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IR Notes 126 – 25 September 2019
www.irshare.eu
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A question for…
Isabelle Schömann, Confederal Secretary of the European Trade Union
Confederation (ETUC)
Will your campaign for more
democracy at work be heard by the European
Commission? As things stand at the moment, democracy in
the workplace and a revision of the directive on European Works
Councils do not feature in its programme. We’re going to do
everything we can before the hearings of the future commissioners
take place, to ensure that these two themes are explicitly included.
This is vital. Sustainable companies will have to encompass all
three dimensions (economic, social and environmental), they can’t be
separated out from one another. We can no longer keep to the
traditional business model of a company that exists primarily to
serve the needs of shareholders. This approach is out-of-date and
dangerous. Shareholders are just one of the actors involved in a
company comprised of various stakeholders: its employees are another
key stakeholder. Management must factor workers and their
representatives into companies’ business strategies, seeing them as
actors who possess expertise and skills that can serve the company’s
needs. Otherwise, these businesses will be left behind. The European
Commission is duty-bound to listen to what society is calling for:
greater participation in decision-making. In particular, it must
respect and promote workers’ rights to be informed and consulted,
and to take part in decisions affecting them, as set out in the
European Treaty. These fundamental values are now gaining a voice
within companies.
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Diary
30 September Helsinki High-level
conference organised within the framework of the EU Finnish Presidency,
entitled “Europe
for Gender Equality? Taking Stock – Taking Action”.
16
October Brussels Tripartite
Social Summit
21 to 25
October European
Union European
week for safety and health at work
24
October Luxembourg Social
Affairs and Employment Council
24 and 25
October Frankfurt am
Main Conference
organised by the German trade-union federation IG Metall to present
good practices implemented by European Works Councils; a
discussion around the study performed by the European Trade Union
Institute (ETUI), which involved more than 1635 European Works Council
members, plus a review of Brexit and of the prospects for the EU in
light of the European elections and the new Commission.
28
October Brussels Lunch
debate organised by the European Trade Union Institute with Ewan
McGaughey, Senior Lecturer at King’s College London, Isabelle Schömann
(ETUC), Aline Hoffmann and Sara Lafuente Hernández (ETUI) on the theme
of “An
Economic Democracy Plan for Europe: the next step for worker
codetermination“.
3 to 6
November Berlin Seminar
for European Works Council and European company Works Council
members, organised by four German trade-union federations, with
a view to strengthening the processes in place for informing and
consulting these councils. Contact: Doris Meissner – doris.meissner@igbce.de
12 and 13
November Bilbao Healthy
workplaces summit 2019
14 and 15
November Brussels Final
conference of “European
Metal Workers’ Participation: state of play and best practices on
the edge”, the European project organised by the French
trade-union federation FGMM-CFDT, with the support of 12 associated
trade unions in Europe and the consultancy firm Syndex, which is
contributing its expertise. Simultaneous interpreting provided in
English, Spanish, French, Polish, Romanian and Czech. The conference is
open to European Works Council members, who must register via their
trade union. Contact: Caroline Blot – caroline.blot@fgmm.cfdt.fr
3 and 4
December Brussels Conference
organised by the European Trade Union Institute (ETUI) on “The
future of health and safety in Europe”, thirty years after the
adoption of the 1989 EU Framework Directive.
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Lead
story
Could a
revision of the directive on European Works Councils be possible?
Following the evaluation of Directive 2009/38/EC on European Works Councils, the
European Commission decided that a revision of the text was not required, and
instead, invited the European social partners to join forces with it on the task of
drawing up a handbook. However, the European Trade Union Confederation (ETUC) does
not want to proceed with this experiment, which began in April of this year, until
an undertaking is given regarding strengthening the provisions of this text. At the
annual conference for European Works Councils, organised by the ETUC, and held on 11
and 12 September in Brussels, more than 200 representatives of around 100 European
Works Councils from 18 EU countries signed a statement
calling for greater democracy at work (see press
release and live
webstreaming from the conference). In addition to calling for a framework
directive that revises and strengthens workers’ rights to be informed and consulted
and to take part in decisions affecting them, as set out in several directives, the
ETUC is also seeking a revision of the directive on European Works Councils. This is
nothing new, but for once the planets are aligned in a way that offers new hope to
the trade-union movement: 1° The composition of the new European Commission gives
the ETUC hope that its voice will be heard (see below). 2° MEPs from the main
democratic political groupings were on the platform, and all of them supported the
initiative and the need to revise the directive. Marc Born, Secretary of the IBM
European Works Council, summed up the situation as follows: “Everyone is in
agreement, so what are we waiting for?”. 3° European Works Council members who spoke
during this two-day event, in the presence of EU Commission representatives,
repeatedly called for concrete ways to enable them to exercise their rights: tougher
sanctions where the information-consultation process is not adhered to (this is
still an extremely common occurrence); securing the resources they need in order to
take legal action, given that European Works Councils have no budget to cover this
(the idea of a trade-union solidarity fund was put forward); and seizing a special
European court to deal with this type of dispute. However, this dynamic is unlikely
to prompt BusinessEurope (which is opposed to a revision) to change its mind, and
further efforts will be required to convince Member States.
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1. European
Union
Social
update
A European Commission with a social
face: The new European Commission will include a number of
commissioners who have an in-depth knowledge of the employment and social affairs
brief (see press
release issued by the Commission). In addition to President Ursula van der
Leyen, who previously held the Family and subsequently the Work ministerial
portfolios, the ‘Jobs’ portfolio will now go to the former Luxembourg Minister of
Work, Nicolas Schmit, who was recently elected to the European Parliament and is an
enthusiastic advocate of social dialogue. Valdis Dombrovskis (Latvia), who is
Vice-President for “the Euro and Social Dialogue” in the current Commission, is to
become Executive Vice-President, and will be responsible for coordinating work on
the economy that works for people. Working with Nicolas Schmit, he will steer the
plans for a European minimum wage and unemployment insurance mechanism. During the
European elections campaign, Frans Timmermans (Netherlands), who is also becoming an
Executive Vice-President, argued passionately for the creation of a Just Transition
Fund, which would allow the goal of a carbon-neutral economy to be achieved in a
socially fair way. Other commissioners too, have acquired career experience in the
social field, such as Sweden’s current Employment Minister Ylva Johansson, who will
be the new Commissioner for Internal Affairs, and will thus be responsible for
integration of migrants. While the composition of the future team – which is still
to be ratified by the European Parliament – has been welcomed by the European
employers’ organisation BusinessEurope (see press
release), it has received rapturous praise from the ETUC. The composition of
this Commission “gives us reason to believe that progress can be made on social
issues over the next five years”, emphasises Luca Visentini, ETUC General Secretary.
[…] “We’re pleased that politicians with a strong track record of standing up for
working people have been proposed for key roles” (see press
release).
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Case law
Recognition of a disability and protection :
To prepare for implementing a collective dismissal, an employer
adopted four selection criteria: being assigned to one of the production processes,
having productivity below 95%, a low level of multi-skilling in the undertaking’s
posts, and a high rate of absenteeism. A female employee, who was frequently on sick
leave and suffered from a physical impairment but was not recognised as a disabled
worker, met these four criteria, and she was therefore dismissed. Did this dismissal
constitute discrimination, in light of her disability? The Court of Justice sets out
the basis on which this employee could be deemed a disabled worker: if her “state of
health leads to a limitation of capacity arising as a result of, inter alia,
long-term physical, mental or psychological impairments, which, in interaction with
various barriers, may hinder the full and effective participation of the person
concerned in their professional life on an equal basis with other workers”.
Consequently, it is for the national court to determine whether these conditions are
met. If they are, does the dismissal constitute discrimination? The Court notes
that the criteria “are ostensibly neutral”, but that their application may give rise
to a difference of treatment. The national court must therefore check whether,
before dismissing the worker, the employer took effective and practical measures to
adapt the workplace to the worker’s disability. If the employer did not provide
“reasonable accommodation” for these needs, within the meaning of Article 5 of
Directive 2000/78/EC, then this dismissal constitutes an act of “indirect
discrimination on grounds of disability”. However, the Court adds, the directive
“does not require the recruitment, promotion or maintenance in employment of an
individual who is not competent, capable and available to perform the essential
functions of the post concerned, without prejudice to the obligation to provide
reasonable accommodation for people with disabilities”. (CJEU,
11 September 2019, case C-397/18, DW).
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Sectoral
social dialogue
- River cruises : On 25 July,
two employers’ organisations, in conjunction with the European trade-union
federation ETF, signed an agreement aimed at enhancing working conditions on
board river cruise vessels, while at the same time maintaining fair competition
in the sector. Following an initial analysis phase, the parties “will draw joint
conclusions and propose adequate binding measures or agreements, to be
implemented by autumn 2020”. (see press releases issued by ETF
and EBU).
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2. États
membres
Germany
Future employment : On 20
September, the Federal Ministry of Work and Social Affairs published the results of
the consultation launched in September 2018 on the future of work (see press
release). This consultation, entitled “New work – New security”, has given
rise to the publication of two booklets: one contains a summary of the discussions
(“Zuhören”)
and the other sets out the solutions proposed by the Ministry (“Anpacken”).
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Supervision of package deliveries :
The Federal Ministry of Work has published a (Paketboten-Schutz-Gesetz)
bill that aims to provide better protection for workers employed by parcel delivery
services, notably by applying a rule already in force in the construction sector and
the meat industry, which involves making the main work-provider jointly and
severally liable for non-payment of its subcontractors’ social security
contributions. This measure seeks to combat abusive practices that have been
apparent for several years now (see press
release). The initiative has been welcomed by the trade-union federation
Ver.di (see press
release).
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Estonia
- Guidelines to promote teleworking :
In June 2017, the social partners signed a joint
teleworking agreement (English version) that includes 10 rules
specifying in particular that teleworking is voluntary and based on mutual
agreement, that all employees with similar responsibilities should have similar
possibilities for teleworking and that teleworkers have the same rights as other
employees. In April 2018, a similar agreement was signed in the public sector.
For employers, the main difficulty lies with matters of health and safety, and
more specifically how to protect the health and safety of employees who are
working away from the employer’s premises. In point of fact the employer is
responsible by law, regardless of where the employee is working. In July, the
Ministry of Social Affairs published guidelines
and recommendations on teleworking (in Estonian), aimed at both
employers and employees. These offer in-depth explanations, focusing in
particular on health and safety (when, where and how teleworking is permitted,
how to guarantee health and safety and how to conduct risk assessments).
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United
Kingdom
- Class discrimination : The
Trades Union Congress (TUC) has launched a campaign to make discrimination on
the basis of social class unlawful, just like discrimination based on sex,
religion or age (see press
release). The campaign is based on a study
showing that graduates from wealthier backgrounds are more than twice as likely
as their working-class peers to start their career in a job paying a salary of
30,000 pounds (see article).
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3.
Companies
European
Works Councils
Revised agreement : The
management of the French cable manufacturer Nexans and the members of its
European Works Council, which was established by means of an agreement
dated 16 July 2003, have revised the initial agreement by means of an amendment
dated 12 February 2019. The text, which boosts the resources available to
the European Works Council, sets out how the Council will operate in conjunction
with the national bodies. “To ensure that the process is effective”, the required
procedures for informing and consulting the representation bodies of the States
concerned by a project that calls for the European Works Council to be consulted,
“cannot be initiated before these procedures have started at EWC level.” The various
representation bodies concerned “cannot therefore be convened before” the European
Works Council “has itself been convened, nor can they hold their first meeting
before the European Works Council has held its first meeting.” However, the
consultation process at the level of the companies concerned “can be completed, if
applicable, before the consultation [of the European Works Council] has been
finalised”, according to the legislation applicable. The amendment adds a
termination and revision clause providing for the agreement to be maintained
following its termination, until a further agreement has been reached, within a
maximum period of three years.
- Group works council / European Works
Council merger: On 4 July, the management of the Compagnie des Alpes group
(5,000 employees), which operates the largest downhill ski resorts in France and
a number of amusement parks in Europe, signed, with the unanimous consent of the
trade unions concerned, an agreement
establishing a European group works council. This initiative, which is
permitted by the French Employment Code, involves merging the group works
council and the European Works Council. The parties emphasise that “having these
two bodies operating side by side is not an optimal arrangement, given that the
themes dealt with and the participants involved are often identical”.
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Transnational agreements
Workplace gender equality : The
Suez group (61,000 employees
in the EU) and a group of trade-union negotiators mandated by the two European
trade-union federations EPSU and IndustriAll Europe have renewed the Group
agreement on Gender Equality in the workplace, signed in 2015. The new
agreement, signed on 12 September, emphasises the persistence of pay gaps in
“certain areas”; the under-representation of women in “some technical and
operational occupations” and in “managerial functions and posts carrying
responsibilities”; and their “over-representation among part-time employees”. The
signatories’ aim is to: 1° achieve gender equality in terms of opportunities; 2°
create a better work-life balance, and, the new agreement adds, 3° strengthen the
prevention of sexual harassment. The agreement requires group business units
employing more than 150 people to implement action plans, in conjunction with
employee representatives. It contains more ambitious quantified objectives than
those in the 2015 agreement, plus a number of monitoring indicators (see press
release issued by the
Suez group and EPSU).
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Diversity and inclusion: : On
5 September, the management of the Italian insurance group Generali (71,000 employees)
signed a Joint
Declaration on inclusion and diversity, drawn up in conjunction with the
European Works Council. This second joint statement follows the
declaration promoting teleworking, which was adopted in 2017. In particular,
the signatories plan to promote: 1° diversity, which is seen as a source of
enrichment, innovation and creativity; 2° inclusion, notably by providing support to
persons with disabilities; 3° work-life balance; 4° a flexible environment; 5° equal
opportunities for people at all stages of their career; 6° excluding all forms of
discrimination. “This new joint statement sends out a signal that management would
like to develop a social dialogue with the European Works Council,” emphasises
Carole Bourner, EWC Secretary. “The Council is not merely the signatory of a text:
it plans to be a stakeholder in the process of establishing a company policy to
promote diversity and equality.”
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- Sexual harassment: On 15
July, the international union federation IUF signed an Agreement
on fighting against sexual harassment with the management of the Accorinvest group (30,000
employees), which owns and operates hotels (see IUF press release). The Meliá hotel
group has already signed an agreement
on this subject. This is the first agreement to be signed following the adoption
of ILO
Convention (No. 190) on Violence and Harassment.
- Digitalisation: The
European Works Council of the French energy group Engie, which has set up a
working group to tackle the issues associated with digitalisation, is due to
issue a joint statement with management on this subject in November, before
starting work on the task of negotiating a European agreement, which is more
binding in nature, in 2020.
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Social
policy
Parental leave : The management
of the Kering luxury goods
group has announced that, from 1 January 2020 onwards, the group plans to increase
its paternity/partner leave from the current figure of five days to 14 weeks’ leave
on full pay for all of its employees worldwide (see press
release).
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