EU: Social partners sign revised parental leave agreement
In June 2009, the EU-level social partners agreed to amend their 1995 accord on parental leave, including increasing the minimum length of leave from three to four months. As with the original agreement, the revised version will be implemented by an EU Directive.
On this page:
The 1995 agreement
Renewed consultations
Purpose and scope
Duration and transferability of parental leave
Application of the right to parental leave
Adoption
Employment rights and discrimination
Returning to work
Implementation
Reactions.
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Key points
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Changes to EU treaties in the early 1990s granted European-level trade union and employers' organisations a role in the formulation and implementation of employment legislation and policy. They were given an entitlement to be consulted on possible legislative action, and the opportunity to reach agreements on the issues concerned, which could take the place of EU legislation drafted by the European Commission. These procedures are now enshrined in arts.138 and 139 of the Treaty establishing the European Community (TEC), which provide that:
- before submitting proposals in the employment/social policy field, the Commission consults the EU-level social partners on the possible direction of EU action;
- if the Commission considers EU action advisable, it consults a second time, on the content of the envisaged proposal;
- at that stage, the social partners may seek to negotiate a European-level agreement on the issue in question, which may substitute for EU legislation; and
- such agreements may be implemented either by the social partners themselves or, at their request, by an EU Directive proposed by the Commission.
One of the first consultation exercises under the new procedures, launched in 1995, related to the reconciliation of work and family life. The cross-industry EU-level social partners - at that time, the European Trade Union Confederation (ETUC), Unice for private sector employers and Ceep for public sector employers - opened negotiations on two of the key issues included in the consultation: parental leave and leave for urgent family reasons. They signed a European framework agreement on these issues in December 1995, the first such EU-level agreement to be reached.
The key provisions of the 1995 agreement are:
All workers with an employment contract or employment relationship must have an individual right to at least three months' parental leave until their child (including adopted children) reaches a given age - to be defined at national level - of up to eight years. This right should, in principle, be non-transferable between parents.
The conditions of access and detailed rules for applying parental leave should be defined at national level, while respecting the European agreement's minimum requirements. Governments and/or the national social partners may:
- decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a "time-credit" system;
- make parental leave entitlement subject to a length-of-service qualifying period of up to one year;
- adjust conditions of access and make detailed rules for parental leave in the case of adoption;
- lay down a notice period to be given by the worker to the employer when exercising the right to parental leave, specifying the beginning and the end of the leave;
- define circumstances in which an employer, following consultation, is allowed to postpone the granting of parental leave for justifiable reasons related to the operation of the undertaking - for example: where work is of a seasonal nature; where a replacement cannot be found within the notice period; where a significant proportion of the workforce applies for parental leave at the same time; or where a specific job is of strategic importance; and
- make special arrangements to meet the operational and organisational requirements of small undertakings.
Workers must be protected against dismissal on the grounds of applying for, or taking, parental leave.
At the end of parental leave, workers have the right to return to the same job or, if this is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship.
Rights acquired or being acquired by the worker when parental leave starts must be maintained until the end of the leave, when they apply again (including any changes arising from law, collective agreements or practice).
The status of the employment contract or employment relationship during parental leave must be defined at national level.
Social security matters in relation to parental leave are to be determined at national level, taking into account the importance of the continuity of entitlements, particularly regarding healthcare.
Workers must be entitled to time off from work on grounds of "force majeure" for urgent family reasons, in cases of sickness or accident making their immediate presence indispensable. The conditions of access and detailed rules should be established at national level, and this may include limiting the time-off entitlement to a certain amount of time per year and/or per case.
The signatory organisations requested that their agreement should be given legal force across the EU by means of a Directive. The European Commission proposed the necessary implementing Directive, which was adopted by the Council of the EU in June 1996 (Directive 96/34/EC). The member states had to implement the Directive by June 1998.
At the time of the adoption of the parental leave agreement and Directive, the UK had opted out of some aspects of EU social policy, and was therefore not covered by their provisions. However, in 1997, it opted in and the Parental Leave Directive was extended to the UK by a separate Directive (97/75/EC), which had to be implemented by December 1999.
Most of the EU member states at the time had statutory parental leave schemes, and implementation of the agreement/Directive did not require fundamental changes. However, a few countries, such as the UK and Ireland, had to introduce statutory arrangements for the first time. This was also true of some of the new member states that joined the EU in 2004 and 2007.
Renewed consultations
In October 2006, the European Commission launched a new round of consultations of the EU-level social partners on improving the reconciliation of work, private and family life. In the second stage of consultations, in May 2007, the Commission proposed a range of actions, including:
- the introduction of entitlements to paternity leave, adoption leave and leave to care for an elderly or sick family member;
- a strengthening of the provisions of the Pregnant Workers Directive (92/85/EEC); and
- a revision of the 1995 parental leave agreement in areas including the duration of leave, flexibility in taking leave and payment during leave.
The Commission encouraged the cross-industry social partners to negotiate an EU-level agreement on its proposals relating to new forms of leave and maternity protection, and to assess their parental leave agreement with a view to reviewing it.
The social partners agreed to evaluate the parental leave agreement, along with other arrangements supporting parents and work-life balance. In March 2008, the partners announced that they would "undertake joint action to better achieve the aims" of the parental leave agreement . In July 2008, they confirmed that this would involve formal negotiations under art.138, starting in September 2008. The talks were not intended to address maternity leave and the Commission therefore proposed a Directive amending the Pregnant Workers Directive in October.
The social partners' negotiations led to a draft deal in March 2009 and the formal adoption of a revised version of the parental leave agreement on 18 June. Since 1995, there have been changes in the composition of the cross-industry social partner group and there are therefore more signatories to the revised agreement. The employer side has been joined by Ueapme, representing small and medium-sized enterprises, while the ETUC delegation now includes representation from the Eurocadres/CEC liaison committee, which represents managerial and professional staff unions. Unice has changed its name to BusinessEurope.
The main changes made by the revised agreement are set out as follows.
Purpose and scope
As before, the agreement's aim is to lay down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents. The revised version adds that this takes into account "the increasing diversity of family structures" (while respecting national law, collective agreements and/or practice).
The agreement still covers all workers, men and women, who have an employment contract or employment relationship. It adds a specific requirement that workers, contracts of employment or employment relationships must not be excluded from the scope and application of the agreement solely because they involve part-time workers, fixed-term contract workers or people with an employment contract or relationship with a temporary work agency.
Duration and transferability of parental leave
The minimum period of parental leave to which all workers are entitled has been increased from three to four months. As before, to promote equal opportunities and equal treatment between men and women, the right to leave should, in principle, be non-transferable. The revised agreement further specifies that at least one month of leave must be non-transferable, with the details to be determined at national level through legislation and/or collective agreements, taking into account existing leave arrangements.
The change to the transferability rules aims to encourage a more equal take-up of leave by both parents. While the right to parental leave is in principle non-transferable, member states are allowed to make it transferable. The social partners argue that experience shows that making at least part of leave non-transferable can act as a positive incentive for take-up by fathers.
Application of the right to parental leave
The revised agreement, like the original accord, states that conditions of access and detailed rules for applying parental leave should be defined at national level (while respecting the European agreement's minimum requirements) and lists a number of areas that may be regulated by governments and/or the national social partners. However, there are a number of changes in this area.
The setting of notice periods to be given by the worker to the employer when exercising the right to parental leave, specifying the beginning and the end of the period of leave, was formerly an issue that "may" be regulated at national level. Now, member states and/or social partners are obliged to establish rules in this area, and to have regard to the interests of both workers and employers in specifying the length of notice periods.
With regard to the areas where regulation remains essentially optional, the revised agreement largely maintains the previous provisions, but states that:
- in deciding whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a "time-credit" system, the needs of both employers and workers should be taken into account; and
- where a certain length of service (up to one year) is required for entitlement to parental leave, the total duration of any successive fixed-term contracts with the same employer should be taken into account in calculating the length of service.
The list of optional areas for regulation no longer refers to rules adjusting parental leave to the specific circumstances of adoption - this issue is now dealt with elsewhere in the agreement. Further, the indicative list of "justifiable" operational reasons that might permit employers to postpone granting parental leave (eg where a replacement cannot be found or numerous workers apply for leave at the same time) has been dropped.
The amended agreement adds a new requirement that the member states and/or social partners should assess the necessity to adjust the conditions for access to, and details of application of, parental leave to the needs of parents of children with a disability or long-term illness.
Adoption
The revised accord states that member states and/or social partners "shall assess the need for additional measures to address the specific needs of adoptive parents". The original agreement stated that they may "adjust conditions of access and detailed rules for applying parental leave to the special circumstances of adoption".
Employment rights and discrimination
The main changes in this area are that:
- in addition being protected against dismissal on the grounds of applying for, or taking, parental leave, workers must now be protected against less favourable treatment on these grounds; and
- a statement is added that all matters regarding income in relation to parental leave (and force majeure leave) are for determination by the member states and/or social partners according to national law, collective agreements and/or practice, taking into account the role of income - among other factors - in the take-up of parental leave.
Returning to work
The amended agreement adds a new provision aimed at promoting better reconciliation of work and family life. Workers, when returning from parental leave, are now entitled to request changes to their working hours and/or patterns for a set period of time. Employers must consider and respond to such requests, taking into account both employers' and workers' needs. The details of the new right are to be determined in accordance with national law, collective agreements and/or practice.
Further, in order to facilitate the return to work following parental leave, the revised agreement encourages workers and employers to maintain contact during parental leave, and to decide together on arrangements for any "appropriate reintegration" measures, taking into account national law, collective agreements and/or practice.
Implementation
The signatories have requested that the revised agreement be implemented by means of a Directive. The European Commission proposed such a Directive to the Council of the EU on 30 July, once it has examined in detail the agreement's provisions. Adoption of the Directive will require a qualified majority vote in the Council. Following adoption by the Council, member states will have two years to implement the Directive but - if necessary "to take account of particular difficulties or implementation by collective agreements"- they may have an additional year to comply.
Reactions
The signatories describe the revised parental leave agreement as a "milestone in the 25-year history of the European social dialogue" as it is the first time that they have agreed to amend an earlier framework accord. The social partners state that the revision improves the 1995 accord, notably by:
- increasing the length of parental leave from three to four months;
- strengthening parental leave as an individual right, by making a part of it fully non-transferable;
- offering workers a right to request flexible working arrangements when returning from leave; and
- calling on the member states and/or social partners to establish notice periods for parental leave.
The social partners argue that the revision strives to recognise increasingly diverse family structures and to promote an equal sharing of family responsibilities between men and women. Further, it respects the diversity of measures taken by the member states in areas such as leave facilities, childcare and flexible working arrangements.
According to a joint press release from the signatory organisations: "The successful conclusion of this agreement illustrates the positive role of the European social dialogue in finding solutions to respond to important challenges facing Europe, also in times of crisis. It takes into account the needs of employers and workers and is fully in line with the objectives of the [EU's] Lisbon [jobs and growth] strategy. It will contribute to a better reconciliation of professional, private and family life and is therefore a positive response to demographic ageing as it should help to increase the labour market participation of Europeans."
Vladimír Špidla, the EU Commissioner for Employment, Social Affairs and Equal Opportunities, commented: "This agreement proves that the European social partnership works and delivers concrete results for workers and companies in Europe." The accord "specifically addresses one of the priority objectives of gender equality and shows a determination to find ways of improving the balance between family and working life, while at the same time taking account of the diversity of national regulatory frameworks, practices and traditions".
European Employment Review 427 (EER 427) contents
