IR Notes

On 5 April, the European Commission presented a proposal for a directive on the protection of workers from the risks related to exposure to carcinogens or mutagens which would include new exposure limit values for five chemical agents. These values define a new maximum airborne concentration level for a given carcinogenic chemical agent in the workplace. Five carcinogens have been selected: cadmium and its inorganic compounds; beryllium and inorganic beryllium compounds; arsenic acid and its salts, as well as inorganic arsenic compounds; formaldehyde and 4,4’-methylene-bis (2-chloroaniline) (see Commission’s press release and factsheet). This new proposal follows two previous legislative amendments, proposed by the Commission in May 2016 and January 2017, which fixed the limit values for 21 carcinogenic agents. The first amendment was adopted in late 2017 (directive 2017/2398 of 12 December 2017; see IR Notes no. 89). The second proposal for a legislative amendment is currently being discussed by legislators. It went before the European Parliament’s Committee on Employment and Social Affairs on 27 March. The committee voted almost unanimously (41 for, 0 against and 7 abstentions) to adopt the report on the second phase of the revision of the directive on the prevention of cancer presented by the Belgian MEP Claude Rolin (EPP) (see press release from Claude Rolin, and interview opposite). One of the contributions made by MEPs is the addition of diesel engine exhaust emissions – to which more than 3 million workers are exposed – to the agents included in the Commission’s text. Under pressure from manufacturers, the Commission decided in the end not to include diesel engine exhaust emissions in its proposed directive, even though they are classed by the International Agency for Research on Cancer (an agency of the World Health Organization) as proven carcinogens. The Employment and Social Affairs Committee therefore expressed its support for an occupational exposure limit value of 50 µg/m³ calculated on the basis of elemental carbon – one of the components of diesel engine emissions. “This value is identical to that recently adopted in Germany”, explains Laurent Vogel of the European Trade Union Institute, adding that “given that most European countries have no limit value for exposure to diesel emissions in the workplace, adopting such a value at European level would represent significant progress.” Negotiations between the Parliament and EU ministers can now begin, as the Member States adopted their negotiating position on 15 June 2017. As a result, the revision of the directive could be finally adopted this year.

• Caterpillar: On 23 March, the European Commission announced a proposal to provide Belgium with 4.6 million euros from the European Globalisation Adjustment Fund. This money is intended to help nearly 2,300 workers who were made redundant by Caterpillar Solar at Gosselies and by several of its suppliers, to find new jobs (see press release).

Free movement still subject to restrictions for the unemployed: the mobility of unemployed persons from regions suffering from a high level of unemployment to those desperately in need of labour continues to be hampered by strict application of regulation 883/2004 of 29 April 2004 on the coordination of social security systems. This regulation (Article 64) provides that “entitlement to benefits shall be retained for a period of three months from the date when the unemployed person ceased to be available to the employment services of the Member State which he left, provided that the total duration for which the benefits are provided does not exceed the total duration of the period of his entitlement to benefits under the legislation of that Member State”. This article adds: “the competent services or institutions may extend the period of three months up to a maximum of six months”. The Court of Justice delivered its interpretation of this provision in a judgment on 21 March (case C-551/16, Klein Schiphorst). The case concerned a Dutch national who was receiving unemployment benefits from the Employee Insurance Institute in the Netherlands (Uwv), and decided to look for a job in another State covered by Regulation 883/2004. Relying on this text, he requested the Uwv to “export” his unemployment benefits for a three-month period, which they agreed to do. However, the Uwv then refused to extend this period of exporting his unemployment benefits. The Uwv explained that it did not exercise its option to extend the period of exporting benefits for a maximum of six months. The Court of Justice confirms that this is indeed an option, and the Member State’s institution in question is under no obligation to extend payment of benefits from three to six months. The State concerned is merely required to adopt national measures regulating the competent institution’s discretion. These institutions are entitled in principle to refuse any requests for an extension beyond a period of three months, “provided the institution does not consider that refusing that request would lead to an unreasonable result”.
> Further information: the European Commission has proposed a revision of the regulation providing for an export period of six months, which is currently being scrutinised by the Council and the Parliament.

• Non-inclusion of parental leave for the purpose of calculating holiday pay entitlement: so far we only have the opinion of the Advocate-General at the Court of Justice (on the basis of which the Court will deliver its ruling), but the subject is sensitive enough to warrant discussion already at this stage. The issue in question is that of deciding whether EU law requires the period spent by a worker on parental leave to be included in the calculation of their entitlement to paid annual leave. The Court already recognises that “any worker, whether he be on sick leave during the reference period as a result of an accident at his place of work or elsewhere, or as the result of sickness of whatever nature or origin, cannot have his entitlement to at least four weeks’ paid annual leave affected” (CJEU, 24 January 2012, case C-282/10, Dominguez). However, the Advocate-General’s view is that ’”given the fundamental difference between the situation of a worker who is on sick leave and that of a worker on parental leave, notably the fact that the second case does not involve proven unfitness for work that is independent of the will of the worker concerned, this solution cannot be extended to the scenario of a worker who is on parental leave” (CJEU, opinion, 20 March 2018, case. C-12/17, Maria Dicu, not available in Engish).

• Reducing the notice period required for making employees redundant: the law of 26 March 2018 relating to boosting economic growth and social cohesion reduced the notice period that an employer is required to give when making an employee redundant during the first six months of the working relationship. In cases where the contract of employment is terminated before the end of month three, the notice period is reduced to one week instead of two. The aim is to cut the cost involved for the employer in making employees redundant, with a view to making it easier to take on new workers (see press release issued by the Ministry of Employment).


• The right to switch off from work: the law of 26 March 2018 relating to boosting economic growth and social cohesion stipulates that in order to “ensure compliance with rest breaks, annual holidays and other types of leave to which workers are entitled, and to preserve the balance between work and private life”, the employer must arrange “consultation” with employee representatives from the Committee for Prevention and Protection at Work. Such consultation must take place “at regular intervals and whenever it is requested by workers’ representatives (…), on the subject of switching off from work, and of using digital communication means”. The Minister of Employment believes that reaching agreements on this subject should reduce exposure to stress (see press release issued by the Minister of Employment).

Banking sector’s collective agreement renewed: On 25 March, the social partners in Finland’s financial services sector finalised a new collective agreement, on the eve of a strike that was scheduled to last three days, thereby avoiding a stoppage of work (see press release issued by the Pro trade union). The agreement marks the end of a negotiation that began in October 2017 but became mired in the issue of weekend working. The Pro union, which represents employees in the banking sector, wanted weekend working to be organised within the framework of local agreements at company level, operating on a voluntary basis. The employers, however, wanted to organise these working arrangements unilaterally. The parties accepted the agreement submitted by the National Conciliator, which provides for recourse to local negotiations. If agreement cannot be reached, the introduction of weekend working has to be referred to the union representative nine weeks in advance. In principle, the agreement is based on voluntary working arrangements, but if not enough people come forward, the employer can instruct employees to work, on certain conditions. An employee can still turn this request down if they have pressing reasons for doing so. Saturday working will be paid at a rate 50% higher than a week day and Sunday working will be paid double.

Redefining industrial relations : On 9 March, Italy’s main social partners (the employers’ organisation Confindustria and the three trade union confederations CGIL, CISL and UIL) signed a historic agreement, known as the “Patto della Fabbrica” (‘Factory Pact’), which is intended to redefine the country’s industrial relations model.  What is new about this agreement is that it establishes the conditions governing the representative status of employers’ associations. One of the aims is to tackle the phenomenon of “rogue” sectoral agreements, i.e. those signed by organisations that do not really represent their industries, with a view to competing with companies operating in a particular industrial sector by driving down wages and working conditions. The agreement is also innovative in terms of worker participation and confirms the central role played by sectoral agreements in determining wages and working conditions, while at the same time encouraging company agreements that introduce additional remuneration linked to achieving genuine improvements in a company’s productivity.

Johnson & Johnson: the American pharmaceuticals company (which has a workforce of 134,000) has renewed its European Works Council agreement signed on 1 April 1998, with a team of negotiators appointed by committee members. The new agreement, signed on 1 January 2018, provides for one representative per country with at least 100 employees, plus a second representative from countries with 1,001 or more employees, and a third representative for those countries with more than 2,500 employees. A select committee comprised of 5 members is being appointed. It is “strongly recommended” that its members are able to communicate in English and already have some experience as an employee representative. The agreement establishes a framework for the information and consultation procedure. This procedure must unfold over an eight-week period, which in exceptional circumstances can be extended by mutual agreement. The procedure is triggered when a project affects “more than 150 employees in two or more countries covered under the agreement” or the “majority of the employees in a country”. The document includes flow charts in appendix to illustrate how the procedure works. The plan is to adapt this process to encompass projects that involve changes taking place over a period of several years.

• Gebrüder Weiss: on 4 October 2017, the management of the Austrian famiy-owned transport and logistics group Gebrüder Weiss signed a European Works Council agreement covering its 6,500 or so workers in the EU, who are employed mainly in Central and Eastern Europe. The agreement provides for the creation of a select committee comprising between three and five members, plus working parties if necessary.

Bombardier: on 28 March, the train manufacturing subsidiary of the Canadian Bombardier group concluded an agreement with the metalworkers’ trade union IG Metall, to preserve all of the group’s production sites in Germany, some of which were threatened with closure as part of a global reorganisation announced in 2016, affecting 5,000 employees worldwide (see IG Metall press release). Nevertheless, the agreement provides for the gradual loss of 2,200 jobs over a three-year period (one third of whom are held by temporary workers) out of a total workforce of 8,500. Most of the job losses (a maximum of 1,513 employees) will take the form of voluntary redundancies.

A wage convergence is taking place but it is too slow: the data published by Eurostat reveals significant disparities between hourly labour costs among the various Member States in 2017. These range from 4.9 euros per hour in Bulgaria to 42.5 euros in Denmark. The data shows labour costs gathering pace in the countries of Central and Eastern Europe, with rises over a one-year period that are above the EU average, but hourly costs in these countries still remain far below the EU average (26.8 euros, compared to 4.9 euros in Bulgaria and 6.3 euros in Romania, for example). The country in this region with the highest hourly cost, Slovenia (11.1 euros) is still less than half of the EU average (26.8 euros). The fall in hourly labour costs recorded in Finland (down 1.5% to 32.7 euros) is probably linked to the 2016 tripartite agreement seeking to cut labour costs, with a view to boosting the competitiveness of the economy.