Social partners reach framework agreement on part-time work
After nine months of intensive negotiations, the European social partners concluded a framework agreement on part-time work on 14 May 1997. The agreement, which was formally signed on 6 June, aims to eliminate discrimination against part-time workers in the area of employment protection, and make this form of employment more attractive to employers and employees alike. We look at the background to the negotiations and the content of the deal, and provide an initial assessment of the agreement.
On 6 June 1997, the European Trade Union Confederation (ETUC), the Union of Industrial and Employers' Confederations of Europe (UNICE) and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) formally signed a European framework agreement on part-time work, in the presence of social affairs Commissioner Padraig Flynn, Dutch Prime Minister Wim Kok and Dutch Social Affairs Minister Ad Melkert. The agreement seeks to establish a general framework for the elimination of discrimination against part-time workers, and hopes to contribute towards the development of opportunities for part-time working on a basis which is acceptable to employers and workers alike. The agreement is the result of nine months of intense negotiation, during which success did not always appear likely.
With the number of part-time and temporary workers rising in the European Union (EU), the European Commission has long been keen to legislate for equal rights for these so-called "atypical employees". A draft Directive on voluntary part-time work was submitted to the December 1981 European Council, but subsequently failed to find approval. Even an amended draft which was issued in January 1983 failed to make further progress. Draft legislation on temporary work issued in 1982 suffered a similar fate. The 1989 "Social Charter" and accompanying Action Programme revived the debate in the light of the ever-increasing numbers of "atypical" employees. The Commission argued that unless safeguards were introduced at European level, there was a danger of abuse of such relatively unregulated forms of employment for the purposes of "social dumping". It was therefore intended that Community legislation should be passed to lay down minimum requirements concerning working conditions and social protection for such workers. Based on different Treaty Articles (100, 100a and 118a), three draft Directives were subsequently issued aimed at achieving equal access for part-time and temporary workers to social and employment protection, as well as in-house training and occupational benefits. In addition, companies were to be obliged to make explicit reasons for using temporary employees; and employee representatives were to be consulted prior to the recruitment of part-time staff. There was also provision for temporary workers to receive information about the health and safety hazards present in their respective workplaces.
The 118a Directive on health and safety for temporary workers was relatively uncontroversial and was adopted in October 1991. The other two draft, while they were welcomed in some quarters, were subjected to heavy criticism from many member state governments, employer (and some trade union) organisations and academic commentators.
As a result of the incompatibility of the draft Directives with existing regulation in a number of member states, and the perceived abuse (in the eyes of the UK Government in particular) by the Commission of Treaty Articles allowing for qualified majority voting (100a), the Directives based on Articles 100 and 100a failed to gain legislative approval. There were attempts to revive them in 1993-4, which failed mainly as a result of UK government resistance.
In the light of the provisions of the Maastricht Treaty on European Union and the Essen employment strategy, the Commission's approach changed. While the draft Directives of the 1980s and early 1990s aimed at regulating and restricting employers' use of "atypical" employment, these forms of employment were now coming to be perceived as opportunities for the creation of new employment. They were seen to respond to both the need of employers for greater flexibility, as well as the desire of employees to reconcile work and family life while retaining employment security at the same time.
In 1995, the Commission launched consultations on "flexibility in working time and security for workers" under the social policy Agreement annexed to the Maastricht Treaty. The Agreement stipulates that the Commission must consult with the social partners on new legislative proposals. After two rounds of consultations, the social partners can decide to launch autonomous negotiations with a view to reaching a European-level framework agreement. Such a framework agreement may then be implemented either by collective agreements at member state level or through a Council decision.
Buoyed by the recent success of their negotiations on parental leave in December 1995, the social partners - ETUC, UNICE and CEEP - announced their decision to launch autonomous negotiations on part-time work in June 1996.
The process of negotiations was fraught with difficulties and several times seemed close to collapse. From the outset, UNICE had rejected the trade unions' desire to negotiate on all forms of "atypical employment" at the same time, because of what it perceived to be the divergent issues pertaining to each form of non-standard employment. In particular, the scope of any agreement, as well as the balance between the need for flexibility and the principle of non-discrimination, evoked considerable discussion.
However, despite these problems, a draft framework agreement was signed on the evening of 14 May 1997. The agreement was approved by the governing bodies of CEEP on 31 May, ETUC on 5 June and UNICE on 6 June, when the text was formally signed at an informal social dialogue summit in the presence of Commissioner Flynn.
The content of the agreement
The agreement's preamble underlines the contribution of the framework agreement to the overall European strategy on employment, and the importance of part-time work in this strategy. It also includes a statement of intent to negotiate on other forms of non-standard work with a view to concluding similar agreements. It recognises the diversity of situations in the different member states and highlights that it therefore restricts itself to setting down minimum requirements enshrining the principle of non-discrimination. Rights relating to social protection are explicitly excluded from this agreement, but the social partners request that effect be given to the employment declaration adopted in December 1996 by the Dublin European Council meeting, which states that social protection systems should be adaptable to new patterns of work and provide adequate protection to workers engaged in this form of work. The preamble asks the Commission to put the framework agreement forward for a Council decision and for member states to take the necessary steps to implement this decision within two years of its passage. The agreement contains six clauses outlining:
- the purpose of the agreement;
- the scope of the agreement;
- the definition of a "part-time worker" for the purposes of the agreement;
- the principle of non-discrimination;
- the generation of opportunities for part-time work; and
- provisions on implementation.
The purpose of the agreement
The stated purpose of the agreement is "the removal of discrimination against part-time workers" and the improvement of the quality of part-time work. It also seeks to facilitate the development of part-time work on a voluntary basis and "contribute to the flexible organisation of working time in a manner which takes account of the needs of employers and workers".
The scope of the agreement
The agreement is to apply to part-time workers who have a contract of employment or employment relationship as defined by national legislation (qualification periods, earnings thresholds etc can apply as per national legislation). Part-time workers are considered to be any workers employed for less than the normal hours of work of a comparable full-time workers. Crucially, the agreement provides the option to exclude partly or fully for "objective reasons" part-time workers who work on a casual basis. These "objective reasons" are to be defined by member states after consultation with the social partners in accordance with national law, collective agreement or practice, and are to be reviewed periodically.
The principle of non-discrimination
The principle of non-discrimination enshrined in clause 4 stipulates that a part-time worker must not be treated less favourably in respect of employment conditions.
The generation of opportunities for part-time work
Clause 5 calls on member states to review any obstacles which may limit the opportunities for part-time work and, where appropriate, to eliminate them. A similar requirement is placed on social partners within their sphere of competence. This clause also establishes that requests by full-time workers to transfer to part-time work, or vice versa, are to be treated favourable by employers wherever possible.
Assessment of the agreement
As the agreement is now to be implemented through a Council Directive, assessment will have to start in earnest as to the impact it will have on national legislation and collective bargaining. The table below outlines current legislative provisions for part-time workers with respect to employment protection. The information, drawn from the Commission's 1996 Tableau de Bord, appears to indicate that the principle of non-discrimination for part-time workers has already been enshrined (more or less recently) in the legislation or collective agreements of most member states.
|Country||Regulation of part-time work|
|Austria||The law on working time (Arbeitszeitgesetz) defines a part-time contract as one where the working week is shorter than the statutory limit or the time fixed by the relevant collective agreement. Amendments to this law in 1992 introduced the principle of non-discrimination against part-time workers, which effectively extended their rights. Part-time workers have the same pro-rata rights to pay, bonuses and other conditions of employment. A special category of part-time work is "limited part-time employment" (geringfügige Beschäftigung): workers working less than 12 hours per week and earning less than ATS 3,600 per month are only insured for the purposes of accidents at work.|
|Belgium||A right to part-time employment has been established for workers who have already made full use of all options for part-time career breaks; this is coupled with protection against dismissal. The position of part-time workers has been improved under unemployment insurance agreements. There are efforts to encourage part-time employment by easing administrative formalities relating to the employment of such workers.|
|Denmark||There is no legal definition or regulation of part-time work. Regulation is by individual or collective agreement, but tends to be restrictive of part-time work.|
|Finland||There is no legal definition of part-time work. Legislation on employment contracts, periods of notice, redundancy pay etc. apply equally to full-and part-timers|
|France||Part-time workers are defined as those who work less than on- fifth of the maximum weekly, monthly or annual legal or contractual working time. Part-time workers enjoy the same rights as full time workers. A reduction of employer's social security contributions is available to companies employing part-time workers (must be new job creation)|
|Germany||Discrimination between full- and part-time workers is illegal (unless there are objective reasons). Limited part-time employees (geringfügig Beschäftige) need not be covered by social insurance contributions (earnings threshold DEM 590 per month)|
|Greece||Law stipulates equal treatment for part-time workers. Part-time workers must be given priority when full-time jobs arise.|
|Ireland||Part-time workers who have been employed with the same employer for more than 13 weeks are entitled to the same rights as full-timers.|
|Italy||Part-time workers enjoy the same rights as full-time workers under legislation. Employers can receive a reduction in social security contributions for employing a part-time worker.|
|Luxembourg||Part-time and full-time employees enjoy equal rights.|
|The Netherlands||Legislation contains binding requirements for equal treatment. There are encouragements to reduce barriers to part-time work.|
|Portugal||Most labour legislation applies equally to both full-time and part-time workers.|
|Spain||Generally speaking, full- and part-timers enjoy equal rights. For workers working less than 12 hours per week, social protection is more limited.|
|Sweden||The principle of non-discrimination applies.|
|UK||New regulations following a House of Lords judgment give part-time workers the same statutory rights as full-time workers.|
However, differences remain in relation to a number of factors which will be of key importance in the interpretation of the agreement:
- qualification periods, earnings thresholds etc;
- "objective reasons" for excluding certain workers; and
- the definition of a "casual worker".
In the circumstances of what has been a closely fought compromise, both employer and workers representatives were keen to highlight their "victories".
In a press release issued after the conclusion of the agreement, ETUC calls it a "blow for equality" and is keen to stress the merits of the agreement in providing part-time workers with basic rights, "given the current balance of power". It is clear that ETUC negotiators would have liked to see the agreement go further than what is ultimately only one binding element: the principle of non-discrimination against part-time workers for the purposes of employment protection (a key demand of ETUC, enshrined in clause 4 of the agreement). However, it is acknowledged that the contents of the agreement could not have gone any further without breaking down. ETUC is also keen to stress the inclusion of certain provisions which go beyond the scope of the minimum reference adopted by the ETUC's negotiating delegation: International Labour Organisation (ILO) Convention No. 175 on part-time work. These provisions are included in ILO Recommendation No. 182, which was the other reference point used by ETUC. This is seen to be an important achievement in the light of the fact that the ILO employers' group voted against the Convention, adopted in 1994, and none of the EU member states have so far ratified it. In return, ETUC had to accept the provision of a "certain degree of flexibility for exclusions for objective reasons". This provision, as well as the exclusion of social protection from the agreement, can be seen as being among the key factors behind the failure within ETUC to reach unanimous approval on the draft framework agreement (with the German and Greek trade union confederations -DGB and GSEE- opposed).
UNICE has been equally keen to stress the importance of the agreement for employers. A UNICE spokesperson argued that the agreement is a perfect example of "negotiated flexibility". In his view, it also demonstrates the added value of the EU in social policy and its importance in initiating debate at the national level. He stated that the most important clause for UNICE is clause 5, which effectively asks national social partners and governments to do what is in their power to eliminate obstacles to part-time work in the form of legislation or collective bargaining.
UNICE also stresses the importance of the availability of exceptions from the principle of non-discrimination "for objective reasons", arguing that there are some cases where equal treatment is impossible, does not make sense or is not viable. This is seen to be the case, for example, for casual work. It was clearly impossible to find a definition of "casual workers" at the European level, so it was decided to leave this up to national legislation or collective agreement. Secondly, employers argue that there could also be objective reasons for setting a threshold (ie. qualification period, level of pay, time worked) for access to certain rights or benefit. This would, in their view, apply, for example, in the case of access to occupational benefits.
The agreement will now go forward to the Labour and Social Affairs Council meeting on 27 June, which will examine putting it into effect through a Council decision (in this case, a Directive). With regard to negotiations on temporary work, there is so far no clear view as to whether UNICE will enter into negotiations on this issue.
The employers have recently decided not to enter into autonomous negotiations on another issue put forward under the Maastricht agreement, that of sexual harassment (EU9703112N). While there was agreement with ETUC on the importance of the elimination of such practices, UNICE stressed the importance of applying the principle of subsidiarity, arguing that because of different definitions of sexual harassment this should be left to each member state to regulate. UNICE left open the possibility of reaching a joint opinion on the issue.
The successful conclusion of these negotiations can be viewed as the result of a number of key factors. The social partners were mindful of the importance of the agreement, not only from the point of view of improving the image of a form of employment increasingly seen as being one of the keys to the resolution of the employment crisis, but also with regard to the political standing of the European social partners and the decision-making process under the Maastricht social policy Agreement. It is therefore important to take account of the timing of the accord, coming, as it did, on the eve of the conclusion of the Intergovernmental Conference (EU9706133N) and the debate surrounding the inclusion of the social policy Protocol in the Treaty. The events surrounding the Renault Vilvoorde affair (EU9704118F), which called for a constructive response from the social partners, can also be seen to have been of some importance, as the agreement could be regarded as improving the somewhat dented image of the European social dimension. These were certainly among the factors at the back of the minds of negotiators keen to impress on the Commission and the Council of Ministers with the ability of the social partners to reach a useful compromise.
With regard to the agreement's content, it is important to note that social security considerations have been excluded. This was a conscious exception, because of the difficulty previously posed by the issue of their inclusion in the 1995 agreement on parental leave. As a result of these difficulties, it was agreed that social security issues were to lie firmly within the remit of member state policy and would not be the subject of future agreements between the social partners at the European level. This is an important exclusion, because of the impact of the exclusion from such schemes for part-time workers.
The definitions of "objective reasons" and "casual workers", as used in the agreement, are clearly open to national interpretation, and it remains to be seen whether they will eventually have to be defined through national litigation.
In the light of over a decade of failed attempts to legislate for equal rights for part-time workers, it appears that the flexible nature of the social partners' agreement was the only way forward, but it remains to be seen whether this will assist in improving the situation of part-time workers at the workplace. (Tina Weber, ECOTEC)