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Lecture 4 European Labour Law and Social Security Law
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  • Vak
  • European Labour Law and Social Security Law
  • Instelling
  • Maastricht University (UM)

This document contains all the notes I took during lecture 3 of the course 'European Labour Law and Social Security Law'. I passed this course with an 8!

Voorbeeld 2 van de 14  pagina's

Document informatie

  • 6 april 2020
  • 14
  • 2018/2019
  • College aantekeningen
  • Nicola gundt
  • Alle colleges

Onderwerpen

  • atypical work
  • posting of work
  • part time work
  • fixed term work
  • seasonal work
  • reasons for existence
  • flexibility
  • regulation needed
  • non discrimination
  • cla
  • directive 9781
  • directive 9970
  • directive 2008104

Geschreven voor

  • Maastricht University (UM)
  • Master Privaatrecht
  • European Labour Law and Social Security Law
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Voorbeeld van de inhoud

Atypical work and Posting of workers
Nicola Gundt 7 May 2019

 One way of balancing work and family life is to work part-time, or under a short fixed-
term contract, or as an agency worker (temp).
 These contracts however, are very precarious. As a result, the Commission proposed
three specific Directives concerning atypical workers, intended to improve the
operation of the internal market and introduce greater transparency into the labor
market, to improve living and working conditions of workers, and to protect the health
and safety of workers at the workplace.
 Full-timers are in some MS better paid than part-timers and this has nothing to do
with the productivity. As a result, some states van produce with lower labor costs than
others for reasons unrelated to productivity.
We will start with part-time work, because that was the first one that caused all the troubles.
The case law on part-time work is quite old. With regard to fixed time work, we see a lot of
case law, specifically from Spain, Greece and Italy. In a lot of cases there is a public entity
being the employer. So that is where you can see that public entities really like fixed time
work.
Once we have discussed all the time of atypical work, we will switch to posting.
The key feature in posting is that an employment relationship exists between the posted
worker and the service provider which is established in a MS other than that where the
service is provided. Quite often these contracts are temporary contracts. Posting as such is
not a problem, but the consequences of posting can become a problem. When employers
come to a country with their own labor contracts, this means that you have a country with its
own labor laws and all of the sudden people are coming over with their own sets of law. This
causes problems.

Definition
A typical work is all kinds of work that is not full-time / not permanent and which may also be
done through an intermediary. You can ask yourself if part time work is really atypical work.
80% of the women in the Netherlands are working part time. With part time work as such,
there is nothing wrong. You can earn enough to have a good living. The problem is when you
have a very small contract (e.g. 8 hours a week), in that case part time work can become
very difficult. So generally speaking part time work is not a big problem in the sense that
employees are without protection.
With fixed time work, it can be different. Employers really like fixed time contracts. A special
kind of fixed-time work is seasonal work. You can think of the fruit and vegetable industry. In
certain periods you have certain fruits. You want workers that can work during the season
that there is this certain type of fruit or vegetable.
• Not full-time, not permanent and / or working through intermediaries
• Part-time work
• Fixed-term work
• Seasonal work
• Temporary agency work  there is a triangular relation. You have a working
contract with someone, but you are working in someone else enterprise. That
can lead to problems when you can contra dictionary work from both
employees, but also when the employer wants to evade responsibility.
• Zero hours / flexible hours  concept that can be a problem in case you don’t
know when and how much you will earn / have to work. The employer can call
you a couple of hours before and ask you to come and work. That can mean
that you don’t have much possibilities to find something else to also earn
money. This is too bad, because these 0-hour contracts are not contracts you
can live on very properly.
• Mini-jobs  getting back on employment contracts.


1

, • Work in gig-economy: Is it employment?  Working for certain platforms like
Deliveroo. Are the people on their bikes employees, self-employed or
something in between? If they are employees, by who? What type of
contract? It does not really fit into labor law. In the countries were employed /
self-employed is accepted, the judge said; they are not really employed, but
we don’t like the idea of being self-employed either. Eventually judges try to
give them some protection. In England you have an in-between category.
Workers have some kind of protection, but not all of them.
• Can they really decide when they want to work? If they don’t show up, there
are chances that they won’t get as nice working hours the next time. Can they
be replaced by a friend? Does that mean that they are not employed? You
have to look at the paper reality (what is in the contract) but also what is the
case in reality. If the contract says that you can be replaced, and in reality it is
not possible, you have to take that into account.
• Back to the definition: it is very old and broad, and some things that fall under the
definition are very dangerous than others.

Reasons for existence
In case it is dangerous, why do we have an atypical working contract? Why does not
everyone have a permanent contract?
When women started working and kept working after being married / having children there
was a need for other type of contracts. If you look back at the ‘60s and ‘70s, women needed
permission from their man to be able to work. Someone had to take care of the children,
often this was the mother. Employees needed flexibility, more than under the normal
contract. Employers also wanted flexibility. Because what happened was that you had for
example supermarkets with longer opening hours.
But the employee and employer wanted different types of flexibility. An employee wants a
fixed time table so he or she can know at what time he/she is doing what. Employees need
foreseeability and they want the kind of flexibility that allows them to take hours of to take
care of someone.
For an employer flexibility means to be able to ask people to fill in gaps when someone else
is sick. Overtime is also an example. In day care with elderly people, you know it is really
busy in the morning / evening. For an employer it would be interesting to have someone
working 4 hours in the morning and 4 hours in the afternoon. For an employee, this is not
really an interesting choice. In-between you don’t have a lot of possibilities to fill in.
So they are talking about different types of flexibility.
• Need for flexibility of both employer and employee
• Same flexibility?
• Work-life balance?
Work-life balance is helped a lot by atypical work. An example are the home offices, where
the employee has the opportunity to work at home. The problem then is: when does the work
stop? Some people can distinguish between work time and leisure time, but others cannot.
The danger at home office is that you will work much more than you would when you would
be at an actual office. You want certain things to be done and you also need to show the
work that you have done. If you go to a work place, an employer won’t tell you that you are
not finished when you leave the building. If you are completely responsible, if you have done
enough, a lot of people would be working a much longer period. Work-life balance can be
something you can achieve with part time work. A couple of these different forms of work can
help with the work-life balance and the stress reduction, but what has been shown is that
fixed term work leads to more stress and particularly if you are already in a working age and
you have to go to a fixed time contract, that leads to a lot of stress. Part-time work seems to
be stress reductive.
• Stress-reduction?
• At what cost?
• Loss of security

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