IR Notes

At this point, this is only the “opinion” of the Advocate General, that is to say a position submitted to the judges who will have to issue their ruling in the coming months. However, in such a sensitive case concerning how employers regulate the wearing of the Islamic headscarf at work, the opinion delivered on 31 May raises fears of a flawed solution. The European Court of Justice has been asked to examine two similar cases: the first, referred by the Belgian court of cassation, involved a female employee who wore an Islamic scarf at work and the G4S Secure Solutions private security group (case C-157/15). The question at issue is whether directive 2000/78 of 27 November 2000 should be interpreted as meaning that “the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace”. The other case (C-188/15) was referred by the French court of cassation, which wished to know whether “the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out”. The Advocate General Juliane Kokott has presented her opinion concerning the first case. She refers to the “social sensitivity inherent in this issue” at a time when Europe is “confronted with an arguably unprecedented influx of third-country migrants”. The cases’ sensitivity is beyond doubt, and this is exactly why the two national courts have preferred to refer the matter to the European Court rather than to make their own ruling. However, to link this with the influx of migrants is not necessarily appropriate. She then acknowledges that a customer – “even an important customer” – cannot legitimately demand to be “served only by employees of a particular religion, ethnic origin, colour, sex, age or sexual orientation”. But “any customer may, with all good intentions, demand for his or her own part to be served without discrimination, courteously and to a basic standard of politeness”. Therefore, on the basis of this curious fundamental right of customers, “It is perfectly legitimate for an undertaking to make the meeting of such expectations on the part of its customers a condition of employment for its staff and, therefore, a genuine and determining occupational requirement within the meaning of Article 4(1) of Directive 2000/78”. Consequently, “a ban such as that operated by G4S constitutes a measure that is necessary for the purposes of implementing a company policy of religious and ideological neutrality”. Nevertheless, the Advocate General warns, the policy of neutrality must be proportionate. To determine this, she suggests that several criteria should be considered: 1. the size and conspicuousness of the religious symbol; 2. the nature of the employee’s activity 3. the context in which she must perform her activity. She adds a final criterion, that of “the national identity of the member state concerned”. The use of this concept linked to a quasi-right of customers to be served courteously and politely gives reason to fear a judgement that will lack the requisite legal rigour and will be far removed from the, in our view much more appropriate, case law of the European Court of Human Rights, which would undoubtedly not have accepted G4S’s internal rules.

• Mobility of students, researchers and trainees: Directive 801/2016 of 11 May 2016 on the “conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing”, was published in the OJEU of 21 May (see IR Notes 50).

• Inland navigation: On 7 June, the Council adopted a “general approach” on a draft directive on the recognition of professional qualifications in inland navigation. The proposal sets up a common system of certificates for the entire crew, from apprentices to boatmasters. Holders of such a certificate will be able to practise their profession on inland waterways across Europe (see Council press release).

Adapting labour law to the colla-borative economy: The European Com-mission on 2 June presented a commu-nication entitled “A European agenda for the collaborative economy” which aims to encourage and develop this rapidly growing form of economy “in a responsible manner”. With reference to labour law, the Commission analyses employment relationships in the collaborative economy and compares them to the definition of the term “worker” according to CJEU case law. The Commission explains that “whether an employment relationship exists or not has to be established on the basis of a case-by-case assessment, considering the facts characterising the relationship between the platform and the underlying service provider, and the performance of the related tasks, looking cumulatively in particular at the following three essential criteria: 1. the existence of a subordination link; 2. the nature of work; and 3. the presence of a remuneration”. The member states should on the one hand “assess the adequacy of their national employment rules” for “collaborative business models” and, on the other, “provide guidance on the applicability of their national employment rules in light of labour patterns in the collaborative economy”.

• Action plan to encourage the integration of migrants and attract talents: The European Commission on 7 June presented an action plan (in English) aimed at helping the member states to integrate third-country nationals, as well as a proposal for a directive (in English) to reform the rules applicable to highly-skilled migrants who come to work in the EU. It concerns the review of the European Blue Card scheme (in English), which was launched in 2009 but has never taken off. The aim is to persuade highly-qualified non-EU nationals to come to the EU (only 31% do so at present) in preference over other destinations which compete economically with the EU (see Commission press release). The Commission staff have also published a working document (in English) summarising the economic impact of the refugee crisis.


• Monitoring aircrew medical fitness: The European Cockpit Association (ECA) has placed online a series of documents produced by the European Aviation Safety Agency (EASA) and from its own work on recommendations relating to the monitoring of aircrew medical fitness following the Germanwings crash in March 2015.

Second IndustriAll congress: The IndustriAll European Trade Union federation held its second congress in Madrid from 7 to 9 June. Its president, Michael Vassiliadis (IG BCE), was re-elected. Two former deputy general secretaries remain on the leadership team: Luc Triangle (ACV-CSC Metea) became general secretary with 99.39% of the votes and succeeds Ulrich Eckelmann (IG Metall), who is leaving IndustriAll, as is former deputy general secretary Bart Samyn; Sylvain Lefebvre (FCE-CFDT), who is due to retire in two years, will not be replaced. The decline in trade union membership is in fact affecting the federation’s finances. Two new deputy general secretaries have been appointed: the Spanish trade unionist Luis Angel Colunga (MCA-UGT) and the Belgian Benoît Gérits (FGTB-MWB) (see press release). After a long period of preparation, IndustriAll adopted its Political Resolution 2016-2020 as well as an Action Plan 2016-2020 (press release). Apart from the false note struck, yet again, by the absence of a woman on the secretariat, the congress was judged to have been a resounding success. “The congress was harmonious, without controversy, and demonstrated the unity and cohesion of the trade union movement,” said Christian Weis of the international department of the German IG Metall trade union. “This is surprising given the many tensions at present within the EU.” Interestingly, this is the first time in 15 years that no representative of IG Metall, the most powerful affiliate, has been present on the secretariat. “But this is not through a lack of interest – we are just extremely involved in the other levels,” Christian Weis explains.

• Preventing work-related cancers: Six organisations, including the European Commission, the European Agency for Safety and Health at Work, the European Trade Union Confederation (ETUC) and BusinessEurope, on 25 May signed acovenant for a new “Roadmap on carcinogens” (in English). This scheme aims to raise awareness about the risks of carcinogenic exposure in the workplace and to exchange good practices (see press release of the European Trade Union Institute). Elsewhere, the European Federation of Building and Woodworkers (EFBWW) presented a policy document (also in Italian) to contribute to the “necessary discussion about the revision (…) of the Carcinogens and Mutagens Directive 2004/37”. The document states the EFBWW’s expectations with regard to several substances of high concern.

• Competitiveness pact approved at sectoral level: After the three main confederations had decided in principle to support the competitiveness pact (see press release of the confederation SAK, in English), its terms had still to be accepted in all the sectors in order to allow the commitments made at national level to take effect. The deal is now done. The collective agreements for the vast majority of employees covered by sectoral agreements have accepted the competitiveness pact put forward by the government whose terms include a wage freeze until 2017, a 24-hour extension in annual working time, a 30% cut in holiday bonuses for the public sector (including the health service and local authorities), and an increase in pension and unemployment contributions for employees, while companies’ contributions will go down. The most difficult issues were the higher social security contributions for employees (which will be largely compensated by a reduction in taxes) and the annual 24-hour increase in working hours without pay. On this point, the social partners found a variety of solutions at sectoral level. The deal is a first: the negotiations have in effect resulted in reduced hourly wage rates in real terms for employees, in practice creating a situation of competitive devaluation inside the euro area. Undoubtedly, the success or failure of the policy proposed by the Finnish government will be studied with interest by other European countries.

• An all-in minimum wage: The Federal Labour Court on 25 May 2016 handed down its first-ever ruling on the application of the minimum wage, which was introduced in 2015 (see press release). An employer argued that, to calculate the minimum wage, it was possible to take annual remuneration, including holiday pay and the Christmas bonus, into account. Under this procedure, an employee received remuneration at an hourly rate of 8.03 euros rather than 8.50 euros. However, when both bonuses were included, the average hourly rate for the year did reach the level of the minimum wage. This approach was accepted by the court, which found in the employer’s favour.

• “Jobs Act” under threat from case law: The Italian court of cassation (ruling No. 11868/2016) has just determined that the rules reforming dismissals contained in the Fornero law of 2012 and then amended by the so-called Jobs Act (legislative decree No. 23/2015) do not apply to employees in the public sector. For civil servants, this judgement has the effect of resurrecting the previous version of article 18 of the Workers’ Statute (law No. °300/1970), which recognised employees’ rights, in the case of wrongful dismissal, to be reinstated and to be compensated in full for the working days lost. According to certain legal experts, this ruling risks calling into question the very constitutionality of the Jobs Act, because of the possible breach of equal treatment engendered by a difference in the regimes governing employees of the public and private sectors.

• Minimum wage to go up: Following protracted discussions with the social partners, the government has decided to increase the minimum wage from 350 to 380 euros per month with effect from 1 July 2016, contrary to the judgement of employers, who opposed a second rise in the minimum wage in 2016, and of the International Monetary Fund.

• Towards a minimum wage for “atypical forms of employment”: Following a long consultation by the social partners, the council of ministers on 31 May adopted a bill aimed at introducing a gross minimum wage of 12 zloty (around 2.76 euros) for forms of employment referred to as “atypical” (self-employed workers and contracts based on the performance of a particular task, but excluding piecework contracts). The bill should also make it impossible for employers to pay entrants having less than one year’s employment experience at a level of 80% of the minimum wage. The government hopes that these provisions will become law on 1 January 2017, on condition that parliament adopts them quickly.

• A solution to combat the informal economy: The labour ministry wishes to reduce the underground economy by introducing an “employment cheque” system that would allow employers to pay workers easily for short-term jobs. Under the proposal, employers would just have to purchase “vouchers” at a fixed price from banks with a value calculated on the basis of the average payment for one hour’s work. The workers could then cash in their vouchers at their bank. There is no additional cost for the employer. Workers will pay reduced taxes on their total earnings and will also benefit from social security. The system could be used by around 700,000 workers who are part of the informal economy.

ArcelorMittal: At its meeting on 19 May, the select committee of the EWC of the steel group ArcelorMittal tasked its three working groups with examining the subject of subcontracting. The issue will be studied by the working groups in charge of health and safety at work, social responsibility and employment. After assessing the current situation on the basis of a questionnaire to be completed for each country, all three working groups should be able to present their recommendations by the end of the year. The EWC secretary, Didier Zint (CFDT) stressed the importance of this subject, in particular with regard to industrial accidents. “At least 4 of the 6 fatal accidents recorded in the group since the beginning of the year have involved employees of subcontractors,” he comments. “And nearly 25% of workers at our sites are employed by subcontractors.”
>Also see European works council of Airbus SE comes out against Brexit.

• Rio Tinto: The Executive Committee of the IndustriAll Global Union international trade union federation on 30 May endorsed the decision to “keep up the pressure on Rio Tinto until the mining giant improves its labour practices” at local level. Talks with management “over worldwide labour principles as well as global and regional structures for dialogue and enforcing such norms are ongoing”.