IR Notes

One year from now, the European Court of Justice will tackle the question of establishing whether the German system of co-determination (Mitbestimmung) goes against European legislation or not. Under the law on co-determination, companies having more than 2,000 employees in Germany organise elections to allow their workers employed on German soil to choose representatives on the supervisory board. However, in the case of a transnational enterprise, such as the travel operator TUI in this instance, which has 10,000 employees in Germany and 40,000 in other countries of the EU, the workers who are not based in Germany are permitted neither to vote nor to stand as a candidate for the role of employee representative on the supervisory board. As observed by Prof. Rüdiger Krause, “For some time now,” this exclusion “has been considered unsatisfactory” by both employers and the trade unions. Certain arrangements have been devised, for instance at Daimler and Opel, where the unions “proposed the election of a representative for foreign workers”, but this “does not definitively resolve the problem”. Shareholders, opposed to co-determination, have thus brought several legal actions on the basis that the law on co-determination runs counter to the prohibition of discrimination on the grounds of nationality, as provided by article 18 of the Treaty on the Functioning of the EU, and the freedom of movement for workers, protected by article 45 of said treaty. Since 2013, on several occasions, German courts have ruled that co-determination is not at odds with the treaty. However, in a decision dated 16 October 2015, Berlin Higher Regional Court finally referred the question of whether co-determination violates EU law to the European Court of Justice. The future of co-determination and, more widely, of systems for worker participation in management bodies – which could be seen as the epitome of the European social model – is therefore to be played out before the European judges in Luxembourg. This has prompted the mobilisation of the German trade union movement, which is calling on the member states to take action in support of co-determination and encouraging national trade unions to exert pressure on their governments. The Hans Böckler Foundation has published an extremely detailed analysis (in German) of the problem and the decision of the Berlin court, which is also available in English and Swedish. The question of worker representation for those who come from countries other than that in which a company has its head office also arises in France, where recent legislation imposes the appointment of one or two worker directors in large corporations. When two members need to be appointed, the law provides for one to be nominated by the majority trade union and the other by a vote of the European works council, which makes it possible for a non-French person to be chosen. This is a good solution if the latter displays excellent knowledge of the group.

Evaluation of the directive on employee information (“written statement directive”): The Commission is carrying out an evaluation of directive 91/533 concerning an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. The directive entitles employees to receive a written document containing the essential aspects of their employment relationship, such as a description of the work, its duration (if it is temporary), the amount of paid leave, and the working hours. The evaluation also aims to take account of emerging new forms of employment – teleworking, zero hours contracts, collaborative working – and to address the question of harmonising the definition of the term “employee”, as outlined in the consultation document. The consultation questionnaire came out on 26 January and remains open until 20 April 2016 (available in all languages via a drop-down list on the right). It can be completed by all EU citizens, as well as by trade unions, employers’ organisations, staff representative bodies, etc.

• Information on chemicals: The European Chemicals Agency (ECHA), which has responsibility for implementing European legislation on chemicals, has published on its website information concerning “the chemicals we use on a daily basis”. The information is available in three layers of complexity: 1. the simple info card, in English; 2. a “brief profile”, which the agency states will be “most useful” for employers and workers; and 3. “full source data” (see ECHA press release) (for other languages scroll to end of press release). The database lists 14,000 chemicals registered under the REACH regulation, including 168 described as being “of very high concern”, a lower figure than that published by the NGO Chemsec, which catalogues in its SIN List 845 chemicals considered to be of high concern. The European social partners have welcomed the agency’s initiative in a press release (ECEG and IndustriAll).

• Prevention of harassment in the maritime transport sector: The international social partners in the maritime transport sector— the International Chamber of Shipping (ICS) and the International Transport Workers’ Federation (ITF) — have jointly published guidance on eliminating shipboard harassment and bullying. The guidelines set out measures for eliminating and identifying instances of harassment and bullying as well as a complaints procedure. The document calls upon companies to adopt a specific policy statement on this subject that should also include cases of cyber bullying.


• Health and safety in the oil industry: The International Labour Organisation held a tripartite sectoral meeting on “occupational safety and health and skills in the oil and gas industry operating in polar and subarctic climate zones of the northern hemisphere’ from 26-29 January (see ILO press release). The conclusions will be published in the near future. Also see the press release of the IndustriAll Global trade union federation.

• Works councils oppose fiscal optimisation: Already targeted by European and national authorities for their fiscal optimisation practices that deprive governments of resources, multinationals must now face attack from another quarter. In France, the Labour Code provides for companies having more than 50 employees to allocate part of their profits to employees under a financial participation scheme. If they generate profits, they must, after closure of their annual accounts, distribute a profit-sharing bonus to all their employees. The French press has brought attention to two recent initiatives: 1. Represented by its lawyer, the MEP Eva Joly (Greens/EFA), the works council of McDonald’s Ouest Parisien, one of the French subsidiaries of the American fast-food group, has filed a complaint, as reported by the daily newspaper Libération (18 December), against McDonald’s for “organised laundering of tax fraud proceeds”. The staff representatives condemn the practice of channelling the profits generated by their company to another subsidiary in Luxembourg by way of royalty payments. As a result, their company does not show a profit and does not pay its staff a profit-sharing bonus. 2. The works council of WKF, the French subsidiary of the Dutch information services group Wolters Kluwer, secured a victory against the group’s management before Versailles court of appeal, which issued a ruling on 2 February. In the lawsuit WKF was accused of channelling its profits, following an LBO, through the holding company in the Netherlands, where corporate taxes are lower than in France, thus depriving French workers of their profit-sharing bonus. According to the daily newspaper Les Echos (4 February), the court of appeal found that the employer had committed a “‘fraudulent practice'” which reduced the amount of profits serving as the basis for calculation of their profit share”. “This case is anyway only the first in a list that is likely to grow,” comments Les Echos.

• IG Metall sets its pay claim: The executive of the 2.274 million-strong German metalworkers trade union (+120,568 members since 2014, of whom 42% are younger than 28) on 2 February published its wage rise recommendation for the forthcoming negotiation of the next industry-level wage agreement. The trade union aims to obtain a general wage increase of 4.5 to 5% over 12 months for the 3.8 million workers covered by the agreement (see press release, in German). The proposal will be definitively adopted at the end of February following internal consultations. Otherwise, the trade union also wishes to improve coverage of collective bargaining so that more companies come under its jurisdiction.

Unilever: The Anglo-Dutch multinational Unilever (172,000 employees) on 26 January signed a “Joint commitment to prevent workplace sexual harassment” (in English) with the international trade union federations IndustriAll and IUF. The text is of particular interest in several respects: 1. The signatories declare that “sexual harassment is a universal problem”; 2. That it “can cause severe distress and ill health and can lead to the victim giving up her/his job”; 3. That it can take many different forms, which are explicitly indicated in the Commitment such as an “inappropriate remark, joke, insinuation and comment”, an “unwelcome invitation”, or “lascivious look … associated with sexuality”. In other respects, the signatories call for a policy to combat sexual harassment to be drawn up, based on the principles and procedures described in the Commitment, at every workplace where such a document does not already exist. The policy is to be implemented by the local management and the trade unions affiliated to the signatory organisations.

• General Electric: Following a trade union coordination meeting organised by IndustriAll on 29 January, union representatives from seven European countries re-affirmed “their commitment to a unitary and coordinated approach at European level” to oppose “a plan to cut 6, 460 jobs, amounting to a programme to reduce costs” (see IndustriAll press release). The trade unions plan to undertake joint actions. An information and consultation procedure, which Luc Triangle, deputy general secretary of IndustriAll Europe describes as overdue, has begun at “interim representative structure” level: this is the body representing the members of Alstom’s European Works Forum from the Alstom Power business acquired by General Electric. This procedure is scheduled to take three months, while the first meeting of the special negotiating body formed to establish a pan-European works council at General Electric and to cover the Energy activities took place in Frankfurt from 1-3 February. On this occasion the negotiators adopted a motion in support of the employees affected by the announced restructuring.


• Imperial Tobacco: The tobacco manufacturer has announced the closure on 30 June of this year of a production facility owned by its subsidiary Altadis at Logroño in the Rioja region of Spain, which will cause 471 direct job losses. 180 employees are likely to be granted early retirement, while the others will be offered redeployment or a redundancy package (see article from El País, in English). The Spanish trade unions that are members of the European trade union federation EFFAT condemned the fact that the announcement was made public before the workers’ representatives were informed. EFFAT expressed “regret that the European Works Council was not duly informed nor consulted about the closure when they met last December” and has sent a letter to the Imperial Tobacco senior management demanding they respect information and consultation rights (see EFFAT press release, in English). The select committee met on 2 February and “found out that the decision had already been implemented, with the recruitment of 30 temporary agency staff in Poland in the factory to which the Spanish plant’s production is to be transferred,” as Enrico Smaglia, EFFAT Company Policy Officer, pointed out.


• Magna International: The Canadian automotive supplier Magna International (125,000 employees) on 22 January signed an agreement on establishing a European works council with the Austrian trade unions Pro GE and GPA-DJP, and the German metalworkers’ union IG Metall. For now, the EWC has 12 member from six countries. In an article (in German) the Austrian confederation ÖGB stated that more and more decisions taken by Magna International’s head office have a transnational dimension and a direct impact on employees in several countries.

Recommendations for tackling hard work: Future growth sectors in terms of employment are not necessarily linked to the ecological transition, digitisation or the collaborative economy – the reality is grimmer. Thus, between 2000 and 2007, more than half the jobs created were of low quality, characterised by adverse working conditions, precariousness, low wages and a lack of social integration. This work edited by Ursula Holtgrewe, Vassil Kirov and Monique Ramioul explores the configurations and factors that constitute “hard work” at European, national and company level. The book examines the career paths and experiences of workers in the restaurant, cleaning, building, elderly care and waste management sectors. It also contains concrete proposals on improving the quality of work in these sectors.

> Holtgrewe, U.; Kirov, V.; Ramioul, M. “Hard work in new jobs. The quality of work and life in European growth sectors”, Houndmills (Palgrave Macmillan)