Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union
Date: 2019-06-20
Institutions: Council of the European Union, European Parliament
Subjects: EU employment policy, collective agreement, dismissal, probationary period, work contract, worker information, working conditions




L_2019186EN.01010501.xml










11.7.2019   


EN


Official Journal of the European Union


L 186/105








            DIRECTIVE (EU) 2019/1152 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
         
of 20 June 2019
         
on transparent and predictable working conditions in the European Union


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular point (b) of Article 153(2), in conjunction with point (b) of Article 153(1) thereof,


Having regard to the proposal from the European Commission,


After transmission of the draft legislative act to the national parliaments,


Having regard to the opinion of the European Economic and Social Committee (1),


Having regard to the opinion of the Committee of the Regions (2),


Acting in accordance with the ordinary legislative procedure (3),

Whereas:







(1)


Article 31 of the Charter of Fundamental Rights of the European Union provides that every worker has the right to working conditions which respect his or her health, safety and dignity, to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.












(2)


Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17 November 2017, provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, access to social protection and training, and that the transition towards open-ended forms of employment is to be fostered; that, in accordance with legislation and collective agreements, the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured; that innovative forms of work that ensure quality working conditions are to be fostered, that entrepreneurship and self-employment are to be encouraged and that occupational mobility is to be facilitated; and that employment relationships that lead to precarious working conditions are to be prevented, including by prohibiting abuse of atypical contracts, and that any probationary period is to be of a reasonable duration.












(3)


Principle No 7 of the European Pillar of Social Rights provides that 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 any probationary period; that prior to any dismissal they are entitled to be informed of the reasons and given a reasonable period of notice; and that they have the right to access to effective and impartial dispute resolution and, in the case of unjustified dismissal, a right to redress, including adequate compensation.












(4)


Since the adoption of Council Directive 91/533/EEC (4), labour markets have undergone far-reaching changes due to demographic developments and digitalisation leading to the creation of new forms of employment, which have enhanced innovation, job creation and labour market growth. Some new forms of employment vary significantly from traditional employment relationships with regard to predictability, creating uncertainty with regard to the applicable rights and the social protection of the workers concerned. In this evolving world of work, there is therefore an increased need for workers to be fully informed about their essential working conditions, which should occur in a timely manner and in written form to which workers have easy access. In order adequately to frame the development of new forms of employment, workers in the Union should also be provided with a number of new minimum rights aiming to promote security and predictability in employment relationships while achieving upward convergence across Member States and preserving labour market adaptability.












(5)


Pursuant to Directive 91/533/EEC, the majority of workers in the Union have the right to receive written information about their working conditions. Directive 91/533/EEC does not however apply to all workers in the Union. Moreover, gaps in protection have emerged for new forms of employment created as a result of labour market developments since 1991.












(6)


Minimum requirements relating to information on the essential aspects of the employment relationship and relating to working conditions that apply to every worker should therefore be established at Union level in order to guarantee all workers in the Union an adequate degree of transparency and predictability as regards their working conditions, while maintaining reasonable flexibility of non-standard employment, thus preserving its benefits to workers and employers.












(7)


The Commission has undertaken a two-phase consultation with the social partners, in accordance with Article 154 of the Treaty on the Functioning of the European Union, on the improvement of the scope and effectiveness of Directive 91/533/EEC and the broadening of its objectives in order to establish new rights for workers. This did not result in an agreement among the social partners to enter into negotiations on those matters. However, as confirmed by the outcome of the open public consultations that sought the views of various stakeholders and citizens, it is important to take action at Union level in this area by modernising and adapting the current legal framework to new developments.












(8)


In its case law, the Court of Justice of the European Union (Court of Justice) has established criteria for determining the status of a worker (5). The interpretation of the Court of Justice of those criteria should be taken into account in the implementation of this Directive. Provided that they fulfil those criteria, domestic workers, on-demand workers, intermittent workers, voucher based-workers, platform workers, trainees and apprentices could fall within the scope of this Directive. Genuinely self-employed persons should not fall within the scope of this Directive since they do not fulfil those criteria. The abuse of the status of self-employed persons, as defined in national law, either at national level or in cross-border situations, is a form of falsely declared work that is frequently associated with undeclared work. Bogus self-employment occurs when a person is declared to be self-employed while fulfilling the conditions characteristic of an employment relationship, in order to avoid certain legal or fiscal obligations. Such persons should fall within the scope of this Directive. The determination of the existence of an employment relationship should be guided by the facts relating to the actual performance of the work and not by the parties’ description of the relationship.












(9)


It should be possible for Member States to provide, where justified on objective grounds, for certain provisions of this Directive not to apply to certain categories of civil servants, public emergency services, the armed forces, police authorities, judges, prosecutors, investigators or other law enforcement services, given the specific nature of the duties that they are called on to perform or of their employment conditions.












(10)


The requirements laid down in this Directive with regard to the following matters should not apply to seafarers or sea fishermen, given the specificities of their employment conditions: parallel employment where incompatible with the work performed on board ships or fishing vessels, minimum predictability of work, the sending of workers to another Member State or to a third country, transition to another form of employment, and providing information on the identity of the social security institutions receiving the social contributions. For the purposes of this Directive, seafarers and sea fishermen as defined, respectively, in Council Directives 2009/13/EC (6) and (EU) 2017/159 (7) should be considered to be working in the Union when they work on board ships or fishing vessels registered in a Member State or flying the flag of a Member State.












(11)


In view of the increasing number of workers excluded from the scope of Directive 91/533/EEC on the basis of exclusions made by Member States under Article 1 of that directive, it is necessary to replace those exclusions with a possibility for Member States not to apply the provisions of this Directive to an employment relationship with predetermined and actual working hours that amount to an average of three hours per week or less in a reference period of four consecutive weeks. The calculation of those hours should include all time actually worked for an employer, such as overtime or work supplementary to that guaranteed or anticipated in the employment contract or employment relationship. From the moment when a worker crosses that threshold, the provisions of this Directive apply to him or her, regardless of the number of working hours that the worker works subsequently or the number of working hours provided for in the employment contract.












(12)


Workers who have no guaranteed working time, including those on zero-hour and some on-demand contracts, are in a particularly vulnerable situation. Therefore, the provisions of this Directive should apply to them regardless of the number of hours they actually work.












(13)


Several different natural or legal persons or other entities may in practice assume the functions and responsibilities of an employer. Member States should remain free to determine more precisely the persons who are considered to be wholly or partly responsible for the execution of the obligations that this Directive lays down for employers, as long as all those obligations are fulfilled. Member States should also be able to decide that some or all of those obligations are to be assigned to a natural or legal person who is not party to the employment relationship.












(14)


Member States should be able to establish specific rules to exclude individuals acting as employers for domestic workers in the household from the requirements laid down in this Directive, with regard to the following matters: to consider and respond to requests for different types of employment, to provide mandatory training that is free of cost, and to provide for redress mechanisms that are based on favourable presumptions in the case of information that is missing from the documentation that is to be provided to the worker under this Directive.












(15)


Directive 91/533/EEC introduced a list of essential aspects of the employment contract or employment relationship of which workers are to be informed in writing. It is necessary to adapt that list, which Member States can enlarge, in order to take account of developments in the labour market, in particular the growth of non-standard forms of employment.












(16)


Where the worker has no fixed or main place of work, he or she should receive information about arrangements, if any, for travel between the workplaces.












(17)


It should be possible for information on the training entitlement provided by the employer to take the form of information that includes the number of training days, if any, to which the worker is entitled per year, and information about the employer’s general training policy.












(18)


It should be possible for information on the procedure to be observed by the employer and the worker if their employment relationship is terminated to include the deadline for bringing an action contesting dismissal.












(19)


Information on working time should be consistent with Directive 2003/88/EC of the European Parliament and of the Council (8), and should include information on breaks, daily and weekly rest periods and the amount of paid leave, thereby ensuring the protection of the safety and health of workers.












(20)


Information on remuneration to be provided should include all elements of the remuneration indicated separately, including, if applicable, contributions in cash or kind, overtime payments, bonuses and other entitlements, directly or indirectly received by the worker in respect of his or her work. The provision of such information should be without prejudice to the freedom for employers to provide for additional elements of remuneration such as one-off payments. The fact that elements of remuneration due by law or collective agreement have not been included in that information should not constitute a reason for not providing them to the worker.












(21)


If it is not possible to indicate a fixed work schedule because of the nature of the employment, such as in the case of an on-demand contract, employers should inform workers how their working time is to be established, including the time slots in which they may be called to work and the minimum notice period that they are to receive before the start of a work assignment.












(22)


Information on social security systems should include information on the identity of the social security institutions receiving the social security contributions, where relevant, with regard to sickness, maternity, paternity and parental benefits, benefits for accidents at work and occupational diseases, and old-age, invalidity, survivors’, unemployment, pre-retirement and family benefits. Employers should not be required to provide that information where the worker chooses the social security institution. Information on the social security protection provided by the employer should include, where relevant, the fact of coverage by supplementary pension schemes within the meaning of Directive 2014/50/EU of the European Parliament and of the Council (9) and Council Directive 98/49/EC (10).












(23)


Workers should have the right to be informed about their rights and obligations resulting from the employment relationship in writing at the start of employment. The basic information should therefore reach them as soon as possible and at the latest within a calendar week from their first working day. The remaining information should reach them within one month from their first working day. The first working day should be understood to be the actual start of performance of work by the worker in the employment relationship. Member States should aim to have the relevant information on the employment relationship provided by the employers before the end of the initially agreed duration of the contract.












(24)


In light of the increasing use of digital communication tools, information that is to be provided in writing under this Directive can be provided by electronic means.












(25)


In order to help employers to provide timely information, Member States should be able to provide templates at national level including relevant and sufficiently comprehensive information on the legal framework applicable. Those templates could be further developed at sectoral or local level, by national authorities and the social partners. The Commission will support Member States in developing templates and models and make them widely available, as appropriate.












(26)


Workers sent abroad should receive additional information specific to their situation. For successive work assignments in several Member States or third countries, it should be possible for the information for several assignments to be collated before the first departure and subsequently modified in the case of any changes. Workers who qualify as posted workers under Directive 96/71/EC of the European Parliament and of the Council (11) should also be notified of the single official national website developed by the host Member State where they are able to find the relevant information on the working conditions applying to their situation. Unless Member States provide otherwise, those obligations apply if the duration of the work period abroad is longer than four consecutive weeks.












(27)


Probationary periods allow the parties to the employment relationship to verify that the workers and the positions for which they were engaged are compatible while providing workers with accompanying support. An entry into the labour market or a transition to a new position should not be subject to prolonged insecurity. As established in the European Pillar of Social Rights, probationary periods should therefore be of a reasonable duration.












(28)


A substantial number of Member States have established a general maximum duration of probation of between three and six months, which should be considered to be reasonable. Exceptionally, it should be possible for probationary periods to last longer than six months, where justified by the nature of the employment, such as for managerial or executive positions or public service posts, or where in the interests of the worker, such as in the context of specific measures promoting permanent employment, in particular for young workers. It should also be possible for probationary periods to be extended correspondingly in cases where the worker has been absent from work during the probationary period, for instance because of sickness or leave, to enable the employer to assess the suitability of the worker for the task in question. In the case of fixed-term employment relationships of less than 12 months, Member States should ensure that the length of the probationary period is adequate and proportionate to the expected duration of the contract and the nature of the work. Where provided for in national law or practice, workers should be able to accrue employment rights during the probationary period.












(29)


An employer should neither prohibit a worker from taking up employment with other employers, outside the work schedule established with that employer, nor subject a worker to adverse treatment for doing so. It should be possible for Member States to lay down conditions for the use of incompatibility restrictions, which are to be understood as restrictions on working for other employers for objective reasons, such as for the protection of the health and safety of workers including by limiting working time, the protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interests.












(30)


Workers whose work pattern is entirely or mostly unpredictable should benefit from a minimum level of predictability where the work schedule is determined mainly by the employer, be it directly, such as by allocating work assignments, or indirectly, such as by requiring the worker to respond to clients’ requests.












(31)


Reference hours and days, which are to be understood as time slots during which work can take place at the request of the employer, should be established in writing at the start of the employment relationship.












(32)


A reasonable minimum notice period, which is to be understood as the period of time between the moment when a worker is informed of a new work assignment and the moment when the assignment starts, constitutes another necessary element of predictability of work for employment relationships with work patterns which are entirely or mostly unpredictable. The length of the notice period may vary according to the needs of the sector concerned, while ensuring the adequate protection of workers. The minimum notice period applies without prejudice to Directive 2002/15/EC of the European Parliament and of the Council (12).












(33)


Workers should have the possibility to refuse a work assignment if it falls outside of the reference hours and days or if they were not notified of the work assignment in accordance with the minimum notice period, without suffering adverse consequences for this refusal. Workers should also have the possibility to accept the work assignment if they so wish.












(34)


Where a worker whose work pattern is entirely or mostly unpredictable has agreed with his or her employer to undertake a specific work assignment, the worker should be able to plan accordingly. The worker should be protected against loss of income resulting from the late cancellation of an agreed work assignment by means of adequate compensation.












(35)


On-demand or similar employment contracts, including zero-hour contracts, under which the employer has the flexibility of calling the worker to work as and when needed, are particularly unpredictable for the worker. Member States that allow such contracts should ensure that effective measures to prevent their abuse are in place. Such measures could take the form of limitations to the use and duration of such contracts, of a rebuttable presumption of the existence of an employment contract or employment relationship with a guaranteed amount of paid hours based on hours worked in a preceding reference period, or of other equivalent measures that ensure the effective prevention of abusive practices.












(36)


Where employers have the possibility to offer full-time or open-ended employment contracts to workers in non-standard forms of employment, a transition to more secure forms of employment should be promoted in accordance with the principles established in the European Pillar of Social Rights. Workers should be able to request another more predictable and secure form of employment, where available, and receive a reasoned written response from the employer, which takes into account the needs of the employer and of the worker. Member States should have the possibility to limit the frequency of such requests. This Directive should not prevent Member States from establishing that, in the case of public service positions for which entry is by competitive examination, those positions are not to be considered to be available on the simple request of the worker, and so fall outside the scope of the right to request a form of employment with more predictable and secure working conditions.












(37)


Where employers are required by Union or national law or collective agreements to provide training to workers to carry out the work for which they are employed, it is important to ensure that such training is provided equally to all workers, including to those in non-standard forms of employment. The costs of such training should not be charged to the worker or withheld or deducted from the worker’s remuneration. Such training should count as working time and, where possible, should be carried out during working hours. That obligation does not cover vocational training or training required for workers to obtain, maintain or renew a professional qualification as long as the employer is not required by Union or national law or collective agreement to provide it to the worker. Member States should take the necessary measures to protect workers from abusive practices regarding training.












(38)


The autonomy of the social partners and their capacity as representatives of workers and employers should be respected. It should therefore be possible for the social partners to consider that in specific sectors or situations different provisions are more appropriate, for the pursuit of the purpose of this Directive, than certain minimum standards set out in this Directive. Member States should therefore be able to allow the social partners to maintain, negotiate, conclude and enforce collective agreements which differ from certain provisions contained in this Directive, provided that the overall level of protection of workers is not lowered.












(39)


The public consultation on the European Pillar of Social Rights showed the need to strengthen enforcement of Union labour law to ensure its effectiveness. The evaluation of Directive 91/533/EEC conducted under the Commission’s Regulatory Fitness and Performance Programme confirmed that strengthened enforcement mechanisms could improve the effectiveness of Union labour law. The consultation showed that redress systems based solely on claims for damages are less effective than systems that also provide for penalties, such as lump sums or loss of permits, for employers who fail to issue written statements. It also showed that employees rarely seek redress during the employment relationship, which jeopardises the goal of the provision of the written statement, which is to ensure that workers are informed about the essential features of the employment relationship. It is therefore necessary to introduce enforcement provisions which ensure the use of favourable presumptions where information about the employment relationship is not provided, or of a procedure under which the employer may be required to provide the missing information and may be subject to a penalty if the employer does not do so, or both. It should be possible for such favourable presumptions to include a presumption that the worker has an open-ended employment relationship, that there is no probationary period or that the worker has a full-time position, where the relevant information is missing. Redress could be subject to a procedure by which the employer is notified by the worker or by a third party such as a worker’s representative or other competent authority or body that information is missing and to supply complete and correct information in a timely manner.












(40)


An extensive system of enforcement provisions for the social acquis in the Union has been adopted since Directive 91/533/EEC, in particular in the fields of equal treatment, elements of which should be applied to this Directive in order to ensure that workers have access to effective and impartial dispute resolution, such as a civil or labour court and a right to redress, which may include adequate compensation, reflecting the Principle No 7 of the European Pillar of Social Rights.












(41)


Specifically, having regard to the fundamental nature of the right to effective legal protection, workers should continue to enjoy such protection even after the end of the employment relationship giving rise to an alleged breach of the worker’s rights under this Directive.












(42)


The effective implementation of this Directive requires adequate judicial and administrative protection against any adverse treatment as a reaction to an attempt to exercise rights provided for under this Directive, any complaint to the employer or any legal or administrative proceedings aimed at enforcing compliance with this Directive.












(43)


Workers exercising rights provided for in this Directive should enjoy protection from dismissal or equivalent detriment, such as an on-demand worker no longer being assigned work, or any preparations for a possible dismissal, on the grounds that they sought to exercise such rights. Where workers consider that they have been dismissed or have suffered equivalent detriment on those grounds, workers and competent authorities or bodies should be able to require the employer to provide duly substantiated grounds for the dismissal or equivalent measure.












(44)


The burden of proof with regard to establishing that there has been no dismissal or equivalent detriment on the grounds that workers have exercised their rights provided for in this Directive, should fall on employers when workers establish, before a court or other competent authority or body, facts from which it may be presumed that they have been dismissed, or have been subject to measures with equivalent effect, on such grounds. It should be possible for Member States not to apply that rule in proceedings, in which it would be for a court or other competent authority or body to investigate the facts, in particular in systems where dismissal has to be approved beforehand by such authority or body.












(45)


Member States should provide for effective, proportionate and dissuasive penalties for breaches of the obligations under this Directive. Penalties can include administrative and financial penalties, such as fines or the payment of compensation, as well as other types of penalties.












(46)


Since the objective of this Directive, namely to improve working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability, cannot be sufficiently achieved by the Member States but can rather, by reason of the need to establish common minimum requirements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.












(47)


This Directive lays down minimum requirements, thus leaving untouched Member States’ prerogative to introduce and maintain more favourable provisions. Rights acquired under the existing legal framework should continue to apply, unless more favourable provisions are introduced by this Directive. The implementation of this Directive cannot be used to reduce existing rights set out in existing Union or national law in this field, nor can it constitute valid grounds for reducing the general level of protection afforded to workers in the field covered by this Directive. In particular, it should not serve as grounds for the introduction of zero-hour contracts or similar types of employment contracts.












(48)


In implementing this Directive Member States should avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of micro, small and medium-sized enterprises. Member States are therefore invited to assess the impact of their transposition act on small and medium-sized enterprises in order to ensure that they are not disproportionately affected, giving specific attention to micro-enterprises and to the administrative burden, and to publish the results of such assessments.












(49)


The Member States may entrust the social partners with the implementation of this Directive, where the social partners jointly request to do so and provided that the Member States take all the necessary steps to ensure that they can at all times guarantee the results sought under this Directive. They should also, in accordance with national law and practice, take adequate measures to ensure the effective involvement of the social partners and to promote and enhance social dialogue with a view to implementing the provisions of this Directive.












(50)


Member States should take any adequate measure to ensure fulfilment of the obligations arising from this Directive, for example by carrying out inspections, as appropriate.












(51)


In view of the substantial changes introduced by this Directive with regard to the purpose, scope and content of Directive 91/533/EEC, it is not appropriate to amend that directive. Directive 91/533/EEC should therefore be repealed.












(52)


In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (13), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified,





HAVE ADOPTED THIS DIRECTIVE:



CHAPTER I


GENERAL PROVISIONS



Article 1

Purpose, subject matter and scope


1.   The purpose of this Directive is to improve working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability.


2.   This Directive lays down minimum rights that apply to every worker in the Union who has an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State with consideration to the case-law of the Court of Justice.


3.   Member States may decide not to apply the obligations in this Directive to workers who have an employment relationship in which their predetermined and actual working time is equal to or less than an average of three hours per week in a reference period of four consecutive weeks. Time worked with all employers forming or belonging to the same enterprise, group or entity shall count towards that three-hour average.


4.   Paragraph 3 shall not apply to an employment relationship where no guaranteed amount of paid work is predetermined before the employment starts.


5.   Member States may determine which persons are responsible for the execution of the obligations for employers laid down by this Directive as long as all those obligations are fulfilled. They may also decide that all or part of those obligations are to be assigned to a natural or legal person who is not party to the employment relationship.
This paragraph is without prejudice to Directive 2008/104/EC of the European Parliament and of the Council (14).


6.   Member States may provide, on objective grounds, that the provisions laid down in Chapter III are not to apply to civil servants, public emergency services, the armed forces, police authorities, judges, prosecutors, investigators or other law enforcement services.


7.   Member States may decide not to apply the obligations set out in Articles 12 and 13 and in point (a) of Article 15(1) to natural persons in households acting as employers where work is performed for those households.


8.   Chapter II of this Directive applies to seafarers and sea fishermen without prejudice to Directives 2009/13/EC and Directive (EU) 2017/159, respectively. The obligations set out in points (m) and (o) of Article 4(2), and Articles 7, 9, 10 and 12 shall not apply to seafarers or sea fishermen.



Article 2

Definitions

For the purposes of this Directive, the following definitions apply:






(a)


‘work schedule’ means the schedule determining the hours and days on which performance of work starts and ends;










(b)


‘reference hours and days’ means time slots in specified days during which work can take place at the request of the employer;










(c)


‘work pattern’ means the form of organisation of the working time and its distribution according to a certain pattern determined by the employer.






Article 3

Provision of information

The employer shall provide each worker with the information required pursuant to this Directive in writing. The information shall be provided and transmitted on paper or, provided that the information is accessible to the worker, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.



CHAPTER II


INFORMATION ABOUT THE EMPLOYMENT RELATIONSHIP



Article 4

Obligation to provide information


1.   Member States shall ensure that employers are required to inform workers of the essential aspects of the employment relationship.


2.   The information referred to in paragraph 1 shall include at least the following:






(a)


the identities of the parties to the employment relationship;










(b)


the place of work; where there is no fixed or main place of work, the principle that the worker is employed at various places or is free to determine his or her place of work, and the registered place of business or, where appropriate, the domicile of the employer;










(c)


either:






(i)


the title, grade, nature or category of work for which the worker is employed or










(ii)


a brief specification or description of the work;














(d)


the date of commencement of the employment relationship;










(e)


in the case of a fixed-term employment relationship, the end date or the expected duration thereof;










(f)


in the case of temporary agency workers, the identity of the user undertakings, when and as soon as known;










(g)


the duration and conditions of the probationary period, if any;










(h)


the training entitlement provided by the employer, if any;










(i)


the amount of paid leave to which the worker is entitled or, where this cannot be indicated when the information is given, the procedures for allocating and determining such leave;










(j)


the procedure to be observed by the employer and the worker, including the formal requirements and the notice periods, where their employment relationship is terminated or, where the length of the notice periods cannot be indicated when the information is given, the method for determining such notice periods;










(k)


the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, and the frequency and method of payment of the remuneration to which the worker is entitled;










(l)


if the work pattern is entirely or mostly predictable, the length of the worker’s standard working day or week and any arrangements for overtime and its remuneration and, where applicable, any arrangements for shift changes;










(m)


if the work pattern is entirely or mostly unpredictable, the employer shall inform the worker of:






(i)


the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours;










(ii)


the reference hours and days within which the worker may be required to work;










(iii)


the minimum notice period to which the worker is entitled before the start of a work assignment and, where applicable, the deadline for cancellation referred to in Article 10(3);














(n)


any collective agreements governing the worker’s conditions of work or in the case of collective agreements concluded outside the business by special joint bodies or institutions, the name of such bodies or institutions within which the agreements were concluded;










(o)


where it is the responsibility of the employer, the identity of the social security institutions receiving the social contributions attached to the employment relationship and any protection relating to social security provided by the employer.






3.   The information referred to in paragraph 2(g) to (l) and (o) may, where appropriate, be given in the form of a reference to the laws, regulations and administrative or statutory provisions or collective agreements governing those points.



Article 5

Timing and means of information


1.   Where not previously provided, the information referred to in points (a) to (e), (g), (k), (l) and (m) of Article 4(2) shall be provided individually to the worker in the form of one or more documents during a period starting on the first working day and ending no later than the seventh calendar day. The other information referred to in Article 4(2) shall be provided individually to the worker in the form of a document within one month of the first working day.


2.   Member States may develop templates and models for the documents referred to in paragraph 1 and put them at the disposal of worker and employer including by making them available on a single official national website or by other suitable means.


3.   Member States shall ensure that the information on the laws, regulations and administrative or statutory provisions or universally applicable collective agreements governing the legal framework applicable which are to be communicated by employers is made generally available free of charge in a clear, transparent, comprehensive and easily accessible way at a distance and by electronic means, including through existing online portals.



Article 6

Modification of the employment relationship


1.   Member States shall ensure that any change in the aspects of the employment relationship referred to in Article 4(2) and any change to the additional information for workers sent to another Member State or to a third country referred to in Article 7 shall be provided in the form of a document by the employer to the worker at the earliest opportunity and at the latest on the day on which it takes effect.


2.   The document referred to in paragraph 1 shall not apply to changes that merely reflect a change in the laws, regulations and administrative or statutory provisions or collective agreements cited in the documents referred to in Article 5(1), and, where relevant, in Article 7.



Article 7

Additional information for workers sent to another Member State or to a third country


1.   Member States shall ensure that, where a worker is required to work in a Member State or third country other than the Member State in which he or she habitually works, the employer shall provide the documents referred to in Article 5(1) before the worker’s departure and the documents shall include at least the following additional information:






(a)


the country or countries in which the work abroad is to be performed and its anticipated duration;










(b)


the currency to be used for the payment of remuneration;










(c)


where applicable, the benefits in cash or kind relating to the work assignments;










(d)


information as to whether repatriation is provided for, and if so, the conditions governing the worker’s repatriation.






2.   Member States shall ensure that a posted worker covered by Directive 96/71/EC shall in addition be notified of:






(a)


the remuneration to which the worker is entitled in accordance with the applicable law of the host Member State;










(b)


where applicable, any allowances specific to posting and any arrangements for reimbursing expenditure on travel, board and lodging;










(c)


the link to the single official national website developed by the host Member State pursuant to Article 5(2) of Directive 2014/67/EU of the European Parliament and of the Council (15).






3.   The information referred to in point (b) of paragraph 1 and point (a) of paragraph 2 may, where appropriate, be given in the form of a reference to specific provisions of laws, regulations and administrative or statutory acts or collective agreements governing that information.


4.   Unless Member States provide otherwise, paragraphs 1 and 2 shall not apply if the duration of each work period outside the Member State in which the worker habitually works is four consecutive weeks or less.




CHAPTER III


MINIMUM REQUIREMENTS RELATING TO WORKING CONDITIONS



Article 8

Maximum duration of any probationary period


1.   Member States shall ensure that, where an employment relationship is subject to a probationary period as defined in national law or practice, that period shall not exceed six months.


2.   In the case of fixed-term employment relationships, Member States shall ensure that the length of such a probationary period is proportionate to the expected duration of the contract and the nature of the work. In the case of the renewal of a contract for the same function and tasks, the employment relationship shall not be subject to a new probationary period.


3.   Member States may, on an exceptional basis, provide for longer probationary periods where justified by the nature of the employment or in the interest of the worker. Where the worker has been absent from work during the probationary period, Member States may provide that the probationary period can be extended correspondingly, in relation to the duration of the absence.



Article 9

Parallel employment


1.   Member States shall ensure that an employer neither prohibits a worker from taking up employment with other employers, outside the work schedule established with that employer, nor subjects a worker to adverse treatment for doing so.


2.   Member States may lay down conditions for the use of incompatibility restrictions by employers, on the basis of objective grounds, such as health and safety, the protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interests.



Article 10

Minimum predictability of work


1.   Member States shall ensure that where a worker’s work pattern is entirely or mostly unpredictable the worker shall not be required to work by the employer unless both of the following conditions are fulfilled:






(a)


the work takes place within predetermined reference hours and days as referred to in point (m)(ii) of Article 4(2); and










(b)


the worker is informed by his or her employer of a work assignment within a reasonable notice period established in accordance with national law, collective agreements or practice as referred to in point (m)(iii) of Article 4(2).






2.   Where one or both of the requirements laid down in paragraph 1 is not fulfilled, a worker shall have the right to refuse a work assignment without adverse consequences.


3.   Where Member States allow an employer to cancel a work assignment without compensation, Member States shall take the measures necessary, in accordance with national law, collective agreements or practice, to ensure that the worker is entitled to compensation if the employer cancels, after a specified reasonable deadline, the work assignment previously agreed with the worker.


4.   Member States may lay down modalities for the application of this Article, in accordance with national law, collective agreements or practice.



Article 11

Complementary measures for on-demand contracts

Where Member States allow for the use of on-demand or similar employment contracts, they shall take one or more of the following measures to prevent abusive practices:






(a)


limitations to the use and duration of on-demand or similar employment contracts;










(b)


a rebuttable presumption of the existence of an employment contract with a minimum amount of paid hours based on the average hours worked during a given period;










(c)


other equivalent measures that ensure effective prevention of abusive practices.




Member States shall inform the Commission of such measures.


Article 12

Transition to another form of employment


1.   Member States shall ensure that a worker with at least six months’ service with the same employer, who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply. Member States may limit the frequency of requests triggering the obligation under this Article.


2.   Member States shall ensure that the employer provides the reasoned written reply referred to in paragraph 1 within one month of the request. With respect to natural persons acting as employers and micro, small, or medium enterprises, Member States may provide for that deadline to be extended to no more than three months and 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.



Article 13

Mandatory training

Member States shall ensure that where an employer is required by Union or national law or by collective agreements to provide training to a worker to carry out the work for which he or she is employed, such training shall be provided to the worker free of cost, shall count as working time and, where possible, shall take place during working hours.


Article 14

Collective agreements

Member States may allow the social partners to maintain, negotiate, conclude and enforce collective agreements, in conformity with the national law or practice, which, while respecting the overall protection of workers, establish arrangements concerning the working conditions of workers which differ from those referred to in Articles 8 to 13.



CHAPTER IV


HORIZONTAL PROVISIONS



Article 15

Legal presumptions and early settlement mechanism


1.   Member States shall ensure that, where a worker has not received in due time all or part of the documents referred to in Article 5(1) or Article 6, one or both of the following shall apply:






(a)


the worker shall benefit from favourable presumptions defined by the Member State, which employers shall have the possibility to rebut;










(b)


the worker shall have the possibility to submit a complaint to a competent authority or body and to receive adequate redress in a timely and effective manner.






2.   Member States may provide that the application of the presumptions and mechanism referred to in paragraph 1 is subject to the notification of the employer and the failure of the employer to provide the missing information in a timely manner.



Article 16

Right to redress

Member States shall ensure that workers, including those whose employment relationship has ended, have access to effective and impartial dispute resolution and a right to redress in the case of infringements of their rights arising from this Directive.


Article 17

Protection against adverse treatment or consequences

Member States shall introduce the measures necessary to protect workers, including those who are workers’ representatives, from any adverse treatment by the employer and from any adverse consequences resulting from a complaint lodged with the employer or resulting from any proceedings initiated with the aim of enforcing compliance with the rights provided for in this Directive.


Article 18

Protection from dismissal and burden of proof


1.   Member States shall take the necessary measures to prohibit the dismissal or its equivalent and all preparations for dismissal of workers, on the grounds that they have exercised the rights provided for in this Directive.


2.   Workers who consider that they have been dismissed, or have been subject to measures with equivalent effect, on the grounds that they have exercised the rights provided for in this Directive, may request the employer to provide duly substantiated grounds for the dismissal or the equivalent measures. The employer shall provide those grounds in writing.


3.   Member States shall take the necessary measures to ensure that, when workers referred to in paragraph 2 establish, before a court or other competent authority or body, facts from which it may be presumed that there has been such a dismissal or equivalent measures, it shall be for the employer to prove that the dismissal was based on grounds other than those referred to in paragraph 1.


4.   Paragraph 3 shall not prevent Member States from introducing rules of evidence which are more favourable to workers.


5.   Member States shall not be required to apply paragraph 3 to proceedings in which it is for the court or other competent authority or body to investigate the facts of the case.


6.   Paragraph 3 shall not apply to criminal proceedings, unless otherwise provided by the Member State.



Article 19

Penalties

Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive or the relevant provisions already in force concerning the rights which are within the scope of this Directive. The penalties provided for shall be effective, proportionate and dissuasive.



CHAPTER V


FINAL PROVISIONS



Article 20

Non-regression and more favourable provisions


1.   This Directive shall not constitute valid grounds for reducing the general level of protection already afforded to workers within Member States.


2.   This Directive shall not affect Member States’ prerogative to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to encourage or permit the application of collective agreements which are more favourable to workers.


3.   This Directive is without prejudice to any other rights conferred on workers by other legal acts of the Union.



Article 21

Transposition and implementation


1.   Member States shall take the necessary measures to comply with this Directive by 1 August 2022. They shall immediately inform the Commission thereof.


2.   When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.


3.   Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.


4.   Member States shall, in accordance with their national law and practice, take adequate measures to ensure the effective involvement of the social partners and to promote and enhance social dialogue with a view to implementing this Directive.


5.   Member States may entrust the social partners with the implementation of this Directive, where the social partners jointly request to do so and provided that Member States take all necessary steps to ensure that they can at all times guarantee the results sought under this Directive.



Article 22

Transitional arrangements

The rights and obligations set out in this Directive shall apply to all employment relationships by 1 August 2022. However, an employer shall provide or complement the documents referred to in Article 5(1) and in Articles 6 and 7 only upon the request of a worker who is already employed on that date. The absence of such a request shall not have the effect of excluding a worker from the minimum rights established in Articles 8 to 13.


Article 23

Review by the Commission

By 1 August 2027, the Commission shall, after consulting the Member States and the social partners at Union level and taking into account the impact on micro, small and medium-sized enterprises, review the implementation of this Directive and propose, where appropriate, legislative amendments.


Article 24

Repeal

Directive 91/533/EEC shall be repealed with effect from 1 August 2022. References to the repealed Directive shall be construed as references to this Directive.


Article 25

Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.


Article 26

Addressees

This Directive is addressed to the Member States.





Done at Brussels, 20 June 2019.


For the European Parliament


The President

A. TAJANI
            



For the Council


The President

G. CIAMBA
            





(1)  
            OJ C 283, 10.8.2018, p. 39.

(2)  
            OJ C 387, 25.10.2018, p. 53.

(3)  Position of the European Parliament of 16 April 2019 (not yet published in the Official Journal) and decision of the Council of 13 June 2019.

(4)  Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ L 288, 18.10.1991, p. 32).

(5)  Judgments of the Court of Justice of 3 July 1986, Deborah Lawrie-Blum v Land Baden-Württemberg, C-66/85, ECLI:EU:C:1986:284; 14 October 2010, Union Syndicale Solidaires Isère v Premier ministre and Others, C-428/09, ECLI:EU:C:2010:612; 9 July 2015, Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH, C-229/14, ECLI:EU:C:2015:455; 4 December 2014, FNV Kunsten Informatie en Media v Staat der Nederlanden, C-413/13, ECLI:EU:C:2014:2411; and 17 November 2016, Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, C-216/15, ECLI:EU:C:2016:883.

(6)  Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC (OJ L 124, 20.5.2009, p. 30).

(7)  Council Directive (EU) 2017/159 of 19 December 2016 implementing the Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation, concluded on 21 May 2012 between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche) (OJ L 25, 31.1.2017, p. 12).

(8)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9).

(9)  Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights (OJ L 128, 30.4.2014, p. 1).

(10)  Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community (OJ L 209, 25.7.1998, p. 46).

(11)  Directive 96/71/EC 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 (OJ L 18, 21.1.1997, p. 1).

(12)  Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ L 80, 23.3.2002, p. 35).

(13)  
            OJ C 369, 17.12.2011, p. 14.

(14)  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ L 327, 5.12.2008, p. 9).

(15)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11).