IR Notes

Freedom of expression is a fundamental liberty of the European Union. It is clearly an insult for the deranged minds which struck in France last week. It is as fundamental a right as the freedom of collective bargaining or that of joining a trade union. This no doubt explains the outpouring of emotion by the trade union world. The Spanish trade union confederations CC.OO and UGT published a joint press release, along with two letters of condolence, one (in French) to the French trade unions, the other (in French) to the employees of Charlie Hebdo: “Apart from the barbarity of a terrorist act, you have also suffered a direct attack on one of the fundamental pillars of democracy, the freedom of expression. The exercise of this freedom to criticise, through humour and satire, all forms of religious and political intolerance is what led the enemies of freedom and human rights to attack you”. A similar expression of solidarity is found too in Italy, on the website of the biggest confederation, the CIGL, which also, quite rightly, perceives this as an “attack on the European social model”, as well as on the websites of the other two main confederations, the CISL and UIL. A long black banner in tribute to the victims was carried on the website of Ver.di, the German trade union federation of the service sector, including the media. This solidarity was also expressed by the FGTB and CSC in Belgium, which gave a reminder that “What this is about is our liberties: our understanding of democracy, of freedom of expression, of living together”. The UNI Global Union international trade union federation and its European branch responsible for the media, UNI-MEI, showed their solidarity, with the staff posing outside their office holding “Je suis Charlie” posters, as did UNI Europa, the International Federation of Actors (FIA) and the International Federation of Journalists (IFJ), which on its website listed the messages of solidarity received from other European trade union federations. At the European Trade Union Confederation, the staff present observed a minute’s silence outside the entrance of the international trade union building in Brussels. Of course, this solidarity went far beyond the borders of the EU. The Tunisian General Labour Union also published a message of solidarity – as did trade union organisations which do not cover the media industry, such as IndustriAll Europe and IndustriAll Global Union. IR Share joins with all these organisations which see in these attacks a violation of democratic principles, of the fundamental values of the European Union and of its social model. The members of the IR Notes editorial team express their condolences to the families and friends of the victims of these attacks and their solidarity with the survivors of Charlie Hebdo – may they continue with their work.

• Inland navigation: Directive 2014/112 of 19 December 2014 implementing the European agreement concerning certain aspects of the organisation of working time in inland waterway transport has been published in the Official Journal. The text thus puts into effect the European agreement of 15 February 2012 concluded by the social partners in this sector. The directive lays down minimum requirements which deviate from directive 2003/88 concerning the organisation of working time, for example working time must not exceed 48 hours per week within a 12-month reference period, and working time at night is limited to a maximum of 42 hours per seven day period. The member states must now transpose the directive into national law by 31 December 2016.

• Commission Work Programme 2015: On 16 December the European Commission adopted its work programme for 2015, which includes 23 new initiatives. The Commission wishes to focus on the “big things” and has therefore provided a list of 80 existing proposals for regulations which will be withdrawn or modified. As for the proposal to review the directive concerning the protection of pregnant women, including in particular the right to maternity leave currently set at 16 weeks, the Commission has granted a six-month deferment to allow the Council and the Parliament to reach an unlikely agreement. The Commission will also pursue its REFIT programme, whose aim is to verify the relevance and effectiveness of European legislation. What is envisaged consequently comprises a consolidation and simplification of three directives in the area of worker information and consultation, as well as evaluations of directives relating to occupational health and safety; part-time and fixed-term work; equal treatment in social security and information of employees on the conditions applicable to their contract or employment relationship. The announced initiatives include measures to promote employment, the integration of the long-term unemployed and labour mobility in the EU, as well as a “targeted review” of the posting of workers directive.


• Assistance from the Globalisation Adjustment Fund: The European Commission on 17 December proposed to pay 1 million euros to Germany from the European Globalisation Adjustment Fund to help 476 former workers of Aleo Solar AG and two of its subsidiaries to find new jobs (see press release).

• Port sector: The European social partners in the port sector have invited the European Commission to refrain from intervening in the ongoing European social dialogue. The social partners “are already discussing key issues such as training and qualifications, health and safety as well as gender equality”. They are looking to expand their talks to include innovation, so as to allow the European ports to remain competitive. For this reason, the Commission should avoid making new legislative proposals relating to these different topics (see press release, in English).

• Protection against discrimination and obesity: The European Court of Justice has already had occasion to compare a medical condition to a disability, even if discrimination linked to medical conditions does not constitute discrimination prohibited by EU legislation. It recently returned a judgement (CJEU, 18 December 2014, case C-354/13, Fag og Arbejde) comparing a case of obesity to a disability, which therefore allowed the protection against discrimination to be extended to a Danish employee dismissed because he was obese. The court recalled that there is no “general principle of non-discrimination on grounds of obesity as such” under the legislation of the EU. However, on the basis of its definition of disability contained in a previous judgement (CJEU, 11 April 2013, case C-335/11, point 38), the court underlined that it would run counter to the aim of the anti-discrimination directive to define its scope by reference to the origin of the disability. Thus, in certain cases – reduced mobility, difficulty or discomfort when carrying out professional activity, or the onset of medical conditions – the definition of disability could cover a form of obesity, which would trigger the protection linked to the prohibition of discrimination based on disability. As well as its relevance for the protection against dismissal, this decision paves the way for requests to be made for duties to be reorganised, which the employer will be obliged to implement in order to keep a disabled employee in his job.


• A security officer cannot be dismissed because she is a woman: The European Court of Human Rights on 2 December 2014 delivered a judgement (ECHR, 2 December 2014, No. 61960/08, Emel Boyraz vs Turkey, in English), which held that a woman who had successfully passed an examination to become a security officer could not be dismissed on the pretext that she was not a man and had not completed military service. The Court underlined that the advancement of gender equality was today a major goal in the member states and that very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the European Convention on Human Rights. It found that there was no evidence to suggest that the woman concerned would have been unable to assume responsibilities such as working at nights in rural areas or using firearms and physical force. It concluded that this difference in treatment was not legitimate.

• Amended legislation on the posting of workers: Fresh amendments to posted worker legislation took effect on 1 January 2015, as highlighted by the European Labour Law Network in its latest monthly newsletter (in English). The revisions in particular provide a list of situations in which a worker is not considered to have been posted, as well as stipulating that the full remuneration envisaged by law or a collective agreement should be paid to the posted worker instead of just the minimum wage.

• Agreement on early retirement and unified status of manual and non-manual workers: The social partners at national level on 17 December 2014 reached agreement on finalising the unified status of white and blue-collar workers, which entered force in part in January 2014. The social partners also arrived at an agreement on steps aimed at cushioning the impact of the austerity measures taken by the government. These concern early retirement (an arrangement allowing a top-up of the unemployment benefit paid to employees losing their jobs when aged over 60, or over 56 in the case of physically taxing jobs) and the time credit system (which allows employees to partially reduce their working hours). (See press release of the CSC and FGTB trade union confederations). The idea is to maintain partial and temporary access to these schemes, subject to this being included in collective agreements.


• New measures effective 1 January: The employers’ organisation Federation of Enterprises in Belgium has published details of the new social measures (in Dutch) applicable from 1 January 2015.

• Wage agreements: A collective agreement in the health sector signed in December provides for the minimum hourly rate of pay to be increased from 8 to 9 euros for doctors, from 4.4 to 5 euros for nurses, and from 2.6 to 3 euros for healthcare workers in 2015 (see link). In other respects, the ministry of culture and the trade unions representing Estonian civil servants have signed a deal to raise the salaries of workers in the culture sector by 4.5% in 2015 (see link).

• Minimum wage: The legal minimum wage (smic) went up to 9.61 euros gross per hour on 1 January 2015, in accordance with the decree dated 22 December 2014.


• Simplification of social legislation: The parliament on 18 December 2014 adopted a law on “simplifying corporate life”, which empowers the government to take, by way of executive orders, a range of measures to simplify social legislation. In particular, the government will be able 1) to define the conditions under which an employee who has requested to work fewer than 24 hours per week may ask to increase his/her hours; 2) to regulate the use of the portage salarial scheme (which allows people to carry out commissions for different employers as employees (rather than freelances) through the intermediary of an umbrella agency). The law makes permanent the fixed-term contract for specific commissions (contrat à durée déterminée à objet défini), which underwent a trial period until 26 June 2014. This type of contract allows a professional, such as a consultant or engineer, to be employed for a period of 18 to 36 months in order to carry out a specific commission, subject to this being authorised by a collective agreement.

• Minimum wage enters force: With effect from 1 January 2015, employers will be required to pay their workers a minimum gross hourly wage of 8.50 euros. According to the ministry of labour, nearly 3.7 million people stand to gain immediately (see labour ministry press release , in German). A commission, comprising representatives of both sides of industry and two experts, has been appointed to review the level of the minimum wage with effect from 2017 on the basis of three criteria: to offer a minimum protection to employees, to guarantee the conditions for fair competition and not to jeopardise employment. Those companies covered by a collective agreement have been granted until 2016 to renegotiate their accords. However, they must apply the rate of 8.50 euros per hour by 1 January 2017 at the latest. Among the rare exceptions, the most controversial concerns the long-term unemployed who find another job. Their employer will not have to pay them the minimum wage until after six months. If the aim is to prevent employers from being discouraged from taking on people who have been absent from the employment market for a considerable time, there is a risk that employers might choose to “rotate” the long-term unemployed instead of integrating them permanently in the company. The ministry of labour has set up a website devoted to the minimum wage.

• Social minimum wage: The government on 23 December 2014 adopted the draft law amending the level of the social minimum wage, which will consequently be increased by 0.1% on 1 January 2015, as envisaged by the existing indexation mechanisms and in implementation of the agreement between the government and the trade unions of 28 November 2014.


• Reform of vocational training: The government on 23 December 2014 adopted draft amendments to the 2008 law on vocational training, in particular measures to improve the way in which apprenticeship contracts and training courses are regulated (see Luxembourg cabinet press release).

• Alstom: The European works council of the Alstom group on 19 December 2014 published a press release for the attention of the shareholders’ meeting of the Alstom group, which was due to rule on the sale of Alstom’s energy businesses to the American group General Electric. The EWC expressed its concerns about the group’s solidity once transport had become its core business.


• Lafarge/Holcim: Following the green light given by the European Commission on 15 December 2014 to the planned merger between the two cement groups, the European works councils of both enterprises and the European Federation of Building and Woodworkers (EFBWW) on 19 December 2014 addressed an “open letter to the future owners” in order to ensure protection of the workers affected by the sale of sites, which the two groups have undertaken to implement. It follows on from an earlier joint declaration published in October 2014 and a letter (in English) sent on 10 December 2014 by the IndustriAll and BWI international trade union federations, as well as the EFBWW. The signatories are demanding undertakings from the management boards of the two groups, in the form not of a European agreement, but as “global commitments” to the EWCs and trade union organisations, as well as pledges to incorporate the specific circumstances of individual countries in conjunction with the works councils. The signatories also call for worker representation at European level by creating a European works council.
  
  > New EWC agreements added to online database of the European Trade Union Institute: Staples (2012), Kinnarps (2014), and on IR Share : amendment to the Pernod Ricard agreement (2014).

• Eurotunnel: The Eurotunnel group (3,800 employees) on 5 January announced its conversion to a European company (SE), explaining that it had chosen “a legal framework which is more consistent with its bi-nationality and more in line with the economic and cultural reality of the company” (see press release). The management of the company and the special negotiating body on 1 December 2014 concluded three agreements, namely the definition of the scope of the works council (containing details of the companies included and their headcounts), the allocation of staff representative seats and the composition and operation of the works council. The SE works council will have 12 full members (7 from France and 5 from the UK) and will succeed the European works council established in 1998, “which has proved to be a particularly dynamic body”. The SE works council is responsible for “important matters concerning the SE and exceeding the powers of the decision-making bodies located in a member state”. It is to be consulted on all measures envisaged which “significantly affect employees’ interests”.

• Coca-Cola: The judgement cancelling Coca-Cola’s redundancy plan in Spain has been confirmed by the supreme court (Audiencia nacional), according to an announcement of the CC.OO trade union confederation (see press release), which reiterated that the company must now give the workers back their jobs or pay them the wages they are owed since June 2012.

• Social situation of the European Union: The European Commission has published its latest Quarterly review of EU employment and the social situation (in English), which provides data on the economic and employment situation, together with an analysis of trends in the fiscal burden on labour. The Commission points out that “the return to pre-crisis unemployment levels is less rapid than hoped for”.


• Slight fall in unemployment in the EU: The EU28 unemployment rate was 10% in November 2014, down from 10.1% in October 2014 and from 10.7% in November 2013. In the euro area, the unemployment rate was 11.5% in November 2014, stable compared to October 2014, but down on the November 2013 rate of 11.9% (see Eurostat press release).


• Hourly labour costs: Compared with 2008, hourly labour costs in 2012 had increased by 10.9 % in the EU28 (or at a rate of +2.6% annually) and by 11.8% in the euro area (+2.8 % annually), according to Eurostat (see press release). On the other hand, the annual growth in labour costs weakened in the euro area in the third quarter of 2014 (+1.3%,compared to +1.4% in the preceding quarter) and was stable in the EU28, at +1.4% (see press release).


• Slight rise in employment in the EU: The number of persons employed increased by 0.3% in the EU28 in the third quarter of 2014 compared with the previous quarter and by 0.2% in the euro area, according to Eurostat estimates (see press release).


• How to avoid “social deflation”: In an analysis entitled “A social contract for Europe: priorities and proposals for action” (in French), France Stratégie, a think-tank answering to the French prime minister, aims to reawaken a social Europe which “was put to sleep in the noughties”. In the eyes of the authors, “the risk today is that the rationale of catching up from the top will be abandoned, which would allow every member state to manage its debt reduction and competitiveness problems by means of ‘social deflation’”. The authors recommend: 1) Adding a social vision to the euro; 2) Adapting the common framework to the new age of mobility; 3) Re-establishing the sustainability of the European social model.

In this issue we have highlighted two legal judgements: one by the Court of Justice of the European Union, situated in Luxembourg, whose mission is to ensure compliance with the treaties of the European Union, and the other by the European Court of Human Rights in Strasbourg, which enforces the European Convention on Human Rights, which was concluded in the framework of the Council of Europe (see European Industrial Relations Dictionary, in English), as was the European Social Charter (see European Industrial Relations Dictionary, in English). Unlike the Convention, the European Social Charter relies for its enforcement on multilateral scrutiny between the member states and a committee of experts tasked with returning opinions which might result in the states condemning one of their own. For their part, the citizens of member states of the Convention can apply directly to the European Court of Human Rights (unlike the Court of Justice of the European Union) once they have exhausted all the available domestic legal remedies in their own country. Find out more from the European Industrial Relations Dictionary, in English).