IR Notes

The European Commission has presented a communication setting out a European strategy for data, and a white paper on Artificial Intelligence – a European approach to excellence and trust (see press release), opening a consultation period that will last until 19 May. In the area of Artificial Intelligence (AI), the Commission plans to draw up legislation distinguishing between “high-risk” AI systems and the rest. The former would be developed according to strict rules, whereas the rest could adopt a more flexible framework. The Commission includes “the use of AI applications for recruitment processes” in the “high-risk” category. The unions have given this initiative a fairly positive reception, even though the trade union movement is calling for a greater focus on social dialogue (see press releases issued by UNI Europa and the European Trade Union Confederation). The employers’ organisation BusinessEurope believes that it is necessary to “get the balance between open innovation and societal protection correct” (see press release).

• Minimum wage : An “EU legal instrument concerning minimum wages would not only contravene the Treaty but would also – to achieve the aims set out by the Commission – need to be both detailed and complex with no guarantee that it would work in practice. It is time to abandon the idea”… this was the blunt opinion put forward by Samuel Engblom, Head of Social Policy at the Swedish trade union confederation TCO, in a blog published on the confederation’s website, in response to the consultation document submitted by the Commission to the European social partners regarding the introduction of fair minimum wages within the EU. (see IR Notes no. 133). This analysis neatly summarises the reluctance of most social partners in the Nordic countries to embrace the idea of a minimum wage, given that they are committed to their own model, which places the emphasis on collective bargaining.

A break that is not a rest period : The Court of Justice is being asked to rule on a delicate case concerning the Working Time Directive. The case concerns a Czech fireman who was employed in shift work for three years on an industrial site. For his lunch break, he was allowed 30 minutes to go to a canteen, on the understanding that he could be called back to work at any time, and had to be available within two minutes. Only his intervention periods were remunerated. The employee claimed payment for the entire break period, on the grounds that he was not really resting. In his submissions (CJEU, Concl., 13 u February 2020, case C-107/19, not available in English), the Advocate General, whose opinion is usually followed by the Court of Justice, holds that the desired objective of Article 4 of Directive 2003/88 (entitlement to a break during a work period lasting six hours) appears not to be achieved “where the worker’s break time is likely to be interrupted at any time”. “Such uncertainty linked to the occurrence of an intervention means that the worker is likely to be in a state of constant alert, which is at odds with the aim of resting during a break time”.

• Workers can no longer be dismissed because of repeated absences : On 18 February, the government approved the abolition of the right to dismiss workers on the grounds of repeated absences from work, even where these absences are for valid reasons. Such dismissals created an entitlement to redundancy money representing 20 days’ wages for each year worked. Article 52 d) of the Workers’ Statute will therefore be repealed in the coming days, as soon as the royal decree has been published. This article previously allowed employers to terminate a contract of employment based on absences from work, despite these absences being justified and intermittent, where they amount to 20% of the employee’s working time over a period of two consecutive months, provided that the total absence period over the previous 12 months amounts to 5% of the employee’s total working time or to 25% of working time during four non-consecutive months within a 12-month period. In practice, this way of terminating a contract of employment punishes employees who frequently take sick leave for very short periods of time.

A sliding scale for calculating redundancy payments : The European Committee of Social Rights, which is the Council of Europe’s body overseeing the application of the European Social Charter, has pronounced a decision (published on 11 February) condemning Italian law in relation to the ceiling placed on redundancy payments. The CGIL trade union confederation had disputed a provision of the 2015 labour market reform (Jobs Act), arguing that Italy was in breach of Article 24 (entitlement to protection in the event of dismissal) of the Charter, because the existing compensation mechanism, as provided for by legislative decree no. 23/2015, does not allow victims of unlawful dismissal to take legal action seeking compensation that is both commensurate with the damage suffered and sufficiently dissuasive to act as a deterrent to employers behaving in this way. In point of fact this decree provides for a ceiling on this compensation and the amount awarded is automatically calculated strictly on the basis of length of service. The Committee points out that “any ceiling in compensation that may preclude damages from being commensurate with the loss suffered and sufficiently dissuasive is, in principle, contrary to the Charter”. It notes that in the event of unlawful dismissal, “victims may choose between two options to compensate for their pecuniary damage – a judicial remedy and a non-judicial one – which are subject to a ceiling and do not cover the financial losses actually incurred since the dismissal date”. The Committee considers that the conditions attaching to each of these options are “of a nature to encourage, or at least not inhibit, recourse to unlawful dismissal”. The CGIL, which is delighted at this victory, is calling for legislative reform aimed at strengthening workers’ guarantees (see CGIL press release).

> Note: this decision should also call into question the validity of the sliding scale established in France in 2017, which is applicable to statutory compensation payments covering unlawful dismissal.

A council for a Europe in the broad sense : On 9 December 2019, the management of the Dutch subsidiary of the Israeli pharmaceuticals group Teva (26,000 employees), which is specialised in generic medicines, signed a European Works Council agreement. The agreement establishes a European Works Council of no more than 30 members, one of whom is for countries with between 75 and 999 employees and two for those with more than 1,000 employees. Countries with less than 75 employees “will be represented by other countries”. It is interesting to note that the geographical scope of the agreement extends further than the EU alone, and includes the United Kingdom, the countries of the European Economic Area (Iceland, Norway, but also Switzerland) and (which is more unusual) Bosnia-Herzegovina, the Republic of Macedonia, and Serbia. Where projects have a transnational dimension, the agreement specifies that “management will use its judgement to decide whether to provide information to the Select Committee concerning significant single country events”.

• Reactions to bank’s business plan : Two weeks after publication of its new Team23 business plan, which provides for 8,000 job losses at the Italian bank UniCredit (90,000 employees), its European Works Council, which is now chaired by Luciano Malvolti (First CISL), held a plenary meeting, from 16 to 18 December 2019, marking the start of the new council’s term of office. Council members rejected management’s message claiming that these redundancies were merely the result of technological progress. “Digitalisation must also be an opportunity and its impact can be jointly managed by employers and workers’ representatives”, Luciano Malvolti emphasises (see UNI Europa press release).

Negotiating via videoconferencing : A hearing was held on 6 February before an Italian court in a case brought by the Italian trade unions Fistel-CISL and SLC-CGIL against the Italian tissue papermaking group Sofidel (6,327 employees), following the company’s repeated refusals to set up a European Works Council. Five years after the trade unions first applied for the creation of an EWC, and immediately before the hearing, management finally convened a special negotiating group at short notice, using videoconferencing technology. UNI Europa interpreted this initiative as a manœuvre intended “to avoid an unfavourable decision from the court” (see UNI Europa press release).

European Works Council guide : An extremely comprehensive guide has been commissioned by the ETF trade-union federation, based on experience of the EWCs of Deutsche Bahn and Deutsche Post DHL. This guide, which is financed by the European Commission and produced by Helmut Gohde, a German consultant who is an expert in EWC-related matters, answers many of the questions posed by EWC members. It is nearly 100 pages long and provides an insight into what a European Works Council can do.

Best practices for European Works Councils in the metalworking industry : The CFDT metalworking federation (FGMM-CFDT) has published a document (with versions in Polish, Czech and Romanian available from Caroline Blot)  summarising the work of the project entitled “European Metalworker Participation: State of play and best practices on the edge”, which was supported by the European Commission and led by the consultancy firm Syndex. At least ten trade-union federations from the metalworking sector were involved in this project, which provides a survey of the ways in which around 30 EWCs in this industry operate. The document contains a number of data sheets that the reader can use to evaluate for themselves how these EWCs work, making it a useful benchmarking tool.

• Negotiation in progress : A negotiation is currently under way within the Total group, aimed at reaching an agreement on worker participation, on the occasion of the oil group’s adoption of European company status (see FCE-CFDT press release). A special negotiating group is meeting for this purpose until 15 April. A discussion is also under way, with a view to ensuring specific representation for its Hutchinson subsidiary (20,700 employees in the EU).

Agreement renewed : On 14 February, following two years of negotiations, the Norwegian telecommunications group Telenor (20,000 employees) renewed its global framework agreement signed in 2013 with the UNI Global Union federation. The new text adds provisions concerning protection against sexual harassment and physical, sexual and psychological violence at the workplace (see press releases issued by UNI Global Union and Telenor).

A minimum level of social protection : On 13 February, the Saint-Gobain group (180,000 employees) put forward its “CARE by Saint-Gobain” programme, which includes minimum applicable types of cover: 1° a minimum of 14 weeks’ maternity or adoption leave on full pay; 2° a minimum of three days’ leave on full pay in the case of paternity or partner leave; 3° cover for 80% of the medical expenses payable to general practitioners (GPs) and for hospitalisation of the employee and their family; 4°. Lastly, a capital sum of one year’s salary in the event of an employee’s death, payable to their family. This programme will gradually be deployed in 68 countries by the end of 2022. The cover relating to parenthood will be applied by the end of 2020 (see press release).

New technologies and employment : A report produced by the European Foundation for the Improvement of Living and Working Conditions (Eurofound) examines the repercussions of eight new “game-changing technologies (GCTs)” on employment and working conditions (advanced robotics; 3D printing; the Internet of Things; electric vehicles; autonomous vehicles; industrial biotechnologies; blockchain; virtual and augmented reality). The study avoids the pitfall of offering projections in terms of job losses, and puts forward a number of ideas that the social partners will find useful. While most of these technologies are capable of reducing workers’ exposure to physical risks, the study argues that they can be expected to bring about negative psychosocial effects related to increased stress or decreased quality of relationships at the workplace, in addition to the assumed negative impact of automated performance control. As far as the right to privacy and collecting personal data are concerned, staff “now need to know how their personal data are collected, stored, processed and disseminated”. Worker representatives and unions should start to include issues (such as data control, surveillance, profiling, geo-tracking) arising from this in workplace or company discussions and negotiations. This finding should encourage employee representatives to ensure they are fully trained to deal with these subjects.

> Also worthy of note is a comprehensive study on due diligence requirements, published by the European Commission and comprised of a final report, a synthesis report, country reports and survey results statistics. It lays the first stone in the process of building European legislation in this area.