Conditions of Employment (Information)
by Abbo Junker
1. Subject matter and purpose of Directive 91/533
An employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship is governed by Council Directive 91/533 of 14 October 1991 (all future references within this entry relate to this directive). In 1963, for example, the German Federal Labour Court could reasonably conclude that an employee, living in the middle of the 20th century, should be aware of his social rights and obligations. However, due to the rapidly evolving flexibilization of work in the last two decades of this century, this view became untenable.
The development of a variety of new forms of employment such as job sharing, telecommuting or temporary work led some Member States to introduce formal requirements for employment. On the one hand the provisions were designed to provide employees with improved protection, so that the employee had a (written) survey of his rights and obligations (employment protection); on the other hand evidentiary difficulties were to be prevented. In light of the fact that the matter was treated differently by the Member States, the Commission sought to unify the different regulations. The intention was to prevent a loss of transparency on the labour market by establishing at the Union level the obligation of the employer to inform employees in writing. The directive is seen as substantiating the Community Charter of the Fundamental Social Rights of Workers of 9 December 1989. The preamble to Dir 91/533 refers in this respect to Art 9 of the Community Charter.
2. Scope of the directive
According to Art 1, the directive applies to every paid employee having a contract or employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State. Consequently, it is somewhat ambiguous as to whether the directive refers to the law of the Member States for the definition of the contract or employment relationship, or whether it is sufficient that the contract or employment relationship is subject to the respective law. It is, at a minimum, certain that the concept of employee in the directive differs from the domestic law and adopts a wider scope. Accordingly, what is understood as the European concept of employee has to be taken as the basis. Therein, all contracts are included that are considered as labour contracts under European law and that are governed by the law in force in a Member State (see the second alternative of the last clause). Through the first alternative in Art 1(1), the scope of the directive should be distinguished from the proper law of the contract (in Germany, for example, there is free choice of the applicable law of the contract according to Art 27(1)(1) Introductory Act to the German Civil Code, EGBGB), so that employees who are not governed by the law of the Member States and the European Union may also work in Europe (posting of workers). In Germany, the directive is also applicable to employment relationships which are governed by a non-European law of the contract, since the directive is a mandatory protection provision of employees in the meaning of Art 30(1) Introductory Act to the German Civil Code (EGBGB).
The application of the directive can be limited by the Member States in two cases (Art 1(2)). On the one hand, the directive does not apply to employees having a contract with a working week not exceeding eight hours and/or with a total duration not exceeding one month. Another exception is allowed if the employment relationship is of a casual and/or specific nature, provided the non-application is justified by objective considerations in such cases (Art 1(2) lit b). Both ‘casual’ and ‘specific nature’ require interpretations; mere short-term employment is not covered since it is already covered by Art 1(2) lit a of the directive. Consequently, the limitation’s applicability requires that the employers only occasionally have a need for the employee’s activities. This includes seasonal work as well as seasonal overtime work or work that is unique to the employer or only arises on rare occasions. Determining when a particular type of activity exists within the meaning of Art 1(2) lit b has proven to be particularly problematic. A definition of ‘normal’ work cannot be made, as such does not exist. Rather, the objective reasons in Art 1(2) lit b have to be focused upon. In addition, only objective reasons which are substantiated by the type or development of the obligation to work have to be considered.
3. Content of the directive
According to Art 2(1) of the directive, the employer is obliged to notify the employee of the essential aspects of the contract or employment relationship. The employer has to deliver the documents, referred to by Art 3(1), within two months after the start of work (information obligations (employment contracts)). In addition to a written employment contract and/or a letter of engagement, another document is required that complies with the information obligations contained in Art 2(2). This obligation applies to the following points: the identities of the parties as well as the workplace, or, where there is no fixed or main place of work, the principle that the employee is employed at various places and the registered place of business or, where appropriate, the domicile of the employer (Art 2(2) lit a and lit b). Article 2(2) lit c of the directive requires indication of the title, grade, nature or category of the work for which the employee is employed or a brief specification or description of his work. In addition, the document must contain the date of commencement of the employment relationship (Art 2(2) lit d) and, in the case of a temporary contract or employment relationship, the expected duration thereof (Art 2(2) lit e). Also requiring specification are the amount of paid leave to which the employee is entitled or the procedures for allocating and determining such leave, the length of the periods of notice to be observed by the employer and the employee should their contract or employment relationship be terminated, the initial basic amount the other component elements and the frequency of payment of the remuneration to which the employee is entitled and the length of the employee’s normal working day or week (Art 2(2) lit f–i). According to Art 2(3) of the directive this information (Art 2(2) lit f–i) may be given to the employee in the form of a reference to the laws, regulations and administrative or statutory provisions or collective agreements which govern these particular points. It is optional whether the employer specifies the collective labour agreements governing the employee’s conditions of work or, in case of collective agreements concluded outside the business by special joint bodies or institutions, the name of the competent body or joint institution within which the agreements were concluded (Art 2(2) lit j).
The question, however, is whether Art 2(2) provides an exhaustive list. Although such interpretation is not supported by the wording of the provision (‘at least’), one can respond that a specific list would not have been required if the catalogue were only a demonstrative, non-exhaustive list. With regard to the protective purpose of the directive, criteria that are not explicitly mentioned have to be recognized if they protect the workers from confusion about their rights and obligations.
For the employer, the obligation to provide required information within two months is only mandatory with regard to the elements raised in Art 2(2) lit a–d, h and i of the directive (Art 3(1) lit c). Where none of the documents referred to in Art 3(1) are handed over to the employee within the prescribed period, the employer shall be obliged to give the employee, no later than two months after the commencement of employment, a written declaration signed by the employer and containing at a minimum the information referred to in Art 2(2). In that instance the employer has to meet more stringent requirements (Art 3(2)). Where an employee is required to work in foreign countries, Art 4 requires that the documents referred to in Art 3 must be in his possession before his departure and must include the additional information referred to in Art 4(1) lit a–d of the directive. Any change in the details referred to in Art 2(2) and Art 4(1) must be the subject of a written document given to the employee by the employer at the earliest opportunity and not later than one month after the date of entry into effect of the change in question (Art 5(1)).
4. Implementation into domestic law
The deadline for implementation into national law was 30 June 1993 (Art 9(1)). A large number of Member States did not fulfil this obligation on time, among them the Federal Republic of Germany, which implemented the directive in the Nachweisgesetz (Law of Proof of Substantial Conditions Applicable to the Employment Relationship) of 28 May 1995. This law differs only slightly from the very detailed requirements of the directive, as only minimal leeway existed for the national legislature. Precisely following the requirements of the directive has led, however, to an unsatisfactory solution in respect of a central issue as relates to the German experience. Article 8 obliges the Member States to introduce such measures as are necessary to enable all employees to pursue their claims by judicial process. The Nachweisgesetz, however, is missing an explicit provision to this effect. It is the case that in accordance with general principles the employee can pursue his claims by an action for performance or withhold job performance until the proof is provided. Furthermore, a claim for damages under § 280 Bürgerliches Gesetzbuch (BGB) can also be considered. Thus, in effect the implementation into German law accords with the directive, but it is questionable if claims can realistically be asserted by employees.
Jon Clark and Mark Hall, ‘Employee Rights to Information about Conditions Applicable to their Contract or Employment Relationship’  Industrial Law Journal 106; Rolf Birk, ‘Das Nachweisgesetz zur Umsetzung der EU-Richtlinie 91/533 in das deutsche Recht’  NZA 281; Rolf Wank, ‘Das Nachweisgesetz’  RdA 21; Roland Schwarze, ‘Praktische Handhabung und dogmatische Einordnung des Nachweisgesetzes’  ZfA 43; Rüdiger Krause, ‘Arbeitsvertrag—Arbeitsverhältnis, II. Inhalt der Arbeitsverhältnisse, 220.2. Nr. 16’ in Thomas Dietrich, Klaus Neef, Brent Schwab (eds), Arbeitsrechts-Blattei 220.2.2 (1999); Rudi Müller-Glöge, ‘Zur Umsetzung der Nachweisrichtlinie in nationales Recht’ (2001) special supplement 5 RdA 46; Birgit Friese, Der Nachweis der wesentlichen Bedingungen des Arbeitsvertrages’ in Hartmut Oetker, Ulrich Preis (eds), Europäisches Arbeits und Sozialrecht part B (2003); Birgit Friese, ‘Arbeitgeberpflicht—der Nachweis der Vertragsbedingungen’ AuA 2003, issue 5, 16; Rolf Wank, ‘Die personellen Grenzendes Europäischen Arbeitsrechts’  EuZA 172; Ulrich Preis, ‘Einführung NachwG’ in Rudi Müller-Glöge, Ulrich Preis and Günter Schaub (eds), Erfurter Kommentar zum Arbeitsrecht (9th edn, 2009).