Draft EU employment legislation state of play, December 2015

Consultation of the EU-level social partners on review of Directive 2003/88/EC concerning certain aspects of the organisation of working time. First-stage consultation - COM (2010) 106. Second-stage consultation - COM (2010) 801/3.

Art.154.

Earlier attempt to revise Directive, launched in 2004, failed in April 2009. On 24 March 2010, Commission launched first-stage consultation of social partners, seeking views on possible comprehensive review of Directive aimed at identifying which provisions need to be adapted, simplified or clarified to take account of developments in the length and distribution of working time. ETUC and BusinessEurope responded in June, with differing views on key issues such as the opt-out from the 48-hour maximum week. Second-stage consultation launched on 21 December 2010, with Commission suggesting either a focused review of the Directive (dealing with on-call time and compensatory rest for missed daily and weekly rest periods) or a comprehensive review (also dealing with matters such as the opt-out from the 48-hour week, greater flexibility, work-life balance, autonomous workers, multiple contracts and paid annual leave). BusinessEurope, ETUC, Ceep and Ueapme stated that they were prepared to negotiate over an agreement on revising the Directive and in June 2011 BusinessEurope formally offered talks to ETUC. ETUC confirmed its willingness to negotiate, but on a wider range of issues than identified by the employers. Social partners finally announced in November that talks would start in December, with a planned deadline of September 2012. In August 2012, in response to a joint request from the social partners, the Commission agreed to extend the deadline until 31 December 2012. However, the negotiations broke down without agreement in mid-December. After lengthy consideration of its next step, the Commission announced in June 2014 that it planned to issue a new proposal to amend the Directive in 2015. The aim would be to clarify and simplify the current rules, and update them to meet challenges arising from new working patterns. The new European Commission that took office on 1 November 2014 stated that a detailed impact assessment should be completed in the first half of 2015. The Commission would then seek a consensus with the EP and Council on "adjusting the EU rules", building on lessons learnt from the previous unsuccessful attempts to revise the Directive. On 1 December 2014, the Commission launched a public consultation as part of the review process, seeking views on the impact of the current Directive and its possible future development, and on specific matters such as on-call and stand-by time, compensatory rest, reference periods, the opt-out, working patterns and sector-specific issues. The consultation closed on 15 March 2015. No further developments have been announced since then.

EU Quality Framework for anticipation of change and restructuring. COM (2013) 882 final.

Some kind of substantive and binding EU-level instrument on managing the employment consequences of company restructuring has been mooted since the early 2000s, and several rounds of inconclusive social partner consultations were held on the subject between 2002 and 2005. The Commission revived the issue in 2010 and announced a new consultation on a code of conduct on anticipation and management of change and restructuring. The consultation was scheduled for 2011 but did not occur. Instead, in January 2012, the Commission launched a general public consultation on the subject. The Commission then scheduled a first-stage formal consultation of the social partners on an EU framework for anticipating and managing change and restructuring for 2012 and again for early 2013, but subsequently dropped the proposal from its planning documents. In January 2013, the EP adopted a resolution requesting that the Commission issue draft legislation on anticipation and management of restructuring. On 13 December, the Commission issued an "EU Quality Framework for anticipation of change and restructuring", as a follow-up to the 2012 public consultation and as a response to the EP resolution. The framework is a non-binding set of principles and recommendations on good practice in the anticipation and management of restructuring, aimed at employers, employees and their representatives, and at the public authorities. The framework deals with issues such as avoiding redundancies, and informing and consulting employees. The Commission calls on the member states to support, disseminate and promote the wide application of the framework, and urges all stakeholders to cooperate on the basis of the document's principles and practices. The Commission will monitor the framework's application and, by 2016, assess whether or not it needs to be revised. This process will also establish whether or not "further action is necessary, including a legislative proposal". There is thus no prospect of the Commission proposing binding EU-wide action on restructuring before 2016.

European agreement on implementation of 2007 International Labour Organisation (ILO) Convention on working conditions in fishing.

On 21 May 2012, following talks that began in October 2010, the EU-level social partners in the fishing industry - Europêche, Cogeca and the European Transport Workers' Federation - signed an agreement on implementing the ILO Convention on working conditions in the sector. The Convention sets minimum standards in areas such as conditions of service, repatriation rights, accommodation, food, health and safety, medical care and social security. The social partners asked the Commission to propose a Directive making the agreement legally binding across the EU. Following discussions with the Commission, the partners signed an amended version of the agreement in May 2013 and renewed their request for an implementing Directive. The Commission is assessing the amended agreement before issuing a draft Directive, and such a proposal does not currently feature in the Commission's planning documents.

* Directive (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015 amending Directives 2008/94/EC, 2009/38/EC and 2002/14/EC of the European Parliament and of the Council, and Council Directives 98/59/EC and 2001/23/EC, as regards seafarers. OJ L263 of 8 October 2015.

Commission issued draft Directive on 18 November 2013. The EESC gave its Opinion on 25-26 March 2014 and the CoR its Opinion on 3 April 2014. The Italian EU Presidency of the second half of 2014 initiated Council discussion of the proposal and agreement on a "general approach" was announced at the EPSCO meeting on 11 December. In May 2015, following negotiations, the Council and the EP reached agreement on a compromise text of the Directive. The EP approved the text at first reading on 8 July and the Council formally adopted the Directive on 18 September. Member states must comply with the Directive by 10 October 2017.

The Directive deletes or amends provisions in five EU Directives that exclude seafaring workers from the coverage of these Directives, or permit national governments to exclude these workers. The Directives concerned are those on collective redundancies (98/59/EC), transfers of undertakings (2001/23/EC), information and consultation (2002/14/EC), employer insolvency (2008/94/EC) and European Works Councils (2009/38/EC). The aim is to guarantee seafarers the same rights, notably in terms of information and consultation, as other workers, while taking into account the particular nature of the shipping sector.

Proposal for a Directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures. COM (2012) 614 final.

Art. 157 (3). Co-decision procedure.

Commission issued draft Directive on 14 November 2012. The proposal seeks to ensure a more balanced representation of men and women among the non-executive directors of listed companies. It sets the objective of a 40% presence of the currently under-represented sex among non-executive directors, to be achieved by 2020 (2018 in the cases of state-controlled undertakings). Companies that have a lower share (less than 40%) of the under-represented sex among their non-executive directors would be required to make appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, applying clear, gender-neutral and unambiguous criteria. Given equal qualification, priority would have to be given to the under-represented sex.

The UK Parliament has objected that the proposal does not comply with the EU subsidiarity principle, as have several other national parliaments. The Irish EU Presidency of the first half of 2013 sought to take forward Council work on the proposal. It reported to EPSCO Council on 20-21 June that significant progress had been made, with all member states in principle in favour of improving gender balance on company boards. However, some prefer national measures while others support EU-wide legislation. The Lithuanian EU Presidency of the second half of 2013 sought progress on the draft Directive, but the EPSCO Council on 9-10 December was told that further work and political reflection will be required before a compromise can be reached. The Greek EU Presidency of the first half of 2014 gave priority to the proposal, but reported to the EPSCO Council on 19-20 June that no agreement had been reached, with opinions continuing to differ sharply on the best way of achieving the proposal's objectives. The Italian EU Presidency of the second half of 2014 tried to take forward the negotiations, but reported in September that at least eight member states, including the UK, still oppose the draft Directive. Because some governments oppose EU legislation that could interfere with existing national arrangements, the Italian Presidency sought consensus over the inclusion of a "flexibility clause" that would enable member states to maintain these arrangements if they meet certain conditions. The Presidency hoped for Council agreement on a general approach before the end of 2014, but it announced at the EPSCO meeting on 11 December that no deal had been reached. The Latvian EU Presidency of the first half of 2015 continued work on the proposal, but without achieving consensus, and the Luxembourg Presidency of the second half of the year has again been attempting to reach a deal. The Commission has made adoption of the Directive a priority for 2016.

EESC Opinion on 13 February 2013. CoR Opinion on 30 May 2013. EP gave draft Directive first reading on 20 November 2013, proposing strengthening amendments.

First stage consultation of the social partners on possible action addressing the challenges of work-life balance faced by working parents and caregivers. C (2015) 7754 final

Art. 154

In August 2015, the Commission withdrew a draft Directive amending Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding that it had issued in October 2008. The draft had proposed increasing minimum maternity leave from 14 to 18 weeks and giving women on leave entitlement to full pay. At its first reading on 20 October 2010, the EP had proposed major amendments to the draft, such as 20 weeks' maternity leave on full pay, two weeks' paid paternity leave, adoption leave and time off for breastfeeding. Most member states opposed the EP amendments and debate in the EPSCO Council became deadlocked during 2011. Despite attempts to revive discussions in 2014 and early 2015, the impasse could not be broken and the Commission withdrew the proposal. The Commission presented ideas for a "fresh start" in the debate in a "roadmap" issued on 3 August 2015. The roadmap sets out options for legislative and/or non-legislative measures aimed at helping working parents and employees with dependent relatives to better balance caring and work responsibilities.

Based on the road map, the Commission stated in its 2016 work programme that, following consultations, it will issue during 2016 a "New start for working parents" package of legislative and non-legislative measures. Accordingly, on 11 November 2015, the Commission launched a first-stage consultation of the social partners on possible action addressing the challenges of work-life balance faced by working parents and caregivers. The consultation document: identifies the main challenges arising from work-life balance for parents and people with caring responsibilities; takes stock of the relevant existing EU legislation in areas such as maternity leave, parental leave and part-time work; and invites the social partners to identify possible improvements to the current EU legislation. Specific ideas mentioned by the Commission include amendments that would: allow greater flexibility in parental leave; give nursing mothers a right to breastfeeding breaks; give women greater protection against dismissal on returning from maternity leave; introduce entitlement to paternity leave and carers' leave; and allow more flexible working arrangements for parents and carers.

The social partners have until 4 January 2016 to respond to the consultation, and indicate to the Commission whether they would consider initiating a dialogue (possibly leading to negotiations) on any of the issues identified.

The Commission launched an accompanying public consultation on how to improve work-life balance and reduce obstacles to women's participation in the labour market on 18 November. The consultation closes on 17 February 2016.

Revision of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services

-

In its 2016 work programme, published on 27 October 2015, the Commission states that in 2016, as part of a "labour mobility package", it will propose a "targeted" revision of the Posted Workers Directive. The aim will be to "address unfair practices leading to social dumping and brain drain by ensuring that the same work in the same place is rewarded by the same pay". No further details of the revision have yet been announced.

European framework agreement on the protection of occupational health and safety in the hairdressing sector.

Arts.154 and 155.

The EU-level social partners in the hairdressing sector - Coiffure EU and UNI Europa Hair & Beauty - signed an agreement on 26 April 2012, on their own initiative. It sets out an integrated approach for the prevention of risks and protection of health and safety in hairdressing, in areas such as: use of materials, products and tools; protection of the skin and respiratory tract; musculoskeletal disorders; working environment and work organisation; maternity protection; and mental health and wellbeing. The partners have asked the Commission to propose a Directive making the agreement legally binding across the EU. There has reportedly been opposition to such a Directive from some national governments. The Commission was scheduled to issue a proposal in 2013 but in October announced that it would not do so during its term of office (which expired in October 2014). This failure to issue a draft Directive to implement a social partner agreement is highly unusual. The new Commission that took office on 1 November 2014 has not stated its position on the issue and a draft implementing Directive does not currently feature in the Commission's planning documents.

First-stage consultation of the social partners on consolidation of the EU Directives on information and consultation of workers. C (2015) 2303 final.

-

In July 2013, the Commission published the generally positive findings of a "fitness check" of the framework Directive on employee information and consultation (2002/14/EC), and the Directives on information and consultation over collective redundancies (98/59/EC) and transfers of undertakings (2001/23/EC). Based on these findings, the Commission concluded that a consolidation and "recast" of the Directives might strengthen the coherence and effectiveness of the EU legislative framework in this area. On 10 April 2015, the Commission launched a first-stage consultation of the EU-level social partners on the issue. The consultation document suggests recasting and consolidating the three Directives in a single information and consultation Directive. This could: make the existing body of EU law in this area simpler, more accessible and more readable; enhance coherence and consistency; raise awareness among the stakeholders concerned; and promote better effectiveness and compliance. At the same time, the recast could better align the Directives' current definitions of key concepts (notably "information" and "consultation") and make the wording of certain provisions clearer and more coherent, in particular those regarding the exclusion of the public administration from the scope of the Directives. The consultation document seeks the social partners' views on these ideas, and asks if they might consider initiating a dialogue on any of the issues raised. The social partners were due to respond by 30 June. In its response, BusinessEurope opposed any recast or revision of the three Directives and ruled out any negotiations on the issue with the ETUC.