IR Notes

The Employment Ministers of the Twenty-Eight Member States reached agreement, during the evening of 23 October, on the revision of directive 96/71 on the posting of workers in the framework of provision of services. Once the European Parliament too has adopted its position, on 26 October, following the vote on the Employment and Social Affairs Committee (see social update, below), a group of negotiators from the Parliament, the Council and Commission (a trilogue) will be set up with a view to adopting the draft revision at its first reading. The main points of compromise reached, which adjust the text presented, on 18 October, by the Estonian presidency of the EU, are as follows (see Council press release): 1/ remuneration of posted workers will have to comply with host member state law and practices, so that employees doing the same job in the same place will enjoy the same working conditions and wages. All rules on remuneration which apply to local workers will also have to apply to posted workers. Remuneration will not only include the minimum rates of pay, but also other elements such as bonuses or allowances. 2/ the maximum term of the posting is fixed at 12 months and can be extended by six months on the basis of notification given by the service provider, setting out its reasons. As a result, the posting cannot exceed a total length of 18 months, compared to the current period of 24 months. Six Member States argued in favour of reducing the term to 12 months. Beyond this time, if the employee remains in the host country, they will be subject to all local legislation, including that relating to social protection. 3/ universally applicable collective agreements, i.e. those that have been extended or expanded to include all employees and employers who come within their scope of application, will apply to all posted employees, regardless of the industry they work in. 4/ equal treatment is guaranteed between posted temporary workers and temporary workers employed in the host country. 5/ As regards the transport sector, which crystallises the tensions that exist between Member States, it is agreed that the amended provisions of the directive will apply from the date on which the future sectoral legislation currently under preparation (the “Europe on the move” package, see IR Notes n°77) enters into force. 6/ the transposition period of the directive, which is usually two years, is being extended to three years, plus an additional year for the directive to enter into force, i.e. a period of four years after final adoption and publication of the text. We will therefore have to wait until 2022 at best (i.e. if the compromise is quickly adopted by Parliament and the Council) to see the effects of the revised directive. 7/ The European platform against undeclared work will be used to combat fraud and abuse in the area of posting of workers, and to enhance information exchanges and administrative cooperation among Member States. This compromise, which reinforces the initial version of the text that was on the way to being adopted by the Council in June this year, before the new French President refused to endorse it, was rejected only by Poland, Hungary, Lithuania and Latvia. The Council has also adopted a general approach on revision of the coordination of social security systems regulation, regarding the question of determining the social legislation applicable to mobile employees (see press release and text of compromise. Lastly, it adopted the draft proclamation of the European Pillar of Social Rights (see press release).

• Employment and Social Affairs Committee adopts revision of posting of workers directive: the Employment and Social Affairs Committee of the European Parliament has adopted a resolution on revision of the directive on posting of workers, by a fairly large majority, i.e. 32 votes in favour, 8 against and 13 abstentions, which holds out hope for a confirmation vote at the Parliament’s plenary session on 26 October. This vote will take place three days after the Council meeting on 23 October, where European Employment Ministers are due to adopt a joint position on this text, although the chances of reaching this remain very uncertain. Once these two legislative bodies have decided on their positions, they will be able to embark on the negotiations concerning a final text in the “trilogue”, i.e. in conjunction with the European Commission.

Reactions to carbon emission reduction targets: the European social partners in the automotive industry – the IndustriAll Europe trade union federation, and the employers’ organisations ACEA (representing automobile manufacturers) and CLEPA (representing automotive suppliers) – published an official statement reacting to the content of the GEAR 2030 report “on the competitiveness and sustainable growth of the automotive industry within the EU”, presented by the European Commission on 17 October (see the Commission’s press release). The press release issued by IndustriAll Europe states that one job in three within the sector is at risk, because it is linked to the manufacture of conventional thermal engines. While the transition to low-carbon transport will create new jobs, these will either call for qualifications that are different from those corresponding to the manufacturing jobs that will become obsolete, or will be created in different locations or at different times.

Limiting admission to the police force to persons who are at least 1.70 metres tall is discriminatory: the Court of Justice has issued a ruling on a Greek case concerning legislation that requires all applicants joining the police training school, regardless of their gender, to be at least 1.70 metres tall (CJEU 18 October 2017, case C-409/16, Kalliri). This measure is a perfect example of indirect discrimination, as it penalises many more females than males. However, the government argues that the law is designed to enable the police to discharge their mission effectively, and that possessing certain physical aptitudes, such as a minimum height, constitutes a necessary and appropriate pre‑condition for achieving this goal. The Court therefore checked “whether a minimum height requirement (…) is suitable for securing the attainment of the objective pursued by that law and does not go beyond what is necessary in order to attain it”. The Court states that, while certain practices may “require the use of physical force requiring a particular physical aptitude” on the part of police officers, the fact remains that certain duties, “such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force”. Moreover, a particular physical aptitude is not “necessarily connected with being of a certain minimum height”, and “shorter persons” do not “naturally lack that aptitude”. In the opinion of the Court, other ways, which are undoubtedly more pertinent, can be used to assess applicants’ physical aptitudes. The Court therefore takes the view that the disputed measure is not justified.

• Maintaining contracts of employment within the framework of an invitation to tender: the Court of Justice has issued a judgment that will have significant practical consequences for companies operating in markets where contracts are placed via invitations to tender (CJEU 19 October 2017, case C-200/16, Securitas). The case concerns a port authority that decided to issue a new invitation to tender for security services to protect its installations. Previously, the employees of one service provider, ICTS, who carried equipment enabling them to communicate with one another and wore the same uniform, had been tasked with checking people and goods entering and leaving the port, using video surveillance facilities. Following the invitation to tender, the contract was awarded to Securitas. The ICTS security guards handed over their equipment to Securitas, which in turn passed this on to the port authorities, as the company uses its own equipment. It was therefore necessary to ascertain whether a situation whereby a client has terminated the contract concluded with one company for the provision of security guard services, and then concluded a new contract for the supply of those services with another company, which refuses to take on the employees of the first company, should fall within the concept of a “transfer of an undertaking [or] business” in the light of Directive 2001/23 on transfers of undertakings. The Court first of all states that in the wake of an invitation to tender, a succession of service providers may perfectly well come within the scope of application of the directive. “The lack of a contractual link between the two undertakings successively entrusted with managing” this service “has no bearing on the question as to whether or not Directive 2001/23 is applicable” to this type of situation. Contrary to the legislation applicable in this case, but also to comparable legislations operative in other Member States, the fact that service providers are selected via an invitation to tender does not act as an impediment to the guarantees established by the directive, and thus to maintaining contracts of employment. What may however prevent contractual relationships being maintained is the lack of a transfer of an “economic entity”, though this is not the case if “the equipment essential to the performance of those services has been taken over by the second undertaking”. The referring court will have to ascertain whether this is so, based on the criteria laid down by the Court.


• Burden of proof concerning a risk assessment involving a breastfeeding woman: the Court of Justice has issued a judgment concerning a nurse employed at a Spanish hospital, who claimed she was exposed to risks for her baby that she was breastfeeding (CJEU, 19 October 2017, case C-531-15, Otero Ramos). Believing that the employer had not conducted its risk analysis properly, she took her case to court, claiming that she had suffered direct discrimination based on grounds of sex. The Court ruled that it was for the worker in question to “provide evidence capable of suggesting that the risk assessment of her work had not been conducted in accordance with the requirements” of directive 92/85, from which it can therefore “be presumed that there was direct discrimination on grounds of sex”. It is for the referring court to ascertain whether this is the case. For the purpose of this examination, it will be for the employer “to prove that that risk assessment had been conducted in accordance with the requirements of that” directive “and that there had, therefore, been no breach of the principle of non-discrimination.”

Part-time workers and the principle of non-discrimination: the Italian Court of Cassation issued a judgment (Case. 22925/2017) on 29 September, stating whether part-time employees are entitled to three days’ paid leave per month, as granted by law no. 104 of 1992 to workers caring for a disabled and dependent family member. The Court reached its decision taking into account the principle of non-discrimination towards part-time workers, as laid down in directive 97/81, together with the need to ensure that this arrangement does not impose an excessive burden on employers. In the case in point, a part-time working arrangement provided for four work days out of the six comprising the normal distribution of work within the company. After affirming the need for flexible application of the principle of non-discrimination, the Court reached its decision by applying a quantitative criterion: it held that workers become entitled to their days of paid leave as soon as their working time comes to represent at least one half of the work days operative within the company. Consequently, part-time employees whose working hours amount to less than this figure will not be entitled to benefit from this arrangement.

• Agreement reached at Axa on the right to switch off from work: on 20 July, the management of Axa’s Spanish subsidiary signed an agreement (see Spanish press release), with the main union CC.OO, introducing a right for employees to switch off from work. This is the first agreement of this type in Spain (see article published by Eurofound, in English).

SNCF: on 29 June, SNCF management signed an amendment to its European Works Council agreement created in December 2012. The new agreement maintains both of the bodies established at the level of its subsidiaries Geodis (freight transport by road, and logistics) and Keolis (urban passenger transportation), which continue to be responsible for matters involving transnational issues that lie exclusively within their remit. At the request of the trade unions, the introductory section states that management will examine whether the committee should be kept informed about how the group is meeting the obligation incumbent on parent companies and client companies to exercise vigilance vis-à-vis their suppliers and subcontractors, under recent French legislation (law no. 2017-399 of 27 March 2017). However the CGT and Unsa unions regret the fact that the agreement does not directly assign responsibility for supervising the implementation of this obligation to the European Works Council. As far as the inter-relationship between the processes of providing information and consultation at national level and European Union level is concerned, the agreement specifies that the order in which consultations take place is fixed by management “following discussions with the secretary” of the committee. The new agreement boosts the resources available to the committee (working parties, rights of access, increased time credits, budget raised from 8,000 to 20,000 euros, two x four-day training courses for each term of office).

• Technip FMC: a second negotiation meeting has been scheduled at the end of October, with a view to reaching a European Works Council agreement within the Technip FMC group, which is the world’s third-largest provider of oil and gas industry services, created following a merger between the French company Technip and the American firm FMC Technologies. The special negotiating group is being assisted by an expert from the European trade union federation UNI Europa.

Safran: on 17 October, the management of the French high-technology group Safran, which is a leading equipment supplier in the aeronautics and defence industries (58,000 employees), signed its first global framework agreement on working conditions, social responsibility and sustainable development, with the global union federation IndustriAll Global Union (see IndustriAll press release). This extremely comprehensive agreement contains a number of rare provisions in the areas of managers’ remuneration, the level of which “should not harm social harmony within the Group”, and of taxation. The Group undertakes to abide by “the guidelines set out by OECD for transfer pricing”, so that “profits are taxed where the added value is actually created”. In the midst of the debate on sexual harassment at work, in the wake of the Weinstein case, the agreement provides an indirect response by encouraging all parties (as well as the suppliers and subcontractors to whom the agreement applies), to “combat stereotypes” and “to evolve attitudes to provide women with a safer and more welcoming environment”. Strengthening an area that is traditionally weak in this type of agreement, the signatories are dealing with the issues of communication regarding the company’s engagements and application of the agreement by setting up a global monitoring committee that will meet twice a year.

• Understanding and monitoring the adoption of the European Pillar of Social Rights: the European Trade Union Institute (ETUI) is organising a monthly forum, on 8 November, in Brussels, to take stock of the European Pillar of Social Rights, which is due to be adopted at the European Social Summit taking place in Gothenburg on 17 November. The Director of ETUI, Philippe Pochet, will place this initiative in a historical perspective, while Zane Rasnaca will present a working paper on the potential impact that the European Pillar of Social Rights  might have on decision-makers at European level and at the level of Member States (Bridging the gaps or falling short? The European Pillar of Social Rights and what it can bring to EU-level policymaking).