IR Notes

A day after an apartment displaying a rainbow flag was set on fire by extremists in Warsaw, the European Commission presented its first-ever EU Strategy for lesbian, gay, bisexual, trans, non-binary, intersex and queer equality (LGBTIQ) (see press release). One of the employment-related topics is directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation which seeks to “combat discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation” (article 1) (see also Discrimination). The Commission is firstly going to provide a detailed review of the application of this directive in 2021, together with the evaluation of directive 2000/43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. In addition to monitoring the implementation of these two texts by Member States, the report must check whether all countries have set up a standards for equality body in line with the recommendations of 22 June 2018 on standards for these bodies. Despite a number of Court of Justice rulings, the Commission notes that “the legal framework does not yet explicitly mention sex characteristics as a prohibited ground for discrimination”, which might lead to it suggesting that these two directives be revised. Although some national legislations do so (see report: European Commission, Trans and intersex equality rights in Europe – a comparative analysis, November 2018), it is not the case in all countries. The Commission will, therefore, examine how non-binary, intersex and queer people can be better protected against discrimination.
Another area of focus is the free movement of people in the Union (directive 2004/38 of 29 April 2004) which is sometimes impeded because some States do not recognise all aspects of “rainbow families”. The Commission will, therefore, check that the term “spouse”, as defined by the Coman ruling (CJEU, 5 June 2018, case C‐ 673/16), is being complied with and applied equally to same-sex partners. Where this is not the case, it will take legal action. The Commission will revise the guidelines on free movement in 2022 to make it easier for all families, including rainbow families, to exercise the right to free movement. This applies, for example, to married and registered partners who encounter difficulties in travelling and taking up residence in another Member State.
The Commission reminds States that tackling inequality in the EU is a “shared responsibility” which “requires joint efforts and action at every level”, including in companies. To reach companies, it will foster the creation of national diversity charters and will engage in specific efforts to promote LGBTIQ equality through dedicated action in the framework of the EU Platform of Diversity Charters

Reaction of social partners to the LGBTIQ strategy : the text presented by the Commission, although largely ignored by the main European employers’ organisations, received widespread support from trade unions. The European Trade Union Confederation (ETUC) welcomed the initiative and “commits to increase its work with national trade unions to support LGBTIQ equality in work, and to press MEPs and Ministers to get an effective LGBTIQ equality strategy adopted by the EU” (See press release issued by ETUC). IndustriAll Europe fully supports the strategy. “We are happy to see that the Commission clarifies that the Gender Equality Directive that enshrines the right not to be discriminated against in the world of work on the basis of sex does also apply to gender reassignment”, explains Judith Kirton-Darling, Deputy General Secretary. “IndustriAll Europe would like to see here an appeal to employers to support their employees during periods of transition”. (See press release issued by IndustriAll Europe).

Equal pay and pay transparency : tired of waiting for the European Commission’s promised text on “binding pay transparency measures”, the European Trade Union Confederation (ETUC), on 4 November, presented its own pay transparency directive, to mark European Equal Pay Day (see press release issued by ETUC). Since then, the Commission, which has delayed the publication of its proposal for a directive several times, has announced that it will unveil it shortly, perhaps before 15 December, the latest date announced (see Tweet from the Commission). ETUC has commissioned experts in European labour law to draft a “legally watertight” proposal for a directive from which the European Commission can take inspiration. In particular, it proposes to ban pay secrecy clauses or to require all employers to conduct pay audits and produce action plans.

Reference period for the purpose of recognising a collective redundancy : the Court of Justice has issued a ruling on collective redundancy (see Collective redundancy), the practical consequences of which are significant in the context of a huge increase in restructurings (CJEU, 11 November 2020, case C-300/19, Marclean Technologies not available in English). This case concerns the interpretation of directive 98/59 of 20 July 1998 on collective redundancies. Article 1 of this Directive defines collective redundancies as dismissals “effected by an employer for one or more reasons not related to the individual workers concerned where […] the number of redundancies” in the company exceeds a certain threshold, either over a period of 30 days or 90 days. So, which should be taken into account: dismissals effected during the 30-day or 90-day period preceding the disputed dismissal? Or during this same period following dismissal? Or even, as the Advocate general of the Court of Justice advocated (see IR Notes 145), take into account any 30-day or 90-day period during which the dismissal took place? The Court of Justice takes the view that this last solution can be the only choice. “It follows from the scheme and objective of this directive that it requires such a period to be continuous”. Therefore, in order to “ascertain if an individual disputed dismissal is part of a collective redundancy scheme, the reference period (…) for determining the existence of a collective redundancy scheme must be calculated by taking into account any consecutive 30-day or 90-day period during which this individual dismissal took place and during which the employer effected the greatest number of dismissals for one or more reasons unrelated to the worker in question.” This is the only solution which meets the objective of the directive which seeks to “provide better protection for workers in the event of collective redundancies”.

IG-BCE wants to reform employee participation : on 10 November, the chemical industry trade-union federation (IG-BCE) raised the question of a proposal for reforming the employee participation process in companies. The Codetermination Act of 1976 provides for a supervisory board, on which half of the members are employee representatives and half are representatives of the employer, in companies in Germany with more than 2,000 employees. In this case, the employer, who is the chair of the supervisory board, has a double voting right, which allows for a decision to be made in the event of a stalemate. Michael Vassiliadis, the IG-BCE president, believes that this legislation “dates back to the time when old white men thought they could govern whole societies simply by thumping the table”. He stresses that this rule needs “to be updated as a matter of urgency”, using as an example Continental, where the chair of the supervisory board enforced 30,000 job losses and the closure of entire sites with his second vote “without any discussion of alternatives beforehand”. The proposed reform provides that, in the event of an important decision (changing legal form, moving the head office abroad, disposals of companies, mergers and takeovers, factory closures or collective redundancies), a “neutral arbitrator”, chosen in advance by the board by a two-thirds majority, will be appointed to conciliate. Therefore, rather than leaving it to the chair to decide, the parties will hand the matter over to the conciliator who must present their proposal within a reasonable time. A two-thirds majority is required for the proposal to be rejected.

• Increased minimum wage: on 28 October, the federal cabinet adopted the third decree on the adjustment of the minimum wage. The statutory minimum wage will, in the first instance, be raised to 9.50 euros an hour gross on 1 January 2021, and will then increase in stages to 9.60 euros gross on 1 July 2021, 9.82 euros gross on 1 January 2022 and 10.45 euros gross on 1 July 2022. The Federal Minister of Labour, Hubertus Heil (SPD), restated his wish to see the minimum wage rise quickly in future (see press release).

• Increase in the minimum wage : on 30 October, the government set the amount of the minimum wage for 2021 at 3,400 kunas (€453.30) net, or 4,250 kunas (€566.60) gross. That represents a rise of 150 kunas (20 euros), or 4.61% more than the average net minimum wage for 2020. The minimum wage has increased by 36.21% in four years. The new minimum wage now stands at more than 46% of the average gross wage, as demanded by the Union of Autonomous Trade Unions of Croatia (UATUC), the country’s biggest trade union confederation, which expects to see a more substantial increase for 2022.

• Teleworking during the Covid-19 crisis : a government decree no. 487/2020 on “the application of the rules covering teleworking during the state of emergency” came into force on 12 November and will remain in place until 8 February 2021. The decree provides for the disapplication of article 86/A of Act 93 of 1993 concerning occupational safety and health, which contains specific provisions covering teleworking. The employer and the employee may disapply article 196 of the labour code which refers to teleworking. That means that they may freely disapply this article, even if this is to the detriment of the employee. The parties may agree teleworking procedures, change the place of work or set up a partial teleworking arrangement (a few days a week or part of the day).

Minimum guarantees in the context of restructuring : during a plenary meeting held on 20 October, the members of the European Works Council at Safran (a parts supplier to the aircraft industry) demanded that a European agreement be put in place to avoid forced redundancies, similar to what has been negotiated in France. Such an agreement would have to include “measures for group mobility to ensure its role in preserving the jobs and skills of the group’s employees”; incentives for voluntary redundancies and specific training to help employees adapt to the jobs of the future. Despite an unprecedented crisis, “the Group continues to post double-digit profitability” which should allow the implementation of “a genuine European social model of crisis management” (see press release).

Tackling the Covid-19 crisis : following the joint declaration signed with Inditex, the IndustriAll Global Union federation and the German group Tchibo have signed a joint declaration, publicly reaffirming and strengthening their commitment to work together to support the garment industry in recovering from the crisis created by the global pandemic. The text provides, for example, for the commitment to “ensure the health and safety of all workers throughout the Tchibo non-food supply chains” or to generate the financial conditions that allow suppliers to “honour payments to workers and preserve the level of employment and income of their workers”.

• Global union committee : the 90 trade union officials of the ArcelorMittal global union network, who met on 3 and 4 November, have issued a declaration calling on the management to negotiate a global framework agreement with a view to setting up a global union committee “with proper information and consultation processes over cross-country issues, not only about the health and safety issues, but also and especially about the group’s strategies on the global location of its facilities and about what kind of products Arcelor Mittal is going to develop for the future global steel market” (see press release).
  At Shell, the global union network is calling for a just transition for workers (see press release issued by IndustriAll), whilst its counterpart at Fresenius is criticising the management for the lack of protection for employees during the pandemic (see press release issued by EPSU).

Pay transparency : at the request of the European Commission, the European Foundation for the Improvement of Living and Working Conditions (Eurofound) has examined three types of measures to ensure pay transparency and guarantee the right to equal pay for men and women (see Gender equality): 1. the right for employees to obtain information on their own level of pay in relation to their colleagues; 2. reports detailing average remuneration by category of employee or position, broken down by gender; 3. pay audits. Based on 124 interviews with company management and employee representatives from 14 countries, the study assesses the cost and appropriateness of these instruments (Measures to promote gender pay transparency in companies: How much do they cost and what are their benefits and opportunities?). A large majority of the employer and employee representatives (66%) believe that pay audits are more beneficial than pay reports (44%). Stressing the limitations of the reports, they suggest that they go further in terms of analysis, for instance by including additional breakdowns, by carrying them out separately for different units or by including a longitudinal perspective. “The study has shown that pay audits do not seem to present major problems for companies”, stresses Eurofound researcher Christine Aumayr-Pintar (see her article: Are simple statistics enough? On the benefits of gender pay reports and audits).