IR Notes

A Danish employee who had reached the age of 60, at which time he became entitled to retire and draw a pension, was made redundant by his employer. The latter did not pay him the severance payment of three months’ salary to which he was entitled on the basis of his seniority. The employer was simply applying Danish law, whereby the severance allowance is not paid if an employee “by the date of his departure (…) was entitled to an old-age pension payable by the employer under a scheme which he had joined before reaching the age of 50”. The employee believed he was the victim of discrimination related to age. The Danish supreme court referred the matter to the Court of Justice of the EU for it to consider whether the provision that deprived the employee of his several allowance should be disapplied because it violated the general principle of EU law that prohibits discrimination on the grounds of age. The Court found that this principle, “as given concrete expression by directive 2000/78, must be interpreted as precluding” this measure (CJEU 19 April 2016, case C-441/14, Dansk Industri v Succession Karsten Eigil Rasmussen). What should national courts do if seised of such an action? First, the principle of interpreting national law in conformity with EU law comes into play: the national judge “must apply methods of interpretation (…) in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive.” This thus “entails the obligation for national courts to change its established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive”. However, the principle of interpreting national law in conformity with EU law has certain limits: it “cannot serve as the basis for an interpretation of national law contra legem”. In other words, if national legislation provides for a measure that is totally at odds with EU law – as is the case with the provision in question – the national court cannot interpret it in a manner consistent with EU law as there is no possible scope for interpretation. What can be done? Certainly, the claimant may bring an action against the member state that has not transposed the directive correctly and claim damages. However, before this stage, the European Court reminds the national courts that, if an interpretation in conformity with EU law proves impossible, they must “disapply the national provision that is at odds with the general principle prohibiting discrimination on ground of age”. This general principle even outweighs the principles of “precedence (…) to the protection of the legitimate expectations of a private person” and “legal certainty” guaranteed by national law and which were invoked by one of the Danish courts, which had decided to apply these principles in order to protect the employer against an action by the employee when it had complied with national law. This ruling illustrates the “super power” of the general principle of non-discrimination which can preclude any conflicting national measure not allowing an interpretation in conformity with EU law.

Adoption of the “4th railway package”: The Council and the European Parliament on 19 April reached an agreement on the three proposals forming the “market pillar” of the fourth railway package, which aims to liberalise the railway sector. The opening of this sector to competition began back in 2001, when international freight services were granted access to the Trans-European network. In 2004, this was extended to all freight services, and then, in 2007, to international commercial passenger services with effect from 2010. This latest package now aims to open up domestic rail markets with effect from 2020 for commercial services and from 2023 for public transport services. In particular it includes a revised proposal for a regulation regulating “the opening of the market for domestic passenger transport services by rail.”. Under this regulation, in the performance of public service contracts, public service operators would be obliged to comply with applicable obligations in the field of social and labour law established by Union law, national law or collective agreements. Furthermore, the text confirms that the terms of directive 2001/23 shall apply to a change of public service operator where such a change constitutes a transfer of undertaking within the meaning of that directive. In other respects, the competent authorities at national level can require public service operators to comply with certain quality and social standards. These criteria must therefore be included in the tender documents and in the public service contracts. Such documents and contracts must, where applicable, also contain information on the rights and obligations relating to the transfer of staff taken on by the previous operator. The European Commission welcomed the agreement (see press release). Also see the press release of the European Parliament and note on the situation in the different member states. The texts have still to be formally adopted by the Council and the Parliament before publication in the OJEU.

• Proposal for a directive on working conditions in the fishing sector: The European Commission on 29 April adopted a proposal for a directive and will now submit to the Council the agreement on working conditions, concluded by the social partners in the fishing sector on 21 May 2012, with a view to its being implemented by way of a directive in accordance with article 155 of the Treaty on the Functioning of the EU. It will therefore have taken nearly four years for the Commission to prepare this text, which aims to ensure decent working conditions for fisherman on board fishing vessels, with minimum requirements in relation to working conditions, accommodation, food, occupational safety and health protection, medical treatment and social security. The agreement implements at EU level ILO convention C188 on working in the fishing industry. More than 100,000 employees are involved (see the Commission press release and the joint press release of the European trade union federation ETF and the employers’ organisation Europêche).

• Measures to support the digitisation of industry: The European Commission on 19 April presented a communication containing measures aimed at promoting the digitisation of industry in the EU (see Commission press release). The IndustriAll European trade union federation welcomed the measures (see press release), which take up some of its recommendations. However, it regrets that the Commission’s communication does not does not address the major social impacts of digitalisation, in particular on employment volume and working conditions.

• Fight against social dumping and social fraud: The Council of Ministers on 22 April approved a “plan to combat social dumping and social fraud”. The government intends to hire 96 staff members at its SIRS service for information and social research (Service d’information et de recherche sociale) to take charge of fighting social fraud. The aim is to increase the number of anti-dumping and false status checks. The law concerning the nature of employment relationships will also be revised (see press release).

• Transposition into national law of the posted workers directive: The Council has passed a draft law aimed at transposing directive 2014/67 of 15 May 2014 on the enforcement of directive 96/71/EC concerning the posting of workers in the framework of the provision of services. According to a government announcement, “The bill aims to prevent, avoid and combat any violation and any circumvention of the applicable rules on this issue”.

• Employment of dock workers: The European Commission has decided to refer Spain to the European Court of Justice for failing to comply with a previous judgement of the Court concerning the freedom of establishment at Spanish ports (CJEU 11 December 2014, case C-576/13). The Court found that the obligations for cargo-handling companies in Spanish ports to register with a ‘pool company’ and to hold shares in that company and to employ as a priority workers provided by that company run counter to article 49 of the Treaty on the Functioning of the European Union (see Commission press release).

• TUC welcomes Labour’s opposition to Brexit: The General Secretary of the British Trades Union Congress (TUC), Frances O’Grady, on 14 April welcomed the position of the Labour Party leader Jeremy Corbyn, who argued that Brexit posed a threat to workers’ rights and jobs. “He is absolutely right,” declared Frances O’Grady, pointing out that “the broader labour movement is united behind the benefits of EU membership for working people”. She commented that Brexit leaders have spent years “dismissing rights like paid leave and maternity protections as ‘red tape’ to be binned” (see press release).

HSBC: The new EWC agreement of the banking group HSBC, signed on 9 October 2015, is available on the European Trade Union Institute website (after complimentary registration). The agreement states that the members have a responsibility to inform the group’s employees of the outcome of EWC meetings and the potential effects of decisions or issues that could affect the European workforce. While this clause has become customary in recent agreements, it is augmented by a further undertaking by management to provide the venue and facilities and to accept the necessary costs associated with carrying out this task (travel and subsistence costs etc.) which it considers reasonable. The EWC is assisted by a representative of the British trade union Unite and by an expert of its choice, whose fees will be paid by the management. In the case of consultation, the agreement provides for the management to discuss the time-scales for consultation with the EWC select committee. These time-scales are to be reasonable and consistent with the importance and/or urgency of the matters concerned.

• Uniper: A European works council has been established at Uniper, a wholly owned subsidiary of the German energy group E.ON SE that brings together the conventional generation and energy trading businesses of the E.ON group. The EWC held its first meeting on 4 April (see press release of the European trade union federation EPSU).
  > Also see the ETUI website for the following agreements: EWC agreement of the Swedish construction group NCC AB (18,500 employees) of 4 May 2015; the agreements on the involvement of employees at the software provider Nemetschek SE and call-centre company Teleperformance (188,000 employees).

• Bosch: The world works council of the German automotive supplier Bosch met for the fourth time from 12 to 14 April and was attended by representatives of employees from 37 countries. The management gave an overview of group strategy (see IndustriAll press release).

• Inditex: During a conference on responsible management of the supply chain in the garment sector organised by the European Commission, and following on from the renewal of a global framework agreement in 2014, the Spanish textile group Inditex and the IndustriAll Global Union federation on 25 April signed an agreement that will allow the appointment of trade union experts in order to contribute to better enforcement of the GFA and effective implementation of labour rights throughout Inditex’s supply chain (see IndustriAll press release).

• Ericsson: The IndustriAll Global Union and UNI Global Union international trade union federations on 29 April convened the first meeting of members of the global trade union network set up at Ericsson (116,000 employees). Some 40 trade unionists from 15 countries were present (see press release).


• Finmeccanica: The IndustriAll Global Union federation on 19 April set up a global trade union network at the Italian group Finmeccanica (47,000 employees). The trade union representatives adopted an action plan, in particular calling for a “proper European works council” to be established and for talks to be held with a view to negotiating a global framework agreement (see press release).

Social partners’ role in preventing trafficking of labour: The Foundation for the Improvement of Living and Working Conditions (Eurofound) has published a report that examines how public authorities regulate private labour market intermediaries (temporary work agencies, employment placement agencies) across the member states. The text in particular studies the activities by the social partners intended to prevent the trafficking of labour. The aim of the report is to contribute to the development of “a best practice guide for public authorities to encourage better monitoring and enforcement of regulations deterring trafficking for the purpose of labour exploitation” (see press release).

• Employment rate in the EU: In 2015, the proportion of people with a job in the population aged 20 to 64 (the “employment rate”) stood at 70.1% in the EU, up on 2014 (69.2%), but still below the peak registered in 2008 (70.3%) (see press release Eurostat). The EU has set itself the goal of reaching an employment rate of 75% by 2020, and four countries (Germany, Estonia, Lithuania and Sweden) have already achieved their national targets. The employment rate of people aged 55 to 64 in the EU has grown steadily in recent years, rising from 38.4% in 2002 to 53.3% in 2015.