IR Notes

“It’s only my personal impression and it applies primarily to my country (Luxembourg), but it seems we’ve made more progress with teleworking in one week than we have throughout recent years”, says Gabriel Di Letizia, BNP Paribas EWC secretary, with feeling. ”The Axa group was one of the first actors to protect its employees by resorting to teleworking, worldwide: 90% of its locked-down employees were allowed to work from home”, explains Patricia Nunez, deputy secretary of the Axa group EWC. “This was one of the first measures implemented at European level”, says Guy de Trazegnies, EWC secretary at Orange. “We quickly switched over to an operation based entirely on teleworking, with almost 97% of our employees working in this way”, says Patrick David, EWC secretary at Dassault Systèmes. At Worldline “98% of the workforce is teleworking”, comments Marie Lopez, the group’s head of industrial relations. At reinsurer Scor, the figure is even higher: 100%. Will the post‑Covid-19 period witness the advent of teleworking, seen as an ideal solution for guaranteeing a healthy work-life balance, combatting climate change (with less office space and transport use needed) and above all for protecting ourselves against exposure to the virus? Whatever the reality, our perception of teleworking is undergoing radical change and it is destined to play an important role in future. However, the European Agency for Safety and Health at Work emphasises that the teleworking going on in the Covid-19 environment does not represent ideal working conditions (see below). Patrick David comments that “this situation, in which everyone is teleworking in a locked-down environment alongside their family or close friends, is proving more complicated than we might think”, and he highlights a variety of different situations “where we will need time to take stock and assess the risks”. “Even though teleworking colleagues are granted a certain amount of freedom to look after their children and carry out domestic tasks”, notes Denis Suire, deputy secretary of the GSK European Works Council, “their workload remains the same, in other words too great”. As a result, some companies have tried to make these emergency teleworking arrangements sustainable. Axa has set up a programme to provide assistance for employees in the form of telemedecine and psychological support. It has launched a global “Checking” survey to gather employees’ reactions. Scor is conducting weekly surveys to measure its employees’ work-life balance. Orange has set up hotlines providing psychological support. None of the EWC secretaries or managers questioned by IR Notes envisages a rapid return to office-based working. At Scor, all staff will continue to telework until 30 June. Gabriel Di Letizia explains: “officially, BNP Paribas management is talking about a ‘resumption of business’ and not a ‘return to working on site’”. At SAP, there will be no “easing of lockdown before the beginning of June” and management plans to have no more than 30% of the workforce based on site, so that the return to work can proceed safely”, with staff working on alternating rotas (this is also what Scor plans to do). “No more than 10% of the workforce will be coming back to work on site”, says Patricia Nunez, speaking on behalf of the Axa EWC. And all of this is based on the assumption that there will be enough masks and signage, and enough workspace laid out appropriately”.

Preparing for a return to work : On 24 April, the European Agency for Safety and Health at Work (OSHA-EU) published guidelines to be followed in the context of the Covid-19 crisis, particularly with regard to returning to work after a period of confinement (COVID-19: Back to the workplace – Adapting workplaces and protecting workers). This advice will be updated at regular intervals. The document emphasises that worries linked to going back to work and exposure to the virus, and having to adapt to changes to the job “may well result in stress and mental health problems”. Moreover, given that many employees are becoming teleworkers for “the first time” as a result of the Covid-19 crisis, and “their working environment is likely to be deficient in many aspects compared to their workplace”, OSHA-EU is also offering advice on how “to minimise the risks to workers who have not been able to prepare their home workplace properly”.

Self-employed independent contractor or employee? : After a British court asked it to rule on how the employment relationship between a parcel delivery company and a courier should be classified, the Court held that a person cannot be deemed a worker if he is afforded discretion to: 1° use subcontractors or substitutes to perform the service which he has undertaken to provide; 2° accept or not accept the various tasks offered by his putative employer, or unilaterally set the maximum number of those tasks; 3° provide his services to any third party, including direct competitors of the putative employer; 4° fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the putative employer. It notes that the independence of the courier “does not appear to be fictitious and, second, there does not appear, a priori, to be a relationship of subordination between him and his putative employer”, without casting doubt on the reality of these flexible arrangements. This decision was issued by means of an order, because the Court argued that the solution could be “clearly deduced” from its existing case-law. However, it would have been desirable for the case to give rise to a landmark ruling, in order to enlighten the national courts on how to deal with disputes linked to the platform economy (CJEU 22 April 2020, case C‑692/19, B. v. Yodel Delivery Network).

• Homophobic statements constitute discrimination in terms of recruitment policy: An Italian lawyer stated on the radio that he did not wish to recruit anyone who was homosexual or have them working at his practice. He was ordered to pay 10,000 euros to an association that defends LGBTI rights. As it did in its Asociata Accept ruling (CJEU, 25 April 2013, case C-81/12, Asociata Accept), the Court of Justice emphasised that statements implying the existence of a homophobic recruitment policy are included within the notion of “conditions for access to employment […] or to occupation”, as protected by Directive 2000/78/EC, even if they are made by a person who does not have legal capacity to recruit employees, provided that the link between those statements and the employer’s recruitment policy is not hypothetical. The very essence of the protection afforded by that directive would become illusory if these statements fell outside the material scope of that directive because they were made in the context of an entertainment programme, or because they constitute the expression of a personal opinion (CJEU, 23 April 2020, case C-507/18, Associazione Avvocatura per i diritti LGBTI and press release issued by the Court).

• Temporary work: : On 29 April, the European social partners in the temporary agency work industry issued a joint statement on protecting workers in the COVID-19 pandemic (see UNI Europa press release).

• Occupational disease : The European Trade Union Confederation and its ten affiliated federations have sent a letter to the European Commissioner for Jobs, Nicolas Schmit, asking for Covid-19 to be recognised as an occupational disease, so that better compensation schemes can be established to assist with healthcare costs and the consequences of the disease for people who become contaminated at their workplace (see EPSU press release).

• Virtual works council meetings : A bill is being presented to amend Article 129 of the Law on Company Formation (BetrVG), so that meetings can be held and resolutions passed by means of conference calls and videoconferencing, subject to certain conditions, up to 31 December 2020.  This derogation also applies to European Works Councils, SE Works Councils and special negotiating bodies.
  > See also: a summary of the measures taken by the German government to combat Covid-19 in mid-April.

Preparations for easing of lockdown :

A national protocol on easing lockdown has been published to help companies get back to work from 11 May onwards, while at the same time protecting the health of their employees. This protocol supplements the 48 occupation-specific guides prepared in conjunction with the social partners (see press release).

• Protocol on health and safety at work : A decree dated 27 April, sets out details of how the economy can start up again. A protocol agreement negotiated with trade unions and employers’ organisations describes the precautions to be taken, how shared work spaces are to be laid out, and how work is to be organised. Sector-specific agreements have been negotiated in the construction sector and in the transport and logistics sector (see CGIL press release).

Fair treatment : Following an extraordinary meeting with management, the Air France KLM European Works Council issued a declaration concerning the “catastrophic” impact of the Covid‑19 crisis on the company. Members call upon management to take measures that are fair, “to show a social face towards each and every employee in the Group” and to ensure that all employees who are in contact with customers are protected.

• Temporary select committee: On 24 April, a temporary select committee, derived from the special negotiating body that concluded the agreement on the Coca-Cola European Partners EWC, met with management to take stock of the situation regarding the Covid-19 pandemic. This temporary body was set up at the request of the SNB’s members, and will remain in existence until the European Works Council can hold a plenary meeting to elect a select committee in due form.

A common social protection base : the management of the French energy group Engie (177,000 employees) was already in the process of negotiating a global framework agreement with the global union federations IndustriALL Global Union, PSI and IBB, and decided to implement with immediate effect one chapter of the future agreement establishing a common social protection base (see IndustriAll press release). In a declaration approved by the three organisations, the group announces: 1° the launch of a programme providing full coverage of employees’ hospitalization costs related to Covid 19 and of a minimum of 75% of their hospitalization costs, whatever their pathology. 2° The introduction of life insurance cover equivalent to 12 months’ gross salary, in respect of all deaths that have occurred since the beginning of the Covid 19 crisis (see Engie press release).

OECD Complaint linked to Covid-19 : On 17 April, four French trade-union federations submitted a complaint to the French OECD National Contact Point, made against the call centre group Teleperformance (310,000 employees), which works for suppliers such as Apple, Google and Amazon. The Uni Global Union federation, which is critical of the fact that workers are being put at risk due to the Covid-19 pandemic, points out that “this is the first Covid-19-related complaint filed under the OECD Guidelines for Multinational Enterprises” (see UNI Global Union press release). “Teleperformance’s inadequate, slow response to the coronavirus crisis has put thousands of workers at risk at the time of a deadly pandemic,” said Christy Hoffman, General Secretary of UNI Global Union, which has been battling for several years to persuade Teleperformance to negotiate a global framework agreement. In response, on 27 April, the group published a press release, explaining that it is “mobilized to fully protect its employees, thanks to work-at-home solutions and all of the measures taken to ensure strict compliance with hygiene and social distancing rules”. It emphasises that the number of staff working from home has risen from 5,000 at the end of 2019 to 155,000 in April this year (66% of the group’s workforce). In another press release, management quotes a statement approved by Teleperformance’s European Works Council on 1 April, applauding “the measures taken”. “As far as actions taken within the European Union are concerned, management has responded appropriately” confirms EWC secretary Stephan Sielemann. “Even though there may have been some problems at local level, rapid progress has been made. You can’t simply introduce work-at-home arrangements for all employees from one day to the next.”

• Protection for supermarket workers: Multinational food retailers Auchan, Carrefour, Casino and El Corte Inglés have signed a declaration with the Uni Global Union federation, in which they commit to work with it in order to protect supermarket workers and customers during the Covid-19 pandemic (see press release issued by UNI Global Union).

Negotiations on European Works Councils and SNBs : following the Joint European Trade Union Federations’ Recommendations to EWC/SE Coordinators and worker representatives on SNBs, EWCs and SEs, which were issued in early April, the European Trade Union Federations have now published a second set of recommendations on How to deal with negotiations involving EWC/SE and SNB (text also available in Dutch, Swedish, Czech). In the context of the Covid-19 crisis, these federations are laying down two rules: 1° No negotiation meeting should take place via phone or videoconference. Instead, meetings should be postponed until face-to-face meetings are once more allowed. 2° Members should either request that meetings be postponed or that negotiations be suspended (see also EPSU press release).

Undeclared work : On 2 April, the European Commission published a report on enhancing cooperation between Member States within the framework of the European Platform for tackling undeclared work. It was established in 2016, and will soon include the new European Labour Authority, in the form of a working group. Including the ELA in its work should provide “increased impetus to tackle undeclared work more effectively and transform it into declared work, contributing to fair working conditions, fair competition and fair mobility for the benefits of workers, the economy and society at large.”