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IR Notes 81 – 13 September 2017
www.irshare.eu
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Who we are?
IR
Share is a provider that shares information,
documentation and expertise for HR managers and employee
representatives. The IR Share agency operates by way of online
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network of experts.
The team
This issue was produced by Frédéric Turlan. Find out more
about the IR
Share team on our website
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Notes Via the IR
Share website or by calling us on: +33 (0)6 81 41 53 95 or
E-mail: frederic.t@irshare.eu
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Interview
Hermann Soggeberg, Chairman of Unilever’s European works council
The Unilever group
has announced a reorganisation in order to increase its
margins. During the summer you published a press release
calling for solidarity from European employees. What can
a European
works council such as
yours do? As a general rule, if one refers to
European legislation, the European works council responds to
events announced by the management. It has a right of
information and consultation. It issues its opinion while the
national information and consultation procedures or negotiations
are taking place in parallel. We wished to go further and be
more proactive. Consequently, when we were consulted on the
“Unilever Sustainable Living Plan”, whose aim is for Unilever to
grow its business while at the same time reducing its
environmental footprint and increasing its positive social
impact, the EWC members identified shortcomings in this strategy
and sought to go further. We therefore adopted our own programme
(the Barcelona
Agenda) in 2010, in which we
defined subjects for discussion with management in order to
guarantee sustainable employment. We consequently updated
our agreement
on minimum standards in the event of restructuring, and adopted texts on gender equality
and health and safety at work, and also worked on the issue of
continuing professional development in order to safeguard jobs
by increasing qualifications. But since February 2017, when
Unilever was the subject of a friendly takeover bid from the
American food group Kraft Heinz, all this work has taken a back
seat.
Are you saying that
Unilever’s management is no longer sticking to these
agreements? No, that is not the case but, having
previously placed great emphasis on sustainable development, the
management has taken restructuring decisions similar in nature
to those that might be taken by an investment fund: drastic
cost-cutting, targeting an improvement in profit margin from
15-16% at present to 20% by 2020 etc. We have received the
announcement of these objectives with considerable concern
because they are accompanied by a review of all locations with a
view to optimising production capacities, which makes us fear
that plants may be closed in future. The sale of the historic
margarine business has also made us very apprehensive and
appears to be at odds with the desire to make economies of
scale.
What actions are
available to the European works
council? Together with the works councils at the
locations affected by the reorganisation in Germany, Austria and
Switzerland (DACH), we have organised a major rally for
employees in Hamburg. At the same time, we have been holding
meetings at every site while calling on other European employees
to show solidarity. This is an example of the role that the
European works council can play in making visible the demands of
the employees who object to a group strategy that works against
them. Furthermore, the EWC is also working closely with national
employee representative bodies in member states having robust
legislation concerning information and consultation rights, with
a view to obtaining guarantees which can be applied to countries
where the scope for action is more limited. Finally, we are
performing our role as an information and consultation body in
connection with the current restructuring plan, and we are
ensuring the circulation of information between countries by
asking our members at both the two annual meetings to present
the situation in their own country in a comparable way.
Is your European
agreement setting minimum standards in the event of
restructuring useful in
this context? Absolutely. It is an essential document
that contains the commitments that management must make when it
is negotiating the sale of a business unit, for instance. Thanks
to this, we have obtained the guaranteed retention of jobs, of
production locations and even of pension rights for three years
following a sale for the employees being transferred, as opposed
to the obligation contained in the national legislation of most
countries that employment contracts should be upheld for a
year.
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Diary
11-14 September
Strasbourg
Plenary session of the European Parliament.
13 September
Paris
Meeting of the EWC Club led by the French association Astrées and IR
Share on the role of European works councils concerning multinationals’
CSR and due diligence obligations. Tel.: +33 6 81 41 53 95.
13-14
September Tallinn
Conference organised under the Estonian presidency of the EU on
the “Future
of work: making IT e-easy“. With Marianne Thyssen, Guy Ryder,
representatives of the European Parliament and the OECD, as well as
representatives from social partner organisations.
20-22
September Prague
12th European
Regional Congress of the International Society Labour and Social
Security Law, in association with the Czech Society for Labour
Law and Social Security Law.
28 September
Brussels
Monthly Forum of the European Trade Union Institute (ETUI) on
“Collective
bargaining in a changing world of work“, based on the research
published in the OECD Employment Outlook 2017, with Andrea Garnero
(OECD) and Torsten Müller (ETUI).
23
October Brussels
Employment and Social Affairs Council.
9-10
November Frankfurt am
Main Forum for European
works councils and SE works councils organised by the IG Metall
trade union.
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IR Notes is a
fortnightly newsletter produced by IR Share and
its network of experts, and is available in several European languages. It
offers Europe-wide monitoring of employment law, labour relations and
employment policy. It is available by subscription for 15 euros per month
(excluding tax), via the IR
Share website. IR Share is a privately-
owned, independent, apolitical company whose aim is to inform and assist all
players involved in social dialogue within and outside Europe. It has been
the correspondent organisation for France and Luxembourg of the Dublin
Foundation since 2009 and for Bulgaria since 2014.
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Lead
story
Restrictions
on monitoring employees’ private correspondence
The Grand Chamber of the European Court of Human Rights on 5 September issued a
ruling (ECHR,
5 September 2017, application No. 61496/08, Bărbulescu v. Romania) with
major practical implications concerning the right of employers to monitor
conversations conducted via electronic messaging by their employees. The case
concerns a Romanian engineer who used a Yahoo Messenger account, set up at his work
station at the request of his company in order to facilitate dealings with a client.
He was charged with using this messaging service for personal purposes as well, to
conduct communications of a private nature with people close to him. The employee,
whose correspondence was monitored and transcribed by his employer, argued that the
latter had violated article 8 of the European Convention on Human Rights concerning
the right to respect for private life and correspondence. In a judgement of January
2016 (ECHR,
12 January 2016, application No. 61496/08, Bărbulescu v. Romania, see IR
Notes 45, lead story), the Court did not find it unreasonable that an
employer should want to verify that its employees were completing their professional
tasks during working hours and noted that the employer had accessed the employee’s
account in the belief that it contained client-related communications. However, one
judge expressed a dissenting opinion, contesting the Court’s decision and noting
that a proper company policy concerning the scope for monitoring conversations and
the use of IT resources provided by the employer did not exist. IR Notes commented
at the time of this first ruling that the position adopted by the Court should not
release employers from clearly defining the rights and obligations of employees in
relation to the use for personal purposes of the company’s communication resources.
Following the appeal of the young engineer, the Court revised its analysis. Having
in its first judgement found nothing wrong in the way the national courts which had
confirmed the employee’s dismissal handled the case, the Court this time found that
they should have: 1/ verified that the engineer had received prior notice from his
employer of the possibility that his communications might be monitored; 2/ had
“regard […] to the fact that he had not been informed of the nature or the extent
of the monitoring, or to the degree of intrusion into his private life and
correspondence”; 3/ determined “the specific reasons justifying the introduction of
the monitoring measures”, thus requiring that surveillance be justified; 4/
considered whether the employer could have used measures entailing less intrusion
into the applicant’s private life and correspondence. The Court thus requires the
principle of proportionality to be respected. This judgement – which was welcomed by
the European Trade Union Confederation, which intervened in the hearing (see press
release) – compels the 47 member states of the Council of Europe (including
all EU member countries) to improve the way they protect employees’ digital lives.
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1. European
Union
Legislative
proposal
Proposal for a directive to improve the
protection of seamen: The European Commission on 27 July
presented a proposal
for a directive with a view to transposing the agreement concluded on
5 December 2016 by the European social partners in the maritime transport sector
(the employers’ association ESCA and the European trade union federation ETF). The
agreement aims to modify directive 2009/13 in order to take into account the
amendments introduced in June 2014 by the ILO to the 2006 Maritime Labour Convention
(MLC) (see Commission press
release). The provisions of this convention were incorporated in EU law by
directive 2009/13 based on a preceding agreement of the European social partners
dated 19 May 2008. The proposal presented by the Commission will ensure that
seafarers will be better protected in future against being abandoned in foreign
ports and will shore up their right to compensation in the event of death or
long-term disability due to occupational injury, illness or hazard. The proposal’s
adoption was welcomed by the European social partners. In a press release they
express their satisfaction at having arrived at a third agreement that will become
mandatory once adopted as a directive by the Council (see ETF
and ESCA
websites).
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Social
update
- Towards a social framework in civil
aviation: According to the European trade union
federation ETF and the association ECA, which represents pilots, the European
commissioners Marianne Thyssen (employment) and Violeta Bulc (transport)
undertook at a meeting with these two organisations on 20 July in Brussels to
present a “social package” for the civil aviation sector in 2018 (see ETF press
release).
- Conference to strengthen trade union
cooperation: The German metalworkers’ union IG Metall,
the trade union federations IndustriAll Europe and UNI Europa, together with the
Friedrich Ebert Foundation and the European Trade Union Institute (ETUI) on 6-7
September in Berlin organised the first conference of its kind on building
stronger transnational cooperation between trade unions (see IndustriAll Europe
press
release).
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Case law
Parental leave suspends a probationary period
intended to enable a worker’s suitability to be assessed:
The Court of Justice of the European Union has ruled in a case (CJEU,
7 September 2017, case C-174/16, H. v/ Land Berlin) brought by a female
civil servant employed by the state of Berlin concerning a decision by the latter
taken while she was on parental leave, informing her “that, as she had not, due to
her absence related to that leave, successfully completed the two-year probationary
period in the managerial post to which she had been assigned before that leave, her
status as a civil servant on probation had ended, and that she was accordingly
returned to her former position at a lower level” (point 2). The Court, which
recalled that the right to parental leave is enshrined in article 33(2) of the
Charter of Fundamental Rights of the European Union, condemned the legal provision
of the state of Berlin that deprived the female civil servant of her managerial
post, and asked the German court to ensure her reinstatement in the post to which
she was entitled in order to carry out the probationary period.
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2. Member
states
France
Presentation of texts aimed at reforming the
Labour Code: On 31 August the government presented five
texts (executive decrees) aimed at fundamentally overhauling the provisions of the
French Labour Code (see press
release). Three of these decrees are particularly important. They are those
on: 1/° Collective
bargaining, with a new link between sectoral collective agreements and
company-level negotiation, whose role has been strengthened. The wording allows
companies with fewer than 50 employees to negotiate company-level agreements without
trade union involvement if there is no trade union delegate at the company. The
agreement can be negotiated and signed by an elected employee representative. It
will even be possible for such an agreement to be concluded directly with the
workforce in companies with fewer than 20 employees. 2/ Organisation
of social dialogue in companies and recognition of trade union activity. In
particular, this concerns the amalgamation, in all companies of more than 50
employees, of the three bodies currently involved in information and consultation
(the staff delegates, works council and health, safety and working conditions
committees) in a single “comité social et économique” (social and economic
committee) which, subject to an agreement having been signed by the majority trade
unions, will also be able to negotiate company-level agreements. 3/°Making
industrial relations predictable and providing safeguards in order to remove
a certain number of provisions considered by employers as impeding recruitment. The
text provides for the economic difficulties of multinationals effecting redundancies
in France to be assessed at national level rather than globally as before. The
executive decrees are due to be adopted by the Council of Ministers on 22 September
to allow them to take effect on 1 January 2018. The social partners are now to be
consulted on a reform of unemployment insurance, before tackling the reform of the
vocational training system. >
Also see the article
published by the European Trade Union Institute.
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3.
Companies
European
works councils
- Oracle: On 5 July the
European works council of the American IT group Oracle, established in Europe
under British legislation, lodged a complaint
with the Central Arbitration Committee (CAC) against company management for
failing to respect its right to information and consultation. The CAC may
therefore issue a decision unless the parties arrive at a compromise.
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Social
responsibility
- Ikea: Accused of closing
its eyes to the exploitation of people employed by the transport and logistics
subcontractors carrying its goods, the Swedish furniture giant on 5 September
commenced talks with the International Transport Workers’ Federation (ITF) with
a view to achieving better working conditions for the drivers concerned (see ITF
press
release).
- McDonald’s: The European
Public Service Union (EPSU) published a press release to coincide with the
strikes held on 4 September that notably affected some McDonald’s establishments
in the United Kingdom. The federation calls on the European Commission to speed
up its enquiry into the group’s tax-avoidance strategy. According to EPSU, the
company’s effective tax rate went down from 1% in 2014 to 0.7% in 2015, when it
avoided paying €1.5 billion of taxes. The federation denounces this strategy
which weakens public finances and consequently impacts public services and
public service workers. It therefore supports the demands of employees for
higher wages, while at the same time denouncing the fiscal practices pursued by
the group, as well as by other multinationals (see press
release).
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4. Studies
and reports
Assessing the cost of work-related accidents
and illnesses: The European Agency for Safety and Health at
Work (EU-OSHA) has, in collaboration with the ILO, presented new estimates of
the cost of poor workplace safety and health (see press
release). Each year work-related injury and illness result in the loss of
3.9% of GDP worldwide. In the EU the figure is slightly lower, at 3.3 % of GDP.
“That’s €476 billion every year which could be saved with the right occupational
safety and health strategies, policies and practices”, stresses the director of
EU-OSHA, Christa Sedlatschek.
- German metalworkers want more free
time: The metalworkers’ trade union has conducted its
second major survey, in which more than 681,000 employees took part (of whom 38%
were not IG Metall members). The results reveal that German workers wish to have
more free time as well as legislation that sets maximum limits for working hours
(see article in Mitbestimmung
magazine).
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