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IR Notes 17 – 8 October 2014
www.irshare.eu
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Editorial
The mission of IR
Notes is to provide you with reliable, factual
and impartial information on the issues of labour law and industrial
relations in Europe. The new column below, written by Fernando Vasquez, who
was responsible for questions concerning restructuring, European works
councils, European Companies and the rights to information and
consultation at the European Commission for many years, is intended to
provide a critical analysis of, and give a perspective on, current
developments in European labour relations. Happy reading!
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IR Perspectives by Fernando Vasquez
lawyer, former official of the European Commission and expert member of
the IR Share network
As the new European five-year term gets
under way, with the European Parliament and the European Commission
taking up their duties, huge questions are raised about the
institutions’ ability to respond to the shared aspirations of the
peoples of Europe. Paramount in restoring relations between the EU
and its citizens will be a rebalancing of the political, economic
and social dimensions, and thus a return to the sources of strength
of the European idea – and, beyond that, to economic and social
prosperity. To get there, four areas will be key.
Balance between economic/financial
and social considerations. The imbalance between these two pillars of
the European edifice was masked for decades by the distribution of
the benefits of prosperity. But it emerged suddenly with the
economic crisis. While it would be an exaggeration to say that, in
facing up to the crisis, Europe tried to respond to the challenges
of the 21st century with solutions from the 19th, there is a real
impression among citizens that major social regression is taking
place due, beyond prevailing ideological dogmas, to the weakness of
the social mechanisms within the EU. How can this be put
right?
Reforms of the labour market,
industrial relations and social protection.
These reforms are necessary. Certain
countries have implemented them, sometimes to excess, and others
obstinately reject them. The results obtained in terms of balancing
public finances and of competitiveness are largely determined by
chance, often bearing no direct relation to the reforms undertaken.
In all countries, social inequalities, injustice, poverty and
insecurity are gaining ground. Many citizens – rightly – attribute
this trend to prescriptive European measures. Which radical changes
can the EU make to help to reform our systems in a way that both
respects the fundamental principles of the EU (universal social
protection, safeguarding against discrimination, equal treatment,
etc.) and is economically effective? And to return social dialogue
and collective bargaining to their pivotal role at all
levels?
Growth and
employment. Whatever
European propaganda has to say on
the matter, the schemes to boost employment painfully extracted at
European summits and their billions of euros have not produced any
significant result. Growth is anaemic and unemployment remains
massive. The labour market is becoming dangerously segmented between
different groups: young people, the long-term unemployed, precarious
workers, employees retained by public administrations, etc.. Which
new directions should be introduced in European employment policies
and in the financial resources which are assigned to them?
Headline issues.
As well as the care taken in conceiving
and advancing its policies, the EU has always sent out signals that
are strong, direct, concrete and very close to the genuine
preoccupations of its citizens. What will be done concerning certain
of these social issues, such as the mandatory review of the
directives on European works councils, those on workers’ rights to
information and consultation or non-binding guidelines as regards
company restructuring? Which steps will be taken to make up for the
inadequacies of the framework for the posting of workers or to
encourage acceptable mobility conditions?
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Diary
15-16 October Brussels The
Spanish trade union institute Istas and the European Trade Union
Institute (Etui) are organising a conference
on psychosocial risks.
16 October Luxembourg Employment
and Social Affairs Council of the EU.
20-23 October Strasbourg Plenary
session of the European Parliament. Presentation of the work programme
of the new European Commission and vote by MEPs on the composition of
the college of commissioners.
14 November Paris 31st
colloquium of the “Droit social” labour law journal, on “Labour
law and the quality of working life “.
20-21
November Vienna 4th Congress
of the European Federation of Food, Agriculture and Tourism Trade Unions
(EFFAT).
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IR Notes is a
fortnightly newsletter produced by IR
Share and its network of experts, and is available
in several European languages. It offers Europe-wide monitoring of
employment law, labour relations and employment policy. It is available by
subscription for 15 euros per month ; 150 euros per year (excluding tax),
via the IR Share
website. IR Share is a privately- owned, independent,
apolitical company whose aim is to inform and assist all players involved in
social dialogue within and outside Europe. It has been the correspondent
organisation for France and Luxembourg of the Dublin Foundation since 2009
and for Bulgaria since 2014.
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Lead story
Employment
Commissioner passes her grand hearing before the European Parliament
The commissioner-designate in charge of Employment, Social Affairs, Skills and Labour
Mobility, Marianne Thyssen, came through her hearing
before the Employment and Social Affairs Committee of the European
Parliament, held on 1 October, without difficulty. With her knowledge of the
parliament and the issues, she came across as a credible personality with a belief
in consensus. She outlined the four priorities of the Commission as follows: to
foster the creation of jobs, in particular in SMEs; to improve access to the labour
market for young people, the low-skilled, women, older workers and people with
disabilities; to increase the skills and qualifications of Europeans; to strengthen
social protection, which she described as an “investment in our prosperity”, but
which needed to become more effective and more result-oriented. Although she did not
reveal any legislative proposals, she did announce the need to re-open the
discussions on maternity leave (see Phrase of the Fortnight) and, on the subject of
the posting of workers, she stated that the current task would be to implement the
enforcement directive adopted this year before conducting a review in two years’
time. She made it clear that neither the principle of posting workers nor that of
the free movement of workers was at issue, which earned her warm applause.
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1. European
Union
Social
legislation
- Transparency about non-financial
information: The Council of the EU on 29 September 2014
definitively adopted the directive
concerning the disclosure of non-financial and diversity information by
certain large undertakings and groups. This text will affect around 6,000 major
companies in the EU which will be required each year to publish a non-financial
statement (link to the press
release). The text, which will shortly be published in the OJEU, affects
around 6,000 major companies in the EU. It targets “public interest entities
whose average number of employees during the financial year exceeds 500 on their
balance sheet date” without any stipulation of turnover, contrary to the initial
draft of the European Commission. They will be required each year to publish a
non-financial statement containing information “on the impact of the
undertaking’s activities relating to, as a minimum, environmental, social and
employee matters, including social dialogue, and respect for human rights and
the fight against corruption”. The directive does not envisage any sanctions,
but a company “which does not pursue policies in relation to one or more of
those matters” will have to provide “a clear and reasoned explanation for not
doing so”. It will in some cases be able to withhold certain sensitive
information, but will then be required to submit a duly justified opinion from
its management and supervisory bodies. In other respects, between now and July
2018, the Commission must present a report with a view to extending this
transparency to taxation, whereby each company concerned will be required to
produce a country-by-country report for each Member State and third country
containing information on profits made, taxes paid and public subsidies
received. The Member States have two years to incorporate the new provisions in
their national legislation.
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Social
update
- Maintenance of restrictions when employing
temporary agency workers: The European Trade Union
Confederation (ETUC) on 9 September 2014 published a press release (EN)
concerning a Finnish case brought before the European Court of Justice. As the
ETUC explains, in this case the Court has been asked to decide whether a
collective agreement concluded in the oil industry allowing the use of temporary
agency workers only in very specific cases is in line with the directive. The
issue is whether article 4 of the directive on temporary agency work does or
does not require Member States to review restrictions or prohibitions on the use
of temporary agency workers with a view to removing them. The employers are in
favour of removing the restrictions.
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Sectoral
social dialogue
- Equal opportunities in
telecommunications: The European social partners – the
UNI
Europa European trade union federation and the employers’ organisation
ETNO – on 22 September 2014 adopted a joint declaration on gender
equality. The signatories underscore that diversity in all functions and
at all levels of a company is a guarantee of success. They call on employers and
trade unions to adopt a proactive approach in relation to equal treatment by
intervening in four key areas: 1/ Work-life balance (by taking a positive
attitude to requests for flexible work arrangements for mothers and fathers, and
facilitating the return to work following maternity or paternity leave); 2/
Employment and recruitment (by increasing the presence of women in technical
professions); 3/ Pay and compensation (by eliminating the wage gap on the basis
of statistics and pay audits); 4/ Career development (by facilitating women’s
access to positions of responsibility by means of competence development
programmes, long-term training, career planning, setting up women’s networks
etc.).
- Civil aviation: The social
partners in the civil aviation sector have launched a survey on new forms of
employment and, in particular, the terms of employment and working conditions
for pilots. The survey is being led by Ghent University (IR Share being involved
as a national expert for France) and is based in part on an online survey open
to all pilots in Europe. More than 7,000 responses have already been collected.
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Case law
- The right to organise also applies to the
armed forces: The European Court
of Human Rights on 2 October delivered a judgement in a case centred on
the prohibition of trade unions in the French army (case
Matelly v. France, application No. 10609/10). The Court found there had
been a violation of article 11 (freedom of assembly and association) of the
European Convention on Human Rights. In the opinion of the court, the decision
by the authorities in respect of Mr. Matelly (who was ordered to resign from the
association of which he was a member) amounted to an absolute prohibition on
military personnel joining a trade-union-like occupational group, formed to
defend their occupational and non-pecuniary interests, and that the grounds for
such a decision had been neither relevant nor sufficient. It concluded that,
while the exercise by military personnel of freedom of association could be
subject to legitimate restrictions, a blanket ban on forming or joining a trade
union encroached on the very essence of this freedom, and was as such prohibited
by the Convention (link to the press
release).
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2. Member
states
Belgium
- Register of nanomaterials:
A royal decree dated 27 May 2014 concerning the marketing of
manufactured substances containing nanoparticles has been published in the
Belgian official gazette. As of 1 January 2016, a large number of nanomaterials
will need to be registered with the authorities before they can be marketed.
Preparations containing nanomaterials will require to be registered with effect
from 1 January 2017. Employers who register or use registered nanomaterials must
inform their health and safety committee accordingly (see press
release of the Belgian Federal Public Service).
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Germany
- Equal treatment for online
journalists: With effect from 1 October, journalists
working on online media for newspapers covered by the collective agreement for
the press sector will benefit from the same pay conditions as their colleagues
employed on print editions. Ver.di and the BDZV employers’ organisation had
negotiated this equality of treatment in a collective agreement concluded at the
end of April 2014, applicable to the 14,000 journalists in the sector. From 1
July 2016, all the remaining terms of the collective agreement will apply to all
journalists (see Ver.di
press release, in German).
- Minimum wage in the waste disposal
sector: The ministry of labour on 25 September 2014
decided to make the new minimum wage, which was negotiated by the social
partners, compulsory on all employers in the sector as of 1 October. The social
partners had set the minimum wage level at 8.86 euros per hour compared to 8.68
previously (see Verdi press
release, in German).
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Greece
- Reduction in pensions and civil service
pay are constitutional: The supreme administrative court
has delivered two decisions confirming the cuts made by the government in order
to restore public finances, as requested by the Troika (IMF, ECB, European
Commission). The first ruling concerns the reduction – in the order of 37%
according to ADEDY, the trade union confederation for the public sector – of the
lump sum paid to civil servants who take retirement. The second relates to law
4024/2011, which brought about a 25% cut in civil servants’ pay. Taking
preceding reductions into account, this has resulted in an overall decrease of
nearly 60% in their remuneration. For the Court, these reductions are legitimate
in the light of the country’s financial situation, and no provisions of the
Greek Constitution or the European Convention on Human Rights have been
breached.
- Reform of industrial relations
law: Discussions have taken place between the labour
ministry and the representatives of the Troika (IMF, ECB, European Commission)
on the law on collective dismissals, the law on industrial action and the law on
trade union rights. The status of the discussions is not publicly known but,
according to the press, the Troika is said to wish to make collective dismissals
easier, to legalise the right to conduct lockouts (currently prohibited) and to
limit trade union rights. However, during a tripartite meeting organised by the
International Labour Organisation (ILO) in Geneva with representatives of the
ministry of labour and the Greek social partners, the ILO stressed, on the basis
of a study (see ILO press
release), that the legal frameworks for collective dismissals and trade
union rights are in line with EU legislation and with existing practices. As
regards lockouts, the social partners do not see any reason for its
introduction.
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Hungary
- Protection for pregnant women:
The constitutional court (decision
No. 17/2014) held that article 65.5 of the Labour Code relating to the
ban on dismissing pregnant women was not constitutional. The Labour Code
provides that an employer cannot terminate an employment relationship during
pregnancy or, in the case of women following a treatment linked to medically
assisted conception, during a maximum period of six months after such treatment
has begun (art. 65.3). In both cases, the ban on dismissal applied only if the
female employee had informed the employer that she was pregnant or following a
treatment in advance of the dismissal letter being sent (art. 65.5). The court
found that the obligation to inform the employer before the dismissal was
announced was unconstitutional. Consequently, the new wording of this article no
longer refers to the provision of information “in advance”, but simply to the
obligation to provide information, which could therefore occur even after
notification.
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3.
Companies
European
works councils
- Capio: The EWC of the
Swedish group, which manages healthcare establishments, has conducted a survey
of staff representatives in the group and local managers in order to evaluate
whether information and consultation rights are being respected at local level
and whether they can be improved (see press
release, in English). The questionnaire comprises ten questions, such
as: Do you meet often enough? Do you receive information in good time before the
decisions are taken? What is the quality of the information received? Do you
have the opportunity to influence decisions? … The response rate was 80%, and
the results will be presented at the end-of-year meeting. “We are convinced that
we cannot deliver quality healthcare unless the employees are motivated and
involved,” stresses Kevin Thompson, employee chairman of the European works
council. “That can only happen if the employees are heard and can influence
decisions.”
- Deutsche Bahn: Having last
May opposed the management’s plan to create a shared service company in Romania
to bring together the group’s entire European accounting activities, the
European works council on 4 September announced it had obtained a management
commitment to reach agreement on a package of minimum measures (training,
substitute jobs, early retirement, financial compensation) to benefit the
employees affected by the reorganisation before the plan is implemented in each
of the countries concerned (see EWC press
release).
- Gorenje: The manufacturer
of domestic appliances has become the first Slovenian company to set up a
European works council. The installation agreement was signed in December 2013
and the first meeting was held on 25 September last in Velenje. The EWC has 17
members representing the main countries in which the company has locations
(Austria, Croatia, Czech Republic, Denmark, Germany, Netherlands and Sweden), as
well as an observer on behalf of Serbia. The EWC will meet twice a year (link to
the group’s press
release).
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European
Companies (SE)
- Allianz SE: The German
insurer Allianz has revised its agreement on worker participation in the SE
signed on 20 September 2006. The new
text, concluded on 3 July 2014, takes account of the experience
accumulated in the SE works council’s operation, the proliferation of
cross-border units and the creation of new European companies at subsidiary
level. The new agreement explicitly provides for the SE works council’s
competence over dossiers relating to the transfer of undertakings or operating
units to non-EU countries, as well as a visiting right for members of the select
committee to the transferred units, if the request is justified.
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Restructuring
- Alstom-General Electric:
The IndustriAll European trade union federation organised a meeting of the trade
unions represented in the Alstom and General Electric (GE) groups, three months
after Alstom’s decision to sell its energy division to GE. The trade unions are
demanding that the information and consultation procedures are respected, as
well as calling for commitments concerning the retention of sites and personnel.
IndustriAll warns that “trade unions and workers’ representatives will be
mobilising at all levels to make their voices heard” (see IndustriAll press
release).
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Trade
unions
- Volkswagen: The United
Auto Workers (UAW) trade union has announced that, on 26 September 2014, it
signed a letter of intent with the German trade union IG Metall and the world
group council of Volkswagen (VW) with a view to facilitating the establishment
of the UAW at the VW car plant in Chattanooga (Tennessee). According to the
Reuters news agency, the letter is intended to allow the UAW to become
recognised as the majority union inside VW’s only plant in the USA and thus to
establish employee representation at the site. Following a major campaign by
opponents of the introduction of a trade union (local and State of Tennessee
authorities), the workforce had, in February, voted against the establishment of
the UAW at their plant (see IR
Notes 4). The UAW is therefore preparing for a new vote, which cannot
take place before next February, one year after the first attempt.
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4. Studies
and reports
- Global retirement systems:
The International Labour Organisation (ILO) has published a report on “Social
protection for older persons“, which provides an overview of the
organisation of pension systems, their coverage and benefits, as well as public
expenditures on social security in 178 countries. The document analyses recent
trends, such as the extension of coverage in many middle- and low-income
countries, along with the negative impacts of fiscal consolidation and
adjustment measures in certain higher-income economies. The report notes that
“the achievements of the European social model, which dramatically reduced
poverty and promoted prosperity and social cohesion in the period following the
Second World War, have been eroded by short-term adjustment reforms”. Its report
calls for the expansion of social protection in pursuit of crisis recovery,
inclusive development and social justice.
- Unemployment in the EU:
The unemployment rate stood at 10.1% in August 2014 in the EU, the lowest
recorded level since February 2012. In July the rate was 10.2%. In the euro area
the unemployment rate was 11.5% in August 2014, stable compared with July 2014,
but down from 12% in August 2013 (see Eurostat press
release).
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Phrase of
the fortnight
Maternity
leave
Council
directive 92/85 of 19 October 1992, on the introduction of measures to
encourage improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding provides for female
workers to benefit from “maternity leave of at least 14 continuous weeks, allocated
before and/or after confinement”. A minimum period of leave lasting two weeks must
be taken. However, the directive does not impose salary continuance or payment of
compensation – hence the deadlock when the directive was reviewed between the
Council, which represents the Member States, and the Parliament, with the former
rejecting any suggestion of extending maternity leave to 22 weeks on full pay.
Marianne Thyssen announced that the discussions should be resumed on a “less
ambitious” basis.
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