IR Notes

In June 2016, the European Commission was due to publish an evaluation report on the implementation of directive 2009/38 relating to European works councils. At last, it is likely to announce its intentions shortly in the framework of the communication on the European pillar of social rights. Thereafter, in principle before the summer, it will publish the evaluation study on whether or not the EWC directive needs to be reviewed. To contribute to opinion-building during this process, the executive committee of the European Confederation of Trade Unions (ETUC) is due to adopt, this Thursday (16 March), a draft position on the review of directive 2009/38. The aim is to list around ten points requiring the provisions of the directive to be strengthened. The ETUC, which points out that the directive has not had the effect of significantly increasing the number of European works councils, which was one of the aims of revising the 1994 directive, considers that a “substantial improvement of the directive” has become essential because of the digitalisation of the economy. This transformation is already under way, and “European works councils must have the means to influence it”. The ETUC paper’s 10 points include the call for all the voluntary agreements concluded under article 13 of the 1994 directive and exempt from the latter’s provisions to be renegotiated. According to the draft position, it will be “necessary” rather than “possible” to take into account the opinion of EWCs in the decision-making process, (art. 1 g), with sanctions if consultation comes too late: from suspension of the management plan to rendering the decision invalid (also see the interview with Ralph-Peter Hayen, opposite). For their part, the European trade union federations have already adopted a joint position that highlights the areas in which they expect to see improvements. They concur with the points raised by the ETUC but question the best approach in order to revise the directive. The federations favour amendments to the current legislation or the adoption of an enforcement directive. The aim is to avoid a complete overhaul of the directive which could lead to a watering down of employees’ rights given the political climate and the employers’ resistance to any improvement. In other respects, in contrast to the initial views of the ETUC, the federations reject the idea of including topics relating to transnational collecting bargaining, board-level employee representation and digitalisation in this process. Between the European employers’ organisation BusinessEurope, which is satisfied with the present text, and the ETUC, which wishes to strengthen the influence of European works councils, the Commission should indicate the path it plans to take soon.

• Reform of port services: Publication of regulation 2017/352 of 15 February 2017 establishing a framework for the provision of port services and common rules on the financial transparency of ports. The document lays down specific provisions for the transfer of staff should the provider of port services change. (See Council press release).

Work on preparing the European pillar of social rights: Eleven member states on 2 March in Paris adopted a contribution to the proposed European pillar of social rights which is soon to be unveiled by the European Commission. The text is quite ambitious and draws in part on the work of the European Parliament in support of a framework directive on decent working conditions in all forms of employment, advocating that “all workers, irrespective of their status”, should be “provided with social protection and ensure the portability of their rights”. The contribution also picks up on some recent innovations introduced in France, such as the right to disconnect or the creation of professional activity accounts.

• Statement following the tripartite social summit: Representatives of the European institutions and the European social partners on 8 March attended the spring social summit, where they discussed the following topics: making work pay as a way to promote employment and social inclusion, new forms of work and the future of industry, and the European pillar of social rights and the role of the social partners (see press releases of the European Commission, and BusinessEurope).


• White paper on the future of the European Union: The European Commission on 1 March presented a white paper on the future of Europe. It presents five scenarios offering a glimpse of how the Union could evolve by 2025, depending on the choices that Europe makes. The white paper marks the beginning of a process for the EU27 to decide on the future of their Union (see press release).

A company has a certain flexibility to ban the wearing of the Islamic headscarf: In two rulings issued on 14 March, the European Court of Justice defines the conditions under which an internal company rule can prohibit employees from wearing of visible signs of their political, philosophical or religious beliefs without constituting direct discrimination on the grounds of religion (CJEU, 14 March 2017, case C-157/15, G4S Secure Solutions). Furthermore, it adds that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive that could justify a discriminatory measure toward the employee (CJEU, 14 March 2017, case C-188/15, Bougnaoui and ADDH). We will return to these judgements in the next issue (see ECJ press release, other available languages).
> For more information: IR Notes 56

European agreement on active ageing: Following nine months of negotiation, the European social partners on 8 March signed a framework agreement on active ageing and an intergenerational approach. The agreement, which featured in the work programme of the European social partners for the 2015-2017 period, is the first interprofessional agreement to be signed for six years. The last one dates back to 2010 and relates to inclusive employment markets. As far as content is concerned, the agreement puts forward measures to encourage the social partners at the different levels of collective bargaining to address the ageing workforce demographic and the transfer of skills (see press releases of the ETUC and BusinessEurope). Compared to previous agreements, the new accord contains a provision to ensure its implementation is followed up. The European social partners will be obliged to intervene jointly with their members at national level to ensure the agreement is implemented should a failure to do so be detected four years after the document’s signing. This is imperative in order to protect the credibility of “voluntary” European agreements in cases where the social partners do not ask for their content to be included in a European directive, since some of these have not been implemented in 40% of member states.
> For more information: Definition of active ageing.

• Risk assessment tool for the textile sector: The European social partners in the textile and clothing sector have launched an online risk assessment tool to help SMEs in the sector to evaluate the risk that their current purchasing practice exposes them to regarding corporate social responsibility. With this tool, companies can self-assess the nature and the magnitude of the risk and, in turn, engage in remediation measures (see IndustriAll Europe press release).

Reform of working time legislation: The chamber of deputies on 23 February definitively adopted the draft law concerning “feasible and manageable work”. The principal result of this vast reform of working time is the annualisation of working time which, by collective agreement, will allow working hours to be varied by 2 hours per day (up to a maximum of 9 hours) and 5 hours per week above or below the weekly working time of 38 hours. The legislation also introduces flexibility with regard to overtime hours and increases to six years the reference period used to calculate compliance with the average working week of 38 hours. This arrangement already exists in the car industry (although in practice only at the Audi plant) but will now be extended to other sectors subject to international competition. The trade unions (see FGTB press release), and civil society (see online petition) are critical of the law; according to the employers, it does not go far enough (see press release of the Federation of Belgian Enterprises – FEB).

• Non-financial and diversity information: Directive 2014/95 relating to non-financial and diversity information was transposed by legislative decree No. 254 of 30 December 2016. The non-economic information required to be made public by companies with more than 500 employees includes in particular the measures taken to ensure gender equality, the implementation of social dialogue, compliance with workers’ rights to be consulted and informed, respect for trade union rights and occupational health and safety.

• Towards the establishment of parental leave: On 24 February, in the form of an amendment to the health insurance law prepared by the ministry of labour and social affairs, the chamber of deputies adopted the provision of paternity leave of one week following the birth of a child. The bill has still to be passed by the senate and signed by the president, Radio Prague points out. Fathers who choose to take this leave will receive 70% of their basic wage during the week concerned, that is to say the same proportion as that granted to mothers on maternity leave. The paternity leave should be taken in the six weeks following the child’s birth.

Ikea: The management of the Swedish furniture group on 29 November 2016 signed a new EWC agreement, following the group’s reorganisation. The agreement provides for employee representatives from countries outside the EU to be invited on an ad hoc or even permanent basis. EWC delegates are granted 10 days off work to carry out tasks necessary to fulfil their role (two days per week for the select committee chairperson and one day per week for the four remaining members of the select committee). The members of work groups or sub-committees set up by the EWC are granted additional days. The EWC is to be consulted in the event of exceptional circumstances on plans which affect co-workers across the group “directly” and “significantly”.

Airbus SE: The Airbus SE works council on 27 February issued its opinion on the Gemini project concerning the absorption of Airbus Group in Airbus SAS as of 1 July 2017. The information and consultation process, launched in October 2016, has necessitated 11 extraordinary sessions of the SE works council on this project, which will impact some 8,000 employees. The opinion is based on an expert report that will be made available to all the national employee representative bodies. Beyond a simple reorganisation, the project concerns: 1/ “a radical change in R&T strategy and management” – which, the SE works council insists, should be retained inside the European Union; 2/ the impact of digitalisation across all functions; 3/ the merger of support functions in Airbus Commercial and Airbus Group. The opinion highlights the guarantees or modifications obtained by the SE works council.

PSA Group: The management of the PSA Group and the trade union federations IndustriAll Global Union and IndustriAll Europe on 7 March signed a new global framework agreement on the group’s social responsibility, first adopted in 2006 and renewed in 2010. The agreement is innovative in several respects (see press release). It is thus the first global framework agreement to create a structure inspired by the recent French law on the duty of vigilance of multinational companies (see IR Notes 70), by putting in place “a plan of due diligence regarding respect for human rights”. Beyond CSR and environmental commitments, the agreement aims to achieve global implementation of the group’s HR policy. The signatories are interested in “developing occupational wellbeing” and “preventing psychosocial risk”. This response forms “part of the efforts to maintain health and safety at the workplace” which “directly contribute to the performance of the company and the collective interest of society […]”, the agreement stresses. The document advocates the pursuit of an “active health policy”, in particular covering “psychosocial risk, the prevention of instances of harassment, of stress, of muscular-skeletal problems, of chemical risks and risks on the road”. The group undertakes to work at “reducing physical, postural, cognitive and mental burdens and to promote wellbeing on the job” as well as teleworking. Another area rarely addressed by framework agreements is that of “work-life balance”, which “contributes to quality of life in the workplace, to stress prevention and the performance of the company”. The agreement in particular promotes the “correct use” of new digital forms of communication, “all the while guaranteeing the right to disconnect”.

• Report on equality between men and women: Coinciding with International Women’s Day, the European Commission on 8 March published its annual report (in English) presenting the current state of play as regards equal treatment together with comparative data for each country (see press release). “Women still earn on average 40% less than men in all EU countries”, and it would take more than a century to close this gap, the report states.