Abstract
Taking parental protection rights as a clear-cut field of study, this article argues that there are significant protection gaps in the social rights and employment protection of the economically dependent self-employed. Their exclusion from employment protection can be justified as far as the protective purpose is tied to the personal subordination of the employee relationship. However, certain vulnerabilities arise not from personal, but from economic dependency, whereas the changing labour market and the growing area of precarious self-employment must be considered. Comparing the rights of working parents in Slovenia and Austria, we distinguish between employees and economically dependent self-employed persons in this specific area and point to challenges for the wider field of labour and social rights. The purposes of parental protection rights are diverse; they include health protection, guarantee social security and serve equal treatment purposes. Therefore, they represent an ideal field to discuss arguments regarding the inclusion or exclusion of the economically dependent self-employed into different protective frameworks.
Introduction: Why focus on the parental protection of economically dependent persons?
Labour law protection for working parents allows them to take a break from work to devote themselves to their family responsibilities and protects them against dismissal during that time. Maternity protection specifically recognises the fact that potential dismissal poses a risk to the physical and mental well-being of pregnant workers and workers who have recently given birth or are breastfeeding. This includes the risk of encouraging workers to voluntarily terminate their pregnancies, 1 or put their family planning on hold due to an unsecure working environment. But more and more workers are not – or not fully – included in these protective schemes.
As parental protection is granted mainly to workers engaged in the employment relationship based on an employment contract, people working on other legal bases, such as the self-employed, do not enjoy this protection. Even where some entitlements exist, the fear of losing clients might hinder parents from taking (full) advantage of parental leave, as in the case of economically dependent self-employed persons, in whose case the loss of a main client exposes them to risks very similar to those mentioned above.
While self-employment covers a broad spectrum of social and economic situations and cannot be approached in a uniform way, 2 numerous studies show that such workers face challenges and lack protection in different areas, such as labour and social protection, working conditions and collective representation. 3 Their protection has therefore been a concern for individual countries, as well as for the EU, for several years. 4
This article examines the situation of a specific category within self-employment: the economically dependent self-employed (hereinafter, the EDS). This group is particularly vulnerable due to the economic dependency on one (main) client, and therefore requires special protection. There is no clear-cut definition of the EDS. However, drawing from different (but similar) definitions in the literature, 5 the term ‘the EDS’, as used in this article, refers to the self-employed who (1) do not employ other persons 6 and (2) depend on one client for all or most of their income (i.e. being economically dependent on this client). In this respect organisational dependency, as one of the variables chosen by the Eurostat to define the economically dependent self-employed, 7 is not considered to be a defining element, as it indicates bogus self-employment.
A group report led by
There are many contributions within labour law scholarship that address the question of the personal scope of labour law and whether protection should be granted only to employees, or whether other categories of workers, such as the EDS, should be included. 9 For example, Rosioru argues that fundamental (labour) rights should be attached to the notion of risk. Similarly, Fusco suggests rethinking the allocation criteria of labour protection and adopting ‘economic subordination’ as the main criterion. 10 In recent years, the issue of the EDS has become one of the most popular topics in labour law literature. 11 However, the focus to date has not been on their parental protection rights. There is an apparent lack of literature focusing on the importance of parental protection for the self-employed, much less for the EDS. As pointed out by Chieregato, despite the rise in non-standard employment (including self-employment), limited attention has been paid to inequalities in accessing and using work-life-balance (WLB) measures - parental protection rights being an important part of them - across occupational levels or employment contracts. 12
In addition, in the field of social security, most studies take a general approach to the social protection of the self-employed or the EDS, 13 without specific emphasis on parenthood-related benefits. We suggest looking at parental protection of the EDS more closely, as the risk of not being covered by parental benefits, especially by maternity and paternity benefits, is particularly high among the self-employed. 14
We hope to contribute to the debate on the challenges concerning the social and labour law protection of the EDS, for one, by adding an in-depth analysis of this particular field of law to the picture, and further, by stressing the importance of taking an intersectional approach to labour and social protection. Besides their specific socio-economic position, the experiences and opportunities of the EDS are shaped by other factors, such as their gender. As it is still mainly women who engage in unpaid care work in the home, not taking parental protection into consideration means not taking their lived experiences into consideration. In acknowledging the relationship between work and social reproduction, gender offers a lens to more fully appreciate the possibilities of disrupting and reshaping work in ways that ‘deliver not precariousness, but rather arrangements which genuinely enhance the opportunities for workers to engage in decent work.’ 15
Parental protection rights are important measures to enable gender equality in the workplace – and beyond. While much effort has been put into fostering a more equal distribution of unpaid care work between women and men in recent decades, particularly at the European level, their effectiveness is limited as they do not reach into all realms of work to the same extent. The Directive (EU) 2019/1158 on Work-Life Balance for Parents and Carers 16 takes atypical forms of employment into consideration, but the self-employed are still not included in the scope. A large majority of female workers worldwide are not adequately protected in case of maternity, and amongst the groups which are more frequently excluded from protection in law and in practice, are the self-employed. 17 The risk of not being adequately covered by financial parental benefits has also been recognised as being the highest among the self-employed. According to Matsaganis et al., in 2014 in the EU as a whole, on average around 46% of self-employed women were at risk of not being eligible for maternity benefits. 18 Furthermore, the remuneration for maternity leave for the self-employed is often lower than for employees, and in some countries is paid at a flat rate level for those in self-employment, while in the case of employees, it usually reflects the level of the previous income. 19 According to the European Institute for Gender Equality, seven Member States do not offer parental leave to the self-employed, while in other countries, self-employed parents are entitled to parental leave, but there are still differences in the requirements concerning the duration of self-employment and the sector in which self-employed parents work. 20 Further, within the group of working mothers, the ‘fact that dependent self-employed workers do not equally benefit from social protection, including maternity leave payment, poses a challenge to the principle of equity among working women. Indeed, they are discriminated over women in regular dependent employment, given that they often only have access to maternity leave payments at a minimum level.’ 21
In this article, we address this shortcoming and address the following research question: Why and to what extent should the EDS benefit from parental protection?
We suggest a comprehensive approach to parental protection as a whole set of rights, covering social security as well as employment protection rights, such as the right to protection against dismissal. This approach recognises that the actual uptake of leave entitlements depends strongly on the availability of financial support and job protection measures during absence from work.
Therefore, in this article, the term ‘parental protection rights’ covers (1) employment protection rights, including the protection of the employment status while on leave, protection against dismissal, and rights aiming to ensure the health and safety of pregnant workers and workers who have recently given birth. Further, ‘parental protection rights’ include the (2) social security rights that concern parents and their children. In general, the purpose of social security is the protection that society provides in the event of the materialisation of a social risk that results in a loss or a significant reduction of income or an increase in costs through a process of broader or narrower social solidarity. 22 As parenthood is presumed to cause temporary work incapacity (due to childbirth and childcare), it calls for income replacement benefits. Moreover, having a family increases living costs, and cost-compensating benefits are also granted.
An important factor in respect of the scope of those rights is the employment status. Although there are national differences concerning the (partial) inclusion of the (economically dependent) self-employed across the EU, one of the main factors for eligibility is the distinction between the employee and the self-employed. 23
To address this issue, we have analysed and compared the legal status and parental rights of the EDS in two neighbouring European countries, Slovenia and Austria. Comparison of these two countries is relevant for many reasons. Firstly, they both represent developed continental European countries with comparable legal traditions and socio-economic contexts. Regarding labour law, they share the traditional binary system, consisting of employment contracts and civil law contracts. Secondly, because they are neighbouring countries, their comparison is highly relevant from a practical point of view, due to the free movement of workers and issues around social security coordination. Thirdly, their comparison is instructive at a structural level due to the fact that both states have legally recognised the EDS, albeit in different forms and to different extents.
The article is structured as follows. After giving a brief overview of the legal definition of the EDS with reference to international frameworks, the definitions and legal status of the EDS in Austria and Slovenia are analysed and compared. This lays the groundwork for an overview of parental protection rights in both countries, focusing on the difference between employees, the traditional self-employed and the EDS. This analysis is accompanied by a comparison highlighting the advantages and disadvantages of the national frameworks and a discussion on what scope of parental protection should be granted to the economically dependent self-employed. We conclude with a reflection on common problems and possible solutions.
The economically dependent self-employed: definition and challenges
The first question that must be addressed, is about the scope: Who are the EDS, and why do they deserve our attention?
The EDS fall between the concepts of employment and self-employment. They do not fit into the traditional definition of employees, mainly because of a lack of personal dependence, which is still considered to be the main element of the employment relationship, 24 and therefore they do not enjoy the same level of protection as employees. However, they cannot be identified as genuinely (independent) self-employed either, 25 since they receive their income (mainly) from one client or a small number of clients, which makes them economically dependent on them. According to the European Economic and Social Committee, profound economic and social changes affect the nature of self-employment, moving it beyond the traditional notion of independent work that is recognised in the countries of the European Union. 26
The EDS are often referred to as an intermediate category. Formally, they are self-employed and perform services for clients under a contract different to an employment contract. However, they are also economically dependent on a single client for all or most of their income, and therefore, 27 their situation can be very close to the situation of employees. This is particularly true where there is no clear organisational separation between the EDS and the client, and they perform the same tasks as employees of the client.
At this point, a distinction must be made between the EDS and a disguised employment relationship, also known as bogus self-employment. 28 According to the International Labour Organisation (ILO), disguised employment gives ‘an appearance that is different from the underlying reality, with the intention of nullifying or attenuating the protection afforded by law’. 29 In the case of the bogus self-employed, it consists of disguising the nature of the relationship by engaging the worker in a civil, commercial or cooperative contract instead of an employment contract, while directing and supervising the working activity in a manner incompatible with the independent status of self-employment. In this way, the worker is deliberately misclassified as an independent, self-employed person when in reality, he or she is in a subordinate employment relationship. 30 Since the self-employed in the disguised employment relationship should legally be considered as employees, both in Austria and Slovenia, they are not discussed further in this article. Our focus lies on the EDS, who receive most of their income from one client while still having authority over working methods, work content, time and place.
Economically dependent work is often the consequence of an employers’ strategy to reduce costs and to evade labour regulations, with the aim of excluding workers from the protection legally granted to employees. 31 In many cases, economically dependent self-employment is not a voluntary decision, but one forced by external factors such as the outsourcing of production or restructuring of the company with the resulting redundancies. 32 The EDS can be found in many different sectors such as hospitality businesses, catering, media, editing, teaching and training, marketing, telemarketing, advertising, entertainment, administration, accounting and social services, but also in more traditional sectors, such as transport, the building industry and domestic work. 33 Using the definition of the EDS chosen in the context of the 2017 module, Eurostat findings show that the dependent self-employed are mainly present in the construction sector and in the human health and social work activities, followed by professional, scientific and technical activities, transportation and storage, education and information and communication. 34
According to Eurofound, the EDS
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have lower levels of job quality, less autonomy over their work
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and are generally in a more precarious situation with lower levels of income and job security than other groups of self-employed persons.
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The 2017 Labour Force Survey (LFS)
Although the majority of workers in Slovenia as well as in Austria still work in the employment relationship (either standard or non-standard), 42 self-employed persons represent an important part of both labour markets. The share of self-employed people in the total employment market is around 11% in Austria and 12% in Slovenia, while the EU-27 average is around 14%. 43 In 2017, 18.2% of self-employed people in the EU-28 reported having only one client or a dominant client. The percentage of the self-employed who had only one client or one dominant client is higher than EU average in both countries, as 19.7% of the self-employed in Austria and 21% of the self-employed in Slovenia depend on one major client. 44
Legal recognition of the economically dependent self-employed in Slovenia
As its Austrian counterpart, Slovenian labour law mainly protects employees, that is, those persons working on the basis of an employment relationship.
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However, the notion of the economically dependent person was introduced in Slovenia by the Employment Relationship Act 2013 (
According to Article 213 of ZDR-1, an economically dependent person is a self-employed person who, on the basis of a civil law contract, personally, for remuneration, independently, and for a longer period of time, performs work in circumstances of economic dependence and does not employ workers. Therefore, the term ‘economically dependent person’ used in the ZDR-1 is consistent with the definition of the EDS used in this article.
The elements that can be deduced from this definition are the following: self-employment; working on the basis of a civil law contract; the personal, independent, and long-term performance of work; economic dependence; and not employing employees (i.e., solo self-employment).
The term ‘self-employed’ is not defined in ZDR-1, but it is defined by different laws in the field of social security and occupational health and safety. There, the self-employed are defined as persons who independently perform gainful or other permitted activity in the Republic of Slovenia. Economic dependency means that a person obtains at least 80% of his or her annual income from the same contracting entity/client, 47 although the self-employed may also receive a certain share of income (up to 20%) from other clients. However, to be entitled to the limited labour protection, at the end of each year the EDS must notify the client on whom he or she is economically dependent about the conditions under which he or she operates, by providing all evidence and information necessary to assess the existence of economic dependence. These administrative hurdles lead to a low rate of actual uptake.
An EDS is granted limited labour law protection and the following provisions of ZDR-1 apply to the them: (i) the prohibition of discrimination, (ii) the minimum period of notice, (iii) the prohibition of termination of the employment contract on the grounds of unfounded dismissal (including absence from work due to parental leave pursuant to the regulations on parenthood) and (iv) the provisions on liability for damages. 48 In addition, ZDR-1 provides income security to the EDS to some extent, since it states that the remuneration for the contractually agreed work should reflect the nature, scope and quality of the work undertaken, taking into account the collective agreement and the general legal acts that are binding on the client, as well as the obligations to pay taxes and contributions. Although the EDS are not entitled to all employment protection rights as enshrined in ZDR-1 (only those listed above), like all self-employed, they are fully covered by parental insurance. They are therefore entitled to leave associated with parenthood (maternity, paternity, and parental leave), as explained in detail below.
In the Slovenian social security system, all groups of the self-employed have the same legal status and are subject to compulsory insurance in all four existing social insurance schemes (pension and disability insurance, health insurance, unemployment insurance, and parental insurance) and consequently have to pay social security contributions at least from the minimum insurance base.
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Their social security status is therefore comparable to that of employees (working on the basis of an employment contract), and they are in principle entitled to all rights. However, there are still some problematic (
It must be emphasised that although the extension of (limited) labour protection to the EDS in Slovenia can be considered appropriate, most EDS do not enforce this status. Although they meet all the criteria, they often do not inform the client of their economic dependence. Consequently, this means that they do not enjoy (limited) labour protection. As there is no case law regarding the EDS many questions remain unanswered. In its transitional and final provisions, the ZDR-1 states that the Articles on EDS (Articles 213 and 214) will only apply until the entry into force of the Act on Work and Protection of Economically Dependent Persons (Article 223). However, since 2013, no discussion or further steps have been taken to adapt this Act.
Legal recognition of the economically dependent self-employed in Austria
While Slovenian law sets out a clear definition of the EDS, in Austria, there is no such general category. The law recognises economic dependency in an ‘employee-like’ status (
The criteria for employee-likeness have been substantiated by scholarship and case law and include:
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the lack of one's own working resources, materials and employees; personal work performance; dependence on the earnings from the contractual relationship for a living;
Besides the traditional employment and services contract (self-employment), the Austrian system recognises the free-service contract (
There is no mention of this category of workers in the Civil Code, however, over the years, criteria have been developed by the courts to differentiate them from employees. These workers perform their work personally but are not personally dependent according to the law. The lack of personal subordination rules out the possibility of an employment contract.
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Still, employment rights provided for in the Civil Code apply to them analogously as far as they are not based on the person's
Roughly speaking, free service contract workers comprise two groups: typical entrepreneurs who offer their services on the market to different contracting parties, and atypical self-employed workers who do not permanently appear on the market and/or only work for one or a few major clients. 65 Members of the former group are considered to be traditionally self-employed and must insure themselves in accordance with the Commercial Social Security Act. 66 For example, a therapist will enter into free service contracts with her patients/clients. She will own her own practice and set her own schedule, will still most likely be an entrepreneur, but one who engages in (personal) services rather than production.
The latter group are employee-like workers with a free service contract. 67 This is not a specific type of contract, ‘but rather a typological concept’. 68 The criteria are similar to the general definition of employee-likeness, but in addition to the aforementioned criteria, a free service contract is required. 69 In contrast with other self-employed persons, they are included in the General Social Security Act. 70 This distinction is particularly relevant to our research question, as the Maternity Protection Act, which generally grants rights to employed mothers only, extends its protection to employee-like workers with a free service contract by reference to their inclusion into the General Social Security Act. 71
The need for parental protection in the light of economic dependence
In most legal systems, a distinction is made between maternity protection and parental leave, with the former only being granted to mothers. Maternity protection generally aims to improve health and safety protection for pregnant workers and those who have recently given birth. 72 It follows social as well as health protection purposes. At the European level, the Directive on Maternity Protection prescribes 14 weeks of maternity leave, two of which are compulsory. 73 The scope is limited to employees. Measures such as the ban on exposure to dangerous activities and substances clearly have health protection purposes. The protection against termination of employment, on the other hand, reacts primarily not to the physical condition of the mother but her economic vulnerability. These rights are generally limited to employees, as they respond to the risks typically associated with the employment relationship and personal dependence.
In addition, Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity prescribes measures to ensure that female self-employed workers and the female partners of the self-employed may be granted sufficient maternity benefits enabling interruptions in their occupational activity for at least 14 weeks. Article 18 states that ‘the economic and physical vulnerability of pregnant self-employed workers makes it necessary for them to be granted the right to maternity benefits.’ The European Parliament consistently called on the Commission to boost maternity protection for self-employed women, linking the Directive's purpose of equal treatment to the availability of maternity protection. 74 Explicit reference is made not only to their physical, but also to their economic, vulnerability. 75
As the protective purpose of some labour law regulations is not the personal but the economic dependency of workers,
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the (partial) exclusion of the EDS from these areas is questionable. The EDS tend to be economically vulnerable due to their dependency on one major client; this vulnerability becomes particularly apparent during pregnancy.
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It is not only personal instructions that can induce female employees to expose themselves to risks to their pregnancy during work; this might also result from economic constraints that force self-employed women to expose themselves to health risks, for example, through an increased workload and the ‘waiving’ of breaks. The responsibility for health protection rests solely on the worker, who has to weigh it up against her own economic and professional interests. Of course, this responsibility comes with autonomy, which is a key feature of self-employment. However, this argument fails to precisely recognise those constraints that do not lie in the personal but the economic dependency of the self-employed. The fear of losing their one major client increases the pressure for the EDS. From this point of view, also excluding the EDS from health protection measures, such as the ban on exposure to dangerous activities and substances, is highly questionable. For the EDS, the risk of losing their one main client due to pregnancy-related work interruptions
Besides the immediate risks relating to pregnancy and birth, childcare responsibilities also pose social challenges. As a result, parental protection rights in respect of the reconciliation of paid and unpaid work are granted to all working parents, regardless of their gender. 78 At the European level these rights have recently been revisited through the work-life balance Directive. 79 As these rights ensure women's participation in the workforce and promote the equal distribution of care work, they function not only as labour protection rights but also as equal treatment measures. 80 The new Directive grants two months of non-transferable parental leave to each parent to encourage fathers, in particular, to take their share. 81 It further includes ten days of voluntary paternal leave. 82 Reacting to the ‘growing flexibilisation of the labour market’, 83 the work-life balance Directive grants its rights to non-standard workers, such as part-time workers, fixed-term contract workers and temporary agency workers. However, this is not sufficient as ‘an increasing number of workers, such as those on zero-hours contracts, those self-employed or involved in the “platform economy”, as well as domestic workers, trainees and volunteers’ 84 might still be excluded.
While employees have the right to parental leave periods, the self-employed are expected to manage their time independently. This is especially difficult for the EDS. While it might be argued that the self-employed determine their own working hours, it cannot be overlooked that the ‘loss’ of working hours due to childcare responsibilities is not merely a question of rearranging a work schedule. If one has to shoulder the unpaid care work for a family, it is very unlikely that there will be enough hours left in the day to ‘independently’ earn a living.
On the social security of parents, and most importantly an entitlement to benefits, research shows that where maternity/paternity schemes are insurance-based, the self-employed generally are mandatorily insured and therefore eligible. However, they often face
Parental protection in Slovenia and Austria: differences between employees and the EDS
This section provides a comparison of the national legislations in search for a rationale for possible solutions. It approaches the question of what scope of parental labour law and social protection is, and should be, granted to the EDS. After providing a broader overview of parental protection legislation in both countries, the comparison focuses on the most important areas of parental protection: (1) protection against unlawful dismissal, (2) health protection, (3) parenthood-related leave, and (4) benefits and allowances.
Parental protection in Slovenian legislation can be divided into two groups of rights. The first group consists of rights deriving from the employment relationship on the basis of the ZDR-1.
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Their goal is providing employment protection to employees due to, and during, pregnancy and parenthood. Except for the above-mentioned limited labour law protection that is granted to the EDS if they invoke their status, the self-employed are not entitled to these rights. The second group comprises rights derived from the parental insurance and family benefits schemes, both regulated in the Parental Protection and Family Benefits (
Parental protection rights in Austria are regulated in a number of different Acts. Regarding labour protection rights, the Maternity Protection Act (
In respect of social security rights, the Parental Benefit Act (
Protection against unlawful dismissal
Self-employed parents often do not take up (full) leave or even delay family formation due to the fear of losing their main client. 95 This risk is comparable to the fear of losing one's job due to a lack of protection against dismissal. In the early days of maternity protection, that is, during industrialisation, workers often did not take the leave they were entitled to after childbirth, as they would have not been able to return due to a lack of protection against dismissal. 96 The risk of the termination of their main business relationship is higher for the EDS than for other types of self-employed persons who can rely on several clients for their income sources. Therefore, protection against unlawful dismissal is one of the key elements when discussing the scope of parental protection that should be enjoyed by the EDS.
The Slovenian regulation (ZDR-1), which defines the limited scope of labour protection that should be granted to the EDS, includes the prohibition of termination on the grounds of unlawful dismissal. Absence from work due to parental leave is considered such an unlawful reason. As already mentioned, this regulation is not effective in practice because many of the EDS do not enforce their status. Furthermore, the EDS are not entitled to the special protection from dismissal that pregnant women and parents enjoy. This special form of additional protection prohibits an employer from terminating the employment contract with an employee during the period of pregnancy and breastfeeding, as well as during the period of uninterrupted parental leave and for one month after the end of such leave. This protection does not fall within the scope of limited labour law protection that is granted to the EDS. This means that the major client might terminate the contract of service during the pregnancy of an EDS, as long as it is not on the unlawful reason of her being pregnant. Therefore, if an EDS has enforced their status, the contract can only be terminated if there is a valid reason for such termination, e.g., a business reason.
Furthermore, in contrast with the employees, the self-employed are not entitled to the right return to the same job and to benefit from any improvement in working conditions to which they would have been entitled during absence due to parental leave. 97
In Austria, employees who give birth are subject to the Maternity Protection Act (MSchG) and are therefore entitled to 16 weeks of maternity leave. 98 They are protected against dismissal from the beginning of the pregnancy until four months after the end of their maternity or additional parental leave. Other employed parents are entitled to parental leave, during which time they, too, are protected against dismissal. Similar to the Slovenian special protection, in Austria employed parents cannot be dismissed during this period, without good reason. Just like in Slovenia, the EDS are not included into this strong protective frame in general.
In addition, female employee-like freelancers were partially included in the scope of the Maternity Protection Act in 2016. 99 The obligation to notify the employer of the pregnancy applies. 100 Regrettably, the protection against dismissal has not been extended to them. In the case of the termination of their contract in light of knowledge of the pregnancy or up to four months after childbirth, they can challenge the termination on the grounds of the Equal Treatment Act. 101 If necessary, the freelancer must make the reason for termination on the grounds of the pregnancy plausible; she can also accept the termination and claim compensation, 102 possibly in addition to damages due to discrimination according to the Equal Treatment Act. As the initiative lies with the worker and she must make the reason for termination plausible, this form of dismissal protection is weaker than the special protection of the Maternity Protection Act, where a court must consent to the termination beforehand.
Providing the EDS with protection against unlawful dismissal on the grounds of pregnancy and parenthood is necessary to guarantee job security. This is important, as many self-employed indicate that the manner in which they perform their work influences their decision to start a family, mainly because of the lack of job security. 103 It could be assumed that this is particularly true for the EDS. Furthermore, the lack of protection in this area limits the EDS with regard to other parental protection rights, as they must fear losing their client while enjoying parental benefits or leave. In effect, this could influence their decision not to have (more) children.
However, the question of how they can ensure their contractual position remains open. Protection against unlawful dismissal enjoyed by employees does not appear suitable as the legal basis for work differs, therefore, adjustments must be made to ensure that the solution is effective in practice. For example, a contract of service or a free service contract concluded between an EDS and their main client for a fixed period should be prolonged for the period of a parenthood-related leave. In contrast, a contract concluded for an indefinite period should be protected against termination by the client during pregnancy and parenthood-related leave without good reason.
Health protection
Birth-related health protection is one of the most essential aspects of parental protection rights for workers who are pregnant, have recently given birth or are breastfeeding. Therefore, it should be granted to all working mothers or rather parents who give birth, 104 notwithstanding their employment status. Health protection purposes are met by an entitlement to maternity leave and the ban on certain dangerous working activities. Both are granted to employees in Slovenia under the ZDR-1 and in Austria under the MSchG.
In Slovenia, the prohibition against carrying out specific working tasks and working overtime or at night applies only to employed mothers during pregnancy and the breastfeeding period if the risk assessment of such work indicates a risk to her or the child's health. Contrarily, the right to maternity leave, which starts 28 days before giving birth and then lasts for 77 days after giving birth and includes compensation benefits during the leave (100% of the previous income), derives from the parental insurance scheme, which also covers the self-employed. Parents are entitled to parental insurance rights if they are insured on the basis of self-employment, employment or another equivalent status. This means that (besides employed mothers) self-employed mothers, including the EDS, are also entitled to maternity leave and are therefore protected from work-related health risks during these 105 days.
However, regarding the ban on certain dangerous working activities, they are not protected. It applies only to employees, while the self-employed are obliged to take care of their own health and safety at work.
As mentioned above, in Austria, employed mothers, as well as employee-like mothers with a free service contract, 105 are entitled to 16 weeks of maternity leave. 106 The whole period is compulsory; therefore, it is neither subject to the mother's discretion nor that of the employer/client. 107 Self-employed women can report their business as being dormant for the period during which they are receiving maternity benefits.
Similar to Slovenia, in Austria certain potentially health-threatening activities are also banned for pregnant employees as well as employees who have recently given birth or are breastfeeding. While health-threatening activities and materials
Parental and paternity leave
Maternity leave serves not only health protection but also childcare purposes. Regarding the second purpose, additional parental leave for both parents is granted by the law.
In Slovenia, all types of leave (maternity, paternity and parental leave) are regulated in the ZSDP-1, which includes employees as well as the self-employed. In Austria, on the other hand, the Maternity Protection Act regulates parental leave for mothers, while fathers and co-mothers rely on the (much more recent) Paternity Leave Act. In addition to parental leave, fathers and co-mothers have a statutory entitlement to one month of birth-related leave immediately following childbirth (colloquially referred to ‘Ddaddy's month’). 108 They are also protected against dismissal during this period. 109 Parental leave, as well as the Daddy's month, is available to employees only, whereas maternity leave is granted also to employee-like mothers who work on basis of a free service contract. Free service contracting fathers and co-mothers have a birth-related leave opportunity somewhat comparable to the ‘Daddy's month’ on the basis of the Family Time Bonus Act. However, it is not an entitlement, but depends on an agreement between the worker and the contract partner, which can be refused without giving reason.
The exclusion of the self-employed from working time regulations is justified, as the self-employed manage their time independently and might have employees of their own on whom they can rely. For the EDS, on the other hand, the lack of entitlement to parental leave, or more specifically, the protection against dismissal during this period, might result in their inability to make use of their parental benefits, as they cannot afford to put their working relationships on hold due to the fear of losing their main client. The characteristic of parental leave, as a period of time during which one is not held responsible for neglecting one's working duties, particularly in the sense of protection from dismissal, might be best adapted for the EDS in terms of protection from contractual termination during the period in which they receive parental benefits.
Benefits and allowances
The EDS are entitled to maternity as well as childcare benefits in both countries. Legal frameworks which finance cash benefits in the case of maternity, paternity or, more generally, parenthood as an insurance case from contributions or from the state budget can be described as beneficial regarding the support of EDS parents. In countries where these rights arise from employment (and are co-financed by employers), this may mean that the self-employed have no, or limited entitlement.
Accordingly, even though all self-employed persons are covered by parental insurance in Slovenia and thus formally have access to the corresponding benefit, they are typically entitled to limited benefits because they often insure themselves at the minimum insurance base.
110
This means that they are entitled to substantially lower compensation benefits (
Regarding the eligibility for these rights, the conditions applied to the self-employed are equal to the conditions that apply to employees. To be entitled to compensation benefits during maternity (105 days), paternity (30 days) and parental (130 days granted to each parent) leave, no qualifying period is required. The worker (employed or self-employed) has to be insured according to the ZSDP-1 prior to the beginning of the leave. In this case, they are entitled to maternity, paternity or parental leave and granted the compensation benefit during the period of leave. Even if a person is not entitled to leave because they are not insured the day before the first day of their leave, they are entitled to compensation benefit if they have been insured for parental protection for at least 12 months within the last three years. Similar to Austria, while on leave and receiving compensation benefit, their business must be dormant. If parents are not insured (or have not been for at least 12 months within the last three years) and are therefore not entitled to compensation benefit, they are entitled to parental allowance (
In Austria, one must differentiate between maternity benefit (
If a mother is not entitled to maternity benefit, she can receive the parental benefit from childbirth onwards. Parental benefits are granted to all parents with no regard to their employment status, as long as certain earning limits are not exceeded while receiving the allowance. 116
The self-employed face problems in respect of the definition of their earning limits, which often leads to much administrative effort and, in the worst-case scenario, to an obligation to repay the allowance. If the additional earnings limits are not adhered to, a subsequent reclaim is to be expected. As the actual limit calculation for self-employed earnings is quite complicated, particularly the individual earning limit, this often leads to unexpected high reclaims.
117
Persons who earn a (total) income below the marginal earnings threshold (
While all self-employed parents are entitled to either parental allowances or benefits, they face practical problems in both countries.
Conclusion
To ensure adequate enjoyment of parental protection rights for the EDS, their legal recognition is crucial. The main problem in Slovenia is that to obtain EDS status, one has to notify one’s status to the employer and enforce it. This (too) often results in the fact that the self-employed do not enforce this status and are therefore not entitled to limited labour law protection, although
This has also been pointed out, beyond the Austrian case, by the European Economic and Social Committee 120 and Rosioru: 121 While, on one hand, the undeniable advantage of creating intermediate levels of protection for certain professional categories lies in the (limited) social security and labour law rights conferred to members of these intermediate groups, protective rules may be distorted, and persons who traditionally within the scope of labour law can find themselves excluded and/or reclassified into the intermediate categories.
In Austria as well as in Slovenia, the EDS are included in social rights frameworks but widely excluded from labour rights. Although the differences between employment and self-employment regarding their autonomy in structuring their work schedule justify the focus of labour protection rights on employees, these prototypical categories do not reflect the reality of the EDS. Further, social and labour rights cannot be analysed completely separately, as insurance-based entitlements often vary depending on the employment status. Social and labour rights correlate; without social security, people are reluctant to make use of their labour rights and vice versa. This is particularly true in respect of the protection against dismissal, as, for example, the historical development of maternity protection shows, whereas the early leave regulations were not effective due to the risk of losing one's job. 122
As has been argued with regard to specific fields of labour law, such as the entitlement to paid holidays or the right to collective bargaining, the social protection of the economically weaker party is one of the main goals of labour law. 123 The risks which lie in being the weaker party become particularly apparent during pregnancy and parenthood. 124 As women carry the burdens of unpaid care work disproportionally, this is also an equal treatment issue. Therefore, different parental protection rights need to be adjusted to fit diverse working arrangements and ensure protection when needed.
The main challenge remains what scope of labour and social protection should be granted to the EDS. From a social security perspective, they are exposed to similar traditional social risks to dependent workers; 125 this includes parenthood. Consequently, they need the same protection and should be equally covered. Furthermore, social risk is nothing other than the risk of losing one's economic security, as social security is a public mechanism of providing income security when social risks materialise, or of preventing them. This implies that social security should be granted equally to all economically active persons in need of social protection. However, some differences may still occur due to the nature of the circumstances in which the work is performed, which in itself does not justify a difference in the scope of rights but calls for an adapted way of exercising them. In this regard, we agree with authors who suggest that social security systems should be neutral in terms of employment status, but sufficiently specific in implementing the rules with regard to the different forms of work and occupational groups they cover. 126
Since, in the case of the EDS, the main feature of the dependent employment relationship, i.e. personal subordination, does not exist, we can conclude that there is no need for full protection under labour law. Regarding traditional self-employment, the lack of personal subordination translates to the fact that they determine their own working hours and conditions, that they do not need to fear dismissal, and therefore are not in need of entitlement to parental leave and protection from dismissal. While this might be true for the traditional self-employed, it overlooks how people in new forms of self-employment face problems similar to employees.
To start with, deficits regarding decent work should be addressed in all forms of employment relationships.
127
But even further, the need for (some) labour protection for the EDS cannot be disputed, although it is not based on personal but economic dependence. In this regard, we have shown that protection against dismissal, particularly during periods of absence due to parental leave, and health protection during pregnancy and breastfeeding form the minimum standard of parental protection in labour law which should be granted to all workers notwithstanding their employment status. Although they are formally independent in their working decisions, their decisions (also regarding family) are
Coming back to our research question of the scope of parental protection that should be granted to the EDS, we can conclude that some protection is already in place, but it is insufficient and no longer fully reflects the organisation of different forms of work. Social security and (at least a limited scope of) labour protection should be granted equally to all economically active persons, thus also, or nowadays, particularly, to the EDS. As pointed out several times by the Slovenian Constitutional Court, the legislator must respond to the changes occurring in society by adopting appropriate legislation, which is even more true when those changes affect human rights and fundamental freedoms. This is required by the principle of adapting the law to social conditions, which is one of the principles of the rule of law. 128 In this respect, changes are necessary both in the area of labour and social security law, as their purpose is to secure the existence and free development of each individual in the constantly changing social relations of the workplace.
Footnotes
Author's Note
Sara Bagari, Department of Labour Law and Social Security Law, Faculty of Law, University of Ljubljana; contact:
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Österreichischen Akademie der Wissenschaften (grant number Post-DocTrack-Programm / 85075).
