IR Notes

Last month the European Court of Justice delivered a judgement (the Rabal Cañas case) in which it found that Spanish legislation, which grants protection against collective redundancies when a certain number of jobs is under threat in an “undertaking” (see press release), is contrary to EU law, whereas, according to the Court, directive 98/59 relating to collective redundancies requires account to be taken of the “establishment” at which the redundancies have occurred and not the “undertaking” (see IR Notes 32). In Spain, the Superior Court of Justice of the Basque Country has just applied this jurisprudence. The case concerns a company with more than 3,000 employees which decided to make 12 of the 77 employees at one establishment redundant. Under Spanish law, this does not constitute a collective redundancy because, given the workforce size, the minimum number of people affected by redundancy would have had to be 30. However, in accordance with the Rabal Cañas judgement, the Court concerned itself only with the establishment level and found this to be a collective redundancy coming under the area covered by the directive. It ruled that the procedure for worker consultation had not been followed and declared the redundancies invalid. The company is required to reinstate those made redundant and pay the salaries due from the date of redundancy to the date of reinstatement. “This is, to my knowledge, the first judicial decision in Spain to apply the Rabal Cañas jurisprudence,” comments Francisco Gomez Abelleira, professor of law at Carlos III University of Madrid . “Very probably, other decisions in the same tenor will follow.”

• European social policy: On 9 June, the European Commission held an orientation debate in order to discuss how EU policy “can best address social and employment challenges in Europe” (see Commission press release).


• Equality between men and women: The European Parliament on 9 June adopted a resolution on the EU strategy for equality between women and men post 2015, which is intended to follow on from the strategy for equality between women and men 2010-2015 (see press release). The Parliament notes that “there has been a slowdown in political action and reform for gender equality during the last decade at EU level”. The resolution rules out direct legislative intervention, favouring a persuasive approach and the exchange of good practices.

• Fixed-term contracts :The Commission has referred Estonia to the European Court of Justice for the abusive use of fixed-term contracts in the academic sector. Legislation limits the term of these successive contracts to five years, but if a period of two months is observed between each contract (the duration of the summer university recess), the limit does not apply. People can therefore remain on a temporary contract for their entire career (see press release).

• French “Small Business Act”: The government is putting forward a series of measures to encourage employment in small, medium-sized and micro enterprises (see press release). It proposes 1/ To allow fixed-term contracts to be renewed twice, instead of once as at present, within an 18- month period; 2/ To control the amount of compensation for unjustified dismissal set by the labour courts; 3/ To pay a grant to companies employing staff for the first time of 4,000 euros over two years; 4/ To neutralise the threshold effects which trigger the payment of additional social security or fiscal costs when the workforce rises above 11, 20 or 50 employees.

Facebook user dismissed: The Court of Cassation, in a judgement of 27 May (in Italian), confirmed the dismissal of an employee who had used Facebook during his working hours. The personnel manager had created a false profile to converse with the employee during his working hours, while using geolocation to check that it really was that employee. The Court considered that this check was justified because the employer’s aim was to make sure that the company was operating smoothly and that safety rules were being observed. In fact, the employee was working on a press, which he was leaving to reply. The Court considered that the creation of a false profile and the conversation request to the employee did not breach the principle of good faith. The same applies to the geolocation, since the employee agreed to its use when he subscribed to Facebook.

• Reform of the state’s workplace relations structures: A major reform of the workplace relations structures (Workplace Relations Act 2015) will be fully implemented on 1 October of this year (see explanatory note). The law amalgamates five bodies or workplace relations structures which deal with labour disputes in two new instances: the Workplace Relations Commission (first instance) and the labour court (court of appeal). An online system has been set up for filing compliants (e-Complaint Facility) based on a single website which incorporates a database of the decisions handed down.

• Right of association: The constitutional court has returned a decision concerning the right of association following an action brought by the OPZZ trade union confederation. It has judged that the law on trade unions violates the Constitution by limiting the right to create and to belong to trade unions to employees holding an employment contract. The decision may have major repercussions, such as a revision of the legislation in order to allow self-employed workers or those hired on the basis of a civil law contract to benefit fully from the right of association.

• Relative stability of trade union membership: According to an official report on trade union membership, the number of trade union members fell slightly in 2014 (down 0.6%), with 6.4 million employees being members of a trade union. The membership rate declined from 25.6% to 25% between 2013 and 2014 as a result of the growth in the number of people in employment. This is the lowest rate since 1995.

Veolia: The French Veolia group (179,000 employees) has signed two agreements with the members of its European group council (EGC). The first provides for the representatives of employees in the transport division to be invited to EGC meetings until this sector has definitively left the consolidated group. The second revises the agreement on the EGC (in French) whose last version dates from October 2010. The EGC secretary, Hervé Deroubaix (CFDT), expressed satisfaction that “the threshold for having a representative has been lowered from 500 to 300 employees, which allows almost all the countries in which the group is established to be covered”. The agreement: 1/ establishes a link between the EGC and the national level by bolstering the “forums for social dialogue”, which bring together company management, the members of the EGC representing the country and other employee representatives in all countries where there is no equivalent body; 2/ authorises the EGC to “negotiate certain agreements in principle, commitment charters or joint resolutions”; 3/ provides for variable information and consultation processes according to the number of employees affected by the management’s plans.

• Reno de Medici: A European works council agreement was signed on 26 March between the management of the Italian paper and cartonboard manufacturer Reno de Medici (RDM) and a special negotiating body. The EWC is made up of 13 members and a trade union coordinator designated by the IndustriAll European trade union federation.
  
  > Also of interest: The website of the European Trade Union Institute (Etui) has published the agreement of the Irish food and dairy group Kerry (28,000 employees), which was revised on 10 December 2014. The text contains a very comprehensive clause on the impact of a change in the scope of consolidation as a result of acquisition. UNI Europa has announced the signing of a European works council agreement at Teleperformance, a specialist provider of outsourced customer services.

• ProSiebenSat.1 Media SE: The German audiovisual group ProSieben (4,118 employees) has concluded an agreement on the involvement of employees on the occasion of its conversion to a European Company (SE). The agreement does not provide for employee participation on the supervisory board, but does set up an SE works council which will meet twice a year or in the event of exceptional circumstances, if a proposal affects at least 5% of the group’s workforce situated in at least two member states.

Société générale: The French bank Société générale (148,000 employees) and UNI Global Union on 3 June signed a global agreement on human rights and the freedom of association (see press releases of Société générale and UNI Finance) which will have a significant impact in Central and North Africa, where the bank is growing rapidly.

> Also of interest: The European agreement on diversity and the integration of older workers of the institutional food service group Sodexo (419,000 employees), which encourages entities with more than 300 employees to adopt a plan of action in support of retaining older workers.

Restructuring: The French association Astrees has published the results of two European projects funded by the European Commission. The first deals with the impact of restructuring on groups of vulnerable employees, in particular young people and migrants (synthesis report in English and in Frençh). The second assesses the legal and regulatory framework as regards the management and anticipation of restructuring in 11 European countries (national reports in English) Belgium ; Bulgaria ; France ; Germany ; Netherlands ; Portugal ; Spain ; Slovenia ; Sweden ; Czech Republic ; United Kingdom.

• Slow feminisation of the trade unions: A survey by the European Trade Union Confederation puts the rate of female trade union membership at 43.8% in 2014, with wide disparities between countries. The proportion of women in decision-making positions within trade unions is only 14.5%.


• Forced labour in the EU: The European agency responsible for overseeing the correct application of the Charter of Fundamental Rights of the EU has issued a report which analyses the different forms of severe labour exploitation of workers from EU member and non-member countries. The perpetrators run little risk of prosecution or of having to compensate their victims.