Challenges for updating EU labour law… and opportunities Catherine Barnard Trinity College Cambridge

The range and scope of existing EU Employment Rights Equality Art. 157 TFEU on equal pay Dir 79/7 on social security Dir 2006/54 equal pay and treatment Dir 2000/43 on race and ethnic origin Dir 200078 on disability, sexual orientation, age etc Dir 2010/41 on self-employed Family friendly Dir 92/85 on pregnant workers Dir 97/81 on part-time work Dir 99/70 on fixed term work Dir 2008/104 agency work Dir 2010/18 parental leave Working time Dir 2003/88 working time Dir 94/33 young workers Dir 2000/79 on Working time in civil aviation Dir 2005/47 on working conditions in cross border railway services Dir 2002/15 on working time in road transport Reg 561/2006 on daily and weekly driving times Health and safety Dir 89/391 framework Dir 89/364 on min requirements for workplace Dir 89/656 on PPE Dir 90/70 on display screen equipment Dir 90/269 on manual handling of loads Dir 91/383 on health and safety of atypical workers Dir 92/57 on temp or mobile construction sites Health and safety continued Dir 92/19 on mineral extracting industries through drilling Dir 92/58 on safety signs Dir 92/29 medical treatment on board vessels Dir 92/104 on surface and underground mining Dir 2009/104 on work equipment Dir 2013/35 on electromagnetic fields Dir 99/92 on explosive atmospheres Dir 2002/44 on mechanical vibration Dir 2003/10 on noise Dir 2006/25 on artificial optical radiation Dir 2000/54 on biological agents Dir 2010/32 on sharp objects Dir 2004/37 on carcinogens Dir 2009/148 on asbestos Information and consultation Dir 2002/14 general Dir 2009/38 on European works council Dir 2001/86 on information and consult in ECS Dir 2003/782 on info and consult in Cooperative society Dir 2005/56 on cross-border mergers Economic restructuring Dir 2001/23 on transfers of undertakings Dir 98/59 on collective redundancies Directive 2008/94 on insolvency Other employment rights Dir 91/533 on proof of employment contract Dir 96/71 on posted workers Dir 2014/67 on posted workers enforcement The range and scope of existing EU Employment Rights

Challenges competence cleavages communication

Opportunities? Social Pillar Social policy renewal (Brexit)

Challenges Competence (legal)

Legal basis: Art. 153 (a) improvement in particular of the working environment to protect workers' health and safety; (b) working conditions; (c) social security and social protection of workers; (d) protection of workers where their employment contract is terminated; (e) the information and consultation of workers; (f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5; (g) conditions of employment for third-country nationals legally residing in Union territory; (h) the integration of persons excluded from the labour market, without prejudice to Article 166; (i) equality between men and women with regard to labour market opportunities and treatment at work; (j) the combating of social exclusion; (k) the modernisation of social protection systems without prejudice to point (c).

Art. 153(5) ‘The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.’ The story of Monti II

Political constraints Process Impact assessment Impact board Legal basis Hard/soft Legal form Subsidiarity proportionality Monti II yes Art. 352 (cf Art 153(5) TFEU) Hard law Regulation Yes – but yellow card Yes Political constraints The Monti II proposal

Europe wide unemployment insurance Legal basis – Art. 153(1)(c)? unanimity ‘shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof’

What is the purpose of EU legislation? to create a level playing field between Member States narrower role for social policy; matters which have an inter-state element to stabilise the operation of the Eurozone legitimate to legislate just for Eurozone states? to improve the condition of workers across the EU a broader role for social policy but how does it relate to domestic competence? The European Pillar of Social Rights: ‘new and more effective rights for citizens’.

Challenges Competence (scope of employment law)

Gig economy (collaborative economy) Portfolio work Crowd sourcing Provider User user platform Employer worker Can and should employment law apply? Paradigm shift in labour law? Global issue

Working online via an app eg Deliveroo/Uber platform client Driver/ cyclist Food producer Paying company If employee/ worker – employment law applies; but what if not? How does this fit with Digital Single Market programme? Service delivered very locally; role for EU law?

Challenges cleavages

Free movement of Workers v Posted Workers Art. 45 Art. 56 (posted wokrers) Home state Equal treatment Differential treatment Host state

Challenges Communication

The range and scope of existing EU Employment Rights Equality Art. 157 TFEU on equal pay Dir 79/7 on social security Dir 2006/54 equal pay and treatment Dir 2000/43 on race and ethnic origin Dir 200078 on disability, sexual orientation, age etc Dir 2010/41 on self-employed Family friendly Dir 92/85 on pregnant workers Dir 97/81 on part-time work Dir 99/70 on fixed term work Dir 2008/104 agency work Dir 2010/18 parental leave Working time Dir 2003/88 working time Dir 94/33 young workers Dir 2000/79 on Working time in civil aviation Dir 2005/47 on working conditions in cross border railway services Dir 2002/15 on working time in road transport Reg 561/2006 on daily and weekly driving times Health and safety Dir 89/391 framework Dir 89/364 on min requirements for workplace Dir 89/656 on PPE Dir 90/70 on display screen equipment Dir 90/269 on manual handling of loads Dir 91/383 on health and safety of atypical workers Dir 92/57 on temp or mobile construction sites Health and safety continued Dir 92/19 on mineral extracting industries through drilling Dir 92/58 on safety signs Dir 92/29 medical treatment on board vessels Dir 92/104 on surface and underground mining Dir 2009/104 on work equipment Dir 2013/35 on electromagnetic fields Dir 99/92 on explosive atmospheres Dir 2002/44 on mechanical vibration Dir 2003/10 on noise Dir 2006/25 on artificial optical radiation Dir 2000/54 on biological agents Dir 2010/32 on sharp objects Dir 2004/37 on carcinogens Dir 2009/148 on asbestos Information and consultation Dir 2002/14 general Dir 2009/38 on European works council Dir 2001/86 on information and consult in ECS Dir 2003/782 on info and consult in Cooperative society Dir 2005/56 on cross-border mergers Economic restructuring Dir 2001/23 on transfers of undertakings Dir 98/59 on collective redundancies Directive 2008/94 on insolvency Other employment rights Dir 91/533 on proof of employment contract Dir 96/71 on posted workers Dir 2014/67 on posted workers enforcement The range and scope of existing EU Employment Rights Cf OMC/European semester

Opportunities Social pillar

Social pillar Today we commit ourselves to a set of 20 principles and rights. From the right to fair wages to the right to health care; from lifelong learning, a better work-life balance and gender equality to minimum income: with the European Pillar of Social Rights, the EU stands up for the rights of its citizens in a fast-changing world. Jean Claude Juncker, Nov 2017

Equal opps and access to labour market Fair working conditions Education, training Gender equality Equal opps Active support to employment Fair working conditions Secure and adaptable employment (fair) wages Info about employment conditions & protection Social dialogue Work life balance Healthy, safe work and data protection Social protection & inclusion Childcare Social protection Unemployment benefits Minimum income Old age income and pensions Healthcare Inclusion of people with disabilities Social protection and inclusion (cont’d) Long term care Housing and assistance for the homeless Access to essential services

Opportunities renewal of social policy: Brexit