IR Notes

From 25 May 2018, all companies in the European Union must comply with the new general regulation on the protection of personal data (Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data– GDPR,other languages), which represents a complete overhaul of the previous 1995 directive on data protection. This new regulation can even be seen as revolutionary, in that companies will no longer need to declare their personal data processing activities to their national authorities, as is the case at the moment. They will now be required to provide clear evidence of their compliance with this new regulation. They will also have to ensure that any subcontractors they use to process personal data on their behalf are complying with the regulation too, even if these subcontractors are based outside the EU. Companies that fail to comply with this new obligation could face fines of up to 20 million euros or 4% of their turnover. This regulation, which covers personal data processing of all kinds, will also affect the employment relationship in a number of ways. However, Member States will retain a high degree of autonomy in this area (see article 88 of the regulation), which will not help human resources departments when it comes to setting up a centralised database or moving employees’ personal data. The system will, however, be more transparent for employees. Employers must be able to provide proof, at any time, of their employees’ consent to use of their personal data. Such consent must be documented and traceable. Furthermore, employees will now have more and better information on how their personal data is processed by their employer. They will also be able to ask for certain personal data to be deleted or transferred. The regulation itself provides for a role for collective bargaining. Under article 88, “Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context”. The protection of personal data is therefore clearly becoming a matter for social dialogue, with the intention of encouraging regulation by contractual means. This topic is also being discussed on an increasingly regular basis at European Works Council level, often in cases where councils are asked to express a view on plans to digitise human resources management at a transnational group level.

• A new social scoreboard for the Union: As part of the European Pillar of Social Rights proclaimed on 17 November, the Draft Joint Employment Report presented by the European Commission, on 22 November (see press release), contains a social scoreboard comprising 14 indicators enabling the results obtained by States in the area of social affairs and employment to be examined in three main fields defined within the framework of the pillar: 1) equal opportunities and access to the labour market. 2) dynamic labour markets and fair working conditions. 3) support from the authorities, and social protection and inclusion. The draft report offers an initial evaluation of all States, ranking their positioning under these 14 criteria on a spectrum ranging from “best performers” to “critical situations”.

Consultation on access to social protection for all: On 20 November, the European Commission launched the second phase consultation of the European social partners on ways of promoting access to social protection and to employment services for all people in employment and in self-employment (see press release). Once it has received responses from the social partners and from a public consultation, the Commission will submit a proposal during the first half of 2018. Its aim is to provide “formal and effective coverage [of] non-standard workers and self-employed workers, on the basis of contributions”. It also seeks to guarantee “transferability of rights” when workers “change jobs, sectors of activity, forms of employment, [or] move to or from self-employment” and to ensure access to “user-friendly information on rights and obligations to social protection, irrespective of employment situation”. The Commission then envisages two options: either compulsory or voluntary cover, at the same time emphasising that option one “has the advantage of setting the same type of protection as for standard workers” and is expected to be “more efficient in ensuring protection”.

Telework in the Banking Sector: On 17 November, the European social partners in the banking sector adopted a joint statement on telework in the banking sector, ahead of a forthcoming statement on the social impact of digitalisation in the industry. The statement, which will be useful for fostering social dialogue on this form of work organisation, whether at national level or company level, contains detailed provisions concerning compliance with personal data and privacy regulations, and on access to training (both vocational training and training in useful methods for organising teleworking).

• Energy transition: On 24 November, the social partners in the electricity sector adopted a joint statement on a just energy transition (see press release). These recommendations are intended to accompany the objective of decarbonised electricity production by 2050, while reducing the negative impacts on employment, in particular by means of training programmes to guarantee the employability of current workforces.

• The amount of paid annual leave accumulated by an employee is unlimited if an employer does not put a worker in a position where he can take this leave: The Court of Justice has clarified its already abundant case law in the area of paid leave (CJEU 29 November 2017, Case C-214/16, Conley King). The case concerned a British man who worked for 12 years for a company on the basis of a “self-employed commission-only contract” until he retired. However, following his retirement, he submitted a claim to an Employment Tribunal and secured a ruling that his working relationship with the company was that of a “worker” within the meaning of EU law, and of British law, which allows “workers” to enjoy some of the rights granted to “employees”, such as the right to paid annual leave. The worker in question never took all of his leave because he was not remunerated for it. However, since he should have been recognised as a “worker”, he should have been paid for these holiday periods. In this case, the Court states firstly that a worker must be able to enjoy the remuneration to which he is entitled in connection with the statutory four weeks of paid annual leave when taking his annual leave. Legislation such as that in force in the United Kingdom, which obliges a worker to take unpaid leave before submitting an application to have it paid, is against EU law. Secondly, while the Court accepts that national legislation can limit the amount of time for which paid leave can be carried forward to a period of fifteen months, after which the entitlement to paid annual leave is lost, this limitation does not apply in a situation where an employer does not put a worker in a position in which he is able to exercise his entitlement to paid annual leave. Consequently, the employer “must bear the consequences” and refund all of the paid annual leave that the employee has been unable to take because of the employer’s actions (see Court press release).

Restrictions on the wearing of religious symbols: The French Supreme Court has delivered a judgment (see Court press release), in a case for which it had requested a preliminary ruling from the European Court of Justice (CJEU, 14 March 2016, Case C-188/15, Bougnaoui and ADDH). The Supreme Court was asked to rule on the dismissal of an employee who had refused to remove her Islamic veil while working on the premises of one of her employer’s clients. This client had requested the employer to ensure that the employee in question did not wear a veil on its premises, where she was in contact with customers. The Supreme Court noted that “no neutrality clause prohibiting the wearing of any visible political, philosophical or religious symbol in the workplace existed in either the company’s internal regulations or in any memorandum”. The request to remove the veil was not, therefore, consequent upon the application of a company rule, so the discrimination suffered by the employee is deemed to be direct. Such direct discrimination could therefore only be justified on the grounds of the application of an “essential and determining occupational requirement” within the meaning of article 4, paragraph 1, of the directive of 27 November 2000. But an employer’s desire to respect a client’s wish that the said employer’s services should no longer be provided by an employee wearing an Islamic headscarf cannot be considered an essential and determining occupational requirement. Furthermore, “where an employee refuses to comply” with a neutrality clause stipulated in the company’s internal regulations “in the course of her work with the company’s clients, it is the employer’s responsibility to ascertain whether, whilst taking into account the constraints inherent within the company and without having to incur additional costs, it can offer the employee a post that does not involve face-to-face contact with customers, rather than dismissing her”.

Gradual abolition of Sunday trading: on 24 November, Parliament passed a law that will gradually reduce Sunday trading. This law, which is supported by the Solidarity trade union and the Catholic Church, stipulates that, from 1 March 2018, employees will be permitted to work in shops on only the first and last Sunday of the month. In 2019, shops will be open on only the last Sunday of the month, and from 2020 onwards, employees will no longer have to work on Sundays. Exceptions will be made for service stations, railway stations and bakeries, and for the delivery of online shopping.

Unilever: On 28 November, the Unilever group’s European Works Council issued a press release denouncing the group’s new strategy seeking to increase its profits by 20% by 2020, which in particular would involve selling off large parts of the business. In anticipation of the proposed offer for sale of one of the group’s traditional businesses, margarine production, which employs over 1,000 workers in the EU, the European Works Council expresses regret that it will not be involved in negotiations with potential buyers, so that it can argue the employees’ case. It has therefore published an open letter to potential buyers, calling upon them to abandon the objective of making short-term financial gains and to commit to: 1) keeping all production sites open; 2) safeguarding all jobs and transferring the employment contracts of all employees; 3) maintaining the terms of these contracts and working conditions.

• Apple: The European Trade Union Institute has published the technology group’s revised agreement dated 18 February 2016 on its online database of European Works Council agreements. The text provides for balanced representation between, on the one hand, administrative and support staff (7,646 full-time equivalent employees) and, on the other, sales staff (11,350 full-time equivalent employees). The threshold at which each of these categories can appoint a representative is set at 130 employees. In the case of sales staff, an additional representative is appointed for 1,500 employees and above, and then a third one when employee numbers exceed 3,000. In addition to balancing the two categories, the agreement also provides for the appointment of members to jointly represent clusters. For example, employees in Belgium, Luxembourg and the Netherlands will appoint a single member to represent sales staff and one member to represent administrative and support staff. Of the 19 countries represented, only Germany, Ireland, France and the United Kingdom appoint members directly.

Vinci: On 21 November, at the headquarters of the ILO, the board of the French civil engineering group Vinci, its subsidiary Qatari Diar Vinci Construction (QDVC) and the Building and Wood Workers’ International (BWI) signed an agreement on the rights of workers on construction sites in Qatar. This agreement, which has been under discussion since 2014, can be regarded as a response to accusations by the NGO Sherpa that Vinci uses forced labour. “This is the first time such an agreement between a trade union federation and a Qatari business has been reached in Qatar”, Vinci stresses (see press release). The text is divided into two parts. The first sets out QDVC’s undertakings in terms of workers’ rights and welfare. The second focuses on reporting, inspection and early warning procedures.

General Electric: At the end of November, the European trade union federation IndustriAll Europe invited trade union representatives from its affiliates in the General Electric (GE) group to a four-day meeting in Brussels.  One of the trade unionists’ demands is that any restructuring plan be put on hold until the conduct of a coordinated information and consultation procedure through the creation of a European Work s Council covering all GE employees is guaranteed (see press release).

• Saint-Gobain: In the context of the Saint-Gobain trade union network, more than 30 trade union representatives from 11 countries met at the headquarters of the IndustriALL Global Union affiliate CGT Verre & Céramique in Paris on 21 and 22 November, to discuss the group’s situation and outlook. The participants met the Saint-Gobain group’s head of social dialogue (see press release).

The issue of reducing working hours is back on the agenda: After taking a back seat during almost ten years of economic and financial crisis, the trend towards a cut in working hours now seems to be gradually regaining momentum. For example, during negotiations on the new collective agreement for the German metal-working industry, the IG Metall union submitted strong demands for shorter working hours. Hence the value of this guide published by the European Trade Union Institute, which provides an overview of working time in the European Union, justifications for different forms of reduced working hours, ways of implementing them and a number of examples (the development of part-time work in the Netherlands, the 35-hour week in France, the 6-hour day in a Swedish old people’s home, etc.).