European Labour Law Lecture 06A

1. European Labour Law Lecture 06A

2. 6.1. Individual employment law - general 1 The 1957 CEE Treaty had not given clear competences to the European legislator to issue precise individual employment laws. It only had charged the European Commission to encourage cooperation between the MS e.g. in matters relating to employment (art. 118 CEE, now art. 156 TFEU). The Commission has done this during the 1950s and 1960s a.o. by asking Professors of Labour Law to write comparative analyses of the labour law in the Member States.

3. 6.1. Individual employment law - general 2 However, there were already in the 1957 CEE Treaty two items of very precise labour law matters, viz. - Art. 119 on equal pay m/w (now art. 157 TFEU) - Art. 120 on paid holidays schemes (now art. 158 TFEU). The fathers of the European Treaties feared that if they on these points would not lay down some guarantees the newly created Common Market could be threatened by unfair competition on these points. Art. 120 always remained a dead letter.

4. 6.1. Individual employment law - general 3 However, fuelled by the wave of feminism in the 1960s, Art. 119 CEE became the real start of hard EU law in individual employment matters when in 1971 the ECJ recognised the direct binding force, both vertically and horizontally of art. 119 CEE (Defrenne 1 – case). Additionally inspired by the Paris Summit 1972 the European Commission set out a Social Action Programme with many intentions to issue Directives in the field of individual employment items, especially in the field of - Equal pay and equal treatment m/w - Social aspects of the restructuration of enterprises

5. 6.1. Individual employment law - general 4 These directives successively came out of the pipeline between 1974 and 1980. A third ambition was to bring some EU order in the growth of contractual variety at the labour market (temporary work, fixed term contracts, etc). However this ambition could not be realised as in the meantime the employment situation in the EU had deteriorated and neo-liberalism was in the air (Reagan/Thather/Kohl/Chirac). Only by the end of the 1980s there was a new perspective for labour law: the drive to complete the single market convinced politicians that they had to make progress in harmonising health and safety laws of the MS, which became the basis for a wave of this kind of EU rules in the 1990s.

6. 6.1. Individual employment law - general 5 The 1990s also appeared to be prolific in further moves on the agenda of non-discrimination by extending it to items of race, gender, age and disability. Finally progress could be made on the stalled involvement of the EU in the ambition to bring some order in the contractual variety on the labour market These agenda’s being depleted there was in the first decade of the new millennium hardly any new progress possible. This decade was characterised by a consolidation (often called “recast”) of the existing Directives.

7. 6.1. Individual employment law - general 6 So let us now successively look at the fruits of the various agenda’s - The contractual variety at the labour market (this lecture) - The anti-discrimination agenda (7th lecture) - Health and safety at the work place (8th lecture) - The restructuration agenda (9th lecture)

8. 6.2. The contractual variety at the labour market 1 After the Second World War until the 1970s the contractual situation at the EU labour markets was quite surveyable. Most workers were male breadwinners, working on full-time, open ended contracts of employment. There may have been millions of other workers (day-labourers, casual workers, self employed), but they were somewhat outside the vision of labour law. In the course of the 1970s all this started to change by the entrance of more women on the labour market, by the appearance of temporary agency work, self-employed, modern varieties of casual work, homework in the new form of telework, etc.

9. 6.2. The contractual variety at the labour market 2 As in all MS there was a lot of confusion on the legal aspects of these new developments the EU politicians thought that they could bring some order with EU Directives in this field. Proposals were launched with regard to part-time work, temporary agency work and fixed-term contracts, but they all ended up in a deadlock. The first proposal to be successful was perhaps the less ambitious one, the 1991 Directive on an employer’s obligation to inform employees of the conditions applicable to the contract or the employment relationship. Hendrickx T. no. 17; C. p. 154-158.

10. 6.3. Information about the employment aspects 1 In all MS traditionally the contract of employment normally could be concluded both in an oral or in a written way. But even if it is in a written way, the document needs not to contain all desired information about the rights and obligations of the worker. As new forms of work has led to an increase in the number of types of employment certain MS had made employment relationships subject to formal requirements. However, this variety of national rules could have a negative effect on the operation of the Common Market, so the EU considered it necessary to issue a Directive on this point.

11. 6.3. Information about the employment aspects 2 The Directive obliges the employer to “notify” the employee on the essential aspects of his contract (art. 2 (1). The Directive then lists the essential aspects, e.g. - Nature of the work - Duration of the contract and notice period - Wages, paid leave, etc. - Length of the working day (incl. an obligation to perform overtime, see ECJ in Lang case) - Applicability of a collective agreement, etc. Moreover some additional obligations in case of the expatriation of the employee (Art. 4).

12. 6.3. Information about the employment aspects 3 The Directive does NOT require the contract of employment to be in writing (see Art. 6, first indent). It however provides that the “notification” shall be done (Art. 3): - within 2 months after the start of employment - in a written contract, a letter of engagement or a written statement signed by the employer - and/or a written document containing some of the required data. The Directives also provides (Art. 5) that any change in the main terms of the contract must also be communicated in writing.

13. 6.3. Information about the employment aspects 4 The Directive is applicable to all sorts of “contracts of employent” or “employment relationships” (Art. 1(1). The last addition opens the possibility to give a broad application to the Directive (also including the quasi-self employed????) However MS may exclude contracts/relationships during less than one month/8 hours a week and casual work if this is justified by objective reasons (Art. 1(2). An understandable but deplorable exception if one wants to fight abuses in this segment of the labour market.

14. 6.3. Information about the employment aspects 5 Indeed one of the main assets of this Directive is, that it may help in the fight against the black labour market of migrants and other disadvantaged categories of workers. A second asset of the Directive is, that it may contribute to the clarification of the many employment relationship with a dubious character. From these point of view Art. 6, second indent,is deplorable: The Directive shall be without prejudice to national law concerning proof. It my view it should have an impact on the rules on proof.

15. 6.3. Information about the employment aspects 6 In court proceedings the burden of proof for the (non)existence and the contents of an employment contract/relationship should be shifted to the employer if he cannot produce copies of the written materials due under Art. 3. In my view MS are free under Art. 7 to establish the previous rule. The third advantage is, that the Directive promotes the applicability of collective agreements. Many employers will for the sake of simplicity refer to that document, which will then as a consequence have been incorporated in the contract. All in all: an important, often underrated Directive!