IR Notes

On 14 May, the Court of Justice issued a very important ruling in a Spanish case in which the CCOO trade union federation criticised Deutsche Bank for not having set up a system for recording the hours worked each day by employees (v. IR Notes n° 113). The Court of Justice emphasises “that in the absence of such a system, it is not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime” (case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO)/Deutsche Bank). “In those circumstances”, adds the Court, “it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by Article 31(2) of the Charter and by Directive 2003/88, with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.” Consequently, in order to ensure the effectiveness of these rights, “the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”. The States, however, have the flexibility to decide “the form that it must take” having regard to “the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size (…)”. (see press release). This ruling applies not only to the Member States but also to employers. In fact, the Court states that such a system “enabling the duration of time worked each day by each worker to be measured falls within the general obligation, for Member States and employers, laid down in Article 4, paragraph 1, and Article 6, paragraph 1, of Directive 89/391, to provide the organisation and means necessary for the protection of the safety and health of workers”. Several European trade union federations have welcomed this decision. IndustriAll Europe describes it as “an important step towards ending abusive unpaid overtime” (see press release) whilst the EPSU sees it as an important ruling for the countries which have allowed employers to introduce an individual opt-out from the 48-hour maximum average working time (see press release).  For Esther Lynch, Confederal Secretary at the European Trade Union Confederation, “the best way for employers to respond to this ruling is to meet with trade unions and agree fair and transparent systems (…).” (see declaration).

EU strategy for 2019-2024 : at an informal meeting held in Sibiu (Romania), EU leaders discussed the EU’s next strategic agenda for the period 2019-2024 based on a “Leaders’ Agenda Note” drafted by Donald Tusk, the President of the EU Council (see press release). One of the chapters includes the objectives of “reducing inequalities, ensuring adequate social protection and inclusive labour markets, and reducing disparities through cohesion”. They also unanimously adopted the “Sibiu Declaration” which includes ten commitments such as “we will always uphold the principle of fairness, whether it be in the labour market, in welfare, in the economy or in the digital transformation”. The European Trade Union Confederation endorses the commitments but wants to see a plan with concrete actions (see press release).

• A rise in the employment rate in the EU: In 2018, the employment rate among the population aged between 20 and 64 in the EU stood at 73.2%, a figure higher than 2017 (72.2%), according to Eurostat (see newsrelease). The Europe 2020 strategy target is to reach a total employment rate of at least 75% in the EU by 2020. Each country also has its own target to achieve. 13 Member States have already met this.

Part-time parental leave must not reduce compensation payments for the termination of an employment contract: the EU Court of Justice delivered a ruling in a French case involving a sales assistant who was made redundant as part of a collective redundancy scheme (CJEU, 8 May 2019, case C-486/18, Praxair). Having been taken on on a full-time contract, she was, in the two years prior to her redundancy, employed part time while she took parental leave to bring up her children. Her redundancy pay and redeployment leave allowance were calculated on the basis of her part-time work rather than her salary before she went on parental leave, when she worked full time. Confirming its case law (CJUE, 22 October 2009, case C-116/08, Meerts, and CJEU, 27 February 2014, case C-588/12, Lyreco Belgium), the Court explains that such a calculation could discourage workers from taking part-time parental leave and runs counter to the aim of the European framework agreement on parental leave. The redundancy pay and the redeployment leave allowance must be calculated “entirely on the basis of the full-time salary of that worker”. Furthermore, the Court of Justice adds that the French provisions which allow for the inclusion of periods of part-time work in the calculation of redundancy pay contravene article 157 of the Treaty on the Functioning of the EU (principle of equal pay). In fact, they constitute indirect discrimination towards women, because it is they who make up the vast majority of workers taking part-time parental leave. This is important because, on the basis of non-compliance with article 157, the Court allows the French judge to disapply the national provisions which contravene EU law and immediately make good the harm suffered by the employee (see. press release).

• Minimum wage : on 16 May, the Ministry of Labour and Pensions set up a working group to set the minimum wage. Previously, the minimum wage was fixed by the government following consultation with social partners. The amount will now be suggested by the working group, which is made up of employers’ and trade-union representatives and academics. It is expected to announce its suggestion by the beginning of September.

• Holiday vouchers : Since 1 January, employers with 50 or more employees have had to pay 55% of the accommodation and meal costs incurred by employees who, while on leave, spend at least two nights in an accommodation establishment located within the country, up to a maximum of 275 euros per annum.  This allowance, which is payable to employees with at least two years’ service, is aimed at promoting tourism within Slovakia. The employee does not have to pay either tax or social security contributions on it, while the employer can treat it as a tax-deductible business expense.

Limiting the use of temporary labour : on 10 May, the management of Unilever and the international trade union federations IndustriAll Global Union and IUF signed a global agreement to limit the use of temporary workers and protect permanent jobs in Unilever factories. This “Joint Commitment on Sustainable Employment in Unilever Manufacturing“ applies to employees in more than 300 Unilever factories in 69 countries, whether employed directly by Unilever or through a third-party provider. This agreement restricts the hiring of temporary workers to short-term and non-recurring tasks and prevents temporary contracts being used to avoid regular employment. The agreement stipulates that temporary workers will be informed of their work schedules with sufficient notice and not be retained on call without pay (see press release from IndustriAll and the IUF).

• Fundamental rights: Following the renewal of the global framework agreement on the French group EDF’s corporate social responsibility, more than 25 trade union and management representatives came together at the ILO’s training centre in Turin to work on improving the implementation of human and social rights in the group (see press release).

Trade union presentations to shareholders: on 15 May, in a rather rare occurrence, the international trade union federations IndustriAll Global Union and the BWI spoke at the general meeting of LafargeHolcim shareholders to denounce a number of violations of workers’ rights. The press release includes links to the speeches which have been posted on YouTube.

• Global trade union network: a trade union network has been set up in the specialist health care group Fresenius (280,000 employees) to negotiate a global framework agreement (see press releases from UNI Global Union , PSI and the EPSU).

Working conditions around the world : to mark its 100th birthday, the International Labour Organisation has published a joint report with the European Foundation for the Improvement of Living and Working Conditions (Eurofound) on “working conditions in a global perspective“. The report provides the first comparative analysis of job quality surveys carried out in 41 countries, mainly over the last five years. It covers the 28 countries of the EU, China, South Korea, the United States, Turkey, the Spanish-speaking countries of Central America, Argentina, Chile and Uruguay (see press release).