Abstract
Precarious employment is often associated with job insecurity and limited corollary entitlements to income support. More specifically, what makes the jobs precarious are factors such as in-work poverty and low pay, insufficient labour law and social security protection, high levels of stress and health problems, limited career development and training options or low levels of collective rights. Precarious workers engaged in atypical forms of employment such as casual work, zero-hours contracts or platform-mediated work are particularly prone to experiencing precarious working conditions and often consequently, in-work poverty and thus social exclusion. A question therefore emerges as to the adequate response at EU level to combat precarious employment and provide for decent jobs with fair working conditions including protection against discrimination and also access to adequate social protection. Against this background, this article takes stock of the two first legally binding roll-out initiatives from the European Pillar of Social Rights (EPSR), namely Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union and Directive (EU) 2019/1158 on work-life balance for parents and carers, to assess their impact on decent working and employment conditions, and social protection, while also exploring in greater detail their coverage and potential limitations.
Keywords
1. Introduction: An EU agenda for a sustainable social market economy
After a long period of stagnation in the field of social policy dictated mostly by austerity measures, the Juncker Commission (2014–2019) introduced a new social milestone under the umbrella of the European Pillar of Social Rights (EPSR) which was inter-institutionally proclaimed by the Commission, Parliament and Council in November 2017. Whilst the EPSR remains a non-binding compass for a renewed upward convergence, it serves as a tool for the Commission to deliver the rights and principles enshrined therein in concrete legislative proposals. 1 Against that background, the term of Commissioner Thyssen produced almost 30 files on social policy, most of them being successfully adopted within the Juncker Commission’s five-year mandate.
Two of the first EPSR roll-out initiatives in the long-forgotten field of social policy and based on Article 153 TFEU are two new Directives: Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union, and Directive (EU) 2019/1158 on work-life balance for parents and carers. Once properly transposed, both Directives will have a significant impact on the improvement of working and employment conditions as well as fostering, albeit indirectly, the level of social protection and levelling the gender equality playing field as discussed throughout this Special Issue, thereby aligning with the narrative of the ILO Decent Work Agenda and the UN Sustainable Development Goals to which the European Union has committed itself. With a view to fulfilling those objectives, decent employment and social protection must be an integral part of any sustainable development strategy, especially at EU level, in order to achieve a highly competitive social market economy, aiming therefore at full employment and social progress as enshrined in Article 3(3) TEU. In addition, the so-called horizontal social clause introduced in Article 9 TFEU requires the EU to define and implement its policies and activities, taking into account requirements linked to, inter alia, the promotion of a high level of employment, the guarantee of adequate social protection and the fight against social exclusion. The potential of Article 9 TFEU indeed lies in its capacity to mainstream the EU social dimension while fostering the balance between its social and economic policies 2 - something that the EPSR and its roll-out initiatives aim to deliver.
In light of the foregoing, this article takes stock of the two first legally binding roll-out initiatives of the EPSR, namely Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union and Directive (EU) 2019/1158 on work-life balance for parents and carers, to assess their impact on decent working and employment conditions, and social protection, while also exploring in greater detail their coverage and potential limitations.
2. The new social delight: Serving the EPSR
The EPSR consists of a set of 20 principles and rights in three main categories: equal opportunities and access to the labour market, fair working conditions, and social protection and inclusion. Chapter I on equal opportunities and access to the labour market covers areas such as education, training and life-long learning, gender equality, equal opportunities and active support to employment. Chapter II on fair working conditions deals with topics like secure and adaptable employment, wages, information about employment conditions and protection in case of dismissals, social dialogue and the involvement of workers, work-life balance and healthy, safe and well-adapted work environments, and data protection. Finally, the most extensive part, Chapter III on social protection and inclusion, addresses issues such as childcare and support for children, social protection, unemployment benefits, minimum income, old-age income and pensions, healthcare, the inclusion of those with disabilities, long-term care, housing and assistance for the homeless, and access to essential services.
What is important is that the EPSR neither repeats nor paraphrases the existing EU acquis. On the contrary, it sets out in more detail the social principles and commitments that could facilitate better upward social convergence across the EU. 3 More importantly, the EPSR also offers a chance to revisit the existing EU social acquis as it provides policy incentives for the Commission to propose new legislative proposals in that area. 4 Thus, in short, while the EPSR remains a political declaration, it has transformed into a social agenda for the Commission that can serve as a normative compass, constituting a turning point for EU social policy. 5
The key EPSR principles that had already been directly followed-up on and delivered in the Directives are discussed below in two parts: Principle 2 on gender equality, Principle 5 on secure and adaptable employment, Principle 7 on information about employment conditions and protection in case of dismissals, and Principle 9 on work-life balance.
2.1. Part one: the Directive on transparent and predictable working conditions
Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union contributes to the EPSR’s Principle 5 on secure and adaptable employment and Principle 7 on information about employment conditions and protection in case of dismissals. In general, there are a variety of factors that make a job decent, but transparent and predictable working conditions certainly play a key role in safeguarding a worker against job precarity, namely the instability of employment. 6 Against that background, in December 2017 the Commission put forward a proposal to repeal Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship with a Directive on transparent and predictable working conditions in the European Union. 7 The need for its repeal was well-founded and was based on the 2017 REFIT study evaluating the Directive, which exposed its shortcomings and revealed significant coverage gaps in light of the rapidly changing world of work and the emergence of the new forms of work such as platform work. 8
The main purpose of Directive (EU) 2019/1152 is to thus improve working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. 9 Achieving the transparency and predictability of working conditions is indeed a noble objective, but what makes it rather odd is that it is to be reconciled with ensuring labour market adaptability. On the one hand, the adaptability/flexibility caveat is not novel, as some of the Directives on atypical employment make such references (such as Directive 1999/70/EC on fixed-term work). On the other hand, Directive (EU) 2019/1152 is a measure applying to every worker in the Union; it does not, therefore, concern solely workers in non-standard or atypical employment. Moreover, the Directive is based on a typical social policy legal basis enshrined in Article 153(2)(b) TFEU. To date, when interpreting Directives pursuing a clear-cut social policy objective, the Court of Justice of the European Union (CJEU) has been rather lenient and has interpreted them broadly, relying mostly on the principle of effectiveness of EU law (effet utile), often despite clauses, which at first sight limit their applicability, by, for example, making references to national law in determining their scope of beneficiaries. 10
When it comes to the personal scope of application, Directive (EU) 2019/1152 could be regarded as generous. It aims to ensure coverage of all workers in all forms of work, including those in the most flexible non-standard and new forms of work such as zero-hour contracts, casual work, domestic work, voucher-based work or platform work. 11 As for the last category, in his contribution to this Special Issue, Schoukens writes about how the Recommendation on access to social protection for workers and the self-employed is not fully capable of covering platform workers. In doing so he outlines the inherent features of platform work that are different from traditional employment and therefore prove problematic as far as social security coverage is concerned. Moreover, he rightly criticises the lack of definition of work and/or professional activity in the Recommendation, which is particularly important for platform workers, especially considering the blurred lines between work and professional income – a crucial distinction in the determination of the coverage of social protection systems. He therefore calls for a need to recalibrate their scope of application to reflect the evolving realities of work to ensure their inclusivity.
In any case, the Directive indeed has a unique broad scope of application that refers to the hybrid definition of worker. 12 The Directive applies to every worker in the Union who has an employment contract or employment relationship as defined by law, collective agreements or practices in force in each Member State, with consideration to the case law of the Court of Justice (emphasis added). 13 It is a concept unknown to the previous labour law acquis and is an outcome of the negotiations between the co-legislators (albeit being first introduced in the negotiations on the Directive on work-life balance, the proposal of which also entailed an aligned and codified definition of worker). The Commission’s proposal foresaw a codified Lawrie-Blum formula derived from the case law encompassing that ‘worker’ means a natural person who, for a certain period of time, performs services for, and under the direction of, another person in return for remuneration. 14
Proposing a fully-fledged EU concept of worker was an ambitious and brave move on the part of the Commission, and a concept that was watered down in the course of political negotiations. Whilst on the one hand, a codified definition of worker clearly introduces and highlights its full autonomous character under EU law, on the other hand, it does not guarantee that it will be future-proof. It cannot be excluded that the CJEU, in light of the labour market developments across the EU, will not reassess its initial take on its traditional definition and expand its criteria, relaxing, in particular, the condition of subordination which has been recently subject to academic debates. 15 Therefore, even though the provision makes reference to national law with consideration to the CJEU case law, the personal scope of application of the Directive is likely to have a broad interpretation, particularly taking into account the social policy objectives the Directive pursues in light of the effet utile principle. 16 Leaving out the static and codified definition of worker, still renders the concept subject to interpretation on a case-by-case basis by the CJEU, which seems to be a good solution. More specifically, it grants ample room for the Court to stretch and expand the definition so that it captures more casual working arrangements so widely spread in the current reality of, for example, the platform economy. Indeed, considering the growing litigation at national level on the worker status in the platform economy, sooner, rather than later, the Court is likely to be faced with the interpretation of the personal scope of application of this very Directive.
With regard to the material rights introduced by the Directive on transparent and predictable working conditions, it sets new rights for all workers, particularly addressing insufficient protection for workers in more precarious jobs, while limiting burdens on employers and maintaining labour market adaptability. Under the Directive, workers will have the right to obtain more complete information about their employment relationship to be received by the worker either within a week (essential information) or within one month (supplementary information) of commencing work. Moreover, the Directive regulates the length of probationary periods, placing a limit of six months on them at the beginning of the job, unless a longer duration is objectively justified. Furthermore, workers are granted a right to parallel employment, allowing them to work for other employers so the Directive bans exclusivity clauses and restricts the use of incompatibility clauses. For workers with variable working schedules determined by the employer (i.e. on-demand work), who are often most prone to experience precarity and consequently, in-work poverty and social exclusion, the Directive secures the right to predictability of work, which is to say, workers should know in advance when they can be asked to work. This significantly contributes to the improvement and stability of working conditions and can also indirectly have an impact on reducing in-work poverty, as discussed in the contributions throughout this Special Issue.
Under the Directive, outside the agreed working time, workers retain the full right to refuse being called in to work, enjoy protection against unfair treatment, and have a right to compensation when the employer cancels a work assignment after a specific deadline. What is more, on-demand workers enjoy protection against abusive practices regarding the use of on-demand or similar contracts that are to be set down in national laws either by limitation in the use and duration of such contracts, and/or a rebuttable presumption of the existence of an employment contract with a minimum number of paid hours based on the average hours worked during a given period. The Directive also introduces a new material right for a worker to request a more stable form of employment and to receive a justified written reply. However, this provision remains weak in nature as it does not impose a duty on the employer to provide a binding or positive answer, since it seems that a simple reply setting out constraints of the employment organisation will suffice. Finally, workers have the right to access cost-free mandatory training that the employer has a duty to provide, and which has to be counted as working time.
Interestingly, the Directive also contains a provision specifically related to collective agreements by virtue of which, social partners can maintain, negotiate, conclude and enforce collective agreements, which, while respecting the overall protection of workers, establish arrangements concerning different working conditions than those enshrined in the Directive on minimum requirements relating to working conditions. In other words, social partners can therefore deviate from the provisions on probationary periods, 17 parallel employment, 18 minimum predictability of work, 19 complementary measures for on-demand contracts, 20 the transition to another form of employment 21 and mandatory training, 22 as long as the differential treatment respects the overall protection of workers, 23 an open-ended concept, subject to interpretations and possible clashes with the Directive’s standard non-regression clause. 24
With regard to enforcement, the Directive comes with targeted provisions on horizontal enforcement in Chapter IV, to make sure that workers in the workplace effectively benefit from these rights. While transposing the Directive, Member States will have two options for dealing with workers' missing information: either they grant the worker a contract with more protective measures than the ones agreed with the employer, and/or workers can make an appeal to a specialist authority that will deal with the issue, to ensure timely and adequate redress. In addition, the Directive maintains all the standard provisions based on the existing social acquis on compliance such as the right to redress, the prevention of adverse treatment, the reversed burden of proof on dismissal, and the penalties applicable in respect of infringements of national provisions adopted pursuant to the Directive. Finally, Member States need to take the necessary measures to transpose the Directive by 1 August 2022.
In conclusion, the Directive, as foreseen in the Explanatory Memorandum, ensures a basic level of universal protection across existing and future contractual forms of employment. 25 It is certainly a more effective instrument than separate legislative initiatives targeted at specific forms of employment that may easily become superseded by the rapid pace of changes on the labour market, as has been the case with the Directives on part-time, fixed-term or temporary agency work. Against that background, the Directive on transparent and predictable working conditions is more likely to set the legal framework for a future positive development of new adaptable forms of employment as long as the CJEU follows its broad interpretation in consideration of the principle of effet utile and the social policy objectives the Directive pursues.
2.2. Part two: the Directive on work-life balance for parents and carers
The origins of the proposal for a Directive on work-life balance for parents and carers can be traced back to as early as 2008, when the Commission put forward a proposal for a Maternity Leave Directive. 26 Following its withdrawal due to lack of progress resulting from the deadlock with the co-legislators in 2015, the Commission decided to take a broader approach on women’s underrepresentation in the labour market and support their career progression through improved conditions to reconcile their working and private lives. 27 In 2017, it adopted a Communication on an initiative to support work-life balance for working parents and carers 28 with a view to fulfilling two more EPSR principles by addressing the work-life balance challenges faced by working parents and carers (Principle 9), while ensuring and fostering gender equality (Principle 2). Against that backdrop, the Commission’s initiative for a Directive on work-life balance for parents and cares took into account the developments in society over the past decade in order to enable working parents and other workers with caring responsibilities to better balance their work and family lives and to encourage a better sharing of caring responsibilities between women and men. 29
The Commission based its proposal on data from 2015 showing that the employment rate of women was 64.3%, compared to 75.9% of men, and identifying that the gender employment gap in the labour market is most acute for parents and people with other caring duties. 30 From the data collected, it is also evident that women are much more likely to assume the role of informal carers for elderly or dependent relatives than men, and consequently, women are also far more likely to work part-time and thus to receive a lower wage. 31 This trend largely results in the gender pay gap (amounting to 28% in some Member States), which over the course of the working life, accumulates into a gender pension gap (on average, 40% in the EU) and results in a higher risk of female poverty and social exclusion, especially in old age or for single parents. 32
Moreover, the existing EU legal framework proved to provide limited incentives for men to assume an equal share of caring duties. 33 The lack of harmonised rules on paid paternity and parental leave at EU level therefore contributes to the low take-up of paternity and parental leave. 34 Concomitantly, the design of work-life balance policies in respect of women and men across the Member States is particularly imbalanced, which only serves to reinforce gender stereotypes and assumptions, and exposes the essential differences between work and care. 35 It is still the case, despite the existing CJEU case law which holds that the positions of a male and a female worker, and father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child. 36
In light of the foregoing, the general objective of Directive (EU) 2019/1158 is to achieve equality between men and women with regard to labour market opportunities and treatment at work, by facilitating the reconciliation of work and family life for workers who are parents or carers, 37 so that men can assume an equal share of caring responsibilities as women. More specifically, the Directive provides for individual rights related to paternity leave, parental leave and carers’ leave, and flexible working arrangements for workers who are parents or carers. The Commission highlighted that factors such as unbalanced design of leave in respect of men and women, insufficient incentives for men to take leave to care for children and/or dependent relatives, limited possibilities for parents to make use of flexible working arrangements, insufficient formal care services and economic disincentives, have all been shown to exacerbate the challenges that women still face on the labour market. 38
With regard to the personal scope of application, the Directive applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State, taking into account the CJEU case law. 39 Nevertheless, taking into account the CJEU case law regarding the criteria for determining the status of worker, it is still for the Member States to define employment contracts and employment relationships. 40 The provision is almost identical to Article 1(2) of Directive (EU) 2019/1152, with a minor difference in its language (Directive (EU) 2019/1158 speaks of ‘taking into account the case law’ whilst Directive (EU) 2019/1152 mentions ‘with consideration to the case law’) and emphasising the gender dimension of all workers, men and women. It is regrettable that the two provisions could not have been aligned better to avoid their possible fragmentation, but in any case, they both encompass the hybrid definition of worker with a clear-cut EU dimension allowing the CJEU to interpret the concept broadly in light of the social policy objectives, the equal treatment and the effet utile principles.
As for the materials rights granted to workers, Directive (EU) 2019/1158 has significantly modernised the existing legal provisions and added a large number of new substantial rights. In view of the lack of minimum standards on paternity leave at EU level, the Directive allows working fathers to take at least 10 working days of paternity leave around the time of birth of the child. 41 More importantly, paternity leave will be compensated with at least at the level of sick pay. With regard to parental leave, 42 the Directive upholds the leave of at least four months per parent but specifies that two months of it are non-transferable between parents (in comparison to the old one month non-transferable leave system). Moreover, parents can request to take the leave in flexible forms, i.e. full-time, part-time or in a piecemeal way, and the two non-transferable months of parental leave will be compensated at a level set by Member States. 43 As far as compensation is concerned, Member States should set the payment or allowance for the minimum non-transferable period of parental leave at an adequate level (emphasis added). 44 When setting the level of the payment or allowance provided for the minimum non-transferable period of parental leave, Member States should take into account that the take-up of parental leave often results in a loss of income for the family, and that first earners in a family are able to make use of their right to parental leave only if it is sufficiently well remunerated, with a view to allowing for a decent living standard. 45 Such a right to compensation is a novelty as no minimum rules on allowance and/or payment were previously foreseen at EU level. For carers, who are workers providing personal care or support to a relative or to a person who lives in the same household as the worker, and who is in need of significant care or support for a serious medical reason, the Directive introduces a new right to five working days of carers’ leave per year. 46 The Directive also reinforces the time off from work on grounds of force majeure, allowing the workers to take a short period time off for urgent family reasons in the case of illness or accident which requires the immediate attendance of the worker. 47 Finally, all working parents with children up to at least eight years of age and all carers will have the right to request the flexible working arrangements to adjust their working patterns, namely, reduced working hours, flexible working hours or flexibility on the place of work, including the use of remote working arrangements. 48
The Directive also comes with a non-discrimination clause, prohibiting less favourable treatment of workers on the ground that they have applied for, or have taken, the leave, or exercised their right guaranteed by the Directive. 49 With regard to the enforcement measures, the Directive contains the typical social policy safeguards, including protection from dismissal and the reversed burden of proof, penalties, protection against adverse treatment or consequences, and the standard non-regression clause. When it comes to protection from dismissal, 50 in light of the existing CJEU case law, by analogy, workers who exercise their right to take leave or to request flexible working arrangements should enjoy protection not only against dismissal, but also against any preparatory steps for a possible dismissal on the grounds that they have applied for, or have taken, such leave, or that they have exercised their right to request such flexible working arrangements. 51 However, as far as the level of protection is concerned, 52 allowing one parent to transfer to the other parent more than two months out of the four months of parental leave does not constitute a provision that is more favourable to the worker than the minimum provisions laid down in the Directive. 53
Finally, Member States have until 2 August 2022 to transpose the Directive, with the extended deadline of two extra years to transpose the provisions relating to payment or allowance corresponding to the last two weeks of parental leave. In any case, Member States are not required to rename or otherwise change the different types of family-related leave that are provided for under national law or collective agreements and which count towards compliance with the Directive. 54 In addition, Member States are also encouraged to promote the social dialogue with the social partners with a view to fostering the reconciliation of work and private life, including by promoting work-life balance measures in the workplace, establishing voluntary certification systems, providing vocational training, raising awareness, and carrying out information campaigns. 55 On top of that, in order to promote work-life balance policies, Member States are encouraged to engage in a dialogue with relevant stakeholders. 56
3. It takes two to tango: Decent jobs need to feature social inclusion
Both Directives pursue clear-cut social policy objectives as embedded in Article 153 TFEU, while the Directive on transparent and predictable working conditions bears more of a labour law character in attempting to level the playing field for all workers (with a special set of measures aimed at workers with variable working patterns), the Directive on work-life balance is more of a social law instrument ensuring and enforcing the equal treatment principle between men and women. Therefore, on the one hand, the former Directive attempts to increase the level of decent working conditions, whereas on the other hand, the latter Directive focuses on increasing the social inclusion of all workers, both men and women. In fact, the concepts of decent working conditions and social inclusion both need to go hand in hand in order to complement each other at EU level to achieve the desired social upward convergence and provide an adequate safety net against social risks. 57 Indeed, social inclusion can predominantly stem from decent working and employment conditions, including pay. However, whilst at EU level exclusion of pay cannot hollow out the provisions under the Title on the Social Policy, setting the level of the constituent parts of pay, by virtue of Article 153(5) TFEU, is excluded from the Union’s competences and therefore lies within the margin of the Member States
Interestingly, in January 2020 the Commission presented a Communication on ‘A strong social Europe for just transitions’, 58 setting its agenda in the field of social policy, and launched the first phase of a consultation with social partners on a possible action addressing the challenges related to fair minimum wages. 59 The Commission has highlighted that adequate wages are key for ensuring fair working conditions and decent living standards for European workers that help to protect low-wage workers and prevent in-work poverty. 60 Moreover, Principle 6 EPSR enshrines fair wages that have to provide for a decent standard of living and an adequate minimum wage. Against that background, in her contribution to this Special Issue, Marchal discusses the possibilities to take a co-ordinated approach towards minimum wages, and in particular, discusses the importance of the reference wage with regard to ensuring ‘adequate’ wages.
The Commission’s initiative is a follow-up of President Von der Leyen’s political guidelines that refer also to the action plan to fully implement the EPSR. However, the presented document merely sets forth the challenges and outlines possible actions under consideration, leaving room for the social partners to give their feedback. Moreover, it does not spell out in any detail whether the Commission will put forward a proposal for a Directive, a Council Recommendation, or just a Communication. This also raises the question of the proposal’s legal feasibility, considering the wording of Article 153(5) TFEU that Aranguiz and Garben describe as ‘a slim and slack rope.’ 61 They propose making use of Article 175 TFEU on social, economic and territorial cohesion to deliver a Directive on fair minimum wage. 62 A follow-up on the progress of the initiative is expected in the third quarter of 2020, but looking at the Commission Work Programme 2020, it seems that the action will be based, surprisingly, on Articles 153(1)(b), 153(2) and 154 TFEU, and will be labelled as ‘Fair minimum wages for workers in the EU.’ 63 Surely, this proves the strong social commitment of the new Commission, but simultaneously casts serious concerns about the legal nature and the scope of such a bold proposal that could cause political uproar in some Member States, especially in Denmark and Sweden, due to their collective bargaining models.
4. Conclusion: Keep on delivering on EU social policy to fulfil the EPSR’s prophecy
The first big win for social policy and for the EPSR is that the proposed Directives were adopted in a rather speedy manner. Their success in the field of EU social acquis will, however, mostly hinge on their correct transposition, implementation and enforcement. The toughest challenge might prove to be the adequate transposition related to their personal scope. Some Members States, as signalled during the political negotiations, might be tempted to fully embrace the national definition of worker without giving much consideration to the CJEU case law, thereby policing the scope of beneficiaries rather rigidly in a narrow manner. A lot will depend on the Commission’s efforts in assisting the Member States with the transposition process by creating expert groups and at a later stage, launching infringement procedures against Member States which fail to comply with the Directive(s). In any case, observing the national litigation on the status of workers in the platform economy, it is very likely that soon after the transposition deadline, a national court will seek a preliminary reference from the CJEU that would enable the Court to interpret the scope of the Directives, hopefully, in a broad manner, relying, once again, on the principle of effet utile and the overarching social policy objectives that are also echoed in Article 9 TFEU.
Nevertheless, the deserved criticism might well be that transparent and predictable working conditions do not seem to have a direct impact on job quality, and neither do work-life balance measures form a socially inclusive umbrella of social rights. However, decent working and employment conditions ensure that the rules of the game between the employer and worker are fairer, which, overall, leads to increased legal certainty in the field of labour relations and also reduces the chances of exploitation of the workforce. 64 Stability and predictability of employment are surely crucial for the vulnerable workforce, particularly those prone to experiencing precarity such as casual workers. On that point, a criticism on the adopted measures also relate to their inclusiveness in the extent to which they provide adequate coverage for workers engaged in non-standard/atypical employment with blurred lines between dependent self-employment and self-employment. Those making up the most vulnerable precarious part of the workforce, who find themselves outside of the realm of the employment relationship, such as platform workers, are simply often not covered at all. 65
This shows that a new concept of worker is possibly overdue, so that all labour and social security rights apply to, as suggested recently by the leading scholars in the field of EU labour and social law, ‘every worker who provides work or services in a predominantly personal capacity and is not genuinely operating a business undertaking on his or her own account.’ 66 Nonetheless, the introduction and reinforcement of paternity, paternal and carers’ leave with all the corollary protections, contributes to the Treaty-based goals of equality between men and women in respect of labour market opportunities, equal treatment at work and the promotion of a high level of employment in the Union, thereby making the workforce at least a bit more socially inclusive.
Overall, the Directives fit well into the larger framework of the sustainable development of the social market economy. The achieved advancement in the EU social acquis proves that the EPSR is not just an empty set of profound self-fulfilling prophecies. On the contrary, the EPSR has gained new social momentum. Indeed, the EPSR serves both as a beacon and a compass for the Commission to deliver and reinforce the rights enshrined therein. The two Directives attain those objectives and reflect the universal language of the EPSR, at least as far as fully-fledged workers are concerned. Nevertheless, more is expected from the Commission to reaffirm its commitment to deliver a sound and suitable implementation plan, even if its most recent initiative on the fair minimum wages gets stuck in the shallow waters of mostly, but not only, the political, but also, legal, feasibility of Article 153 TFEU.
Footnotes
Author’s note
Views set out are of the author and do not necessarily reflect the official opinion of the organisation.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
