Introducción.
He dedicado
especial atención a la Propuesta de Directiva en varias entradas del blog. Con
ocasión de su presentación publiqué el artículo “La Directiva 91/533/CEE de 14de octubre de 1991 sobre información al trabajador de sus condicionescontractuales, y la propuesta de Directiva, de 21 de diciembre de 2017,“relativa a unas condiciones laborales transparentes y previsibles” en la UE,que la deroga. Nota introductoria y texto comparado”.
Sobre el concepto
de trabajador me detuve en el trabajo titulado “El (complicado) intento dedesarrollo normativo del Pilar Europeo de Derecho Sociales. Notas sobre elconcepto de trabajador en recientes propuestas de Directiva, Recomendación yReglamento”.
Su tramitación en
el Parlamento europeo fue objeto de atención en el texto titulado “Latramitación en el Parlamento Europeo de la propuesta de Directiva relativa aunas condiciones laborales transparentes y previsibles en la UE”.
El texto
aprobado en primera lectura por el PE mereció mi atención en la entrada “UE.Propuesta de Directiva sobre condiciones de trabajo transparentes yprevisibles. Notas al Informe aprobado por el Parlamento Europeo el 15 denoviembre de 2018”.
En fin, el acuerdo
provisional alcanzado el día 7 de febrero entre el Consejo, la Comisión y el
Parlamento Europeo sobre la propuesta de Directiva fue objeto de atención en la
entrada “Tras el Congreso OIT/Sevilla (7 y 8 de febrero) sobre el futuro deltrabajo. Sigamos debatiendo y haciendo propuestas para un mundo mejor”,
confirmado el día 15 por el Comité de Representantes Permanentes de la UE
(Coreper).
El PE votará el
texto que adjunto en una sesión plenaria que tendrá lugar el 16 de abril. He
procedido a comparar las versiones inglesas de la propuesta originaria de
Directiva (diciembre de 2017) y el texto al que se ha dado el visto bueno en
febrero. Aún no disponemos de la traducción al castellano del texto que se
presume que será definitivo, por lo que me ha parecido técnicamente más correcto
trabajar sobre dos textos en el mismo idioma.
A la espera de un
estudio detallado de la norma una vez que sea definitivamente aprobada, y teniendo
en cuenta que se concede un período de tres años para su transposición por los
Estados miembros, llamo la atención de las lectores y lectoras del blog sobre
algunos de los contenidos del nuevo texto (de los que realizo una traducción no
oficial):
-- Art. 1.2. “La
presente Directiva establece los derechos mínimos aplicables a todo trabajador
de la Unión que tenga un contrato o una relación laboral tal como se define en
la legislación, los convenios colectivos o las prácticas vigentes en cada
Estado miembro, teniendo en cuenta la jurisprudencia del Tribunal de Justicia
de la Unión Europea”.
-- Art. 1.3 “Los
Estados miembros podrán decidir no aplicar las obligaciones de la presente
Directiva a los trabajadores que tengan una relación laboral con un tiempo de
trabajo real y predeterminado igual o inferior a tres horas semanales por
término medio en un período de referencia de cuatro semanas consecutivas”.
-- Art. 1.5. “Los
Estados miembros podrán disponer, por razones objetivas, que las disposiciones
establecidas en el capítulo III no se apliquen a los funcionarios, los
servicios públicos de emergencia, las fuerzas armadas, las autoridades
policiales, los jueces, los fiscales, los investigadores y otros servicios
encargados de hacer cumplir la ley”.
-- Art. 2a. “Suministro de información. El empresario
facilitará por escrito a cada trabajador la información exigida en virtud de la
presente Directiva. La información se facilitará y transmitirá en papel o,
siempre que el trabajador pueda acceder a ella, podrá almacenarla e imprimirla,
y el empresario conservará la prueba de la transmisión o recepción, en formato
electrónico”.
-- Artículo 4. “Calendario
y medios de información. 1. Cuando no se haya facilitado anteriormente, la
información a que se refieren las letras a), b), c), d), e), f), j), k) y l)
del apartado 2 del artículo 3, se facilitará individualmente al trabajador en
forma de uno o varios documentos durante el período comprendido entre el primer
día hábil y, a más tardar, el séptimo día natural. Las demás informaciones
contempladas en el apartado 2 del artículo 3 se comunicarán individualmente al
trabajador en forma de un documento [...] en el plazo de un mes a partir del
primer día laborable”.
-- Artículo 9. “Previsibilidad
mínima del trabajo. 1. Los Estados miembros velarán por que, cuando el ritmo de
trabajo de un trabajador sea total o casi totalmente imprevisible, el
empresario no le exija que trabaje [...] a menos que se cumplan las dos
condiciones siguientes: a) la obra tenga lugar dentro de las horas y días de
referencia predeterminados [...] a que se refiere el artículo 3, apartado 2,
letra l), inciso i bis), y b) el trabajador sea informado por su empresario de
una misión de trabajo en el marco de un plazo razonable establecido con arreglo
a la legislación, los convenios colectivos o los usos nacionales a que se
refiere el artículo 3, apartado 2, letra l), inciso ii). 2. Cuando no se cumpla
uno o ambos de los requisitos establecidos en el apartado 1, el trabajador
tendrá derecho a rechazar un trabajo sin consecuencias negativas. 3. Cuando los
Estados miembros permitan a un empresario cancelar un trabajo sin compensación,
los Estados miembros tomarán las medidas necesarias, de conformidad con la
legislación, los convenios colectivos o los usos nacionales, para garantizar
que el trabajador tenga derecho a una compensación si el empresario cancela,
dentro de un plazo razonable y específico, la asignación de trabajo previamente
acordada por el trabajador. 4. Los Estados miembros podrán establecer las
modalidades de aplicación del presente artículo, de conformidad con la
legislación, los convenios colectivos y/o los usos nacionales”.
-- Artículo 9 bis. “Medidas
complementarias para los contratos a la carta. Cuando los Estados miembros
autoricen la utilización de contratos de trabajo a la carta o similares,
adoptarán una o varias de las siguientes medidas para evitar prácticas
abusivas: a) Limitaciones en la utilización y duración de los contratos a la
carta o similares, b) Una presunción refutable sobre la existencia de un
contrato de trabajo con una cantidad mínima de horas pagadas basada en el
promedio de horas trabajadas durante un período determinado, c) Otras medidas
equivalentes que aseguren la prevención efectiva de prácticas abusivas. Los
Estados miembros informarán a la Comisión de dichas medidas”.
-- Artículo 21. “Disposiciones
transitorias. Los derechos y obligaciones establecidos en la presente Directiva
se aplicarán a todas las relaciones laborales a más tardar el [fecha de entrada
en vigor + 3 años]. No obstante, el empresario sólo facilitará o completará los
documentos mencionados en el apartado 1 del artículo 4, en el artículo 5 y en
el artículo 6 a petición de un trabajador que ya estaba empleado en esa fecha.
La ausencia de tal solicitud no tendrá por efecto excluir a los trabajadores de
los derechos mínimos establecidos en los artículos 7 a 11”.
Buena lectura.
|
Proposal for a DIRECTIVE
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (December 2017)
on transparent
and predictable working conditions in the European Union
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 secure and predictable
employment while ensuring labour market adaptability.
2. This Directive lays down minimum
rights that apply to every worker in the Union.
3. Member States may decide not to apply
the obligations in this Directive to workers who have an employment relationship equal to or less than 8 hours in
total in a reference period of one month.
Time worked with
all employers forming or belonging to the same enterprise, group or entity
shall count towards that 8-hour period.
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 these obligations shall 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.
6. Member States may decide not to apply
the obligations set out in Articles 10 and 11 and Article 14(a) to natural
persons belonging to a household where work is performed for that household.
7. Chapter II of this Directive applies
to seafarers and fishermen without prejudice to Council Directive 2009/13/EC
and Council Directive (EU) 2017/159, respectively.
Article 2
Definitions
1. For the purposes of this Directive,
the following definitions shall apply:
(a) ‘worker’ means a natural person who
for a certain period of time performs services for and under the direction of
another person in return for remuneration;
(b) 'employer' means one or more natural or
legal person(s) who is or are directly or indirectly party to an employment
relationship with a worker;
(c) 'employment relationship' means the
work relationship between workers and employers as defined above;
(d) 'work schedule' means the schedule
determining hours and days on which performance of work starts and ends;
(e) 'reference hours and days' means time
slots in specified days during which work can take place at the request of
the employer.
2. For the purposes of this Directive
the terms 'microenterprise', 'small enterprise' and 'medium-sized enterprise'
shall have the meaning set out in the Commission Recommendation of 6 May 2003
concerning the definition of micro, small and medium-sized enterprises or in any subsequent act replacing that
Recommendation.
Chapter II
Information on
the employment relationship
Article 3
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:
(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) (i) the title, grade, nature or
category of the 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 temporary employment
relationship, the end date or the expected duration thereof;
(f) the duration and conditions of the
probationary period, if any;
(g) any training entitlement provided by
the employer;
(h) 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;
(i) the procedure, including the length of
the period of notice, to be observed by the employer and the worker should
their employment relationship be terminated or, where the length of the
period of notice cannot be indicated when the information is given, the
method for determining such period of notice;
(j) the initial basic amount, any other
component elements, the frequency and method of payment of the remuneration
to which the worker is entitled;
(k) if the work schedule is entirely or
mostly not variable, the length of the worker's standard working day or week
and any arrangements for overtime and its remuneration;
(l) if the work schedule is entirely or
mostly variable, the principle that the work schedule is variable, the amount
of guaranteed paid hours, the remuneration of work performed in addition to
the guaranteed hours and, if the work schedule is entirely or mostly
determined, by the employer:
(i) the reference hours and days within
which the worker may be required to work;
(ii) the minimum advance notice the worker
shall receive before the start of a work assignment;
(m) any collective agreements governing the
worker's conditions of work; in the case of collective agreements concluded
outside the business by special joint bodies or institutions, the name of the
competent body or joint institution within which the agreements were
concluded;
(n) the social security institution(s)
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(f) to (k) and (n) 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 particular points.
Article 4
Timing and means
of information
1. The information referred to in
Article 3(2) shall be provided individually to the worker in the form of a
document at the latest on the first day of the employment relationship. That
document may be provided and transmitted electronically as long as it is
easily accessible by the worker and can be stored and printed.
2. Member States shall develop templates
and models for the document referred to in paragraph 1 and put them at the
disposal of workers and employers including by making them available on a
single official national website and by other suitable means.
3. Member States shall ensure that the
information on the laws, regulations and administrative or statutory
provisions or 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 for Union citizens and businesses.
Article 5
Modification of
the employment relationship
Member States
shall ensure that any change in the aspects of the employment relationship
referred to in Article 3(2) and to the additional information for workers
posted or sent abroad in Article 6 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 it takes effect.
Article 6
Additional
information for workers posted or sent abroad
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 document
referred to in Article 4(1) shall be provided before his or her departure and
shall include at least the following additional information:
(a) the country or countries in which the
work abroad is to be performed and its duration;
(b) the currency to be used for the payment
of remuneration;
(c) where applicable, the benefits in cash
or kind attendant on the work assignment(s), which includes in the case of
posted workers covered by Directive 96/71/EC any allowances specific to
posting and any arrangements for reimbursing expenditure on travel, board and
lodging;
(d) where applicable, the conditions
governing the worker's repatriation.
2. Member States shall ensure that, if
the worker sent abroad is a posted worker covered by Directive 96/71/EC, he
or she 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) the link to the official national
website(s) developed by the host Member State(s) pursuant to Article 5(2) of
Directive 2014/67/EU.
3. The information referred to in
paragraph 1(b) and 2(a) 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 particular points.
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 7
Maximum duration
of any probationary period
1. Member States shall ensure that,
where an employment relationship is subject to a probationary period, that
period shall not exceed six months, including any extension.
2. Member States may provide for longer
probationary periods in cases where this is justified by the nature of the
employment or is in the interest of the worker.
Article 8
Employment in
parallel
1. Member States shall ensure that an
employer shall not prohibit workers from taking up employment with other
employers, outside the work schedule established with that employer.
2. Employers may however lay down
conditions of incompatibility where such restrictions are justified by legitimate
reasons such as the protection of business secrets or the avoidance of
conflicts of interests.
Article 9
Minimum
predictability of work
Member States
shall ensure that where a worker's work schedule is entirely or mostly
variable and entirely or mostly determined by the employer, the worker may be
required to work by the employer only:
(a) if work takes place within
predetermined reference hours and reference days, established in writing at
the start of the employment relationship, in accordance with Article
3(2)(l)(i), and
(b) if the worker is informed by their
employer of a work assignment a reasonable period in advance, in accordance
with Article 3(2)(l)(ii).
Article 10
Transition to
another form of employment
1. Member States shall ensure that workers
with at least six months' seniority with the same employer may request a form
of employment with more predictable and secure working conditions where
available.
2. The employer shall provide a written
reply 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 11
Training
Member States
shall ensure that where employers are required by Union or national
legislation or relevant collective agreements to provide training to workers
to carry out the work for which they are employed, such training shall be
provided cost-free to the worker.
Chapter IV
Collective
agreements
Article 12
Collective
agreements
Member States
may allow social partners to conclude 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 7 to 11.
Chapter V
Horizontal provisions
Article 13
Compliance
Member States
shall take all necessary measures to ensure that provisions contrary to this
Directive in individual or collective agreements, internal rules of
undertakings, or any other arrangements shall be declared null and void or
are amended in order to bring them into line with the provisions of this
Directive.
Article 14
Legal
presumption and early settlement mechanism
Member States
shall ensure that, where a worker has not received in due time all or part of
the documents referred to in Article 4(1), Article 5, or Article 6, and the employer
has failed to rectify that omission within 15 days of its notification, one
of the following systems shall apply:
(a) the worker shall benefit from
favourable presumptions defined by the Member State. Where the information
provided did not include the information referred to in points (e), (f), (k)
or (l) of Article 3(2), the favourable presumptions shall 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,
respectively. Employers shall have the possibility to rebut the presumptions;
or
(b) the worker shall have the possibility
to submit a complaint to a competent authority in a timely manner. If the
competent authority finds that the complaint is justified, it shall order the
relevant employer(s) to provide the missing information. If the employer does
not provide the missing information within 15 days following receipt of the
order, the authority shall be able to impose an appropriate administrative
penalty, even if the employment relationship has ended. Employers shall have
the possibility to lodge an administrative appeal against the decision
imposing the penalty. Member States may designate existing bodies as
competent authorities.
Article 15
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, including adequate
compensation, in case of infringements of their rights arising from this
Directive.
Article 16
Protection
against adverse treatment or
consequences
Member States
shall introduce measures necessary to protect workers, including workers who are employees' representatives,
from any adverse treatment by the employer or adverse consequences resulting
from a complaint lodged with the employer or from any legal proceedings initiated
with the aim of enforcing compliance with the rights provided for in this
Directive.
Article 17
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 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 its equivalent. 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, facts from which it
may be presumed that there has been such dismissal or its equivalent, it
shall be for the respondent 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
plaintiffs.
5. Member States need not apply
paragraph 3 to proceedings in which it is for the court or competent body to
investigate the facts of the case.
6. Paragraph 3 shall not apply to
criminal procedures, unless otherwise provided by the Member State.
Article 18
Penalties
Member States
shall lay down the rules on penalties applicable to infringements of the
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. Member States shall
take all measures necessary to ensure that those penalties are applied.
Penalties shall be effective, proportionate and dissuasive. They may take the
form of a fine. They may also comprise payment of compensation.
Chapter VI
Final provisions
Article 19
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 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 20
Implementation
1. Member States shall adopt and publish
the laws, regulations and administrative provisions necessary to comply with
this Directive by [entry into force date + 2 years], or shall ensure that the
social partners introduce the required provisions by way of an agreement, the
Member States being obliged to take the necessary steps enabling them at all
times to guarantee the results imposed by this Directive.
They shall
forthwith inform the Commission thereof.
2. When Member States adopt those
measures, 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.
Article 21
Transitional
arrangements
The rights and
obligations set out in this Directive shall apply to existing employment
relationships as from [entry into
force date + 2 years]. However, employers shall provide or complement the
documents referred to in Article 4(1), Article 5 and Article 6 only upon
request of a worker. The absence of such request shall not have the effect of
excluding workers from the minimum rights established under this Directive.
Article 22
Review by the Commission
By [entry into
force date + 8 years], the Commission shall, in consultation with the Member
States and social partners at Union level and taking into account the impact
on small and medium-sized enterprises, review the application of this Directive
with a view to proposing, where appropriate, the necessary amendments.
Article 23
Repeal
Directive
91/533/EEC shall be repealed with effect from [entry into force date + 2
years]. References to the repealed Directive shall be construed as references
to this Directive.
Article 24
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 25
Addresses
This Directive
is addressed to the Member States.
|
Proposal for a DIRECTIVE
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (February 2019)
on transparent
and predictable working conditions in the European Union
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 of the European Union.
3. Member States
may decide not to apply the obligations in this Directive to workers who have
an employment relationship with
predetermined and actual time worked equal to or less than three hours per
week on average 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.
5a. Member States may provide, on objective grounds,
that the provisions laid down in Chapter III shall not apply to civil
servants, public emergency services, the armed forces, and to police
authorities, judges, prosecutors, investigators and other law enforcement services.
6. Member States
may decide not to apply the obligations set out in Articles 10 and 11 and Article
14(1)(a) to natural persons in households acting as employers where work is performed
for those households.
7. Chapter II of
this Directive applies to seafarers and sea fishermen without prejudice to Council
Directive 2009/13/EC12 and Council Directive (EU) 2017/15913, respectively. The obligations set out in Articles
3(2)(l) and (n), 6, 8, 9 and 10 shall not apply to seafarers and sea
fishermen.
Article 2
Definitions
1. For the purposes
of this Directive, the following definitions […] apply:
(a) [deleted]
(b) [deleted]
(c) [deleted]
(d) 'work
schedule' means the schedule determining the hours and days on which
performance of
work starts and ends;
(e) 'reference
hours and days' means time slots in specified days during which work can take
place at the request of the employer;
(ea) 'work pattern' means the form of organization
of the working time and its
distribution according to a certain pattern determined
by the employer.
2. [deleted]
Article 2a
Provision of information
The employer shall provide each worker with
information required pursuant to this Directive in writing. The information
shall be provided and transmitted on paper or, provided that it is accessible
by the worker, can be stored and printed, and the employer retains proof of transmission
or reception, in electronic form.
Chapter II
Information on
the employment relationship
Article 3
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) (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 temporary employment relationship, the end date or the expected
duration
thereof;
(ea) in the case of temporary agency workers, the
identity of the user undertakings, when and as soon as known;
(f) the duration
and conditions of the probationary period, if any;
(g) the training
entitlement provided by the employer, if any;
(h) 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;
(i) the
procedure, including the formal requirements and the length of […] notice
periods to be
observed by the employer and the worker if 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;
(j) the remuneration, including the initial
basic amount, any other component elements, if applicable, indicated
separately, the frequency and method of payment of the remuneration to which
the worker is entitled;
(k) 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, for shift changes;
(l) if the work
pattern is entirely or mostly not predictable, the employer shall inform
the worker
about:
(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;
(ia) the
reference hours and days within which the worker may be required to work;
(ii) the minimum
period of advance notice the worker shall receive before the start of a work
assignment and, where applicable, the
deadline for cancellation referred to in Article 9;
(m) 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 the competent body or joint institution
within which the agreements were concluded;
(n) where it is the responsibility of the
employer, the identity of the social security institution(s) 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(f) to (k) and (n) 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 particular points.
Article 4
Timing and means
of information
1. Where not previously provided, the
information referred to in Article 3(2) (a), (b), (c), (d), (e), (f), (j),
(k) and (l) shall be provided individually to the worker in the form of one or
more documents during the period between the first working day and no later
than the seventh calendar day. The other information referred to in Article
3(2) shall be provided individually to the worker in the form of a document […]
within one month from the first working day.
2. Member States
may develop templates and models for the document(s)
referred 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 5
Modification of the
employment relationship
1. Member States
shall ensure that any change in the aspects of the employment relationship referred
to in Article 3(2) and to the additional information for workers sent to another Member State or a third
country in Article 6 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 it takes effect.
2. The written 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 4(1), and, where relevant,
in Article 6.
Article 6
Additional
information for workers […] sent to another Member State or 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 4(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 attendant on the work assignment(s)
[…];
(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;
(aa) where applicable, any allowances specific to
posting and any arrangements for reimbursing expenditure on travel, board and
lodging;
(b) the link to
the official national website(s) developed by the host Member State(s) pursuant
to Article 5(2) of Directive 2014/67/EU of the European Parliament and of the
Council.
3. The
information referred to in paragraphs 1(b) and 2(a) 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 those particular points.
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.
24
Chapter III
Minimum
requirements relating to working conditions
Article 7
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 legislation and/or practice, that period shall not
exceed six months […].
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.
2. Member States
may, on an exceptional basis, provide for longer probationary periods in cases
where this is justified by the nature of the employment or is in the interest
of the worker. In cases 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 8
Employment in
parallel
1. Member States
shall ensure that an employer is not to prohibit a worker from taking up employment
with other employers, outside the work schedule established with that employer,
or subject 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 reasons, such as health and safety, the protection of
business confidentiality, the integrity of the public service or the avoidance
of conflicts of interests.
Article 9
Minimum
predictability of work
1. Member States
shall ensure that where a worker's work pattern is entirely or mostly not predictable
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 reference days […] as
referred to in Article 3(2)(l)(ia), and
(b) the worker
is informed by his or her employer of a work assignment within a
reasonable
period in advance established in
accordance with national law, collective agreements or practice as
referred to in Article 3(2)(l)(ii).
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 specific reasonable deadline the work assignment
previously agreed by the worker.
4. Member States may lay down modalities for the
application of this Article, in accordance with national law, collective
agreements and/or practice.
Article 9a
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 contracts,
b) A rebuttable presumption on 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 10
Transition to
another form of employment
1. Member States
shall ensure that a worker who has completed his or her probationary period,
if any, with at least six months'
service with the same employer 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 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 11
Mandatory training
Member States
shall ensure that where an employer is required by Union or national law or 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 cost-free to the worker,
shall count as working time and,
where possible,
take place during working hours.
[Chapter IV:
Collective agreements]
[deleted/
chapter title only]
Article 12
Collective
agreements
Member States
may allow 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 7 to 11.
Chapter V
Horizontal provisions
Article 13
[deleted]
Article 14
Legal
presumption 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 4(1) or Article 5 at least one of the
following systems shall apply:
(a) the worker
shall benefit from favourable presumptions defined by the Member State.
[…] Employers
shall have the possibility to rebut the presumptions; or
(b) the worker
shall have the possibility to submit a complaint to a competent authority or
body and receive adequate redress in a timely and effective manner. […]
2. Member States may provide that access to the
systems 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 15
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 case of
infringements of
their rights arising from this Directive.
Article 16
Protection
against adverse treatment or consequences
Member States
shall introduce measures necessary to protect workers, including workers who are workers' representatives,
from any adverse treatment by the employer or adverse consequences resulting
from a complaint lodged with the employer or from any […] proceedings
initiated with the aim of enforcing compliance with the rights provided for
in this Directive.
Article 17
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
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 its equivalent. 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 dismissal or its
equivalent, it shall be for the respondent 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 plaintiffs.
5. Member States
need not 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 procedures, unless otherwise provided by the Member
State.
Article 18
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. […] Penalties shall be effective,
proportionate
and dissuasive. […]
Chapter VI
Final provisions
Article 19
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 20
Implementation
1. Member States
shall take the necessary measures necessary to comply with this Directive [by
entry into force date + 3 years] […]. They shall immediately inform the
Commission thereof.
1a. 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 the provisions of this Directive.
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.
2a. 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.
2b. 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 21
Transitional
arrangements
The rights and
obligations set out in this Directive shall apply to all employment relationships
by [entry into force date + 3 years].
However, an employer shall provide or complement the documents referred to in
Article 4(1), Article 5 and Article 6 only upon the request of a worker
already employed
at that date. The absence of such request shall not have the effect of
excluding workers from the minimum rights established under Articles 7 to 11.
Article 22
Review by the
Commission
By [entry into
force date + 8 years], 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 application of this Directive and propose, where appropriate,
legislative amendments.
Article 23
Repeal
Directive
91/533/EEC shall be repealed with effect from [entry into force date + 3
years]. References to the repealed Directive shall be construed as references
to this Directive.
Article 24
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 25
Addresses
This Directive
is addressed to the Member States.
|
|
|
|
No hay comentarios:
Publicar un comentario