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IR Notes 158 – 24 February 2021
www.irshare.eu
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A question for…
Franck Bonot, co-leader of the Sharers & Workers network (*)
Is having all platform workers
classified by law as employees – whether by statute or case law
– now the solution in terms of improving their working
conditions? Since 2018, we’ve witnessed a growing number
of disputes between platforms and their workers, with an emerging
trend towards reclassifying the working relationship, by changing it
from that of service provider to employee. However, this is not necessarily the only
way forward. Moreover, it’s not always something that platform
workers are looking for. Among the 400 or so lawsuits brought by
drivers in France against their platforms, most drivers quit the
business because the platform altered its payment terms along the
way. As far as these people are concerned, the only way to
compensate them for the prejudice they have suffered is to
reclassify them as employees, but this is a means to an end rather
than an end in itself. We
find ourselves in a situation where actors have entered a market
that is completely unregulated. It’s the Wild West! So these
business models will have to be tamed, but this goal can be achieved
by pursuing win-win strategies. Setting ourselves the objective of
applying the paid-employment model doesn’t solve all of the problems
involved here: it doesn’t guarantee payment of a decent income, nor
does it resolve the issues of health and safety in the workplace,
nor the effects of management by algorithms. Within the framework of a project undertaken
by the Brodolini Foundation (Don’t
GIG up !), we worked on the task
of defining a workplace for delivery riders. If we take the view
that their workplace is the street, it is hard to intervene. We
therefore considered the idea of a virtual workplace, i.e. the
platform itself. This classification, which recognises the platform
as the establishment where work is carried out, means that the
platform will come within the scope of the 1989 European Framework
Directive on Safety and Health at Work. In other words, treating the
platform as the establishment within the meaning of the Directive,
forces the platform to comply with the employer’s obligations in
terms of workplace health and safety. The business model needs to be altered to
make it more virtuous, for the benefit of workers, of the
environment and of public spaces in our towns and cities. One really
important point in the judgment handed down by the UK Supreme Court,
and the one which has the greatest impact, is not the decision to
reclassify personnel as “workers”, but the fact that the court holds
that, from the moment a rider is connected to the application and is
ready to perform an errand, he or she is deemed to be working. This
goes to the heart of the business model: people are encouraged to
connect to the app as soon as possible, so that a maximum number of
service providers can be available to meet demand promptly. Stating
that this availability time has to be remunerated changes the
balance of power in the contractual relationship and will force
platforms to rethink their business model.
(*) Link to the website of Sharers & Workers,
which explores the sharing economy and digital platforms
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Diary
3 March Brussels
Adoption of the Action Plan on implementation of the European Pillar of
Social Rights and of the revised ‘social scoreboard’ accompanying the
European Semester.
11 March On line
Conference organised by the Social Dialogue Committee of the Polish
Chamber of Commerce (KIG) on “the
world of work and dialogue after the pandemic”. The main
speakers are Piotr Ostrowski, Vice-President of OPZZ and Maciej Witucki,
President of the employers’ confederation Lewiatan.
11 March
On line
Seminar organised by IRES and the University of Rennes, on “trade
unionism and industrial action taken by platform workers – A
comparison between France and Italy”.
15 March
Brussels “Employment
and Social Policy” Council meeting.
25 March
On line
International seminar organised by IRES, on the theme of “Italy: the
role played by self-organised collectives in representing delivery
riders”, with Cristina Nizzoli, a researcher at IRES; Arthur Jan, a
doctoral student at Lise-Cnam; and Martin Willems, ACV-CSC United
Freelancers, national manager for Belgium.
27 and 29
April On line UNI
Europa Conference and Congress (programme)
7 and 8 May Porto European
Social Summit
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European Industrial Relations Dictionary
In case reading IR Notes inspires you to
explore this subject further, we are providing links to the European
Industrial Relations Dictionary published by Eurofound. This is updated at
regular intervals by IR Share, which publishes IR Notes. The term
definitions are available in English and can easily be converted
into other languages using on-line translation tools.
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IR Notes is a
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Turlan, Frédéric
Turlan
and Aimee Waldon
. Find out more about
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Lead
story
Supreme
Courts take a stand against “Uberisation”
On Wednesday 24 February, the College of Commissioners took a position on initiatives
aimed at enhancing the working conditions of platform workers by launching a first-stage
consultation of European social partners (see press
release) (see Collaborative economy). This
initiative comes one week after the publication of several national judgments that
refused to categorise delivery riders or Uber drivers as being self-employed.
France’s Court of Cassation gave its approval for an Uber driver to be reclassified
as an employee back in March 2020, (see IR Notes 137), and
now the Supreme Court of the United Kingdom has reclassified the working
relationship of an Uber driver as that of a “worker”, arguing that a worker could
not be regarded as an independent contractor. This “worker” status is an
intermediate one between that of an employee and an independent contractor, and
grants workers a number of social rights, such as the right to be paid the
minimum wage and to receive statutory paid leave (see judgment
and press
summary). And on 16 February, in the Netherlands, the Amsterdam Appeal
Court handed down a judgment
reclassifying Deliveroo food delivery riders as employees, in a case defended by the
FNV trade union confederation. “This ruling should bring an end to the debate
regarding the status of delivery riders in the Netherlands”, says Nuna Zekić,
Associate Professor at Tilburg University. “This has been the thrust of most of the
judgments handed down by national courts in recent months”, confirms Valerio De
Stefano, Professor of Labour Law at the Catholic University of Leuven (KU Leuven).
The European Trade Union Confederation has expressed its satisfaction at these
recent judgments (see press
release) but it is calling for European-level legislation, because
successive victories before the courts “sometimes only deliver justice for
individuals or small groups of workers when platform companies continue to exploit
millions of workers”. Consequently, it is expecting a great deal from the launch of
consultations with European social partners: this is the first stage on the road to
future legislation that still lies several years ahead. Nevertheless, the succession
of judgments finding against a business model based solely on independent
contractors controlled by algorithms is starting to have an impact. Some platforms
are improving the working conditions of their workers in order to limit the scope
for legal disputes, while others, such as the food delivery company Just Eat, in
France, have decided to turn their self-employed workers into employees. Just Eat
has announced plans to recruit 4,500 employees by the end of the year.
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1. European
Union
Projects
- European Commission’s plans for tackling
social issues : Several social issues feature on the
agenda of the meeting
of the College of Commissioners scheduled for 3 March: 1) the Action
Plan on the implementation of the European Pillar of Social Rights; 2) the
long-awaited initiative concerning pay transparency measures, aimed at reducing
the gender pay gap; 3) the strategy on the rights of persons with disabilities.
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Social
update
Adequate minimum wages :
On 10 February, the European Parliament passed
a resolution
on “Reducing inequalities with a special focus on in-work poverty” in which
MEPs offer their support for the European Commission proposal for a directive on
adequate minimum wages in the EU (see IR Notes 151). Even
though just over 200 MEPs abstained, 365 votes were cast in favour of the proposal
(and 118 votes against). For its part, the Parliament’s Committee on Employment and
Social Affairs has appointed the two MEPs who will be defending Parliament’s
position in the discussions with the Council and the Commission. Two of the
Committee’s heavyweights have been selected: Agnes Jongerius from the Netherlands
(S&D) and Dennis Radtke from Germany (EPP). “Decent wages are a fundamental part
of the European Pillar of Social Rights”, they explain. “Now is the time to
implement this principle and we are ready to seize this unique opportunity.” (see press
release). As far as minimum wages are concerned, Parliament is placing the
emphasis on collective bargaining: Member States should “promote collective
bargaining” and “adapt their national legislation where it hampers collective
bargaining and the right to associate, negotiate and conclude collective
agreements”. The aim is to ensure, either by means of collective agreements, or
failing this by means of statutory minimum wages, “that no workers or their families
are at risk of poverty and that everyone can make a living from their work and
participate in society”. MEPs believe that the directive “should guarantee that
statutory minimum wages – where applicable – are always set above the poverty
threshold”. In other words, they should at least be equivalent to 60% of the median
wage, which however is currently the case in just three Member states. Nevertheless,
when setting minimum wages, social partners or Member States still need to take
account of “their impact on competitiveness, job creation and in-work poverty”.
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Reducing inequalities, teleworking, platforms
and traineeships : The resolution
on “Reducing inequalities with a special focus on in-work poverty” (see
above) goes further than the issue of minimum wages and seeks to reduce poverty and
inequalities. These objectives “can be achieved through instruments such as, but not
limited to, a minimum income, minimum wages and minimum pensions under the first
pillar” (see Basic income). Parliamentarians are also calling
for: 1) A “legislative framework with a view to regulating telework conditions
across the EU”, which “is necessary to ensure decent working and employment
conditions in the digital economy”. 2) A legislative proposal covering platform
workers, to ensure that digital platform workers “can benefit from the guarantees
provided by existing labour laws and social security provisions, to improve the
working conditions, skills and education of platform workers, and to secure
predictable working hours for platform workers”. Furthermore, this proposal should
also ensure that “platform workers are able to form workers’ representations and to
organise in unions in order to conclude collective agreements”. 3) An “urgent”
review of the European Quality Framework for Traineeships “in order to include the
principle of the remuneration of traineeships and internships among the quality
criteria”. Lastly, we can also report that MEPs rejected – by just one vote (319
for, 320 against and 57 abstentions) – the inclusion of a Social Progress Protocol
in the European treaties to guarantee that equal emphasis is placed on the economic
freedoms of the single market on the one hand, and social and labour rights on the
other.
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Sectoral
social dialogue
- Sugar: Following their
Social Dialogue Plenary session on 8 February, the European social partners
in the sugar sector adopted joint conclusions calling on the EU to pursue
more coherent policies, in order to ensure a just transition (see EFFAT press
release).
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Case law
Dockers’ monopoly : The Court of
Justice has issued a ruling allowing States to maintain legislation establishing a
monopoly for dockers on handling activities in port areas. The case concerned a
Belgian regulation requiring companies engaged in port activities to use the
services only of dock workers who are recognised as such under this legislation. It
prevents such companies from using their own staff or recruiting other workers who
are not recognised. Admittedly this rule constitutes a restriction on freedom of
establishment and on the freedom to provide services, but it is “justified by
overriding reasons in the public interest”, namely that of ensuring safety in port
areas and preventing workplace accidents. However, the Court holds that the
intervention of a joint administrative committee in the recognition of dockers is
neither necessary nor appropriate for attaining the objective pursued. (CJEU,
11 February 2021, Cases C-407/19 and C-471/19, Katoen and Middlegate, see press
release).
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2. Member
States
Germany
Draft law on corporate due diligence :
Article 1 of Germany’s Basic Law states that “Human dignity is
inviolable”. Federal Minister of Work, Hubertus Heil (SPD), pointed out that it does
not say ‘German dignity is inviolable’ as his justification for passing the
bill
relating to due diligence applicable to German companies. This bill seeks to
protect human beings all over the world from any violations of their fundamental
rights. On 12 February, Hubertus Heil announced that this text, which has been
fiercely debated for a year now by the CDU-SPD grand coalition, will be adopted by
the Bundestag’s current legislature, i.e. by September 2021. The bill will require
companies to ensure that human rights are respected and that environmental
protection regulations are adhered to, both in their own activities abroad and on
their suppliers’ premises. In the first instance, from 2023 onwards, this law will
apply to companies with more than 3,000 employees, and subsequently to companies
with more than 1,000 employees, from 2024 onwards. The initial bill sponsored by
Hubertus Heil had sought to impose this legislation on companies with more than 500
employees, from the outset. The compromise reached, following tough negotiations
with the Minister of the Economy, Peter Altmaier (CDU), who is fiercely opposed to
the idea of further restrictions being imposed on German companies, remains fragile,
and the opponents of this bill have not yet given up the fight.
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Hungary
- Minimum wage : On 31
December 2020, the government passed a decree (no. 731/2020), formally noting
the failure of social partners to reach agreement on the level of the
minimum wage in 2021, though in so doing, it did not unilaterally decide to
increase the minimum wage. Previously, when negotiations failed to reach a
successful outcome, the government itself decided on the amount of the
minimum wage for the coming year. In the end, the social partners reached
agreement on 25 January regarding the amount of the minimum wage and of the
guaranteed minimum wage. From 1 February 2021 onwards, the minimum wage is
167,400 HUF, and the guaranteed minimum wage is 219,000 HUF (an increase of 4%).
However, the value in real terms of the minimum wage in euros fell by comparison
with 2020, due to the devaluation of the Hungarian currency against the euro. It
is worth 309 euros in 2021, as against 317 euros in 2020 and 311 euros in 2019.
The value of the guaranteed minimum wage is 404 euros. The minimum wage and the
guaranteed minimum wage are both significantly lower than the minimum wage in
other countries in the region (Poland, Slovakia, Czech Republic, etc.).
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Italy
- Metalworking :
On 5 February, the Italian trade unions in
the metalworking sector (FIOM-CGIL, FIM-CISL and UIL-UILM) concluded a national
collective agreement providing for a wage increase and reform of the job
classification system that has been in place since 1973. The trade unions also
managed to strengthen collective rights and clauses covering gender-based
violence and teleworking, including the right to disconnect outside office hours
(see press
release IndustriAll Global Union).
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Ireland
Combatting workplace bullying :
A new Code
of Practice for Employers and Employees on the Prevention and Resolution of
Bullying at Work) entered into force on 23 December 2020. This code replaces
the two previous codes that co-existed side by side: that of the Health and Safety
Authority (HSA) dating from 2007, and that of the Workplace Relations Commission
(WRC), from 2002. This code applies to all jobs in Ireland, i.e. to employees who
work at a fixed location, from home or who are mobile. It contains practical
guidance on the management of workplace bullying complaints and on the prevention of
workplace bullying. It also seeks to achieve harmonious working relations, to
promote equality and to set up conflict resolution mechanisms by encouraging prompt
settlement of any disputes through mediation and conciliation. This code of practice
has no legal force, but it is accepted as evidence under both the Industrial
Relations Act 1990 and the Safety, Health and Welfare at Work Act 2005. (see press
release).
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- Resignation of an employee and Covid-19 :
The Workplace Relations Commission (WRC), has reclassified
the resignation of a female employee, two members of whose family are at-risk
persons, as constructive dismissal and ordered the employer to pay her 5 weeks’
wages as compensation for lost earnings between the time she resigned from her
old job and started her new job. The employee had asked if she could work from
home and organise a rota with her two colleagues, taking turns to attend the
office. The employer’s view was that home-working was not possible, and instead
it suggested making changes to the layout of its offices. After taking sick
leave, the employee felt that she had no alternative but to resign in order to
protect her family members from the Covid risk that she continued to face at
work, as the changes made to the office layout were either insufficient or
non-existent. The WRC held that “the respondent did not provide an adequate
explanation as to why it did not accede to the proposal. The on-site essential
nature of the role was covered by the rotating presence of operations
coordinators and the significant online work could have been progressed
remotely”. In the opinion of the WRC the employee “articulated a clear grievance
and suggested how the work could be done in the safest way possible. This was
not adequately considered by the respondent, leaving her with no real option but
to resign”. This is the first decision of its kind to be made in Ireland which,
despite not introducing the right to teleworking, requires the employer to
prioritise the health and safety of employees and to take all possible measures
to achieve this goal.
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3.
Companies
European
works councils
Change of applicable law : At
the end of January, the management of the American Express Global Business
Travel group and members of its EWC select committee signed
an addendum
to the European Works Council Agreement to take account of the consequences
of Brexit. With effect from 1 January 2021, the addendum appoints the management of
the Dutch subsidiary as central management’s representative on the EWC, in place of
the UK subsidiary’s management. Accordingly, the parties have now chosen to place
their EWC Agreement under the auspices of Dutch law, instead of UK law. Lastly, the
agreement stipulates that the EWC’s UK members will continue to participate in it
and that the United Kingdom shall continue to be subject to the Agreement. UK
employees will continue to be taken into account for the purposes of determining the
number of seats on the council and their allocation to the various countries
represented.
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Change of management representative :
On 15 February, the Central Arbitration
Committee (CAC), which is the UK authority responsible for resolving industrial
relations disputes, issued a decision
in a case brought against the management of Adecco by its European Works
Council. Because of Brexit, the group, which has its head office in Switzerland,
changed its central management representative on the European Works Council, and
entrusted this responsibility to an Irish representative in place of the British
representative. Management also announced that it wished to amend the agreement by
placing it under the auspices of Irish law. As regards the appointment of a new
central management representative, the CAC refers to the European Works Council
agreement which, at the time of its latest revision, had already added a clause
allowing management to appoint a new central management representative from an EU
Member State, with effect from the end of the transition period following the United
Kingdom’s actual exit from the EU, i.e. from 31 December 2020. In the CAC’s view,
management had merely applied this clause and did not need to obtain the consent of
a majority of EWC members. As far as plans to change the applicable law to Irish law
are concerned, the CAC holds that the legal action taken by the European Works
Council to challenge management’s plans was premature, as management had not made
these changes unilaterally. However, “the CAC confirmed that the clause on the law
applicable to Adecco’s EWC agreement – which currently provides for the application
of UK law — could be amended only by way of agreement with ‘an absolute majority of
the Employee Representatives’”, explains the EWC’s legal adviser, Philip Sack. This
decision should act as a deterrent to managements of multinational companies who are
considering unilaterally changing the law applicable to EWC agreements.
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- Restructuring : On 10
February, the Schneider
Electric EWC issued a detailed unfavourable
opinion regarding a proposed reorganisation of the company’s Medium
Voltage (MV) business, involving 370 job losses on two sites in Hungary and
three sites in France. The EWC notes that management refused to allow the EWC to
commission an economic assessment, arguing that this was a matter that concerned
France only, whereas in the end, the EWC is being consulted about a
reorganisation affecting both Hungary and France.
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Company
agreement
Energy transition : On 3
December 2020, the management of the Italian energy group ENI and the trade-union
federations Filctem Cgil, Femca Cisl and Uiltec Uil signed an agreement
on a new industrial relations model to support the energy transition process
(see IndustriAll Global Union press
release). Faced with the uncertainties and upheavals linked to the energy
transition, the parties “acknowledge the need for an increasingly effective and
participatory industrial relations system to accompany transformation processes”.
This is about encouraging a “culture of the ongoing, continuous and inclusive
bilateral relationship based on the quest for the best ways of achieving business
growth and employee active participation” at all levels. The text establishes two
joint committees: one is a group strategy committee and the other is a welfare
committee. The parties also undertake to create a special committee to assess new
ways of extending and applying “agile working” (teleworking).
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4. Studies
and reports
- Salaire minimum : On 3
February, the European Foundation for the Improvement of Living and Working
Conditions (Eurofound) published the initial
results of its annual update on minimum wages in 2021. Although most
countries were cautious in the level of increase granted, low inflation rates
meant that the value of minimum wages still went up beyond rises in consumer
prices. The report emphasises that the policy response in the context of the
Covid-19 pandemic is distinct from the approach taken during the 2008 global
financial crisis, when many countries moved quickly to freeze nominal minimum
wages.
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- Returning to work after cancer :
On 16 February, the
Economic and Social Research Institute (ESRI) published a report on Returning
to employment following a diagnosis of cancer: An Irish Survey).
According to the authors, almost half of people returning to work after a cancer
diagnosis reported that their diagnosis had a negative impact on their career.
Females, younger workers, the self-employed and those working in the public
sector are more likely to report a negative impact (see press
release).
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