IR Notes

The European Commission on 11 November launched a first-phase consultation of the European social partners on how to address the challenges of work-life balance and reduce obstacles to women’s participation in the labour market. After taking stock of the related current EU legal framework, the document points out its shortcomings and goes on to invite the social partners to identify possible measures to improve legislation at European level (see consultation document). The European social partners have until 4 January to present their views on the direction this should take. On 18 November, the Commission also launched a “broad public consultation” on this subject open to all citizens. This consultation is available online until 27 February. The initiative’s aim is “modernising and adapting the current EU legal and policy framework to today’s labour market to allow for parents with children and/or dependent relatives to better balance family and work life”. At the same time, the Commission is targeting another objective: an improved work-life balance will allow better access for women to the labour market and strengthen gender equality. This initiative by the Commission overlaps with the European social partners’ work programme, one of whose priorities is to “agree on joint conclusions promoting better reconciliation of work, private and family life and gender equality to reduce the gender pay gap”. Indeed, it is more ambitious, since the European social partners do not mention any binding provisions, whereas the Commission asks them whether they consider that “improvements should be made to EU legislation”. It even raises the subject of new rights to other forms of leave (paternity leave, leave to care for ill or dependent family members) and also suggests a shift towards a “right” to obtain (and not only a right to request) flexible working arrangements for working parents or carers looking after a close relative. This is quite audacious compared to the texts proposed by the Commission in the past few years, and is interesting insofar as it demonstrates a willingness to signal that the EU is also concerned with improving living and working conditions for its citizens and that it can be the source of social progress. The European social partners and the member states still need to be persuaded to take things forward – and that will not be an easy task!

• Help from the Globalisation Adjustment Fund: The European Commission on 6 November proposed the provision of financial support from the European Globalisation Adjustment Fund in two cases: first, support of 2.6 million euros to Finland, to help 1,200 of the 1,603 workers made redundant in the computer programming sector to find new jobs (see press release), and second, an amount of 442,293 euros to Ireland, to help 108 workers dismissed by PWA International, a company operating in the aircraft maintenance and repair sector, as well as an equal number of NEETs (young people not in employment, education or training) (see press release).

A public contract can impose a minimum wage requirement: In the context of the award of a public contract for postal services in the German town of Landau, companies wishing to take part in the procurement exercise had to undertake to pay a minimum hourly wage of 8.50 euros to the staff providing the services covered by the public contract concerned. This obligation is laid down by regional legislation. The minimum wage must also apply to any subcontractors or agency workers. The company RegioPost, which refused to make a commitment on this point, was excluded from the public contract award procedure. It appealed against this condition, considering it to be an obstacle to the freedom to provide services, on the grounds that such a condition could deter companies from other member states, particularly those with low wage costs, from participating in such a tender procedure. The court characterised the minimum wage requirement as a “special condition relating to the performance of a contract”, concerning “social considerations” in the meaning of article 26 of directive 2004/18 on public contracts. It was therefore in compliance with the directive. Furthermore, the court found that this requirement did not contravene directive 96/71 on the posting of workers in the context of providing services. These two directives “permitted the host member state to lay down, in the context of the award of a public contract, a mandatory rule for minimum protection (…) which requires undertakings established in other Member States to comply with an obligation in respect of a minimum rate of pay for the benefit of their workers posted to the territory of the host Member State in order to perform that public contract. Such a rule is part of the level of protection which must be guaranteed to those workers” (CJEU, 17 November 2015, case C-115/14, RegioPost v. municipality of Landau). The Court of Justice thus appears to have reversed its earlier jurisprudence (CJEU, 18 September 2014, case C-549/13, Bundesdruckerei GmbH), in which it took the view that a similar condition imposing a minimum wage of 8.62 euros was going “beyond what is necessary to ensure that the objective of employee protection is attained”.

• Clarification of the scope of the directive on the transfer of undertakings: The European Court of Justice has delivered a judgement in a case where it was asked to determine whether directive 2001/23, which provides for employment contracts to be maintained if an undertaking is transferred, applied to the following situation: ADIF, a public undertaking responsible for the service of handling intermodal transport units at the Bilbao terminal (Spain), outsourced the management of this service to Algeposa. Algeposa provided that service in ADIF’s facilities, using cranes belonging to the latter. After a few years, ADIF informed Algeposa that it intended to retake charge of the service using its own staff, which forced Algeposa to dismiss the employees assigned to the performance of the service. The question referred was whether ADIF should be obliged to take over the latter employees. In the eyes of the court, there was no doubt: the situation fell within the scope of the directive and Algeposa’s employees should have been taken over (CJEU 26 November 2015, case C- 509/14, ADIF v. Luis Aira Pascual).

• Short-time working open to employers affected by the terror attack crisis: The government has asked the public employment service, Onem, to make clear that businesses affected by the state of emergency in the Brussels region can make use of the “short-time working” provisions available in the event force majeure. “The current threat and the associated consequences, such as the closure of shopping centres, schools, hotels and restaurants and public transport, are currently regarded as force majeure.”

• Proof of blacklist’s existence rests with the employer: The civil chamber of the supreme court has delivered a ruling in a case concerning a former employee of a subcontractor working for Spain’s largest telecommunications group. Having been dismissed by the subcontractor concerned – a dismissal subsequently found to be unfair – the employee applied for several jobs with other subcontractors of the major group but was never hired. He then sued his former employer for an attack on his honour and breach of data confidentiality, claiming that his employer had informed the telecommunications group of the reasons for his dismissal, and that the group had then placed him on a “blacklist” in order to prevent him from finding employment again in the sector. Although the former employee did not provide any evidence of the existence of such a list, the supreme court placed the burden of proof on the employer and granted the former employee’s claims to compensation. The court held that one of the companies that had rejected his application was incapable of justifying its refusal, and that the subcontractor did not specify the content of the data that it admitted having sent the group following the dismissal. The court found that the subcontractor was obliged to reveal the content of the information it had provided to the group.

• HeidelbergCement-Italcementi: The IndustriAll Global Union trade union federation on 16 November organised a meeting of the select committees of the European works councils of both the Italian Italcementi (17,779 employees ) and German HeidelbergCement (44,900 employees) groups “to demand that the companies’ employees are involved and consulted throughout the acquisition process” of Italcementi by HeidelbergCement. According to IndustriAll, agreement was reached with management, which was also represented at the meeting, on a timeline for future joint meetings and a procedure to create a new EWC and negotiate a global framework agreement (see IndustriAll press release).


• Michelin: The select committee of the EWC of the French tyre manufacturer Michelin (65,000 employees) met on 19 November, following the management announcement on 3 November of restructuring affecting 1,600 jobs in Europe (see Michelin press release). The group announced investments and site closures primarily affecting its business with new and retread truck tyres. An extraordinary select committee meeting was therefore held with extended representation, including members of the EWC representing the affected countries. In a statement, a copy of which was obtained by IR Notes, the select committee recalled the terms of the European framework agreement on social responsibility and sustainable development, signed on 26 March 2014, which calls for “responsible and constructive social dialogue” in such situations. “Despite their realism about the situation on the market for new and retread truck tyres with the arrival on the market of Asian competitors”, the members of the select committee “take an adverse view of the planned site closures”. As far as the accompanying social measures are concerned, the select committee pointed out that it was unable to intervene in local negotiations, but called for the forenamed framework agreement to be observed and for a progress update to be provided at each meeting of the committee on the “establishment of negotiated social measures”.


• Ryanair: According to Journal de l’Aviation (in French), the management of the airline Ryanair, at a meeting of its EWC on 25 November, presented “wage agreements” signed with its pilots and some of its cabin crew, covering pay increases over a 5-year period. The agreements appear to have been adopted per pilot base and in some cases confirmed by ballot.

• Goodyear: The global union network of Goodyear met on 2-3 November in Birmingham (United Kingdom), at the initiative of the IndustriAll Global Union federation. Those present adopted a solidarity and support statement backing the British workers whose jobs are threatened by the closure of the Wolverhampton site (300 employees). IndustriAll also sent a letter to management calling for production to be continued (see IndustriAll press release).

Sixth European Working Conditions Survey: Eurofound has published the first findings from its 6th European Working Conditions Survey. An infographic in English highlights certain key indicators. Thus, 58% of employees who took part were satisfied with their working hours at their main source of employment. When paid and unpaid work are added together, women work 64.03 hours per week, compared to 56.01 hours for men. 36% of employees have to work to very short deadlines and 10% state they never have enough time to do their work. Also see the résumé of first findings (in English) and data visualisation tool, in the form of maps, available in five languages (see choice of languages on the website).

• Overview of labour market reforms: Conseil d’orientation de l’emploi (COE), an advisory body on employment issues attached to the French government, has published a report on European labour market reforms. It is based on an in-depth analysis of reforms introduced in ten countries: Austria, Denmark, Germany, Ireland, Italy, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. The forenamed report and country profiles together with an executive summary in French can be downloaded from the COE website. A 12-page executive summary is available in English. The report underscores that “the countries which had corrected structural imbalances in their labour markets before the crisis (…) were less hard hit and recovered more easily”.