IR Notes

On 30 November, the European social partners in the telecommunications sector (ETNO and UNI Europa) issued a Joint Declaration on Artificial Intelligence. This is the first time that European social partners at sectoral level have produced a text devoted to this subject. Their work follows on from the European framework agreement on digitalisation adopted in June this year. Chapter 3 of this agreement deals with AI, and enshrines the “human in control principle” with regard to AI (see IR Notes 145). The social partners in the telecoms sector emphasise the importance of social dialogue in the design and deployment of AI, especially as regards matters such as data collection and management, ethical AI and and the needs for workforce reskilling/upskilling in the field of AI. The social partners’ responsibility “is to help shape how AI systems are designed, developed, and regulated, and to raise awareness about ethical concerns among AI developers and users”. Moreover, “European trade unions and employer organisations as social partners have an essential role to play in resolving complex questions regarding employment, training, the nature of work, inequality, and social protection systems.” The signatories emphasise that “AI systems should be as transparent as possible for employees, to let them understand both how their data is used, and how decisions affecting them are taken.” They also stress the need for vigilance regarding “algorithmic bias and resulting employment discrimination”, to ensure that AI works “in the service of people, not against them.” The signatories call on their peers at sectoral level to develop training and reskilling policies, with the support of Member States, while at the same time hiring diverse talent to handle AI. Governments also need to “boost education and training programmes for AI and AI ethics”. With the European agreement on digitalisation and this sector-wide agreement in place, the social partners now have sound foundations on which they can develop and nurture a social dialogue around AI, based on transparency.

Human rights : On 7 December, the Council passed a decision and a regulation establishing a global human rights sanctions regime. For the first time, the EU is equipping itself with a framework that will allow it to target individuals, entities and bodies – including state and non-state actors – responsible for, involved in or associated with serious human rights violations and abuses worldwide, no matter where they occurred. In addition to serious human rights violations (slavery, torture, execution, etc.), this text covers other violations or abuses – such as trafficking in human beings, sexual and gender-based violence and violations of freedom of peaceful assembly, of association or of opinion – where those violations or abuses are widespread, systematic or are otherwise of serious concern. The sanctions envisaged consist, in the case of individuals, of a ban on entering EU territory and the freezing of funds applying to both individuals and entities. In addition, persons and entities in the EU will be forbidden from making funds available to those listed, either directly or indirectly. (see press release).
> Find out more: European Parliamentary Research Service, Martin Russel, EU human rights sanctions: Towards a European Magnitsky Act, December 2020

• Road transport: The European Commission has published an an initial set of Questions and Answers regarding the application of new social legislation applicable to road transport, which came into force on 20 August this year (see Regulation 2020/1054 of 15 July 2020), and in particular to driving and rest time rules (see Mobility package). This document, which the European Commission will add to at regular intervals, should serve as the guide for drivers, road transport operators and enforcers to ensure that the rules are applied and controlled in a harmonised manner throughout the EU. This initiative has been welcomed by the European Transport Workers’ Federation (see press release).

Due diligence : An important milestone has just been reached on the road to establishing a due diligence requirements for European companies operating on a global basis. On 1 December, the Council adopted a set of conclusions inviting Member States and the European Commission to promote human rights in global supply chains and decent work worldwide (see press release). The Council welcomes the European Commission’s commitment to present a legal framework for an EU Action Plan focusing on shaping global supply chains sustainably, promoting human rights, social and environmental due diligence standards and transparency by 2021. Lastly, the Council is calling on States to step up their efforts to effectively implement the UN Guiding Principles on Business and Human Rights, including through National Action Plans containing a mix of voluntary and mandatory measures. This is the first time that such a consensus has emerged at the level of Heads of State and of Government. As the European Parliament is also favourably disposed towards the idea of action in this area, it should be possible to make rapid progress, especially since several States, including France, either already have legislation in place imposing a due diligence on their multinationals, or are planning to introduce it. This is the case in Germany, where Hubertus Heil, the Federal Minister of Labour, is applying pressure at government level, with a view to presenting a draft law to this effect. He, incidentally, has openly expressed delight at the conclusions adopted by the Council (see press release). In Finland, the Ministry of Economic Affairs and Employment will be appointing a working group to support the drafting of legislation on responsible business conduct (see press release). This topic will also be at the heart of the Commission’s proposed revision of Directive 2014/95/EU as regards disclosure of non-financial information, next year.
> Find out more: European Parliamentary Research Service, Ionel Zamfir, Towards a mandatory EU system of due diligence for supply chains, October 2020.

A European transport strategy : On 9 December, the European Commission presented its Sustainable and Smart Mobility Strategy, together with an action plan of 82 initiatives that will guide its work for the next four years. This strategy relates to the green and digital transformation planned for the sector, with a view to achieving the goal outlined in the European Green Deal: “a 90% cut in emissions by 2050, delivered by a smart, competitive, safe, accessible and affordable transport system” (see press release). In this sector, which directly employs around 10 million workers in the EU, the Commission notes that working conditions are harsh and “precarious”. In particular, it emphasises “long working hours, periods spent away from home and low paid work”. These working conditions, the Commission adds, “are exacerbated by a lack of respect for, and proper enforcement of, applicable labour standards”. In its view: “Providing higher social standards would contribute directly to reverse the current general lack of attractiveness of the sector” (paragraph 93). That is why it is considering “measures across the different modes of transport to strengthen the legislative framework on conditions for workers” while at the same time guaranteeing “correct implementation [of] the applicable social rights (…)” (see Mobility package). It “will seek to promote high social standards, including in the aviation sector” (paragraph 94). The Commission acknowledges that the green and digital transformation “– which needs to be socially fair and just – will not come easily” (paragraph 109). It “will issue recommendations (….) on means to mitigate their impact on the transport workforce” (paragraph 95). The European Transport Workers’ Federation (ETF) welcomes the commitments to improve working conditions and strengthen the enforcement of applicable legislation. However Livia Spera, ETF General Secretary, comments that: “Regrettably, the action plan is devoid of details on how this commitment would be implemented” (see ETF press release and detailed reaction). On the employers’ side, the response to the strategy has been mixed. It has been broadly welcomed by the employers’ organisations in the rail sector (see CER press release), but denounced by the road transport employers’ organisation IRU, which fears the destruction of the coach transport sector, whose greenhouse gas emissions are too high, in the Commission’s view – though this finding is disputed by IRU (see press release).

• Europe’s economic recovery : The European social partners in the Metal Engineering and Technology-based sector (Ceemet and IndustriAll Europe) have adopted a joint statement, calling on the European Union and Member States to keep on “investing in a swift economic recovery” and “in the future of the European industrial base” (see press release).

Applying the Posted Workers Directive to road transport : The Court of Justice has issued a ruling on a case involving a road haulage undertaking in the Netherlands, which used drivers hired out to it, under charter contracts, by two of its subsidiaries located in Germany and Hungary. These drivers loaded goods in the Netherlands and then transported them to other Member States, while also undertaking cabotage operations in the Netherlands. The Dutch undertaking did not regard these drivers as being posted to the Netherlands, and therefore did not apply the collective labour agreement applicable to the road transport sector, to them. This position was challenged by one of the trade unions that had signed this agreement: it believed that the drivers concerned should enjoy the benefit of the agreement as a result of being hired out in this way. The Court of Justice recalled its previous case law (CJEU, 19 December 2019, case C-16/18, Dobersberger): “A worker cannot, in the light of Directive 96/71, be considered to be posted to the territory of a Member State unless the performance of his or her work has a sufficient connection with that territory” (see Posted workers). “As regards mobile workers such as drivers working in international road transport, the degree of connection between the activities carried out by such a worker, in the framework of the provision of the transport service to which that worker has been assigned, and the territory of each Member State concerned”, must be evaluated. The degree of connection with the territory of a Member State may be characterised by the fact that the driver himself or herself carries out “operations involving loading or unloading goods, maintenance or cleaning of transport vehicles”. By contrast, “a worker who provides very limited services in the territory of the Member State to which that worker is sent cannot be regarded as ‘posted’ within the meaning of Directive 96/71. This applies to a driver who (…) merely transits through the territory of a Member State. The same would also be true of a driver carrying out only cross-border transport operations from the Member State where the transport undertaking is established to the territory of another Member State or vice versa”. The fact that a driver who has been hired out by the Dutch undertaking “receives the instructions related to his or her tasks, starts or finishes them at the place of business” of the Dutch undertaking, “is not sufficient in itself to consider that that driver has been posted” to the Netherlands, “provided that the performance of that driver’s work does not have a sufficient connection with that territory on the basis of other factors” (CJEU, 1 December 2020, case C-815/18, Federatie Nederlandse Vakbeweging).
> See also: The Court of Justice has rejected the appeals lodged by Hungary and Poland against Directive (EU) 2018/957 amending the legislation covering posted workers. The Court states that the EU legislature was entitled to adjust the balance inherent in this legislation relative to the freedom to provide services, taking into account the “overarching objectives” of the treaty, such as the promotion of a high level of employment and the guarantee of adequate social protection. (see CJEU, 8 December 2020, case C‑620/18, Hungary and case 626/18, Poland and press release).

Violence against women : The European Transport Workers’ Federation (ETF) has published new guidance addressing violence and harassment against women in the world of work (see press release) (see violence and harassment). The guide relies on the tools defined in ILO Convention no. 190 on Eliminating Violence and Harassment in the World of Work and will help the social partners at company and sector level to prepare effective workplace policies aimed at preventing and eliminating violence and harassment against women transport workers. To underpin its guide, EFT is also broadcasting several interviews with Dr Jane Pillinger, a global expert on gender equality and gender-based violence at work (link to videos).

• Status of “crowdworkers” : On 1 December, the Federal Employment Court issued a ruling on the status of so-called “crowdworkers”. This decision states that micro-jobs actually performed by users of an online platform, based on an agreement concluded with an operator (the “crowdsourcer”), can be classified as an employment relationship. This particular case concerns a platform that, on behalf of its clients, arranges inspections of how branded products are presented in retail outlets and service stations. To carry out these inspection activities, it commissions workers whose main tasks are to take photos of how goods are presented and to answer questions on product visibility. The contract binding these workers to the platform contains an incentive mechanism that prompted the worker, in this case, to work full-time. The Court held that as a result, he should be regarded as an employee.

• Childbirth leave : On 16 December, Parliament was due to approve the draft law-programme (see section 6, sole chapter) providing for the length of childbirth leave, which is available both to the father and to the co-parent, to be increased from 10 to 15 days, with effect from 1 January 2021. It will then be raised to 20 days in January 2023. Workers will be free to choose when they take these additional days of childbirth leave, within four months following the date of their child’s birth. The employer will continue to provide three days’ paid leave, as at present, while the employee’s health insurance scheme will finance the remaining days. Self-employed workers (see section 1, chapter 5) will benefit, on the same terms, from an extension to the current paternity and childbirth allowance introduced in May 2019.

• Health and safety at work : On 9 December, the social partners reached a cross-industry agreement on health and safety at work. This text requires legislative and regulatory amendments.  According to the Minister of Labour, “the government will ensure that, when this agreement is transcribed into employment law, its content and equilibrium are adhered to”. The main purpose of the agreement is to boost efforts to prevent accidents at work and occupational illnesses. It provides for the creation of a “prevention passport” for each employee, certifying the training they have undergone in terms of health and safety at work. The text also deals with measures intended to reduce the risk faced by employees who fall ill or suffer an accident at work, i.e. that of finding themselves excluded from the labour market (“preventing workers being excluded from the labour market”). The agreement includes a section on quality of life at work and provides for the “modernisation” of occupation health services, by assigning a role to community medical professionals, in terms of performing medical examinations and certifying that employees are fit to return to work.

• Campaign for social rights: : On 2 December, the Welsh Government decided to launch an information campaign to encourage employees to join a trade union and employers to join an employers’ organisation. “This is not a new concern”, explains Hannah Blythyn, Deputy Minister for Housing and Local Government, “but COVID-19 and the challenges it presents have intensified the need to act now”. Recalling her experience in the trade union movement, she explains: “I know first-hand the importance of workers and employers understanding their rights and responsibilities and the benefits that having access to expert advice and representation can bring.”
  > See also: a campaign launched in Scotland by the Unite union to improve the working conditions and pay of care sector workers (see article in “The National”).

Failure to follow established consultation procedures : On 2 December, the United Kingdom’s Central Arbitration Committee (CAC), which is the legal authority endowed with specific powers to deal with industrial relations, and in particular matters concerning European Works Councils, pronounced a decision, in a case brought against the management of the American IT group HP by its European Works Council. This Council was originally established under UK law but has since been transferred to the jurisdiction of Irish law. The European Works Council argued that it had not been properly informed and consulted regarding a restructuring involving approximately 350 job losses in Europe. The CAC found in favour of the European Works Council and invited management to set out more detailed information at the next plenary meeting. The CAC did not call for the process to be suspended or for an extraordinary meeting to be convened.

Environmental guidelines: :

On 6 November, the French construction group Vinci and its European Works Council adopted environmental guidelines that constitute “a framework of reference for limiting the direct and indirect effects of our activities on the ecosystems on which we depend”. The guidelines offer a “programme for delivering continuous improvement and progress”, one aspect of which involves “training and raising the awareness” of all group employees regarding environmental matters. The results of the actions taken will be measured by indicators to be published in the group’s annual report. They will also be presented “to the executive committee, the management board and the European Works Council at regular intervals”. In addition, “the environmental protection commitments given are being implemented within each part of the business, with a view to promoting their application and continuous improvement”.