CELEX: 51997PC0392
Language: en
Date: 1997-07-23
Title: Proposal for a Council Directive concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC

COMMISSION OF THE EUROPEAN COMMUNITIES
                                   Brussels, 23.07.1997
                                   COM(97) 392 final
                                   97/0221 (PRT)
                    Proposal for a
               COUNCIL DIRECTIVE
CONCERNING THE FRAMEWORK AGREEMENT ON
              PART-TIME WORK
  CONCLUDED BY UNICE, CEEP AND THE ETUC
           (presented by the Commission)
 ---pagebreak---  ---pagebreak---                           EXPLANATORY MEMORANDUM
  Introduction
  1.   The importance of new forms of flexible working, especially part-time work, has
       increased substantially over recent years, and the trend continues on national
       employment markets.
2.    On 29 June 1990, the Commission submitted three proposals for Council Directives
      on certain employment relationships (e.g. part-time and temporary work)1.
3.    The Economic and Social Committee gave its opinion on 20.9.19902, while the
      European Parliament gave its opinion on 24.10.19903. In accordance with Article
       149 of the Treaty, the Commission submitted an amended proposal4 to the Council
      on 7.11.1990, incorporating certain of the amendments suggested by Parliament.
4.    These proposals were subsequently discussed within the Council on various
      occasions between 1990 and 1994. Of the three proposals, only Council Directive
      91/383/EEC "supplementing the measures to encourage improvements in the safety
      and health at work of workers with a fixed-duration employment relationship or a
      temporary employment relationship"5 was ever adopted.
5.    In July 1994, the Commission published its White Paper on the future of European
      social policy, in which the Commission reaffirms its determination to make progress
      in the social policy field and indicates, in Chapter III, that the highest priority must
      be to ensure that the proposals on atypical work are adopted by the Council: "The
      measures adopted will need to take account of the principles of the ILO Convention
      on part-time work adopted in June 1994. If no progress can be made in the Council
      on the basis of the current proposals by the end of 1994, the Commission will
      initiate consultations with the social partners under the Agreement on social policy."
6.    The conclusions of the Essen European Council emphasised the need to take steps to
      improve the employment situation and equality of opportunity for men and women,
      and called for measures aimed at "increasing the employment-intensiveness of
      growth, in particular by more flexible organisation of work in a way which fulfils
      both the wishes of employees and the requirements of competition".
1
     </OM(90) 228 final, 29.6.19%; OJ C 224, 8.9.1990, p. 8.
:
     O.IC332, 31.12.1990, p. 167.
•]   OJC 295, 26.1 1.1990, p. 112.
4
     COM(90) 533 final; OJC 305, 5.12.1990, p. 12.
 5
     OJL 206, 29.7.1991, p. 19.
 ---pagebreak--- 7.  As no progress has been made in the Council, the Commission decided to initiate
    the procedure under Article 3-of the Agreement on social policy. On 27 September
     1995, it therefore gave its approval for consultation of the social partners under
    Article 3(2) of the said Agreement. By the end of a six-week consultation period, the
    Commission had received 22 replies.
I.  The replies from the social partners showed that there was a broad measure of
    support for the fundamental guiding principle of non-discrimination of workers
    affected by the new, flexible forms of work, guaranteeing them the same treatment
    as for full-time workers with open-ended contracts. Although the respondents'
    views differed considerably as to the form and appropriate level of action to be
    taken in this area, most of the social partners said they were prepared to play an
    active part in defining the principles and putting them into effect, more especially by
    way of collective bargaining at the appropriate level.
).  After analysing the reactions, the Commission considered Community action
    advisable and decided, on 9 April 1996, to initiate the second round of consultation
    of the social partners provided for in Article 3(3) of the Agreement on social policy.
    On 19 June 1996, three organisations (UNICE, CEEP and the ETUC) announced
    their intention of starting negotiations on this subject, concentrating initially on part-
    time work. On 12 March 1997, they asked the Commission for a further three
    months by virtue of Article 3(4) of the Agreement on Social Policy. The
    Commission concurred. At the end of these negotiations, the three organisations
    concluded a framework Agreement on 6 June 1997. They forwarded the agreement
    to the Commission, asking for it to be implemented by a Council decision on a
    proposal from the Commission in accordance with Article 4(2) of the Agreement on
    social policy.
 0. The social partners also requested the Commission, in its proposal to implement the
    agreement, to:
    request that Member States adopt the laws, regulations and administrative
    provisions within two years from adoption of the decision, or to ensure, within the
    meaning of Article 2(4) of the Agreement on social policy annexed to the Treaty
    establishing the European Community, that the social partners establish the
    necessary measures by way of agreement by the end of this period; and
    make provision for Member States to have, if necessary to take account of particular
    difficulties or implementation by collective agreement, up to one additional year to
    comply with the decision.
 1. Although the document which was the subject of the second round of consultation
    was concerned with "the flexibility of working time and security for workers"
    (forms of employment other than full-time, open-ended employment), the social
    partners wanted to give particular attention to part-time work, indicating that it was
    their intention to consider the need for similar agreements covering other forms of
    work.
 ---pagebreak--- EXAMINATION OF THE AGREEMENT
 12. In its Communication concerning the application of the Agreement on social
      policy1, the Commission stressed that "by virtue of its role as guardian of the
      Treaties the Commission will prepare proposals for decisions to the Council
       following consideration of the representative status of the contracting parties,
      their mandate and the "legality" of each clause in the collective agreement in
      relation to Community law, and the provisions regarding small and medium-
      sized undertakings set out in Article 2(2). At all events, the Commission intends
      to provide an explanatory memorandum on any proposal presented to the
       Council in this area, giving its comments and assessment of the agreement
      concluded by the social partners".
i.   REPRESENTATIVENESS OF THE CONTRACTING PARTIES AND THEIR RESPECTIVE
     MANDATES
13. The organisations which are signatory to the agreement are UNICE, CEEP and
     the ETUC. These three organisations have, since 1985, been engaged in an
     autonomous and voluntary process known as the "Val Duchesse" social dialogue.
     This has resulted in a total of 15 joint opinions, 2 recommendations, 3 agreements
     and 4 declarations. In particular, they came up with a significant agreement in
     October 1991 with a view to defining the role and place of the social dialogue
     within the new Community framework. Articles 3 and 4 of the Agreement on
     social policy drew very largely on this agreement.
14. The three organisations all meet the following criteria, as laid down in the
     Commission's Communication (point 24):
      - they are cross-industry and are organised at European level;
      - they consist of organisations which are themselves an integral and recognised
          part of Member State social partner structures, have the capacity to negotiate
          agreements and are representative of all Member States;
      - they have appropriate structures to ensure their effective participation in
          implementing the Agreement on social policy.
15. These three organisations are the only three general cross-industry organisations
     within the meaning of Annex 2 to the Commission's Communication. The study
     on the social partners arrives at a number of conclusions (annexed to the
     Communication) with regard to the representative status of employers' and trade
      union organisations. In Chapter D.II of its Communication concerning the
      development of the social dialogue at Community level2, the Commission said it
      "would like to encourage the European and social partner organisations to co-
      operate more closely in finding a solution to this question (of
      representativeness)".
  1
     COM(93) 600, 14.12.1993.
 2
     COM(96) 448 final, 18.9.1996.
 ---pagebreak---  EMPLOYERS' ORGANISATIONS
 16. The employers' federation which is most representative of all industrial sectors and
      categories of enterprises is UNICE. In all the Member States, the organisations
      affiliated to the UNICE are by far the most representative cross-industry employers'
       federations. All the affiliated organisations at national level are directly or indirectly
      involved in collective bargaining and participate in the International Labour
      Conference. CEEP provides significant representation of public enterprises or
      enterprises with public participation in the Member States.
TRADE UNION ORGANISATIONS
 17. By far the most representative cross-industry trade union confederation is the
      ETUC. Its affiliated organisations are the most representative cross-industry trade
      union confederations in all the Member States. All its affiliated organisations at
      national level are directly or indirectly involved in collective bargaining and
      participate in the International Labour Conference.
 Conclusion
 18. The Commission notes that the members of these three organisations at national
      level have given the three a specific mandate for negotiations on part-time work and
      have ratified the framework agreement. The three organisations have concluded the
      framework agreement on behalf of their national members.
 19. The Commission concludes that these three organisations fulfil the condition of
      representativeness which it had undertaken to verify before forwarding its proposal.
ii.  "LEGITIMACY" OF THE CLAUSES CONCERNING THE ROLE OF THE NON-SIGNATORY
     SOCIAL PARTNERS AND THEIR MEMBERS
20. A number of other social partners who were consulted by the Commission expressed
      a desire to take part in the negotiations. The Commission has been informed of the
      exchange of letters and discussions between the signatory social partners and these
     others. It has also been informed of the participation, within the UNICE delegation,
     of experts from three sectoral social partners' organisations.
21. The Commission has forwarded the framework agreement to all the organisations
     which it had previously consulted or informed, and has organised a meeting for the
      exchange of information and for dialogue with them.
22. Certain organisations have contested the representative status of contracting parties
      and maintained that the framework agreement does not take into account the
      interests of certain sectors or categories of enterprises. On the contrary, other
      organisations have underlined the flexible character of the provisions of the
      agreement that will allow account to be taken, when transposing it into national law,
      of the specific needs of certain sectors or sub-sectors.
 ---pagebreak---  23. Having verified the relevant clauses, the Commission feels that the framework
        agreement makes reference on a number of occasions to the social partners "at the
        appropriate level" and to "national law, collective agreements or practice", and thus
        very largely preserves the role of the non-signatory social partners and their
        members at national level.
 iii. PROVISIONS REGARDING SMALL AND MEDIUM-SIZED ENTERPRISES
 24. Article 2(2) of the Agreement on social policy provides that legislation on social
       policy 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 (or enterprises).
25. The specific situation of SMEs was given special attention when the text of the
       framework agreement was drawn up. Specific reference is made to SMEs, as
       follows :
      General consideration 7: "Whereas this agreement takes into consideration the need
      to improve social policy requirements, to enhance the competitiveness of the
      Community economy and 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".
26. Clearly, the agreement does not provide for any exception to be made to the basic
      principle of non-discrimination in favour of SMEs. However, clause 1 (B) sets out as
      a fundamental objective of the agreement the development of part-time work and the
      flexible organisation of working time. Within this framework, clauses 5(1) and (2)
      establish the need to eliminate by law or agreement any legal and administrative
      obstacles which might militate against part-time working. Although the reference to
      the development of part-time work relates to all undertakings in general, regardless
      of their size and staff, it is evident that SMEs should derive the greatest benefit from
      such a provision.
27. A number of clauses (2(2), 3(3), 4(3), 4(4), 6(2)) refer to national laws, collective
      agreements or practice and/or to the social partners at the appropriate level, leaving
      plenty of room for manoeuvre at enterprise level. Despite not explicitly mentioning
      SMEs, these provisions do enable national provisions to be adopted if necessary to
      take account of their special needs.
2X. These provisions show thai the social partners are keen to encourage new, flexible
       ways of organising work and time which are better suited to the changing needs of
       society and which should take the needs of both enterprises and workers into
       account (general considerations 4 and 5).
29. The Commission therefore concludes that the framework agreement complies with
       the provisions concerning small and medium-sized enterprises. In drawing it up, the
       social partners provided scope for the special circumstances of SMEs to be taken
       into account, particularly when the agreement is being transposed into national law.
 ---pagebreak--- iv. "LEGALITY" OF THE CLAUSES OF THE AGREEMENT
      30.         The Commission has carefully examined each of the clauses of the
      framework agreement and does not find any provisions contrary to Community law.
      The fact that the agreement provides for obligations on the Member States does not
      undermine its legality. On the contrary, it follows from the second declaration
      annexed to the Agreement on social policy8 that the second of the arrangements for
      applying agreements between management and labour at Community level is likely
      to create obligations for the Member States. The obligations imposed on Member
      States do not derive directly from the agreement between the social partners but
      from the arrangement for applying the agreement. Section (V) contains the
      Commission's assessment of the content of the agreement.
v.   ASSESSMENT OF THE AGREEMENT
31. In the light of the conclusions of the Essen European Council and of subsequent
      European Councils, the Commission considers part-time work to be an important
      factor in promoting employment and equal opportunities for women and men. It also
     helps to boost the employment-intensity of growth, more particularly by way of
     more flexible working patterns designed to meet both workers' desires and the
     requirements of competition. As a result, the Commission asked the social partners
     for their reactions to this more broadly based approach. The social partners"
     contribution is positive in itself in that it guarantees that consideration is given both
     to business competitiveness and to the interests of workers.
32. The Commission wholeheartedly endorses the aims of the social partners'
     framework agreement and sees it as an important step in two respects.
33. Firstly, minimum standards with regard to part-time work are a big step forward in
     creating a minimum set of fundamental rights of workers. One effect is to promote
     equal opportunities for men and women. Sharing of family responsibilities between
     parents is a key element in the strategies designed to improve equality in the labour
     market.
34. Secondly, the agreement also contributes to implementing the conclusions of the
     Essen European Council in terms of the introduction of new, flexible ways of
     organising work. Such flexibility must meet the needs of enterprises and help them
     to become more competitive to cope with international competition. It must also
     take account of the interests of workers by enabling them to tailor their working
     hours more closely to their needs. An agreement between the social partners on this
     matter as a result of negotiations between employers and workers is the right vehicle
     for reconciling the interests of the two parties.
   "The eleven High Contracting Parties declare that the first of the arrangements for application of the
   agreements between management and labour at Community level - referred to in Article 4(2) - will
   consist in developing, by collective bargaining according to the rules of each Member State, the
   content of the agreements, and that consequently this arrangement implies no obligation on the
    Member Slates to apply the agreements directly or to work out rules for their transposition, nor any
    obligation to amend national legislation in force to facilitate their implementation."
 ---pagebreak---  35. The Commission considers that all the conditions are fulfilled for forwarding a
      proposal designed to implement the framework agreement between the social
      partners by way of a Council decision.
 THE COMMISSION'S PROPOSAL
 36. In its Communication of 14 December 1993, the Commission stated that
      "implementing an agreement concluded at Community level by means of a Council
      decision on a proposal from the Commission at the joint request of the social
      partners would give the Council no opportunity to amend the agreement. For this
     reason, the Commission will merely propose, following examination of the
      agreement between the social partners, the adoption of a decision on the agreement
      as concluded". In the present case, the proposed instrument is a Directive. It
     therefore contains the standard clauses relating to the implementation of the
     Directive at national level.
37. The Commission also took the view that "the Council decision must be limited to
     making binding provisions of the agreement concluded between the social partners,
      so the text of the agreement would not form part of the decision but would be
     annexed thereto".
38. Finally, the Commission announced that "if the Council decides, in accordance with
     the procedure set out in the last subparagraph of Article 4(2), not to implement the
     agreement as concluded by the social partners, the Commission will withdraw its
     proposal for a decision and will examine, in the light of the work done, whether a
     legislation instrument in the area in question would be appropriate".
39. Hence, the Commission has not incorporated the text of the agreement in its
     proposal but simply annexed it thereto. Moreover, it reiterates that, if the Council
     amends the agreement concluded between the social partners, it will withdraw its
     proposal.
i.  LEGAL BASIS
40. Article 4(2) of the Agreement on social policy provides that "agreements concluded
     at Community level shall be implemented, in matters covered by Article 2, at the
     joint request of the signatory parties, by a Council decision on a proposal from the
     Commission". The agreement on part-time work relates to working conditions,
     which come under Article 2(1) of the Agreement on social policy. This is one of the
     areas where the Council may act by a qualified majority. As a result, Article 4(2) is
     the proper legal basis for the Commission's proposal.
41. That Article does not provide for consultation of the European Parliament on
     requests addressed to the Commission by the social partners. However, in
     accordance with the undertaking in its Communication, the Commission has kept
     Parliament informed about the various phases of consultation of the social partners.
      It is also forwarding this proposal to Parliament so that it can deliver its opinion to
     the Commission and the Council if it so wishes. The same applies to the Economic
     and Social Committee.
 ---pagebreak--- ii. THEFORMTHEINSTRUMEINTISTOTAKE
42. The term "decision" within the meaning of Article 4(2) of the Agreement on social
     policy refers to one of the binding legislative instruments under Article 189 of the
     Treaty. It is up to the Commission to propose to the Council the most appropriate of
     the three binding instruments under the said Article (regulation, directive or
     decision). In this case, given the nature (framework agreement) and the content of
     the social partners' document, it is clear that the framework agreement is intended to
     be applied indirectly by means of provisions to be transposed into national law by
     the Member States and/or the social partners. Hence, in that case, the most suitable
     instrument for its application is a Council Directive. Moreover, in accordance with
     the undertakings it has given, the Commission considers that the text of the
     agreement should not be part of the directive but should be annexed thereto.
43. The Commission's comments on the Articles in its proposal are given below.
     Article 1
     This article confines itself to making the framework agreement between the social
     partners obligatory in order to enable it to be implemented by a Council decision
     under Article 4(2) of the Agreement on social policy.
     Articles 2-6
     Article 2(1) says that the provisions of the Directive prescribe only minimum
     requirements, giving Member States the chance to adopt stricter measures in the
     relevant field.
     Article 2(2) is a "non-regression" standard clause that affects Member States which
     have, at the time of adoption of the Directive, a higher level of protection than that
     guaranteed by the framework agreement. What this clause means is that there should
     be no lowering of the general level of protection for workers when the Community
     Directive is adopted. However, it offers Member States the possibility of adopting
     different measures as required by their economic and social policies, subject to
     observance of the minimum requirements prescribed by the framework agreement. It
     is at any rate clear that the Member States' room for manoeuvre covers only a level
     of protection exceeding that guaranteed by the Directive.
     Article 3 is a non-discrimination clause in accordance with the undertaking given by
     the Commission in its Communication9 on racism, xenophobia and antisemitism. In
     this connection, the solemn declaration adopted by the social partners in Florence in
     October 1995 on the prevention of racial discrimination and xenophobia and the
     promotion of equal opportunities at work should also be borne in mind.
     Article 4 obliges Member States to provide penalties which are effective,
     commensurate with the infringement and constitute a sufficient deterrent. In
     applying Community law, it is necessary, as in every legal system, on the one hand
     that those bearing obligations resulting from this law are dissuaded from infringing
    COM(95) 653 final, 13.12.1995.
 ---pagebreak---     it and, on the other, that those who do not respect Community law are duly
    penalised.
    Articles 5 and 6 contain the usual provisions for transposition into the national law
    of the Member States.
JUSTIFICATION FOR THE DIRECTIVE IN RESPECT OF SUBSIDIARITY
44. The proposal for a Council Directive concerning the framework agreement on part-
    time work concluded by UNICE, CEEP and the ETUC complies with the principle
    of subsidiarity as regards its two criteria, namely necessity and proportionality, as
     laid down in Article 3(b) of the Maastricht Treaty.
45. The first criterion, namely, the need to undertake Community action, is justified by
    the fact that the social partners, under the procedure provided for in Article 3 of the
    Agreement on social policy, have agreed that it is necessary to undertake action at
     Community level and have requested the implementation of their Community-level
     agreement through a Council decision based on a proposal from the Commission,
    pursuant to Article 4(2) of the Agreement on social policy. Moreover, this initiative
     is in keeping with the conclusions of the Essen European Council of December 1994
     and its follow-up.
46. The Council Directive corresponds to the requirement of proportionality in so far as
     it only defines the major objectives to be attained by Member States, while allowing
     the social partners and not the Community to decide on the content.
CONCLUSION
47. The Council is requested to adopt the proposal for a Directive concerning the
     framework agreement on part-time work concluded by UNICE, CEEP and the
     ETUC.
 ---pagebreak---                    PROPOSAL FOR A COUNCIL DIRECTIVE
                 concerning the framework agreement on part-time work
                         concluded by UNICE, CEEP and the ETUC
 THE COUNCIL OF THE EUROPEAN UNION,
 Having regard to the Agreement on social policy annexed to the Protocol (No 14) on
 social policy, annexed to the Treaty establishing the European Community and, in
 particular, Article 4(2) thereof,
 Having regard to the proposal from the Commission 10
 Whereas on the basis of the Protocol on social policy annexed to the Treaty establishing
 the European Community, the Member States, with the exception of the United Kingdom
 of Great Britain and Northern Ireland (hereinafter referred to as "the Member States"),
 wishing to continue along the path laid down in the 1989 Social Charter, have concluded
 an agreement on social policy;
 Whereas management and labour (the social partners) may, in accordance with Article
4(2) of the Agreement on social policy, request jointly that agreements at Community
 level be implemented by a Council decision on a proposal from the Commission;
Whereas point 7 of the Community Charter of the Fundamental Social Rights of Workers
provides inter alia that "the completion of the internal market must lead to an
improvement in the living and working conditions of workers in the European
Community. This process must result from an approximation of these conditions while
the improvement is being maintained, as regards in particular (...) forms of employment
other than open-ended contracts, such as fixed-term contracts, part-time working,
temporary work and seasonal work";
Whereas the Council has been unable to reach a decision on the proposal for a Directive
on certain employment relationships with regard to distortions of competition", as
amended12, nor on the proposal for a Directive on certain employment relationships with
regard to working conditions13;
 10
     OJC...
 11
     OJC 224, 8.9.1990, p. 6.
 12
     COM(90) 533 final; OJ C 305, 5.12.1990, p. 8.
 13
     OJC 224, 8.9.1990, p. 4.
                                                   10
 ---pagebreak---   Whereas the conclusions of the Essen European Council stressed the need to take
  measures to promote employment and equal opportunities for women and men, and
  called for measures with a view to "increasing the employment-intensiveness of growth,
  in particular by a more flexible organisation of work in a way which fulfils both the
  wishes of employees and the requirements of competition";
  Whereas the Commission, in accordance with Article 3(2) of the Agreement on social
  policy, has consulted management and labour on the possible direction of Community
 action with regard to flexible working time and job security;
 Whereas the Commission, considering after such consultation that Community action
 was desirable, once again consulted management and labour on the substance of the
 envisaged proposal in accordance with Article 3(3) of the said Agreement;
 Whereas the general cross-industry organisations [the Union of Industrial and
 Employers' Confederations of Europe (UNICE), the European Centre of Enterprises with
 Public Participation (CEEP) and the European Trade Union Confederation (ETUC)J
 informed the Commission in their joint letter of 19 June 1996 of their desire to initiate
 the procedure provided for in Article 4 of the said Agreement; whereas they asked the
 Commission, in a joint letter dated 12 March 1997, for a further three months; whereas
the Commission complied with this request;
Whereas the said cross-industry organisations concluded, on 6 June 1997, a framework
agreement on part-time work; whereas they forwarded to the Commission their joint
request to implement the framework agreement by a Council decision on a proposal from
the Commission, in accordance with Article 4(2) of the said Agreement;
Whereas the Council, in its Resolution of 6 December 1994 on "prospects for a European
Union social policy: a contribution to economic and social convergence in the Union"14,
asked management and labour to make use of the opportunities for concluding
agreements, since they are as a rule closer to social reality and to social problems;
Whereas the contracting parties wished to conclude a framework agreement on part-time
work setting out the general principles and minimum requirements for part-time working;
whereas they have demonstrated their desire to establish a general framework for
eliminating discrimination against part-time workers and to contribute to developing the
potential for part-time work on a basis which is acceptable for employers and workers
alike;
Whereas the social partners wished to give particular attention to part-time work, while at
the same time indicating that it was their intention to consider the need for similar
agreements for other flexible forms of work;
Whereas, in the conclusions of the Amsterdam European Council, the Heads of State and
Government of the European Union strongly welcomed the agreement concluded by the
social partners on part-time work;
 14
     OJC 368, 23.12.1994, p. 6.
                                              11
 ---pagebreak---   Whereas the proper instrument for implementing the framework agreement is a directive
  within the meaning of Article 189 of the Treaty; whereas it therefore binds the Member
  States as to the result to be achieved, whilst leaving them the choice of form and
  methods;
  Whereas, in accordance with the principles of subsidiarity and proportionality as set out
 in Article 3(b) of the Treaty, the objectives of this Directive cannot be sufficiently
 achieved by the Member States and can therefore be better achieved by the Community;
 Whereas this Directive limits itself to the minimum required for the attainment of those
 objectives and does not go beyond what is necessary for that purpose;
 Whereas the Commission has drafted its proposal for a Directive, in accordance with its
 Communication of 14 December 199315 concerning the application of the Agreement on
 social policy and its Communication of 18 September 199616 concerning the
development of the social dialogue at Community level, taking into account the
representative status of the contracting parties, their mandate and the legality of each
clause of the framework agreement;
 Whereas the Commission has drafted its proposal for a Directive taking into account
compliance with Article 2(2) of the Agreement on social policy which provides that
directives in the social policy domain "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";
Whereas the Commission, in accordance with its Communication concerning the
application of the Agreement on social policy, informed the European Parliament by
sending it the text of the agreement, accompanied by its proposal for a Directive and the
explanatory memorandum;
Whereas the Commission also informed the Economic and Social Committee by sending
it the text of the agreement, accompanied by its proposal for a Directive and the
explanatory memorandum;
Whereas the provisions of this Directive lay down minimum requirements, thus giving
the Member States and/or the social partners the option of introducing more favourable
provisions;
Whereas the implementation of this Directive should not serve to justify any regression
in relation to the situation which already exists in each Member State;
Whereas the Community Charter of the Fundamental Social Rights of Workers
recognises the importance o( the fight against all forms of discrimination, especially
based on sex, colour, race, opinion and creed;
 '* COM(93) 600, 14.12.1993.
 >" COM(96)448, 18.9.1996.
                                              12
 ---pagebreak---  Whereas Article F(2) of the Treaty on European Union states that "the Union shall respect
 fundamental rights, as guaranteed by the European Convention for the Protection of
 Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, and as
 they result from the constitutional traditions common to the Member States, as general
 principles of Community law";
 Whereas the Member States may entrust management and labour, at their joint request,
 with the implementation of this Directive, as long as the Member States take all the
 necessary steps to ensure that they can at all times guarantee the results imposed by this
 Directive;
 Whereas the implementation of the framework agreement contributes to achieving the
 objectives under Article 1 of the Agreement on social policy,
 HAS ADOPTED THIS DIRECTIVE:
                                           Article I
                       Implementation of the framework agreement
 This purpose of the Directive is to put into effect the annexed framework agreement on
part-time work concluded on 6 June 1997 between the general cross-industry
 organisations (UNICE, CEEP and the ETUC).
                                           Article 2
                                  Minimum requirements
 1. Member States may introduce more favourable provisions than those laid down in this
Directive.
2. The implementation of this Directive shall under no circumstances constitute sufficient
grounds for justifying a reduction in the general level of protection of workers in the fields
covered by this Directive; this shall be without prejudice to:
       the rights of Member States and/or management and labour to lay down, in the light
       of changing circumstances, different legislative, regulatory or contractual
       arrangements to those prevailing at the time of adoption of this Directive;
       the application of Clause 5.1 of the agreement in annex, provided the principle of
       non-discrimination as expressed in clause 4.1 of the agreement is complied with;
provided always that the minimum requirements laid down in this Directive are adhered
to.
                                              13
 ---pagebreak---                                            Article 3
                                     Non-discrimination
When Member States adopt the provisions to implement this Directive, these shall prohibit
any discrimination based on sex, race, ethnic origin, religion or beliefs, disability, age or
sexual orientation.
                                          Article 4
                                          Penalties
Member States shall determine the range of penalties applicable for infringements of
national provisions made in implementation of this Directive and shall take all necessary
steps to ensure that they are enforced. The penalties must be effective, commensurate with
the infringement, and must constitute a sufficient deterrent. Member States shall notify
these provisions to the Commission by the date mentioned in Article 5 at the latest, and
any subsequent amendment thereto in good time.
                                          Article 5
                                        Transposition
Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive within two years of its adoption, or shall ensure
that, by that date at the latest, management and labour have introduced the necessary
measures by agreement, the Member States being required to take any necessary measures
to enable them at any time to be in a position to guarantee the results imposed by this
Directive. They shall forthwith inform the Commission thereof.
Member States may have a maximum of one more year, if necessary, to take account of
special difficulties or implementation by a collective agreement.
They shall inform the Commission forthwith in such circumstances.
When Member States adopt the provisions referred to in the first paragraph, these shall
contain a reference to this Directive or shall be accompanied by such reference at the time
of their official publication. The procedure for such reference shall be adopted by the
Member States.
                                          Article 6
                                         Addressees
This Directive is addressed to the Member States.
Done at Brussels,
                                                              For the Council
                                                              The President
                                               14
 ---pagebreak---  Europea
 Framework Agreement
                on Part-time Work                                                                        KX^HXXlMiniBRflinRBBttBNGflQnsna
PRÉAMBULE
       v __                   his framework agreement is a contribution to the overall European stra-
                              tegy on employment Part-time work has had an important impact on
                              employment in recent years. For this reason, the parties to this agree-
      ment have given priority attention to this form, of work. It is the intention of the par-
      ties to consider the need for similar agreements relating to other forms of flexible work.
     Recognising the diversity of situations in Member States and acknowledging that part-
     time work is a feature of employment in certain sectors and activities, this agreement
     sets out the general principles and minimum requirements relating to part-time work.
     It illustrates the willingness of the Social Partners to establish a general framework
    for the elimination of discrimination against part-time workers and to assist the deve-
     lopment of opportunities for part-time working on a basis acceptable to employers
     and workers.
     This agreement relates to employment conditions of part-time workers recognising
    that matters concerning statutory social security are for decision by the Member
    States. In the context ofdie principle of non-discrimination, the parties to tliis agree-
    ment have noted the Employment .declaration of the Dublin European CouncU of
    December 1996, wherein the Council inter alia emphasised the need to make social
    security systems more employment friendly by 'developing social protection systems
    capable of adapting to new patterns of work and of providing appropriate protection
    to people engaged in such work". The parties to this agreement consider that effect
    should be given to this declaration.
    ETUC, UNICE and CEEP request the Commission to submit Ùds framework agreement
    to the Councilfor a decision making these requirements binding in the Member States
    which are party to the Agreement on social policy annexed to the Protocol on social
    policy annexed to die Treaty establishing the European Community.
    The parties to this agreement ask the Commission, in its proposal to implement this
    agreement, to request that Member States to adopt the laws, regulations and admi-
    nistrative provisions necessary to comply with the Council decision within a period of
    2 years from its adoption or ensure' that the Social Partners establish the necessary
    measures by way of agreement by the end of this period. Mem ber States may, ifneces
    sary to take account of particular difficulties or implementation by collective agree-
    ment have up to a maximum of one additional year to comply w'dli this provision.
     Without prejudice to the role of national courts and die Court of Justice, die parties
    to this agreement request that any matter relating to the interpretation ofdiis agree
    ment at European level should, in the first instance, be referred by die Commission to
     them for an opinion.
     I  v i d u n ( I K meaning of «rttrk 2 i of Ui< S«vi»l PoUcy Agr«m<n< of I I K T m i y w» Ku«j)K*n Union
                                                                                                                                          A
 ---pagebreak---      I. General consideratiogg                                  economy and to avoid imposing administrative
                                                                financial and legal constraints in a way which would
                                                                hold back the creation and development of small and
    H Having regard to the Agreement on social policy           medium-sized undertakings.
     JL annexed to the Protocol on social policy attached
    to the treaty establishing the European Community,
    and in particular article 3.4 and 4.2 thereof.             8     Whereas die Social Partners arc best placed to
                                                                    find solutions that correspond to die needs of
                                                               both employers and workers and shall therefore be
                                                               conferred a special role in die implementation and
   2     Whereas article 4.2 of the Agreement on social
         policy provides that agreements concluded at
   Community level may be implemented, at the joint
                                                               application of diis agreement.
   request of die signatory parties, by a Council decision
   on a proposal from the Commission.
                                                               The signatory parties have agreed die following
  3      Whereas, in its second consultation docu-
         ment on flexibility of working time and
   security for workers, the Commission announ-
   ced its intention to propose a legally binding
   Community measure.
                                                              Clause 1 : Purpose
  4      Whereas the conclusions of the European
        Council meeting in Essen emphasised the need
  for measures to promote both employment and equal
                                                              The purpose of this framework agreement is :
                                                              A. to provide for die removal of discrimination
                                                                  against part-time workers and to improve the
  opportunities for women and men, and called for
                                                                  quality of part-time work,
  measures aimed at "increasing the employment
  intensiveness of growth, in particular by more              B. to facilitate die development of part-time work on
  flexible organisation of work in a way which fulfils           a voluntary basis and to contribute to die flexible
 both the wishes of employees and the requirements of            organisation of working time m a manner which
 competition*.                                                   takes into account die needs of employers and
                                                                 workers.
5       Whereas the parties to this agreement attach
        importance to measures which would facilitate
 access to part-time work for men and women in
                                                           rXlause.2:     Scope
 order to prepare for retirement, reconcile professional
 and family life, and take up education and training
opportunities to improve their skills and career
opportunities for the mutual benefit of employers
                                                             I    This agreement applies to part-time workers who
                                                                  have an employment contract or employment
                                                             relationship as defined by die law, collective agree-
 and workers and in a manner which would assist the          ment or practice in force in each Member State.
development of entreprises.
6      Whereas this agreement refers back to "Member        2     Member States, after consultation with the Social
                                                                  Partners in accordance with national law, collec-
                                                            tive agreements or practice, and/or the. Social
       States and Social Partners for the modalities of
application of these general principles, minimum            Partners at die appropriate level in conformity with
requirements and provisions, in order to take account       national industrial relations practice may, for objec-
of die situation in each Member State.                      tive reasons, exclude wholly or partly from the. terms
                                                            of diis agreement part-time workers who work on a
7      Whereas this agreement takes into consideration
       die need to improve social policy requirements,
to enhance the competitiveness of the Community
                                                            casual basis. Such exclusions should be reviewed per-
                                                            iodically to establish if the objective reasons for
                                                            making them remain valid
                                                                                                                     /C
 ---pagebreak---    «^Çlause,^ : Definitions                                        ^ClauseJ? : Opportunities for part-time work
       si
        J
             For the. p u q i o s c of this agreement, (he, term
             "part-time worker" refers to nn employee whose
      normal hours of work, calculated on a weekly basis
                                                                       1    In the context of clause 1 of diis agreement a n d of
                                                                            the principle of non-discrimination between p a r t
                                                                            time a n d full-time workers,
      or on average over a period of employaient of up to
                                                                      A. Member States, following consultations with the
      one. year, arc less than (he normal hours of work of a
                                                                           Social Partners in accordance with national law or
      comparable full time, worker
                                                                           practice should identify and review obstacles of a
                                                                           legal or administrative nature which may limit (he
     2       for (he purpose of this agreement , the. term
             "comparable full-time, worker" means a full time,
      worker m the same establi.slime.nl having the. same
                                                                           opportunities              for part-time
                                                                           a p p r o p r i a t e , eliminate them,
                                                                                                                      work  and,  where
     type of employment contract or relationship, who is              II. the. Social Partners, acting within then sphere of
     engaged m the same 01 a similar work/occupation,                     competence and through the procedures set out in
     due regard being given to other considerations which                 collective agreements, should identify and review
     may include seniority, qualification/skills.                         obstacles which may limit opportunities for part
                                                                          tunc work and, where appropriate, eliminate diem
    3       Where there is no comparable, full-time worker
            in the same establishment, the comparison shall
    be. made, by reference to the applicable collective
    agreement or, where there is no applicable'collective,
                                                                    2       A worker's refusal to transfer from full-time to
                                                                            part-time, work or vice-versa should not in itself
                                                                    constitute a valid reason for termination of employ-
    agreement, m accordance with national law, collecti-
                                                                    ment, without prejudice to termination in a c c o r d a n -
    ve, agreements or practice.
                                                                   ce widi national law, collective agreements and p r a c -
                                                                    tice, for odicr reasons such as may arise from die
                                                                   ojieratiorial             requirements       of  the  establishment
                                                                   concerned.
   Clause 4 : Principle of non-discrimination
    'i     In respect of employment conditions, part-time
     -I workers shall not be treated in a less favourable
   manner than comparable full-time workers solely
                                                                   3      As far as possible, employers should give, consi
                                                                          deration to :
                                                                   A. requests by workers to transfer from full-tune to
   because they work p a r t - t i m e unless different treat
                                                                         part-time work dial become available in the esta
   ment is justified on objective grounds
                                                                         blishmcnt,
   2      Where appropriate, the, principle of pro rata tern
          pons shall apply.
                                                                  B. requests by workers to transfer from p a r t - t i m e to
                                                                        full-time work or to increase their working time
                                                                        should the opportunity arise,
   Q      The modalities of application of dus clause shall
  tJ      be defined by die Member States and/or Social           C. die provision of timely information on die availa-
  Partners, having regard             to European   legislation,        bility of p a r t - t i m e a n d full-time positions in the
  national law, collective agreements and practice                     establishment in order to facilitate transfers from
                                                                       full-time to p a r t - t i m e or vice-versa;
  4       When justified      by objective reasons, Member
         states after consultation of the Social Partners in
 accordance with national law or practice and/or Social
                                                                 D. measures to facilitate access to p a r t - t i m e work at
                                                                       all levels of die enterprise, including skilled a n d
                                                                       managerial positions, and where aj>propriate, to
 Partners may, where appropriate, make, access to par-
                                                                       facilitate access by part-time workers to vocatio-
 ticular conditions of employment subject to a j^eriod of
                                                                      nal training to enhance career opportunities a n d
service,       time   worked       or earnings   qualification.'
                                                                      occupational mobility,
Qualifications relating to aces.*; by part-time workers
to paiticulai conditions of employment should be                 E. the provision of appropriate information (o ex is
ic.vicwcd periodically having, regard'to the. principle of           ting bodies representing workers about p a r t - d i n e
non disci immauon as expressed m clause 4.1                          working in the. enterprise
                                                                                                                                       /'?•
 ---pagebreak---                  _ .Clause 6 : Provisions on implementation                            appropriate level, including European level, agree-
                                                                                       ments adapting and/or complementing die. provi-
                       Member States and/or Social Partners can main
                  1    lain or introduce more favourable provisions than
                   set out in this agreement.
                                                                                       sions of diis agreement in a manner which will take
                                                                                      account of die specific needs of die Social Partners
                                                                                      concerned .
                   2     Implementation of die provisions of diis agree-
                        ment shall not constitute valid grounds for redu-
                  cing the general level of protection afforded to wor-
                                                                                      4    This agreement shall be without prejudice to any
                                                                                           more specific Community provisions, and in par-
                                                                                      ticular Community provisions concerning equal
                  kers in the field of dus agreement. This docs not pre-
                                                                                     treatment or opportunities for men and women.
                  judice the. right of Member States and/or Social
                  Partners to develop different legislative, regulatory or
                  contractual provisions, in the light of changing cir-
                  cumstances, and docs not prejudice die application
                                                                                     5     The prevention and settlement of disputes and
                                                                                           grievances arising from die application of this
                                                                                     agreement shall be dealt with in accordance with
                 of clause 5.1. as long as die principle of non-discri-              national law, collective agreements and practice.
                 mination as expressed in clause 4.1. is complied with.
                 3    The present agreement does not prejudice die
                      right of the Social Partners to conclude, at die
                                                                                    6     The signatory parties will review diis agreement,
                                                                                          five years after the date of die Council decision,
                                                                                    if requested by one of the parties to diis agreement.
                Brussels, 6 June 1997
                       •>•)•)                            fcàfuuuA
                                                          Fritz Vcrzefnifsch,                                      Emilio Gabaglio,                              .
                                                         President of die ETUC                                     Secretary General of die ETUC
                     ETUC
Bid Emile Jaqcmain 155 - B-1210 Bruxelles
                                                           f'iVL
     #UNICE                                              François Perigot,
                                                         President of die UNICE
                                                                                                                  Zygmunf Tyszkiewicz,
       ***                                                                                                        Secretary General of die UNICE
                    UNICE
   Rue Joseph 1140-B-1040 Bruxelles
                                                                                          n
                                                                                                                Yk/u-âut^n
                                                        Antonio CnÀteLlaYio Atlyunc(,                             Y He. P Y o d c n s b o r g ,       <
                                                        ['resident of t h r W T . P         \                     Sex:r(Mm y G<Mie.i;il of (lie C r J ' , ! '
                    CEEP
 Kuril.- !;, Cli.mle l.r.  If 104(1 Hi ««rile
                                                                                                                                                              /?
 ---pagebreak---                         IMPACT ASSESSMENT FORM
       THE IMPACT OF THE PROPOSAL ON BUSINESS
                    with special reference to small and medium-sized
                                      enterprises (SMEs)
 Title of proposal:
 Proposal for a Council Directive concerning the framework agreement on part-time work
 concluded by UNICE, CEEP and the ETUC
 The proposal:
 1.    TAKING ACCOUNT OF THE PRINCIPLE OK SUBSIDIARITY, WHY IS COMMUNITY
       LEGISLATION NECESSARY IN THIS AREA AND WHAT ARE ITS MAIN AIMS?
       The aim of this Directive is to implement the framework agreement on part-time
       work under Article 4(2) of the Agreement on social policy annexed to the Treaty.
       This Article provides for implementing agreements concluded by the social partners
       by way of a Council decision on a proposal from the Commission. The signatories
      have jointly asked the Commission to present a proposal to the Council. The
      Commission, in accordance with its Communication1 on the application of the
      Agreement on social policy, undertook a threefold analysis of the agreement. The
      Commission considers that all the conditions have been met (representative status of
      the signatories, legality of the clauses of the agreement and compliance with special
      provisions on SMEs) and that its proposal for a Council Directive should be
      adopted. The Amsterdam European Council also welcomed the agreement.
The impact on business:
2.    W H O WILL BE AFFECTED BY THE PROPOSAL?
      All enterprises and all workers may be affected by the framework agreement,
      irrespective of the sector or size of the enterprise concerned.
3.   WHAT WILL BUSINESS HAVE TO DO TO COMPLY WITH THE PROPOSAL?
      As indicated in clause 1 of the framework agreement, enterprises will have to
         ensure that any discrimination vis-à-vis part-time workers is done away with;
          facilitate the development of part-time working on a voluntary basis and
         contribute to the flexible organisation of working time in a way which takes
         account of the needs of both employers and workers.
    COM(l>3) 600 final.
                                                15
 ---pagebreak---        A number of clauses refer to legislation, collective agreements or national practices,
       and/or to the social partners at the appropriate level, leaving plenty of room for
       manoeuvre for individual enterprises. Compliance with the provisions concerning
       SMEs is amply covered in points 24-29 of the explanatory memorandum.
 4.    WHAT ECONOMIC EFFECTS IS THE PROPOSAL LIKELY TO HAVE?
       Implementation of the framework agreement on part-time work will contribute to
       the second priority laid down by the Essen European Council, viz. the introduction
       of new, flexible forms of work organisation. Such flexibility must meet the needs of
       firms which have to become more competitive in order to meet the challenge of
       international competition. Any new, flexible arrangements must also bear in mind
       the interests of workers, by enabling them to gear their working time better to their
       individual needs. An agreement between the social partners on this point is the
      outcome of negotiations between the two sides and would seem to be the most
      appropriate instrument for reconciling the two sides' interests.
      The Member States and the social partners should identify and examine any
      obstacles which might restrict the opportunities for part-time work and, if necessary,
      get rid of them. This will help to make the labour market more flexible, with the
      eventual aim of boosting the employment-intensity of growth.
5.    DOES THE PROPOSAL CONTAIN MEASURES TO TAKE ACCOUNT OF THE SPECIFIC
      SITUATION OF SMALL AND MEDIUM-SIZED FIRMS (REDUCED OR DIFFERENT
      REQUIREMENTS, ETC.)?
      See points 24-29 of the explanatory memorandum accompanying the proposal.
Consultation
6.    LIST THE ORGANISATIONS WHICH HAVE BEEN CONSULTED ABOUT THE PROPOSAL
      AND OUTLINE THEIR MAIN VIEWS.
      All the representative organisations2 were given an opportunity to air their views
      during the first phase of consultation. They were also invited by the Commission to
      a consultation meeting on the framework agreement. As regards their positions, see
      points 20-23 of the explanatory memorandum.
    In conformity with the Communication concerning the application of the Agreement on social policy:
    COM(93) 600, 14.12.1993.
                                                16
                                                                                                       o?P
 ---pagebreak---  ---pagebreak---                                                                    ISSN 0254-1475
                                                            COM(97) 392 final
                                              DOCUMENTS
EN                                                                04 05 06
                                    Catalogue number : CB-CO-97-430-EN-C
                                                             ISBN 92-78-23810-4
Office for Official Publications of the European Communities
1.-2985 Luxembourg
                                                                                  fo