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IR Notes 161 – 7 April 2021
www.irshare.eu
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A question for…
René Repasi, Professor of International and European Union Law at Erasmus
University Rotterdam
At a webinar on 1 April this year,
organised by the European Trade Union Confederation, you spoke
about the impact on European Works Councils (EWCs), of the Trade
and Cooperation Agreement concluded between the EU and the
United Kingdom. Can EWCs invoke the non-regression clause in
this agreement, to ensure that British employees continue to be
represented? From a legal point of view, private persons
are not entitled to invoke a right provided for by the Trade and
Cooperation Agreement. This agreement includes a provision clearly
stipulating that it bestows rights and imposes obligations only on
the parties to the agreement, i.e. the EU and the United Kingdom. As
a result, private persons cannot invoke the agreement’s
non-regression clause, which states that the signatories do not wish
to lower the standards applicable to working conditions or dilute
rights to information and consultation. It should be borne in mind
that this clause enables one party to trigger a safeguard procedure
provided for by the agreement, if the other party cuts back these
social rights. EWCs, for
their part, are entitled to receive information from, and to
consultation with, their company’s central management. From the
moment that the United Kingdom is no longer regarded as a country
that is covered by the EWC agreement, the mere fact that the UK has
left the EU means that a European Works Council loses its right to
information and consultation on transnational matters involving an
EU Member State and the UK. Moreover, the departure of the UK
workforce may call into question the EWC’s very existence if it then
falls below the workforce threshold provided for by Directive
2009/38. Those EWCs that were created under the auspices of
Directive 2009/38, which was adopted when the United Kingdom was
still an EU Member State, can claim to have a legitimate expectation
that they will remain in place, even if the United Kingdom has left
the EU. If the central management bodies of companies will not
accept a supplemental agreement that clearly keeps the United
Kingdom within the geographical scope of their agreements, then the
outcome may be deemed to be a reduction in EU workers’ rights to
information and consultation; this in turn should prompt the EU to
take action in order to restore parity with EWCs that were
established under UK law, and will continue to cover EU employees.
In other words, if too many central management bodies established in
EU Member States exclude UK employees from the scope of their EWC
agreements, then the European Commission might be expected to
guarantee the non-regression obligation, for example by passing a
directive stipulating that Directive 2009/38 applies both to Member
States and to the UK.
> Find out more:
René Repasi’s
profile on the Erasmus University
Rotterdam website.
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Diary
13 April On line
Conference organised by the European Centre for the Development of
Vocational Training entitled: “Getting
the future right: Towards smarter and people-centred skills
intelligence“. Programme.
13
April Brussels
Meeting of the European Parliament’s Committee on Employment and Social
Affairs. The adoption of the negotiating mandate for the fourth revision
of the Carcinogens and Mutagens Directive is on its agenda.
16 April On line The
starting dates of the on-line course offered by the European Trade Union
Institute (ETUI) on “EWCs: the
rules of the game” are as follows: 16 April for the English
version; 17 May for the French
version; and 24 May for the Spanish
version. For further information, please contact: Ilaria
Costantini (icostantini@etui.org) and
Sylviane Mathy (smathy@etui.org).
These courses are entirely free of charge.
27 and 29
April
On line UNI Europa Conference and
Congress (programme)
7 and 8 May Porto
European Social Summit
27
April On line Conference
organised by the European Trade Union Institute (ETUI) on the theme of
Exploring
interfaces between labour and environmental law.
2 June Ljubljana The
EC-funded MoveS (Free Movement and Social Security Coordination) network
is organising a seminar on “The future of social security coordination
in the EU”, which will focus on three topics: cross-border healthcare,
long-term care and unemployment benefits.
10 June On line EWPCC
conference 2021 on the role of EWCs and SE-Works Councils in
addressing company policies to meet the health, employment and work
organization challenges of Covid.
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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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Who we are?
IR Notes is a
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and Frédéric
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Lead
story
A strike is
not an “exceptional circumstance”
The 2019 strike by SAS pilots in Norway, Sweden and Denmark lasted seven days and
resulted in the cancellation of 4,000 flights due to be operated by this airline.
One of the 380,000 passengers whose flights were cancelled, decided to assign his
compensation rights to the claims-management company Airhelp, which applied to the
courts for 250 euros compensation (the amount permitted under EU Regulation
no. 261/2004). The air carrier argued that this strike constituted an “extraordinary
circumstance” within the meaning of that regulation, thus exempting it from the
obligation to pay compensation. In its ruling, the Court of Justice held that the
SAS pilots’ strike is not an “extraordinary circumstance” (CJEU,
23 March 2021, Case C-2820, Airhelp, and press
release). It points out that two cumulative conditions apply to the concept
of “extraordinary circumstance” under its case law. This concept refers to events
which firstly, by their nature or origin, are not inherent in the normal exercise of
the activity of the air carrier concerned, and secondly, are beyond that carrier’s
actual control. These two conditions are cumulative, and they must be assessed on a
case-by-case basis and interpreted strictly (CJEU,
17 April 2018, Case C-195/17, Krüsemann not avaible in English), concerning
a ‘wildcat strike’ by pilots). The Court goes on to emphasise that “strike action is
a fundamental right laid down in Article 28 of the Charter of Fundamental Rights of
the European Union”. Even though strike action embodies a moment of conflict that
seeks to paralyse activity, the Court holds that it “nevertheless remains one of the
ways in which collective bargaining may manifest itself and, therefore, must be
regarded as an event inherent in the normal exercise of the activity of the employer
concerned”. Thus, “a strike whose objective is limited to obtaining from an air
transport undertaking an increase in the pilots’ salary, a change in their work
schedules and greater predictability as regards working hours constitutes an event
that is inherent in the normal exercise of that undertaking’s activity, in
particular where such a strike is organised within a legal framework.” In the
Court’s view, since the right to strike is a fundamental right for workers, the fact
that workers invoke that right and launch strike action “must be regarded as
foreseeable for any employer, in particular where notice of the strike is given”,
which was the case here. The Court holds that the carrier could not be unaware that
the pilots intended to put forward demands and that it had, in principle, “the means
to prepare for [a strike] and, as the case may be, mitigate its consequences, with
the result that the employer retains control over events to a certain extent.”
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1. European
Union
Social
update
- Tripartite social summit :
On 24 March, EU leaders and social partners came together
for the tripartite social summit that traditionally precedes the European
Council (see Tripartite Social Summit).
The press release issued following this summit emphasises plans for a Social
Europe. Looking ahead to the Social Summit due to be held in Porto on 7 May,
Charles Michel, President of the European Council, said: “we will put social
Europe at the top of our political agenda”, and called for “sustainable growth
that is measured in more than GDP”. Ursula von der Leyen, President of the
European Commission, observed that the Porto summit “will be an opportunity for
everyone, trade unions and employers, but also civil society and institutions,
to renew our joint commitment on the Social Europe we want to build”. Luca
Visentini, General Secretary of the European Trade Union Confederation (ETUC),
struck a less lyrical tone, calling on Member States to “make full use of EU
support to prolong job and wage protection until recovery is complete and extend
it to cover all working people.” He also noted that “half of the EU SURE funds
to protect jobs and wages are unused” (see press
release).
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2. Member
States
Germany
Wage agreement in the metalworking industry :
On 30 March, the IG Metall trade-union
federation and North Rhine-Westphalia employers reached a wage agreement covering
the region’s 700,000 metalworkers. The plan is for this “pilot” agreement to then be
adopted in Germany’s other regions, to cover the 3.8 million workers employed in the
metalworking and electronics industries. The agreement provides firstly for a
500-euro “Corona virus bonus payment” in June 2021, and secondly, a 2.3% monthly
increase. This increase will be “saved up”, so that it will represent up to 18.4% of
one month’s wages in February 2022, rising to 27.6% of one month’s wages in February
2023 (i.e. 12 x 2.3%). This wage supplement, known as Transformationsgeld
[‘transformation money’] can be paid either as a lump sum or, for companies
experiencing difficulties, converted into leave. In conjunction with other items
making up a worker’s overall remuneration package, Transformationsgeld is
intended to facilitate the transition to a 32-hour week, without cutting the
worker’s monthly wage pro rata to the reduction in working hours (IG Metall
press
release).
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- Wage agreement in the steel
industry: On 27 March, the IG Metall trade-union
federation and the employers reached a wage agreement covering the steel
industry in north-west Germany (70,000 employees). It will apply until 31 May
2022. On 30 June 2021, employees will receive a 500-euro “Corona virus bonus
payment”. They will subsequently receive two further 250-euro wage supplements,
one payable on 28 December 2021 and the other on 28 February 2022. From 28
February 2023 onwards, this wage supplement will rise to 600 euros, paid as a
lump sum. This supplement, which will then be revised in line with future wage
negotiations, can be converted into leave by collective agreement, to protect
jobs. The additional payment of 1,000 euros per year, which was introduced in
2020, is renewed. It will be paid in June 2022 and, at the employee’s option,
can be converted into leave days (IG Metall press
release).
- Works council: The
government has passed the bill
presented by the Federal Minister of Work, Hubertus Heil (SPD), which is
intended to strengthen works councils. To persuade the other coalition parties
to vote for the bill, the word “strengthening” has been replaced by
“modernisation”. However, the aim remains the same: to make it easier to set up
works council within companies, by providing better protection for employees who
call for the creation of a council; and to strengthen the powers of these
councils, in particular by creating a co-decision-making right that will apply
where companies wish to introduce artificial intelligence.
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Ireland
The future lies in rural areas :
The government has unveiled its Our
Rural Future strategy for rural development, covering the period
2021 to 2025, and complementing the Project Ireland 2040 plan. This
strategy recognises “the fundamental importance of rural towns, enterprises, and
people to our national prosperity and wellbeing”. This highly ambitious plan, which
offers up the prospect of ecological transition and a carbon-neutral economy, is the
first to emerge in Europe since the pandemic. It puts forward numerous measures,
several of which are intended to develop teleworking and to attract talent to live
and work in rural areas: creating 400 teleworking spaces and the right to
teleworking from 2021 onwards, and setting a target (at least 20%) for employees in
the public sector to move to teleworking. More generally, with a view to reducing
inequalities and modernising the rural world, the strategy puts forward a number of
measures to revitalise rural areas, create jobs, improve access to new technologies,
develop apprenticeships, set up social enterprises and lastly, to embark on a vast
investment plan aimed at enhancing the quality of rural life. These measures include
a Rural Youth Assembly to give a voice to young people; developing services; and
enhancing access to higher education on line.
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Italy
Unvaccinated employee placed on compulsory leave
: the Belluno Court has issued an order
in the context of urgent proceedings, allowing an employer to place a nurse, who was
employed in a residential care home and refused to be vaccinated, on paid leave. The
court’s decision was issued under Article 2087 of the Civil Code, which orders
employers to ensure the safety of their employees. The decision also affirms that
administering the Covid-19 vaccine is an effective measure in these circumstances.
The employer’s freedom to fix periods of paid leave means it can use this to remove
the nurse from his workplace on a temporary basis. However, the court does not rule
on whether the employee can be suspended without pay or made redundant.
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Portugal
- Covid-19 : On 25 March, the
Council of Ministers extended until 31 December 2021 the exceptional and
transitional arrangements covering the reorganisation of work, aimed at
minimising the risks of COVID-19 transmission through contact in the workplace
(see press
release). This regime was enacted by Decree-law 79
–A/2020, which was initially due to come to an end on 31 March. These
arrangements will therefore now remain in place through to the end of the
year, “without prejudice to the possibility of a further extension following
consultation with the social partners”. These exceptional arrangements apply to
companies with more than 50 employees, which are located in territorial zones
deemed to be at risk. In order to maintain physical distancing, the employer is
required to stagger the times at which employees start and finish work, and to
adapt their working hours and break times. The employer must also promote
teleworking, “where the nature of the activity allows this”.
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United
Kingdom
- Artificial intelligence.
The Trade Union Congress (TUC) is pursuing a campaign (“Dignity
at work and the AI revolution”) calling for UK data protection law to be
amended, so that it includes a universal right to “explainability” of AI systems
in the workplace, and the right to ask for a personalised explanation. In
particular, the TUC is proposing a new right to data reciprocity, and is calling
for a new role for the trade unions, and for ethical behaviour at all stages of
the AI production and implementation chain. The TUC is highlighting the
fundamental values that employers should adhere to whenever they introduce
artificial intelligence.
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3.
Companies
Corporate
Social Responsibility
Parental leave :
To encourage men and women to share the role of
parent equally, the car maker Volvo has decided to grant its
40,000+ employees around the globe, the right to 24 weeks of parental leave,
remunerated at 80 per cent of their base pay. The press release states that a pilot
scheme was launched in the EMEA (Europe Middle East & Africa) zone in 2019, in
which 46 per cent of all applicants were fathers. This measure is backed by
communications that have been prepared with the help of behavioural scientists, to
ensure that the persons concerned do not feel reluctant in any way to take this
leave. For example, the checklist
for communications promoting the scheme emphasises the need to speak of ‘24 weeks’
rather than ‘up to’ 24 weeks of leave, as saying ‘up to’ might encourage employees
to request a shorter period of leave (see press
release).
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Maternity and paternity leave :
On 22 March, the Italian banking group UniCredit announced that from
April onwards, it would be granting all of its employees (most of whom are in
Europe) 16 weeks’ maternity leave on full pay and 4 weeks’ paternity leave on full
pay (see press
release). This measure is part “of a broader approach to work-life balance,
as discussed with the European Works Council”, says Emanuele Recchia, Head of
Industrial Relations, Labour Policies and Welfare at UniCredit.
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Accords
transnationaux
Health and safety at work :
On 15 March, the management of the catering
services group Sodexo and the
international trade-union federation IUF signed a Declaration
of Intent , “on health and safety, including the pandemic as prompted by
COVID-19 Crisis”, to be appended to their international framework agreement dated 12
December 2011. Both parties urge the trade unions and the representatives appointed
by Sodexo to embark on negotiations at national and/or local level, with a view to
concluding agreements on health and safety at work, that will be consistent with the
mutually accepted global approach and principles (ILO conventions), and to review
their existing agreements at regular intervals.
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4. Studies
and reports
Teleworking :
On 22 March, the Scottish Trades Union Congress
(STUC) published the results of the Covid-19 and Working from Home survey,
for which academics questioned 3,000 workers about their experiences of working from
home, and their hopes and fears for the future. The study
was commissioned by the STUC, with the support of several trade unions, and was
performed by the Universities of Manchester and Strathclyde. Responding to the
survey findings, STUC General Secretary Roz Foyer emphasised that “significant
numbers of workers have experienced work intensification and stress over the past
year, yet for many others the overall experience has been positive.” Professor Phil
Taylor said: “There is a majority preference from workers of wanting to spend two
days or less in the workplace.” However, a ‘blanket’ approach is inappropriate.
There is also compelling evidence that Working From Home [‘WFH’] is not desirable
for a significant minority. Employers will need to accommodate, and unions to
represent, multiple, often contrasting, worker interests and preferences. The
development of agile or hybrid arrangements should follow best practice by being
fully negotiated with unions (see press
release).
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