Memorandum by Dr Catherine Barnard and
Professor Simon Deakin
INTRODUCTION
1. The Commission's much anticipated Green
Paper is a street map to the suburbs and not a roadmap to the
exciting the Alpine heights of the EU. This, of course, is a deliberate
policy since there is little appetite for legislative excitement
in the field of EC labour law.
2. And yet, as the history of the Services
Directive tells us, the need to preserve the EC Social Model (for
which read national social models which the EU has appropriated)
has been a central thread of recent debates, including the "no"
votes to the Constitutional Treaty, particularly in France. The
Green Paper therefore suffers from the need, which has afflicted
EU social policy since 1957, of looking in two directions at the
same time: respecting divergent national social models while at
the same time trying to find a role for the EU.
3. Our evidence will focus particularly
on question 6, the role of EU Regulation, while at the same time
offering some thoughts on question 3, the concept of flexicurity
and question 5, groups covered by labour law.
ROLE OF
EU REGULATION
4. A number of rationales have been offered
for EC legislation. One is that EC legislation is justified to
harmonise costs for firms competing in the EU, thereby creating
a level playing field. Such an approach would anticipate far-reaching
EC legislation based on exhaustive harmonisation. Elements of
this approach justify the Transfer of Undertakings Directive 2001/23
and Collective Redundancies Directive 98/59. Another perspective
is that there should be EC legislation only where a truly trans-national
issue is at stake. This helps explain the enactment of the European
Works Council Directive 94/45.
5. A third model is the human rights perspective
that views (EC) social rights as the core of EU citizenship. This
approach helps to explain why the EU has adopted extensive equality
legislation. It might also help to justify the EC enacting social
legislation for atypical workers as envisaged by the Green Paper.
A fourth model, which had largely fallen out of fashion until
the 2006 Green Paper, is to justify giving EC employment rights
to facilitate the mobility of workers under Article 39 EC. Pre-enlargement,
levels of mobility in the EU were very low (c1 per cent of the
population). Post-enlargement, numbers have increased, particularly
in the UK, and this rationale might now carry more weight, albeit
that the Green Paper focuses much on frontier workers, not migrant
workers as the British now understand them. This appears to be
the strongest rationale offered by the Green Paper to justify
the EU intervening in this field. In particular, this would support
the EU adopting a common definition of worker, extending the definition
of worker developed by the Court in its case law under Article
39[29]
to the employment rights Directive. There are some signs that
the Court of Justice is beginning to do this.[30]
6. Cross-cutting the various justifications
for EC regulation is the need for the EU to respect the principles
of subsidiarity and divergent national social models. These systems
adopt different policy mixes towards insiders and outsiders:
— One model, found particularly in
Spain and Italy, is to give much employment protection to insiders
but little protection to outsiders.
— A second model, now found in the
UK, is more nuanced. At its centre is a core of protected employees
who benefit from a range of employment rights which increase the
longer the employee works for the employer. Then, rippling out
beyond the core, are rights which are also given to workers (eg
national minimum wage, working time), professionals (eg anti-discrimination
legislation), and, to a limited extent, the self-employed (health
and safety legislation).
— A third model, found in Scandinavia,
is where employment protection is less important than the social
security safety net. While much attention has recently been given
to the success of this model, it is premised on high levels of
expenditure on social security (and the small size of the countries).
— A fourth model, and one not expressly
considered in the Green Paper although it hovers in the background,
is that found in the US, where the labour market is characterised
by its flexibility and absence of security (albeit there is strong
anti-discrimination protection).
7. The question for the EU, then, is how
to marry the conflicting justifications for legislation with the
diverse social models. The EU has experimented with different
legislative mixes including, more recently, minimum standards
directives and OMC. How might these work in the context of rights
for atypical workers?
EU REGULATION AND
ATYPICAL WORKERS
8. Assuming that the EU can justify intervening
in this field, the question is what form that intervention might
take. One possibility would be for a minimum standards Directive.
But the content of such a Directive is far from obvious. Take
the perennially difficult case of agency work. Let's suppose that
an EC Directive says (1) user undertakings are responsible for
compliance with employment rights for those they employ for (say)
more than six months, the agency in all other circumstances, and
that temps are employees of the user after six months, employees
of the agency before that. But such a Directive would be a blunt
instrument and presupposes that a one-size-fits-all approach can
be applied to the very different types of people who do agency
work.
9. The bluntness of this approach can be
seen when considering Article 8 of Directive 91/383 which has
posed considerable problems in terms of both the interpretation
of the provision and the conflicts between what is legally possible
and practically desirable. The British HSE takes the view that
while it is legally possible to impose duties on the user undertakings,
it may be more desirable to impose certain requirements on the
temp agency who has a longer term interest in the well-being of
the employee (eg the provision of appropriate footwear).
10. The other salutary tale of the EU's
intervention in the flexicurity debate comes with the Working
Time Directive 2003/88. This Directive provides security to workers
through the provision of extensive and prescriptive rights (48
hour working week, four weeks' paid leave, in-work rest breaks
every six hours, daily rest of 11 hours, weekly rest of 24 hours)
and flexibility through the extensive and complex exemptions,
derogations and, most controversially, individual opt-outs. In
the UK this Directive has done little to reduce the overall working
hours.
11. Another possibility would be for the
EU to encourage soft law cooperation between the states on this
point, through some sort of OMC methodology which the Green paper
appears to envisage (p 6). Past experience suggests that OMC does
not translate well in areas of essentially hard employment law,
as opposed to policy. Furthermore, the ILO is already doing
a lot of good work in this area, in particular through its Recommendation
No.198—why replicate it?
REFLEXIVE LAW
12. One further possibility would be to
encourage employers and trade unions to work out solutions which
are suitable to them and their industry. The Communications Workers
Union shows an interesting way forward. The CWU negotiated an
Agency Best Practice Code I (2001) covering equal opportunities
and disciplinary and grievance procedures, aimed at creating consistency
of approach in promoting Best Practice among agencies providing
workers for BT. The success of this measure was followed up by
a second phase covering best practice in the fields of health
and safety, welfare, parental maternity, paternity and adoptive
leave, working time regulations, recruitment, training and appraisals.
In addition, the CWU has entered into a partnership agreement
with a number of the larger employment agencies, such as Kelly
Services and Manpower. The Manpower Agreement contains a commitment
to active participation in the CWU Agency Forum and to use Agency
Best Practice.
13. The CWU agreement was essentially worked
out through traditional collective bargaining methods. The EU
could provide some legislative incentives to encourage such agreements
to be reached through framework or reflexive Directives, such
as the Information and Consultation Directive 2002/14, where the
social partners and the government are obliged to work out a solution
failing which minimum standards, laid down in an annex, would
apply. Such an approach might be all the more effective when allied
to the fundamental rights laid down in the Charter (not mentioned
in the Green Paper).
14. That said, there must be real incentives
on the part of the social partners, probably at the intersectoral
or sectoral level, to reach an agreement. In the absence of such
incentives these framework agreements do not work, as research
conducted at Cambridge shows[31].
This research looks at the application of the possibility open
to employers to vary the effect of Regulation 8 of the Fixed Term
Work Regulations. Reg. 8 renders a renewal of a fixed term contract
permanent where an employee has been employed under successive
fixed-term contracts with continuous employment of four years
or more from 10 July 2002, unless the employer can show that the
use of a fixed term is "justified on objective grounds".
15. The employer can vary the effect of
Reg 8 through a collective or workforce agreement. This may specify
the maximum total period for which employees may be employed on
fixed-term contracts before they are deemed to be permanent; the
maximum number of renewals of fixed-term contracts which can be
made; and more detailed objective grounds justifying fixed-term
employment.
16. In fact, there is little take up of
this option. In the university sector there appears to be only
one agreement which formally varies the terms of Regulation 8.
This is an agreement at Imperial College, London, which extends
the period of time prior to which "permanent" status
must be granted from four years (as stipulated by the Regulations)
to six in the case of posts funded by external research projects.
In return, the unions which negotiated the agreement, the AUT
(now UCU), Amicus and Unison, obtained undertakings from the employer
to minimise the use of fixed-term employment and to integrate
fixed-term employees into the permanent workforce where possible.
17. In other universities, the UCU and other
campus-based unions have reached agreement with university management
on the stabilisation of fixed-term work and the integration of
fixed-term workers into regular career structures, without going
down the route of a formal collective agreement varying Reg 8.
Indeed, some of these agreements go so far as to specify that
they are not to be construed as collective agreements within
the meaning of the Fixed-Term Employment Regulations, precisely
in order to avoid the possibility that they will be viewed as
derogating from the basic rights of employees which are set out
in the Regulations. Again, the focus is on well-tried and tested
forms of autonomous collective bargaining rather than on the adjustment
of statutory norms via collective agreements.
29 March 2007
29 Eg Case 66/85 Lawrie-Blum v Land Baden-Wurttemberg
[1986] ECR 2121, para 16 the essential feature of an employment
relationship is that "for a certain period of time a person
performs services for and under the direction of another person
in return for which he receives remuneration". Back
30
Case C-256/01 Allonby v Accrington & Rosendale
College [2004] ECR I-8349 (Art 141 EC). Back
31
Work in progress on the implementation of social policy Directives
in the UK (Simon Deakin and Aristea Koukiadaki, Centre for Business
Research, University of Cambridge), part of a study for DG Employment
which will be completed later in 2007. Back
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