European Scrutiny Committee Contents

4 Parental leave



COM(09) 410

Draft Council Directive implementing the revised Framework Agreement on parental leave concluded by BUSINESS EUROPE, UEAPME,CEEP and ETUC and repealing Directive 96/34/EC

Legal baseArticle 139(2) EC; — ; QMV
DepartmentBusiness, Innovation and Skills
Basis of considerationMinister's letter of 5 November 2009
Previous Committee ReportHC 19-xxvii (2008-09), chapter 4 (14 October 2009)
To be discussed in Council30 November 2009
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Previous scrutiny of the document

4.1 When we considered this draft Directive in October,[9] we noted that the Council had adopted a Directive in 1996 to implement the Framework Agreement between the social partners on parental leave.[10] The purpose of the Agreement is to facilitate the reconciliation of parental and work responsibilities of working parents. It applies to employed men and women.

4.2 In June 2009, after consultations initiated by the Commission under Article 138 of the EC Treaty, the social partners signed a revised Framework Agreement.[11]

4.3 In July, the Commission proposed this draft Council Directive to make the new Agreement binding in all Member States and to repeal the 1996 Parental Rights Directive. The draft Directive provides for the re-enactment of the provisions of the 1996 Agreement subject to some amendments and additions. The main changes are as follows:

  • parents may not be excluded from the application of the Agreement solely because they are part-time, fixed-term or agency workers;
  • parents are to be entitled to at least four months unpaid leave per child, rather than three months, and at least one of those months will not be transferable between the parents;
  • all forms of discrimination against a parent who seeks or takes parental leave are prohibited; and
  • workers returning form parental leave may request changes to their working hours for a set period of time and employers must consider such requests taking account of both their own and the employee's needs.

4.4 In September, the Minister of State for Business, Innovation and Skills (Mr Pat McFadden) told us that the Government welcomes the social partners' revised Framework Agreement and the aim of ensuring that parents have the support they need to reconcile work and family responsibilities. His Department would produce an Impact Assessment of the Agreement.

4.5 In our view, the extension of the period of unpaid parental leave from three to four months appears to be the most significant difference between the 1996 and the new Framework Agreement. Clearly, the new Agreement would provide some additional benefits to employees. It would also increase employers' costs. Accordingly, we asked the Minister to send us the Impact Assessment.

The Minister's letter of 5 November 2009

4.6 The Minister for Postal Affairs and Employment Relations at the Department of Business, Innovation and Skills (Lord Young of Norwood) encloses the Impact Assessment with his letter of 5 November. He says that the expected cost of the increase in parental leave from three to four months is expected to be small. At present, only 6-12 % of eligible parents take any parental leave; and, of those who do, very few take the full 13 weeks to which they are entitled. The Department has assumed that, of the eligible parents, 30% of mothers and 25% of fathers would take any of the additional weeks permitted by the new Agreement. The Department also believes that the administrative cost to employers of the additional entitlement would be small. It estimates that the total cost would be between £4.6 million and £14.5 million a year. No evidence is available on which to base an estimate of the financial benefits. The non-monetary benefits might include an improved balance between work and family responsibilities, lower staff turnover and a narrower gender gap in employment.


4.7 We are grateful to the Minister for the Impact Assessment. There would be additional costs for employers but it is reasonable to assume that the representatives of employers were aware of this and content with it when they signed the new Framework Agreement.

4.8 We note, however, that Article 139(2) EC stipulates that "agreements" concluded at Community level (between the European social partners) are to be implemented by "a Council decision on a proposal from the Commission" in matters covered by Article 137 EC. Despite this, the Commission states at paragraph 3.4 of its explanatory memorandum that:

"The term 'Council decision' in Article 139(2) EC is to be understood in its general meaning as referring to the legally binding instruments provided for in Article 249 EC. It is for the Commission to decide and propose which of the three binding instruments (directive, regulation or decision) is most suitable. The aim of the Agreement is to establish minimum requirements which, given the type and substance of the Agreement, are best applied indirectly through provisions to be transposed into national law by the Member States and/or the social partners. The appropriate instrument is therefore a Council directive to which the Agreement is annexed." (emphasis added.)

4.9 We question the Commission's assertions in the first two sentences of paragraph 3.4 Article 137(1)(i) requires the Community to support and complement the activities of Member States in the field of "equality between men and women with regard to labour market opportunities and treatment at work". Article 137(2)(b) provides that Directives are the means for the adoption of "minimum requirements" in the field covered by Article 137(1)(i). 139(2), by contrast, permits agreements to be implemented only by Decision. As we understand it, this is because such agreements are not addressed to the Member States (as Directives are) but made between the European social partners. Accordingly, we ask the Minister if he shares our view that the proposal to implement the Framework Agreement by means of a Decision is contrary to a clear Treaty stipulation.

4.10 We shall keep the document under scrutiny pending the Minister's reply.

9   See headnote. Back

10   Council Directive 96/34/EC: OJ No. L 145, 19.6.96, p.4. Back

11   The Agreement was signed by BUSINESSEUROPE (the Confederation of European Business), UEAPME (the European Association of Craft, Small and Medium-sized Enterprises), CEEP (the European Centre of Employers and Enterprises providing Public Services) and the ETUC (the European Trade Union Confederation). Back

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