The transposition of the EU Directive on transparent and predictable working conditions
The EU Directive on transparent and predictable working conditions aims to improve working conditions in the European Union by promoting more transparent and predictable employment while ensuring labour market adaptability.
The Directive had a transposition deadline of 1 August 2022, which Ireland did not meet. According to a Minister of State at the Department of Enterprise, Trade and Employment, the reason for not meeting the deadline is that there are a number of legally complex elements being introduced by the Directive, which has prolonged the drafting process.
Many provisions of the Directive were already introduced in Ireland through the Employment (Miscellaneous Provisions) Act 2018. The Government aims to transpose the remaining provisions to into Irish legislation “at the earliest opportunity possible this year”.
What can we expect from the Directive?
The Directive introduces mandatory obligations in relation to terms of employment, provision of information to employees posted overseas, probationary periods, parallel employment, minimum predictability of work, and work-related training.
Provision of terms of employment
The Directive prescribes certain information to be provided to employees within (a) one week and (b) one month. In Ireland we already have legislation mandating terms of employment to be provided to the employee (a) within 5 days, as set out in the Employment (Miscellaneous) Provisions Act 2018 and (b) within 2 months, as set out in the Terms of Employment Information Act 1994. The following table outlines the different terms that must be provided to employees according to their respective deadline:
Section 7 of the 2018 Act
Directive – Articles 4 & 5
Section 3 of the 1994 Act
Directive – Articles 4 & 5
|Within 5 days of start date:
||Within 7 days of start:
|Within 2 months of the start date:
||Within 1 month of start date:
Provision of information to employees posted overseas
The Terms of Employment Information Act 1994 already requires employers to provide certain information to employees who work outside of Ireland for more than one month. The Directive expands this obligation by requiring employers to provide information regarding local law remuneration entitlements, applicable allowances, arrangements for expensing travel, food and accommodation, as well as providing a link to an official national website, which sets out the terms and conditions which apply to workers posted to the host country.
A key provision in the Directive is a limitation on probationary periods of six months. Each member state has the option to allow for a longer probationary period, on an exceptional basis, where it can be justified by the nature of the employment or where it is the interests of the worker. There is also the option to allow for an extension to a probationary period if the employee has been absent due to illness or leave (for a period corresponding to the absence).
For fixed-term contracts, probationary periods should be proportionate to the length of the contract and the nature of the work. Probationary periods will be prohibited in the event of a fixed-term contract renewal.
The Directive contains a ban on exclusive service contracts of employments, meaning that employers may not prohibit a worker from taking up employment with other employers outside their work schedule, nor subject the employee to adverse treatment for doing so. Exclusivity provisions are permitted on certain objective grounds such as health and safety, the protection of business confidentiality, the integrity of the public service, or the avoidance of conflicts of interest.
Minimum predictability of work
There is already an effective ban in Ireland on zero hours contracts and the Directive extends employees’ rights further. The Directive provides that employees with unpredictable hours:
- cannot be required to work unless they have been given (a) information about the hours and days they may be required to work, and (b) sufficient notice of the work assignment;
- must be compensated if the employer cancels work without reasonable notice; and
- can request more predictable and secure working conditions and are entitled to receive a reasoned written reply within one month of the request (provided they have six months’ service and have completed their probationary period).
For any subsequent similar requests by the employee, member states can extend the response deadline to three months and allow for an oral reply where the justification for the reply remains unchanged.
What constitutes “sufficient/reasonable notice” will be established in accordance with national law, collective agreements or practice.
If an employer is required by EU or national law or collective agreements to provide training to employees to carry out the work for which they are employed, this training must be provided free of charge, during working hours where possible and is counted as working time. This excludes training required for employees to obtain, maintain or renew a professional qualification unless the employer is required by law or collective agreement to provide that training.
The exact provisions of the legislation remain to be seen and we will provide a further update in due course.
With thanks to Aedín McHugh for her contribution to this article.