJEU case-law for establishing who a worker is for the

purpose of the Directive (sub-measure 4). This is in line with the suggestions of the REFIT evaluation, and with requests of the European Parliament.

Indeed, the Parliament called for a proposal for decent working conditions in all forms of

employment, extending existing minimum standards to new kinds of employment

relationships, that increases legal certainty and ensuring for every worker a core set of enforceable rights, regardless of the type of contract or employment relationship, that

should apply to employees and all workers in non-standard forms of employment. The

Parliament called as well for broadening the Written Statement Directive to cover all

forms of employment and employment relationships. Additionally, it pointed to the need

to support, for the purpose of EU law and without prejudice to national law, clarification to distinguish between those genuinely self-employed and those in an employment

relationship.

Introducing a set of common criteria to assess who is a worker for the scope of the

directive would ensure equal treatment of workers in the EU and combat the exclusion from basic protection of people undertaking economic activities that might not be

recognised as work at national level (as in some cases casual workers including zero-hour

contract workers). This will support the goal of increasing legal certainty and ensuring

for every worker a core set of enforceable rights, regardless of the type of contract or

employment relationship. Indeed, the measure would facilitate identification of bogus

self-employed people and their inclusion under the scope of the Directive in the sense that it would clarify which criteria should be applied to establish worker status.

Strengthened enforcement provisions under measure 5 would provide an avenue for those

potentially falsely labelled self-employed to establish their correct status and the

protection that comes with it.

To facilitate the implementation of the Directive, the proposal permits Member States to

provide that very short relationships fall outside scope of the Directive 98 by including a

threshold of up to 8h per month (sub-measure 1.5.). This aims at bringing within scope of

the obligations established by this Directive employment relationships that are of

extremely marginal nature and where the protections set out in the Directive could be

disproportionate. It will be for Member States to determine, in the light of national

circumstances and traditions, whether to introduce such an exclusion from personal

scope. Nonetheless, due to the unpredictability of on-demand work including zero-hour contracts, the derogation of 8 hours per month cannot be used where no guaranteed

amount of paid work is determined before the start of the employment relationship. This

would ensure that workers on zero-hours contracts effectively gain the right to

information about essential elements of their working relationship as well as the other

rights established in the Directive.

Measure two relates to ensuring a right to information on the applicable working

conditions.

This measure updates Article 2 of the Written Statement Directive, taking into account the deficiencies identified by the REFIT evaluation and the inputs from Social Partners

during the first and second phase consultations by introducing new elements relating to

duration and conditions of probation (sub-measure 1), training entitlements (sub-measure

2), better information on procedures for the termination of contracts (sub-measure 3),

arrangements for overtime and its remuneration (sub-measure 4), key information about

the determination of variable working schedules, to take account of the increasing prevalance of such types of work organisation such as casual or zero-hours contracts

(sub-measure 5 to 7), information about the social security institutions receiving the

social contributions and and any social security protection provided by the employer

(sub-measure 8), and updating some information relating to expatriate and posted

workers (sub-measure 10).

The REFIT evaluation drew attention to the practice in several Member States of

providing a template to employers in order to reduce the burden of producing the written

statement, and suggested that such a template could be produced at EU level. While the

Commission does not consider it appropriate to produce a single template intended to apply in all Member State jurisdictions, given the diversity of systems and approaches for

which it would have to provide, it considers it would be helpful both to employers and to

workers, not only as a way of reducing the burden of compliance for employers but also

of improving the quality and consistency of information provided to workers. The

98 In the calculations of the CBA it is assumed conservatively only the removal of current exclusions not knowing which MSs will adopt the new threshold. This derogation does not apply to an employment relationship where no guaranteed amount of paid work is predetermined before the employment starts.

provision of such templates by Member States would be mandatory (sub-measure 9).

Member States would also be obliged to ensure ease of access for employers to the information provided for in laws, regulations, statutory provisions or collective

agreements which they must communicate in the written statement.

All of the above would increase transparency and reduce the information disparity between an employer and a worker.

Measure three relates to shortening of the two-month deadline for providing the written information to at the latest on the first day of the employment relationship

This measure replaces the current maximum timeframe of 2 months for provision of a written statement set out in Article 3 of Directive 91/533/EEC i with the first day of the

employment relationship, in line with Principle 7 of the European Pillar of Social Rights

and in coherence with the REFIT finding that the previous timeframe was excessive.

Measure four provides for new minimum rights for all workers.

As shown in the problem definition, while labour market flexibility is an important driver for job creation and growth, extreme flexibility of individual work arrangements without

protection of basic standards for workers has created situations which can jeopardise

working and living conditions, equal treatment, fair competition between employers

across the EU and overall social cohesion and equity.

Indeed, as the Parliament called for, it is necessary to complement existing EU law and ensure a core set of enforceable rights for every worker, regardless of the type of contract

or employment relationship. While it was already explained why it is not considered

appropriate to put forward all the rights suggested by the Parliament in a single piece of

new legislation, some elements suggested seem to be of central importance to address the

problems described in Section 2; this includes provisions to combat the risk of workers being trapped in insecure contracts without a tangible prospect of transitions to more

permanent jobs, and provisions to support access to training and to introduce limits

regarding on-demand work. Additionally, some proposals aim at supporting

predictability in line with the call from the Parliament to support equal treatment,

working time and rest time, health and safety protection and work-life balance.

A minimum common level of predictability (sub-measure 1) can prove extremely important for living and working conditions, work-life balance and health of workers

without a fixed schedule, including on-demand work and zero-hour contract workers. As

presented in the problem definition, workers in lower-level occupations are in particular

less likely to have the bargaining power to negotiate their working schedules, or more

likely to have no autonomy or control over their schedules.

This new right could include two elements:

• - 

  Right to reference days and hours within which work can take place:

This measure provides that the employers must notify workers of the periods of hours

and days within which they may be requested to work –e.g. Monday to Friday between 0800 and 1300. That would enable workers to make arrangements to use the time not

covered by such reference hours/days, for instance in other employment or to fulfil care

obligations.

Workers may agree to work outside the reference hours and days, but could not be obliged to do so, and must not be subject to detriment if they refuse.

• - 

  Right to a reasonable advance notice before a new work assignment:

This measure provides that workers cannot be required to take up a work assignment if

they do not receive reasonable advance notice from their employer. They may agree to do

so but must not be subject to detriment if they refuse.

This right to predictability is relevant for workers whose work schedule is mainly variable and mainly determined by their employer and is therefore limited in scope to

such situations, to avoid restricting workers' autonomy to determine their work schedule,

where this is possible within their employment relationship.

In addition, for all workers, it is important to ensure that they can seek employment in line with their wishes, ambitions and availability. Indeed, the practice of including in

contracts exclusivity clauses (which prevent workers from taking on other work at all, no

matter what the type of employer), or incompatibility clauses (which impede workers

from taking on work with certain other employers), can put a disproportionate burden on

workers and restrict their freedom to increase their work intensity. Particularly if not

employed full-time, workers are put in a situation where they cannot freely seek greater income security and stability, or even avoid poverty. In economic terms, exclusivity and

incompatibility clauses exacerbate situations of underemployment. Sub-measure 2

therefore provides for a prohibition of exclusivity clauses and a restriction on

incompatibility clauses to when they are justified by legitimate reasons.

Sub-measures 1 and 2 respond to the Parliament's request to limit on-demand work; submeasure 3 responds to its call to combat the danger of people being trapped in insecure

contracts without a tangible prospect of transition to more permanent forms of

employment. Indeed, sub-measure 3 would provide for a possibility to request a more

predictable and secure form of employment, where available, after achieving a certain

degree of seniority with their employer, and to receive a reply in writing. This could ease

the transition from extremely flexible forms of non-standard work to other forms of work (e.g. full time work).

Sub-measure 4 responds to the need for security and predictability in the framework of

the increased number of transitions between jobs and professions. While longer probationary periods have often been used in the perspective of entering very long and

stable employment relationship, this approach becomes less appropriate in view of a lifetime of changes of jobs. Workers risk spending considerable amounts of time during their

career in a situation of unpredictability in terms of job security. It is proposed therefore to

limit probation, where it exists, to 6 months maximum, unless a longer duration is

justified by the nature of the employment, such as managerial positions, or where this is

in the worker's interest, such as when he or she has been prevented by illness from

fulfilling the original probationary period fully and would otherwise face dismissal.

Finally, sub-measure 5 responds to the need of ensuring equal access to training.

According to this provision Member States shall ensure that employers provide cost-free

training recognised as being necessary in EU legislation, national legislation and in

relevant collective agreements to enable workers to carry out the work for which they are employed.

Finally, measure five provides for revised enforcement provisions.

Rights are only meaningful when they are taken up by right-holders. Both the REFIT

evaluation of the Written Statement Directive, and the public consultation on the

European Pillar of Social Rights, have underlined the importance of enforcement mechanisms to ensure workers’ rights are respected and EU law is effective. This has

also been underlined by the recent Commission Communication on better application of EU law. 99

Sub-measures 1 to 3 follow from the findings of REFIT and apply to incompliance with

the obligation to provide information on the employment relationship.

The REFIT evaluation of the Written Statement Directive indicated that enforcement of

workers' rights under the Directive could be improved by rethinking means of redress and sanctions for non-compliance. 100 It also concluded that redress systems based only on

claims for damages are less effective than systems that also provide for sanctions such as

lump sum penalties. The limited extent of case law indicates that workers whose rights

under the Directive have been infringed are reluctant to pursue litigation while in employment. Generally any litigation is related to the working conditions themselves,

and not to the absence of information about them.

Indeed under under sub-measure 1, Member States are to make sure that a 'competent

authority' can find or impose a solution in case a worker does not receive a written

statement. This could combine with sub-measure 2 to set up an injunction system, backed up with the possiblity to issue penalties.

99 EU law: Better results through better application, C(2016)8600.

100 SWD (2017)205, page 3,4.

In almost a third of the Member States the only available means for redress in case of

lack of written statement is litigation before civil or labour courts, which was considered under REFIT particularly ineffective as means of enforcement when the only available

remedy is the award of damages.

Alternatively, under sub-measure 3 Member States may establish favourable

presumptions for the employees as regards their working conditions in case of (unlawful)

absence of written statements (proportionate to the missing elements). This is to include for instance presumption of permanent employment relationship. Employers would have

the possibility to rebut the presumption.

It is suggested that Member States consider sub-measures 1+2, and 3, as alternative.

In relation to the new basic rights, sub-measure 4 aims at ensuring their enforcement.

Indeed, one of the conclusions of the public consultation on the European Pillar of Social

Rights 101 was that, very often, citizens are deprived of their rights due to a lack of

implementation and enforcement. In the context of EU labour law, unlike in other areas,

there are very few EU rules directly concerned with enforcement of rights. Experts

highlighted various ways to close the enforcement gap. It was proposed to ensure that

legislation in the field of labour law contains procedural provisions for enforcement, such

as provisions improving access to justice, supporting persons whose rights have been denied to initiate litigation, protecting against victimisation and providing for basic rules

on remedies and dissemination of information. It was pointed out that inspiration could

be drawn from existing instruments e.g. in the field on non-discrimination or free

movement, where a range of enforcement tools have been adopted in recent years. Others

asked for more and better labour inspections.

Sub-measure 4 would enlarge the enforcement provisions of the revised Directive based

on enforcement provisions already in place under EU anti-discrimination and gender

equality law, and included in the new proposal for a Directive on Work-Life Balance.

Indeed, following the evolution of the EU acquis and case-law in the field of gender

equality and antidiscrimination in the last 30 years, now all Member States have put in place enforcement provisions that apply to the interaction between worker and employer.

This includes provisions on defense of rights, burden of proof, compensation or

reparation, protection against adverse treatment or victimisation, penalties, compliance

and dissemination of information. 102 This corpus of enforcement provisions has

101 Delivering on the European Pillar of Social Rights, http://ec.europa.eu/social/main.jsp?catId=1226&langId=en , and Public consultation on the European Pillar of Social Rights http://ec.europa.eu/social/main.jsp?catId=333&langId=en&consultId=22&visib=0&furtherConsult=yes 102 Existing provisions on Defence of Rights are Art. 17 of the Gender Recast Directive Dir. 2006/54, Art 7 of the Race Equality Directive 2000/43 i, Art. 9 of the Employment Equality Directive 2000/78 i.On Burden

developed via legislative action and case-law to ensure the effectiveness of social acquis

relating to equal treatment. Workers, employers, public authorities, social partners, labour courts have experience in applying these procedural elements – in all Member

States in equal treatment, and in many cases in other areas of labour law beyond equal

treatment. This acquis offers an extensive system that can be used to ensure the

effectiveness of the rights provided for also in this Directive.

In particular, providing a shared burden of proof in case of dismissal 103 due to the

exercise of rights provided for under the proposed Directive would help counter

unbalanced access to information between worker and employer that is one of the factors

addressed by the proposed Directive. The first proposal for a Directive on burden of

proof was already adopted in 1988, with key CJEU judgments on the matter since

1989 104 , and the first Directive agreed upon in 1997 105 with the assessment that "plaintiffs

could be deprived of any effective means of enforcing the principle (of equal treatment)

before the national courts if the effect of introducing evidence (of an apparent

discrimination) were not to impose upon the respondent the burden of proving that his

practice is not in fact discriminatory" 106 . This reasoning is transposable to the need for

effective means of enforcing the rights provided for in the proposed Directive, in a comparable situation where information on the reasons for employers' actions rests solely

with the employers. This is already in place, beyond equal treatment, at least partially in

21 Member States.

Furthermore, it is important to provide that workers are protected against adverse

treatment by the employer as a reaction to a complaint or to any legal proceedings aimed at enforcing compliance with the Directive. This principle has been present in the equal

of Proof: Art 19 of Dir. 2006/54, Art. 8 of Dir 2000/43, Art. 10 of Dir. 2000/78. On Compensation or reparation Art. 18 of Dir. 2006/54, aspects of Art. 15 of Dir. 2000/43, aspects of Art. 17 of Dir. 2000/78. On Protection against adverse treatment or consequences /Victimisation: Art 24 of Dir. 2006/54, Art. 9 of Dir. 2000/43, Art. 11 of Dir. 2000/78. On Penalties Art 25 of Dir. 2006/54, partially Art. 15 of Dir. 2000/43, aspects of Art. 17 of Dir. 2000/78. On Compliance Art 23 of Dir. 2006/54, Art. 14 of Dir. 2000/43, Art. 16 of Dir. 2000/78. On Dissemination of information- as Art 30 of Dir. 2006/54, Art. 10 of Dir. 2000/43, Art. 12 of Dir. 2000/78 .

103 Or equivalent, such as ceasing to offer work to an on-demand worker without formally terminating the employment relationship.

104 C-109/88 Danfoss para 14: "the concern for effectiveness which thus underlined the directive means that it must be interpreted as implying adjustments to national rules on the burden of proof in special cases where such adjustments are necessary for the effective implementation of the principle of equality" confirmed and further elaborated also before the 1997 Directive in Enderby C-127/92, Royal Copenhagen C-400/93.

105 Council Directive 97/80/EC i of 15 December 1997 on the burden of proof in cases of discrimination based on sex

106 Recital 17, Directive 97/80/EC i

treatment acquis since 2000 107 as "effective legal protection must include protection

against retaliation. Victims may be deterred from exercising their rights due to the risk of retaliation. Since fear of dismissal, for example, is generally one of the major obstacles to

individual action, it is necessary to protect individuals against dismissal or other adverse

treatment (for instance down-grading or any other coercive measures due to such

action)" 108 The reasoning is transposable to the need for protection against retaliation for

requesting e.g. another form of work, or the respect of reference hours and notice

periods. It seems particularly important to ensure protection against detriment in particular for on-demand work, where the standard protections against unfair dismissal

often are difficult to apply. This principle is already at least partially in place, beyond the

sphere of equal treatment, in 23 Member States either for all matters concerning with

labour law, or for specific provisions generally including dismissal.

The table below presents more detailed information on the formulation of the considered

measures, as well as populations and Member States potentially affected by their possible

introduction. Annex 8 provides further information, including examples of Member State

approaches which provided a basis for the new minimum rights and the enforcement

measures. To be noted that the impact of the considered measures could also vary depending on the extent that some of the rights are already established through collective

agreements or practice. The provisions of major relevant collective agreements have been

taken into account in the analysis (see section 7 of Annex 8).

Table 2. Overview of policy measures under consideration 109

Description of measure Population Number of Member affected States where legal changes would be required

• 1. 

  A scope of application encompassing all EU workers, in particular the most precarious

Removing the possibilities under the existing 2-3 million Inclusion of workers Directive to exclude: workers working less than

8h/week: 4 MS (CY, 1.1: people working less than 8h/week DK, MT, SE).

1.2: people whose employment relationship will last less than 1 month Inclusion of workers 1.3: people having a contract or employment employed for less relationship of a casual or specific nature than 1 month: 13-14

107 Council Directive 2000/43/EC i of 29 June 2000 on equal treatment irrespective of racial or ethnic origin, then Directive 2002/73 i on gender equality then recast in Directive 2006/54 i recast.

108 Explanatory memorandum accompanying the proposal for Directive then become Council Directive 2000/43/EC i COM(1999)566 i.

109 In the impact assessment each measure is considered as including the whole set of sub-measures and including any clarifications or derogations as described in the table.

provided that its non-application is justified MS (AT, CY, CZ, by objective considerations DK, FI, DE, EL, IE,

LT, MT, SK, ES, Confirming/ensuring that the Directive covers UK, possibly SE) any ‘natural person who for a certain period of time performs services for and under the Impact on other direction of another person in return for types of nonremuneration’. 110 standard forms of

employment in a

The Directive would apply to e.g. domestic number of other workers, on-demand, intermittent, voucher MS (see table 1 in based and platform workers, as long as they section 2.2.1 on legal fulfil the criteria. situation regarding

different types of

A threshold of a work relationship of up to 8h worker per MS).

working hours per month would replace the removed exclusions (1.1-1.3) to permit

Member States to provide that isolated very short relationships fall outside scope of the

Directive. 111 This threshold shall not apply to an employment relationship where no guaranteed amount of paid work is predetermined before the employment starts.

Where work is performed for a household,

Member States may consider that natural persons belonging to this household are not subject to employers’ duties for the purposes of responding to a request for a new form of employment, the right to mandatory training, and are not subject to redress based on favourable presumptions.

• 2. 

  A right to information on the applicable working conditions

Informing about: 5-31m Introducing

2.1 the duration and conditions of the benefitting in information on: probationary period, if any; practice (new

2.2. the training entitlement, if any, provided recruits) 112 - probationary by the employer; period: 7 MS (AT,

110 These criteria are based on the jurisprudence of CJEU as developed since case Lawrie-Blum, C-66/85, and most recently stated in C-216/15 Ruhrlandklinik.

111 The cost-benefit calculations assume conservatively only the removal of current exclusions not knowing which Member States will adopt the new threshold. This derogation does not apply to an employment relationship where no guaranteed amount of paid work is predetermined before the employment starts.

112 Number depends on the specific element of information. In addition, 4.6m-9.3m additional employees starting a job could receive information about duration and conditions of probation periods, and 15.3m 30.7m additional employees p.a. leaving a job could receive information about national law applicable in case of termination

2.3. information on the procedure to be BE, DK, HR, IE, SE, observed by the employer and the worker UK) should their contract or employment relationship be terminated including the - social security: 19 length of the period of notice to be observed MS (AT, BE, BG, or, where the length of the period of notice CZ, DK, EE, FI, HR, cannot be indicated when the information is HU, IE, IT, LT, LU, given, the method for determining such period MT, PL, RO, SE, SI, of notice; (beyond the already present SK) information on the length of the periods of notice) - national law 2.4. if the work schedule is entirely or mostly applicable in case of not variable, the standard working day or termination of week and any arrangements on overtime and contract: 24 MS its remuneration; (BE, BG, CZ, DE, 2.5. if the work schedule is entirely or mostly DK, EE, ES, FI, FR, variable, the principle that the work schedule HR, HU, IE, IT, LT, is variable, the amount of guaranteed paid LU, LV, MT, NL, hours, the remuneration of work performed in PL, PT, RO, SE, SI, addition to the guaranteed hours and, if the SK) work schedule is mostly determined, directly or indirectly, by the employer: (2.6.) the - precise working reference hours and days within which the time: 19 MS (AT, worker may be required to work; (2.7.) the BE, BG, DE, DK, minimum advance notice the worker shall EE, ES, FI, FR, HR, receive before the start of a work assignment; IT, MT, NL, PL, PT, 2.8. the social security institution(s) receiving RO, SE, SI, SK) the social contributions attached to the employment relationship and any protection relating to social security provided by the Introducing employer. templates: 13 MS

(BE, BG, CZ, DE,

2.9. Requiring Member States to develop, DK, IT, HR, HU, where this is not already the case, on-line NL, PT, SE, SI, SK)

standard 'Written Statement Models' or templates.

2.10. Additional elements of information are required for posted workers.

• 3. 

  Shortening of the two-month deadline to the same day or before

• 3. 

  Shortening the deadline from 2 months to at 8-16 m workers 14 MS: the latest on the first day of the employment per year could - HU (currently 15 relationship. benefit in days)

practice from -CY, CZ, DE, DK,

This measure replaces the current maximum this right. FI, NL, SE, SK timeframe of 2 months for provision of a (currently 1 month) written statement set out in Article 3 of - EL, ES, IE, PT, UK Directive 91/533/EEC i with the first day of the (currently 2 months) employment relationship. 113

In order to avoid situations where failure to provide the written statement on the first day could lead to the automatic triggering of legal presumptions, Member States may establish that a legal presumption or administrative procedure is subject to the notification of the employer and the failure by the employer to rectify the omission within 15 days of notification.

• 4. 

  New minimum rights for all workers

4.1: Right to greater predictability of work Reference days Reference days and for workers whose work schedule is entirely and hours: hours: or mostly variable and entirely or mostly

determined by the employer consisting of: 4-6 million 21 MS (the right - Right to be required to work only if it takes casual and exists in BE, HR, place within predefined reference days and voucher-based DK, EL; in AT, LV, hours established in writing workers. LT on demand work - Right to be required to work only if is prohibited)

informed of a work assignment a reasonable Minimum period in advance advance notice: Minimum advance

notice:

Reference days and hours 5-6 million casual and

17-18 MS (the right

This measure provides the employers must voucher-based exists in DK, DE, notify workers of the periods of hours and workers. HU, IT, SL, ES, SE,

days within which they may be requested to and partially PT – for work – e.g. Monday to Friday between 0800 intermittent only; in and 1300. That would enable workers to make AT, LV, LT on arrangements to use the time not covered by demand work is such reference hours/days, for instance in prohibited) other employment or to fulfil care obligations.

Workers may agree to work outside the reference hours and days, but could not be obliged to do so, and must not be subject to detriment if they refuse.

Reasonable advance notice

This measure provides that workers cannot be required to take up a work assignment if they do not receive reasonable advance notice from their employer. They may agree to do so but

113 In line with Principle 7 of the European Pillar of Social Rights referred to above

must not be subject to detriment if they refuse.

4.2 Prohibition of exclusivity clauses 0.5-1.5 million 24 MS, but to a This measure provides that employers may casual and different extent: not prohibit workers from taking up voucher based

employment with other employers outside the workers. 114 Exclusivity clauses

work schedule established with the first are employer (so-called exclusivity clauses). They - fully allowed AT, may not introduce incompatibility clauses HR, LT, LU, FR, (which restrict taking up employment with MT, SE specific types of employers as e.g. - allowed under competitors) unless this is justified by certain conditions: legitimate reasons such as the protection of AT, CZ, EL, HU, business secrets or the avoidance of conflicts PT, BE, LV, SK, ES, of interest. FI, IE, IT, NL, UK

• - 

  prohibited but with exceptions: DE, PL,

  SI, CY, RO 4.3: Possibility to request transfer to another 53% of fixed 13 MS (AT, BE, CZ, form of employment and receive a reply in term workers in DK, EE, FI, HU, IT, writing Europe would LV, MT, PL, SE,

  prefer a SK) This proposal establishes a possibility to permanent

request from employers a more predictable contract. 115 This

and secure form of employment, where suggests that up available: a more secure form of work for to 14m fixedworkers working part-time and wishing to term workers transition to full-time, or for workers with no might wish to or few guaranteed paid hours per week or make use of this months and wishing to be able to rely on a right. higher number of guaranteed paid hours and

for workers desiring to agree on a less 9.5m part-time variable work schedule. Employers are workers required to respond in writing within one currently work month. fewer hours

than they would In micro, small, or medium enterprises, like.

Member States may provide for this deadline to be extended to no more than three months and/or allow for an oral reply to a subsequent similar request submitted by the same worker if the justification for the reply as regards the

114 29% of part-timers in 2015 were involuntary (source EU-LFS). It can be assumed that most of the involuntary part-timers work less that they would want to because of lack of job opportunities rather than exclusivity clauses, but exclusivity clauses are a contributory factor for involuntary part-time. 115 European Commission (2017), Employment and Social Developments in Europe 2017

situation of the worker remains unchanged.

4.4: Right to a maximum duration of 3-6 million in IE 2 MS (IE, UK) probation period and UK.

This provision sets a maximum duration of six The number that months for any probation period, unless a would benefit longer duration is justified by the nature of the might however employment, such as a managerial position. A be much lower substantial number of Member States have due to legal established a general maximum duration for arguments or probation periods which largely varies precedents that between three and six months. Some apply limit the duration derogations to managerial positions which in practice in often are double the standard probation those MS period. (estimation at

0.5-1.5 million per year).

4.5. Right to cost free mandatory training The right would At EU level, cover all 200m obligation to provide

According to this provision Member States employees in the training is shall ensure that, where employers are EU. In practice, established e.g. in required in EU legislation, national legislation only those whose the Directive and in relevant collective agreements to employers do not 89/391/EEC (safety provide the training recognised as being comply with and health of necessary to enable workers to carry out the otherwise workers at work) and work for which they are employed, such existing related specific training shall be provided cost-free to the obligations safety and health worker . would benefit. directives, some

directives/regulations in the area of transport, feed and food law, money

laundering, renewable energy. Obligations are either put directly on employers or left to Member States to establish who is responsible for the delivery and cost of training.

• 5. 

  Enforcement

• 5. 

  Requiring Member States to: The right would Most Member cover all 200m States have

Legal presumption and early settlement employees in the provided for means mechanism EU 117 . In of redress judicial

practice, those process either in -5.1: make sure that a 'competent authority' whose rights are civil courts or can find or impose a solution in case a worker not respected special labour does not receive a written statement; could benefit. courts. In several -5.2: set up an injunction system accompanied Member States by a possibility of a penalty; labour inspectorates -5.3: establish favourable presumptions for have a monitoring the employees as regards their working and/or enforcement conditions in case of (unlawful) absence of responsibility. In written statements (proportionate to the almost a third of the missing elements). Member States the 5.4. enlarge the enforcement provisions of the only available revised Directive based on enforcement means for redress provisions already in place under EU antiare civil or labour discrimination and gender equality law courts, which are

considered 5.1 to 5.3: Legal presumption and early particularly settlement mechanism ineffective as means

of enforcement

This provision provides for two alternative when the only avenues of redress for failure to provide all or available remedy some of the written information, either (i) the are damages.

use of favourable presumptions proportionate to the missing information, including at least In 10 MSs 118 there presumption of open-ended relationship if no is no competent information is provided about the duration of authority that can the employment relationship, a presumption impose a solution in of full-time position if no information is case of lack of WS. provided on the amount of guaranteed paid

hours, and a presumption of absence of In 14 MS 119 there is probation period where no information is no formal injunction provided on the existence and the duration of system with lump a probation period; or (ii) access to an sum in case of lack administrative procedure under which a of WS.

competent authority (which may be an

existing body such as a labour inspectorate or In 22 MSs 120 in case a judicial body) has the authority to establish of (unlawful) the facts of the case, to order the employer to absence of written issue the missing information, and to impose a statements, there are fine if this is not done. This provision no favourable addresses the weakness in the existing presumptions made

117 unless otherwise excluded from the scope of the Directive 118 AT, BE, DE, FR, HR, LU, NL, SE, SL, UK

119 AT, BG, CZ, DE, FI, FR, LU, LV, NL, PT, RO, SE, SL, UK 120 AT, BG, CY, CZ, DK, EL, ES, FI, FR, HR, HU, IE, IT, LT, MT, NL, PL, PT, RO, SE, SK, UK

mechanisms identified in the REFIT for the employees as evaluation, by which redress systems based on regards their working claims for damages are less effective than conditions. those based on other forms of penalty such as

lump-sums. 116 All 28 Member

States have in place

5.4: An extensive system of enforcement for enforcement the EU social acquis has built up since the provisions that apply adoption of Directive 1991/533/EEC i, notably to the interaction in the field of anti-discrimination and equal between worker and opportunities legislation, which it is employer in the field appropriate to apply to the new material of gender equality rights. This includes provisions on: and

-Right to redress antidiscrimination.

-Protection against adverse treatment or consequences

• - 

  Burden of proof in cases of dismissal resulting from an attempt to exercise rights provided for in the directive

• - 

  Penalties

  • 6. 

    W HAT ARE THE P OLICY OPTIONS AND THEIR IMPACTS ?

  6.1 Options: Four policy packages

For the sake of assessing impacts as well as for comparing effectiveness, efficiency and coherence, the individual policy measures presented in the previous chapter are

combined into "policy packages". The policy packages represent different

configurations of measures, which when put together have different impacts than if they

were to be considered in isolation. While many other combinations of measures are

theoretically possible, the policy packages above represent the most logical sets of proposals.

The strengthened requirements (measures 2 - extension of the content of the written

statements, and 3 - shortening the deadline for their provision to workers) are part of each

of the options as those consequences of REFIT are the most modest modifications of the

Directive, and could be combined with any more substantial change. Improved enforcement (measure 5) also stems largely from the findings of REFIT about the

116 The workers that would benefit from it in practice are expected to be mainly the workers in a new job - a range estimate based on a low rate of turnover (10%) and a high rate (20%): is 18-36m. EWCS showed that only 40% of EU workers receive training in the survey year – this shows that potentially 60% of new hires could benefit from the right

116 SWD(2017)205 final, page 26.

weaknesses of the current redress mechanisms, and takes account of provisions adopted

in the EU social acquis since 1991. While limiting the modification to only those elements would not justify a launch of a legislative process and would not address the

objectives set out in the Pillar, it is appropriate to include in all packages the provisions

addressing the REFIT outcomes.

Policy packages

• A. 

  Baseline: no change B. Extended scope and strengthened requirements (measures 1, 2, 3, 5) C. Strengthened requirements and minimum rights (measures 2, 3, 4, 5) D. Extended scope, strengthened requirements and minimum rights (measures 1, 2, 3, 4, 5)

Policy package A is the baseline scenario, as described in the section 5.1.

Policy package B consists, in addition to the REFIT measures common to B, C and D, of

extending scope of the application of the Directive: existing exceptions would be

removed and replaced with a much lower threshold, and new and non-standard forms of

employment would be better covered. In addition, a revised Directive would follow the

suggestions of the REFIT evaluation (extension of the content of the written statements, shortening the deadline for their provision to workers, improved enforcement). No

substantial new rights aimed at increasing job predictability and security would however

be created.

In policy package C the common REFIT suggestions would be followed and in addition

new rights for workers would be added to the directive (rights related to predictability of work, maximum length of probation, possibility to request another form of employment,

right to cost-free training which employers are required in EU legislation, national

legislation and in relevant collective agreements to provide to workers). The scope of the

Directive would remain unchanged.

It is important to note that, without the modification of the scope, the policy package C does not address the problem definition, which establishes that the new initiative should

apply to all workers. This policy package is nevertheless analysed in order to examine

what the impact of the new rights would be if the scope of the Directive remained

unchanged and some 2-3 million workers in total (notably those in new and non-standard

forms of work, including casual workers, workers on very short contracts or working less

than 8 hours per week) would continue to be excluded from the provisions of the Directive.

Policy package D is a combination of the previous two. It extends the personal scope of

the Directive, introduces changes suggested through the REFIT and creates new basic

rights which in this scenario apply to the extended population of workers, including those in new and non-standard forms of work.

6.2 Impacts of the options

This section presents an overview of main social, economic and legal impacts associated with each policy package. 121 Impacts are grouped in three categories: (a) impacts on

workers and working conditions, (b) impacts on employers, including competitiveness

and productivity, (c) broader impacts (on labour markets, public finances, application and

enforcement, fundamental rights). No relevant environmental impacts could be

identified.

The analysis is based mainly on results of a dedicated external study. 122 Annex 4 presents

an outline of the methodology underpinning the determination of effects, calculation of

costs and benefits as well as development of the multicriteria analysis for comparing

effectiveness, efficiency and coherence of the options. Other sources of data include the

REFIT study of the Written Statement Directive, information provided by the European Labour Law Network, as well as own analysis of data produced by the Eurostat and the

Eurofound.

Where quantification was possible, numbers and values are sometimes presented as

broad ranges. This reflects uncertainties about existing data (notably concerning

prevalence of new and non-standard forms of work, undeclared work), as well as outcomes of sensitivity analysis and ranges of assumptions applied (e.g. on the staff

turnover).

• A. 

  Main impacts on workers and working conditions (social impacts)

  A B C D

Cos Growing number No direct costs. No direct costs. No direct costs ts of workers without

protection of the Social security Very limited Social security and/or right to a written and/or pension possibility for some pension contributions statement (WS) contributions for workers to become for some workers who and increasing some workers who unemployed. were undeclared or

skills and working were undeclared or bogus self-employed. conditions bogus selfinequality employed. Very limited possibility for some Very limited workers to become possibility for some unemployed. workers to become unemployed.

Ben No change. Some 2-3m more No increase in As in option B.

121 A more detailed overview of different impacts for policy packages B, C and D is provided in Annex 9. 122 "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

efit workers have a number of workers s right to a WS having right to a In addition: 124

written statement. 4-6m additional 5-31m additional workers get right to workers having Gradual reduction in reference hours new elements of the proportion of information in workers covered by 5-7m get right to min. practice 123 the Directive. advance notice period

45m additional 3-4m workers get employees having rights to 0.5-1.5m freed from new right to predictability exclusivity clauses information about working time will 52m workers get Also: reduce possibility to request 55m get possibility to involuntary/inadver a new form of request a new form of tent overtime employment. employment – in practice 8-16m per year 3-6 million in IE and additional UK get right to max. 14m fixed-term employees starting duration of workers might use the a job having new probation. (in possibility to request a right to receive a practice 0.5-1.5 m new form of WS on the 1st day could benefit) employment of employment or before The right would 3-6 million in IE and cover all 200m UK get right to max. Fewer people in employees in the EU. duration of probation bogus self In practice, only (in practice 0.5-1.5 m employment and in those whose could benefit). activities not employers do not protected as work. comply with 200m employees in the otherwise existing EU get the right to Better obligations would mandatory training. In understanding and benefit. practice, only those protection of rights; whose employers do increased legal The most vulnerable not comply with clarity; better workers remain otherwise existing access to social outside the scope of obligations would security protection the directive. benefit.

Reduced abuse of Fewer people in bogus workers. self-employment and More employees in activities not

receiving essential protected as work.

123 Number depends on the specific element of information. In addition, 4.6m-9.3m additional employees starting a job could receive information about duration and conditions of probation periods, and 15.3m 30.7m additional employees p.a. leaving a job could receive information about national law applicable in case of termination

124 For the four points below, based only on the population of casual and voucher-based workers.

information about conditions Improvement in workpertaining to any life balance due to periods of work reference hours and abroad. notice.

In the three substantial options (B, C and D) there will be benefits associated with the

common measures: the shortened deadline, the more complete information package as

well as the improved enforcement mechanisms. Those measures alone should result in non-quantifiable benefits such as increased clarity and better protection of working

conditions.

In option B and D the scope of the Directive is also expanded. This has a significant

effect on the number of workers who can enjoy the protection of the Directive. It is

assumed that some 450,000 employees working <8 hours per week and 650,000 employees with contract duration of <1 month would fall under the scope of the

directive. The same would be true for some workers in other forms of non-standard

employment, mainly casual workers and voucher-based workers, 125 bringing the total to

some 2-3 million workers coming newly within scope. It should be noted that the types

of worker who will mostly benefit are less likely to be covered by collective agreements. According to the REFIT study, such workers are more likely to be vulnerable, such as

migrant workers or young people.

In Option C and D, new measures are proposed to improve the predictability of working

schedules, give the possibility to request a new form of employment, limit exclusivity

and incompatibility clauses, and limit the period of probation. The population benefitting

from those rights is larger under Option D, due to the extended scope. When looking specifically at casual workers and voucher-based workers as those who would benefit the

most from most of the new measures, under Option C there would be some 3-4 million

benefitting from the new rights to predictability, 126 while under Option D these rights

would be extended to 4-7 million.

The new rights would have positive impacts on legal clarity and protection of working

conditions. The predictability rights could improve the work-life balance of workers. The

limitation of exclusivity clauses could lead to some 90,000-360,000 on-call workers

125 Platform workers fulfilling the criteria for a worker are assumed to be captured in the category of employees working less than 8 hours per week. Domestic workers are assumed to be already captured by the following categories: (i) casual workers, (iii) voucher-based workers and (iii) employees with a contract duration of less than one month.

126 Right to define with the employer reference days and hours; Right to a minimum advance notice before a new assignment or a new period of work

taking up a second job. 127 Some 14 million fixed-term workers could use the possibility

to request another form of employment – this does not mean that their request will always be granted but if not thanks to the written reply they will have a better

understanding of their professional prospects with the current employer. The right to

cost-free mandatory training could in practice benefit workers whose employers currently

do not comply with existing requirements established in national legislation or collective

agreements. The right to a maximum duration of a probation period to six months is

expected to have the least impact as in all Member States apart from Ireland and the UK 128 such a right already exists, and even in those two Member States legal precedents

limit the duration of probation periods in practice.

• B. 

  Impacts on employers, including competitiveness and productivity (economic

impacts)

A B C D

Costs No One-off costs to One-off costs of Like in option B. change familiarize with new familiarization as in

legislation: (53EUR- Option B. In addition: SMEs, 39EUR- 7-27m annual larger company) 129 Additional annual cost reorganisation costs of providing WS: 0 EUR due to unavailability of One-off cost of WS on-demand/zero-hours for existing newly Minimal annual staff taking second covered staff: 114- reorganisation costs due jobs. 152m EUR to unavailability of ondemand/zero-hours staff 20-258m EUR Additional annual taking second jobs. administrative costs to costs for newly respond to requests for covered new recruits: 20-258m EUR another form of 11-30m EUR administrative costs to employment. (assuming 10-20% respond to requests for turnover) another form of No costs for employers employment (likely less complying with Costs modest as less casual workers requirements to compared to total covered) provide training as labour costs. established in EU No costs for employers legislation, national There might be complying with legislation or relevant

127 This is a very conservative estimate. Some part-time workers might also use the possibility to take up a second job when exclusivity clauses are lifted.

128 In Belgium general probation periods were abolished in 2014.

129 Removing the existing exclusions will also mean that more private households will need to provide written statements for domestic workers. See Annex 9, point 4 for an analysis of the implications of the new obligation on private households. Generally, it is concluded that time and effort required from private households to comply with the requirement will not be more than in case of an SME. In addition, templates provided by national administrations will be of particular importance to facilitate compliance among those employers.

negative impacts on requirements to provide collective agreements flexibility, job training as established in (cost per employee in creation and EU legislation, national non-compliant competitiveness, but legislation or relevant companies only: 270 given that flexibility collective agreements EUR) is only addressed at (cost per employee in the margin, these non-compliant Employers' would be expected to companies only: 270 organisations' concerns be moderate. EUR 130 ) as in B.

Employers' organisations' concerns as in B.

Benefits No Around 16-20% of Increased legal certainty As in option B. change employers who do for 16% of employers

not provide WS will (i.e. those not currently In addition, 42m-167m benefit from providing a written EUR annual additional increased statement for all revenues to secondary productivity, loyalty, employees due to legal employers due to reduction in legal exemptions) prohibition of costs, court cases, exclusivity clauses etc. Minimal annual additional revenues to Secondary employers Some 80-84% who secondary employers having access to 91- already provide WS due to prohibition of 364k workers for 33mare likely to benefit exclusivity clauses. 133m hours per from reduced unfair annum. competition No benefits to the 80% of employers Benefits from: experiencing unfair retention/loyalty, competition. productivity, innovation, improved Limited benefits from worker relations, fewer retention, productivity, complaints and court innovation, improved cases, better resource worker relations. planning & work allocation, decreased cost of recruitment.

Options B, C and D share some common elements. These are expected to contribute to a

greater legal clarity for employers as well as workers. Regarding costs:

130 Estimation of cost of training per employee based on: Cedefop (2015). Job-related adult learning and continuing vocational training in Europe: a statistical picture. Luxembourg: Publications Office. Cedefop research paper; No 48. http://dx.doi.org/ 10.2801/392276. The cost represents the "total monetary expenditure" (TME) composed of direct expenditure (i.e. the sum of fees and payments to external organisations, travel and subsistence payments, labour costs of internal trainers, training centre and teaching materials) and contributions to collective or other funds. Receipts received to support training are deduced from such expenditure to derive the TME.

Shortening the deadline to the 1 st day of the employment relationship appears feasible

and should not impose significant costs. A potential risk of non-compliance related to this shorter deadline could be mitigated by Member States requiring employees to notify

the lack of a written statement to employers before taking up any legal action, and

granting employers 15 days to fulfil their obligation. Nine Member States already

require the written statement to be issued before the relationship starts (BG, FR, HR, IT,

LT, LV, PL, RO, SI), three require this on the first day of the job (AT, BE, LU). 50% of

the employers surveyed in October 2017 already provide written statements on the 1 st

day or before. REFIT study shows no major differences in how burdensome employers

consider the timeframe to be, regardless of whether it precedes the employment (BG,

PL), is set at one month (DE, FR, IT, SE) or at two months (UK).

Based on previous experience under the acquis in which these provisions were already

introduced, new enforcement mechanisms are not expected to generate additional costs to employers who comply with the legislation.

The costs for strengthening the information package are included in the estimation of

costs of familiarisation. They will be further mitigated by national administrations

providing relevant models and electronic templates. It should be noted that under all

three options, any legislative change, even limited to the common elements mentioned above, would result in a need for employers to familiarize themselves with the

legislation.

As part of the strengthened information package posted workers covered by Directive

96/71/EC would receive some additional elements of information (on the country of the

work assignment abroad, the remuneration to which workers are entitled, information on allowances and the address of the official national website). This is not expected to

generate any cost beyond the mentioned costs of familiarisation, especially that the

proposed measure would retain the current derogation for workers who are posted

abroad for a period of one month or less.

The new rights introduced under option C and D can also generate some costs – and benefits. Those will be more significant under option D, as the extended scope of the

Directive would increase the number of workers benefitting from the new rights. Only

some of those costs could be quantified.

Concerning the rights related to predictability, surveyed employers expected some

modest additional administrative costs as well as increased labour costs and costs related

to reduced workforce flexibility. On the balance, however, around half believed they would benefit from improved staff retention, better advance planning and improved

relations with workers and more than two-thirds believed that such measures would be

of overall benefit to the labour market in terms of better working conditions, improved

workforce productivity, less unfair competition, better labour relations, greater labour market transparency and greater competitiveness. Moreover, a significant majority of

surveyed employers state that they already offer those rights in practice. 131

The provision on the possibility to request another form of employment, where

available, and receive a written reply will generate some administrative costs.

Calculations based on an assumption that cost of such a written reply could be

equivalent to a cost of a new written statement and that on average 25% of entitled

casual workers could make such a request lead to an estimate of 20-258 million EUR

total costs. However, also in the case of this right a majority of surveyed employers reported overall benefits for their companies.

As for the prohibition of exclusivity clauses, in the employers' survey nearly two-thirds

of employers who employ casual workers (65%) include exclusivity clauses in some or

all the contracts of those workers. 132 Only a minority reported that they had suffered

increased labour costs (43%) or reduced workforce flexibility (39%) as a result of not using exclusivity clauses – with 53-60% reporting benefits. When unconstrained by such

clauses some casual workers might take up a second job and thus be less available for

on-call work, so the first employers might need to reorganise their work, leading to costs

of some 7-27 million EUR per year.

In case of the right to maximum probation periods, both costs and benefits are rather insignificant since the proposed measure (limiting to six months) would require

legislative change in only two Member States (IE, UK) and the extent of the change in

practice would be limited. 133

Finally, the analysis of relevant legislation focused on the generally applicable EU law

shows the right to training which the employer is required to provide without cost to the worker would not generate any additional costs to employers complying with existing

obligations. Only employers who are non-compliant, or employ people previously not

recognised as workers but now falling under the scope, and which have the practice of

131 Reference hours: 85% for all or some casual workers; minimum advance notice: 75% (47% for all casual workers). Minimum number of hours: 72% ( including 42% for all casual workers)

132 65% represents employers, who employ casual workers (excluding those who answered “not applicable (do not employ casual workers)” and those, who responded “don’t know”). Out of those 65% of employers, 27% stated they included exclusivity clause in some contracts with casual workers, and the remaining 38% said they included exclusivity clauses in all contracts with casual workers.

133 In Cyprus a probation period may be extended from the legal duration of 6 months up to 104 weeks provided there is a written agreement between both contracting parties. In Greece for workers other than medium and high-skilled probation can go beyond 6 month and up to 12. However, as regards unfair dismissals workers on probation have essentially the same rights as others.

charging the worker for the cost of training they are obliged to provide could bear the

average cost of 270 EUR per employee. 134,135

SMEs versus larger companies

It should be noted that administrative costs are expected to be higher in SMEs compared to large companies in the case of all options. Larger companies can use economies of scale to lower the costs.

The average fixed cost of familiarisation is 53 EUR for an SME and 39 EUR for a large firm. Given the high total number of SMEs in Europe, the total costs for all SMEs is estimated at 851 million EUR and for larger companies at around 1 million EUR.

The costs of issuing a written statement or a written reply to request for a new form of work are also higher for SMEs (18-153 EUR per written statement) compared to larger companies (10-45 EUR). In case of those costs, the total costs will depend on the relative proportion of non-standard workers in companies, whether SMEs or larger.

The indirect costs of introducing new rights under option D will also be related to the selected business model significantly more than to the size of companies. There is little data to establish the extent of the use of non-standard work in SMEs as compared to

large companies. The survey conducted in the framework of the supporting study 136

found for example that the percentage of SMEs and large companies reporting that they rely on employees working less than 8 hours per week or on workers on demand is very similar while the the percentage of SMEs reporting to follow a business model where atypical forms of employees working less than eight hours play an important role is slightly higher compared to large companies. A UK study on zero-hours contracts found that these contracts are used in 12% of enterprises with less than 20 employees and 28%

of enterprises with 20-250 employees compared to 47% of larger companies. 137 An EU

study on SMEs established that in 2009, 50% of small enterprises in EU27 employed staff with fixed-term contracts, as compared to 75% for medium-sized and 87% for large

enterprises. 138 The latter two sources could indicate that impact on companies in terms

134 Cedefop (2015). Job-related adult learning and continuing vocational training in Europe: a statistical picture. Luxembourg: Publications Office. Cedefop research paper; No 48. http://dx.doi.org/ 10.2801/392276

135 To note that an alternative source estimated the cost of mandatory health and safety information and training for workers to be less than 50 EUR per employee in large companies, 75 EUR in medium and around 150 EUR in small companies (COWI (2015): Evaluation of the practical implementation of the EU OSH Directives. Main report)

136 Note: the survey targeted employers, who were more likely to rely on atypical workers or flexible working arrangements, to achieve more meaningful answers. Therefore, the survey answers are not representative of a general employer population but specifically relate to employers employing casual workers.

137 Office for National Statistics (2014), Analysis of Employee Contracts that do not Guarantee a Minimum Number of Hours

138 Jan de Kok et al: Do SMEs create more and better jobs? Zoetermeer, November 2011

of business model adjustments could actually be considerably smaller in SMEs.

Annex 3 (point 4) shows a more detailed comparison of costs between the two categories of firms.

Overall, compared to other options option D generates the most costs to employers.

Administrative costs are however modest in comparison with the overall personnel costs

borne by companies. 139 Concerning indirect costs of the new rights, these could be more

significant in companies relying to a large extent on non-standard work. While employer

organisations voiced some concerns about possible negative impacts on labour flexibility, appropriate formulation of the proposed new rights could mitigate the risk of this and

other unintended effects (see section 8.1 for more details on this point). Moreover, such

concerns have not been confirmed in the employer survey which indicated that in

practice many employers already apply some of the considered measures (e.g. advance

notice or reference hours) and more than two thirds saw benefits of introducing them.

At the same time, option D is expected to generate most benefits as regards productivity,

innovation, staff retention and worker-employer relations.

• C. 

  Broader impacts (labour markets, public finances, application and enforcement,

fundamental rights)

A B C D Soci Existing Negligible impact on No increase in no. of Reduction in al gaps in employment workers receiving right undeclared work

protection to information. (value of 40-120m would Very slight increase in Many non-standard pa.) + improved continue. risk of workers being workers not receiving detection of Over time, replaced by informal any benefit. undeclared work as MS agreements or selflegislation employment contracts Modest number of on 91-364k ondiverges, demand/zero-hour demand/zero-hour there Reduction in contract workers contract workers would be undeclared work enabled to get a second enabled to get a adverse (value of 40-120m job and thus modest second job with effects on p.a.) + improved number of extra hours another employer. labour detection of undeclared worked per annum and market work slight increase in their As a result, 355- transparen gross annual earnings 1,424m EUR cy and Reduction of bogus increase in gross

139 According to 2014 Eurostat data personnel costs amounted to some 29,000 EUR per employee per year in an SME and 48,000 in a larger company (source: SME Performance Review 2017 by DIW-ECON). Personnel costs are made up of wages, salaries and employers' social security costs. They include taxes and employees' social security contributions retained by the employer, as well as the employer's compulsory and voluntary social contributions.

mobility of self-employment and Minimal adjustments by annual earnings for labour activities not employers to their those workers. across the recognised as work. workforces EU. Reduction of bogus Minimal reduction of self-employment and undeclared work activities not recognised as work.

Some employers (likely to be <50%) may replace casual contracts with standard forms of employment. A smaller proportion may simply recruit fewer casual workers. A yet smaller proportion might replace casual work contracts with informal agreements or self-employment arrangements.

Econ Depending No loss of flexibility of Modest positive effect Some limitations on omic on MS casual workforce on tax revenue. flexibility of casual

choices, workforce lost Additional tax Modest reduction in opportuniti revenues from a 1-3% social security spending, 46-185m EUR es to shift of undeclared and increase in annual tax revenues benefit work into the formal legitimate social (on-demand/zerofrom economy: 8-25m EUR security claims hour workers taking increased p.a. a second job) tax revenues, Reduction in social Additional tax reduced security payments, due revenues from a 1- social to undeclared workers 3% shift of security entering the formal undeclared work into payments. economy: 4m-24m the formal economy: EUR p.a. 140 8-25m EUR p.a.

Reduction in social security payments, due to undeclared workers entering the formal economy: 4m-24m EUR p.a. 141

140 Assuming that reductions equal about 10-20% of the value of undeclared work brought into the formal economy.

141 As above.

Additional modest reduction in social security payments resulting from 33m 133m extra hours worked per annum by those workers.

More harmonised information requirements across the EU

Lega No Depending on specific Depending on specific Depending on the l change. measure, change in 5- measure, change in 4-23 specific measure.

24 MS MS Substantial

Increased costs of Slight increase in contribution to enforcement due to number of employees fundamental rights higher number of using dispute resolution for on-demand/zeroworkers covered hour contract No significant workers currently Positive impact on contribution to prevented from fundamental rights fundamental rights or to taking a second job (gender equality, right gender equality as by exclusivity to engage in work, workers remaining clauses right to effective outside the scope of the remedy, solidarity and Directive are more access to justice) likely to be female

Also in this case in the three substantial options (B, C and D) there will be social benefits

associated with the common measures, mainly relating to the reduction of undeclared

work, and some increased costs of enforcement.

In options C and D new rights are included, but only in D this is coupled with an expanded scope. The impact on the labour market of D is significantly higher. While for

C the increase of on-demand/zero-hour contract workers able to get a second job is

modest, in D 91,000-364,000 on-demand/zero-hour contract workers would become able

to get a second job with another employer with 355-1,424 million EUR increase in gross

annual earnings. Based on the employers' survey it can be expected that while in C minimal adjustments of employers to the changed composition of the workforce are

expected, in D some employers (likely to be <50%) may replace casual contracts with

standard forms of employment. A smaller proportion may simply recruit fewer casual

workers. A yet smaller proportion might replace casual work contracts with informal

agreements or self-employment arrangements.

This has effects of economic nature: while in C the effect on tax revenue and social

security payments is modest, D combines the effects of extended scope (8-25 million EUR p.a. in tax revenues and 4-24 million EUR p.a in social security payments reduction

due to a shift of undeclared work into formal economy equivalent to some 40-120 million

EUR p.a.) with additional 46-185 million EUR annual tax revenues and a reduction in

social security payments resulting from 33-133 million extra hours worked per annum

related to the application of the new rights to an extended group of workers. The baseline

scenario A offers lost opportunities on this aspect.

In all substantial options (B, C, D) there is an enhanced enforcement system. This will

create some costs for Member States due to expected increase of workers making use of

dispute-resolution systems. Whether Member States create new institutions to comply

with the new requirements will be left to their discretion. The measures will at the same time create societal benefits due to enhanced application of rules not only on information

on working conditions, but also on the content of the working conditions themselves

thanks to enhanced awareness. Compliant employers should not incur significant

additional costs.

The legal impact would take place in all scenarios except the baseline, with changes in 4-

24 Member States depending on the specific measures.

Fundamental rights would risk being not impacted/only slightly positively impacted in

the baseline scenario A and in scenario C including new rights but not an enlarged scope.

Fundamental rights would be positively impacted by an extended scope and in larger

measure when this is coupled by the new rights in scenario D (with a substantial

contribution to fundamental rights for on-demand/zero-hour contract workers).

• 7. 

  H OW DO THE P OLICY OPTIONS COMPARE ?

As shown in the previous chapter the different policy packages produce a range of

qualitative and quantitative (including monetary and non- monetary) effects, with varying

degrees of certainty. Moreover, the effects vary for the different parties involved – workers, employers, public authorities.

As costs and benefits cannot be directly compared it is proposed to compare the options

based on a multi-criteria analysis. This form of analysis allows combining a range of

positive and negative impacts (evidenced by a mix of qualitative, quantitative and

monetary data) into a single framework. It brings together the main Better Regulation criteria of effectiveness, efficiency and coherence.

The table below presents results of this analysis, based on elements discussed in more

detail for each scenario in the sections above. A seven-stage qualitative grading system

(i.e., +++, ++, +, 0, -, --, ---) is proposed, based on the legend provided in Annex 4.

Criteria for comparing A B C D options

Effectiveness

• 1. 

  Labour market impact 0 + + ++

• 2. 

  Effect on working 0 ++ ++ +++ conditions

• 3. 

  Effect on public 0 + + ++ finances

Efficiency

• 1. 

  Competitiveness & 0 ++ + + productivity

• 2. 

  Ease of application & 0 +++ ++ +++ enforcement

Coherence

• 1. 

  Fundamental rights 0 ++ ++ +++

• 2. 

  Social Pillar objectives 0 + + +++

• 3. 

  EU labour law acquis 0 + + +++

Regarding effectiveness, options B and C seem to be closely matched. This is because

each partially addresses the challenges related to labour market developments: option B

extends and clarifies the scope of the Directive, and option C sets new rights for workers

to improve predictability of work and opportunities to seek another form of employment.

Option D, combining those two elements, would most significantly increase the

effectiveness of EU action. By extending the scope of the Directive it would ensure that

more workers, especially those in most precarious working relationships, could benefit

from the new rights. This would have a positive spill over effect on public finances, as e.g. workers freed from exclusivity clauses could seek additional employment, and there

would be positive effects on their disposable incomes. While difficult to quantify,

indirect positive impacts could include e.g. improved health and socio political

engagement of workers.

Concerning efficiency, the impacts on competitiveness and productivity are less positive

in case of option C and D. This is the effect of the new rights which will generate some extra administrative costs, though modest, and may have some impact on flexibility of

employment. These costs should however in the longer term be outweighed by benefits at

company level (higher productivity, improved retention, motivation of staff, upskilling etc.) as well as positive effects for the whole internal market (more sustainable

competition and improved level playing field for companies).

The ease of application and enforcement would be more improved with options B and D – this is a result of the extension and clarification of scope of the Directive that would

facilitate detection of undeclared work.

Finally, each policy option has been tested for coherence with EU policy objectives:

Coherence with the EU social acquis legal framework 142

All policy options apart from Baseline include measures 2, 3, 5 that improve coherence with the social acquis and other policy initiatives. Packages B, C and D ensure better

coherence with: the posting of workers provisions; the Temporary Agency Work

Directive; EU action on combating undeclared, fraudulent contracting and bogus selfemployment

and the equal treatment acquis covering discrimination in the workplace.

Policy package B and D would also increase the coherence of the personal scope of EU labour law. This enhances coherence with the Working Time Directive and the Part

Time, Fixed-Term and Temporary Agency Work Directive as interpreted by the CJEU,

as allowing for the current exclusions to remain would give rise to incoherence.

The provision of additional material rights present in options C and D supports the goals

of the Working Time Directive, Fixed-Term Directive, Part-Time Directive and Temporary Agency Directive, the Parental Leave Directive and the Proposal for a Directive on Work-Life Balance. 143

Fundamental rights impact assessment

The baseline scenario would represent no progress towards their achievement compared

with the status quo. Scenario D emerges as the most coherent with the Charter.

Coherence with the European Pillar of Social Rights 144

The baseline scenario would represent no progress towards their achievement compared

with the status quo. Scenario D emerges as the most coherent with the European Pillar of

Social Rights.

• 8. 

  P REFERRED OPTION

The preferred policy option is policy package D that allows to better achieve the policy

goal. It includes policy measures 1 (on personal scope), 2 (on strengthened information),

142 Annex 7 presents an overview of EU social acquis.

143 More detailed information is provided in Annex 10.

144 The coherence of measures with the Pillar principles is presented in a table in Annex 10.

3 (on more timely information), 4 (new rights) and 5 (enforcement). This policy package

would address all the objectives of the initiative, as illustrated in the intervention logic presented in the Figure below.

8.1 Overall impacts

• a) 

  On workers

Workers are expected to see a substantial improvement of their working and living

conditions.

2-3 million additional non-standard workers will benefit from the protection of a written

statement.

In addition, 5-31 million workers will in practice receive additional information (on

probation, working time, social security...). 8-16 million every year will be able to start a

new job with clear information on rights and obligations from the very beginning instead

of up to 2 months later.

Between 4 and 7 million workers will get the possibility to look for additional work due

to the enhanced predictability (reference hours, minimum advance notice). Enhanced

predictability should also have a positive impact on their work-life balance and health.

Some 14 million workers are expected to use the possibility to request another form of

work and thus get support in their dialogue with employer to move to a more secure and predictable form of work, some 3-6 million workers will be protected against excessive

probation periods. Thanks to freedom from exclusivity clause some 0.5-1.5 million

workers could seek additional employment. Only considering on-demand employment,

this could enable 91,000-364,000 workers to increase the intensity of their employment,

work up to an additional 33-133 million hours per year and see an increase of earnings of

355-1,424 million EUR per year. Workers' right to receive cost-free training which employers are obliged to provide through EU legislation, national legislation and relevant

collective agreements would be reinforced and brought within the scope of the EU justice

system. Workers whose rights are not respected would have easier access to redress.

Workers who fall outside the scope of national definitions of worker due to casual work, short or intermittent hours or zero-hour contracts, but that 'perform services for a certain

period of time for and under the direction of another natural or legal person or persons in

return for remuneration' will be entitled to basic rights as receiving information on

essential aspects of their employment relationship, and material rights to predictability

and the possibility to seek redress if they are not respected.

Persons in bogus self-employment (i.e. with self-employment contracts but a de facto employment relationship as defined in the directive) will receive additional information,

rights, access to enforcement, either directly via the transposition or via court-based

litigation.

The risk of regression in worker protection has been duly considered (e.g. in case of the

proposed right to a maximum duration of probation period, the 6-month limit is longer than what is in place in a number of Member States). To avoid such a risk, the proposal

would include a clause preventing the use of the Directive as grounds for reducing the

level of protection already afforded to workers within Member States.

• b) 

  On business (including competitiveness)

Costs

The proposed policy package would result in some administrative costs to employers.

The costs per company amount to 18-153 EUR in an SME and 10-45 EUR in a large

company for issuing a written statement or providing a reply to the request for another

form of employment. The familiarisation costs would be, respectively, 53 and 39 EUR.

These costs are very modest in comparison with the overall personnel costs borne by companies, which according to 2014 Eurostat data amounted to some 29,000 EUR per

employee per year in an SME and 48,000 in a larger company. 145

Employers anticipate also incurring increased indirect compliance costs (legal advice, revised scheduling systems, HR management time, staff training, and information of

staff). These costs could not be quantified but the interviewed employers considered they

would be to a modest rather than great extent.

Apart from the familiarisation, costs will accrue mainly to those employers who rely to a large extent on non-standard forms of work, and so far have not introduced in practice

any of the measures aimed at increasing predictability. Costs for training will affect

mainly those companies which at the moment do not comply with existing legal

obligations to provide training required by EU legislation, national legislation or relevant

collective agreements and rely on the practice of deducting training costs from workers’

remuneration or charging them to workers.

In the section above, a possibility of a positive impact on individual wages of workers

was signalled. This would be a result of workers being able to work more hours or seek

work with another employer. No significant aggregate impact on minimum or hourly

wage levels is however expected. These are influenced by other labour market

developments, including the labour supply and demand, national legislation and collective bargaining. For individual employers, a direct effect on wages can only be

expected in situations where, employees currently working undeclared would come

within scope of the Directive and would become eligible for the minimum wage, where

such exists.

Benefits

Employers already providing enhanced information and using more secure contracts

would see additional benefits thanks to more sustainable competition. 16% of employers

would benefit from increased legal certainty and cross-border hiring would be supported

by more uniform minimum provisions.

Thanks to prohibition of exclusivity clauses, workers will be more available for secondary employers, which might generate some 42-167 million EUR annual additional

revenues. The provision of templates and of information at national level will facilitate

the preparation of written statements and awareness of existing legislation both by

professional employers and by more marginal employers.

145 SME Performance Review 2017 by DIW-ECON ((Personnel costs are made up of wages, salaries and employers' social security costs. They include taxes and employees' social security contributions retained by the employer, as well as the employer's compulsory and voluntary social contributions.)

Other benefits include higher staff retention and loyalty, improved worker relations,

fewer complaints from workers, fewer court cases relating to working conditions, better resource planning and work allocation. Overall, the proposed measures could have a

positive impact on company-level productivity, in line with the ILO and ESDE finding

reported in section 2.3.2, and as indicated by employers surveyed in the context of the

study.

Competitiveness

No significant impacts on competitiveness vis-à-vis third countries are expected.

The administrative costs related to the preferred option are, as signalled above, minimal

in comparison with the overall personnel costs.

Indirect costs of limitations on flexibility would affect mainly those employers who

depend to a relatively great extent on on-demand/casual work. The use of non-standard

forms of employment is usually concentrated in certain sectors, such as hotels, construction and agriculture. 146 Some of these sectors have been traditionally

characterised by non-standard work arrangements (e.g. construction and agriculture),

while non-standard forms of employment have spread in industries previously not

characterised by these arrangements, e.g. the hotel industry. 147 In the above mentioned

sectors there is little direct competition with third countries based on labour costs and

little scope for relocation to third countries. Moreover, if companies from third countries

employ workers on the territory of the EU, those workers would also be covered by the

proposed provisions.

Possibility to exempt microenterprises

As noted in the SME test (Annex 3, point 4) direct administrative costs may be relatively higher for the smaller companies but indirect costs will depend on the extent a company

– irrespective of the size – depends on non-standard work and there is no conclusive

evidence to point that SMEs would have a higher proportion of such workers. Some

studies point in fact to the contrary. Given that 93% of EU companies are

microenterprises, 148 an exemption of those employers would render the proposal

ineffective. That being said, some mitigating measures are proposed in order to further

decrease the administrative costs, especially in SMEs (see section 8.3 below), while

taking into account that such measures should not unintentionally make SMEs less

attractive employers or discourage businesses from scaling up. 149

146 ILO (2015), Non-standard forms of employment.

147 Weil, D. 2014. The fissured workplace: Why work became so bad for so many and what can be done to improve it (Cambridge, Harvard University Press).

148 SBS 2014

149 See e.g. Eurochambers (2017): SME Test Benchmark

Possibility to exempt private households from certain provisions

The proposed Directive would allow Member States to provide that where work is

performed for a household, Member States may consider that natural persons belonging to this household are not subject to employers’ obligations in relation to the possibility to

request a new form of work, the right to receive mandatory training cost-free and would

not be subject to favourable presumptions in the event that the written statement was not

provided or lacked essential information. Where domestic workers fulfil the criteria for worker status, they should receive information about their employment relationship and

basic rights relating to predictability, but it is not considered appropriate to include

private households within scope of the elements set out above, given the fact that they do

not function as organisations and will not generally have the capacity to fulfil such

obligations.

Unintended effects and mitigating measures

Employer organisations raised concerns about impacts the proposal could have on

flexibility in the labour market and associated potential for job creation. These concerns

were duly taken into account in the choice of measures that were eventually taken

forward in the impact analysis (see discussion on discarded options (section 5.2)).

Proposed measures were also analysed from the point of view of unintended effects (such as in the examples below) and formulated in a way to mitigate those risks.

 Limited flexibility

Flexibility is a crucial characteristic of today's labour market, where companies need to

be agile, adapt quickly to new demands and to frequent fluctuations in demand. In some

sectors services need to be delivered at short notice and/or outside usual business hours. For many workers, for example those reconciling work with caring obligations or studies,

flexibility is also a key requirement.

The proposed measures (especially advance notice and reference periods for workers

with variable schedules, as well as a limitation on exclusivity clauses) limit somewhat

flexibility which exists in some Member States in order to improve predictability for

workers and to protect their right to seek work. The measures have however been designed in order to preserve a significant scope for flexibility both for the worker and

the employer, and not to hinder development of non-standard forms of work.

For example, the proposed provision on advance notice does not strictly specify the

length of such a notice (it should be "reasonable"), taking into account that in different

sectors different notice periods might be realistically possible. Neither are there any restrictions on the reference hours other than what already exists in legislation (e.g.

Working Time Directive). For both rights – employees will still be able to accept work

outside the reference hours and with shorter notice so it can be expected that if the relationship between employer and worker is a positive and constructive one the

employee will be ready to adapt to justified business needs.

 Fewer job opportunities, especially for vulnerable workers

Regarding the risk of disincentives to recruit, the question was considered whether some

employers might choose either to recruit fewer workers newly-covered by the Directive

or to replace such workers with others that remain outside the scope of the Directive (e.g.

self-employed).

The employers' survey showed that more than 80% of employers already provide written statements for employees working less than 8 hours per week, employees with contracts

of less than one month’s duration, on-demand workers and intermittent workers. It also

indicated that in case the new provisions are introduced employers were more likely to

convert casual work contracts into standard forms of employment than to replace casual

contracts with informal agreements or self-employment contracts.

When considering the right to training, however, a possibility to require employers to provide free of charge training needed to perform required tasks was discarded on the

basis of costs but also the possible impact on employers' attitude to recruiting young

workers with little experience or workers requiring additional support (such as some

migrant workers).

 Recourse to undeclared work, in particular in case of domestic work

Excessively heavy administrative procedures might lead some employers to decide not to

comply with the obligations and not to declare their workers. This could theoretically be

the case for example for private households employing domestic workers.

Analysis has shown that already now in 15 Member States domestic workers fall under

the scope of the Directive and have a right to a written statement. In some countries, such as Austria and Sweden, compliance is generally high, in others the level of compliance

can be particularly low and the main reason is the wish to avoid the fiscal and

administrative burden associated with formal employment and to retain the flexibility to

terminate the employment relationship as and when the employer wishes.

Generally, it appears that the level of compliance with regard to domestic workers depends on the national context: ease of application as well as the level of other

obligations on employers (fiscal, social security etc.). In the proposal the question of ease

of application is addressed through the requirement for Member States to provide clear

information to employers and develop relevant written statement templates, and the

possibility to exempt private households from certain obligations under the Directive.

 Risk of disproportionate costs of unintended non-compliance

The proposed measures include strengthened enforcement measures, coupled with a significant shortening of the deadline for provision of a written statement to a worker.

There is a risk that an employer who unintentionally misses the deadline could face

rather serious consequences, including a favourable presumption of a permanent

employment contract. Such a result would be disproportionate to the employer's failure to

comply.

In order to avoid such an unintended effect, the proposed provisions establish that the

employer is notified about the missing document or elements of information and given

15 days to complete them before any administrative action can be launched or any

presumption can be established.

• c) 

  On Member States

The specific impacts per Member State would depend on a number of factors. Firstly, the extent of the necessary legislative adjustments would differ – for some Member States

the changes would be limited, others would need to introduce a substantial number of

new elements in their transpositions. 150 Secondly, the extent to which non-standard forms of work are present in the Member States varies. 151 Thirdly, the broader current and

future socioeconomic context would have an influence on the potential impact of the changes: in Member States experiencing labour supply shortages, the better availability

of non-standard workers to other employers might be especially important, in those

where skills mismatch is pronounced, the training measure might have a particular

impact, in others, where precarious working situations are widespread, the social effects

of higher predictability in employment might play the greatest role.

The following examples illustrate the diversity of national situations, which in practice

might lead to uneven playing field for companies across the EU:

 Wide use of collective agreements in some Member States (e.g. Nordic)

means workers’ rights in practice are often more extensive than those

provided by the Directive and other EU legislation.

 On-call/Zero-hour contracts are most prevalent in northern/western Europe

(DK, IE, NL, SE, UK) as well as IT and MT. Such employment contracts are

generally allowed in law but typically do not give basic rights to workers: provision of reference hours, minimum advance notice period, and freedom

from exclusivity clauses. Some such workers are not yet covered by the

Directive and would therefore be covered by an extension of the scope.

150 See Annex 8, point 6 for an overview of changes required per Member State.

151 See Tables 2-7 in Annex 6 for estimated numbers of some relevant categories of non-standard workers per Member State

 In some other Member States, there are fewer legally-employed on-call

workers. Instead, there are certain contractual forms that are not employment

relationships or are 'intermediate' or grey areas or potentially bogus selfemployment,

e.g. civil law contracts in Poland, mini-jobs in Germany, autoentrepreneurs in France, 'if-and-when' contracts in Ireland, 'day workers' in

Romania. Here, the issue is definitions of employment – which would be

addressed in part by the clarification of worker status in the proposed

Directive.

 Similarly, in the UK and IE, certain contractual forms in the gig economy are

increasingly being challenged in the courts. For example, 'if-and-when'

contract workers in Ireland have gained certain rights to information and consultation, as if they were employees. Some platform workers in the UK

have won cases regarding their employment status.

 In some other Member States (mostly southern/south-eastern), employees

may enjoy coverage under the Directive and casual workers have most/all the

basic rights in question. However, there is a hidden problem of undeclared

work and bogus self-employment, e.g. Italy, Romania. The effects of the

revised Directive will depend on stronger enforcement and sanction

mechanisms.

While taking the above into account, the following paragraphs summarise the general

impacts expected across all Member States.

A reduction in undeclared work and increased ease of detection of undeclared and

fraudulent work can be expected, in particular in sectors which see both casual and

undeclared work, resulting potentially in severe abuse of workers’ rights and human

rights. The value of undeclared work brought into formal economy is estimated at 40-120

million EUR per year. Better and more complete information on working time and additional rights will result in improved work-life balance and wellbeing. Training rights

will enhance the upskilling and adaptability of the workforce.

Productivity of national economies could increase as a result of the proposed measures.

Improved job predictability can improve work-life balance, which in turn can positively

impact growth as it allows productive workers to be kept in their jobs. 152 Enhanced

training can contribute to diminishing skills mismatch, which is another drag on the growth potential of economies. OECD estimates that a higher level of skills matching

could result in considerable gains in aggregate productivity (e.g. up to 10% in Italy).

Better skills match is especially important to realise the full dividend of innovative

technologies. 153

152 OECD, The productivity-inclusivity nexus, Paris 2016, p. 78

153 Ibid., p.65

More uniform scope of application of the Directive and clearer information on working

conditions and job requirements will support mobility both within the national labour markets and across the EU. Enhanced access to redress could improve the consistency in

the application of the legal framework. Social cohesion would be enhanced by the

reduction in the degree of precariousness of vulnerable workers, which would also

support gender equality in the labour market due to the overrepresentation of women in

more precarious work and involuntary part-time.

Some modest one-off transposition and ongoing implementation costs can be expected as

legal frameworks of Member States will need to be adapted.

Additional 8-25 million EUR annually in tax revenues and 4-24 million EUR annually in

social security payments reduction are expected due to a shift of undeclared work into

formal economy. There could also be an increase of some 46-185 million EUR per year

in tax revenues and a reduction in social security payments because on-demand workers will be able to seek other employment due to the provision on exclusivity clauses.

Receiving information about social security contributions and entitlements can strengthen

the awareness of the worker’s own status and contribute to an early activation of the

population to invest in social protection, so avoiding moral hazard, and potentially

decreasing public expenditure in a life-long perspective.

Significant contribution to fundamental rights can be expected, notably concerning the

freedom to choose an occupation and right to engage in work, equality between men and

women, right to effective remedy and access to justice.

8.2 REFIT (simplification and improved efficiency)

The preferred option - policy package D - aims at achieving the policy objective with the

most effective and efficient tools, ensuring that intended benefits are achieved without

unnecessary burdens, particularly for SMEs.

Follow-up to the REFIT evaluation

The preferred option includes proposals resulting from the REFIT evaluation for improving effectiveness and efficiency, and achieving in the mid-term simplification.

The preferred option would first of all improve the effectiveness of the existing Directive

by addressing the main points raised in the REFIT evaluation. It would broaden the scope

of application, shorten the deadline for delivering written statements, update the content

of the written statements in line with labour market developments, and improve the enforcement mechanisms.

Concerning efficiency, the REFIT evaluation concluded that, in general, the compliance

costs are appropriate. The assessment of administrative burden caused by the existing Directive did not reveal any significant differences related to the size of the undertaking.

The share of SMEs stating that they would still comply with the obligations even in the absence of minimum requirements was in fact slightly higher than the average and for

micro enterprises it was only slightly lower than the average. No particular aspects of the

obligations stood out as particularly onerous or complicated to comply with.

Additional costs related to new obligations

The preferred option creates new obligations for business. As shown in the impact analysis the administrative costs related to those new obligations are rather limited: a cost

of issuing a new or revised written statement is expected to be 18-153 EUR for SMEs

and 10-45 EUR for larger companies. Companies would also have costs related to

familiarisation with the new Directive: an average of 53 EUR for an SME and 39 EUR

for a larger company. In addition, in case of the provision on the possibility to request a

new form of work, the employer would incur some cost related to the preparation of a written reply. It is assumed that it should not on average exceed the cost of preparing a

new written statement, and could in many cases be substantially lower given the more

limited scope of the letter.

Type of cost One-off Recurrent (per year)

Familiarisation 852.5 m EUR 154 none

Providing written statements to 114-152 m EUR 155 11-30 m EUR 156 newly covered employees

Replying to the requests for None 20-258 m 157 another form of employment

Total costs (maximum) 977.5 m EUR 288 m EUR

As shown, a majority of the costs are one-off (in the first year) and relate to the need for

employers to familiarise themselves with the legislation. Such costs would be

encountered irrespective of the content of the proposal (i.e. would not be higher for the preferred option in comparison to other options).

The following measures could mitigate the costs: 158

154 This total amount represents the average cost per company (53 EUR for an SME and 39 EUR for a larger company) multiplied by the number of all companies in the EU. It is likely an overestimation as mostly companies needing to issue new written statements will need to invest in familiarising with the new legislation.

155 Cost per written statement: 18-153 EUR for SMEs and 10-45 EUR for larger companies.

156 As above

157 Cost the same as for issuing a new written statement. Assuming 25% of employees submit such a request every year. The range reflects the lower and upper bound of a cost for a single written statement. 158 The assumption of 30-40% savings per written statement in case of availability of electronic templates is derived on the basis of assumptions in the "Proposal for a Directive on e-invoicing in public procurement" (COM(2013)449 i), where according to available data e-invoicing could lead to 60-80%

REFIT Cost Savings – Preferred Option(s)

Description Amount – one-off Amount – recurrent

• 1. 

  Member States are required 30-40% savings per written 30-40% savings per written to develop electronic templates statement. statement. and models of written One-off: 46-60 m EUR Recurrent: 9-12 m EUR

statements. 159

• 2. 

  In micro, small, or medium - Some savings (at least 10%) enterprises, Member States and facilitation of may provide for the deadline compliance with the to reply to requests for another administrative form of employment to be requirements. extended from one month to no more than three months Recurrent: 2-26 m EUR and/or allow for an oral reply to a subsequent similar request submitted by the same worker if the justification for the reply as regards the situation of the worker remains unchanged.

• 3. 

  Member States are required 10-20% savings on the - to make information related to familiarisation costs. the content of the new (85-170 m EUR) directive easily available to workers and employers.

Total savings 230 m EUR 38 m EUR (at least)

It is expected that the savings could materialise relatively quickly. Information by

Member States, expected to save some of the familiarisation costs could be provided on

adoption of national transposition, and templates developed in the course of the first year

of application of the national transposition. Exemptions for SMEs could be applied immediately upon adoption of the transposition.

Simplification

The administrative costs, mainly short- and mid-term, could be further set off by longerterm

benefits for employers.

savings in the administrative costs. As e-invoicing is a much more comprehensive system than an electronic template, the savings for electronic templates were assumed to equal half of those for the einvoicing.

159 There will no obligation for companies to use such templates. However, it can be assumed that companies will want to use them to simplify processes and have better assurance of compliance.

The increased coherence of the scope allows streamlining certain elements of information

provision beyond contractual statuses, both within the company and for future recruitment. This allows as well a more coherent legal framework across the EU,

providing legal clarity that is expected to ease cross-border business activity and

mobility.

Increasing the consistency of written statements across the EU allows simplification of

worker mobility and cross-border business action. Also in this case, the easy to access and available information on applicable national law is expected to ease cross-border

business activity.

8.3 Subsidiarity and proportionality

The preferred option aims at setting a framework for better clarity, predictability,

transparency, simplification and convergence on EU labour markets for workers, employers and Member States, while preserving flexibility and labour market innovation

and aiming to avoid the imposition of excessive burdens on employers.

Subsidiarity

Given the EU-wide dimension and the scope of the problem to solve, the measures

included in the preferred policy option need to be adopted at EU level in order to achieve the identified objectives. In particular, action solely by Member States would not counter

harmful divergence - and even potentially competition on the basis of social standards -

in their individual regulatory responses to increasingly new and non-standard forms of

work and their related enforcement provisions.

Indeed, the preferred option offers the highest added value based on a minimal degree of

harmonisation between Member State systems which respects their own competences to set higher standards and for social partners to vary the mix of material rights and

obligations by agreement.

The preferred option would, in line with the legal basis Article 153 TFEU, support and

complement the activities of the Member States through minimum requirements for gradual implementation.

Proportionality

By striking a balance between opinions of the two sides of industry expressed in the

formal social partner consultation responses and building on practices already developed

in Member States, the preferred option represents a realistic and proportionate set of

measures appropriate to contributing to a realisation of the ambitions of the Social Pillar.

The preferred option would require realistic means to implement that would not generate

or impose disproportionate new obligations. Measures for mitigating burden and

supporting compliance are therefore included in the proposals. The costs that the preferred option would entail are reasonable and justified in light of the accrued and

longer-term benefits in terms of more secure employment, simplified procedures for both workers and employers and overall improved living and working conditions matching

thereby the wider EU social ambitions:

• - 

  no direct costs are expected for workers;

• - 

  for employers (including SMEs) the fixed-costs of familiarisation (an average of 53

EUR for an SME and 39 EUR for a larger company) and variable costs related to the number of employees that would be covered by an extension of the Directive and the

number of employees using the possibility to request a new form of employment;

• - 

  for Member States: increased costs of enforcement due to higher number of workers

covered;

• - 

  at EU level, monitoring and evaluation costs of the initiative, as such minimal impact

on the budget of the EU.

On the whole, the option does not go beyond what is necessary to achieve the objective

identified for the EU intervention.

• 9. 

  H OW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED ?

9.1. Monitoring

The Commission will monitor the implementation of the Directive in the Member States

in the context of labour market developments.

For the sake of monitoring the objectives of the initiative are translated into operational

objectives:

Regarding specific objective (1):

 Increase the number of workers receiving written information on working

conditions

 Improve the quality of information on working conditions received in writing  Improve the timeliness of working conditions received in writing

Regarding specific objective (2):

 Increase the predictability of work schedules  Increase transitions from non-standard to standard employment  Improve the match between willingness to work and the work available (decrease

underemployment)

 Decrease abuse of probation periods  Facilitate the take up of mandatory training for all workers

Regarding specific objective (3):

 Facilitate identifying and resolving incompliance  Increase incentives for compliance

Regarding specific objective (4):

 Company level simplification: Increase coherence and facilitate creation of

written statements, including for micro-enterprises and SMEs

 Labour market simplification: Increase the consistency of written statement

requirements across the EU labour markets

 Facilitate workers' mobility

The following monitoring framework would inform on progress towards achieving the

objectives of the Directive and will be subject to further adjustment according to the final

legal and implementation requirements and timeline. Considering the diversity of current

situations and regulations prevailing on the national labour markets indicators and relevant benchmarks success will be elaborated and, where appropriate, disaggregated by

Member State, by type of company, by type of contract or work-status, by gender.

To avoid putting additional administrative burden on Member States or employers due to

the collection of data or information for the purpose of monitoring, the proposed

indicators rely as far as possible on existing data sources.

Table 3. Indicators on progress towards objectives

Specific Operational Indicators Source of data objectives objectives

Improve workers' Increase the number Number of workers Transposition checks, access to of workers receiving entitled to written Implementation report information written information statements; concerning their on working Familiarisation working conditions costs for business; conditions

Improve the quality Number of workers Transposition checks,

of information on getting more Implementation report

working conditions comprehensive

received in writing information in the

written statements

Improve the Number of written Transposition checks,

timeliness of working statements issued Implementation report

conditions received in on the 1 st day of

writing employment

Improve working Increase the Number of workers Transposition checks, conditions for all predictability of work getting reference Implementation report ; workers, notably schedules days/hours; Eurofound European those in new and Number of workers Working Conditions non-standard receiving advance Survey (Q: How often employment, notice before an have you been requested while preserving assignment; to come into work at scope for % of employers short notice? Q:How are adaptability and setting a policy for your working time for labour market the notice period arrangements set; Q: innovation required for staff How well do your

asked to work working hours fit in your family and social commitments; )

Increase transitions % transition from Eurostat transition from non-standard to temporary to between temporary and standard employment permanent work; permanent work

% of workers in (tepsr_wc230); involuntary Eurostat involuntary temporary temporary employment employment (tesem190); if available nationally transitions between very precarious forms of employment to traditional non-standard employment (e.g. fixed term).

Improve the match % of the working ECB: between willingness age population Eurostat underemployed to work and the work underemployed; part-time workers available (decrease of % of part-time (fsi_sup_a); Eurofound underemployment) workers EWCS if you had a underemployed; choice, how many hours Number of workers per week would you freed from prefer to work (answer exclusivity clauses; 'more than currently' Number of workers ranging 5-20% in EU); available for extra involuntary part-time work following ban rate; on the exclusivity clauses;

Decrease abuse of Number of workers Transposition checks, probation periods getting the right to a Implementation report max. duration of a probation period; Increase access to Number of workers Relevant EWCS training recognised as reporting that they statistics being necessary in have received EU legislation, training recognised national legislation as necessary in and in relevant national legislation collective agreements and/or relevant in collective agreements

The objectives of the initiative will be pursued while preserving flexibility, which will be monitored via Eurostat statistic including

increased employment rate.

Improve Facilitate identifying Number of workers National reports, studies compliance with and resolving denouncing abuses; working incompliance Number of workers conditions getting better access standards though to redress; enhanced Increased efficiency enforcement of redress

mechanisms Increase incentives Number of abuse of Labour inspection for compliance rights in mid-term reports, studies

(in short term expected increase of number due to additional behaviour becoming illegal due to change in legislation).

Improve Company level Number of MSs Transposition checks, transparency of simplification: developing studies the labour Increase coherence Templates for market while and facilitate creation written statements; avoiding the of written statements Number of MS imposition of including for microproviding clear and excessive enterprises and available burdens on SMEs. information on undertakings of legal framework all sizes applicable.

Labour market Increased Transposition checks, simplification: comparability Studies Increase consistency between contracts; between written Perceived legal statements certainty for requirements across employers; the EU labour markets

Facilitate workers' Increased Transposition checks,

mobility consistency Studies

between contracts,

Number of MS

providing clear and

available

information on

legal framework

applicable.

Overall, the monitoring in the context of the European Semester provides with

contextual data on national labour markets / working conditions.

Furthermore, the policy background of the European Social Pillar and the Social

scoreboard established to monitor progress on the ground will serve to track general

employment/labour market/working conditions and societal trends and performances across countries. With further evidence provided through the annual review on

Employment and Social Developments in Europe (ESDE), the Commission will be able

to produce reporting on improved working conditions of workers.

Eurostat (EU LFS, EU SBS) and National labour market data could also be used to

monitor the impact of a revised Directive. Eurofound scrutinises and discusses working conditions developments including various issues related to the Directive. In particular

the recurrent European Working Conditions Survey (EWCS) allows comparisons over

time on working conditions of the EU workforce that can be of high relevance to

monitoring the impact of the Directive. The recently established European Platform to

enhance cooperation in prevention and deterrence of undeclared work (including bogus self-employment) will contribute with its work to provide data based on information

from enforcement authorities, such as labour inspectorates, social security, tax and

immigration authorities and social partners.

The Commission might also run Eurobarometer surveys and/or promote independent

studies to survey specific aspects of the Directive along the policy or contextual needs and where those aspects are requesting dedicated research.

9.2. Evaluation

The Commission will proceed to a review of the Directive and an evaluation of the

impact of the revised Directive in consultation with the Member States and social partners at EU level in line with a review provision in the text of the revised Directive, ensuring that there is a sufficiently long period to be able to evaluate the effects

(observed changes) of the initiative after it has been fully implemented across all Member States.

The evaluation will include an assessment of whether the operational objectives of the

revised Directive have been reached. The benchmark against which progress will be

measured is the baseline situation defined in this Impact Assessment (see Policy package

A in sections 6 and 7). This evaluation will take into account available monitoring data. It may include a public consultation and/or specific stakeholder consultation and/or a

survey of stakeholders to review the effect of the revised Directive on the different

categories of stakeholders.

A particular focus will be cast on the evaluation criteria required by the Better Regulation

guidelines as well as on the significant economic and social effects of the initiative (in

particular those identified in this IA) including contribution to the broad objectives of quality of work, work-life balance, wellbeing and health of workers..

A NNEX 1: P ROCEDURAL INFORMATION

Annex 1:

Lead DG, Decide Planning/CWP references

The lead DG is DG EMPL, DG Employment, Social Affairs and Inclusion

Agenda planning/Work Programme reference 2017/EMPL/001

Organisation and timing

-The Impact Assessment was assessed by the Interservice Steering Group (ISSG) on 26/10/2017,on 16/11/2017 and on 01/12/2017.

It was then assessed via a fast-track Interservice Consultation meeting on 08/12/2017.

• - 

  The Analytical Document accompanying the second phase consultation of social partners on which the Impact Assessment is based, together with the second stage consultation document, was assessed by the ISSG on 11/07/2017 (present DGs SG, GROW, HOME, JUST, SANTE, SJ, TAXUD) and adopted following ISC (DGs consulted AGRI, BUDG, COMM, COMP, DEVCO, EAC, ECFIN, ECHO, ESTAT, HOME, HR, CNECT, JUST, MARE, MOVE, REGIO, RTD, SG, SJ, TAXUD, TRADE, GROW, SANTE, FISMA, EPSC).

• - 

  The first stage consultation document and SWD on the REFIT evaluation were assessed by the Interservice Steering Group 12/01/2017 (present DGs SG, ESTAT, GROW, HOME, JUST, SANTE, SJ, TAXUD) and adopted following ISC (DGs consulted AGRI, BUDG, COMM, COMP, DEVCO, EAC, ECFIN, ECHO, ESTAT, HOME, HR, CNECT, JUST, MARE, MOVE, REGIO, RTD, SG, SJ, TAXUD, TRADE, GROW, SANTE, FISMA).

• - 

  The first stage consultation document, SWD on the REFIT evaluation together with the terms of reference of the impact assessment study were discussed on ISSG on 6/12/2016 (present DGs SG, BUDG, ECFIN, ESTAT, GROW, HOME, JUST, SANTE, SJ, TAXUD and Cabinet of President) .

Consultation of the RSB

The Impact Assessment report was reviewed by the RSB and discussed with the author DG in a meeting on 29 November 2017. On 1 December 2017 the RSB issued a positive opinion with reservations.

The revisions introduced in response to the RSB opinion are summarised in the table below:

RSB main reservations Changes done in the IA

Alignment between the IA and the The revised report has been updated throghout latest version of the proposal to reflect the adaptations discussed at the meeting with the RSB: regarding the criteria for establishing who is a worker (include all elements of the CJEU definition); the right to training (right limited to training required in EU legislation, national legislation and relevant collective agreements); the measures to alleviate burdens with regard to the possibility to request another form of

employment. (1) The categories of workers that fall As discussed in the section 2 on problem under the scope of the initiative are definition the initiative refers to all workers, unclear, in particular as regards bogus including those in new and non-standard self-employed or workers under zeroforms of employment. hours contracts.

A more thorough presentation of measure 1 (scope) in section 5.3. clarifies that extension of the scope of the directive would be achieved through removal of existing derogations and application of the CJEU criteria for establishing worker status. It states that such criteria would facilitate inclusion of bogus self-employed. It also explains that the proposed derogation of 8h/week would not apply to an employment relationship where no guaranteed amount of paid work is predetermined before the employment starts in order not to exclude effective coverage of

zero-hours workers.

In the presentation of considered policy packages (section 6.1) it is explicitly explained that policy package C is not fully coherent with the problem definition and objective of the proposal in order to analyse what the impact of the new rights would be if the scope of the Directive remained

unchanged. (2) The report is not specific enough Presentation of the measures (section 5.3) with regard to the rationale and explains the rationale for the choice of options expected benefits of the measures in and explains that the goal of the initiative is to terms of upward convergence towards achieve an upward convergence. better working conditions.

The baseline (5.1) also refers to risks related to social dumping and competition on reduced

social standards.

Under point 8.1 c) examples of diverse situations across MS with regard to nonstandard work provide some illustration of risks in terms of social dumping.

In section 5.2. the report explains why another type of legislation was not chosen (targeting specific categories of workers) and why the Written Statement Directive is the appropriate tool to introduce basic rights of general application and ensure the future-proofing of

measures.

• (3) 

  The report does not properly Section 3.2. presents in more details the substantiate its selection or discarding positions of social partners in the two-stage

of different options as well as their consultation. content. Section 5.2. presents more thoroughly discarded options (non-legislative and legislative), providing further explanation on why e.g. some measures put forward by the social partners, the European Parliament and REFIT were not taken forward.

Policy package E (repeal) has been removed from the comparison of options and discarded

upfront as suggested by the RSB.

As requested by the RSB, the report is more explicit on the extent that collective agreements were taken into account in the analysis (see section 5.3 of the main report

and section 7 of Annex 8). (4) The report does not sufficiently Section 8.1 includes an analysis of potential discuss risks and possible unintended unintended effects (such as limitations on consequences of the measures. flexibility, risks of decreased job

opportunities for vulnerable workers, risk of increased recourse to undeclared work, risk of

disproportionate costs of unintended noncompliance). It presents relevant mitigating measures.

The SME test (Annex 3, point 3) has been expanded to develop on the incidence of nonstandard work in SMEs and related impacts.

Section 8.2 (REFIT) presents measures to decrease administrative burdens for SMEs

and quantifies resulting savings.

Evidence, sources and quality and external expertise

The following expert advice has fed into the Impact Assessment:

• - 

  From the REFIT Evaluation of the ‘Written Statement Directive’ (Directive 91/533/EEC i) (SWD(2017) 205 final).

• - 

  From the Report of the public consultation Accompanying the document Establishing a European Pillar of Social Rights (SWD(2017)206).

• - 

  From the commissioned study "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

The study indicates clearly when absence of comparable data at European level could impact on robustness of calculations.

• - 

  From the European Centre of Expertise (ECE) and European Labour Law Network – (ELLN).

• - 

  From literature review as referred to in footnotes.

  A NNEX 2: S TAKEHOLDER CONSULTATION

Several strands of stakeholder consultation have been performed to inform this initiative.

This includes the two Treaty-based Social Partners Consultations, the consultation for the

REFIT evaluation of the Written Statement Directive, and the Public Consultation on the

European Pillar of Social Rights. The two latter have already been presented as Staff

Working Documents.

• 1. 

  Results of the first phase Social Partners consultation

The first phase of social partner consultation closed on 23rd June 2017.

Workers' organisations

Six trade unions replied to the first phase consultation: the European Trade Union Confederation (ETUC), Eurocadres, the European Confederation of Executives and

Managerial Staff (CEC), the European Confederation of Independent Trade Unions

(CESI), the European Arts and Entertainment Alliance (EAEA), the European Federation

of Journalists (EFJ). It should be noted that ETUC's reply also took into account the view of 10 ETUC sectorial trade union organisations.

The workers' organisations agreed, broadly, with the challenges described in the

consultation document, the need to improve the effectiveness of the written statement

Directive and to broaden its objectives in order to improve the working conditions of

vulnerable workers. They welcomed, in particular, the initiative of a minimum floor of

rights 160 for workers and acknowledge the need for further action at EU level in line with

the European Pillar of Social Rights.

Possible improvements to the EU legal framework

The workers' organisations were generally in favour of the insertion of a definition of

worker based on the CJEU case law. However, ETUC argued additionally for the inclusion of self-employed in the scope of application. Trade unions stated the need to cover, in particular, casual workers, 161 and those in new and atypical forms of

160 The first phase consultation document used the terms 'floor of rights' since these new rights will complement the existing floor of rights (as regards working conditions and protection of health and safety at work) already established at EU level.

161 'Casual work' is not formally defined at EU level. Eurofound defines 'casual work' as 'a type of work where the employment is not stable and continuous, and the employer is not obliged to regularly provide the worker with work, but has the flexibility of calling them in on demand'. Casual work covers on-call / ondemand (such as zero-hours contracts) and intermittent work.

employment. They favoured removing the exemptions for short employment

relationships and short working hours.

With regard to the extension of the information package, trade unions were in agreement

with the list suggested in the consultation document. However, ETUC advocated broader

and more detailed information requirements regarding working time arrangements (rest

periods, length of break), elements of remuneration (bonus, overtime, sick pay), the

identity of sub-contractors, an obligation to hand out and ensure access to relevant documents, information for temporary agency workers on the duration of assignment and

name of user undertaking, information on worker representatives and on equal pay rights,

information on (equal) pay and social contributions for workers working abroad,

information to posted workers about their rights, information on conditions of

accommodation, as well as a series of specific elements for interns, trainees and apprentices.

Trade unions unanimously agreed with the proposal to reduce the 2 months deadline for

the employer to provide the written statement and stated that this should be prior to the

start of the employment relationship or immediately on signing the contract.

The need to improve access to sanctions and means of redress and their effectiveness was

acknowledged, including by calling for the introduction of a presumption of employment

in case the employer fails to provide a written statement.

Workers' organisations were strongly in favour of a floor of rights for workers. In addition to the proposals in the consultation document, ETUC advocated a minimum

notice period (3 months), a right to decent working hours, a right to at least the minimum

wage, and finally a right to social protection in conjunction with the access to social

protection initiative of the Commission. ETUC also argued for inclusion of collective

rights in the floor of rights: the right to join and be represented by a trade union, the right to freedom of association and finally the right to collective bargaining.

Willingness to enter into negotiations

The workers' organisations expressed their willingness to enter into negotiations with

employer organisations; however, they urged the Commission to come up with a legislative proposal that would improve the situation of workers in case negotiations

were not launched or if they failed.

Since the issue of the qualification of on-call time as working time is a separate issue dealt with in the context of the Directive 2003/88/EC i on working time, for ease of understanding this document will mainly use 'on-demand work' instead of 'on-call work'. Eurofound meaning does apply. Indeed, in the framework of working time, on-call time refers to any period where the worker is not required to carry out normal work with the usual continuity, but has to be ready to work if called upon to do so.

Employers' organisations

Thirteen employers' organisations replied to the first phase consultation: Business

Europe, the European association of craft small and medium-sized enterprises (UEAPME), the Council of European Employers of the Metal, Engineering and

Technology Based Industry (CEEMET), the Association of Hotels, Restaurants and

Cafés in Europe (HOTREC), Eurocommerce, the Confederation of European Security

Service (COESS), the European Chemical Employers Group (ECEG), the Council of European Municipalities and Regions (CEMR), the World Employment Confederation,

the European Farmers Association (GEOPA-COPA), the European Community Ship

Owners Associations (ESCA), the European Coordination of Independent Producers

(CEPI), the European Centre of Employers and Entrerprises providing Public Services

and Services of general interest (CEEP).

A large majority of employers' organisations stated their opposition to the revision of the

Directive, and all of them rejected the idea of creating a minimum floor of rights for all

workers.

Possible improvements to the EU legal framework

A large majority were opposed to the extension of the scope of application of the

Directive and the insertion of a definition of worker. They argued that this definition

would be too broad and would hamper flexibility for business and would depress job

creation. They raised concerns about subsidiarity and the impact on Member States' national legal arrangements. However, COESS was favour of introducing an EU

definition of worker, to cover all forms of employment and to simplify the exclusion

provisions. For COESS, this would help in reducing unfair competition.

All employers' organisations expressing a view, with the exception of COESS and HOTREC, did not support amending the information package. COESS supported the

possible extension outlined in the consultation document. HOTREC supported including

information about probation and about the applicable social security system.

Regarding the reduction of the 2 months' deadline for providing the written statement, most employer organisations were not in favour of any change. HOTREC stated that it

could be reduced to 1 month but exemptions should remain so as to avoid creating

additional administrative burden.

No employers' organisation supported changes at EU level to the system of redress and sanctions. Some indicated that this should be left to Member States. For the World

Employment Confederation, better implementation and enforcement of the existing Directive would be more effective than a revision. HOTREC indicated that some of its

members could accept favourable presumptions of employee status.

All organisations were opposed to the floor of rights of EU workers, arguing that this

would infringe proportionality and subsidiarity principles. They also highlighted the

importance of respecting the autonomy of the social partners and stated that the issues

raised in the consultation should be tackled either at national level or in collective

agreements.

Willingness to enter into negotiations

In their responses to the first phase consultation, Business Europe, UEAPME, and CEEP

expressed their willingness to engage in exploratory talks with the ETUC in order to assess the feasibility and appropriateness of initiating a dialogue under Article 155 TFEU

on the Written Statement Directive (challenge 1 of the consultation document). The other

organisations were not in favour of opening discussions at EU level.

Subsequent to the first phase consultation, ETUC, CEEP and Business Europe confirmed that they were not in a position to initiate formally the joint negotiation process provided

for in Article 155 TFEU, while reserving the possibility to do so in the context of the

second phase consultation.

• 2. 

  Results of the Second phase Social Partners consultation

The second phase consultation of Social Partners started on 21 September 2017 and closed on 3 November 2017. The views of workers' organisations and employer's organisations are summarised here below.

Workers' organisations

Ten trade unions replied to the second phase consultation: the European Trade Union

Confederation (ETUC) 162 , Eurocadres, the European Confederation of Executives and

Managerial Staff (CEC), the European Confederation of Independent Trade Unions (CESI), the European services workers (UNI Europa), the European Cockpit Association (ECA), the European Arts and Entertainment Alliance (EAEA), the European Federation of Journalists (EFJ), the European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT) and the World Footballers' Association (FIFPro).

In addition, two sectoral trade unions provided a joint reply with a corresponding employers' organisation: the European Transport Workers' Federation (ETF) with the European Community Shipowners' Associations (ECSA) and the European Federation of

162 It should be noted that ETUC's reply also took into account the view of its 10 sectoral trade union federations.

Food, Agriculture and Tourism Trade Unions (EFFAT) with the Employers’ Group of Professional Agricultural Organisations in the European Union (GEOPA-COPA).

Views on personal scope of the Directive

All workers' organisations support clarifying and broadening the personal scope of the Directive by introducing criteria on the basis of which Member States would determine worker status, for the purpose of the Directive, under national competence. Some (CEC, ECA, FIFPro) endorse the proposal to base criteria on CJEU jurisprudence. Several (ETUC, EAEA, EFJ, UNI Europa) argue that the scope of the Directive should be extended to cover "self-employed workers" (i.e. the economically-dependent selfemployed) and "autonomous workers", and also include trainees and apprentices, and propose additional criteria to achieve this. Several worker organisations emphasise the need to use the Directive to combat bogus self-employment and to introduce a refutable presumption of employment (ETUC, ECA, EAEA, Uni Europa, and FIFPro). EFFAT calls for vulnerable cross-border seasonal workers in the agriculture sector as well as the food processing and tourism industries to be explicitly covered.

ETUC additionally argues for clarifications on the concept of employer, including confirmation that on-line platforms may be employers for the purpose of this Directive, also where they act as intermediaries.

ETUC, endorsed by Eurocadres, EFFAT, FEJ, UNI Europa and FIFPro, support the removal of the exclusions contained in Article 1.2 of the current Directive, but do not support their replacement by an alternative threshold of economic activity below which the obligation to provide a written statement would not apply. By contrast, CESI and ECA advocate stricter limitations on exclusions but not their complete removal.

Modifications to information package and timing

ETUC, endorsed by EAEA, FEJ and UNI Europa, support the modification of the information package proposed in the consultation document, and request in addition the inclusion of information concerning: the components of a working day or week such as breaks and rest; the components making up remuneration; the identity of contractors in case of subcontracting; an obligation to present the written statement in a permanent form, also when in electronic format; harassment protocols; information about the assignment and the identify user undertaking for temporary agency workers; information on equal pay for equal work and on posted workers' rights; and additional information for workers working abroad or coming from third countries. Additionally ETUC, supported by EAEA and EFJ, advocates a "catch-all" clause requiring the provision of essential information relevant to the nature of the work, to address the specific situations of e.g. domestic or voucher workers.

ECSA and ETF jointly draw attention to the more extensive set of written information required for seafarers under Directive 2009/13/EC i, and request that a revised Directive should be without prejudice to those rules.

All workers' organisations expressing a view supported provision of the written statement before the employment begins (Eurocadres) or at the start of the employment relationship (ETUC, EAEA, EFFAT, EFJ, and UNI Europa).

Insertion of new minimum rights

CEC and ECA support the proposals in the consultation document.

ETUC, endorsed by EAEA, EFFAT, FEJ and UNI Europa and in part by CESI, support in principle all the new material rights set out in the consultation document, and propose amendments to reinforce them. These include: a complete ban on exclusivity or incompatibility clauses, except in very limited circumstances; a restriction on the reasons for which employers may refuse a request to transfer to a different form of work (additionally from EAEA: no limitation on a worker's seniority before such a request can be made) and the right for the worker to be accompanied by a trade union representative in these discussions, , and additional provisions to sanction the unreasonable failure of an employer to comply with a worker's request to transfer to a different form of work; clarification that probation periods cannot be used to facilitate dismissal and should not be introduced where they do not currently exist.

In addition, ETUC supported by EAEA, Eurocadres, FEJ, and in part UNI Europa and ECA, advocate additional material rights and provisions, principally a ban on zero-hour contracts and an obligation on employers to provide a minimum number of guaranteed hours; a prohibition on split shifts covering more than a working day and the right to decline shifts that are not in accordance with the written statement; a right to disconnect; a right to fair remuneration; a right to collective bargaining for self-employed workers; right to a reasonable notice period and to prevention of unjustified dismissal; and a new general right to fair terms and conditions of employment. ECA additionally proposes that any hours where the worker is at the disposal of the employer must be paid; and that there should be a right to essential training free of charge during paid working time; and minimum advance notice for any changes to work schedules.

Enforcement

Several worker organisations argue for reinforced anti-avoidance measures to be built into the material rights introduced by the revised Directive, such as making it an offence to knowingly understate the amount of guaranteed hours or an obligation to pay workers at a higher rate for hours worked beyond that amount, or to remunerate last minute cancelled shifts or work periods.

ETUC, supported by UNI Europa, advocates increasing financial sanctions so that they become dissuasive and not capping compensation; introducing personal liability for directors and a duty for due diligence; injunctions to enforce the provision of a written statement or the correction of an existing one; collective redress including the right for a worker to be represented by a union in seeking redress; establishing the principle of joint and several liability where more than one entity performs the function of employer.

FIFPro supports the introduction of injunctions to require employers to provide the missing information and favourable presumptions of an employment relationship, proportionate to the missing elements. As regards presumptions, most organisations highlight the 'refutable presumption of employment' mentioned above as a key principle for better enforcement.

Others

Some worker organisations (ETUC, Eurocadres) emphasise that the provisions of the Directive could be implemented by law or by collective agreements.

ETUC requests a clarification that no provision of the Directive can be used to undermine collective agreements, which should take precedence. They advocate introducing a provision for derogations from the obligations in the Directive by means of collective agreements, similar to that existing under Article 18 of Directive 2003/88/EC i on working time.

ETUC and UNI Europa advocate inclusion of a non-regression clause in the Directive, specifying that its implementation cannot constitute any ground for reducing any element of worker protection.

Willingness to enter into negotiations

CEC state their willingness to enter into dialogue with the other social partners with the aim of signing an agreement.

ETUC states that, while committed to social dialogue, it does not believe that the conditions exist, in terms of timing and scope, to launch negotiations with EU level employers' organisations about a revision of the Directive. It states that the employer organisations' proposal to negotiate is too limited in scope and too late to lead to a timely revision of the Directive. It calls on the Commission to act expeditiously to propose a revision of the Directive. EAEA, Eurocadres, UNI Europa support this position. CESI calls on the legislator to act where possible if and when social dialogue reaches its limits.

ECA, a non-affiliated sectoral worker organisation, asks to contribute to discussions, should a negotiation be launched.

Employers' organisations

Nine employers' organisations replied to the second phase consultation: Business Europe, European association of craft small and medium-sized enterprises (UEAPME), the European Centre of Employers and Enterprises providing Public Services and Services of general interest (CEEP), the Council of European Employers of the Metal, Engineering and Technology Based Industry (CEEMET), the Association of Hotels, Restaurants and Cafés in Europe (HOTREC), Eurocommerce, the Confederation of European Security Service (COESS), the European Chemical Employers Group (ECEG), the World Employment Confederation - Europe (WEC-Europe).

In addition, two sectoral employers' organisations provided a joint reply with a corresponding employees' organisation: the European Community Shipowners' Associations (ECSA) with the European Transport Workers' Federation (ETF) and the Employers’ Group of Professional Agricultural Organisations in the European Union (GEOPA-COPA) with the European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT).

Views on personal scope of the Directive

All organisations expressing a view were opposed to clarifying the personal scope of the Directive by introducing criteria on the basis of which Member States would determine worker status. HOTREC emphasised the importance of flexible and short-term employment relationships in the hospitality sector, and considered that determining criteria at EU level could create legal uncertainty if it conflicted with legislation or collective agreements within Member States. They proposed an alternative wording explicitly excluding self-employed and referring to the existence of an employment contract. CEEMET regarded the proposed criteria as too rigid, and potentially interfering with Member States' discretion in other fields such as social security and taxation.

Most employer organisations were opposed to extending the coverage of the Directive by eliminating the existing exclusions in Article 1.2. HOTREC proposed that they should be augmented by reference to "special national legislation already in place".

Modifications to information package and timing

WEC-Europe strongly supported the proposed extension of the information package. All other employer organisations expressing a view either opposed the modifications to the information package set out in the consultation document in totality, or selectively (CoESS). In the latter case, it is not clear whether those additional elements not mentioned in the response are supported. Concern was expressed that such an extension could add burdens to employers, especially SMEs and micro-enterprises, and that the issues (e.g. overtime, determination of working schedule) were often covered by collective agreements and so did not need to be reproduced in a written statement.

ECSA and ETF jointly draw attention to the more extensive set of written information required for seafarers under Directive 2009/13/EC i, and request that a revised Directive should be without prejudice to those rules.

HOTREC considered that the deadline for issuing a written statement could be reduced from two months to one month.

Insertion of new minimum rights

With very limited exceptions, all employer organisations expressing a view were opposed to the inclusion of new material rights in a revised Directive. They argued that such issues were a matter of national competence and that it was not necessary, or even contrary to the principle of subsidiarity, for the EU to act in these fields. CEEMET, HOTREC and WEC-Europe were concerned that the rights designed to limit precariousness (e.g. the right to advance notice, reference hours/days, guaranteed minimum hours after a certain period) could go beyond minimum standards and could restrict flexibility and hamper competitiveness. HOTREC and CEEMET expressed opposition to the right to request a new form of employment; WEC-Europe considered the matter sufficiently covered in Directive 2008/104/EC i on temporary agency work, as concerns their sector. HOTREC states that the employer should be able to choose the maximum duration of the probation period, but seems to be open to a restriction on the duration of probation periods, where these exist.

Enforcement

While WEC-Europe supported reinforcing enforcement of the existing EU social acquis, including combating bogus self-employment and creating a stronger role for Social Partners, the other employer organisations expressing a view were opposed to any changes to the existing provisions on sanctions or enforcement. HOTREC argued that the provision in Article 8(2) of the current Directive that employers should have up to 15 days to remedy a failure of notification to an employee, should be better transposed and utilised.

Others

/

Willingness to enter into negotiations

The three cross-sectoral employer organisations, BusinessEurope, CEEP and UEAPME, expressed readiness to enter into negotiations with the employee representatives. BusinessEurope and UEAPME noted that such negotiations should take into account the needs of differently sized enterprises, especially SMEs and micro-enterprises, and that they should respect the nature of the Written Statement Directive. The sectoral employer organisations generally indicated their readiness to support the cross-sectoral organisations in any negotiation.

• 3. 

  Results of the public consultation on the European Pillar of Social Rights

The results of the public consultation on the European Pillar of Social Rights have been published as SWD (2017)206.

• 4. 

  Results of the public consultation for the REFIT evaluation of the Written Statement Directive

The outcomes were published in SWD (2017) 205 final, REFIT evaluation of the Written Statement Directive.

A NNEX 3: W HO IS AFFECTED AND HOW ?

• 1. 

  Practical implications of the initiative

The initiative will apply to all employers, but the scale of action required to comply with it is estimated to be limited in the majority of cases. While employers affected are not more likely to be SMEs than large enterprises, the following indications focus on SMEs, in line with Treaty obligations to avoid overburdening them.

Key obligations for enterprises:

Enterprises will have to ensure the following actions:

• - 

  review the written statements they provide to their new workers, including any coming newly within scope of the proposed Directive, and to existing workers on request, with particular attention to (i) the provision of information to the workers previously outside the scope (ii) the provision of the additional information (iii) the changed timeline with the information to be provided at the latest on the day of beginning of the employment relationship;

• - 

  if they use this type of work, review their schedule of on-demand work for fulfilling the predictability requirements included in the new initiative;

• - 

  ensure that no exclusivity clauses are used; in case they are, modify the organisation of the business to eliminate them;

• - 

  review whether any incompatibility clauses are used, and if so whether they are justified by legitimate reasons; if not, modify the organisation of the business to eliminate them;

• - 

  review any use of probation periods to ensure they are not excessively long;

• - 

  review the training offered to workers and ensure that training required in EU legislation, national legislation or relevant collective agreements is provided to workers free of charge.

It is assumed that the deadline for the indicated actions is 2 years after adoption and entry into force.

All employers will incur costs: fixed-costs of familiarisation and variable costs related to the number of employees that would be covered by an extension of the Directive to include minimum material rights. The one-off cost of familiarisation paid in the first year is expected to be, for SMEs, some 53 EUR. The cost per casual worker being in the range 18-153 EUR, the actual cost will depend on the business model and use of atypical work rather than size of company. Companies that rely to a larger extent on non-standard forms of work will have higher costs.

There is evidence that the burden of a reduced timescale for providing written statements would not be any greater for SMEs than for large enterprises.

The provision of templates will mitigate some of the additional costs.

Concerning training, there is evidence that fewer SMEs offer on-the-job training compared to large companies, largely due to their more limited capacity to do so.

Key obligations for public administration:

Public administrations will have to ensure the following actions:

• - 

  review their legal framework to, if needed, ensure that the personal scope of the new directive is ensured;

• - 

  review their legal framework to, if needed, introduce the additional information elements relating to the provision of a written statement;

• - 

  specifically, produce templates, if not yet available, for the use of employers, and ensure ease of access to information on the relevant legislation and other provisions relevant for the items to be included in the information list (in particular for employers that come newly within scope of the Directive and have limited access to information on their duties, such as employers of domestic workers,);

• - 

  review their legal framework to, if needed, integrate the new material rights;

• - 

  review the legal framework to, if needed, integrate the enforcement requirements;

• - 

  if needed, enhance support to labour inspectorates or other bodies that could receive an increased request due to breaches of additional material rights and additional enforcement provisions;

It is assumed that the deadline for the indicated actions is by 2 years after adoption and entry into force (while ensuring reasonable and adequate dissemination of information and templates to employers and workers suitably in advance of this deadline).

• 2. 

  Summary of costs and benefits

  • I. 

    Overview of Benefits (total for all provisions) – Preferred Option

  Description Amount Comments

  Direct benefits

Higher number of workers entitled Some 2-3 million more workers to written statements have a right to a written

statement

Workers getting more 5-31 million workers per year comprehensive information in the written statements

Written statements issued on the 1 st 8-16 million workers per year

day of employment

Workers getting reference hours 4-6 million workers and receiving advance notice before an assignment

Workers freed from exclusivity 6-7 million casual and voucher 29% of part-timers in clauses based workers 2015 were

involuntary (source EU-LFS). It can be assumed that most of

the involuntary parttimers work less that they would want to because of lack of job opportunities rather than exclusivity clauses, but exclusivity clauses are a contributory factor for involuntary part-time.

Workers getting the possibility to 52 million (some 25% expected request another form of to use the right in practice) employment

Workers getting the right to a max. 3-6 million workers per year duration of a probation period

Workers getting the right to Negligible mandatory training without deduction from salary

Workers getting better access to All workers whose rights are redress not respected

Increased legal certainty for 16% of employers employers

Indirect benefits

Additional tax revenues from 46-185m EUR p.a. workers enabled to get a second job with another employer

Additional tax revenues from a 1- 8m-25m EUR p.a.

3% shift of undeclared work into the formal economy

Reduction in social security 4m-24m EUR p.a. Assuming that payments, due to undeclared reductions equate to workers entering the formal 10-20% of the value economy of undeclared work

brought into the

formal economy.

Reduction in social security Unquantified but related to the payments from workers enabled to expected additional 33m-133m get a second job with another extra hours workers per year by employer workers freed from exclusivity

clauses

Increased productivity, retention, 16-20% of employers loyalty etc.

Reduced unfair competition Benefits for some 80-84% of employers who already provide written statements to all workers

Improved availability of workforce 91,000-363,000 workers for secondary employers available for extra work

following ban on the exclusivity clauses

Additional revenues for secondary 42-167m EUR employers as result of the above

Improved detection of undeclared unquantified work

Improved health and work-life unquantified balance of workers

Workers enabled to get a second 355-1,424m EUR p.a. increase job with another employer in gross annual earnings for those

workers

Undeclared work brought into the 40m-120m EUR p.a. formal economy

II. Overview of costs – Preferred option

Workers Businesses Administration s

One-off Recurre One-off Recurrent One Recurr nt off ent

• 1. 

  Direct None None 852.5m EUR

  163 + 11-30m Limite None costs 114-152m EUR 164 EUR 165 d 166

Extended

scope Indirect None 167 None 168 None Limited 169 None None costs

• 2. 

  Direct None None Included in 1. Included in Limite None

Extended costs 1. d 170

informati

on Indirect None None None Negligible

171 None None

package costs

• 3. 

  Direct None None Included in 1. Limited 172 Limite None

Shortene costs d d Indirect None None None. None. None None deadline costs

Direct None None Included in 1. Modest 174 Limite None 4.1.

Rights to costs d

predictab Indirect None None Depending on Depending None None

ility 173 costs employers on employers choices 175 choices

4.2. Direct None None Included in 1. 7-27m EUR Limite None

163 Familiarisation (including e.g. adaptation of written statements to new information package). This total amount represents the average cost per company (53 EUR for an SME and 39 EUR for a larger company) multiplied by the number of all companies in the EU. It is likely an overestimation as mostly companies needing to issue new written statements will need to invest in familiarising with the new legislation. 164 Cost per written statement: 18-153 EUR for SMEs and 10-45 EUR for larger companies. 165 As above. 166 Some costs related to transposition of the Directive – for all actions but not cumulative. 167 Very limited possibility for some workers to become unemployed. 168 Social security and/or pension contributions for some workers who were undeclared or bogus selfemployed. 169 Costs could be related to the need to replace workers covered by the directive with others, not covered (or self-employed). It is however unlikely that many employers would do that, just because of the requirements to provide a written statement. 170 Limited costs related to development of new models and templates, and making information available to employers. 171 As established through interviews with stakeholders. 172 As explained in the IA: 12 MS already comply; REFIT study shows no major differences in how burdensome employers consider the timeframe to be, regardless of whether it precedes the employment (BG, PL), is set at one month (DE, FR, IT, SE) or at two months (UK). 173 Reference hours and advance notice. 174 Surveyed employers expected some modest additional administrative costs as well as increased labour costs and costs related to reduced workforce flexibility. The extent of the costs will depend on existing practice (many employers already provide those measures) and business models (extent of reliance on nonstandard forms of work). 175 Costs in 4.1 and 4.2. will depend on the business models and strategic management decisions.

Prohibiti costs d on of

exclusivit Indirect None None None None None None y costs

4.3. Direct None None Included in 1. 20-258m EUR Limite None Possibilit costs d y to

request Indirect None None None.

176 None. None None

another costs

form of employm ent

4.4. Max. Direct None None Included in 1. Limited 177 Limite None

duration costs d of Indirect None None None None None None

probation costs

4.5. Cost Direct None None Included in 1. Limited Limite None free costs d mandator Indirect None None None. None. None None

y training costs

5.Enforce None None Included in 1. None. 178 Depen Depen

ment Direct ding ding on

costs on MS MS decisi decisio

ons 179 ns 180

Indirect None None None None None Possibl

costs e 181

• 3. 

  The SME Test – Summary of results

176 The provision does not oblige employers to accept the request. 177 The new right would only have an effect in the UK, IE and CY – and also in those MS in practice, based on legal precedents, there is already a maximum duration of probation in place. 178 No new costs for compliant employers. 179 The proposed measures leave to Member State the choice of institutional setting for establishing the new procedures. When existing institutions are used, costs should be limited. 180 The proposed measures leave to Member State the choice of institutional setting for establishing the new procedures. When existing institutions are used, costs should be limited. 181 Possible increase in enforcement-related costs due to a higher number of cases.

• (1) 

  Preliminary assessment of businesses likely to be affected

The revision of the Directive will apply to all employers. It will however particularly Section 2, especially

affect all employers of employees in the following categories (unless national 2.2.3

legislation has brought them within the scope of the Directive):

• - 

  Employees working <8 hours per week - Employees with contract duration <1 month - Workers of a casual/specific nature

There are little data to establish the extent of the use of non-standard work in SMEs

as compared to large companies. The survey conducted in the framework of the

supporting study 182 found for example that the percentage of SMEs and large

companies reporting that they rely on employees working less than 8 hours per week

or on workers on demand is very similar while the percentage of SMEs reporting to follow a business model where atypical forms of employees working less than eight

hours play an important role is slightly higher compared to large companies. A UK

study on zero-hours contracts found however that these contracts are used in 12% of

enterprises with less than 20 employees and 28% of enterprises with 20-250 employees compared to 47% of larger companies. 183 An EU study on SMEs

established that in 2009, 50% of small enterprises in EU27 employed staff with

fixed-term contracts, as compared to 75% for medium-sized and 87% for large enterprises. 184

Sectors that have a prevalence of casual workers are most likely to be affected, e.g.

hotel, accommodation & restaurants, construction, agriculture.

• (2) 

  Consultation with SMEs representatives

Interviews of employer representatives were undertaken in each of the 28 Member Annex 2 and 4

States. Representatives were invited to comment on the impact on SMEs.

A survey of employers attracted 347 responses from a diversity of sectors. Of these,

79% were private firms. The breakdown of responses by company size is as follows

(all countries combined):

 SMEs (<250) – 68%, of which:

182 Note: the survey targeted employers, who were more likely to rely on atypical workers or flexible working arrangements, to achieve more meaningful answers. Therefore, the survey answers are not representative of a general employer population but specifically relate to employers employing casual workers. 183 Office for National Statistics (2014), Analysis of Employee Contracts that do not Guarantee a Minimum Number of Hours 184 Jan de Kok et al: Do SMEs create more and better jobs? Zoetermeer, November 2011 - Micro (<10) – 15%

• - 

  Small (10-49) – 19%

• - 

  Medium (50-249) – 34%

 Large (250+) – 29%

 The remaining 3% did not answer.

The survey showed no major differences between SMEs and large companies with

regard to the considered measures. The majority of SMEs in the survey reported that

they already provided the required employment information for non-standard workers. While the introduction of ban on exclusivity clauses is perceived by the

employers as having a small impact compared to the current situation (approximately

47% of the respondents report no difference in case of implementation of this right),

differences are likely to occur when introducing rights related to working time.

These however will mainly depend on the extent companies (irrespective of their

size) depend on on-demand work. Further information on the results of the survey is provided under point 5 of this Annex.

UEAPME was among the three cross-sectoral employer organisations which

expressed readiness to enter into negotiations with the employee representatives.

UEAPME noted that such negotiations should take into account the needs of

differently sized enterprises, especially SMEs and micro-enterprises, and that they should respect the nature of the Written Statement Directive.

• (3) 

  Measurement of the impact on SMEs

All employers will incur costs: fixed one-off costs of familiarisation and variable See:

costs related to the number of employees that would be covered by an extension of

the Directive. Cost sheet below

With less scope for economies of scale than larger firms, SMEs will incur higher Section 6.2

average fixed costs than large firms (53 EUR for an SME and 39 EUR for a large Section 8.2 and 8.3

firm) and higher costs per atypical worker than large firms: €18-€153 versus €10-45.

The cost range for SMEs (based on two different methods of establishing costs of a written statement: average annual cost per contract and annual average fixed cost per

employed person) is an average for all sizes of SMEs. Break-down per size category

is as follows:

• - 

  micro-enterprises: 22-198 EUR

• - 

  small enterprises: 13-156 EUR

• - 

  medium enterprises: 18-127 EUR.

However, the costs incurred will depend on the business model rather than size of

company: companies that rely to a larger extent on non-standard forms of work will bear higher costs.

Overall, these costs are minor in comparison with general costs of personnel, which

according to 2014 Eurostat data amounted to some 29,000 EUR per employee per year in an SME and 48,000 EUR in a larger company. 185

A minority of affected firms (likely those heavily relying on on-demand workers

with exclusivity clauses and no advance notice) will face additional indirect costs related to adapting the business, e.g. HR management time, legal advice, staff

training.

There is evidence that the burden of a reduced timescale for providing written

statements would not be any greater for SMEs than for large enterprises.

• 4) 

  Assess alternative options and mitigating measures

Given the large number of workers in the EU working in SMEs, overall derogations Section 8.3.

for SMEs are not considered appropriate.

However, as specified in section 8.3 the following mitigating measures are considered in order to limit the burdens on companies, and most notably SMEs:

• 1. 

  Member States are required to develop electronic templates and models of written

statements.

• 2. 

  In micro, small, or medium enterprises, Member States may provide for the

deadline to reply to worker's request for another form of employment to be extended

from one month to no more than three months and/or allow for an oral reply to a subsequent similar request submitted by the same worker if the justification for the

reply as regards the situation of the worker remains unchanged.

• 3. 

  Member States are required to make information related to the content of the new

directive easily available to workers and employers.

185 SME Performance Review 2017 by DIW-ECON (Personnel costs are made up of wages, salaries and employers' social security costs. They include taxes and employees' social security contributions retained

by the employer, as well as the employer's compulsory and voluntary social contributions.)

• 4. 

  Comparison of administrative costs to employers: SME v large firms

The table below provides an example of the average cost incurred in the first year following the revision of the Directive by an SME and a large

company under different scenarios.

SMEs Large firms

Average fixed cost per enterprise € 53 € 39

Cost per casual worker € 18 - € 153 € 10 - € 45

Costs in first year

SMEs Large firms

Staff turnover p.a. 10% 20% 10% 20%

Scenario (B) (Options 1,2,3,4)

Average cost of an enterprise with 0 atypical workers € 53 € 53 € 39 € 39 Average cost of an enterprise with 10 atypical workers € 71 - € 206 € 89 - € 359 € 49 - € 84 € 59 - € 129 Average cost of an enterprise with 50 atypical workers € 143 - € 818 € 233 - € 1,583 € 89 - € 264 € 139 - € 489 Average cost of an enterprise with 250 atypical workers € 503 - € 3,878 € 953 - € 7,703 € 289 - € 1,164 € 539 - € 2,289

Scenario C (Options 2,3,4,5)

Average cost of an enterprise with 0 atypical workers € 53 € 53 € 39 € 39 Average cost of an enterprise with 10 atypical workers € 53 € 53 € 39 € 39 Average cost of an enterprise with 50 atypical workers € 53 € 53 € 39 € 39 Average cost of an enterprise with 250 atypical workers € 53 € 53 € 39 € 39

Scenario D (Options 1,2,3,4,5)

Average cost of an enterprise with 0 atypical workers € 53 € 53 € 39 € 39 Average cost of an enterprise with 10 atypical workers € 71 - € 206 € 89 - € 359 € 49 - € 84 € 59 - € 129 Average cost of an enterprise with 50 atypical workers € 143 - € 818 € 233 - € 1,583 € 89 - € 264 € 139 - € 489 Average cost of an enterprise with 250 atypical workers € 503 - € 3,878 € 953 - € 7,703 € 289 - € 1,164 € 539 - € 2,289

Costs in future years (per year)

SMEs Large firms

Staff turnover p.a. 10% 20% 10% 20%

Scenario (B) (Options 1,2,3,4)

Average cost of an enterprise with 0 atypical workers € 0 € 0 € 0 € 0 Average cost of an enterprise with 10 atypical workers € 18 - € 153 € 36 - € 306 € 10 - € 45 € 20 - € 90 Average cost of an enterprise with 50 atypical workers € 90 - € 765 € 180 - € 1,530 € 50 - € 225 € 100 - € 450 Average cost of an enterprise with 250 atypical workers € 450 - € 3,825 € 900 - € 7,650 € 250 - € 1,125 € 500 - € 2,250

Scenario C (Options 2,3,4,5)

Average cost of an enterprise with 0 atypical workers € 0 € 0 € 0 € 0 Average cost of an enterprise with 10 atypical workers € 0 € 0 € 0 € 0 Average cost of an enterprise with 50 atypical workers € 0 € 0 € 0 € 0 Average cost of an enterprise with 250 atypical workers € 0 € 0 € 0 € 0

Scenario D (Options 1,2,3,4,5)

Average cost of an enterprise with 0 atypical workers € 0 € 0 € 0 € 0 Average cost of an enterprise with 10 atypical workers € 18 - € 153 € 36 - € 306 € 10 - € 45 € 20 - € 90 Average cost of an enterprise with 50 atypical workers € 90 - € 765 € 180 - € 1,530 € 50 - € 225 € 100 - € 450 Average cost of an enterprise with 250 atypical workers € 450 - € 3,825 € 900 - € 7,650 € 250 - € 1,125 € 500 - € 2,250

• 5. 

  SMEs analysis: employer survey results

5.1. Use of non-standard work between large companies and SMEs

The use of non-standard forms of employment is mostly concentrated in certain sectors,

such as hotels, accommodation and restaurants, construction and agriculture. The

construction and the accommodation and food sectors are included in the most important

SME sectors in terms of employment. 186 In these sectors, SMEs account for a large share

of employment compared to large firms. Although this could lead to the conclusion that

atypical forms of employment are more widespread among SMEs, no clear relationship

exists: evidence from the UK shows that despite the use of contracts with no guaranteed

number of hours is concentrated in the accommodation and food sector 187 , large firms are

proportionately more likely than SMEs to employ one form of casual worker – zero-hour contract workers. 188

Evidence collected during the study has enabled the complex relationship between the

use of atypical forms of employment and the size of the company to be clarified to some

extent. The employer survey included questions on work organisation, asking whether

the firm strongly relies on employees with different type of atypical forms of

employment. The respondents provided the following evidence:

 more than 75% of companies strongly relying on employees working less than 8

hours per week are SMEs;

 almost 80% of companies strongly relying on employees working less than one

month are SMEs;

 approximately 70% of companies strongly relying on on-demand employees are

SMEs.

Despite that, the difference is less significant when analysing the percentage of

companies reporting that they strongly rely on atypical forms of employment for

different size classes:

 the percentage of SMEs and large companies reporting that they rely on

employees working less than 8 hours per week or on workers on demand is very similar;

 conversely the percentage of SMEs reporting to follow a business model where

atypical forms of employees working less than eight hours play an important role is slightly higher compared to large companies.

Based on the survey, it is not therefore possible to determine a clear relationship between

the use of standard forms of employment and the size of the companies.

186 European Commission (2016), Annual report on European SMEs 2015/2016

187 https://www.istat.it/en/files/2015/04/Item-2.4-Measurement-of-zero-hours-contracts_UK1.pdf

188 Department for Business, Innovation & Skills (2014), Final Impact Assessment: Banning exclusivity clauses in zero-hours contracts.

A previous study in the UK offers more robust evidence in the form of a report based the

Office for National Statistics Business Survey. The survey found that:

 Around 1.4m employees have non-guaranteed hours contracts (NGHCs);  47% of large firms (250 or more employees) use NGHCs;  28% of medium-sized firms (20-249 employees) use NGHCs;  12% firms with <20 employees use NGHCs;  13% of all firms use NGHCs.  when firms with <250 employees use NGHCs, they have a larger proportion of their workforce on NGHCs compared to larger businesses 189

Figure: Proportion of UK businesses using NGHCs by size of business

• 1. 

  Application of considered measures

The REFIT study reports that the costs to comply with the Directive were not perceived

by SMEs or large firms to be burdensome and were mostly considered to be business-asusual

costs

According to the REFIT study, no evidence of disproportionate burden for SMEs is reported in case of an extension of the Directive. The majority of SMEs report that they

would provide the same level of information and thus incur associated costs even in the

absence of any minimum requirements: between 61% and 72% of survey respondents

189 Office for National Statistics (2014), Analysis of Employee Contracts that do not Guarantee a Minimum Number of Hours

replied that in the absence of minimum requirements the organisation would still provide

the required level of information of the employees.

This result is supported by the employer survey carried out during this study. Evidence collected shows that the majority of SMEs already provide the required employment

information for atypical workers. The main results of the employer survey are provided

below.

Source: CSES and PPMI

Evidence suggests a more difficult application of minimum rights for atypical forms of

employment. While a restriction of exclusivity clauses is perceived by the employers as

having a small impact compared to the current situation (approximately 47% of the respondents report no difference in case of implementation of this right), differences are

likely to occur when introducing rights related to working time.

The ability to apply minimum rights is to a great extent dependent to the costs and

benefits associated to the introduction of each policy option.

Reference hours

In terms of benefits, companies that have introduced reference hours reported a reduction

of the number of complaints for casual workers and improved their planning processes of

workforce allocation tasks. On this point, there was little difference in the responses from

SMEs and large firms. In terms of labour costs, the key factor is the business model used

by the company rather than the company’s size: more than 50% of the companies

strongly relying on work provided on-demand report a relevant increase in the labour costs, while companies where the number of on-demand workers is limited or notexistent

report no or moderate increase of the labour costs.

Reasonable advance notice

Employers report that the introduction of a minimum advance notice of a work

assignment reduced the flexibility of the labour market and required SMEs to change their workforce organisation planning. This was confirmed by employers’ organisations,

which highlight that sometimes it is the nature of the work that requires flexibility in

workers' availability. For example, restaurants and hotels might require on-demand

employees in order to address unexpected issues. Therefore introducing of a minimum advance notice might particularly affect the work organisation of these companies. In this

respect, the employer organisations report that SMEs relying strongly on on-demand

workers will be more affected than SMEs where the number of on-demand workers is

limited.

Influence of minimum rights in recruitment decisions

Employers report that the introduction of a minimum set of rights for atypical workers is likely to have a negative impact on the number of casual workers employed. The

employer survey reports that changes in recruitment decisions are likely to occur as a

result of the introduction of reference hours and a minimum advance notice. Conversely,

the restriction of exclusivity clauses is expected to have a marginal impact on the

recruitment strategies of employers.

However, the introduction of these rights will not automatically result in a displacement

of atypical workers to informal agreements or to self-employed positions, as suggested

by several employer representatives: according to the survey, only one respondent out of

five believes that the introduction of these rights is likely to lead to an increase of

informal work. The only exception is related to the introduction of a minimum advance notice, where slightly less than 30% of employers report that casual workers could be

replaced by informal work or push atypical workers into self-employment. However,

retaining the flexibility for employer and worker to agree to take up a work assignment

with less than the set advance notice could reduce the scale of this effect, as could

variable notice periods by sector determined in national legislation or collective agreements.

A NNEX 4: A NALYTICAL METHODS

This Annex describes methods used in the external study underpinning the Impact

Assessment.

The study "Study to support Impact Assessment on the Review of the Written Statement

Directive" was carried out by CSES and PPMI.

• 1. 

  Research stages

EU-level research

Review of various EU-level documents (e.g. Eurofound studies), analysis of Eurostat

data, and consultation of some EU-level stakeholders.

National research

The research team has carried out extensive national level research in each of the 28 EU

Member States.

Two stages of national research

The analysis has been carried out in two stages to ensure the quality of evidence

gathered.

The first stage aimed at establishing a clear baseline against which the policy options/sub-options could be assessed. This analysis drew on the desk research

undertaken in each country, namely:

 extraction of country-specific findings from the REFIT evaluation and other EU-

level research;

 labour market data on the situation in the Member State, gathered mainly from

Eurostat and/or national statistical offices;

 incidence of categories of workers covered by Option 1;  identification of key groups of most numerous and most vulnerable workers;  identification of current relevant Member State legal frameworks (i.e. governing

extension of the provisions of the current Directive to other types of workers, removal of the possibilities to exclude certain workers (Option 1), and extension

of basic rights in employment relationships (Option 5);

 identification of current Member State legal frameworks with respect to Options

2, 3, and 4;

 review of relevant studies and reports at national level.

Based on the collected evidence of the current situation, the research team developed an impact assessment framework for the second stage of the national research. The analysis relied on further desk research and consultations undertaken in each country, namely:

 effects of the current Directive;  the impact of current labour market practices on employees, employers, the state

as well as higher level impacts (e.g. on public finances, productivity and competitiveness, fundamental rights etc.);

 current Member State legal framework (with respect to Options 1, 2, 3, 4, and 5)

impacts on employees, employers, the state as well as the higher level impacts;

 likely evolution of the baseline scenario and its possible impacts;  interviews with employees' representatives;  interviews with employers' representatives;  interviews with other relevant national stakeholders.

Two levels of national research

The national level research consisted of a core-level research, covering each of the 28 EU Member States, and an additional more in-depth research, covering selected 10 Member States. The core research involved desk research and at least 2 interviews – one with a representative of employers and one with a representative of employees. The additional more in-depth research involved at least 3 extra interviews in addition to the minimal 2 interviews (resulting in at least 5 interviews in total).

Country selection for a more in-depth research

The selection of countries for a more in-depth research was based on the following criteria:

 Extending or planning to extend the Directive to cover new and atypical forms of

employment (Option 1) and introduce basic rights (Option 5). Such Member States

would therefore be able to reflect on their experience, including effects on

employees, employers and institutions responsible for dealing with labour disputes.

 Labour market innovation/pioneering. The experience of countries that lead the

way in labour market innovations should also be analysed as it gives many

observation points, which could be used for other countries.

 Different socio-economic models. This composite indicator includes many

important contextual features that might influence labour relations and prevailing

working conditions.

 Geographical location criterion to have a more or less equal coverage of countries

across the EU.

Countries selected for additional research (including specific issues)

Nr Selected Socio Areas of coverage country economic

models

1 Germany CME 190  mini-jobs,  marginal part-time employment  longest minimum notice period  highest employment protection legislation index

190 CME: Coordinated market economy

permanent work

2 France CME  casual work

 voucher-based work  lowest maximum duration of probation  longest minimum notice period  highest employment protection legislation indexpermanent work and temporary work

3 Italy Hybrid  casual work

 voucher-based work  highest employment protection legislation indexpermanent work and temporary work

4 Slovakia Hybrid  casual work

 platform (crowd) workers  longest minimum notice period  highest employment protection legislation indextemporary work

5 Hungary LME 191 -  casual work like (CEE)  voucher-based work

 longest minimum notice period

6 Netherlands LME-like  casual work

 platform (crowd) workers  voucher-based work  lowest maximum duration of probation  longest minimum notice period  highest employment protection legislation indexpermanent work

7 Spain LME-like  fixed-term workers

 casual workers (zero hours)  platform (crowd) workers (planned)  voucher-based work (similar to it)  highest employment protection legislation indextemporary work

8 Poland LME-like  civil law contracts – recognised as service

providers, rather than employees/workers  highest employment protection legislation indexpermanent

work

9 Denmark LME  labour market innovations,

 flexicurity  longest minimum notice period  lowest maximum duration of probation

10 UK LME  labour market innovations

Management of national research

191 LME: Liberal market economy

The national research has been carried out by national experts, experienced in delivering national research for similar studies for the EU institutions. Most of them have degrees and extensive experience in Law, Sociology, or Economics and hold a Lecturer or Professor positions within universities.

The work of the pool of experts has been quality managed, which involved: developing templates and accompanying guidance for data collection, briefing by skype and in person to ensure consistent understanding of the required outcomes, continuous communication to solve any emerging issues. In addition, the research team carried out extensive quality assurance and gap analysis of the received inputs, followed by clarifications and extra questions to gather comprehensive clean data for each country.

Employer survey

The research team has also carried out a survey of employers to collect data to better

understand the costs and benefits that employers might experience if they had to provide

their atypical workers with key employment information in writing and additional rights:

a right to reference hours, a minimum notice period, a possibility to request a different

form of employment, a right to a maximum duration of probation, and forbidding

exclusivity clauses in employment contracts.

The survey was carried out online and accumulated a total of 347 responses from

individuals in the decision making positions in their companies from diverse sectors of

the economy as shown in the figure below, which were more likely to rely on atypical

workers or flexible working arrangements.

The survey has been carried out in 5 selected countries: the United Kingdom, Germany,

Italy, Poland and Slovakia. These countries are of a considerable population size 192 and

importance, which have gone beyond the current Directive requirements in regulating

192 Apart from Slovakia.

new and atypical workers. In addition, these Member States represent different socioeconomic

models and geographical areas. Therefore, the chosen countries could provide the needed data in terms of quantity, depth and variety. English version of the

questionnaire was translated into German, Italian, Polish, and Slovak by professional and

experienced native-speaker translators.

The total number of responses is split between the five countries surveyed in the

following way:

 Germany – 83 responses

 Italy – 82 responses

 Poland – 81 responses

 UK – 80 responses

 Slovakia – 21 responses.

The breakdown of responses by company size is as follows (all countries combined):

 SMEs (<250) – 68%, out of which:

• - 

  Micro (<10) – 15%

• - 

  Small (10-49) – 19%

• - 

  Medium (50-249) – 34%

 Large (250+) – 29%

 The remaining 3% did not answer.

Gaps on trends and uncertainties

Data on past and current trends of atypical employment was obtained from established

sources: principally ILO and Eurofound. In addition, international and national studies,

EU-wide surveys (EU LFS and Flash Eurobarometers from Eurostat), as well as

contributions from national experts have been analysed.

Categorisation and identification of trends of employment not exceeding one month were difficult because no consistent and reliable data on the number of workers with such

contracts or employment relationships are available across EU-28 and very often not

within Member States. Therefore, more general trends of fixed-term and part-time

employment have been used. No exact trends with regard to employees working no more

than 8 hours per week could be identified either, because they are rarely distinguished separately in labour market data available in the Member States. This category of

workers might be covered by other categories, such as domestic work, voucher-based

work or casual work.

There is major uncertainty with regard to future trends of crowd/platform employment,

because it largely depends on technological progress and digital management, business decisions, and national regulatory responses, which are currently evolving. So, the

anticipation of future trends of this new form of employment is highly speculative. Uncertainties also exist with regard to casual work. Not all Member States make a

distinction between very short fixed-term work and casual work, which also might be

linked to informal or undeclared work and overlap with voucher-based work or platform

work. Therefore, no precise trends in the development of casual work could be

distinguished. Based on the information available, trends in the development of on-call

work and intermittent work have been identified.

• 2. 

  Approaches used to estimate numbers of non-standard workers

This section provides an overview of the methodological approach taken to calculate the

different types of atypical workers. Since data are not available for most forms of

employment analysed in this study, the overall population has been estimated using a variety of sources:

 Eurostat Labour Force Survey provided information on the number of employees

and the number of people in employment broken down by country and size of the company;

 6 th European Working Condition Survey which provides information on the

percentage of workers working less than eight hours;

 ILO statistics which present estimates on the percentage of domestic workers;  National level statistical databases.

If no information was available assumptions were made, supported as far as possible by

the qualitative evidence collected during the study.

Domestic workers

There are no official statistics providing the number of domestic workers broken down

by country. Domestic work is very difficult to capture and characterised by high share of

informal work. 193 This number has been estimated using the following sources of

information:

 Eurostat – Labour Force Survey (EU LFS) which provides information on the number of workers employed; 194

 The ILO carried out a study in 2013 which provides information on the Number of Domestic workers and on domestic workers as a percentage of total employment; 195

 Aggregated country fiche data collected from various sources.

193 ETUC (2012), Decent Work for Domestic Workers. The state of labour rights, social protection and trade union initiatives in Europe.

194 lfsa_egan2

195 ILO (2013), Domestic workers across the world: global and regional statistics and the extent of legal protection/International Labour Office, Appendix II: table A2.1

The total number of domestic workers is calculated by multiplying the number of

workers by the share of domestic workers in total employment. The number of domestic workers obtained has been triangulated with aggregated data extracted from the country

fiches from national level sources. The numbers estimated through both methods have

been merged, meaning that the estimated number of domestic workers in each country

shows the average point between the two methods. In case of missing data (e.g. Estonia

and Sweden) the share of domestic workers across EU-28 (provided in the ILO study)

was multiplied with the total number of workers provided by the Labour Force Survey from Eurostat.

Main assumption related to this approach:

 Data have not been calculated broken down by size of company. It is assumed

that all domestic workers are employed in SMEs (i.e. companies with less than 250 employees).

Affected population. The number of domestic workers affected by the extension of the

Directive has been informed by the legal mapping carried out at national level. In

Member States where domestic workers are already covered, the extension of the

Directive was expected to have no impact. Conversely in Member States where domestic

workers are not covered, it was assumed that an extension of the Directive would affect all domestic workers. Whilst domestic workers have different “employment status”, it

was assumed that an extension of the Directive would affect all domestic workers. This

conservative approach allowed to identify the largest possible population affected by the

Directive.

Finally, a number of countries reported that domestic workers are possibly covered by

the Directive. For these countries a percentage of workers newly covered was assumed through a mix of evidence collected by experts, expert judgments and estimation.

Platform workers

Conventional statistical definitions do not capture many relevant aspects of this type of work. While traditional classifications usually focus on the employment status of the worker, digital platform work can include different forms of employment. Indeed, evidence collected by national researchers showed that many platform workers are legitimately self-employed, i.e. fall outside the scope of the Directive. So far, it is far from clear how “employment status” within digital platforms can be captured in this framework (i.e. assumptions are required).

Given the nature of platform activities, meaningful measures should take into account employment levels at a single point in time or correspond to an annual average, rather than capturing whether this type of work has been carried out at any time during for example the previous year, which is the method generally used in the existing sample surveys. The reason is that there is a high risk of double-counting. Currently only a small number of surveys have tried to estimate the number of platform workers.

For this study the percentage of platform workers has been informed by a number of studies carried out both in the US and in Europe. Main results extracted from the US literature on platform work:

 Katz and Krueger (2016) calculate that 0.5% of workers in 2015 were providing services through online intermediaries, such as Uber and Task Rabbit. 196

 Harris and Krueger (2015) estimated the number of platform workers based on

the frequency of Google searches for terms related to online intermediaries. According to this study 0.4% of the employed work with an online intermediary.

 Farrell and Greig (2016) estimate 0.6% of the working-age population

(representing approximately 0.4% of the workforce). The method used is based on the frequency of bank deposits from online work platforms.

A small number of available studies on EU-wide surveys have also been analysed:

 The CIDP (2017) interviewed a nationally representative sample of 5,019 UK

adults aged 18 to 70 in the UK. 4% of employed (excluding pure selling activities, e.g. eBay and Airbnb) reported to have used online platforms in the previous 12 months. 197 Only 25% of this 4% reported that this was their main job, and 58% reported that they are permanent employees and see the gig-economy as a supplements income. If one were to assume the 25% figure as a basis for calculating an approximation of a ‘gig employment status’, then one would arrive at a figure of 1% of the employed, i.e. 1% of employed people in the UK had a gig employment status at some time in 2016.

 Huws et al (2016) found that between 5% and 9% of the online population were

engaged in some type of crowd work in UK, Sweden, Germany, Austria and the Netherlands in the first two quarters of 2016. According to the survey this accounted for more than half of all income for 2.4% of the respondents in Austria, 2.6% in Germany, 1.7% in the Netherlands and 2.8% both in the UK and Sweden.

 McKinsey Global Institute conducted an online survey in the USA and a few EU countries 198 (and extrapolated the results to EU15). According to this study 15%

of independent earners used online platforms, i.e. corresponding to approximately 3%-5% of the working age population. 199

The number of platform workers is calculated by multiplying the share of platform workers with the number of workers employed (provided by Eurostat in the Labour Force

Survey). 200 Based on the evidence collected from US and EU-level sources, it can be

196 The authors conducted a version of the Contingent Worker Survey (CWS) to track alternative and nonstandard work arrangements using the RAND American Life Panel. This survey is the main survey used by the US Labour of Statistics for tracking alternative and non-standard work. The authors report that the estimate required many caveats.

197 Given the nature of the work (short weekly hours, short employment duration, and usually very marginal activities), this figure is likely to be in excess compared to the figures recorded at a single point of time, i.e. they cannot be compared.

198 UK, France, Sweden, Germany and Spain

199 This figure cannot be compared to the single point of time method used by Katz and Krueger (2016), which is the most appropriate one. However According to Eurofound this figure is “highly unlikely” that it would amount to more than 1% of the employment population measured at a single point of time

200 lfsa_egan2

reasonably assumed that the number of platform workers at a single point of time varies between 0.5% (lower bound) and 1% (upper bound) for most European countries. 201 This approach implies strong assumptions:

 the same use of online platforms between the US and Europe;  each Member State has the same share of platform workers out of the total

number of workers (i.e. use of technologies etc. across countries).

Affected population. The estimation of the affected population was based on the use of legal mapping, assumptions and evidence collected from the employer survey. The legal mapping allowed the Member States where platform workers are currently not covered by the Directive to be identified. This was informed by the REFIT evaluation and updated by the national experts through their national research.

The second step required was to make a clear assumption in order to determine the share of platform workers covered by the Directive. 202 It was assumed that the extension of the Directive would have an impact only on platform workers working less than eight hours a week. Based on this assumption the share of platform workers working less than eight hours was applied. This evidence was collected through the employer survey carried out in the context of this study.

Voucher-based workers

Voucher-based work, i.e. a form of employment where an employer acquires a voucher from a third party to be used as a payment for a service from a worker, rather than cash, is becoming a more and more an established feature of European labour markets. However, quantitative data on voucher work are very difficult to collect. This is partly due to the different legal frameworks and different modes of operations applied in each Member State. Therefore statistical data in this area should be assessed very carefully and considered only as an indication of the use of vouchers in the country.

The study identifies voucher-based workers in eight countries, namely Austria, Belgium, Greece, France, Croatia, Lithuania, Netherlands and Slovenia. Italy used to make extensive use of voucher-based workers (latest statistics estimated more than one million people working through vouchers); however this form of employment has been recently banned.

For each country bottom up data/estimates have been collected. Data have been provided either by national level experts or by the ICF 2016 study entitled “Social Pillar – Quantifying atypical employment in the EU Member States”, which provides national level information or estimates on the number of voucher-based workers across Europe. Indeed, the collected data show a wide range of limits, with different units of analysis and definitions. With regard to the first issue, the unit of analysis considered was the number of workers. Where the number of voucher-contracts were provided (e.g. Croatia), one worker per contract was considered. Indeed, this assumption is likely to clearly overestimate the number of workers in the country. However, it also allows the highest possible number of voucher-based workers affected by the extension of the Directive to be considered. The use of top-down estimations was also considered: however the

201 This assumption is supported by Eurofound (2017) Aspects of non-standard employment in Europe. The study assessed the comparability of the patchy evidence provided by international studies and surveys on platform work.

202 As stated above, platform workers could legitimately be self-employed and therefore fall outside the scope of the Directive.

substantial differences of the legal frameworks and implementation in each Member States led to the decision to use a bottom-up approach.

The estimated number of voucher-based workers was split through between SMEs and

large companies using the European Working Conditions Survey. 203

Affected population. The affected population was estimated through the legal mapping, which allowed the Member States where voucher-based workers are currently not covered by the Directive to be identified.

Employees working less than one month

Employees working less than month include a variety of workers hired through different

temporary contracts. Official statistics for this category of workers are available from

the EU LFS from Eurostat, which provides the number of temporary workers

disaggregated by country and duration of the contract. 204 Data gaps for 2016 have been

identified in seven countries (AT, CY, DE, LT, LV, MT and RO). In these countries the

population has been estimated by multiplying the number of employees in each Member

State with the share of employees working less than one month in EU-28.

In addition, data have been broken down by size of company using the 6 th European

Working Condition Survey (EWCS) carried out by Eurofound, which provides

information on the share of SME and large companies by country. 205

Affected population. The affected population was estimated through the legal mapping, which allowed the Member States where employees working less than one month are currently not covered by the Directive to be identified.

Employees working no more than 8 hours a week

Employees working no more than 8 hours per week tend not to be identified separately in

labour market statistics. Therefore it has been necessary to estimate the number of

workers falling under this category. It was done using two main sources of information:

(i) the EU Labour Force Survey from Eurostat and (ii) the 6 th EWCS, which collects microdata on the number of hours work per week by employees in their main job. 206 The

share of people working between one and seven hours has been multiplied by the total

number of employees broken down by size class provided by Eurostat.

Affected population. The affected population was estimated through the legal mapping, which allowed the Member States where employees working less than one month are currently not covered by the Directive to be identified.

Casual workers

203 Q16b of the survey: “How many employees in total work in your [IF Q15a ANSWERED: company or organisation] [IF Q15b ANSWERED: business]?”

204 Temporary employees by duration of the contract (1000), lfsa_etgadc

205 Q16b of the questionnaire: “How many employees in total work in your [IF Q15a ANSWERED: company or organisation] [IF Q15b ANSWERED: business]?”

206 Q24 of the questionnaire: “How many hours do you usually work per week in your main paid job?

The heterogeneous and often marginal nature of this form of employment makes it

difficult to collect robust and consistent data across countries. The availability of data is limited, usually difficult to compare and not always based on reliable data collection

methodologies. Therefore the on-call contracts (including zero-hour contracts) and

intermittent workers have been aggregated, providing estimates on the total number of

workers with an employment relationship of casual nature.

The approach used to determine the number of casual workers is based on the following

steps:

 the first step involved mapping Member States where casual employment

contracts are allowed. This evidence was collected through desk research and interviews with national stakeholders;

 subsequently, national level statistics were scrutinised to identify available

information on the number of casual workers. The main source of information was the national level statistics collected in the ICF national level reports

quantifying atypical employment in the EU Member States. 207

Some countries provided information in terms of number of contracts (e.g. SK) while other countries provided the number of people in working relationships of casual nature. This required to assume that each contract corresponded to a different person, i.e. if a country reported 300,000 contracts signed we assumed that it corresponded to 300,000 people. Given the nature of the work, typically “on-demand”, this is likely to overestimate the number of workers with such type of working relationships. However it allows the highest possible number of casual workers in Europe to be determined. As for voucher-based workers, comparable data on this form of employment are particularly difficult to collect. Casual workers are governed by different rules and definitions. Therefore the numbers collected and analysed during the study should be regarded as indicative.

Affected population. The affected population was estimated through the legal mapping, which allowed the Member States where employees working less than one month are currently not covered by the Directive to be identified.

• 3. 

  Impact assessment methods

The impact assessment looked at 5 policy measures:

 Measure 1: Extension of the Directive to atypical workers  Measure 2: Strengthening information package  Measure 3: Reducing the deadline for provision of information  Measure 4 New minimum rights for all workers  Measure 5: Enforcement

The following assumptions were used in establishing the impacts of the measures:

207 ICF (2016) “Social Pillar – Quantifying atypical employment in the EU Member States”, unpublished

Measure 1: extension of the Directive to atypical workers

Population covered National legal analysis determined whether national policy by any extension currently excludes certain types of workers from the scope of the

Directive.

The analysis then considered the number of workers currently

excluded that would be brought into the scope of the Directive:

 Employees <8 hours per week (in countries where they are

currently excluded by national legislation)

 Employees with contracts of <1 month (where currently

excluded)

 Employment relationship of a casual nature (where

currently excluded)

 Employment relationship of a specific nature (where

currently excluded)

Within the “casual” category, some types were specifically

identified: voucher-based, domestic workers, platform workers.

Data were gathered on the number of each type (see separate note). Some data on the number of employees of specific nature were gathered (Annex 1) but not taken into account in the analysis as they are relatively few in number and not always well defined. Many are covered by separate agreements, e.g. diplomats,

seafarers, civil servants.

Some assumptions were made as to whether some types of workers are i) currently covered, and ii) would be covered. This was necessary because of: i) lack of clarity/consistency over employment status of such workers; ii) uncertainty over current

legal coverage (e.g. if not specifically recognised in law). Cost of Costs of familiarisation are covered under Measure 2 familiarisation

Cost of providing  Number of workers that would be newly covered x unit cost statements  Unit cost based on REFIT, updated in line with inflation.

 Differentiation between SMEs and large employers  Upper bound and lower bound per statement (based on

REFIT) Measure 2: strengthening information package

Population covered  All companies except in countries that already require by any extension employers to provide all four additional types of

information (probation, social security, etc.): two countries excluded on this basis: Cyprus, Greece

Cost of  Unit cost based on unit costs of familiarisation for the familiarisation REFIT Working Time Directive evaluation – updated in

line with inflation

 Unit costs differentiated between MS  Unit costs differentiated between SMEs v large companies  Cost = number of employers x unit cost

Cost of providing Zero. Statements for existing employees would not need to be statements updated (unless employees request – expected to be negligible)

Measure 3: reducing the deadline for provision of information

Population affected  Number of firms in countries that have both not yet adopted - firms the option

 Differentiate: SMEs + large companies Population affected  Number of employees previously + newly covered by an – employees extension to the Directive and benefitting from the right to

a reduced deadline, i.e. in countries that have not reduced

the deadline to: i) 1 month; ii) 15 days; iii) 1 st day or earlier  Annual number of employees benefitting in practice (i.e.

new starters) = 10-20% of total employees covered (assumed rate of staff turnover per year)

 Number of employees <1 month who would benefit from a deadline of i) 15 days; ii) 1 st day compared to current

situation (i.e. employees who no longer leave without receiving one)

Cost of Additional costs to employers from shortening the deadline familiarisation assumed to be negligible because:

 22 Member States have already reduced the deadline to one

month or less

 Nearly all employers responding to the survey reported that

they already provide written statements within one month, even in the UK (where the deadline is two months)

 REFIT study found that shorter timeframes were not

considered by employers to be particularly burdensome Cost of providing Zero. This does not bring additional employees into the scope of statements the Directive.

For public authorities: Qualitative analysis only. Costs will mostly only arise due to provision of templates, information and

enforcement, and can be regarded as marginal. Measure 4 New minimum rights for all workers Measure 4.1 : reference hours, minimum advance notice)

Population affected  Number of firms in countries that have both not yet

• - 

  firms included casual workers under the Directive and not adopted the options

   Differentiate: SMEs + large companies Population affected  Number of employees in countries that have both not yet – employees included casual workers under the Directive and not

  adopted the options

   Estimated number: lower range + upper range Cost of  Unit cost based unit costs of familiarisation for Working familiarisation Time Directive evaluation – updated in line with inflation

   Unit costs differentiated between MS  Unit costs differentiated between SMEs v large companies  Cost = number of employers x unit cost

  BUT: cost of familiarisation is not then aggregated with other

  Measures (in order to avoid double counting).

Cost of providing Zero. These options by themselves do not bring additional statements employees into the scope of the Directive.

Measure4.2: exclusivity clauses

Population affected  Number of firms in countries that have both not yet

• - 

  firms included casual workers under the Directive and not adopted this option

   Differentiate: SMEs + large companies Population affected  Number of employees in countries that have both not yet – workers included casual workers under the Directive and not

  adopted this option

   Estimated number: lower range + upper range

Cost of As for Measures 4.1 familiarisation

Cost of providing Zero. This does not bring additional employees into the scope of statements the Directive.

Population affected  Assumed that the most important effects of prohibiting

– zero-hour exclusivity clauses will be for on-demand / zero hour workers contract workers rather than casual workers in general.

 National research identified countries that allow/prohibit

zero hour contracts

 National research identified number of zero hour contract

workers

 8 countries make wide use of zero-hour contracts  Number of zero hour contract workers gathered from

national sources in those 8 countries

 National research identified existing prohibitions on

exclusivity clauses in those 8 countries; Denmark thus excluded from the analysis (already prohibits exclusivity clauses)

Effects for zero Previous research in the UK identified:

hour workers (in 8  % of zero hour contract workers subject to exclusivity countries) clauses;

 % of those workers that would like a 2 nd job but are

prevented = 6%

 Median number of hours worked by zero hour contract workers with a 2 nd job = 7 hours per week

 Median hours per week that a zero-hours worker with a 2 nd

job is not available to the main employer (above and beyond usual hours) = 4 hours per week

 Reorganisation costs for main employer due to nonavailability of zero-hours worker with a 2 nd job = 14% of labour costs

 Total labour costs= 117.8% of wage costs

These figures were extrapolated to the other 6 countries where zero-hour contracts are used extensively and exclusivity clauses are

legal.

Low and high estimates of % zero hour workers prevented from

nd

getting a 2 job were adopted, taking the UK figure (6%) as a

central estimate.

On that basis, the following were calculated for the 7 countries

(thus accounting for most zero-hour workers in the EU):

 number of zero hour contract workers subject to exclusivity

clauses;

 number of those workers that would like a 2 nd job but are

prevented

 Increase in number of hours worked by zero hour contract workers getting a 2 nd job after prohibition of exclusivity

 Increase in number of hours that zero-hours workers with 2 nd jobs are not available to main employer

 Increase in reorganisation costs for main employers due to non-availability of zero-hours worker with a 2 nd job

 Increase in income for zero hour contract workers getting a 2 nd job after prohibition of exclusivity

 Increase in tax revenue from zero hour contract workers getting a 2 nd job after prohibition of exclusivity

 Increase in revenues for secondary employers of zero hour

contract workers after prohibition of exclusivity

Eurostat provided data on

 median hourly earnings (assumed low earners)  lower earner hourly labour costs  lower earner tax rates

Measure 4.3: possibility to request new form of employment

Population affected  Number of firms in countries that have both not yet

• - 

  firms included casual workers under the Directive and not

  adopted the options

   Differentiate: SMEs + large companies Population affected  Number of employees in countries that have not yet – workers adopted this option for all workers

Cost of As for Measures 4.1, 4,2 familiarisation

Cost of providing Zero. This option does not bring additional employees into the statements scope of the Directive.

Costs of replying to  Assumed that the main costs arise from atypical workers’ requests requests (i.e. number of requests by employees on standard

forms are minimal and in any case, many such workers already have a right)

 Estimate number of atypical workers brought into the

scope of the Directive and not yet having a possibility to request

 Previous research shows that 53% of fixed-term workers in Europe would prefer a permanent contract. 208

 Therefore, assume that 25% might ask in any one year (i.e.

each individual asks once about every two years).

 Unit cost of replying = same as cost of written statement  Total cost = number asking x unit cost

Measure 4.4: maximum period of probation

Population affected  Number of firms in countries that have not yet adopted the - firms option

 Differentiate: SMEs + large companies Population affected  Number of employees in countries that have not yet – workers having adopted this option

new right

Population affected  In practice, only new starters benefit

– workers  Assume labour turnover: 10-20% p.a. benefitting in  High estimate: 20% of employees in countries that have not practice yet adopted this option

 Low estimate: 10% of employees in countries that have not

yet adopted this option Cost of As for Measures 4.1, 4.2, 4.3. familiarisation

Cost of providing Zero. This option does not bring additional employees into the statements scope of the Directive.

Measure 5: Enforcement Qualitative analysis only. Some costs will mostly only arise to public authorities responsible for enforcement.

The measures were then combined into 4 policy packages or "scenarios":

Scenarios

• A. 

  Baseline (no change)

• B. 

  Extended scope and strengthened requirements (Options 1, 2, 3, 5)

• C. 

  Strengthened requirements and minimum rights (Options 2, 3, 4, 5)

• D. 

  Extended scope and strengthened requirements and minimum rights (Options 1, 2, 3, 4, 5)

The following assumptions were used to assess combined impacts of the scenarios.

Scenarios

A  Baseline

 Assumed that Member States make no revisions to current legislation

(otherwise, the baseline is unpredictable – Member States may choose to

208 European Parliament (2016), Precarious Employment in Europe: Patterns, Trends and Policy Strategies

include/exclude atypical workers, increase/reduce the deadline, etc. using their freedom within the parameters set by the Directive)

B  Measures 1, 2, 3, 5

 Assume firms only need to familiarise once, therefore total cost of

familiarisation is for Measure 2 which affects all firms

C  Measures 2, 3, 4, 5

 Assume firms only need to familiarise once, therefore total cost of

familiarisation is for Measure 2 which affects all firms

 Effects of Measures 5.1 to 5.4 are estimated only for casual workers that are

already within the scope of the Directive (due to non-application of exclusions by national legislation)

D  Measures 1, 2, 3, 4, 5

 Assume firms only need to familiarise once, therefore total cost of

familiarisation is for Measure 2 which affects all firms

• 4. 

  Some specific methodological assumptions

4.1. Effects of extended scope on undeclared work

The REFIT study concluded that the Directive supports the fight against undeclared

work. An extension of the scope of the Directive to more workers could be expected to

facilitate the shift of undeclared work into the formal economy. This may be because

employers choose to formalise arrangements that are currently informal or because workers feel empowered to demand a formal contract or because labour inspectorates are

better supported in their efforts to detect undeclared work.

Comprehensive data on the extent of undeclared work is, by definition, not routinely

collected by the relevant national authorities. However, a recent Eurobarometer survey

provides some important indications:

 4% of adults report that they have undertaken undeclared work in the past year; 209  The median income from such work is approximately €300 p.a. 210

The EU’s adult population aged 15-64 years is 333m. 211 This suggests that there are

around 13.3m people undertaking undeclared work (4% of the population). The total

income from such work is approximately €3 990mper year.

The available data suggest that about 140,900 domestic workers in 12 Member States

would be brought into the scope of the Directive, i.e. about 1% of the number of people undertaking undeclared work. Given that other types of undeclared work might also be

brought into the formal economy, it seems reasonable to consider that the total shift

209 Eurofound (2013), Undeclared work in the EU.

210 Own calculation based on the findings of the Eurobarometer survey. Some 69% of respondents gave a figure. Of those, 20% reported <€100, 9% reported €101-200, 17% reported €201-500, 11% reported €501- 1000, and 12% reported >€1,000. Based on those figures the median is approximately €300. 211 European Commission (2017), Employment and Social Developments in Europe 2017

might be between 1-3% of all undeclared work. If such income is taxed at the EU

average tax rate for a single person on 50% of the average national wage (20.66%) 212 ,

then the impact on tax revenues would be as shown in the table below.

Such figures should be treated as no more than an indication which is entirely reliant on

the robustness of the Eurobarometer survey data and the reliability of the (untested)

assumptions of 1-3% shift of undeclared work into the formal economy.

Percentage of undeclared work formalised as more workers come under the scope of the Directive 1% 2% 3%

Undeclared work €39.9m €79.8m €119.7m brought into the formal economy p.a.

Marginal tax rate 20.66% 20.66 20.66%

Increase in tax revenues €8.2m €16.5m €24.7m p.a.

It can be assumed that some of the workers brought into the formal economy will also

have been receiving social security benefits. It is impossible to know with any

uncertainty the extent to which such benefit payments would be reduced once the work is

formalised; this would depend on the conditions under which payments are made, i.e. as determined by eligibility rules of national systems, and also whether claims were

legitimate or bogus. However, one might assume that the loss of social security payments

must be sufficiently small to incentivise the worker to enter the formal economy. On that

basis, we could estimate that the reduction in social security payments would be

equivalent to no more than 10-20% of the value of undeclared work brought into the formal economy, in consequence of which savings of €4m-€24m might arise.

4.2. Familiarisation with the new legislation

This cost estimates the administrative action of employers familiarising themselves with

the new legislation. The cost associated to this action has been calculated for the

following policy packages:

 Extended scope and strengthened requirements (measures 1,2,3,5)

 Strengthened requirements and minimum rights (measures 2,3,4,5)

 Extended scope, strengthened requirements and minimum rights (measures

1,2,3,4,5)

It is assumed that familiarisation costs are one-off costs.

The approach used to estimate the quantity and price variables as well as the total cost is presented below.

212 Eurostat (Tax rate [earn_nt_taxrate]

Quantity .

To estimate the affected population of each scenario the following assumptions are made:

 It is assumed that the cost of familiarisation with the legislation is not cumulative,

i.e. the affected company will take the same time if it needs to familiarise itself only with one measure (e.g. measure 2) or with more than one measure (e.g. measures 2 and 3). As a result, the time required is considered a constant variable.

 It is assumed that in each company one person is in charge of learning about and

understanding the new legislation and is responsible for transferring this information to others.

The affected populations are calculated for each measure considered under the three policy packages considered. Measure 2 covers the largest population and the population likely to incorporate the affected populations of all the other options. In addition, measure 2 is incorporated in all the policy packages analysed under this study. As a result it was assumed that the number of affected companies under measure 2 represent the number of companies affected for the considered policy packages.

The legal mapping informed the population affected by measure 2. If a Member State did not incorporate all the additional information requirements analysed under this measure, it was assumed that all the companies operating in this Member State would be affected by the policy change. According to the legal mapping the population affected by the policy packages listed above includes all the companies operating in EU-28 Member States exept from Estonia and Greece. The table below provides the number of companies included in the affected population.

Member State Companies affected by the policy packages B, C and D

SMEs Large companies Total

AT 321,243 1,082 322,325 BE 601,252 901 602,153 BG 325,550 669 326,219 CZ 999,490 1,558 1,001,048 DE 2,396,998 11,354 2,408,352 DK 210,048 678 210,726 EE 67,952 172 68,124 ES 2,462,621 2,919 2,465,540 FI 228,515 581 229,096

FR 2,904,618 4,196 2,908,814 HR 146,256 381 146,637 HU 535,756 854 536,610 IE 232,726 448 233,174 IT 3,679,965 3,162 3,683,127 LT 186,131 337 186,468 LU 31,780 146 31,926 LV 109,442 200 109,642 MT 26,008 51 26,059 NL 1,090,703 1,540 1,092,243 PL 1,603,368 3,191 1,606,559 PT 806,396 787 807,183 RO 456,480 1,642 458,122 SE 685,459 974 686,433 SI 134,515 212 134,727 SK 428,993 531 429,524 UK 1,934,517 6,430 1,940,947

The second assumption listed above allows to change the unit of analysis: the number of workers reponsible for familiarising with the legislation corresponds to the number of companies affected.

Price

The price variable was estimated using as a reference the data from another impact assessment estimating a similar cost. 213 In this study the price was calculated by size of

company as well as the role of the staff and include an additional 25% for overheads. The

price provided by ICF was updated to 2016 values using the labour cost index from

Eurostat. The total price for a person to familiarise him/herself with the EU legislation is

provided in the table below.

Member State Price to familiarise with the legislation per person (in €) SMEs Large companies

AT 74.4 53.6

BE 69.2 49.0

BG 7.2 5.5

CY 34.1 26.5

CZ 17.8 12.9

DE 68.3 45.6

DK 76.2 51.0

EE 14.3 9.8

EL 25.7 18.3

ES 44.6 33.7

FI 62.6 43.9

FR 65.0 47.2

HR 26.9 20.7

HU 19.3 14.0

IE 62.6 43.0

IT 73.2 56.3

LT 11.1 8.0

LU 84.1 58.0

LV 12.8 8.0

MT 24.6 16.5

NL 54.4 35.3

213 ICF (2014) Study measuring the impacts of various possible changes to EU working time rules in the context of the Review of the Directive 2003/88/EC i

PL 20.6 15.2 PT 33.0 25.5 RO 22.2 16.3 SE 74.3 52.5 SI 27.8 18.5 SK 11.8 8.7 UK 72.0 50.8 Source: CSES and PPMI calculations based on ICF (2014)

Total cost of familiarisation with the new legislation.

The total cost of familiarisation with the new legislation is calculated by multiplying the

affected population by the price estimated in each Member State. A breakdown is

provided in the table below.

Member State Companies affected by the policy packages B, C and D (in €)

SMEs Large companies Total

AT 23,906,531.7 58,008.1 23,964,539.8 BE 41,634,643.8 44,117.4 41,678,761.1 BG 2,348,917.8 3,680.2 2,352,597.9 CZ 8,879,410.5 10,036.2 8,889,446.7 DE 81,839,409.8 258,943.5 82,098,353.3 DK 15,995,612.9 34,580.7 16,030,193.6 EE 971,842.0 1,692.8 973,534.8 ES 54,880,985.0 49,246.6 54,930,231.7 FI 14,316,380.5 25,482.2 14,341,862.8

FR 94,472,530.8 99,092.4 94,571,623.2 HR 3,934,200.7 7,887.1 3,942,087.8 HU 5,165,463.6 5,958.3 5,171,421.9 IE 14,577,457.8 19,254.0 14,596,711.8 IT 269,223,027.3 178,025.5 269,401,052.8 LT 1,028,774.1 1,340.2 1,030,114.3 LU 1,336,709.8 4,231.6 1,340,941.4 LV 699,280.3 798.0 700,078.3 MT 639,368.5 843.6 640,212.1 NL 29,682,500.6 27,170.9 29,709,671.4 PL 33,014,728.9 48,485.9 33,063,214.8 PT 13,308,693.4 10,031.7 13,318,725.1 RO 10,141,181.7 26,708.8 10,167,890.5 SE 50,929,978.2 51,174.7 50,981,152.9 SI 3,740,167.2 3,912.4 3,744,079.6 SK 5,048,403.0 4,640.8 5,053,043.8 UK 69,645,121.1 163,466.2 69,808,587.4 Total 851,361,321 1,138,810 852,500,131

The total amount is likely an overestimation as mostly companies needing to issue new

written statements will need to invest in familiarising with the new legislation.

4.3. Costs of issuing written statements

Cost of issuing written statements in the first year and recurring

This section estimates the cost for employers of complying with the provisions of the

Directive. In particular it focuses on the cost of issuing a written statement and transmitting it to the concerned employees.

The approach used to estimate the quantity and price variables as well as the total cost is

presented below.

Quantity

Overall, the total number of workers cannot be estimated by simply aggregating the number of workers estimated under each category because of the risk of double-counting.

It is very likely that some workers fall under more than one category, e.g. a platform

worker can also work less than eight hours a week.

As a result, the total number of workers newly covered by the Directive has been

estimated using the following assumptions. These assumptions are partly informed by the evidence collected during the study and partly based on reasonable assumptions: 214

 All platform workers are assumed to work less than eight hours  As reported in Eurofound (2017), casual workers and voucher-based workers

show clear overlaps. This is likely to be related to the intermittent and on-call nature of the work provided. To calculate the overall affected population of this option, it is assumed that 50% of the voucher-based workers are also included

under the category of casual workers.

 Given the nature of their work, domestic workers are likely to fall under the

following categories: (i) casual workers, (iii) voucher-based workers and (iii) employees with a contract of duration of less than one month. As a result, it is assumed that all the domestic workers affected by this option are already included

these three categories.

 In order to have a conservative approach, the three biggest categories of atypical

workers, i.e. employees working less than eight hours, employees with a contract of duration of less than one month and casual workers, are assumed to be

mutually exclusive.

Based on these assumptions, the total number of workers newly covered by the Directive

is between 2.4m and 3.2m.

214 More information on can be found in the document explaining how each category was estimated

Cost of issuing a written statement

The cost of issuing a written statement has been extrapolated from the REFIT study. The

REFIT study assessed this cost in three steps. The first two steps showed two different methods used to calculate the cost of issuing a written statement, while the third step

combined the two assessment methods.

The cost of issuing a written statement was calculated as follows:

 Assessed as average time per contract  Assessed as annual fixed costs

The first method was calculated as follows: the respondents of an employer survey were

used to estimate the time required by the employer to issue a written statement, which is

multiplied by the corresponding annual number of statements. This provides the time

spent on complying with the Directive for each type of contract per annum. These time

estimates are then multiplied by the hourly wage in the respective Member State using

data from Eurostat on national average wages. This cost per company is then divided with the number of employed persons in the company to calculate the cost per employed

person. The second method used by the REFIT study reported the average costs of

companies considering the cost of complying with the obligation of the Directive as

annual fixed cost. This information was collected from a panel survey carried out in eight

Member States.

The third step of the REFIT study consisted in merging the two types of estimates into

one overall cost assessment to include a larger and less biased share of the survey

population.

The table below provides an overview of the average annual cost per contract in EURO

estimated with the two methods.

Method 1

(average time per Method 2

contract) (annual fixed costs)

Merged approach

Micro enterprises 22 198 44 Small enterprises 13 156 57 Medium

enterprises 18 127 57

Large enterprises 10 45 25

Source: REFIT

In the current study, SMEs are defined as companies with a number of workers between

1 and 249 and differ from the data reported in the REFIT study. As a result, it was necessary to weight the data collected in the REFIT study to estimate the average annual

cost for SMEs and large companies. 215

The costs used are provided in EURO in the table below.

Method 1

(average time per Method 2 Merged approach

contract) (annual fixed costs)

SMEs 18.1 153.5 52 Large enterprises 10 45 25 Weighted average 17.1 128.7 47.9

Total cost for written statements provided to employees newly covered by the Directive

The cost of issuing a written statement is included under option 1, which aims to extend

the scope of the Directive. Under this option, employers will have to provide a written statement for each existing worker currently not covered by the Directive and for each

new hire. In this study, the first group of workers are considered one-off costs whilst the

latter are calculated as recurring costs.

The one-off cost is calculated by multiplying the total number of atypical workers not

covered by the Directive with the price estimated for each written statement. Based on the assumptions listed above, the total number of workers that would be newly covered

by the Directive is estimated between 2.4m and 3.2m. This is multiplied by the weighted

average of the merged approach, i.e. EUR 47.9.

The total cost of extending the scope of the Directive is therefore between EUR 114m

and €152m.

Recurring costs will be faced by employers and depend on the number of workers hired

every year. The recurring costs have been calculated assuming different percentages of

staff turnover per year: the table below provides the annual estimated cost for both

scenarios. The costs are estimated in millions of EUR.

Assuming turnover of 10% Assuming turnover of 20%

Annual costs between €11.4m and €15.2m between €22.7m and €30.3m

• 5. 

  Multi-criteria analysis

We follow an approach to complete the impact assessment through multi-criteria analysis

of the possible scenarios, which is consistent with the Better Regulation Guidelines (Tool

#63). The results of the multi-criteria analysis are presented in a performance matrix

comparing the options against the various criteria. Given the diversity of impacts, we use

215 The REFIT study reported the size of the population providing information for each size of company. This allowed calculate the weighted average of the responses provided in the REFIT study

a simple form of grading using qualitative values reflecting performance (i.e., +++, ++,

+, 0, -, --, ---). The grading requires a balanced assessment of the different impacts, but the underlying analysis should be able to support the judgments made.

The criteria will be the overall economic, social, legal and fundamental rights impacts

listed above.

Weights are not used to provide overall scores for different scenarios. Instead, the table

simply presents the relative scores of each scenario.

The final analysis uses a matrix comparing five scenarios against the criteria. The tables below present:

 scenarios  MCA matrix  legend to explain the score against each criterion

The multicriteria analysis undertaken by the contractors for the study was reviewed and

completed in light of Commission's own research, notably into the impacts of the training

provision and enforcement.

Scenarios

• A. 

  Baseline (no change)

• B. 

  Extended scope and strengthened requirements (Options 1, 2, 3, 4)

• C. 

  Strengthened requirements and minimum rights (Options 2, 3, 4, 5)

• D. 

  Extended scope and strengthened requirements and minimum rights (Options 1, 2, 3, 4, 5)

Criteria for A B C D comparing

options

Labour market impact

Effect on working conditions

Effect on public finances

Competitiveness

• & 

  productivity

Ease of application & enforcement

Fundamental rights

Legend: Labour market impact

+++ All casual workers have the right to get a second job with another employer (if they wish and if such work is available)

AND: negligible displacement of workers covered by the Directive by workers

not covered

++ A majority of casual workers have the right to get a second job with another employer (if they wish and if such work is available)

AND: negligible displacement of workers covered by the Directive by workers

not covered

• + 

  A minority of casual workers have the right to get a second job with another employer (if they wish and if such work is available)

  AND: negligible displacement of workers covered by the Directive by workers

  not covered

0 No increase in the proportion of casual workers have the right to get a second job with another employer

AND: negligible displacement of workers covered by the Directive by workers

not covered

• - 

  A minority of employers of casual workers have the right to include exclusivity clauses in the contracts of casual workers

-- A majority of employers of casual workers have the right to include exclusivity clauses in the contracts of casual workers

OR: Non-negligible displacement of workers covered by the Directive by

workers not covered

--- All employers of casual workers are entitled to include exclusivity clauses in the contracts of casual workers

AND: Non-negligible displacement of workers covered by the Directive by

workers not covered

Legend: Effect on working conditions

+++ Majority of workers not yet covered are brought into the scope of the Directive AND: Majority of casual workers enjoy improved basic rights

AND: All workers covered have right to more information

++ EITHER: Majority of workers not yet covered are brought into the scope of the Directive

OR: Majority of casual workers enjoy improved basic rights AND: All workers covered have right to more information

• + 

  EITHER: Minority of workers not yet covered are brought into the scope of the Directive

  OR: Minority of casual workers enjoy improved basic rights AND: All workers covered have right to more information

0 Zero net effect

• - 

  EITHER: A minority of workers currently covered are removed from the scope of the Directive

  OR: Ability of a minority of workers to enforce rights or right to receive

  information is weakened

-- EITHER: Majority of workers currently covered are removed from the scope of the Directive

OR: Ability of majority of workers to enforce rights or right to receive

information is weakened

--- Majority of workers currently covered are removed from the scope of the Directive

AND: Ability of majority of workers to enforce rights or right to receive

information is weakened

Legend: effect on public finances

+++ Increase in tax revenues/savings likely to greatly exceed cost of transposition, enforcement, etc.

++ Increase in tax revenues/savings likely to slightly exceed cost of transposition, enforcement, etc.

• + 

  Increases in tax revenues/savings in social security are likely to offset cost of transposition, enforcement, etc.

0 No increase in tax revenues

• - 

  Slight loss of tax revenues

-- Substantial reduction in tax revenues

--- Excessive reduction in tax revenues

Legend: competitiveness and productivity

+++ Majority of affected employers likely to enjoy increased in staff loyalty/retention or workforce productivity, no adjustment costs and administrative costs are “business-as-usual”

AND: Increase in revenues of “second” employers of casual workers exceeds reorganisation costs of “first” employers due to non-availability of such

workers

++ Majority of affected employers likely to enjoy increased in staff loyalty/retention or workforce productivity and administrative costs are “business-as-usual”

OR: Increase in revenues of “second” employers of casual workers exceeds reorganisation costs of “first” employers due to non-availability of such

workers

• + 

  Minority of affected employers likely to enjoy increased in staff loyalty/retention or workforce productivity and administrative costs are “business-as-usual”

AND: No change in revenues of “second” employers of casual workers and no change in reorganisation costs of “first” employers due to non-availability of

such workers

0 Limited effect on staff loyalty/retention or workforce productivity but administrative costs are “business-as-usual”

AND: No change in revenues of “second” employers of casual workers and no change in reorganisation costs of “first” employers due to non-availability of

such workers

• - 

  Minority of affected employers likely to face reduced staff loyalty/retention or

workforce productivity and administrative costs are “business-as-usual”

AND: No change in revenues of “second” employers of casual workers and no

change in reorganisation costs of “first” employers due to non-availability of

such workers

-- Majority of affected employers likely to face reduced staff loyalty/retention or workforce productivity and administrative costs are substantial

OR: Increase in reorganisation costs of “first” employers due to nonavailability of casual workers exceeds increase in revenues of “second” employers of casual workers increase in revenues of “second” employers of such workers

--- Majority of affected employers likely to face reduced staff loyalty/retention or workforce productivity and adjustment costs and administrative costs are substantial

AND: No change in revenues of “second” employers of casual workers and no change in reorganisation costs of “first” employers due to non-availability of

such workers

Legend: application and enforcement

+++ Ability of Member States to enforce workers’ rights is considerably strengthened

AND: Costs of transposition, enforcement, etc. are not substantial for Member

States

++ Ability of Member States to enforce workers’ rights is considerably strengthened

OR: Costs of transposition, enforcement, etc. are not substantial for Member

States

• + 

  Ability of Member States to enforce workers’ rights is slightly strengthened

0 No difference in ability of Member States to enforce workers’ rights Costs of transposition, enforcement, etc. are not substantial for Member States

• - 

  Ability of Member States to enforce workers’ rights is slightly weakened

-- Ability of Member States to enforce workers’ rights is considerably weakened OR: Transposition, enforcement, etc. are cumbersome and expensive for Member States

--- Ability of Member States to enforce workers’ rights is considerably weakened AND: Transposition, enforcement, etc. are cumbersome and expensive for Member States

Legend: fundamental rights

+++ Revision of the Directive considerably strengthens support for fundamental rights for a majority of workers

++ Revision of the Directive considerably strengthens support for fundamental rights for a minority of workers

• + 

  Revision of the Directive slightly support for fundamental rights for a minority of workers

0 No impact

• - 

  Revision of the Directive slightly weakens current support for fundamental rights

-- Revision of the Directive considerably weakens current support for fundamental rights

--- Revision of the Directive infringes fundamental rights

The following criteria are used for the assessment of Coherence:

Legend: European Pillar of Social Rights

+++ Revision of the Directive considerably supports numerous Pillar principles

++ Revision of the Directive considerably supports some Pillar principles

• + 

  Revision of the Directive slightly supports some Pillar principles

0 No impact

• - 

  Revision of the Directive goes slightly against some Pillar principles

-- Revision of the Directive goes against numerous Pillar principles

--- Revision of the Directive goes considerably against numerous Pillar principles

Legend: EU social acquis

+++ Revision of the Directive considerably strengthens complementarity and coherence with most relevant EU social acquis

++ Revision of the Directive considerably strengthens complementarity and coherence with some elements of relevant EU social acquis

• + 

  Revision of the Directive slightly strengthens complementarity and coherence with some elements of relevant EU social acquis

0 No impact

• - 

  Revision of the Directive slightly weakens complementarity and coherence with some elements of EU social acquis

-- Revision of the Directive considerably weakens complementarity and coherence with most EU social acquis

--- Revision of the Directive makes it incoherent with EU social acquis

A NNEX 5: G LOSSARY

Term or acronym Meaning or definition

CJEU Court of justice of the European Union

ECB European Central Bank

ESDE "Employment and Social Developments in Europe"

Eurofound European Foundation for the Improvement of Living and Working Conditions

EWCS European Working Conditions Survey

HR Human Resources

IA Impact Assessment

ICT Information and communications technology

ILO International Labour Organization

LFS European Union Labour Force Survey

MCA Multi-criteria analysis

MS Member States

NGOs Non-governmental organisations

OECD Organisation for Economic Co-operation and Development

REFIT European Commission's Regulatory Fitness and Performance programme

RSB Regulatory Scrutiny Board

SBS European Union structural business statistics

SES European Union Structure of Earnings Survey

SMEs Small and medium-sized enterprises

SWD Staff Working Document

TA(W) Temporary Agency (Workers)

TFEU Treaty on the Functioning of the European Union

WSD Written Statement Directive

A NNEX 6: F URTHER INFORMATION ON RELEVANT NEW AND

NON - STANDARD FORMS OF WORK

Note on terminology

Across the document, different categories of employment are presented.

Non-standard employment is described by the ILO 216 as employment arrangements which deviate from the 'standard employment relationship' (full time, of indefinite length, part of a subordinate relationship between an employer and an employee). It includes temporary employment (fixed term, casual, seasonal work), part-time and on-call work, multi-party employment relationship (subcontracted labour, temporary agency work) and disguised employment (misclassified self-employment but also dependent self-employment).

Atypical work (Eurofound): employment relationships not conforming to the standard/ ‘typical’ model (full-time, regular, open-ended employment with a single employer over a long time span).

New forms of employment (Eurofound 217 ) include employee sharing, job sharing, interim management, casual work (including intermittent work and on-call work), ICT-based mobile work, voucher-based work, portfolio work, crowd employment, collaborative employment. These forms include elements of non-conventional workplaces, support of ICT, different employment relationship organisation, different work patterns, networking. Eurofound underlines that there is currently no shared understanding of what constitutes ‘new forms of employment’.

Precarious work is described by the European Parliament Policy Department A 218 as the intersection of: insecure employment (e.g. fixed term or temporary agency work), unsupportive entitlements (i.e. few entitlements to income support), vulnerable employees (i.e. few other means of subsistence). "Precarious work" does not have a universally-accepted definition in

Europe and that it is always relative.

Non-regular employment (OECD publications): work in all forms of employment that do not benefit from the same degree of protection against contract termination as permanent workers. 219

Some specific forms of work are also referred to:

 Casual work

According to Eurofound's definition 220 , casual work is a type of work where the employment is

216 Non-standard employment around the world: Understanding challenges, shaping prospects International Labour Office – Geneva: ILO. 2016.

217 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg.

218 European Parliament, Policy Department A, (2016) Precarious Employment: Patterns, Trends and Policy Strategies in Europe.

219 OECD Employment Outlook 2014, Non-regular employment, job security and labour market divide, p. 141- 209.

not stable and continuous, and the employer is not obliged to regularly provide the worker with work, but has the flexibility of calling them in on demand; it is work which is irregular or intermittent with no expectation of continuous employment. Workers’ prospects of getting such work depend on fluctuations in the employer's workload.

Eurofound divides casual work into two main categories:

• - 

  On-call work (including zero-hours contracts)

• - 

  Intermittent work

The first, on-call work, involves a continuous employment relationship maintained between an employer and an employee, with the option for the employer to call the employee in as and when needed. In some countries employers are obliged to indicate a minimum number of hours, while in others they are not obliged to ever call the worker (i.e. zero-hours contracts). The second category of casual work, intermittent work, involves an employer approaching workers on a regular or irregular basis to conduct a specific task, often related to an individual project or seasonal work.

 Crowd employment/platform work

‘Platform work' is not formally defined at EU level. However, the Commission Communication “A European agenda for the collaborative economy” 221 defines the concept of collaborative economy, the presence of an online platform being a necessary element of the definition.

Platform work is carried out by service providers who can be professional or not; they can be self-employed persons or workers.

Eurofound (2015) defines crowd employment as an employment form that uses an online platform to enable organisations or individuals to access an indefinite and unknown group of other organisations or individuals to solve specific problems or to provide specific services or products in exchange for payment.

Crowd workers are very rarely, if ever, employed by the platform. Instead, they predominantly operate on a self-employed basis as independent contractors and outside the scope of employment legislation. Eurofound notes that crowd employment platforms have to follow general legal frameworks such as commercial codes, civil codes, consumer protection acts and data protection legislation, but there are no legal or collectively agreed frameworks specifically addressing crowd employment in Europe. 222

 Domestic work

ILO defines “domestic work” in Article 1 of the Domestic Workers Convention, 2011 (No. 189): (a) the term “domestic work” means work performed in or for a household or households;

(b) the term “domestic worker” means any person engaged in domestic work within an employment relationship;

(c) a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker.

 Temporary Agency work

220 Eurofound (2015), page 46

221 COM(2016) 356 final i

222 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg.

'Temporary Agency Work' is a form of work where the worker has a contract of employment or an employment relationship with a temporary-work agency with a view to be assigned to a user undertaking to work temporarily under its supervision and direction. 223

 Voucher-based work

Eurofound defines 'voucher-based work' as 'a form of employment where an employer acquires a voucher from a third party (generally a governmental authority) to be used as payment for a service from a worker, rather than cash'. 224 This type of employment has been introduced in several Member States as a way to better regulate domestic work and improve protection of domestic workers, or tackle the problem of undeclared work in agriculture.

 Paid traineeship

According to the EU Quality Framework for Traineeships, 'traineeships' are understood as a limited period of work practice, whether paid or not, which includes a learning and training component, undertaken in order to gain practical and professional experience with a view to improving employability and facilitating transition to regular employment.

 Bogus self-employed

‘Bogus’ or ‘false’ self-employment refers to the phenomenon of workers who would usually meet the legal definition of an employee but instead are registered as self-employed . In this case, the subordinate employment relation is disguised as autonomous work, usually for fiscal reasons, or in order to avoid the payment of social security contributions and thereby reduce labour costs, or to circumvent labour legislation and protection, such as the provisions on dismissals . This can be characterised as an employer abuse of contractual relations, and these workers are also, compared to employed workers, at a higher risk of precariousness due to a lack of social security and pension coverage and a lack of access to some employment rights. 225

223 Directive 2008/104/EC i, Article 3 (1) (c)

224 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, p.82.

225 "Precarious employment in Europe, Part 1: Patterns, trends and policy strategy"- study for the EMPL Committee, 2016

Figure 1. Percentage of temporary employees who could not find a permanent job as a

share of all employees (permanent and temporary, bars) and of temporary employees

only (line), by age, EU-28, 2006-2016

Note: Major break in series in 2005 so not possible to compare with earlier years. 'No answer' category was not included Source: Own calculations based on EU-LFS.

Figure 2. Share of temporary contracts and transitions from temporary to permanent

Source: Eurostat.

Figure 3. Underemployment in the EU Figure 4: Average share of employees receiving training in Europe 2010 and

2015 by type of employment

Source: EWCS 2010, 2015, weighted results, calculation Werner Eichhorst and Verena Tobsch.

Table.1 Summary analysis of relevant new and non-standard forms of employment.

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 Casual Tourism Partially Very low (though national Diverse trends: On-call work is work: on(esp. policies and HR practices On-call work illegal in AT, HU, call, hospitality vary) has emerged or LV, LT and SL. It including and grew in does not exist in zero hours catering), According to Eurofound: importance law or practice in

agriculture low levels of job and over the last EE, DE, LU, MT , health income security, poor decade in IE, and PT.

4-6 and social social protection, little IT, NL, SE and million 227 Low-skilled care, access to HR measures the UK.

228 Zero-hours work is

workers, women, education and, in many cases, dull or Intermittent illegal in AT and young workers repetitive work. The high work LV. It does not degree of flexibility is decreased e.g. exist in law or valued by some workers, in BE and SK, practice in EE, LU, who benefit from an while it MT, PT.

Casual Agricultur Partially improved work–life increased in It does not exist in

work: e, tourism, balance, but is reported as HU and RO 229 law or practice in

intermitten audioexcessive for the majority in LU and MT. t visual of the casual workers, who

sector would prefer more

226 See Table 1 in section 2.2.1 for a list of MS extending or not the coverage of the WSD to specific groups of workers.

227 Based on the external study "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI. – national research in 28 MS. Data very difficult to collect and compare.

228 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, p.46

229 Ibid, p. 49-52

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 ('intercontinuity. mittent du spectacle' in FR)

Involuntar 27.7% of Women, younger Yes Medium Has increased Significant y part-time all partworkers, less from 22.4% in differences across

time educated workers Part-time Work Directive 2007. 233 MS: share of workers and – especially – 97/81/EC applies, which is involuntary part(2016)

230 workers new to a specific tool to ensure time in all parttheir

 current job that part-time workers time employment is Around 7 (tenure < 1 year), should generally not be below 10% in BE, million in those on temporary treated in a less favourable MT, NL and ET – the euro contracts and in manner than comparable while over 60% in area alone low-paid permanent and/or full-time ES, IT, CY and

in 2016. 231 professions 232 staff concerning EL. 234

employment conditions unless there are objective reasons for different treatment.

However, working fewer

230 EU LSF

231 Eurostat and ECB calculations/

232 Eurofound (2017), Aspects of non-standard employment in Europe, Eurofound, Dublin

233 EU LSF

234 "Precarious employment in Europe, Part 1: Patterns, trends and policy strategy"- study for the EMPL Committee, 2016, p.75-78

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 hours than necessary results in inadequate income and consequently may lead to precariousness.

Work According Women (though Domestic Partially Low Has increased Workers working between 1- to EU-LFS: also increasingly work, from 3.4 1-8 hours per week 8 hours per 3.8 million men), young cleaning, They may also be million in may be voluntary

week (2.1% of workers and accommoexcluded from protections 2005 237 or involuntary – in

working workers above 64 dation, offered by the Part-time the latter case they age years. 236 hospitality Work Directive 97/81/EC i, are a subcategory population , hotel and to the extent that their of the "involuntary in the EU – catering, employment relationship is part-time" category

2016) 235 care, qualified as on a casual above.

security basis.

External and

study constructi

estimate: on.

almost 4

million

Work on 4.8% of all Partially Medium Has increased

contracts temporary from 1.8%

of less than contracts in To some extent, such (0.37 million)

235 calculations based on EU-LFS

236 Eurofound (2017), Aspects of non-standard employment in Europe, Eurofound, Dublin

237 calculations based on EU-LFS

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226

1 month 2016 (1.275 workers may be protected in 2002 239 million) 238 through the Fixed-Term

Work Directive Estimates 1999/70/EC and other in the relevant labour law external directives. study: 1.6 million.

Crowd 0.5-2% of Younger and better High as Mainly Low An exponential work/ the educated than well as out of increase in the platform workforce average; often a lowscope Earnings are often allowed last 5 years. work according marginal or skilled (mainly to fall below the applicable

to different complimentary sectors operating minimum wage.

240

studies. activity as self Moreover, there is employe generally no provision for

1.1-2.2 d) paid leave or breaks, and million workers bear all the costs according of social security to the payments, or risk not estimations being covered by social in the security in the event of external disability, job loss or

238 calculations based on EU-LFS

239 calculations based on EU-LFS

240 Inter alia "The Future of Work in the ‘Sharing Economy", Codagnone et al, JRC (2016) and Eurofound (2017), Aspects of non-standard employment in Europe, Eurofound, Dublin

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 study. retirement. Domestic Around 3 Predominantly Household Yes - if Very low – especially if Likely to grow High diversity

workers million 241 women (89%) – work, employe lack of employment because of across the EU: in

often migrant care, d under a contract ageing some MS (ES, FR, women, for whom gardening, contract populations IT) very significant domestic work is a security or Low wages. Lack of and increasing numbers, in others main entry point employm protection against illness, labour (Nordic, Eastern)

into the labour ent occupational accidents and participation of very uncommon. market relations workplace hazards, lack of women. hip access to social security According to the defined benefits, such as maternity European by protection and pension Federation for national schemes. Furthermore, Services to law. domestic work is Individuals (EFSI), However characterised by an in 2010, the share , unspecified length of of informal work in majority employment and the market for operate uncertainty about future personal services under employment. Those was 70% in IT and informal characteristics are ES; 50% in the agreeme exacerbated in case of UK; 45% in DE;

nt – undeclared work. 242 40% in the NL;

241 Research in the context of the external study "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

242 Invisible jobs. The situation of domestic workers, European Parliament briefing, December 2015

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 often 30% in FR and BE; undeclar and 15% in SE. 243 ed. .

Temporary 1.7% of EU Young people (15– Mainly Yes, in Medium Has increased

Agency workforce 24) had a TA lowan from 1.2% in

(TA) 244 employment rate skilled overwhel TA workers are covered 1999 to 1.7%

Workers (2.9%) more than (manual) ming by a specific directive of workforce double that of and majority 2008/104/EC aiming at in 2016 – workers aged 25– medium of MS ensuring equal pay and growing trend 54 (1.3%). The skilled conditions with other in some MS

incidence of TA profession employees. work among the s low-skilled (1.8 %) (clerical). However, overall, a is also more than negative perception of job double that of the security among TA high-skilled (0.8 workers. Diverse situation %). 245 across MS: in at least 8 MS open-ended contracts between the agency and the worker were the dominant contractual

243 Invisible jobs. The situation of domestic workers, European Parliament briefing, December 2015

244 Eurostat, [lfsa_qoe_4a6r2] - 2016

245 EU-LFS data - Eurobase lfsa_qoe_4a6r2 - 2012

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 form, in others it was fixed-term contracts. 246

Voucher Some 2 Similar to domestic Household Partly Medium While the There is a

based million 247 workers services, volume of significant number

workers care, Voucher-based work domestic work of MS where agriculture entails some job is likely to voucher-based

insecurity, social and grow, the work is not

professional isolation, and numbers of specifically

limited access to HR voucher-based recognized by

measures and career workers will legislation/not

development, but offers depend on the widely used (CY,

workers the opportunity to legislative CZ, DE, DK, EE,

work legally, better social developments ES, HU, IE, LU,

protection and perhaps in MS. LV, MT, PL, PT,

better pay. 248 RO, SE, SK, UK)

Paid 46% of Young people (18- All sectors Partially Medium. Member States trainees young 35 years old) are

people (18- In some Various studies and increasingly

35 years MS they surveys 250 confirmed promoting

old) had are concerns about the quality internships as

246 OECD Employment Outlook 2014, Non-regular employment, job security and labour market divide

247 External study "Study to support Impact Assessment on the Review of the Written Statement Directive" by CSES and PPMI.

248 Eurofound (2015), New forms of employment, Publications Office of the European Union, Luxembourg, p.82.

250 Interns Revealed, European Youth Forum, 2011; Eurobarometer on traineeships, 2013.

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 done a recogniz of traineeships, an effective traineeship ed as particularly with regard to tool in tackling - 4 out 10 employe insufficient learning rising youth received es, content and substandard unemployment some therefore working conditions. and ensuring financial are in the their school-tocompensati scope of The Eurobarometer survey work on during the on traineeships in 2013 251 transition. their most Directive showed that 1 in 5 trainees Likewise, recent . In felt that their working employers traineeship. others conditions were not on a increasingly 249 they fall par with regular see traineeship

outside employees in terms of not only as a of the equipment, working hours, prerequisite for scope workload and treatment. labour market (though entry, but also in some as a cheap or cases even free might labour that can have the substitute

right to regular staff. 252

informati on

249 Eurobarometer 378: http://ec.europa.eu/public_opinion/flash/fl_378_en.pdf

251 Eurobarometer 378: http://ec.europa.eu/public_opinion/flash/fl_378_en.pdf

252 European Commission (2012). Study on a comprehensive overview on traineeship arrangements in Member States. Final Synthesis Report.

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 similar to WSD provision ).

Contracts Agricultur Partially Unknown. or e, employmen seafarers, Very diverse groups of t family workers across the 14 MS relationshi jobs, which use the exclusion ps of temporary from the WSD on the basis specific student of "Contracts or nature jobs employment relationships

of specific nature" Bogus self In 2015 Self Bogus self-employment Between 2010 employed dependent employe can be characterized as an and 2015 the

selfd are employer abuse of overall share employmen outside contractual relations, and of selft amounted of scope these workers are also, employed in to 0.5% of of the compared to employed total all Directive workers, at a higher risk of employment employmen . precariousness due to a has remained t in the EU- lack of social security and rather stable,

253

• 28. 

  No Workers pension coverage and a except in

253 European Working Conditions Survey for EU-28. Dependent self-employed defined as : workers who are (1) self-employed without employees, (2) have just one client and (3) obtain more than 75% of their income from that client

Type of Numbers Usual profiles Sectors Covered Job Trends Other comments employmen by predictability/security t current

WSD? 226 data wrongly lack of access to some Greece which available as classified employment rights. 254 recorded a to the as selfsubstantial proportion employe increase. of those d should The number who could however and share of be fall self-employed categorized under the without as bogus scope. employees selfhave been employed. growing in a

number of Member States.

254 "Precarious employment in Europe, Part 1: Patterns, trends and policy strategy"- study for the EMPL Committee, 2016

Tables 2-7: Estimated numbers of some relevant categories of nonstandard

workers

Table 2. Estimated number of casual workers

Estimated number of casual workers (in thousands)

Country Lower range Upper range

Austria 345.0 345.0

Belgium 6.5 6.5

Bulgaria 62.3 75.0

Czech Republic 30.1 130.4

Germany 324.0 324.0

Denmark 49.7 59.8

Estonia 13.8 13.8

Greece 94.0 113.0

Spain 400.0 400.0

Finland 83.0 83.0

France 106.0 106.0

Croatia 1.5 1.5

Hungary 119.6 119.6

Ireland 500.0 500.0

Italy 120 120

Netherlands 378 777.0

Portugal 90.1 108.4

Romania 516.0 516.0

Sweden 134.1 134.1

Slovenia 36.1 36.1

Slovakia 416.0 416.0

United Kingdom 516.0 1422.0

Total 4,341.9 5,807

Source:Own CSES PPMI calculations Table 3 Estimated number of employees working less than eight hours

Estimated number of employees working less than eight hours

(in thousands)

Country Micro companies

• & 

  SMEs (<250 Large companies (>=250

employees) employees)

Total

AT 82.82 65.03 147.85

BE 29.78 32.49 62.27

BG 7.78 2.67 17.73

CY 6.20 3.70 9.91

CZ 34.06 7.95 42.01

DE 453.47 233.26 686.72

DK 44.56 72.23 116.79

EE 6.31 3.36 9.66

EL 27.83 30.69 58.53

ES 113.02 149.25 262.26

FI 47.97 31.92 79.89

FR 436.76 97.06 533.81

HR 22.58 7.36 29.93

HU 40.54 33.87 74.41

IE 54.04 14.54 68.58

IT 312.39 91.25 403.63

LT 25.12 5.27 30.39

LU 0.83 0.81 1.64

LV 4.42 4.65 9.07

MT 2.63 4.30 6.93

NL 211.05 69.43 280.48

PL 215.78 83.66 299.45

PT 32.83 8.97 41.80

RO 38.95 20.18 59.12

SE 61.43 50.35 111.78

SI 12.20 7.11 19.31

SK 6.70 10.22 16.92

UK 155.15 265.19 420.34

Source: Own CSES PPMI calculations Table 4 Estimated number of employees working less than one month

Estimated number of employees working less than one month

(in thousands)

Country Micro companies

• & 

  SMEs (<250 Large companies (>=250

employees) employees)

Total

AT 14.0 11.0 25.1 BE 43.9 47.9 91.8 BG 7.7 1.37 9.1 CY 1.3 0.8 2.1 CZ 1.1 0.25 1.3 DE 164.5 84.6 249.1 DK 4.8 7.7 12.5 EE 1.1 0.6 1.7 EL 3.4 3.7 7.1 ES 82.3 108.6 190.9 FI 13.4 8.9 22.3 FR 434.7 96.6 531.3 HR 10.8 3.51 14.3 HU 11.0 9.15 20.1 IE 1.9 0.51 2.4 IT 61.1 17.86 79 LT 6.6 1.38 8.0 LU 0.9 0.89 1.8 LV 2.5 2.65 5.2 MT 0.4 0.70 1.1 NL 4.8 1.58 6.4 PL 53.0 20.56 73.6 PT 45.1 12.32 57.4 RO 27.9 14.47 42.4 SE 53.0 43.43 96.4 SI 1.8 1.07 2.9 SK 6.7 10.21 16.9 UK 11.6 19.81 31.4 Total 1071.3 532.2 1603.5

Source: Own CSES PPMI calculations

Table 5 Estimated number of domestic workers

ILO study National research Estimated population

Country Share of domestic workers in total Percentage of No. of workers

employment employees (in thousands)

AT 0.2% 5% of employees* 132.8

BE 0.9% 40.9

BG 0.2% 1% of workers* 16.0 CY 4.4% 5% of workers* 15.5 CZ 0.1% 1% of employees* 23.4 DE 0.5% 1% of employees 282.0

DK 0.1% 2.7

EE 5.0

EL 2% 3% of employees* 72.2 ES 4% 4% of employees 666.9

FI 0.3% 7.1

FR 2.3% 2% of employees* 534.4

HR 0.1% 1.8

HU <0.1% 8.7

IE 0.5% 9.8

IT 1.8% 5% of employees* 629.8

LT 0.1% 1.3

LU 1.4% 3.6

LV 0.4% 9% of employees* 35.6

MT 0.1% 0.2

NL 0.1% 8.2

PL 0.1% 15.9

PT 3.4% 2% of employees* 44.8

RO 0.3% 24.4

SE 39.0

SI 0.1% 0.9

255

SK 0.2% 9% of employees 96.7

UK 0.6% 182.5

255 Based on reporting by households employing domestic workers, thus heavily under-reported

Total 2902.4

Source: Own CSES PPMI calculations

Table 6 Estimated number of platform workers

Country Estimated number of platform workers

(in thousands)

Lower bound Upper bound

AT 20.71 41.43 BE 22.70 45.41 BG 14.77 29.54 CY 1.77 3.54 CZ 25.08 50.16 DE 200.83 401.65 DK 13.74 27.48 EE 3.06 6.12 EL 18.05 36.10 ES 90.91 181.83 FI 11.90 23.80 FR 131.22 262.43 HR 7.83 15.67 HU 21.55 43.09 IE 9.77 19.53 IT 111.21 222.41 LT 6.59 13.18 LU 1.30 2.59 LV 4.31 8.62 MT 0.94 1.89 NL 41.12 82.23 PL 79.51 159.02 PT 21.86 43.71 RO 40.83 81.66 SE 23.68 47.36 SI 4.51 9.03 SK 12.36 24.72 UK 152.12 304.24

Source: Own CSES PPMI calculations Table 7 Estimated number of voucher-based workers

Country Estimated number of voucher-based workers

(in thousands)

Micro companies

• & 

  SMEs (<250 Large companies (>=250) Total

employees)

AT 4.0 3.1 7.1 BE 62.3 68.0 130.3 EL 33.3 36.7 70.0 FR 1080.0 240.0 1320.0 HR 380.6 124.0 504.6 LT 12.4 2.6 15.0 NL 75.2 24.8 100.0 SI 3.8 2.2 6.0 Total 1651.6 501.5 2153.1

Source: Own CSES PPMI calculations

A NNEX 7: S UMMARY OF EU SOCIAL ACQUIS

The protection of workers at the EU level is currently ensured through secondary

legislation, mostly in the form of Directives on the basis of what are now Articles 153

and 157 TFEU on social policy, 256 including a set of individual and collective rights.

Many of these give a more concrete expression or implementation of social rights as

derived from the Treaties and in the Charter of Fundamental Rights of the EU.

Several Directives aim to implement the principle of equal treatment between persons in the workplace. The Employment Equality Directive 257 prohibits discrimination in

employment on the basis of sexual orientation, religious belief, age and disability,

and the Racial Equality Directive 258 prohibit discrimination on the basis of race and

ethnicity in employment, in education, and in access to social security and goods and

services. In 2006, the Gender Recast Directive consolidated into a single Directive earlier EU legislation relating to equal opportunities and equal treatment for men and women in employment and occupation. 259

The Pregnant Workers (Maternity Leave) Directive provides for paid maternity leave, at

least at the level of sick pay for fourteen weeks. 260 In addition, the Directive on selfemployed

 workers and assisting spouses also grants a maternity allowance that is sufficient to enable an interruption of occupational activities for at least fourteen weeks for female self-employer workers or female spouses of self-employed workers. 261 The Parental Leave Directive 262 entitles men and women workers to a minimum of four

months' leave after the birth or adoption of a child. The proposal from the Commission

for a Directive on work-life balance for parents and carers currently in the legislative procedure 263 would replace Council Directive 2010/18 i/EU, preserving existing rights but also introducing new rights to paternity leave, leave to take care of

ill or dependant relatives, and to request flexible working arrangements.

Three separate EU labour law Directives, concerning fixed-term work, part-time work

and temporary agency work aim to ensure equal treatment and prevent abuse of

256 For a detailed overview, refer to the Commission Staff Working Document The EU Social Acquis, accompanying the Communication Launching a consultation on an European Pillar of Social Rights, SWD(2016) 51 final.

257 Directive 2000/78 i

258 Directive 2000/43 i

259 The Recast Directive 2006/54/EC i

260 Directive 92/85/EEC i

261 Directive 2010/41 i/EU

262 Directive 2010/18 i/EU implementing the revised Framework Agreement on parental leave

263 Proposal for a Directive on work-life balance for parents and carers and repealing Council Directive 2010/18 i/EU, COM(2017) 253 final i

‘atypical’ contracts. 264 Where a worker is employed under such an atypical contract, he

or she should generally not be treated in a less favorable manner than comparable permanent and/or fulltime staff concerning employment conditions unless there are

objective reasons for different treatment. Under the Temporary Agency Work Directive

for instance, from the first day of their assignment, temporary agency workers have to be

subject to the same basic working and employment conditions as if they were recruited

directly by the user firm to occupy the same job. The Fixed-Term Work Directive also

includes an 'anti-abuse' clause to impede unjustified successions of such contracts. An additional Directive extends the EU rules on occupational health and safety to temporary

workers, generally more exposed to the risk of accidents at work and occupational

diseases. 265 These protections do not however always apply to the other newer

forms of atypical employment discussed in Section 2.2.1 above, notably casual,

marginal part-time or platform work.

The Working Time Directive 266 provides a limit to weekly working time, which must

not exceed 48 hours on average, including overtime. It also prescribes a minimum daily

rest period of 11 consecutive hours, a rest break during working hours, and a minimum

weekly rest period of 24 uninterrupted hours. The Directive also lays down the right to minimum paid annual leave of 4 weeks. The Working Time Directive allows flexibility

to accommodate differences between national rules or the requirements of specific

activities. In addition to the Working Time Directive, specific directives apply to a

number of transport sectors. 267 An interpretative communication providing legal

guidance on the application of the Directive has been adopted as part of the European

Pillar of Social Rights deliverables. 268

264 Fixed-Term Work Directive 1999/70/EC i; Part-time Work Directive 97/81/EC i; Temporary Agency Work Directive 2008/104/EC i

265 Directive 91/383/EEC i

266 Directive 2003/88/EC i

267 Minimum standards for working time in the civil aviation sector are laid down in Directive 2000/79/EC i. Directive 2005/47/EC i implements the Social Partners agreement on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector. Directive 2002/15/EC i in turn sets the framework for the organisation of working time for mobile workers in road transport activities and self-employed drivers. Regulation (EC) No 561/2006 i provides for minimum requirements on the daily and weekly driving times, minimum breaks and daily and weekly rest periods for drivers engaged in the carriage of goods and passengers by road. These provisions reinforce the existing rules on the organisation of the working time and are strictly monitored by means of recording equipment. The working time of seafarers is regulated by Directive 1999/63/EC i. Also to be mentioned is Council Directive 2014/112 i/EU of 19 December 2014 implementing the European Agreement concerning certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers' Federation (ETF).

268 Interpretative Communication on Directive 2003/88/EC i of the European Parliament and of the Council concerning certain aspects of the organisation of working time, C/2017/2601

EU rules in the social policy area guarantee workers’ right to occupational health and

safety (OSH). A Framework Directive and 23 individual directives provide rules on the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors. 269 The Framework Directive establishes general principles for

managing safety and health, such as responsibility of the employer, rights/duties of

workers, using risk assessments to continuously improve company processes, and

workplace health and safety representation. All individual directives follow these

common principles, tailoring the principles of the Framework Directive to specific tasks, specific hazards at work, specific workplaces and sectors, and specific groups of workers.

The individual Directives define how to assess these risks and, in some instances, set

limit exposure values for certain substances or agents.

To ensure fair and just working conditions also in the context of the temporary provision of services across borders, the Posting of Workers Directive 270 provides that a host State is required to apply to workers posted to its territory certain basic standards of its own labour law system (e.g. minimum wage, working time, holidays) as laid down in national legislation or universally applicable collective agreement. The Enforcement Directive allows host States more effective methods of enforcing labour standards in these

271

situations. On 8 March 2016, the European Commission proposed a revision of the rules on posting of workers within the EU to ensure they remain fit for purpose. 272 Moreover, the Commission adopted a proposal for a directive amending Directive 2006/22/EC i as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC i and Directive 2014/67 i/EU for posting drivers in the road transport sector. 273

Free movement is also supported via the Regulation on free movement of workers

(Regulation 492/2011 i) and the Directive on free movement of workers (Directive

2014/54/EU). The coordination of Social security systems is regulated by Regulation

269 Framework Directive 89/391/EEC i and Directive 89/654/EEC i on minimum safety and health requirements for the workplace; 92/57/EEC on temporary or mobile construction sites; 92/91/EEC on the mineral-extracting industries through drilling; 92/104/EEC on workers in surface and underground mineral extracting industries; 93/103/EC on fishing vessels; 92/29/EEC on improved medical treatment on board vessels; 89/656/EEC on personal protective equipment; 90/269/EEC on the manual handling of loads; 90/270/EEC on work with display screen equipment; 92/58EEC on safety and/or health signs at work; 2009/104/EC on work equipment; 92/85/EEC on pregnant workers; 2013/35/EU on electromagnetic fields; 1999/92/EC on explosive atmospheres; 2002/44/EC on mechanical vibration; 2003/10/EC on noise; 2006/25/EC on artificial optical radiation; 2000/54/EC on biological agents at work; 2010/32/EU on sharp injuries in the hospital and healthcare sector; 98/24/EC on chemical agents; 2004/37/EC on carcinogens or mutagens; 2009/148/EC on asbestos.

38 Directive 96/71/EC i

39 Directive 2014/67 i/EU

272 Proposal for a Directive amending Directive 96/71/EC i of The European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, COM(2016) 128 final i

273 COM/2017/0278 final - 2017/0121 (COD) i

883/2004 and by Regulation 987/2009 i on its implementation, to protect the social

security rights of workers moving within the EU.

A Directive on seasonal work sets important labour standards for third country nationals engaging in seasonal work in the EU. 274 The Directive provides the principle of equal

treatment between third country nationals and Union nationals, particularly as regards the

freedom of association and the right to strike, concerning terms of employment, working

conditions and social security benefits. The Single Permit Directive establishes a single application procedure for a single permit to work in the EU and a common set of rights for third country workers legally residing in a Member State. 275 A common set of rights

for intra-corporate transferees when working in the EU, facilitating their entry and

mobility between Member States is provided by Directive on the conditions of entry and

residence of third country nationals in the framework of intra-corporate transfers. 276

Article 153 TFEU provides for the possibility for the EU to support Member States in

ensuring the protection of workers where their employment contract is terminated,

notably through the adoption by unanimity voting of Directives laying down minimum

standards. There is no secondary EU law to implement this right. Similarly, there are no EU rules regarding the length of probation periods.

Three different Directives are concerned with the potential termination of the

employment contract in the event of structural changes in companies. They embody

the basic right to protection against unjustified dismissal, but only in ‘collective’

circumstances. The Insolvency Directive ensures payment of employees' outstanding claims in the event of the employer's insolvency. 277 The Collective Redundancies

Directive regulates the situation of workers affected by decisions of employers to lay off

a group of employees. 278 The Transfer of Undertakings Directive 279 protects employees’

rights in the event that an undertaking, business, or part of an undertaking or business is

transferred from one employer to another, stipulating inter alia that such a transfer does not in itself constitute valid grounds for dismissal. The Directives on transfer of

undertakings and collective redundancies provide for information and consultation rights.

The already mentioned Maternity Leave Directive 280 prohibits women's dismissal from

work because of maternity for the period from the beginning of their pregnancy to the

end of the period of maternity leave, save exceptional circumstances, for which the

274 Directive 2014/36 i

275 Directive 2011/98 i/EU

276 Directive 2014/66 i/EU

277 Directive 2008/94/EC i

278 Directive 98/59/EC i

279 Directive 2001/23/EC i

280 Directive 92/85/EEC i

employer needs to give justification in writing. The Recast Directive 281 furthermore sets

out that workers taking paternity or adoption leave should be protected against dismissal due to exercising those rights.

The Directive establishing a framework for equal treatment in employment 282 protects

workers against dismissal where there is discrimination on a prohibited ground, including

283

victimisation.

The promotion of social dialogue is enshrined as a common objective of the EU and the Member States in Articles 151 and 152 TFEU. The rights of association, collective

bargaining, to strike or to impose lock-outs are excluded from the application of this

article. The role of the social partners is recognised at EU level, taking into account the

diversity of national systems and their autonomy (Art 152 TFEU). Eight social partner

agreements have been implemented pursuant to Article 155(2) TFEU. 284

The general Information and Consultation Directive 285 establishes a framework for

informing and consulting employees at enterprise level. Information and consultation are

required on the development of the undertaking's activities, economic situation and

employment, and particularly anticipatory measures where there is a threat of

restructuring, and likely changes in work organisation or in contractual relations.

The European Works Council Directive 286 provides for the creation of a Works Council

(a body representing the employees of a transnational company, to inform and consult

them on the progress of the business and any decisions significant for their working

conditions) at the request of 100 employees of at least two undertakings or

establishments in at least two Member States, or on the initiative of the employer. The

involvement of employees, including at board level, is also provided by company law Directives. 287 Finally, the Cross-Border Mergers Directive 288 provides for detailed rules

of employee participation in the event of mergers of limited liability companies.

281 Directive 2006/54/EC i

282 Directive 2000/78/EC i

283 Other EU anti-discrimination Directives (such as Directive 2006/54/EC i or Directive 2000/43/EC i) also provide specific protection against unfair dismissal. 284 Articles 153 and 154 TFEU. Examples of such cross-industry agreements are: Parental leave (revised) (2009), Fixed-term contracts (1999); Part-time work (1997); Parental leave (1996). Autonomous Framework agreements implemented by social partners: Inclusive labour markets (2010); Harassment and violence at work (2007); Work-related stress (2004); Telework (2002). 285 Directive 2002/14/EC i

286 Directive 2009/38/EC i

287 Firstly, Directive 2001/86/EC i supplementing the Statute for a European company with regard to the involvement of employees provides that the establishment of a European company will not mean the disappearance or watering down of existing employee involvement arrangements, calling for agreement between the employer and the representatives of employees and providing subsidiary rules applicable in the absence of agreement. Secondly, Directive 2003/72/EC i on the information, consultation and

The Young People at Work Directive 289 requires Member States to take the necessary

measures to prohibit work by children, particularly that the minimum working age is not lower than the minimum age at which compulsory full-time schooling ends, or 15 years

in any event. Exceptions can be adopted by Member States for occasional work or shortterm

 work, involving domestic service in a private household or work regarded as not

being harmful, damaging or dangerous to young people in a family undertaking, for

cultural, artistic, sporting or advertising activities, subject to prior authorisation by the

competent authority in each specific case, for children of at least 14 years of age working under a combined work/training scheme, and for children of at least 14 years of age

performing light work. The Directive provides specific limits to maximum weekly

working time, night work and minimum rest periods for children and adolescents when

they engage in employment. 290

Finally, the worker is entitled to receive essential information relating to the employment

relationship in writing, not later than two months after the commencement of employment on the basis of the Written Statement Directive. 291

participation rights of employees in a European Cooperative Society provides that information, consultation and in some cases, participation procedures at transnational level are to be used whenever a European Cooperative is created.

288 Directive 2005/56/EC i

289 Directive 94/33/EC i

290 See also Commission Recommendation of 31 January 1967 to the Member States on the protection of young workers and the Commission Recommendation of 15 September 2000 on the ratification of International Labour Organisation (ILO) Convention No 182 of 17 June 1999 concerning the prohibition and immediate action for the elimination of the worst forms of child labour. 291 Directive 91/533/EEC i

A NNEX 8: F URTHER INFORMATION ON CONSIDERED POLICY

MEASURES

• 1. 

  A scope of application encompassing all EU workers, in particular the most precarious

The scope of application of the Written Statement Directive as it stands today is set out in its first Article:

"1. This Directive shall apply to every paid employee having a contract or

employment relationship defined by the law in force in a Member State and/or

governed by the law in force in a Member State.

• 2. 

  Member States may provide that this Directive shall not apply to employees

  having a contract or employment relationship:

(a) with a total duration not exceeding one month, and/or with a working week

not exceeding eight hours; or (b) of a casual and/or specific nature provided, in these cases, that its nonapplication

is justified by objective considerations."

The proposed measure aims to extend the scope of the Directive by removing the

exclusions and reiterating criteria for establishing who is a worker for the purpose of the Directive:

Removing the possibilities under the existing Directive to exclude:

1.1: people working less than 8h/week

1.2: people whose employment relationship will last less than 1 month

1.3: people having a contract or employment relationship of a casual or specific nature provided that its non-application is justified by objective considerations

1.4. Confirming/ensuring that the Directive covers any natural person who for a certain

period of time performs services for and under the direction of another person in return

for remuneration. 292

Member States affected:

292 These criteria are based on the jurisprudence of CJEU as developed since case Lawrie-Blum, C-66/85, and most recently stated in C-216/15 Ruhrlandklinik.

 Workers working less than 8 hours per week excluded by the Directive in CY,

DK, MT, SE.

 Workers employed for less than one month excluded by the Directive in AT, CY,

CZ, DK, FI, DE, EL, IE, LT, MT, SK, ES, UK, possibly in SE

 Domestic workers not covered by the Directive: HU, NL, SE, and possibly BG,

HR, CZ, DK, EE, IE, PL, SK, SL

 Platform workers not covered by the Directive: AT, FR, HU, LT, LV, LU, PL,

SL, SE, UK, and possibly BG, HR, CZ, DE, EE, EL, IE, IT, MT, NL, PT, RO,

SK

 Voucher based workers not covered by the Directive:

AT, BG, CY, CZ, DK, EE, DE, EL, HU, IE, IT, LT, LV, LU, MT, PL, PT, SK,

SL, SE, UK and possibly RO. However, it must be noted that in many of those

MS, voucher work does not exist. In the six MS that have regulated voucher

workers, they either have a specific regulation regarding voucher workers (in

Croatia) or they are covered by standard labour law (for example in Spain). Voucher-based work is reported to be used in about a third of EU Member States

(AT, BE, EL, FR, HR, IT, LT, NL and SI). Where data are available, they show

an increasing trend in voucher-based employment.

 Paid trainees not covered in CZ, FI, HU and possibly AT, BG, HR, EE, IE, RO,

SK, SE, UK

 Zero-hour contract workers not covered by the Directive: AT, HU, LV, LT, SL

(illegal – no change needed) + EE, DE, LU, MT, PT (do not exist either in law or

practice yet) and possibly BG, HR. CY. CZ, DK, IE, IT, PL, RO, SK, UK

 On-demand workers not covered: AT, LV (illegal – no change needed) + EE, LU,

MT, PT (do not exist either in law or practice yet) and possibly BG, HR, CY, CZ,

DK, IE, IT, PL, RO, SK, SL, UK

 Intermittent workers not covered: LU, MT (do not exist either in law or practice

yet ) and possibly AT, BG, HR, CY, CZ, DK, HU, IE, IT, PL, SK, SL, UK

 Temporary agency workers not covered: AT, UK and possibly BG, CZ, EL, ML,

SL

To facilitate the practical implementation of the Directive, the proposal permits Member

States to provide that very short relationships fall outside scope of the Directive 293 by

including a threshold of up to 8h per month (sub-measure 1.5.). This aims at avoiding

uncertainties on relationships that are of extremely marginal nature and where the

protection provided for by the proposal may be disproportionate.

293 In the calculations of the CBA it is assumed conservatively only the removal of current exclusions not knowing which MSs will adopt the new threshold. This derogation does not apply to an employment relationship where no guaranteed amount of paid work is predetermined before the employment starts.

• 2. 

  A right to information on the applicable working conditions

This measure updates Article 2 of the Written Statement Directive, taking into account the deficiencies identified by the REFIT evaluation and the inputs from Social Partners during the first and second phase consultations.

It does so by introducing new elements relating to (i) duration and conditions of probation, if any, (ii) training entitlements, if any, (iii) arrangements for overtime and its remuneration (in the light of CJEU judgment in Lange (C-306/07) that such information forms part of the 'essential aspects of the employment relationship' about which the worker should be informed in the written statement), (iv) key information about the determination of variable working schedules, to take account of the increasing prevalance of such types of work organisation such as casual or zero-hours contracts, (v) information about the social security system attached to the employment relationship.

The REFIT evaluation drew attention to the practice in several Member States of providing a template to employers in order to reduce the burden of producing the written statement, and suggested that such a template could be produced at EU level. While the Commission does not consider it feasible to produce a single template intended to apply in all Member State jurisdictions, given the diversity of systems and approaches for which it would have to provide, it considers it would be helpful both to employers and to workers, not only as a way of reducing the burden of compliance for employers but also of improving the quality and consistency of information provided to workers. The provision of such templates by Member States would be mandatory under the revised Directive, as well as their ensuring ease of access for employers to the information provided for in laws, regulations, statutory provisions or collective agreements which they must communicate in the written statement.

Additions to the information package are suggested as specified in the Table in section 5.

All of those measures above would increase transparency and reduce the information disparity between employer and employee. None would add a substantial burden to employers of any size, given that they require no new action but simply extend the list of information to be provided in the written statement and depend on information that is readily available to the employer and would not require additional effort to acquire. The provision by Member States of templates for the written statement, and readily-available information to support the production of the statement, would reduce the burdens on employers further.

To the extent that increased transparency about workers' rights may lead to a greater level of demand from workers to exercise them (notably in respect of training, sickness or maternity/parental leave), there may be an indirect impact increasing costs for employers and/or for the state. This is likely to be substantially outweighed by the benefits in productivity, worker retention, and health deriving from greater use of these rights.

To the extent that the provision of some types of information may constrain - by making visible and so potentially opposable in a court of law - unscrupulous employers' scope to use unfair or abusive practices (such as excessive probation periods, unfair dismissal, highly variable and unstable working hours), the extended information package would contribute to fulfilling Principle 5 "Secure and Adaptable Employment" of the European

Pillar of Social Rights 294 and Article 31 "Fair and just working conditions" of the

European Charter of Fundamental Rights. It would also help create a level playing field for competition among undertakings in the single market, by reducing the scope for competition based on "social dumping".

Action is required at EU level to prevent the existence of different regulatory requirements in individual Member State jurisdictions, which create scope for undertakings in some Member States to take advantage of weaker information requirements vis a vis employees, while those in others are prevented by law from doing so (regulatory arbitrage). Such an effect could not be achieved by Member States acting on their own. Given the modest cost of compliance for employers, and the ready availability of information to fulfil the additional information requirements, the measures are proportionate to the economic and social aims sought.

There is a strong interaction of this measure with policy measure 1 (clarification and extension of personal scope) – due to the need to adapt the information requirements to the specificities of a wider range of (atypical) employment relationships, should these be brought within scope of the Directive – and with policy measure 4 (new minimum rights for all) – which would complement the obligation to provide information with a minimum standard to be observed with regard to several items on the list.

• 3. 

  Shortening the two-month deadline for issuing a written statement

The considered measure is to require that written statements are provided at the latest on

the first day of the employment relationship.

In terms of potential benefits, the provision of information at the start of the employment relationship could contribute to both improved employee protection and the fight against undeclared work. It could also help workers who move between short-term jobs without ever receiving a written statement on their rights.

As an example, the recent legislative move made by Poland is worth highlighting. The country recently changed its legislation so that the written statement must now be provided before the start of the employment relationship, and not at the end of the first

day, as was the case before. 53 According to the Polish authorities, under the previous

approach, employers faced with an inspection could falsely argue that the worker had just been employed and that he/she would be provided with the written information by the end of the first working day. In practice, this rule tended to favour undeclared work.

At the same time, arguably, the shorter deadline could be more complicated for employers to comply with. Already the two-month deadline was pointed out by the High

294 C(2017)2600 final

Level Group on Administrative Burdens as a particular aspect of the Directive, which should be looked at with a view to further simplification. 295

The REFIT evaluation of the Directive paid therefore a particular attention to burdens related to the deadline but did not confirm the concerns of the High Level Group on Administrative Burdens. The following figure shows that only a small share of respondents found the time limits particularly burdensome.

Figure 3. Share of respondents across the eight surveyed countries who found the

time limits in which to provide the information to the employee particularly

burdensome

Source: Survey, Ramboll calculations

The employer survey showed that there were no major differences in how burdensome

the timeframe was perceived to be, regardless of whether it preceded the start of

employment (in PL and BG), was set at one month (DE, FR, SE, IT) or at the maximum

two months (UK).

• 4. 

  New minimum rights for all workers

As shown in the problem definition, while labour market flexibility is an important driver

for job creation and growth, extreme flexibility of individual work arrangements without

protection of basic standards for workers has created situations which can jeopardise

working and living conditions, equal treatment, fair competition between employers

across the EU and overall social cohesion and equity.

Indeed, a minimum level of predictability can prove extremely important for living and

working conditions, work-life balance and health of workers in the most flexible forms of

employment.

295 European Commission, High Level Group on Administrative Burdens (2009): Opinion of the High Level Group. Subject: Stakeholders’ suggestions (‘offline-consultation’) – V.

This could include, for workers whose work schedule is mainly variable and mainly

determined by their employer:

• - 

  Right to defined reference days and hours within which work may be required

• - 

  Right to a reasonable minimum advance notice before a new assignment or a new

period of work

In addition, for all workers:

• - 

  Prohibition of exclusivity clauses and limiting restrictions on incompatibility clauses to objectively justified situations.

• - 

  Right for a worker to request another form of employment (permanent, more stable and

predictable) after achieving a certain degree of seniority with his/her employer and

receive a reply in writing, which could ease the transition from extremely flexible forms

of atypical work to other forms of work (e.g. full time, or permanent work).

• - 

  Right to a maximum duration of probation of 6 months where a probation period is foreseen, unless justified or in the interest of the worker.

• - 

  Right to receive free of cost training which employers are obliged by EU legislation, national legislation or collective agreements to provide to workers.

Right to predictability of work

consisting of:

• - 

  Right to defined reference days and hours within which work may be assigned

Flexibility in work schedules is entirely determined by employers for about two-thirds of workers in Europe. 296 For casual workers, working schedules vary and cannot be fully predicted. Nonetheless, workers and employers could be assigned reference days (e.g. Monday to Friday, or week-end, or any mix of days) or hours (e.g. 8 to 17 or 13 to 24 etc.) in which the worker might be called to perform work. A worker would in this way know the days and times in which he or she can organise other work or other engagements. This would limit the detrimental effects or even the impossibility to plan other engagements of a professional or private nature, improving work-life balance and allowing additional work to be taken on and so reduce under-employment. This would still allow a worker who wishes to do so to accept work beyond these periods, but cannot suffer detriment if he or she refuses.

 The right to reference hours has been introduced and casual workers (including

on-demand workers) are covered: BE, HR, DK, EL

296 Eurofound, sixth European Working Conditions Survey, 2016

 The right to reference hours has been introduced, but on-demand workers are

excluded: CZ, IT (definitely excluded), SK, PL, SL (depends on the employment contract)

 The right to reference hours has not been introduced, but casual workers

(especially on-demand workers) exist in law and would directly benefit: FR, DE,

HU, NL, SE

 The right to reference hours has not been introduced and casual workers

(especially on-demand workers) are not recognised in law and therefore require Option 1 in order to be covered by this right: BG, CY, EE, FI, IE, LU, MT, PT,

RO, ES, UK.

 The right to reference hours is not introduced, but on-demand work is prohibited:

AT, LV, LT

 An example from Member States:  In Belgium, part-time workers with variable schedules can only be called for

work within the working schedules mentioned in the internal rulebook of the workplace ('Règlement de travail'). This rulebook is negotiated between employers and workers and a copy of it is given to workers when they start

working.

• - 

  Right to a reasonable minimum advance notice before a new assignment

The scheduling of work hours or assignments is a recurrent issue for part-time and on call workers. In some Member States social partners negotiate reasonable scheduling notice and - where possible - secure and regular shifts.

For casual workers, work assignments or periods of work are not predictable but are rather on-demand depending on needs of the employer. Setting a minimum advance notice period, as is done in some Member States, 297 would allow a minimum level of predictability and a minimum planning of work needs also in undertakings which make extensive use of casual work. This would limit the detrimental effects of the impossibility or difficulty to plan other engagement of a professional or private nature, so improving work-life balance and potentially allowing additional work to be taken on.

This would still allow a worker who wishes to do so to accept work beyond these periods, but cannot suffer detriment if he or she refuses.

 The right to a minimum notice period has been introduced and casual workers

(including on-demand workers) are covered: DK, DE, HU, IT, SL, ES, SE

297 Germany, Hungary, Italy.

(always), PT (intermittent included, but on-demand and zero-hours contracts have

not yet occurred in PT)

 The right to minimum notice period has been introduced, but on-demand workers

are excluded CZ, FR (for all), IE (depending on contract)

 The right to minimum notice period has not been introduced, but casual workers

(especially on-demand workers) exist in law and would directly benefit: NL

 The right to minimum notice period has not been introduced and casual workers

(especially on-demand workers) are not recognised in law and therefore require Option 1 in order to be covered by this right: BE, BG, HR, CY, EE, EL, FI, LU,

MT, PL, RO, SK, UK

 The right to minimum notice period is not introduced, but on-demand work is

prohibited: AT, LV, LT

 Examples from Member States:  In Germany, the employer shall respect a minimum advance notice period of

four days. This period can be modified by collective agreement. .

 In Hungary in so called call for work contracts the employer needs to inform the

employee at least three days prior to the day of work.

 In Italy, a minimum notice of one working day is required for intermittent work.

 In Portugal for intermittent workers get a notice of 20 days for each period of

work.

 In Belgium, part-time workers with variable schedule have to be notified five

days in advance of their work schedule. This period can be modified by collective

agreement.

Prohibition of exclusivity clauses

Exclusivity clauses impede workers to take on any other work at all. Incompatibility

clauses impede them from taking on work with certain other employers. Exclusivity and incompatibility clauses can put a disproportionate burden on the worker who has limited

possibilities for ensuring not only income security and stability, but also to seek further

work to reduce the risk of poverty. In economic terms, exclusivity and incompatibility

clauses exacerbate situations of underemployment. 298

Examples from Member States:

In the Netherlands exclusivity clauses in flexible employment agreements (temporary)

298 EP-IPOL Economic and scientific policy, Precarious Employment in Europe: Patterns, Trends and Policy Strategy, 2016

are allowed but only exceptionally. The inclusion of this kind of clause needs to be motivated explicitly in writing in the contract of employment.

In the UK, for zero-hours workers exclusivity clauses have been deemed abusive and have become unenforceable since May 2015. The law of 26 May 2015 was introduced for preventing employers from enforcing 'exclusivity clauses' in a zero-hours contract restricting workers from working for other employers.

In Spain, Romania, Italy, Germany, exclusivity clauses are considered as illegal as in breach with the principle of freedom to work or right to employment.

In the Czech Republic the employee may only prevented from performing work for an employer with the same or similar objective of the activity as the main employer.

Possibility to request another form of employment and receive a reply in writing

Many workers in non-standard and new forms of work are in this situation involuntarily, which leads to precariousness, underemployment and segmentation of the labour market. A possibility to request another more favourable form of employment (e.g. longer hours for very marginal part-time, or a part-time contract for casual workers), where available, after achieving a certain degree of seniority with his/her employer, and with the corresponding duty on the employer to give a reply in writing, would create space for dialogue between worker and employer on career possibilities in the undertaking and stimulate changes in employment statuses. Such a right might also support social dialogue to ease transitions to more secure and predictable work for workers that have proven their working skills and have developed on-the-job skills.

The EU social acquis already includes similar provisions for certain types of worker; under the Part-Time Directive, employers should give consideration, as far as possible, to (a) requests by workers to transfer from full-time to part-time work that becomes available in the establishment, (b) requests by workers to transfer from part-time to fulltime work or to increase their working time should the opportunity arise; (c) the provision of timely information on the availability of part-time and full-time positions in the establishment in order to facilitate transfers from full-time to part-time or vice

versa. 299 The Fixed Term Work Directive provides that employers shall inform fixedterm

 workers about vacancies which become available in the undertaking or establishment to ensure that they have the same opportunity to secure permanent positions as other workers. Such information may be provided by way of a general

announcement at a suitable place in the undertaking or establishment. 300 Member States

have transposed those provisions in their national legislation but few have implemented any more favourable measures such as obliging the employer to provide a reasoned reply to this request or granting a priority for part-time workers to access available full time positions in the undertakings.

299 Clause 5, Directive 97/81 i on Part Time Work

300 Clause 6, Directive 1999/70 i on Fixed Term Work

The Parental Leave Directive already provides for the possibility to ask for two types of flexible working arrangements (working patterns and working hours) for parents returning from parental leave. 301 The proposal for a Directive on Work-Life Balance for parents and carers introduces a proposed right, for workers with children up to at least 12 years old, to request flexible working arrangements for caring purposes; employers would have then a duty to consider and respond to requests for flexible working arrangements, taking into account the needs of both employers and workers, and justify any refusal of such a request. Employers would also have the obligation to consider and respond to requests to return to the original working pattern. 302

Examples from Member States:

In France, the employer is obliged to inform atypical workers of available open ended contract in the company (without obligation to reply to request). Part time workers willing to be employed full time benefit from a priority in their employment, the same for night workers wanting to return to day work.

In Romania employers are obliged to inform fixed-term workers about vacant permanent jobs and grant them equal conditions of accessing such jobs as those granted to the permanent employees. Employers are also obliged to take into consideration part-time workers' requests of transfer from part-time to full time or vice versa, or to extend the duration of working time (the workload), and to provide information on vacant positions in due time to facilitate such transfers.

In Spain part-time workers may request to work full time and full time workers may request to work part time. Employers must reply in writing; in case of refusal they must motivate the answer.

In the UK the Right to Request Flexible Working was extended in 2014 to all employees with 26 weeks’ continuous service. A right to permanent employment exists after four years for fixed-term workers (unless there is a business reason not to do so). Casual/atypical workers are covered as long as they have an employee status (rather than worker). The Taylor et al. (2017) review suggests the following changes: (1) a right to request a direct contract of employment for agency workers who have been placed with the same hirer for 12 months, (2) for zero hours workers a right to request a fixed hours contract.

In Germany, some collective agreements guarantee a preferential treatment of parttimers who wish to work full-time and an obligation of the employer to inform on vacancies. A part time worker has a priority for a full time position if they want.

301 Directive 2010/18 i

302 Article 9, Proposal for a Directive on Work-Life Balance, COM(2017) 253 i

Right to a maximum duration of probation period

Probation periods offer the worker the opportunity to be supported and developed to meet

the requirements of the job, and the employer to test the suitability of the worker for that

job. During probation periods, the conditions attaching to the termination of the

employment contract are often light and some protective measures that normally apply in

case of dismissal are absent (e.g. notice period and severance pay). Setting a maximum duration for probation periods would prevent abuse of overly long probation periods, in

which employment rights are inferior to standard employment.

Examples from Member States:

 The Czech Republic, the Netherlands, Portugal, Romania, Spain and

Lithuania have specific regulations regarding probation periods for fixed term workers, which are shorter than for workers with open-ended contracts.

 In the Czech Republic, if there is a probation agreed, it has to be made in writing

and may not be longer than 3 months (6 months in the case of managers). In the case of fixed-term contracts it may not be longer than one half of the agreed period of the employment relationship.

 In Belgium there is currently only a probation period for agency work and student

work. The general probation period was abolished in 2014. At the time of writing, the government was planning to reintroduce a probation period for all workers but without the same consequences as the old one: rather mainly entailing shorter notice periods in the beginning of the contract.

 In Austria employees may be subject to a probationary period of up to one

month. This applies to all classed as “employees”. The probation period is 3 months for apprentices.

Right to receive cost-free training which employers are required to provide in EU

legislation, national legislation or collective agreements

There is generally no statutory obligation to provide occupational training beyond health & safety training, which is often covered by collective agreements.

Examples from Member States:

In the Netherlands employers have a statutory obligation to provide any training necessary to enable an employee to perform satisfactorily in their job and – as far as this can reasonably be expected of the employer – in order to continue the employment contract, even if the employee's job ceases to exist or their performance falls. Under certain conditions, an investment by an employer in making an employee more broadly employable before their contract is terminated can be deducted from the financial entitlement to a transition allowance. Under certain conditions, it will also be possible for money invested by the employer in making the employee more employable to be deducted before their contract is terminated.

In France, the Personal Training Account is an individual right of an employee to 150 hours of training in more than 7 years (20 hours each year over 6 years then 10 hours per year thereafter). The Account can be used by the individual to follow any (registered in a national list decided mainly by social partners end employers) training course and is funded via a levy on companies (1 per cent of the wage bill for large companies 0.55 per cent for small companies).

In Estonia, employees are obliged by law to improve their skills. For this purpose, employers are also responsible for developing the knowledge and skills of their employees and they are required to provide employees with training according to their interests, to bear the costs and to pay the usual wage during the training.

• 5. 

  Enforcement

Rights are only meaningful when they are taken up by rights holders. Both the REFIT

evaluation of the Directive, and the public consultation on the Pillar, have underlined the

importance of enforcement mechanisms to ensure workers that their rights are respected.

This has also been underlined by the recent Communication on better application of EU law.

One of the conclusions of the public consultation on the European Pillar of Social

Rights 303 was that very often, citizens are deprived of their rights due to a lack of

implementation and enforcement. In the context of EU labour law, unlike in other areas,

there are very few EU rules directly concerned with enforcement of rights. Experts highlighted various ways to close the enforcement gap. One proposal is to ensure that

legislation in the field of labour law contains procedural provisions for enforcement, such

as provisions improving access to justice, supporting persons whose rights have been

denied to initiate litigation, protecting against victimisation and providing for basic rules

on remedies and dissemination of information. It was pointed out that inspiration could be drawn from existing instruments e.g. in the field on non-discrimination or free

303 Delivering on the European Pillar of Social Rights, http://ec.europa.eu/social/main.jsp?catId=1226&langId=en , and Public consultation on the European Pillar of Social Rights http://ec.europa.eu/social/main.jsp?catId=333&langId=en&consultId=22&visib=0&furtherConsult=yes

movement, where a range of enforcement tools have been adopted in recent years. Others

asked for more and better labour inspections.

The REFIT evaluation of the Written Statement Directive also indicated that enforcement of workers' rights under the Directive could be improved by rethinking means of redress

and sanctions for non-compliance. 304

The Directive, in its Article 8, establishes the right for employees who consider

themselves wronged by an employer’s failure to comply with its obligations to pursue their claims by judicial process. Member States may establish two steps that would

precede a judicial process: (i) recourse to a competent authority such as a labour

inspectorate or an administrative body; (ii) a formal notice given to the employer calling

on it to issue the written statement within 15 days.

The REFIT evaluation has confirmed that all Member States provide for access to the

relevant national court which is in general the Labour Court 305 . As regards sanctions

imposed on employers who fail to comply, the REFIT evaluation distinguishes between:

(i) a majority of Member States where financial compensation can be granted only to

employees who prove that they have suffered damage; and (ii) a minority of Member

States where sanctions such as lump sum penalties or loss of permits can be imposed in

addition on the employer for failure to issue the written statement.

The REFIT evaluation concluded that redress systems based only on claims for damages

are less effective than systems that also provide for sanctions such as lump sum penalties.

The limited extent of case law indicates that workers whose rights under the Directive

have been infringed are reluctant to pursue litigation while in employment. Generally any

litigation is related to the working conditions themselves not to the absence of information about them.

To achieve the goal of the Directive its enforcement must be ensured through adequate

redress via enforcement authorities and appropriate and dissuasive sanctions.

The revision proposes to improve the enforcement by requiring Member States to:

5.1: make sure that a 'competent authority' can find or impose a solution in case a worker does not receive a written statement, if the omission is not rectified in 15 days following

notification;

5.2: set up a formal injunction system to the employer, possibly accompanied by a

possibility of a penalty;

304 SWD (2017)205, page 3, 4

305 SWD 2017(2611) Refit evaluation of the Written Statement Directive

5.3: establish favourable presumptions for the employees as regards their working

conditions in case of (unlawful) absence of written statements (proportionate to the missing elements) if the omission is not rectified in 15 days following notification.

5.4. enlarge the enforcement provisions of the revised Directive based on enforcement

provisions already in place under EU anti-discrimination and gender equality law.

Examples from Member States:

In Luxembourg, in case of absence of information regarding the existence of a fixedterm employment contract, there is a presumption that the contract is concluded for an indeterminate term.

In France, in the absence of a written statement for a fixed term contract, the contract is deemed to be a permanent one. If the worker raises a complaint in front of the court the contract is automatically requalified as a permanent one.

In Latvia, in case an employer failed to conclude an employment contract in a written form before the commencement of a work and an employee is not able to prove the length of the employment relationship, working time and remuneration, it has to be presumed that a worker has been employed for 3 months with normal weekly working time (40 hours) and minimum pay as defined by the law.

In Denmark, questions as to whether the employer has complied with his/her obligation to provide information shall be decided by the Employment Committee of the National Social Appeals Board.

In the Netherlands, following case-law, when the employer has not fulfilled the information obligations, a shift in burden of proof regarding the type of employment and employment conditions applies. It is for the employer to prove that the allegations of the claimant employee are not accurate.

In Ireland, the Adjudication Service (formerly Rights Commissioner) investigates and decides on claims brought by individual or small groups of workers. The employer has 56 days to carry out the decision of the adjudication officer. If the employer fails to do so, the worker, the worker’s trade union or a body that represents the interests of a particular group of workers may apply to the District Court for an order directing the employer to do so. In general, the District Court must make the order.

The possibility to access to dispute resolution through a judicial process is provided in

all Member States. In five Member States (BE, CZ, DE, SL, SK) there is a possibility of

arbitration, although in some countries arbitration is accessible only in case of collective agreements or collective disputes (SL, CZ).

Almost all Member States 306 have the option of mediation available for labour disputes,

although in most of them it is only rarely used.

Most Member States have provided for redress in case of non-compliance with the rights conferred by the Directive either in civil courts or special labour courts.

In addition, in several Member States labour inspectorates have a monitoring and/or

enforcement responsibility, which varies in terms of initiative and instruments available.

In most countries, the inspectorates monitor employers’ activity and have the power to (1) ensure compliance through coercive orders; and (2) impose fines when breaches are

identified at the end of/during inspective actions and procedures.

In almost a third of the Member States the only available means for redress is litigation

before civil or labour courts, which is considered particularly ineffective as means of

enforcement when the only available remedy is the award of damages.

In 10 MSs there is no competent authority that can impose a remedy in case of lack of written statements: AT, BE, DE, FR, HR, LU, NL, SE, SL, UK

In 14 MS there is no formal injunction system with lump sum in case of lack of written

statements: AT, BG, CZ, DE, FI, FR, LU, LV, NL, PT, RO, SE, SL, UK

In 22 MS in case of (unlawful) absence of written statements, there are no favourable

presumptions made for the employees as regards their working conditions: AT, BG, CY, CZ, DK, EL, ES, FI, FR, HR, HU, IE, IT, LT, MT, NL, PL, PT, RO, SE, SK, UK.

Following the evolution of the EU acquis and case-law in the field of gender equality and

antidiscrimination in the last 30 years, now all 28 Member States have put in place

enforcement provisions that apply to the interaction between worker and employer. This

includes provisions on defense of rights, burden of proof, compensation or reparation, protection against adverse treatmnet or victimisation, penalties, compliance and

dissemination of information.

Only one MS does not have judicial procedures available for enforcement, also after the

employment relationship has ended.

The measures set out above could not only reinforce enforcement of workers' rights by improving their right to redress in case of non-compliance but also avoid long and costly

litigation that could be unproductive at the start of employment relationship for a worker

and burdensome for the employers.

Many national experts contributing to the study underlined that the level of compliance

by employers is linked to the level of enforcement by public authorities or action by

306 BE, HR, CZ, EE, FR, HU, IE, LV, LT, MT, NL, PT, RO, SK, SL, SE, UK.

trade unions. Several experts witnessed an increase in compliance due to stronger labour

inspectorates, presumptions in favour of the employee or due to newly introduced fines.

The provisions of 5.1 to 5.. would provide benefits to workers through the actual

application of the rights provided in the revised Directive in their everyday working life.

The policy package 5 is clearly dependent on the rights provided for in measures 2

(information), 4 (new rights) and on the personal scope provided in 1.

These packages depend fully on effective compliance supporting the take-up of rights, which in turn depends on effective enforcement arrangements. Otherwise the expected

benefits presented in this assessment will be negated or mitigated.

• 6. 

  Overview of legal changes required per Member State

Table. 1. Extended scope, strengthened information and shorter deadline

Would the legal change be required? 1. A scope of

application 3.Shorten encompassing 2. Introducing the right to information on the ing of the all EU workers, applicable working conditions deadline in particular the to the

Memb most precarious same day er Inclusi Inclusi or before

State on of on of

National

worke worker Social law Precis

rs s Probati securi applicab

worki employ on ty le in case

e Templa

ng less ed for period syste of

worki tes

than less m terminat

ng

8h/wee than 1 ion of

time

k month contract

AT No Yes Yes Yes No Yes No No

BE No No Yes Yes Yes Yes Yes No

BG No No No Yes Yes Yes Yes No

CY Yes Yes No No No No No Yes – 1 month

CZ No Yes No Yes Yes No Yes Yes – 1 month

DE No Yes No No Yes Yes Yes Yes – 1 month

DK Yes Yes Yes Yes Yes Yes Yes Yes – 1 month

EE No No No Yes Yes Yes No No

EL No Yes No No No No No Yes – 2 months

ES No Yes No No Yes Yes No Yes – 2 months

FI No Yes No Yes Yes Yes No Yes – 1 month

FR No No No No Yes Yes No No

HR No No Yes Yes Yes Yes Yes No

HU No No No Yes Yes No Yes Yes – 15 days

IE No Yes Yes Yes Yes No No Yes – 2 months

IT No No No Yes Yes Yes Yes No

LT No Yes No Yes Yes No No No

LU No No No Yes Yes No No No

LV No No No No Yes No No No

MT Yes Yes No Yes Yes Yes No No

NL No No No No Yes Yes Yes Yes – 1 month

PL No No No Yes Yes Yes No No

PT No No No No Yes Yes Yes Yes – 2 months

RO No No No Yes Yes Yes No No

SE Yes Possibl Yes Yes Yes Yes Yes Yes – 1 y month

SI No No No Yes Yes Yes Yes No

SK No Yes No Yes Yes Yes Yes Yes – 1 month

UK No Yes Yes No No No No Yes – 2 months

No –the right is already included in the national legislation, no legal change would be

required

Yes – legal change would be required

Table 2. New minimum rights

Would the legal change be required?

• 4. 

  New minimum rights for all workers

Member Minimum predictability Possibility to request

State of work Prohibition of transfer to another Right to a maximum Right to cost-free

Reference Minimum exclusivity clauses form of employment

duration of training required in

days and advance and receive a reply

probation period of 6 legislation and collective

in writing months agreements hours notice

No - on No - on

AT demand demand work is work is Yes Yes No No

prohibited prohibited

Partially – exclusivity BE No Yes clauses allowed under Yes No No

certain conditions

BG Yes Yes No No No No

CY Yes Yes Partially – prohibition with exceptions No No No

Partially – exclusivity CZ Yes Yes clauses allowed under Yes No No

certain conditions

DE Yes No Partially – prohibition with exceptions No No No

DK No No Partially – prohibited only for casual workers Yes No No

EE Yes Yes No Yes No No Partially – exclusivity

EL No Yes clauses allowed under No No No certain conditions

Partially – exclusivity ES Yes No clauses allowed under No No No

certain conditions

Partially – exclusivity FI Yes Yes clauses allowed under Yes No No

certain conditions

FR Yes Yes Yes No No No

HR No Yes Yes No No No

Partially – exclusivity HU Yes No clauses allowed under Yes No No

certain conditions

Partially – exclusivity IE Yes Yes clauses allowed under No Yes No

certain conditions

Partially – exclusivity IT Yes No clauses allowed under Yes No No

certain conditions

No - on No - on

LT demand demand work is work is Yes No No No

prohibited prohibited LU Yes Yes Yes No No No

No - on No - on

LV demand demand

Partially – exclusivity

work is work is clauses allowed under Yes No No

prohibited prohibited certain conditions

MT Yes Yes Yes Yes No No

Partially – exclusivity NL Yes Yes clauses allowed under No No No

certain conditions

PL Yes Yes Partially – prohibition with exceptions Yes No No

Partially – Partially – exclusivity PT Yes only clauses allowed under No No No

intermittent certain conditions

RO Yes Yes Partially – prohibition with exceptions No No No

SE Yes No Yes Yes No No

SI Yes No Partially – prohibition with exceptions No No No

Partially – exclusivity SK Yes Yes clauses allowed under Yes No No

certain conditions Partially – prohibited

UK Yes Yes only in cases of zero No Yes No hours contracts

No –the right is already included in the national legislation, no legal change would be required Yes – legal change would be required

Table 3. Enforcement

Would the legal change be required? 5. Enforcement

Member Enforcement provisions that already apply to

State Competen

Inclusion of favourable presumptions made

t Formal injunction for the employees as regards their working the interaction between worker and employer

authority system conditions in case of (unlawful) absence of in the field of gender equality and written statement antidiscrimination

AT Yes Yes Yes Partially

BE Yes No No Partially

BG No Yes Yes Partially

CY No No Yes Partially

CZ No Yes Yes Partially

DE Yes Yes No Partially

DK No No Yes Partially

EE No No No Partially

EL No No Yes Partially

ES No No Yes Partially

FI No Yes Yes Partially

FR Yes Yes Yes Partially

HR Yes No Yes Partially

HU No No Yes Partially

IE No No Yes Partially

IT No No Yes Partially

LT No No Yes Partially

LU Yes Yes No Partially

LV No Yes No Partially MT No No Yes Partially

NL Yes Yes Yes Partially PL No No Yes Partially PT No Yes Yes Partially RO No Yes Yes Partially SE Yes Yes Yes Partially SI Yes Yes No Partially SK No No Yes Partially UK Yes Yes Yes Partially No –the right is already included in the national legislation, no legal change would be required Yes – legal change would be required

• 7. 

  Mapping of relevant collective agreements

Table 1: Transposition of the current Written Statement Directive into national law (fully or

partially) via Collective Agreements.

Country Collective Agreements used for transposition?

Austria No

Belgium Partly, through National collective agreements no. 35 (part-time) and no. 108 (agency work), collective agreement no. 85 (telework) complement national legislation on the WSD requirements.

Bulgaria No

Croatia No

Cyprus There are different collective agreements covering sectors or industries. In 2011, the Ministry of Labour listed 19 industry level agreements in the private sector on its website, including agreements for construction, banking, private hospitals and the clothing industry and the hotel sector. However, although industry level bargaining continues to be important, many companies, both inside and outside the coverage of the industry level agreements, negotiate at company level. The Department of Labour Relations estimates that there are 450 company level agreements, in some cases setting the pay and conditions of those not covered at industry level, in others improving on the industry rates. Both unions and employers consider that the balance between company and industry-level bargaining may be shifting, with company level bargaining becoming more important. It seems likely that the level of coverage has fallen over time, and the union membership and collective bargaining estimated the overall coverage of collective bargaining at 52% in 2008. There has been a decline since, particularly after 2013.

Czech No

Republic

Denmark No, however the transposition Act (Ansættelsesbevisloven) does provide that the Act does not apply if the employer’s obligation to inform the employee of the employment conditions is covered by a collective agreement and that the rules of this agreement, as a minimum, correspond to those of the WSD. Most collective agreements refer to ‘Ansættelsesbevisloven’ and set out the various conditions for providing the employee with proof of his/her employment conditions.

Estonia No

Finland No

France No

Germany No, transposition took place through law. However, there are nine different sector-specific collective agreements with regulations related to the Written Statement directive.

Greece No

Hungary No

Ireland No

Italy Partly. The WSD was transposed via a Decree, but further employers’ obligations to inform might be required by single collective agreements, where applicable.

Latvia No

Lithuania No

Luxembourg No

Malta No

Netherlands No

Poland No

Portugal No

Romania No

Slovakia No

Slovenia No

Spain No, however, provisions imposing certain informative obligations on the employer may be found in some collective agreements.

Sweden No, although collective agreements do exist which deal with further implementation.

UK No

Table 2: Collective Agreements establishing additional rights to non-standard workers

Country Do Collective Agreements exist which provide additional rights?

Austria No, but the existing rights provided for atypical workers are quite high, and in particular sectors collective agreements have raised the bar even further.

Belgium Yes, complementary to legislation, there is Collective Agreement nr. 35 on part time work, Collective Agreement nr. 108 on temporary work. Also sector or company level CA's may exist, e.g. putting down further conditions on temporary work, or agreeing on the use of fixed term workers. Rules on non-competition clauses are laid down in art. 65, 86 and 104 to 106 of the Act of 3 July 1978 on employment contracts and Collective agreement no. 1bis of 21 December 1978.

Bulgaria In the available Collective Agreements there are no explicit references to the directive; it is transposed in the labour legislation. Actually, Collective Agreements arrange those rights and issues that are not treated by the legislation – see art. 3 of the Collective Agreement of the metal sector. In addition, as atypical work is relative rare in Bulgaria, the Collective Agreements focus on the core workers on open ended contracts.

Croatia Partly. Collective agreements usually define different duration of the probation period for the working places of lower and higher complexity.

Cyprus No

Czech EU directives are transposed via legislation only. The reason is that the collective Republic bargaining takes place predominantly at the company level and the coverage by

collective bargaining is not high. Thus, the WSD and its provisions are not an

issue of collective bargaining

Denmark Many collective agreements indicate that the parties (employer & employee) can

come to an agreement on a different type of employment form/contract, for

example a permanent contract.

Estonia No

Finland No

France No, but probation period or notion periods can be regulated through collective

agreements.

Germany Some Collective Agreements improve the standards of the NachwG and other

German laws to protect precarious workers. The most important improvements

are:

• - 

  a written contract must be signed before the start of work or within a

month

• - 

  in some agreements the content of the written contract is specified mostly

according to the NachwG

• - 

  some agreements set additional standards for part-timers especially (a)

minimum hours per week (b) minimum hrs per day (c) right to request a contract

with more weekly hrs and (d) minimum period of notice

• - 

  a right to request part-time work for defined periods
• - 

  defined right to do a second job
• - 

  preferential treatment of part-time if there are job vacancies and equal

right to attend further training

Greece No

Hungary The term of the probationary period may not exceed six months as provided for in

the collective agreement. Though not related specifically to rights 5.1 – 5.5, the

collective agreement also provides for a working time bank, for example enabling

the exchange of overtime for subsequent time off.

Ireland No

Italy Not currently, but further employers’ obligations to inform might be required by

single collective agreements, where applicable. Negotiations are taking place for a

Collective Agreement regarding minimum hours.

Latvia No

Lithuania No

Luxembourg No

Malta No

Netherlands Only one Collective Agreement on temporary agency work.

Poland Collective agreements in Poland are most often entered at the level of the company, so it

is difficult to get sector specific examples. However, such an example is Grupa LOTOS

SA where the Company Collective Labour Agreement applies to employees independently

of the system and organization of working time.

Portugal The average working duration shall be calculated by reference to the period established

under a collective agreement that is not more than 12 months. In case of lack of those

agreements the period is 4 months. Collective Agreements may reduce the duration of the

probation period.

Romania No

Slovakia No

Slovenia No. Some collective agreements may stipulate extra components of an employment

contract; however they do not relate specifically to atypical workers.

Spain Some national agreements, such as the Collective Agreement for Large Retailers and

Department Stores, establish a larger minimum notice than the established by law in case of irregular distribution of working hours (7 days instead of 5 days). The same agreement also establishes that for part time workers whose daily working time is less than 4 hours, its distribution on the day must be continuous without any inactive hours in between.

The national Collective Agreement for the Chemical Industry (BOE 19 August 2015)

establishes a minimum notice of 7 days (instead of 5 days) in case of irregular distribution of working hours. In some regional agreements (vgr Steel Sector, Madrid), there are provisions extending the minimum notice before new work assignments; there are also provisions limiting the daily working hours in case of irregular distribution of working time along the year.

Sweden The 1982 LAS law allows derogations from Sections 6c, 6d, 6e through a collective agreement entered into or approved by a central/nation-wide trade union, provided that such an agreement does not provide for the application of less beneficial rules to

employees. Hence, there might be collective agreements which go further than the Directive. Collective agreements play a large role in the regulation of exclusivity clauses.

UK No

A NNEX 9: F URTHER INFORMATION ON IMPACTS OF POLICY PACKAGES B, C AND D

• 1. 

  Impacts of policy package B

  Direct benefits and costs

  Direct benefits for workers –  2.4m-3.2m increase in number of workers having the right to a written right to written statement statement  3.5m employees working <8 hours per week having the right to a written statement

   447,000 increase in number of employees working <8 hours per week

  having the right to a written statement

   1.6m employees with contract duration of <1 month having the right to a

  written statement  658,000 increase in number of employees with contract duration of <1

  month having the right to a written statement

   1.2m-2.0m increase in number casual workers having the right to a written

  statement  Employees having: better understanding of basic working conditions &

  rights at work; clarity in employment relationship; better protection against

  possible infringements of rights; better access to social security protection

  through having proof of employment

   Better integration of casual, part-time, fixed-term and other atypical

  workers in other countries due to provision of written statements

Direct benefits for workers –  46.3m additional employees having new right to information about

strengthened information duration and conditions of probation periods (of those, 37m whose

package contracts include probation periods)

 94.4m additional employees having new right to information about social

security system into which the employer is contributing

 153.4m additional employees having new right to information about

national law applicable in case of termination of contract

 145.2m additional employees having new right to information about

working time (including possibility of extra hours)  4.6m-9.3m additional employees p.a. starting a job and receiving

information about duration and conditions of probation periods

 9.4m-18.9m additional employees p.a. starting a job and receiving

information about social security system into which the employer is contributing

 15.3m-30.7m additional employees p.a. starting a job and receiving

information about national law applicable in case of termination  14.5m-29.0m additional employees p.a. starting a job and receiving

information about precise working time (including possibility of extra hours)

 15.3m-30.7m additional employees p.a. leaving a job having had the right to receive information about national law applicable in case of termination

Direct benefits for workers –  Increased legal certainty from receiving written statements at an earlier shorter deadline (1 st or date before)  111.7m (60% of EU workforce) additional employees having new right to

receive a written statement on the 1 st day of employment or before

 11.2m-22.3m additional employees p.a. starting a job and having new right to receive a written statement on the 1 st day of employment or before

 717,000 additional workers with contract duration of less than 1 month benefitting from a deadline of 1 st day of employment or before

Direct costs for workers  None Direct benefits and costs

Direct benefits for  Modest additional benefits since many employers already provide such employers information (either as required by national legislation or through choice)  Increased legal certainty for 16% of employers (i.e. those not currently providing a written statement for all employees due to legal exemptions)

Direct costs for employers  Significant one-off costs for companies to familiarise with the legislation  One-off cost of providing written statements for existing staff that are

newly covered by an extension of the Directive: €114m-€152m

 Additional costs to provide written statements for new employees that fall

within the categories covered by the Directive:  Additional annual cost of providing written statements (assuming 10% staff

turnover: €11.4m-15.2m

 Additional annual cost of providing written statements (assuming 20% staff

turnover: 22.7m-30.3m  Total cost of providing written statements in first year: €125.4m-182.3m  307 Cost of familiarisation, etc.: €852.5m

Overall labour market impacts

Change in number of people  Negligible: employers’ recruitment decisions unlikely to be employed significantly affected by an extension of the Directive, strengthened information package or shorter deadline

Change in number of hours  No change

worked

Number of casual workers gaining  No change

a second job after prohibition of exclusivity clauses Displacement of workers covered  Overall substitution effects arising from provision of written by the Directive by workers not statements likely to be negligible (majority of employers already covered provide written statements; requirement to provide written statements tends to have negligible influence on recruitment decisions)  Reduction in (already small) risk of workers covered by the Directive being replaced by workers not uncovered

 Very slight increase in risk of workers with employment contracts

being replaced by informal agreements or self-employment contracts (whether legal or bogus)

Overall impact on working conditions

Reduction in  Considerable reduction in undeclared work, as absence of a written statement in an undeclared work employment relationship is often indicative of undeclared work  Reduction in “unwitting” undeclared work by employees not receiving a written statement

 Reduction due to reduced deadline for providing written statements (in part because

fewer temporary workers will complete their contract before receiving a written

307 This total amount represents the average cost per company (53 EUR for an SME and 39 EUR for a larger company) multiplied by the number of all companies in the EU. It is likely an overestimation as mostly companies needing to issue new written statements will need to invest in familiarising with the new legislation.

Overall impact on working conditions statement)

 Increase ease of detection of undeclared work (provision of information on the employment relationship and the declaration of the relationship to the relevant authorities typically occur at the same time)

 Undeclared work occurs most often in sectors with high prevalence of casual work (e.g. construction, catering, agriculture) – bringing casual workers into the scope of the Directive will expose undeclared work and facilitate detection

Reduced abuse of  Increase in number of workers receiving written statement will reduce abuse, as workers written statements facilitate the control of other working conditions by the relevant

body e.g. labour inspectorates  Increase in number of workers having new right to written statement and thus

information about collective agreements governing the employee’s conditions of work

Workers having  Increase in number of workers having new right to written statement and thus better information about amount of paid leave and normal working day reconciliation  145.2m additional employees having new right to information about working time between work and will reduce involuntary/inadvertent overtime

family life More predicable  None working hours through conversion of on-call jobs into minimum hour contracts

Less abuse of  Reduction in abuse of probation periods, as all workers (except small number not probation periods covered by a revised Directive) will have information about the duration and

conditions of probation period  27.7m employees (IE, UK) will continue to have no right to a maximum probation

period

 5.8m employees (21% of employees in IE, UK) will continue to have probationary

periods with no maximum duration  Continuation of abuses linked to lack of statutory maximum probation period (IE,

UK)

 137m employees will continue to have statutory maximum probation period >3

months (AT, BG, CY, CZ, DE, EE, EL, ES, FI, FR, HR, HU, IT, LU, MT, NL, PT, RO, SE, SI SK)

Increased ability of  Right to a written statement reinforces cases brought related to infringements of workers to gain other rights redress

Improved  More harmonised information requirements across the EU conditions of  Increase in workers written information will help them to move between employers transnational and have their work recognised working and  More employees receiving essential information about conditions pertaining to any greater mobility periods of work abroad

Overall impact on public finances Increased tax  Negligible revenues from change in number of hours worked

Reduction in social  Reduction in fraudulent social security claims linked to bogus self-employment or security from undeclared work

Overall impact on public finances

change in  Increase in legitimate social security claims due to better employee awareness

employment or hours worked

Cost of  Increased costs of enforcement due to higher number of workers covered enforcement & support for employers

Overall impact on competitiveness and productivity Significance of  Increase in compliance and administrative costs is negligible compared to total administrative labour costs costs to overall  Majority of employers do not find any particular aspect of the current Directive to be labour costs particularly burdensome at all

Number or % of  More than 80% of employers are likely to benefit from less “unfair competition”, as employers likely to they already provide written statements for employees working <8 hours per week, experience an employees with contracts of less than one month’s duration, on-demand workers and increase / decrease intermittent workers in competitiveness  No loss of flexibility of casual workforce

(taking into account reduction in unfair competition, loss of flexibility, etc.)

Number or % of  Around 20% of employers who do not currently provide written statements will employers likely to benefit (the current Directive has been found to increase staff retention, loyalty and experience an productivity plus a reduction in legal costs, court cases, etc. (REFIT)) increase in staff retention, loyalty and productivity plus a reduction in legal costs, court cases, etc.

Overall impact on application and enforcement Extent to which  Measure 1 (8 hours per week): already adopted in 24 Member States options have  Measure 1 (<1 month): already adopted in 14 Member States already been  Measure 2 (information on probation period): already adopted in 21 Member States adopted  Measure 2 (information on social security system): already adopted in 7 Member

States

 Measure 2 (information on probation period): already adopted in 4 Member States  Measure 2 (information on probation period): already adopted in 9 Member States  Measure 3 (1 st day deadline): already adopted in 10 Member States (or shorter)  Measure 3 (before contract formed): already adopted in 7 Member States (or shorter)

Strengthening  Significant increase in number of workers receiving right to information (+ more enforcement and information + earlier) which is essential to gaining justice ease of modifying  Significant contribution due to more accessible redress mechanisms, increased or strengthening number of employees with their rights protected, stronger legal basis for complaints, means of redress increased court cases due to the stronger position of employees and sanctions  Increase in number of employees using dispute resolution to seek redress for

violations as a non-judicial dispute resolution is less damaging for employment relations

Overall impact on fundamental rights

Confirmation that  Confirmed: no change to the current situation (REFIT study found no obvious no fundamental discrepancies between the Directive and the Charter of Fundamental Rights of the rights will be EU) impinged (e.g. right to operate a business)

Contribution to  Significant contribution, as workers not currently covered by the Directive are more equality between likely to be female (<8 hours per week, casual, etc.) men and women Contribution to  Significant contribution to converting undeclared work and thus individual’s right to freedom to choose engage in legal employment an occupation and right to engage in work Contribution to  Significant increase in number of workers receiving right to information (+ more right to effective information + earlier) which is essential to gaining justice remedy  Significant contribution due to more accessible redress mechanisms, increased

number of employees with their rights protected, stronger legal basis for complaints, increased court cases due to the stronger position of employees

 Increase in number of employees using dispute resolution to seek redress for

violations as a non-judicial dispute resolution is less damaging for employment relations

Contribution to Significant contribution as:

solidarity  Additional employees receiving written statement and thus having better (protection from understanding of basic working conditions & rights at work; clarity in employment unfair dismissal, relationship; better protection against possible infringements of rights; better access fair and just to social security protection through having proof of employment working  93.9m additional employees having new right to information about social security conditions, family system into which the employer is contributing and professional  153.4m additional employees having new right to information about national law life) applicable in case of termination of contract

Access to justice  Significant increase in number of workers receiving right to information (+ more

information + earlier) which is essential to gaining justice

• 2. 

  Impacts of policy package C

  Direct benefits and costs Direct benefits for workers  No increase in number of workers having right to a written statement – right to written statement  Gradual reduction in the proportion of workers covered by the Directive

  (number of people in atypical forms of employment is expected to grow at a faster rate than those in standard forms)

  Direct benefits for workers  43.9m additional employees having new right to information about duration

  – strengthened information and conditions of probation periods (of those, 35.6m whose contracts

  package include probation periods)

   91.2m additional employees having new right to information about social

  security system into which the employer is contributing

   149.3m additional employees having new right to information about

  Direct benefits and costs national law applicable in case of termination of contract

   141.4m additional employees having new right to information about working time (including possibility of extra hours)

   4.4m-8.8m additional employees p.a. starting a job and receiving

  information about duration and conditions of probation periods  9.1m-18.2m additional employees p.a. starting a job and receiving

  information about social security system into which the employer is contributing

   14.9m-29.9m additional employees p.a. starting a job and receiving information about national law applicable in case of termination

   14.1m-28.3m additional employees p.a. starting a job and receiving

  information about precise working time (including possibility of extra hours)

   14.9m-29.9m additional employees p.a. leaving a job having had the right

  to information about national law applicable in case of termination

Direct benefits for workers  Increased legal certainty from receiving written statements at an earlier date – shorter deadline (1 month)  46.7m (25% of EU workforce) additional employees having new right to

receive a written statement within 1 month of starting employment

 4.7m-9.3m additional employees p.a. starting a job and having new right to

receive a written statement within 1 month of starting employment Direct benefits for workers  Increased legal certainty from receiving written statements at an earlier date – shorter deadline (15 days)  103.1m (55% of EU workforce) additional employees having new right to

receive a written statement within 15 days of starting employment  10.3m-20.6m additional employees p.a. starting a job and having new right

to receive a written statement within 15 days of starting employment

 32,000 additional workers with contract duration of less than 1 month

benefitting from a deadline of 15 days

Direct benefits for workers  Increased legal certainty from receiving written statements at an earlier date – shorter deadline (1 st or  81.0m (37% of EU workforce) additional employees having new right to before) receive a written statement on the 1 st day of employment or before

 8.1-16.2m additional employees p.a. starting a job and having new right to

receive a written statement on the 1 st day of employment or before  52,000 additional workers with contract duration of less than 1 month

benefitting from a deadline of 1 st day of employment or before  684,000 workers with contract duration of less than 1 month not benefitting

from a deadline of 1 st day of employment or before Direct benefits for workers  3.1m-3.8m casual and voucher-based employees (already having the right – new rights for casual to a written statement) receiving right to reference hours, minimum workers advance notice period, minimum number of hours set at the average of the

preceding period, freedom from exclusivity clauses Direct benefits for workers  52.5m additional employees receiving possibility to request a new form of – new rights for all workers employment

 31.5m additional employees receiving right to maximum duration of

probation

Direct costs for workers  None Direct benefits for  Modest additional benefits since many employers already provide such employers information (either as required by national legislation or through choice)

 Increased legal certainty for 16% of employers (i.e. those not currently

providing a written statement for all employees due to legal exemptions)  Minimal annual additional revenues to secondary employers due to

prohibition of exclusivity clauses Direct benefits and costs

Direct costs for employers  Additional annual cost of providing written statements: €0  Cost of familiarisation, etc.: €852.5m 308

 Minimal annual reorganisation costs due to unavailability of ondemand/zero-hours

staff taking second jobs

Labour market impacts primarily relate to on-demand/zero-hour workers enabled to get a job by prohibition on exclusivity clauses. If the scope of the Directive is not extended (Measure 1), then only those on-demand/zero-hour workers which are already covered by the Directive (due to scope of national legislation) will benefit. Precise data is not available, since such workers are not always defined in national data sets, however, the number will be relatively modest.

Overall labour market impacts Change in number of people  Modest number of on-demand/zero-hour contract workers enabled to get a employed second job with another employer Change in number of hours  Modest number of extra hours worked per annum by on-demand/zero-hour worked contract workers enabled to get a second job with another employer Number of casual workers  Modest number of on-demand/zero-hour contract workers enabled to get a gaining a second job after second job with another employer prohibition of exclusivity clauses

Increased income of workers  Slight increase in gross annual earnings of on-demand/zero-hour contract workers enabled to get a second job with another employer

Displacement of workers  Minimal adjustments by employers to their workforces

covered by the Directive by workers not covered

Overall impact on working conditions Reduction in  Slight reduction due to reduced deadline for providing written statements undeclared work  Overall, minimal reduction, as many/most atypical workers will remain outside the

scope of the Directive (undeclared work occurs most often in sectors with high prevalence of casual work, e.g. construction, catering, agriculture)

Reduced abuse of  Modest effect as many of the most vulnerable workers will remain outside the scope workers of the Directive. Workers having  Modest effect as many of the most vulnerable workers will remain outside the scope better of the Directive. reconciliation between work and family life

More predicable  Modest effect as many of the most vulnerable workers will remain outside the scope working hours of the Directive.

308 This total amount represents the average cost per company (53 EUR for an SME and 39 EUR for a larger company) multiplied by the number of all companies in the EU. It is likely an overestimation as mostly companies needing to issue new written statements will need to invest in familiarising with the new legislation.

Overall impact on working conditions through conversion of on-call jobs into minimum hour contracts

Less abuse of  Some reduction in abuse of probation periods, as most workers will have probation periods information about the duration and conditions of probation period

 32.4m employees (IE, UK) will continue to have no right to a maximum probation period

 6.8m employees (21% of employees in IE, UK) will continue to have probationary

periods with no maximum duration  Continuation of abuses linked to lack of statutory maximum probation period (IE,

UK)  163m employees will continue to have statutory maximum probation period >3

months (AT, BG, CY, CZ, DE, EE, EL, ES, FI, FR, HR, HU, IT, LU, MT, NL, PT, RO, SE, SI SK)

Increased ability of  Modest effect as many of the most vulnerable workers will remain outside the scope workers to gain of the Directive. redress

Improved  More harmonised information requirements across the EU conditions of  Increase in workers written information will help them to move between employers transnational and have their work recognised working and  Minimal benefit for atypical workers that remain outside the scope of the Directive

greater mobility

Overall impact on public finances Increased tax  Modest effect as many casual workers that are subject to exclusivity clauses will revenues from remain outside the scope of the Directive (and thus remain unable to get a second change in number job with another employer). of hours worked

Reduction in social  Modest effect as many casual workers that are subject to exclusivity clauses will security from remain outside the scope of the Directive (and thus remain unable to get a second change in job with another employer). employment or  Increase in legitimate social security claims due to better employee awareness via hours worked strengthened information package Cost of  No change enforcement & support for employers

Overall impact on competitiveness and productivity

Significance of  Increase in compliance and administrative costs is negligible compared to total administrative labour costs costs to overall  Majority of employers do not find any particular aspect of the current Directive to be labour costs particularly burdensome at all Number or % of  More than 80% of employers will continue to suffer from “unfair competition”, as employers likely to they already provide written statements for employees working <8 hours per week, experience an employees with contracts of less than one month’s duration, on-demand workers and increase / decrease intermittent workers in competitiveness

Overall impact on competitiveness and productivity (taking into account reduction in unfair competition, loss of flexibility, etc.)

Number or % of  Some modest effects as workers receive more information and within a shorter employers likely to deadline. experience an  Overall, limited, as many atypical workers remain outside the scope of the Directive.

increase in staff retention, loyalty and productivity plus a reduction in legal costs, court cases, etc.

Overall impact on application and enforcement Extent to which  Measure 1 (8 hours per week): already adopted in 23 Member States measures have  Measure 1 (<1 month): already adopted in 13 Member States already been  Measure 2 (information on probation period): already adopted in 21 Member States adopted  Measure 2 (information on social security system): already adopted in 7 Member

States

 Measure 2 (information on probation period): already adopted in 4 Member States  Measure 2 (information on probation period): already adopted in 9 Member States  Measure 3 (1 st day deadline): already adopted in 10 Member States (or shorter)  Measure 3 (before contract formed): already adopted in 7 Member States (or shorter)

Strengthening  No increase in number of workers receiving right to information enforcement and  Many atypical workers not receiving any benefit ease of modifying  For workers already covered, receiving more information + earlier which is essential or strengthening to gaining justice means of redress  For workers already covered, some contribution due to more accessible redress and sanctions mechanisms, stronger legal basis for complaints, increased court cases due to the

stronger position of employees

 Slight increase in number of employees using dispute resolution to seek redress for

violations as a non-judicial dispute resolution is less damaging for employment relations

Overall impact on fundamental rights Confirmation that  Confirmed: no change to the current situation (REFIT study found no obvious no fundamental discrepancies between the Directive and the Charter of Fundamental Rights of the rights will be EU) impinged (e.g. right to operate a business)

Contribution to  No significant contribution, as workers remaining outside the scope of the Directive equality between are more likely to be female (<8 hours per week, casual, etc.) men and women

Contribution to  Slight contribution to converting undeclared work and thus individual’s right to freedom to choose engage in legal employment an occupation and right to engage in work

Contribution to  Some contribution due to more accessible redress mechanisms, stronger legal basis right to effective for complaints, increased court cases due to the stronger position of employees remedy  Some increase in number of employees using dispute resolution to seek redress for

violations as a non-judicial dispute resolution is less damaging for employment relations

Contribution to  Some contribution as employees already covered will have better understanding of solidarity basic working conditions & rights at work; clarity in employment relationship; better (protection from protection against possible infringements of rights; better access to social security unfair dismissal, protection through having proof of employment fair and just working conditions, family and professional life)

Access to justice  Slight contribution as workers already covered will be better informed.

• 3. 

  Impacts of policy package D

  Direct benefits and costs Direct benefits for workers  2.0m employees working <8 hours per week having the right to a written – right to written statement statement

   108,000 increase in number of employees working <8 hours per week

  having the right to a written statement  1.6m employees with contract duration of <1 month having the right to a

  written statement

   664,000 increase in number of employees with contract duration of <1

  month having the right to a written statement  Workers having the right to a written statement due to new definition of

  employee  Employees having: better understanding of basic working conditions &

  rights at work; clarity in employment relationship; better protection against possible infringements of rights; better access to social security protection through having proof of employment

   Better integration of casual, part-time, fixed-term and other atypical workers in other countries due to provision of written statements

  Direct benefits for workers  46.3m additional employees having new right to information about duration – strengthened information and conditions of probation periods (of those, 37m whose contracts include package probation periods)  93.9m additional employees having new right to information about social security system into which the employer is contributing

   153.4m additional employees having new right to information about

  national law applicable in case of termination of contract  145.2m additional employees having new right to information about

  working time (including possibility of extra hours)

   4.6m-9.3m additional employees p.a. starting a job and receiving

  information about duration and conditions of probation periods

   15.3m-30.7m additional employees p.a. leaving a job having received

  information about national law applicable in case of termination

  Direct benefits for workers  Increased legal certainty from receiving written statements at an earlier date

  – shorter deadline (1 st or  81.0m (37% of EU workforce) additional employees having new right to

  before) receive a written statement on the 1 st day of employment or before

   8.1-16.2m additional employees p.a. starting a job and having new right to

  receive a written statement on the 1 st day of employment or before Direct benefits and costs

   696,000 additional workers with contract duration of less than 1 month benefitting from a deadline of 1 st day of employment or before

  Direct benefits for workers  Between 4.3m and 5.7m additional casual and voucher-based workers – new rights for casual receiving right to reference hours workers  Between 5.2m and 6.7m additional casual and voucher-based workers

  receiving right to minimum advance notice period

   Between 4.3m and 5.4m additional casual workers receiving right to

  minimum number of hours set at the average of the preceding period  Between 5.7m and 7.1m additional casual workers receiving right to

  freedom from exclusivity clauses

  Direct benefits for workers  55m additional employees receiving possibility to request a new form of – new rights for all workers employment  14m fixed-term workers might make use of the possibility to request a new form of employment

   31.5m additional employees receiving right to maximum duration of

  probation Direct costs for workers  None

  Direct benefits for  Modest additional benefits since many employers already provide such employers information (either as required by national legislation or through choice)  Increased legal certainty for 16% of employers (i.e. those not currently

  providing a written statement for all employees due to legal exemptions)

   €42m-€167m annual additional revenues to secondary employers due

  to prohibition of exclusivity clauses

  Direct costs for employers  One-off cost of providing written statements for existing staff that are

  newly covered by an extension of the Directive: €114m-€152m  Additional annual cost of providing written statements (assuming 10% staff

  turnover: € 11.4m-15.2m  Additional annual cost of providing written statements (assuming 20% staff

  turnover: 22.7m-30.3m  Total cost of providing written statements in first year: €125.4m 182.3m  Cost of familiarisation, etc.: €852.5m 309  €7m-€27m annual reorganisation costs due to unavailability of ondemand/zero-hours

  staff taking second jobs  Total compliance costs policy package D: €1944.5 - €1987.2m

  Overall labour market impacts

  Change in number of people  91,000 – 364,000 on-demand/zero-hour contract workers enabled to get a employed second job with another employer Change in number of hours  33m-133m extra hours worked per annum by on-demand/zero-hour worked contract workers enabled to get a second job with another employer Number of casual workers  91,000 – 364,000 on-demand/zero-hour contract workers enabled to get a gaining a second job after second job with another employer prohibition of exclusivity clauses Increased income of workers  €355m-€1,424m increase in gross annual earnings of on-demand/zero

309 This total amount represents the average cost per company (53 EUR for an SME and 39 EUR for a larger company) multiplied by the number of all companies in the EU. It is likely an overestimation as mostly companies needing to issue new written statements will need to invest in familiarising with the new legislation.

hour contract workers enabled to get a second job with another employer Displacement of workers  Extent of adjustments by employers to their workforces are uncertain but covered by the Directive by might be modest workers not covered  No overall pattern discernible: the majority will not adjust their

workforces. Of those employing casual workers, a sizeable proportion will

make no change. Some (likely to be <50%) may replace casual contracts

with standard forms of employment. A smaller proportion may simply

recruit fewer casual workers. A yet smaller proportion might replace

casual work contracts with informal agreements or self-employment

arrangements.

Overall impact on working conditions Reduction in  Considerable reduction in undeclared work, as absence of a written statement in an undeclared work employment relationship is often indicative of undeclared work

 Reduction in “unwitting” undeclared work by employees not receiving a written

statement  Reduction due to reduced deadline for providing written statements (in part because

fewer temporary workers will complete their contract before receiving a written statement)

 Increase ease of detection of undeclared work (provision of information on the employment relationship and the declaration of the relationship to the relevant authorities typically occur at the same time)

 Undeclared work occurs most often in sectors with high prevalence of casual work (e.g. construction, catering, agriculture) – bringing casual workers into the scope of the Directive will expose undeclared work and facilitate detection

Reduced abuse of  Increase in number of workers receiving written statement will reduce abuse, as workers written statements facilitate the control of other working conditions by the relevant

body e.g. labour inspectorates  Increase in number of workers having new right to written statement and thus

information about collective agreements governing the employee’s conditions of work

Workers having  Increase in number of workers having new right to written statement and thus better information about amount of paid leave and normal working day reconciliation  45.2m additional employees having new right to information about working time between work and will reduce involuntary/inadvertent overtime family life  Casual workers benefitting from reference hours and minimum advance notice

period

More predicable  Casual workers benefitting from reference hours and minimum advance notice working hours period through conversion of on-call jobs into minimum hour contracts

Less abuse of  Reduction in abuse of probation periods, as all workers (except small number not probation periods covered by a revised Directive) will have information about the duration and

conditions of probation period

 32.4m employees (IE, UK) will continue to have no right to a maximum probation

period  6.8m employees (21% of employees in IE, UK) will continue to have probationary

periods with no maximum duration

 Continuation of abuses linked to lack of statutory maximum probation period (IE,

UK)  163m employees will continue to have statutory maximum probation period >3

months (AT, BG, CY, CZ, DE, EE, EL, ES, FI, FR, HR, HU, IT, LU, MT, NL, PT, RO, SE, SI SK)

Overall impact on working conditions Increased ability of  Right to a written statement reinforces cases brought related to infringements of workers to gain other rights redress

Improved  More harmonised information requirements across the EU conditions of  Increase in workers written information will help them to move between employers transnational and have their work recognised working and  More employees receiving essential information about conditions pertaining to any greater mobility periods of work abroad

Overall impact on public finances Increased tax  €46m-€185m annual additional tax revenues from on-demand/zero-hour revenues from contract workers taking a second job due to prohibition of exclusivity clauses

change in number of hours worked

Reduction in social  Reduction in social security payments resulting from 33m-133m extra hours security from worked per annum by on-demand/zero-hour contract workers enabled to get a change in second job with another employer employment or  Reduction in fraudulent social security claims linked to bogus self-employment or hours worked undeclared work

 Increase in legitimate social security claims due to better employee awareness Cost of  Increased costs of enforcement due to higher number of workers covered enforcement & support for employers

Overall impact on competitiveness and productivity Significance of  Increase in compliance and administrative costs is negligible compared to total administrative labour costs costs to overall  Majority of employers who replied to the survey do not find any particular aspect of labour costs the current Directive to be particularly burdensome Number or % of  More than 80% of employers are likely to benefit from less “unfair competition”, as employers likely to they already provide written statements for employees working <8 hours per week, experience an employees with contracts of less than one month’s duration, on-demand workers and increase / decrease intermittent workers in competitiveness  Secondary employers having access to 91,000 – 364,000 workers for 33m-133m (taking into hours per annum account reduction  Of those not yet providing basic rights for casual workers, the majority of in unfair employers anticipate incurring increased indirect compliance costs from the competition, loss of provision of such rights – although mostly to a modest rather than to a great flexibility, etc.) extent (legal advice, revised scheduling systems, HR manager time, staff

training, informing staff) Number or % of  Around 20% of employers who do not currently provide written statements will employers likely to benefit (the current Directive has been found to increase staff retention, loyalty and experience an productivity plus a reduction in legal costs, court cases, etc. (REFIT)) increase in staff  More employers anticipate gaining than not gaining benefits from the provision retention, loyalty of new basic rights for casual workers: higher staff retention/loyalty, improved and productivity productivity, improved worker relations, fewer complaints from workers, fewer plus a reduction in court cases related to working conditions, lower training costs, lower other legal costs, court costs, better resource planning & work allocation.

cases, etc.

Overall impact on application and enforcement Extent to which  Measure 1 (8 hours per week): already adopted in 23 Member States measures have  Measure 1 (<1 month): already adopted in 13 Member States already been  Measure 2 (information on probation period): already adopted in 21 Member States adopted  Measure 2 (information on social security system): already adopted in 7 Member

States

 Measure 2 (information on probation period): already adopted in 4 Member States  Measure 2 (information on probation period): already adopted in 9 Member States  Measure 3 (1 st day deadline): already adopted in 10 Member States (or shorter)  Measure 3 (before contract formed): already adopted in 7 Member States (or shorter)

Strengthening  Significant increase in number of workers receiving right to information (+ more enforcement and information + earlier) which is essential to gaining justice ease of modifying  Significant contribution due to more accessible redress mechanisms, increased or strengthening number of employees with their rights protected, stronger legal basis for complaints, means of redress increased court cases due to the stronger position of employees and sanctions  Increase in number of employees using dispute resolution to seek redress for

violations as a non-judicial dispute resolution is less damaging for employment relations

Overall impact on fundamental rights

Confirmation that  Confirmed: no change to the current situation (REFIT study found no obvious no fundamental discrepancies between the Directive and the Charter of Fundamental Rights of the rights will be EU) impinged (e.g. right to operate a business)

Contribution to  Significant contribution, as workers not currently covered by the Directive are more equality between likely to be female (<8 hours per week, casual, etc.) men and women

Contribution to  Significant contribution to converting undeclared work and thus individual’s right to freedom to choose engage in legal employment an occupation and  Substantial contribution for on-demand/zero-hour contract workers currently right to engage in prevented from taking a second job by exclusivity clauses

work Contribution to  Significant increase in number of workers receiving right to information (+ more right to effective information + earlier) which is essential to gaining justice remedy  Significant contribution due to more accessible redress mechanisms, increased

number of employees with their rights protected, stronger legal basis for complaints, increased court cases due to the stronger position of employees

 Increase in number of employees using dispute resolution to seek redress for

violations as a non-judicial dispute resolution is less damaging for employment relations

Contribution to Significant contribution as:

solidarity  Additional employees receiving written statement and thus having better (protection from understanding of basic working conditions & rights at work; clarity in employment unfair dismissal, relationship; better protection against possible infringements of rights; better access fair and just to social security protection through having proof of employment working  93.9m additional employees having new right to information about social security conditions, family system into which the employer is contributing and professional  153.4m additional employees having new right to information about national law life) applicable in case of termination of contract Access to justice  Significant increase in number of workers receiving right to information (+ more

information + earlier) which is essential to gaining justice

• 4. 

  Impacts of extending the coverage of the Directive to domestic workers

The Written Statement Directive does not specifically exclude domestic workers from

its application. However, the question whether domestic workers are covered by the

Directive or not often depends on whether the contract or employment relationship is

defined by national law. For that reason, it is not possible to simply state whether

Member State law has extended the Directive to all domestic workers or not.

Many domestic workers operate under the terms of an informal or verbal agreement rather than a contract or employment relationship defined by national law. Such work

can also be undeclared. In these cases, the worker would not be covered by the

Directive.

Some domestic workers are employed under a contract or employment relationship

defined by national law. However, these might be a minority. In these cases, the worker would be covered by the Directive. In some Member States, the labour law

makes specific reference to domestic workers. Some examples are provided in the box

below.

Based on their level of coverage of domestic workers the EU MS can be grouped as

follows:

Categorisation of Member States regarding domestic workers

Domestic Yes (16) Possibly (9) No (3)

workers

covered?

Countries AT, BE, CY, FI, BG, HR, CZ, DK, HU, NL, SE FR, DE, EL, IT, EE, IE, PL, SK, SL

LV, LT, LU, MT, PT, RO, ES, UK

Source: Own CSES and PPMI research

The table shows that in 15 Member States, domestic workers are covered by the

Directive and are entitled to receive a written statement. In 9 Member States, their right

to a written statement depends on their employment relationship. Only in Hungary, the

Netherlands and Sweden, domestic workers are excluded from the scope of the

Directive.

The extent to which domestic workers will benefit from any revision of the Directive will

depend on two things: i) the extent to which such workers are recognised in law as

workers or employees; and ii) the extent to which employers comply with any legal

requirement to provide a written statement – this latter point will depend on the ease with

which private households are able to comply.

Regarding the first point, previous research by the ILO has found that some countries

have already enacted specific laws or regulations dealing with domestic work, e.g.

Austria, Denmark, Finland, Hungary, Italy, Malta, Portugal, Spain, Sweden. 310 Other

countries have devoted specific chapters, titles or sections in labour codes, employment acts or acts respecting contracts of employment, e.g. Belgium. Some countries have

enacted national collective agreements in addition to the Labour Code, e.g. France.

However, the ILO research found that only a few of those countries specifically required

the provision of a written contract of employment, e.g. Austria, Finland, France. 311 In

some countries, most domestic workers are covered by the legislation transposing the

Directive into national law, e.g. Poland, Romania.

Where domestic workers are defined as workers or employees, they have the right to a

written statement, unless excluded for other reasons (e.g. if the employment relationship

has a duration of less than one month or involves a working week not exceeding eight

hours, and these exclusions have been transposed into the national legislation). For

example:

 Sweden: since 2008 the Working Environment Act has applied to work carried

out in private households, bringing domestic work within the competence of the Working Environment Authority. There is currently a proposal (Ds 2017:10) to bring the treatment of domestic workers up to the standards of the ILO

Convention.

 France: salaried domestic workers must have a written employment contract that

specifies their function, remuneration and working hours.

 Portugal: domestic workers are governed by specific legislation - Decree-Law

235/92, 24 October. The Domestic contract is a labour contract similar to the

Labour Code employment contract.

 Poland: no groups of workers are excluded from information obligations related

to transposition of the Directive in the Polish Labour Code. Any person who has the status of an employee/worker according to Article 2 Labour Code irrespective of the type of work he/she performed (including domestic workers, notwithstanding the working time system or the working time (flexible working time), the number of hours worked in the week (< 8 hours) or the number of working days a month (< less than one month), is covered by protection resulting

from the obligation to inform them of their working conditions.

In those Member States that have defined domestic workers as employees, brought such

workers within the scope of labour codes or otherwise extended the scope of the

Directive to such workers, the extent to which domestic workers benefit will depend on

the level of compliance by employers. In some countries, such as Austria and Sweden, it

310 ILO (2003), Domestic work, conditions of work and employment: A legal perspective

311 The ILO research only covered 10 EU Member States: Belgium, Denmark, Finland, France, Hungary, Italy, Malta, Portugal, Spain, and Sweden.

was reported that compliance is generally high. For example, in Sweden, a recent survey

found that 87% of employers in Sweden (all employers, not only private households) would provide the relevant information, even where there are no minimum requirements

established in law.

However, the evidence suggests that in some Member States, the level of compliance can

be particularly low in respect of domestic workers. The main reasons offered for the low

level of compliance in Romania were reported to be the wish to avoid the fiscal and administrative burden associated with formal employment and to retain the flexibility to

terminate the employment relationship as and when the employer wishes. For example,

in Romania, it was reported that most domestic work is not generally declared and

therefore no written statement is provided for around 70% of domestic workers (14,000

out of 20,000).

It was also reported that domestic workers typically find it difficult to gain redress if they do not receive a written statement or if other rights are infringed. For example, an

employee representative in Italy interviewed in the framework of the study reported

domestic workers find it more difficult to redress compared to workers in standard

contract and that domestic workers or workers in very small businesses find it

particularly challenging to bring employers to court.

Generally, it is very rare that employees take legal action, solely on the basis of nonprovision

of a written statement. However, where domestic workers bring legal cases for

other reasons (e.g. exploitative working conditions) the lack of a written statement can

support their case.

Regarding the feasibility of private households complying, the following considerations are relevant:

First, by definition, the monetised cost of compliance would generally be zero, assuming

that the private householder is providing the statement during his/her personal rather than

professional time.

Second, a private householder would probably require at least as much time as an SME to familiarise himself/herself with the requirements of the Directive and perhaps more,

given the likelihood that he/she will often not have specific legal or human resource

expertise. The estimated time is around 90 minutes for an SME. At the same time, the

householder would probably not have to transfer the information individually to multiple

persons (as might be the case in a firm), which will limit the time required.

Third, it is reasonable to assume that a private household would probably require at least

as much time as an SME to provide the written statement (and perhaps more, given the

likelihood that the household will not have the relevant professional expertise). The

REFIT study found that SMEs take 15-30 minutes to provide the written statement (per contract/work relationship). A conservative estimate would therefore be that a private

household would require at least 30 minutes per statement.

Fourth, private households would particularly benefit from provision of templates by Member States. The REFIT review found that templates for a written contract or written

statement are already available in over half of Member States, typically provided by the

Ministry of Labour or a labour inspectorate. 312 Such templates are most effective at

national level, given the different national traditions of collective bargaining, different

approaches to the regulation of working time, etc. Rates of compliance would probably

be increased by i) the provision of national templates specifically for private households employing domestic workers and by ii) specific advice for private households provided

by the relevant advisory bodies.

Fifth, the REFIT study found little evidence to suggest that a disproportionate burden

was being placed on micro-enterprises (<10 employees) and that there was virtually no

appetite for exemptions for micro-enterprises. Of course, private households are different from micro-enterprises, but this does support the argument that limited legal or human

resource expertise is not necessarily a barrier to compliance.

Lastly, domestic workers who provide services through the use of vouchers would be a

special case, with their circumstances depending on the details of the relevant national

scheme. For example, voucher workers in Belgium are employed by an intermediary

organisation and therefore already have certain rights to receive information. In other cases, voucher-based systems often relate to an “intermediary” form of employment and

it can be unclear if an employment relationship exists between the client and the worker –

particularly, if work is provided only one a one-off rather than recurring basis.

312 Such templates were not available in 13 MS: BE, BG, CZ, DE, DK, HR, HU, IT, NL, PT, SE, SI, and SK.

A NNEX 10: C OHERENCE

• 1. 

  Coherence with EU labour law

Each policy option has been tested for coherence with EU policy objectives, including the Charter for fundamental rights, and the existing legal framework, in particular concerning EU labour law: EU Directives on fixed-term work, part-time work, temporary agency work, working time, sectoral working conditions, posting of workers, gender equality and anti-discrimination, and other initiatives in the field (e.g. proposal for a Directive on Work-Life Balance).

All policy options apart from Baseline include measures 2, 3, 5.

All policy options apart from Baseline include measures 2, 3, 5 that present new

provisions to improve coherence with the social acquis and other policy initiatives. This

allows considering packages B, C and D as ensuring better coherence than the baseline option:

 Coherence with posting of workers provisions has been enhanced as suggested by

the REFIT evaluation.

 Coherence with Temporary Agency Work Directive has been enhanced (see

enhanced scope and rules to allow more legal persons to perform employer-like

duties) as suggested by the REFIT evaluation.

 Due to the role of written statements as tool to detect undeclared work, as found

in the REFIT study, the change in the timeliness of the provision, the enhanced

scope covering jobs at high risk of undeclared work, the additional information to be provided and the enhanced enforcement rules increase the coherence with the

action on undeclared work.

 Moreover, the goal of supporting action on undeclared work is also pursued by

establishing the criteria for supporting assessment of the existence of an

employment relationship for the scope of the Directive. This should support

combating fraudulent contracting and bogus self-employment.

 Coherence with the equal treatment acquis covering discrimination in the

workplace has been improved introducing consistent provisions on enforcement.

Other instruments of EU labour law have a broader personal scope than the current

Directive. Either they apply to ‘workers’ (e.g. Working Time Directive) or they have

been interpreted as having a scope going beyond national limitations to workers (e.g.

Temporary Agency Work). The exclusion criteria are also different across the spectrum. Moreover, the REFIT evaluation found that the discrepancy between the aim of the

Directive stated in the preamble covering ‘every employee’ and the material scope of the current Directive allowing for more than limited exclusions is an obstacle to internal

coherence.

Policy package B and D would therefore increase the coherence of the personal scope of EU labour law. This would avoid allowing a new instrument to provide for a personal

scope more detrimental to equal treatment than other existing ones. This enhances

coherence with the Working Time Directive and the Part-Time, Fixed-Term and

Temporary Agency Work Directive, allowing for the current exclusions to remain would give rise for incoherence.

The provision of additional material rights is present in options C and D and absent from

A and B. These additional rights also support the goals of the Working Time Directive,

Fixed-Term Directive, Part-Time Directive and Temporary Agency Directive. Indeed:

 Proposals to support predictability of working schedules support the achievement

of an organisation of working time protective of safety and health of workers, as

in the Working Time Directive.

 The elimination of the exclusion criteria for workers working less than 8 hours

per week supports the achievement of the aims of the Part-Time work Directive.

 Additionally, the Part-Time Work Directive aims at supporting part-time on a

voluntary basis only: provisions on the possibility to request and receive a reply in writing, or on the assessment of working hours at a preceding average should

support this aim by decreasing involuntary part-time.

 The elimination of the exclusion criteria for workers in contracts of less than one

month supports the achievement of the aims of the Fixed-Term Work Directive.

 The Fixed-Term Work Directive and the Part-Time Work Directive are aimed at

improving the quality of specific forms of work by preventing nondiscrimination,

 and establishing a framework to prevent abuse (clause 5 FTD)

and to ensure the development of contractual form taking into account the needs of employers and workers (clause 1 PTD). The protection of non-standard

workers, the improvement of the quality of their work are also the aims of the

Temporary Agency Work Directive (Art. 2). The new rights proposed support the

same goal, for the same categories of workers and beyond for other forms of nonstandard work (e.g. casual workers).

Furthermore, the possibility to request another form of employment relationship

reproduces similar provisions existing in the Parental Leave Directive and in the Proposal

for a Directive on Work-Life Balance, strengthening similar aims in the Fixed-Term

Work, Part-Time Work and Temporary Agency Directives.

The Parental Leave Directive already provides for the possibility to ask for two types of

flexible working arrangements (working patterns and working hours) for parents

returning from parental leave. The proposal for a Directive on Work-Life Balance for parents and carers introduces a proposed right, for workers with children up to at least 12

years old, to request flexible working arrangements for caring purposes; employers would have then a duty to consider and respond to requests for flexible working

arrangements, taking into account the needs of both employers and workers, and justify

any refusal of such a request. Employers would also have the obligation to consider and

respond to requests to return to the original working pattern. Under the Part-Time Work

Directive, employers should give consideration, as far as possible, to (a) requests by

workers to transfer from full-time to part-time work that becomes available in the establishment, (b) requests by workers to transfer from part-time to full-time work or to

increase their working time should the opportunity arise; (c) the provision of timely

information on the availability of part-time and full-time positions in the establishment in

order to facilitate transfers from full-time to part-time or vice versa. The Fixed Term

Work Directive provides that employers shall inform fixed-term workers about vacancies which become available in the undertaking or establishment to ensure that they have the

same opportunity to secure permanent positions as other workers. Such information may

be provided by way of a general announcement at a suitable place in the undertaking or

establishment. Member States have transposed those provisions in their national

legislation but few have implemented any more favourable measures such as obliging the employer to provide a reasoned reply to this request or granting a priority for part-time

workers to access available full time positions in the undertakings.

• 2. 

  Coherence with Principles of the European Pillar of Social Rights

Pillar Principle Relevant text Proposal

• 1. 

  Education, Everyone has the right to quality and New right on cost-free training and lifeinclusive education, training and lifemandatory training long learning long learning in order to maintain and (measure 4) Information

  acquire skills that enable them to on training (measure 2) participate fully in society and manage successfully transitions in the labour market.

• 2. 

  Gender Equality of treatment and Proposal overall will equality opportunities between women and men contribute

  must be ensured and fostered in all areas, including regarding participation in the labour market, terms and conditions of employment and career progression.

  Women and men have the right to equal pay for work of equal value.

• 3. 

  Equal Regardless of gender, racial or ethnic Proposal overall will opportunities origin, religion or belief, disability, age contribute

  or sexual orientation, everyone has the right to equal treatment and opportunities regarding employment, social protection, education, and access to goods and services available to the public. Equal opportunities of underrepresented groups shall be fostered.

• 4. 

  Active support Everyone has the right to timely and Right to cost-free to employment tailor-made assistance to improve mandatory training

employment or self-employment (measure 4), prospects. This includes the right to information on training

receive support for job search, training (measure 2) and re-qualification. Everyone has the right to transfer social protection and training entitlements during professional transitions.

• 5. 

  Secure and Regardless of the type and duration of Changes in scope adaptable the employment relationship, … (measure 1) employment

…workers have the right to fair and Proposal overall, equal treatment regarding working specifically new rights conditions …and training… (measure 4) combined

with 1 scope The transition towards open-ended Proposal overall, forms of employment shall be fostered. specifically New rights

(measure 4): Possibility to request another form of work and receive a reply in writing,

combined with 1 scope. …the necessary flexibility for Proposal overall employers to adapt swiftly to changes in the economic context shall be ensured.

Innovative forms of work that ensure quality working conditions shall be fostered. Entrepreneurship and selfemployment shall be encouraged.

Employment relationships that lead to Proposal overall, precarious working conditions shall be specifically new rights prevented, including by prohibiting (measure 4), specifically abuse of atypical contracts. limitation of exclusivity clauses, combined with

1 scope. Any probation period should be of Measure 4, limitation of reasonable duration probation 6. Wages Workers have the right to fair wages Proposal overall,

that provide for a decent standard of specifically new rights living. (measure 4) allowing for … In-work poverty shall be prevented. additional employment, limitation of exclusivity clauses, reference hours

combined with 1 scope. 7. Information Workers have the right to be informed Proposal overall, about in writing at the start of employment specifically Measures 2 employment about their rights and obligations and 3 on time and conditions and resulting from the employment content of written protection in case relationship, including on probation statement including of dismissals period. probation combined

with 1 scope. Prior to any dismissal, workers have the Measure 5 combined right to be informed of the reasons and with 1 scope. be granted a reasonable period of notice.

They have the right to access to effective and impartial dispute resolution and, in case of unjustified dismissal, a right to redress, including adequate compensation.

• 8. 

  Social dialogue The social partners shall be consulted on Proposal takes into and involvement the design and implementation of consideration of workers economic, employment and social contributions from 2

policies according to national practices. stages of consultation + They shall be encouraged to negotiate derogations for

and conclude collective agreements in collective bargaining matters relevant to them, while respecting their autonomy and the right to collective action. Where appropriate, agreements concluded between the social partners shall be implemented at the level of the Union and its Member States. Workers or their representatives have the right to be informed and consulted in good time on matters relevant to them, in particular on the transfer, restructuring and merger of undertakings and on collective redundancies. Support for increased capacity of social partners to promote social dialogue shall be encouraged.

• 9. 

  Work-life Parents and people with caring Measure 4 combined balance responsibilities have the right to suitable with measure 1 scope –

  leave, flexible working arrangements particularly rights to and access to care services. Women and predictability men shall have equal access to special leaves of absence in order to fulfil their caring responsibilities and be encouraged to use them in a balanced way.

• 10. 

  Healthy, safe Workers have the right to a high level of Measure 4 specifically and well-adapted protection of their health and safety at reference hours work work. Workers have the right to a environment and working environment adapted to their data protection professional needs and which enables

  them to prolong their participation in the labour market. Workers have the right to have their personal data protected in the employment context.

11 to 20 -Chapter Information on social III: Social security in renewed protection and information package inclusion measure 2, combined

with 1 scope

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