1. Working conditions in the health sector: An overview of relevant EU labour law
FEMS Conference on inequalities in doctors' working conditions in the EU
21 September 2018
Marie LAGARRIGUE
Working Conditions Unit - Directorate General for Employment, Social Affairs and Inclusion

2. Presentation Overview
Labour law at a glance
The Working Time Directive - general
The Working Time Directive - relevance to healthcare workforce
Directives on non-standard forms of work (2 examples)
The 'Written Statement' Directive and its revision (Proposal for a Directive on Transparent and Predictable Working Conditions – December 2017)

3. Labour law at a glance - I
Article 153 TFEU: the Union can act in several fields such as "working conditions", "information and consultation of workers", "protection of workers where their employment contract is terminated"…
In these fields the EU may adopt, by means of Directives, minimum requirements for gradual implementation (Qualified majority / Unanimity at the Council)
Charter of Fundamental Rights of the EU e.g. 'Solidarity' title (same legal effect as Treaties as from )
European Pillar of Social Rights (2017):
Chapter II 'Fair Working Conditions'

4. Labour law at a glance - II
About 30 Directives, including sectoral legislation (e.g. transport)
Individual rights and collective rights
EU labour law applying to workers (vs. self employed)
Member States can be more protective
Directives, i.e. transposition into national law, with national authorities responsible for implementation / enforcement
Commission handling complaints and where needed, infringement procedures

5. The Working Time Directive (2003/88/EC) - general
Sets out minimum health and safety requirements for the organisation of working time:
minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and
certain aspects of night work, shift work and patterns of work.
MAIN OBJECTIVE:
Improving the working environment to protect workers' health and safety

6. A fundamental right! Article 31(2) of the EU Charter of Fundamental
Rights of the EU
(same value as Treaties)
"Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave".

7. Main provisions of the WTD
Daily rest (Art. 3)
11 consecutive hours per 24-hour period
Breaks (Art. 4)
1 break when working > 6 hrs
Weekly rest (Art. 5)
24 hours (+ 11 hrs daily rest) per 7-day period
Max. weekly working time (Art. 6)
48 hours on average
Maximum daily working time for night workers (Art. 8)
8 hours per 24 hours
Minimum paid annual leave (Art. 7)
4 weeks
Maximum weekly working time of 48h
Encompassing all 'working time'
Calculated over a reference period:
up to 4 months, 6 or 12 months depending on the situation
of which the minimum paid annual leave and periods of sick leave must be excluded
Derogation possible via individual opt-out

8. Derogations 'Autonomous workers' (Art. 17 (1))
Where "duration of working time is not measured and/or predetermined"; i.e. worker has full control over both volume & organisation of working hours
Specific situations
(Art. 17 (2) & (3))
Derogating from all except Art. 6
Where continuity of service required and in case of accident or imminent risk of accident
Implies ‘compensatory rest’ or, in exceptional cases, an ‘appropriate protection’
Individual opt-out from Art. 6 (Art. 22)
Where the 48 hours weekly limit may be exceeded subject to individual worker's consent.
Limits to the derogations from the reference period for Art. 6 (Art. 19)
Standard: 4 months; extension possible:
- by law to 6 months
- by collective agreements to 12 months
OPT OUT (implementation report 2017:
QUOTE INTERPRETATIVE COMMUNICATION
18 opt out
12(13 with Greece) : sectoral if need for continuity of service (can be healthcare but also civil protection or police)
(BE, FR, EL, CZ, DE, HU, LT, NL, AT, PL, SI, SK and ES)

9. The Working Time Directive - relevance to healthcare workforce
Healthcare / Requirement of continuity of service : often a need to resort to derogations
Compliance or enforcement issues may arise (complaints and infringements at EU level), e.g. on 48h limit / definition of working time and compensatory res
Working time interplays between health and safety of workers and patient safety
Working time challenges often intertwined with other challenges relating to the organisation of healthcare and availability of healthcare workforce (vs. shortages).

10. 2015 - Study on possible changes to the Directive and impact of the healthcare sector
Pointed to little inclination for alternative approaches to count 'inactive on-call'
Underlined different aspects if opt out would be to be subject to stricter conditions (health and safety of workers / Work-Life balance / patient safety vs. recruitment needs).
Highlighted need to take account of patient safety when timing of compensatory rest is at stake
Stricter rules on concurrent contracts would entail staffing needs
Confirmed extrinsic factors (staffing, financing, organisation of care)

11. Non-standard forms of work
On the rise in many sectors:
In the last 10 years, more than half of all new jobs were ‘non-standard’
In 2016, 1 in 4 employment contracts were ‘non-standard’
What about the healthcare sector?
More fixed term contracts ? Part-time? Workers with multiple contracts?
Is flexibility also growing in the employment relationships of health professionals?
Non-standard work has increased for all age groups
Number of workers cumulating non-standard work and low wages has also increased

12. 2.4. Fixed-Term Work (Directive 1999/70/EC)
Implements the Framework Agreement on Fixed-Term work concluded between the Social Partners (management and labour)
Sets out the general principles and minimum requirements relating to fixed-term work
MAIN OBJECTIVES:
No discrimination against fixed-term workers
Prevent abuse of successive fixed-term contracts

13. KEY PROVISIONS:
Definitions (clause 3): "fixed-term" = "where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event"
Principle of non-discrimination (clause 4): "In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds"
Measures to prevent abuse (clause 5): Member States must adopt one of more of the following limits: Objective reasons justifying the renewal of fixed-term employment / Maximum total duration of successive fixed-term employment / Maximum Number of renewals

14. 2.5. Part-Time Work (Directive 97/81/EC)
Implements the Framework Agreement on Part-Time Work concluded between the Social Partners
Sets out the general principles and minimum requirements relating to part-time work
MAIN OBJECTIVES:
No discrimination against part-time workers
Improvement of quality of part-time work
Facilitation of development of part-time work
PERSONAL SCOPE:
Part-time workers with an employment contract/relationship as defined under national law (with limited exemptions for casual workers)

15. KEY PROVISIONS:
Definitions (clause 3): "part-time worker" = "employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker"
Principle of non-discrimination (clause 4): "In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds"
Promotion of part-time work (clause 5): Request to work part-time in principle not a valid ground for dismissal, Requests to transfer from FT to PT and vice versa should be fairly considered by employer

16. Written Statement Directive (91/533/EEC)
establishes the employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship.
To this end, every employee must be provided with a document containing information on the essential elements of his/her contract or employment relationship.
2017: Evaluation
Towards revision, 2 stage Social Partners' consultations
EUROPEAN PILLAR OF
SOCIAL RIGHTS

17. Proposal for a Directive on Transparent and Predictable Working Conditions (21.12.17)
General objective
To promote more secure and predictable employment to all workers (wider and more homogeneous scope)while ensuring labour market adaptability and improving living and working conditions.
Specific objectives
To improve workers’ access to information concerning their working conditions.
To improve working conditions for all workers, while preserving scope for adaptability and for labour market innovation
To improve compliance with working conditions standards through enhanced enforcement
To improve transparency on the labour market while avoiding excessive burdens
NEW – scope
Now: some categories of workers are excluded
Personal scope: Employees as defined by national law
Possible exclusions of:
(i) workers on contracts of < 1 month;
(ii) working < 8 h/week;
(iii) casual workers
Personal scope of the proposal: every worker in the EU
Definition of worker based on EU case-law
Possible exclusion of work relationships of < 8 h/month left to MS decision, but not if zero-hours work
2-3 million more workers will get written information about their jobs
Any natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration"

18. Now – less complete information, and after 2 months
When: up to 2 months after start
What:
Identities of the parties, place of work, starting date, brief overview of job content
In case of temporary contract, the expected duration
The components of remuneration and the amount of paid leave
The length of normal working day or week
The length of period notice
The collective agreements applicable
Proposal - more complete information, on the 1st day
When: at the latest on the 1st day in job
What: all the above, and:
More precise information about working time in case of a 'variable work schedule'
Duration and condition of the probationary period, if any
Training entitlement provided by the employer, if any
Social security

19. New material rights
Maximum duration of probationary period (Article 7).
Possibility to work in parallel (Article 8)
Minimum predictability of work if work schedule is variable and determined by the employer (Article 9).
Transition to another form of employment (Article 10).
Training (Article 11) .
1. 6 months, except if justified by nature of job or interest of the worker
2. Ban on exclusivity clauses and restrictions on incompatiblity clauses
3. Worker can be required to work only within reference hours and days
and if notified reasonably in advanc
Workers still free to accept other assignments - but may not be penalised for refusal 4. Self expl.
5. Training:If employers are required to provide training by EU or national rules or collective agreements, it has to be cost-free for the worker.

20. Better enforcement
Legal presumption & early settlement mechanism (Article 14)
Right to redress (Article 15)
Protection against adverse treatment or consequences (Article 16)
Protection from dismissal and burden of proof (Article 17)
Art 14: If a worker has not received information in writing in due time, the employer has to be notified and has 15 days to rectify.
If not, Member States have to provide either
a set of favourable (rebuttable) presumptions for the worker (e.g. permanent contract, full-time contract), or
entrust a competent authority to handle complaints (injunctions and penalties).
Art 15: all workers to have effective and impartial dispute resolution and a right to redress, including adequate compensation
Art 16: all workers to have protection against retaliation for complaints lodged to ensure compliance with the Directive
Art 17: Member States should prohibit retaliatory dismissal or equivalent (such as on-demand not being called anymore) due to exercise of their rights established in the Directive.
Protection of workers by a softening of the burden of proof (worker establishes facts from which it can be presumed that dismissal is linked to exercise of rights and then employer must prove that dismissal was on other grounds)

21. Thank you for your attention. In case you have any questions: