The recently adopted Directive 2019/1152 on Transparent and Predictable Working Conditions (“Directive”) introduces additional minimum rights for workers as well as new rules on the information to be provided by employers in regards to the essential elements of work.
Scope of Directive
The Directive does not create a uniform definition of “worker”. Instead, workers shall be defined by the nature of the employment relationship under national law, collective agreements and common practice with reference to the rulings of the European Court of Justice.
Basically, within the scope of the Directive fall all individuals working more than 3 hours per week over 4 weeks (i.e., over 12 hours per month). Member states, however, will be able to exclude certain groups of workers (e.g., civil servants, armed forces, emergency services or law enforcement services, etc.) from some of the provisions provided that such is justified on objective grounds.
On a separate note, the rules shall also apply to non-standard and new forms of work such as zero-hour and on-demand contracts, regardless of the number of working hours under such contracts.
Provision of information
The Directive sets forth an obligation for employers to provide each worker with information on the essential aspects of the employment relationship. These include, among others, the identities of the parties, place and nature of the work, amount of paid leave, elements of remuneration, collective agreements governing worker’s working conditions, etc.
Generally, much of the information above should already be included in employment contracts under existing rules, with differences depending on the jurisdiction. This is also the case with Bulgarian law but there are also some new requirements (for example, informing on the identity of the social security institution receiving social security contributions, etc.). Further, in cases where the work pattern is mostly or entirely unpredictable, employers will have to inform workers of the number of guaranteed paid hours, the reference hours and days within which they may be required to work and the minimum period of advance notice before the start of a work assignment.
Thus, it is recommendable for employers to review and update the employment contract templates they use in order to be in line with the new requirements. Regarding existing employment contracts, employers will need to provide the above information only upon the worker’s request.
The Directive requires the information to be communicated to workers in writing, either on paper or electronically, by certain deadlines. In any case, employers should be able to evidence the delivery and receipt of the information. It should be noted that Member States may develop template documents to be used by employers for the purposes of providing the necessary information. Employers are further required to provide workers with any changes in the relevant aspects of employment as soon as possible or on the day when the changes take effect at the latest.
Maximum duration of probationary period
Under the Directive, probationary periods are limited to six months. Absence during the probationary period will justify an extension of equivalent duration. Longer probationary periods may be set by Member States on an exceptional basis provided this is justified by the nature of the employment or the worker’s interests.
Further, the probation periods in fixed-term contracts must be proportionate to the expected overall duration of the contract. We expect that subsequently adopted national legislation implementing the Directive will shed further light in this respect but it seems in certain cases employers will not be able to apply the maximum probationary period.
The use of exclusivity clauses regarding parallel employment outside the established work schedule (i.e., bans on work for more than one employer simultaneously) shall be prohibited in the absence of a legitimate need for such clauses. Nevertheless, national legislation may introduce incompatibility restrictions on the basis of objective grounds, such as health and safety, protection of business confidentiality, integrity of the public service or avoidance of conflicts of interest.
Other rights provided in Directive
The Directive outlines several other basic rights that employers must provide to workers, such as the right to request, after at least six months service with the same employer, transfer to a more secure job, the right to receive cost-free training when such training is required by EU or national legislation, the right to know within a reasonable period in advance when work will take place (for workers with unpredictable work schedules as in the case of on-demand work), etc.
The Directive introduces some additional administrative requirements on employers when they recruit workers and if there are changes in relevant aspects of employment. Further, employers will have to respect additional rights of workers throughout the course of the employment relationship.
Member States will have approximately three years (until August 1, 2022) to transpose the Directive into national law. Employers need to take note of the new requirements and consider the potential impact on their hiring processes and existing working conditions. Revision of internal policies and employment contracts may be necessary to ensure compliance with the new rules.
Since the Directive requires transposition and gives Members States the possibility of introducing derogations in certain areas, an eye should be kept on related national legislation which would hopefully result in better transparency and predictability of working conditions.
by: PETERKA & PARTNERS – LAW OFFICES – Bulgaria