EUROPEAN COMMISSION Brussels, 21.9.2017 SWD(2017) 301 final COMMISSION STAFF WORKING DOCUMENT ANALYTICAL DOCUMENT Accompanying the document CONSULTATION DOCUMENT Second phase consultation of Social Partners under Article 154 TFEU on a possible revision of the Written Statement Directive (Directive 91/533/EEC) in the framework of the European Pillar of Social Rights {C(2017) 6121 final} EN EN TABLE OF CONTENTS INTRODUCTION ............................................................................................................... 4 1 RESULTS OF THE FIRST PHASE SOCIAL PARTNERS CONSULTATION ...................................................................................................... 6 1.1 Workers' organisations ...................................................................................... 6 1.2 Employers' organisations ................................................................................... 8 1.3 Other consultations of stakeholders ................................................................... 9 2 PROBLEM DEFINITION ........................................................................................ 10 2.1 What is the problem and why is it a problem? ................................................ 10 2.2 Main drivers ..................................................................................................... 13 2.2.1 Labour market drivers ....................................................................... 13 a) Growth of non-standard employment and risk of precariousness ................................................................... 13 b) Some new and non-standard forms of work are especially insecure ............................................................. 19 2.2.2 Regulatory drivers ............................................................................. 41 a) The EU social acquis ......................................................... 41 b) The Written Statement Directive: objectives and content ............................................................................... 47 c) Gaps in the EU social acquis ............................................. 48 d) Diversity of national provisions on atypical work and lack of equal treatment across the EU ........................ 52 2.3 Consequences of the problem .......................................................................... 55 2.3.1 Consequences for workers ................................................................. 56 2.3.2 Consequences for businesses ............................................................. 64 2.3.3 Consequences for Member States ..................................................... 69 3 EU COMPETENCE AND EU ADDED VALUE .................................................... 76 3.1 Foundations of the right to act ......................................................................... 76 3.2 Necessity and EU added value ........................................................................ 78 3.3 Coherence with other relevant EU instruments ............................................... 79 Coherence with the Charter of Fundamental Rights of the EU ....................... 81 4 POLICY OBJECTIVES ............................................................................................ 82 4.1. General and specific policy objectives ............................................................... 82 5 AVENUES FOR EU ACTION AND THEIR IMPACTS ........................................ 83 5.1 A scope of application encompassing all EU workers, in particular the most precarious ................................................................................................ 85 5.2 Modification of the 'information package' ....................................................... 95 5.3 Shortening of the two-month deadline .......................................................... 102 5.4 New minimum rights for all workers in the EU ............................................ 106 A. Limits to flexible work arrangements and right to predictability of work ................................................................................................. 106 2 B. Probation ................................................................................................... 121 5.5 Enforcement .................................................................................................. 124 6 CONCLUSIONS ..................................................................................................... 129 ANNEXES ...................................................................................................................... 131 3 INTRODUCTION Protecting workers' rights and improving working conditions has been at the heart of the European project since its beginning. The social dimension has developed alongside the deepening of the single market, to ensure a level playing field for business and promote concrete improvements in working conditions for millions of workers across all Member States. The comprehensive framework of the EU's social acquis guarantees workers unparalleled levels of protection concerning their working time, occupational health and safety, right to information and consultation, collective rights, protection from discrimination and abusive practices linked to their employment status. In recent years the EU labour market has however undergone deep transformations. The financial and economic crisis has exposed weaknesses in social protection systems, globalisation has affected production models, and unprecedented technological development has brought about new opportunities but also new demands not only in terms of skills but also in flexibility of working arrangements. There is a growing diversity of forms of work, which has created new jobs and new opportunities for millions, but has also led to a growing precariousness of employment and gaps in protection. This trend has led the Commission to pose the question through the initiative the European Pillar of Social Rights, of which the current exercise forms a part, whether the EU social policy framework is still valid and sufficient to maintain the EU's high social standards. In the same vein, the Commission underlined in its reflection paper on "Harnessing Globalisation"1 the importance of addressing the impact of globalisation through strong social policies at EU and national level to reinforce the resilience of citizens and workers. While economic and financial recovery has been the immediate priority in the midst of the crisis, this Commission has put social dimension once again in the very centre of its political agenda. As President Juncker has declared, 'Building a more inclusive and fairer Union is a key priority for this European Commission.'2 The extensive public consultation on the European Pillar of Social Rights ('the Pillar') 3 in 2016 has shown that while the EU acquis is indeed comprehensive, there are some gaps linked to developments on the labour market that need to be addressed in order to make it more relevant for the 21st century. This was also emphasised in the European Parliament's Resolution of January 2017 on the Pillar, and most recently in their Resolution of July 2017 on working conditions and precarious employment.4 1 https://ec.europa.eu/commission/sites/beta-political/files/reflection-paper-globalisation_en.pdf 2 See Political Guidelines for the next European Commission, "A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change", 15 July 2014. 3 Delivering on the European Pillar of Social Rights, http://ec.europa.eu/social/main.jsp?catId=1226&langId=en , and Public consultation on the European Pillar of Social Rights http://ec.europa.eu/social/main.jsp?catId=333&langId=en&consultId=22&visib=0&furtherConsult=yes 4 P8-TA(2017)0010 of 19.01.2017 and P8-TA(2017)0290 of 04.07.2017. 4 The Commission has set out in its final proposal for the Pillar a number of key principles and rights to support fair and well-functioning labour markets and welfare systems (including a whole chapter on fair working conditions), which it is currently discussing with the Council, European Parliament and the EU level social partners. The aim is to agree on a joint approach in the form of a Proclamation setting out these principles and rights and implementing them jointly in respect of competencies of the Member States and the social dialogue process. The possible revision of the Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, known as the Written Statement Directive, is one of the concrete initiatives announced by the Commission in April 2017 when presenting the Pillar. Other initiatives, closely related to and complementary to this one, include a legislative proposal on work-life balance of parents and carers, a social partners' consultation on access to social protection, and an interpretative communication on working time. Directive 91/533/EEC, adopted on 14 October 1991, gives employees the right to be notified in writing of the essential aspects of their employment relationship when it starts or within a limited time thereafter (two months maximum). It also defines additional information that must be provided before departure to employees who are required to work abroad. Revising the Directive could contribute to the Pillar principles by improving workers' and employers' clarity on their contractual relationship and by ensuring this protection is extended to all workers,