Paul Cullen Labour Law Unit DG EMPL European Commission Estoril, 6-9th March 2008

1. Labour market reforms: a European perspectiveReflections on the debates at EU level on modernising labour law and devising common principles on flexicurity Paul Cullen Labour Law Unit DG EMPL European Commission Estoril, 6-9th March 2008 SINTTAV, Portugal

2. Successful ‘flexicurity’ strategies ↕↕  redefining the role of legislation + collective bargaining, involving the active participation of the social partners Livro Verde sobre as Relações Laborais, April 2006

3. Community Social Order

4. What role can labour law play in advancing a « flexicurity » agenda tosupport a fairer, more responsive, more inclusive and more competitive labour market? Green Paper 22 November 2006

5. Deficit between existing legal framework & realities of the world of work What role for labour law reform in boosting flexibility and security, under all forms of contracts? How to ensure protection for new contract forms & assist successful labour market transitions, creativity and workforce mobility? How do Legislators /Governments /social partners test experience of their national labour law, its support for training and its labour market impact? A new focus for labour law?

6. A Flexible & Inclusive Labour Market Facilitating employment transitions Uncertainty with regard to the law Three Way Relationships Organisation of Working Time Mobility of Workers Enforcement of employment rights & combating undeclared work 7 Themes x 14 Questions

7. Partial approach to reform has promoted "two-tier" labour market – divided between stability and precariousness "insiders" and "outsiders" Erosionof employment status Threatens to undermine: Minimum wages; hours of work; overtime pay; holidays; social security, maternity protection; health & safety protection; Labour Market Segmentation

8. How to promote flexibility, legitimise contract diversity, facilitate transitions from unemployment into employment and between contract forms, & facilitate entry into mainstream employment? How to reduce labour market segmentation, combat precariousness ? What changes are needed to shift the focus from “protection in a job” to sustaining security of employment in a challenging environment? Focus on contractual arrangements

9. Transitions – negative/positive – “stepping stones”; “durable traps”; or just “revolving doors”? Importance of transparency of terms, responsiveness to choice on working time, etc, and voluntariness in choice of status. Need to innovate beyond limits of gender & “job for life” stereotypes from which labour law/contractual models /social insurance evolved Diversity of Contracts

10. Means of promoting law & devolving the selectionof implementation options; Internal & Functional Flexibility: successfully negotiated via collective agreements. “Flexicurity”good practice models based on tripartite concordats in AT, NL and DK Social partnership builds trust and continuity to sustain viable “trade offs” Quality of Enforcement – focus on resources Social Dialogue

11. Institutions – EP, EESC, 25 MS, National Parliaments EU Social Partners [3 x SSDC] EU Industry bodies, NGOs, etc National Social Partners, National NGOs & regional authorities Enterprises Labour lawyers & “Think Tanks” Individuals > 450 responses Outcome of Public Consultation

12. Why public consultation, not Article 138 social partner consultation? “The autonomy of Labour Law” Instrumental purpose (vis-a-vis Lisbon Strategy, etc) or sui generis based on Fundamental Rights Too restrictive a focus on individual employment relationship)? Relevance of “Insider / Outsider” dichotomy – do vulnerable workers count as “outsiders”? Prioritise the Open-ended contractor new flexible work contracts continued/ Social Partner Responses

13. Relevance of the design & severity of employment protection measures Labour law & commercial law codes -respective contract forms should be distinguished Subsidiarity – shared disinclination for harmonisation of labour rules or framing a uniform Community definition of “worker” Integrity of Industrial Relations systems – but some convergence necessary to achieve a level playing field and to avoid social dumping Differences in views on “added value” of EU in promoting labour law reform, advancing equal treatment and setting minimum standards Social Partner Responses (continued)

14. Divergent Perspectives of Social Partners

15. Cutting red tape and simplifying legislative rules; Re-defining law, collective agreements and the individual labour contract are related; Considering how diverse labour situations are dealt with in employment law; Diversifying contractual forms; Focusing attention on internal flexibility; Reviewing provisions about termination of the labour contract; Collective labour law. Comissão do Livro Branco das Relações Laborais -

16. Community Social Order

17. Treaty competences in social policy field & principle of subsidiarity i.e. internal limits onEU competence Conduct of social dialogue and its relation to Better Regulation agenda Development of the Open Method of Coordination of Employment Policies EP Resolution 11th July 2007

18. Business – Legislation is not an appropriate instrument to influence the learning behaviour.  Personal motivation is the key driver. Trade Unions – “Core of rights” should include access to training. But outcomes more important than instruments. European Parliament - a combination of individual motivation, employers' support, accessibility and availability of facilities Reforms of labour law should facilitate companies' investment in the skills of their workers, stimulate workers to upgrade their own skills and guarantee the intervention of social security systems to ensure such an approach The Key to Employment Transitions - Training

19. Flexicurity: Common Principles • Commission Communication, June 2007 • EU Social Partner Joint Analysis of Labour Market Challenges, October 2007 • Employment Ministers, 5th December 2007 • European Council, 14th December 2007 • New cycle of Integrated Guidelines for Growth and Jobs (2008-2011) • Employment Ministers, 29th February ‘08

20. Communication + Services Working Document containing summary of responses Full publication of responses on DG EMPL website Conclusion of the public consultation process Follow Up Communication, October 2007

21. Modern labour law regulating flexible and reliable contractual arrangements, active labour market policies, comprehensive lifelong learning strategies modern social protection systems providing adequate income support during periods of unemployment. Integrated Flexicurity Approach4 policy components

22. Commission does not propose any new legislative initiatives It encourages social partners to negotiate on life long learning It identifies areas where there is a need for further cooperation, legal clarity & more and better information. Follow Up Communication, October 2007

23. The prevention and combat of undeclared work, especially in cross-border situations [parallel Communication on UDW] The promotion of training and life-long learning to ensure greater employment security over the life cycle Areas identified for further attention

24. The interaction between labour law & social protection rules in support of efficient labour market transitions & sustainable social protection systems Identified Areas (continued)

25. The clarification of the nature of the employment relationship to promote greater understanding and facilitate cooperation across the EU The clarification of the rights and obligations of the parties involved in sub-contracting chains, to ensure that workers are not deprived of the effective use of their rights. Identified Areas (continued)

26. The Commission considers that the most appropriate avenues for pursuing the issues arising from the public consultation are The national reform process under the EU's strategy for Jobs and Growth The integrated approach to developing & implementing flexicurity-based principles Next Steps

27. Outcome of the public consultation on the Green Paper: Modernising Labour Law to meet the challenges of the 21st Century For access to the responses see the EUROPA Green Paper webpagehttp://ec.europa.eu/employment_social/labour_law/green_paper_responses_en.htm