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IR Notes 33 – 3 June 2015
www.irshare.eu
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Who we are?
IR Share is a
provider that shares information, documentation and expertise for HR
managers and employee representatives. The IR Share agency operates by
way of online publications, working groups, training devoted to relevant
topics and a network of experts.
The team
This issue was produced by Catarina Carvalho,
Francisco Gomez Abelleira and Frédéric Turlan. Find out more about
the IR Share
team on our website
Subscribe to IR
Notes Via the IR
Share website or by calling us on:
+33 (0)6 81 41 53 95 or
E-mail: frederic.t@irshare.eu
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Interview
Rachid Brihi, lawyer, Brihi & Koskas associates
You
defended the European works council of Transdev in its
action to be consulted on the issue of SNCM (see Companies).
What do you take away from the decision of the Versailles
court of appeal, which did not accept your
case?
This judgement contains a major
contradiction. The court maintains that the decision taken by the
management of Transdev, which led to its subsidiary SNCM being
placed in receivership, could have “significant economic and social
consequences eventually for the entire group and therefore for the
European employees”. Therefore, the possible winding-up or sale of
this “small” French subsidiary, which represents only 2.5% of the
group’s workforce, could be a subject for consultation with the
European works council.
But
this is not the sense of the
ruling…
Indeed, the court makes this
observation, but at the same time rules out the transnational
element – which derives from the fact that the decision may have an
impact on the European employees – on the grounds that the departure
of SNCM from the group’s scope of consolidation is only hypothetical
at this stage, and that it would be best to await the decision of
the commercial court as regards this subsidiary’s future. But would
it make any sense for the European works council to bring an action
after the commercial court has given its decision? None at all –
which is why it was necessary to intervene beforehand. It is the job
of the urgent applications judge to uphold the useful effect of a
consultation with the EWC! Furthermore, it is clear from reading the
facts and the file that SNCM is almost certainly destined to leave
the consolidated Transdev group by way of a sale. If the court
considers that the disposal of SNCM may have important consequences
for the group’s employees, the EWC’s jurisdiction should have been
recognised.
In
other words, a purely national matter, without any
international connection, can be brought before the European
works council?
This is what the court
of appeal is suggesting. If recital 16 of the directive – which
allows questions concerning a single country, but having important
consequences for the whole group, to be included in the EWC’s
jurisdiction – was integrated in the body of the directive, the
court would perhaps have been less cautious. The fact that this
recital is included in the European works council agreement was
taken into account but, in our opinion, not given sufficient
consideration.
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Editorial
The entire IR Notes team had the pleasure of counting among its readers
the members of the European works council of the Solvay group and
members of the executive committee of the EWC of Thales. You can also
contribute to our development and especially to preserving our independence by
helping us to spread the word about IR Notes in your networks. All
suggestions and words of advice welcome! We would be delighted to hear
from you directly.
Best regards
Frédéric
Turlan
frederic.t@irshare.eu
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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
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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
Changing the
creation of European standards
European Commission First Vice-President Frans Timmermans (photo) has presented a
series of documents intended to “boost transparency in the EU decision-making
process [and] improve the quality of its laws”, including those dealing with
industrial relations and social affairs. 1/ A communication
explains how it plans to meet these objectives, but without “deregulating or
deprioritising certain policy areas or compromising the values that we hold dear”,
such as social protection and fundamental rights. 2/ A working
document outlines the state of play with regard to the Commission’s
Regulatory Fitness and Performance (Refit) programme. It contains a chapter on the
reviews and evaluations of the social directives currently in progress. 3/ A decision
on establishing the “Refit platform” in order to encourage dialogue with the
stakeholders and the member states with a view to improving EU legislation. Details
of how it will operate are stated in a communication.
4/ A decision
to establish a “Regulatory Scrutiny Board”, which will assess the quality of impact
assessment reports that must be prepared by the Commission for every initiative
having “significant economic, environmental or social impacts”. 5/ A proposal
for an interinstitutional agreement, which provides for an impact assessment
to be carried out when the Council or the Parliament “significantly” changes a
Commission proposal as part of the legislative process. The European Trade Union
Confederation (ETUC) sees this as a “clear attempt to put a brake on the right of
elected MEPs and Ministers to take democratic decisions”. It takes the view that
these proposals “will make the legislative procedure longer, costlier and more
bureaucratic” (see press
release). The employers’ organisations, which are very receptive to the
objectives of “Better Regulation” and a reduction of the burden on SMEs, largely
support the Commission’s initiative (see the press releases of BusinessEurope,
FoodDrinkEurope,
CEEMET).
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1. European
Union
Social
update
- Maternity leave: The
European Parliament has adopted a resolution
urging the European Commission to encourage the Council to re-open discussions
with the Parliament in order to revise directive
92/85, which grants maternity leave lasting 16 weeks. The recast has
been deadlocked since 2010, when the Parliament called for leave to last for 20
weeks and to be paid in full at the last salary rate. This position was
untenable for the member states, which have not attempted to find a compromise
since (see press
release).
- Paternity and parental
leave: In the same resolution
(see above), the Parliament voices its support for “paid paternity leave of at
least 10 working days” and a review of the directive on parental leave, which is
“not reaching its target of reconciling private and professional life”.
- Minimum wage in road
transport: The European Commission has launched an
infringement procedure against Germany concerning the application of its minimum
wage legislation to road haulage companies domiciled outside German territory
which are required to pay the minimum wage to their drivers pursuing their
activity in Germany (see IR
Notes 25). In the Commission’s eyes, this measure “restricts the freedom
to provide services and the free movement of goods in a disproportionate manner”
(see press
release).
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2. Member
states
Austria
- Call for tenders: The
government has presented a draft law
concerning the use of tendering in order to combat social dumping in
subcontracting chains (also see the government’s explanations).
In connection with public sector contracts, the public authorities will be able
to choose the best offer rather than the cheapest price.
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France
- Limitation of employee
monitoring: A judgement
of the supreme administrative court (Council of State) bans the use by a private
company of software to uncover offences of a paedo-pornographic nature committed
by employees. The processing of “personal data relating to offences, convictions
and security measures” may only be implemented by public authorities and not by
a private company.
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Germany
Law on single trade union bargaining:
The German Bundestag has definitively adopted the law on unified
wage bargaining (Tarifeinheitsgesetz),
which will enter force on 1 July (see Bundestag press
release). The text aims to avoid the rivalry between unions inside the same
company. If two unions wish to negotiate separate collective agreements (to cover
different categories of personnel for instance), they are obliged to join forces.
Failing this, only the majority union will be permitted to conclude a collective
agreement with management. Opponents of the law claim that it deprives minority
unions of the right to strike because German law only allows a strike to be called
by those unions which are signatories to a collective agreement, and only at the
point when the collective agreement is up for renegotiation.
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Portugal
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Spain
- Collective dismissals in the
public sector: The supreme court (administrative
chamber) has delivered a judgement
concerning collective dismissals which states that, in order to justify
redundancies, it is not sufficient for public bodies to demonstrate that they
are faced by a budgetary deficit or a reduction in their revenues of 5% over the
year or of 7% over the past two years. Public bodies must prove that their
financial situation has become permanently unsound and negative.
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3.
Companies
European
works councils
Transdev: A judgement by the court of
appeal in Versailles confirms the decision handed down in the case brought by
Transdev’s European works council against the group’s management. The EWC criticised
the management for failing to consult it following Transdev’s decision to ask one of
its subsidiaries, the shipping company SNCM, to repay a loan, thus causing SNCM to
be put into receivership (see IR
Notes 21). This is one of the first judicial decisions in Europe to
interpret a European works council agreement which incorporates recital 16 of the
directive. The court underscores that “matters which require the prior consultation
of the European works council must (…) incorporate an international or European
dimension, by their purpose or by their effect. In the absence of any international
element, the consultation of the EWC is not mandatory”. Since the court did not find
any international element in this case, it examined whether Transdev’s decision had
a significant impact on the European workforce. In the eyes of the court, this was
not the case. Therefore, the EWC did not need to be
consulted.
> Also take a look at: A statement
by the European works council of Deutsche Post DHL calling on the management to
respect the “principle of social partnership” / The signing by the management and
EWC of Unicredit of a joint
declaration (in Italian)
on responsible sales which lays down the shared principles which should underpin the
group’s commercial approach.
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European
Companies (SE)
Dassault Systèmes: On the
occasion of its conversion to a European Company (SE), the Dassault Systèmes group
(6,000 employees in the EU) has established a Committee of the European Company
(CEC) by way of an agreement
signed on 10 April. The agreement contains very detailed clauses about the worker
thresholds that justify consultation of the CEC. The select committee may play the
role of “a forum for information and discussion on the topics upon which the CEC is
consulted and act as a working group for preparing consultation”. It can also be
consulted directly on certain plans, such as a complete or partial shut-down of
activities “affecting no more than two countries and no more than 100 employees in
total distributed across said two countries”. The SE works council has at its
disposal an allowance of 3,250 euros per full member per year and an annual budget
for expert services of 20,000 euros, as well as a dedicated community accessible via
the group’s collaborative platform.
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Transnational negotiations
- Engie: The management and
European trade union federations represented in the French energy group
(formerly GDF Suez) will open negotiations on the guarantees to employees in
connection with the current restructuring.
- Telenor: The management of
Telenor Group (33,000 employees) and the UNI Global Union international trade
union federation have renewed their international framework agreement signed in
2013 (see press
release).
- Grupo Caliente: The UNI
Gaming Global Union international trade union federation and the Mexican Grupo
Caliente group have signed an international framework agreement (see press
release).
>
Also take a look at: Globlal
agreement of 29 May 2015 o, the Solvay Global Performance Sharing Plan
(2015-2016) (see press
release).
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4. Studies
and reports
The “REFIT” programme: A study
(in French) (EN)
produced by Eric Van den Abeele for the European Trade Union Institute offers a
highly topical assessment (see Lead Story) “of the EU’s process of simplification
and qualitative improvement of the ‘acquis’, a process originally known as ‘Better
Law-making’, subsequently as ‘Smart regulation’ and, in its latest incarnation, as
‘Regulatory Fitness and Performance (REFIT)’”. Also see the Policy
Brief (in English) by Isabelle Schömann on this subject.
- Mobility of Croatian
workers: The European Commission has published a report
on the appraisal of Croatian worker mobility inside the EU since Croatia joined
the Union in 2013 (see press
releaseENESDE).
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