IR Notes

On 21 January MEPs passed a resolution in favour of the right to disconnect by a large majority (472 votes for, 126 against and 83 abstentions) (see Right to disconnect). Parliament is calling on the European Commission to prepare a directive “that enables those who work digitally to disconnect outside their working hours”. This directive “should also establish minimum requirements for remote working and clarify working conditions, hours and rest periods”. MEPs believe that “workers’ right to disconnect is vital to protecting their physical and mental health and well-being and to protecting them from psychological risks”. The MEPs’ resolution is accompanied by a legislative proposal that defines disconnecting as “not to engage in work-related activities or communications by means of digital tools, directly or indirectly, outside working time”. This right to disconnect should be exercised “including during rest periods, official and annual holidays, maternity, paternity and parental leave, and other types of leave, without facing any adverse consequences” (point 16). It also emphasises “that [a] certain autonomy, flexibility and respect for time sovereignty according to which workers must be allowed to schedule their working time around personal responsibilities, in particular caring for children or sick family members, should be respected”.
The intention is for the directive to lay down “minimum requirements” and to apply “to all sectors, both public and private, and to all workers, independent of their status and their working arrangements”. It would invite Member States to ensure that “employers take the necessary measures to provide workers with the means to exercise their right to disconnect” and that they “set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”.
The employers’ organisation BusinessEurope has expressed “strong concerns”, arguing that it is better to rely on the European framework agreement on digitalisation concluded by the European social partners last year (see IR Notes no. 145) rather than passing one-size-fits-all legislation. Isabelle Schömann, Confederal Secretary of the European Trade Union Confederation (ETUC), has pointed out that this agreement does not concern the right to disconnect and called on Nicolas Schmit, the Commissioner for Jobs and Social Rights, to consult the European social partners, pursuant to Article 154 of the TFEU. The ball is now in the court of the Commission, which enjoys the right of initiative. Speaking at the opening debate of the plenary session of Parliament on 20 January, Nicolas Schmit emphasised that “the Commission is ready to encourage the social partners to implement the right to disconnect”. The Commission plans “to establish a dialogue with the social partners under Article 154”. Consequently, it is expected that a consultation will be launched in the coming months.
> Find out more: See press release and briefing issued by the European Parliamentary Research Service on the right to disconnect and interview with rapporteur Alex Agius Saliba (S&D), published in IR Notes 153).

Gender equality : On 21 January, the European Parliament adopted three reports dealing with the issue of gender equality (see Gender Equality). In the report on The EU Strategy for Gender Equality (see press release), MEPs express their regret “that the strategy remains vague on the issue of timelines for several, highly welcomed, measures” and “that it sets neither concrete gender equality targets to be achieved by 2025 nor clear monitoring tools”. They therefore invite “the Commission to establish a concrete roadmap with timeframes, objectives, a yearly review and monitoring mechanism, [and] clear and measurable indicators of success”. MEPs are also “deeply worried about the nature, extent and gravity of violence and harassment in the world of work, and the impact of all forms of violence against women and girls in work situations”. They invite Member States to ratify and implement without delay ILO Convention No. 190 on violence and harassment at work (see Harassment and violence at work) and to “introduce effective and binding measures to define and prohibit violence and harassment in the world of work” The other two reports deal with the issues of improving gender equality during and after the COVID-19 crisis and closing the digital gender gap: women’s participation in the digital economy. In the latter report, MEPs call on the Commission and on Member States to “promote gender equality in companies in the ICT and related sectors and in the digital economy, and to adopt horizontal policies to reduce the gender gap in the digital economy (…) through targeted measures”. They are also asked by MEPs to assess “the causes and factors that lead to a high drop-out rate of women from digital careers” and “to analyse the effect that the lack of work-life balance has on women’s ability to participate in the upskilling training needed to keep up the required skill level”.

European social dialogue : The opinions delivered by the Advocate General of the EU Court of Justice in the case brought by the European Public Service Union (EPSU) against the European Commission (see EPSU Case) leave little doubt regarding the outcome of the dispute: in a few months’ time, the Court of Justice is expected to confirm the judgment handed down by the General Court of the European Union in 2019 (EGC, Case T-310/18, 24 October 2019, EPSU Jan Goudriaan v. European Commission, which acknowledged that the Commission was entitled not to act on the outcome of European social dialogue (see European social dialogue). The issue is as follows: where the European social partners conclude an agreement, they can ask the Commission to submit their agreement to the Council, so that it can be implemented as a directive. The question at issue is to determine whether the Commission should automatically refer the matter to the Council, as it has done since the outset of European social dialogue, and should merely check if the agreement complies with EU law, or whether the Commission is entitled to undertake a review of appropriateness and to decide if the agreement should be passed on to the Council. According to the General Court’s ruling (see IR Notes no. 129), the Commission can refuse to submit to the Council a proposal for a decision to implement an agreement concluded by the European social partners as a directive, in order to make the content of the agreement applicable in all Member States. In the opinion of the Advocate General, who rejects all of the grounds of appeal formulated by EPSU, “both the origin of Articles 154 and 155 TFEU and the communications published by the Commission show that its role in the implementation of agreements concluded between management and labour cannot be reduced to one of mere go-between responsible for submitting agreements to the Council for adoption, without any power to assess whether their implementation at EU level is appropriate” (point 58) (CJEU, Opinion, 20 January 2020, Case C‑928/19 P, EPSU).
> Find out more: the highly instructive working paper published by the European Trade Union Institute, “Legislative implementation of European social partner agreements: challenges and debates”, by Jean-Paul Tricart.

Tanning : The European social partners in the tanning sector have published their 2020 social and environmental report, within the framework of a joint project co‑funded by the European Commission. This report offers an evaluation of the social and environmental footprints created by this industry, while at the same time covering ethical issues linked to animal welfare and to due diligence (see IndustriAll Europe press release and project website).

• Hairdressing: On 2 December 2020, the European social partners in the hairdressing sector issued a joint statement on the autonomous implementation of their occupational health and safety agreement, which was signed in 2016 (see press release issued by the Commission).

Recommendations relating to Brexit : On 21 January, following the Trade and Cooperation Agreement signed by and between the EU and the United Kingdom, which governs their economic and social partnership from 1 January 2021 onwards, European trade-union federations adapted their recommendations on Managing the impact of Brexit on multinational companies. In these recommendations – which are aimed at members of European Works Councils (EWCs), European Company Works Councils (SE-WCs), Special Negotiation Bodies (SNBs) and at their trade union coordinators – the federations emphasise that British delegations sitting on EWCs of companies that do not have their head office in the UK should be allowed to keep their place on EWCs, putting forward adaptation clauses. They call for EWCs to be allowed to continue to deal with transnational matters affecting an EU Member State and the UK, without regarding the United Kingdom as a third country.

Teleworking : On 20 January, the government passed an order requiring employers of staff who perform office work or comparable activities, to “offer employees the option of exercising these activities at home, unless there are imperative operational reasons why they cannot do so” (Art. 2 § 4). The text also provides for stricter social distancing rules (each employee should occupy an area of at least 10 m², a minimum distance of 1.5 metres between employees, etc.) and obliges the employer to provide FFP2 masks in situations where these rules cannot be complied with. The order will apply for a limited period through to 15 March, to avoid a further hard lockdown (see press release). A few days earlier, on 15 January, the President of Germany, Frank-Walter Steinmeier; the President of the Confederation of German Employers’ Associations (BDA), Rainer Dulger; and the President of the German Trade Union Confederation (DGB), Reiner Hoffmann, issued a joint declaration calling on employers to allow their staff to opt for teleworking “as far as possible”. At the same time, they call on employees “to accept these proposals as far as possible and as reasonable, and to work from home” (see DGB press release).

• Proof of wage discrimination: In a ruling issued on 21 January, the Federal Employment Court held that a situation where a female employee, based on information that her employer is required to provide to her under the legislation governing pay transparency, is able to demonstrate a difference between her own pay and the median pay received by her male counterparts, she can claim to be the victim of discrimination, and the onus will be on the employer to prove otherwise (see press release).

National agreement relating to Covid-19 : On 15 January, the Austrian trade union confederation ÖGB and the employers’ organisation WKO concluded a general collective labour agreement on testing and the use of masks. The text stipulates that employees who have to take a Covid-19 screening test are entitled to do so during working hours, without losing any pay. If the test cannot be performed in-house, the time they spend undergoing the test and travelling to/from the testing site, is deemed to be working time. Employees shall not suffer discrimination or be dismissed on the grounds that they have taken a test or tested positive. Employees who are required by law or by regulations to wear a mask must be allowed to remove their mask for a period of at least 10 minutes after completing three hours’ work. The collective agreement will remain in force until 31 August (see ÖGB press release).

• European Works Councils : The British government has published Guidance on participating in a European Works Council following ratification of the Trade and Cooperation Agreement with the EU. This sets out the position of British members of European Works Councils and makes it clear British workers can no longer apply for the creation of an EWC (unless the application was submitted by 31 December 2020).

European Works Council dissolved : The Central Arbitration Committee (CAC), which is the legal authority responsible for resolving collective bargaining disputes in the United Kingdom, has issued a decision dismissing the lawsuit brought by representatives of the former Verizon EWC against the management of the US telecommunications group. The original agreement, signed on 20 October 2016, was concluded for a fixed four-year term (Article 13). This article states that after three years, the parties shall reassess the agreement and can decide either to keep it in force for a further four years or to renegotiate it. In the event of renegotiation, the agreement will remain valid and in force. This clause is subject to differing interpretations (see IR Notes 153). In the CAC’s view, in the absence of a clause that explicitly deals with the failure of negotiations conducted for the purpose of renegotiating the agreement, a comprehensive analysis of the agreement leads to the conclusion that it “does not provide any facility for this period to be extended in order for negotiations for a new agreement to be completed or for any other reason”. “Having considered all these provisions carefully”, the CAC concluded that the agreement “did not envisage the possibility of an extension beyond the initial four-year period in the circumstances of this case and that the Charter therefore terminated at the end of 19 October 2020”. As it is no longer in existence, the European Works Council could no longer pursue legal action before the CAC, which prompted the CAC not to comment on the consequences of the agreement reaching its term, i.e. the US management’s decision to transfer the role of central management representative from the United Kingdom to Ireland, and to ask the Irish representative to set up a European Works Council under the auspices of the subsidiary provisions of the Irish transposition law, without opening up the Council to representatives of UK employees. Regarding the application of subsidiary requirements after the negotiations failed, the CAC emphasises that it may have been desirable for the agreement to provide expressly for the application of the subsidiary requirements in the event of a failure to agree, though the Panel does not consider “the absence of such provision to be a barrier to their application”.

Subsidiary requirements : The management of the French group ORPEA, which runs residential homes for the elderly, has formally noted that the negotiations aimed at creating a European Works Council by agreement have ended in failure. The company’s various national managements are being invited to appoint members to the EWC that will be set up in April 2021, in accordance with the subsidiary requirements of Directive 2009/38. Management “does not rule out the possibility of further internal discussions on the future European Works Council”, with a view to adapting the rules imposed by the subsidiary requirements.

Fundamental rights : On 25 November 2020, the management of the TK Elevator group (53,000 employees), which is the former elevator division of Thyssenkrupp, and the IndustriAll Global Union federation, signed an international framework agreement (see International Framework Agreement)(see press release). The text, which adopts ILO core labour standards, provides for the creation of joint health and safety committees within all group entities. It also establishes a system allowing anonymous reporting of any violations of the agreement. An “international committee” is responsible for examining complaints. It is staffed by representatives of IndustriAll, the German trade-union federation IG Metall, the group’s works council and the European Works Council. Committee members shall be free to visit production sites.

Survey of industrial relations in Europe: : The European Foundation for the Improvement of Living and Working Conditions (Eurofound) has published a major report on Industrial relations within the EU: Developments 2015–2019 (summary, in English). At a time when the Commission is planning to strengthen collective bargaining in Member States (via its proposal for a directive on adequate minimum wages), the report confirms that this will not be an easy road to travel: trade union membership is continuing to decline in all countries, collective bargaining coverage has fallen globally, and some form of employee representation exists in fewer than one company in three within the EU. However, the report emphasises the dynamism of European social dialogue, other than at cross-industry level: here, just one autonomous agreement was concluded over the period, and the social partners were unable to deliver joint positions on any texts at all. At company level, the report suggests that workplace democracy is growing stronger, thanks in particular to the provision of works councils with stronger co-determination rights, a benefit that “is more important than ever during times of unprecedented change”.

European Benchmark 2020 : Last December, the European Trade Union Confederation and the European Trade Union Institute published the 20th edition of their annual report, Benchmarking Working Europe 2020, which analyses the state of the EU at economic and social level, in the context of the pandemic. According to this collective publication, which helps us to understand our changing world, this crisis may “not necessarily” mark the descent of into years of recession, but should be seen as “opportunity for, and a stepping stone on the way to, a substantial rethinking of the economic and social paradigms guiding the EU in the post-Covid world”.