IPM ref Creation date Individual or organisation?

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1 IPM ref Creation date Individual or organisation? Organisation Consent to publication of replies? No, references to the personal data should remain anonymous name European Federation of Journalists *** sector Communication Services / Postal Services What kind of organisation? European trade union Name of organisation European Federation of Journalists Country of organisation? BE - Belgium 1. What would you consider to be the Priorities must include a much more inclusive approach priorities for a meaningful labour law reform regarding regulation of working rights for all workers, agenda? independent of their form of contract. In order to prevent the creation of a two-tier labour market between fully employed and those unemployed or those precariously and informally employed and freelances, labour law has to be extended and amended to ensure that protection of traditional forms of employees and dependent workers is extended to all work forms. An extended concept of worker can form the basis for a more effective, generally applicable concept of the employment relationship. Labour law becomes irrelevant in a labour market increasingly dominated by the process of outsourcing which undermines traditional employment relations. Many companies are now founded to circumvent labour law. With the right of European enterprises to establish their seat anywhere within the European Union, there is a shift to the establishment of companies based in member states, with less social protection. At the same time, traditional freelance work is being expanded. The creation of separate highly disputed niches of work (which traditionally were regarded as the core business of media) in certain media sectors is a feature of changing employment relations which is undermining core labour standards. There is an increase of what we consider fraudulent freelance contracts (contracts that are, in fact, disguising working relations that would have been formerly protected). This has a very negative impact particularly on the younger and the female workforce, as these groups are especially targeted by these forms of unprotected contracts. This phenomenon constitutes direct gender based discrimination, as there are many female employees, who take maternal or parental leave from the labour market, only to get the offer of a mere freelance contract at the point of return, as at this point, they are beyond the traditional age where advantageous labour contracts are usually submitted by employers. Union representation and collective bargaining rights as defined by ILO conventions 79 and 98 should be extended to others than permanently employed, including economically dependent workers (as already the case in several EU member states-austria, Germany, Denmark, Italy) and freelances. In those branches where a high percentage of freelance or single-owner companies are found, there is almost no possibility to negotiate fees. European labour law should allow the establishment of labour tribunals in which freelance workers have the right to claim remuneration based on income entitlement under collective bargaining. We believe the European Union

2 4. How might recruitment under permanent and temporary contracts be facilitated, whether by law or collective agreement, so as to allow for more flexibility within the framework of these contracts while ensuring adequate standards of employment security and social protection at the same time? 6. What role might law and/or collective agreements negotiated between the social partners play in promoting access to training and transitions between different contractual forms for upward mobility over the course of a fully active working life? should advocate and develop policies to rebalance and refocus labour law with a view to ensure that labour law in its widest sense covers all workers who are working in the framework of a subordinate employment relationship. The Commission should promote the implementation by Member States of the recent ILO Recommendation on the Employment Relationship, to clarify who is considered as a worker. Above all, it cannot be that competition law takes precedence over employment law and that unprotected freelances and economically dependent workers, whose employment relationship is characterized by an imbalance of power, cannot rely on collective support. We agree with the ETUC stressing the importance of collective bargaining and social dialogue both as an important regulatory force (to regulate contractual and employment relations as well as internal and external flexibility in a broad range of areas, from working time to agency and freelance work), as in its role to provide a democratic and participatory process for modernisation and change. There is, therefore, an urgent need to overhaul legal employment relations in order to strengthen the European social model as an integral part of the Lisbon strategy. EFJ principle is that temporary contracts should not be facilitated but made into permanent contracts where possible. A recent study explicitly says that work satisfaction and quality is closely connected with security at work. One of the major trends in the industry is the division of media companies to create legally independent enterprises which cooperate one with the other only with limited contracts or on a piece to piece base. In this way, labour law is circumvented. Sub-contractual work, masked by fake independent enterprises is now a major threat to social stability in Europe, and this should be addressed in a Green paper on labour law. Life-long learning and quality are key pillars in creating a more competitive Europe in a globalised world. While the number of freelances or self-employed or precarious workers in the media sector is increasing, only a few EU countries provide training and further training to nonpermanent staff, for instance, as in the case of economically dependent workers or pigistes in France. Freelances need access to lifelong training in order to remain employable within the media industry. The UK audiovisual/broadcasting industry is a good example of where a levy on employers operates for the collective good of workers in the sector and the employers ensuring a highly skilled workforce whilst not placing the burden for training on a single employer. Therefore, training and further training options must be included in collective agreements when they exist (such as for economically dependent workers) or through other compulsory arrangements. As the negotiation of collective agreements for persons under freelance contracts is often impossible, this should be established through a legal regulation.

3 7. Is greater clarity needed in Member States' legal definitions of employment and selfemployment to facilitate bona fide transitions from employment to self-employment and vice versa? 8. Is there a need for a floor of rights dealing with the working conditions of all workers regardless of the form of their work contract? What, in your view, would be the impact of such minimum requirements on job creation as well as on the protection of workers? There is no problem concerning the transition between employment and self-employment. There is, however, a problem resulting from the very and often artificial distinction between employment and self-employment, as for instance some staff contracts today provide higher freedom and flexibility as many so called self-employed contracts. Rather than clarifying the status of employed and self-employed persons, there should be equal treatment in terms of social insurance and taxation, thus the employer and the employed person has no prejudice from the official status of the worker. In many countries they are denied their fundamental rights as workers to organise and collectively negotiate their terms and conditions. A broad comprehensive definition of worker should be established at European level in compliance with national law and practices. With the exception of a small elite, the freelance workers are dependent on the mercy of the employer. This principle works well in Sweden and in Norway. In the UK, tribunals are now defining employment more widely than before (see Thickness v. times Newspapers and Mc Callum v Middleton). Considering that labour law seeks, among other things, to address what can be an unequal bargaining position between parties to an employment relationship, the EFJ supports a sort of core of rights, which is appropriate to national law or practice, for all workers independent of their work contract. However, the EFJ is concerned that a third legal category of contractual arrangements with a limited set of rights would create competition between different contractual arrangements and would water down existing employment rights. In Germany for instance, the creation of the so called Arbeitnehmerähnliche Person has supported trends in the media industry to change the status of normally employed staff to this new category of economically dependent staff with less rights. The EFJ believes that all persons working under some sort of subordinance or dependency should be entitled to a full range of employment rights, whether they are employed on a part-time, temporary or casual or freelance basis. This has been the case in France with the employee-like status of pigistes, and it has worked rather well. Such basic rights should contain minimum working conditions and professional standards appropriate to national law and practice, such as: The right to organise in a union and by collective work seek to improve the situation for non permanent staff; The same rights regarding information and consultation; The right to a written contract; The right to equal protection by social security institutions on equal terms with permanent staff such as: a) Sick pay; b) Retirement pension; c) Unemployment allowance; d) maternity/paternity allowance equivalent to a comparable employee. (This can be organised differently according to national circumstances); e) Work accident pension and other forms of work accident benefits; The right to equal treatment and to receive decent fees and thus not undermine the positions of staff through providing cheap work; Same protection when it comes to the resiliation (termination) of contract The right to take part in training offers. The right to adequate representation in work councils, if those are established according to the law of a

4 member state. However, the EFJ strongly contends that there is a link between employment protection and job creation as acknowledged in recent OECD statements and by the World Bank (2003). 9. Do you think the responsibilities of the various parties within multiple employment relationships should be clarified to determine who is accountable for compliance with employment rights? Would subsidiary liability be an effective and feasible way to establish that responsibility in the case of subcontractors? If not, do you see other ways to ensure adequate protection of workers in "three-way relationships"? 10. Is there a need to clarify the employment status of temporary agency workers? It is essential that workers involved in multiple employment relationships know who their employer is and what their contractual rights are. The responsibility should be with the effective employer. This would not necessarily be the direct employer (the user enterprise), but the one who is economically responsible of the work being done. The responsibility of the economical director would also bind the one who has sufficient financial means to cover expenses if there is a work accident There is a need for equal treatment including for temporary workers. We have to expose the fraudulent use of freelance contracts or even self-employed contracts illustrating how they are used to prevent the implementation of European or national labour law on the protection of temporary workers, for instance in the matter of chain contracts (Kettenverträge). In order to avoid the obligation to conclude an unlimited labour contract, employers tend to force their workers into limited freelance contracts, and sometimes even with longer breaks between the individual contracts. The time between such contracts must be clearly defined for the purposes of labour law. Employers ruthlessly use such contracts to avoid their obligation to provide social protection for workers that are, in reality, in a long-term employment relationship. The law must be used effectively to ensure this moral obligation is followed.

5 12. How can the employment rights of workers operating in a transnational context, including in particular frontier workers, be assured throughout the Community? Do you see a need for more convergent definitions of 'worker' in EU Directives in the interests of ensuring that these workers can exercise their employment rights, regardless of the Member State where they work? Or do you believe that Member States should retain their discretion in this matter? 13. Do you think it is necessary to reinforce administrative co-operation between the relevant authorities to boost their effectiveness in enforcing Community labour law? Do you see a role for social partners in such cooperation? The EFJ is strongly committed to the principle of equal treatment for equal work within the internal market. Therefore, the EFJ believes that employment or better workers rights of the country where work is carried out should be applied to all workers within their territory whether on a permanent, temporary or freelance basis. As far as the EU s treatment of cases which concern crossborder movement is concerned, since the free movement of workers is a fundamental freedom, the definition of worker should be uniformly and broadly interpreted by the ECJ and in secondary legislation (i.e. following the Lawrie Blum case C-66/85. However, this broad definition of worker should not limit members states whishing to adopt more extensive national definitions also to extend to specific worker categories, such as freelances.) We along with other European Industry federations, such as UNI, believe that there is an urgent need for greater investment in labour inspection and control agencies. We consider the 2006 Irish Interprofessional agreement on enforcement of labour standards to be an example of good practice in this area, in which unions have been given the power to control We believe there is a need for a greater cooperation between the relevant authorities in the control of labour standards to fight worker exploitation and undeclared work. If a comprehensive definition of worker were accepted taking into account the national law and practices, it would be necessary to enforce the rights of workers in each member state. In some countries the trade unions are actively involved in such a task and they should be involved as social partners. The penalties for companies breaching labour standards should be increased to provide a real disincentive to bypass existing rules.