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IR Notes 162 – 21 April 2021
www.irshare.eu
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A question for…
Laurence Devillers, Professor of Artificial Intelligence & Research at
LISN-CNRS
Today, the European Commission has
published regulations
governing the use of AI. Are these regulations really
necessary? Do workforce representatives have a role to
play? We need
these regulations governing trustworthy AI. We already had the
European framework for personal-data protection, i.e. the GDPR
regulation, but we also needed a regulatory framework governing use.
The European law therefore lays down red lines, i.e. prohibited
instances of use, but it also leaves room for discussion, with a
view both to managing the inevitable ethical tensions that will
arise, and to anticipating the impact of AI on humanity. This is an
important step, as this legal framework establishes a European
approach based on our values, i.e. those of human rights and ethics;
they must guide the way for developing AI in the European Union and
ensure that the EU can defend these values at global
level. Establishing the
principle that the human must remain at the centre of things should
facilitate the acceptance of AI, both in the workplace and among
citizens. AI represents a formidable opportunity. It’s invisible.
Seeking to make it more transparent will give greater meaning to
whatever we are going to do with. In addition to the red lines laid
down by the Commission, we need to have a debate within companies:
both those that produce AI and those that use it, about the limits
of what machines can do and the possibilities they offer. The aim is
not to replace man with AI, but to allow AI and mankind to
cooperate. This collaboration should enable collective intelligence.
In this context, machines must not bear any responsibility. They
should operate autonomously when executing tasks they have mastered,
but they cannot be responsible. An AI machine isn’t creative in the
human sense: it can be creative by producing new things at speeds
and with levels of precision that humans simply can’t achieve.
However, it is unaware of the importance, the novelty, the beauty
and the utility of what it is creating. Human beings alone can
appreciate the value of what AI produces. It’s this cooperation that
we must make people understand. Within companies, discussions of AI will
have to be ongoing, as reflection on ethical considerations will
never cease. We’re going to save so much time by using machines that
we really must take the time to explain AI, to educate, experiment
and correct. There is a benefit to be gained by the humans employed
in a company collectively defining what machines can contribute, and
this collective construction process is vital, as it restores
meaning to the work done by humans. This is not the case where AI is
imposed without any discussions. Human resource managers have a
major responsibility to educate employees about these issues.
Workforce representatives, for their part, must ensure that every
single employee can continue to exercise their own free will and to
give the best of themselves for the company, so that the various
human vocational specialisations can understand what they are going
to produce using machines. People will need to develop a dual
attitude: on one hand a relationship of trust, i.e. accepting their
ability to predict what is going to happen and to do what is asked
of them, and on the other, a relationship of doubt, i.e. being able
to question what the machine says and
does.
> Find out more: for more on the future of work, see the CNPEN
and GPAI websites. Laurence Devillers
is also the author of « Les
robots émotionnels » (L’Observatoire, 2020). Follow her on:
@lau_devil
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Diary
27
April On line Conference
organised by the European Trade Union Institute (ETUI) on the theme of
Exploring
interfaces between labour and environmental law.
27 and 29
April
On line UNI Europa Conference and
Congress (programme)
7 and 8 May Porto
European Social Summit
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
fortnightly newsletter produced by IR Share and its
network of experts, and is available in several European languages
(English, French, German, Italian, Spanish). It offers Europe-wide
monitoring of employment law, labour relations and employment policy. It
is available by subscription for 18 euros per month .
The team This issue
was producaed by Pascale Turlan
and Frédéric
Turlan.
Find out more
about the IR
Share team on our website.
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Lead
story
A human
being cannot be dismissed by an algorithm
On 24 February, the Amsterdam District Court delivered a ruling (published on 14
April) that is believed to be the first employment-related court
decision applying Article 22 of the General
Data Protection Regulation of 27 April 2016. In respect of automated
individual decision-making, this article states that “the data subject shall have
the right not to be subject to a decision based solely on automated processing,
including profiling, which produces legal effects concerning him or her or similarly
significantly affects him or her.” The case, which was brought before the District
Court of Amsterdam, where the platform’s European head office is located, concerned
six Uber drivers (five British and one Dutch citizen), whose Uber accounts were
deactivated without warning, on the grounds that their usernames appeared to have
been used simultaneously at two different locations in London, suggesting fraud was
involved. In other words, the drivers were accused of fraudulently passing on their
Uber app username to another driver. Uber’s decision – which was seemingly taken
without any human intervention on the part of the data controller, and did not allow
the drivers to state their case or dispute the decision – also resulted in them
losing their private hire licences issued by Transport for London (TfL), the body
that manages drivers’ licences in London. As a result, they could no longer work for
other apps. The Dutch Court ordered Uber, which was not represented at the hearing,
to reinstate the six drivers by reactivating their Uber account within one week
following the judgment, failing which it would have to pay a 5,000-euro fine for
each day’s delay. Uber has also been ordered to pay damages amounting to more than
100,000 euros, in the form of compensation ranging from 8,200 euros to 20,200 euros,
depending on the driver concerned, plus compensation awarded to each driver to cover
their legal costs. This concrete implementation of the European regulation is a
reminder that even the most sophisticated technologies must remain under human
control, especially when the decisions in question affect humans. > Find out more: article
in The Guardian (14.04), press
release issued by the organisation Worker Info Exchange, which
backed the complainants, and article
published by Brave New Europe (thanks, Ben Wray!).
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1. European
Union
Proposal
Carcinogens :
On 25 March, the European Parliament’s
Committee on Employment and Social Affairs adopted its report on the revision of the
Carcinogens and Mutagens Directive (Directive 2004/37/EC) (see Carcinogens directive
revision). This fourth update either sets or revises occupational
exposure limit values (OELs) for three substances: acrylonitrile (a limit is set);
nickel compounds (limit set) and benzene (existing limit revised downwards) (see IR Notes 149). MEPs
voted by a very large majority (46 votes in favour, 6 abstentions) to extend the
scope of the directive by including reprotoxic substances that have adverse effects
on reproductivity and can cause impaired fertility or infertility. They are calling
on the Commission to put forward an action plan by the end of 2021, with a view to
setting limits for a further 25 substances, notably lead, lead compounds and
mercury. They have also called for protection to be extended to workers who are
exposed to a cocktail of substances, without any of these substances actually having
to reach a limit value, and for the inclusion of hazardous drugs to which 12.7
million workers are exposed in their workplace (see also the European Public Service
Union’s campaign
to include hazardous drugs). On 13 April, the Committee voted in favour of the
mandate to embark on inter-institutional negotiations with the Council, with a view
to adoption at its first reading (see European Parliament press
release) under the Portuguese Presidency of the EU. The new legislation
could then come into force in all Member States in 2023. The European Trade Union
Confederation (ETUC) has welcomed this progress (see press
release).
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Social
update
- EGF grants its first aid package linked to
the pandemic: On 31 March, the European Commission
announced that it proposes to grant Estonia financial support worth 4.5 million
euros, to support over 5,000 employees and self-employed workers in the tourism
industry, who lost their jobs as a consequence of the Covid-19 pandemic. This
the first time that an aid application has been submitted to the European
Globalisation Adjustment Fund (see European Globalisation Adjustment
Fund) to help offset job losses linked to the pandemic (see
press
release).
- Future of Europe: A
multilingual digital platform was launched on 19 April, to allow Europe’s
citizens to submit their views on any topic they consider important for the EU’s
future (see press
release). The platform is intended to provide contributions to the
Conference on the Future of Europe (see the Commission’s communication of 22
January 2020, “Shaping
the Conference on the Future of Europe”), which will be opened on 9 May
(Europe Day) by the European institutions (the Commission, the Council and the
Parliament). Details of how the Conference will work are set out in a declaration
adopted on 10 March.
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Case law
Discrimination on grounds of age :
The EU Court of Justice has issued a ruling on a Greek case,
concerning an employee of a sports centre in the public sector. Within the framework
of the policies imposed by its creditors, which required it to reduce wage costs in
the public sector in order to achieve savings of 300 million euros in respect of
2012, Greece set up the “labour reserve system”. Workers who had reached the age of
58 could be transferred to this system for a period of 12 months, and a maximum of
24 months, until they retired. The system was applied to 30,000 people who, during
this period, suffered a 60% cut in their basic salary and lost the severance pay to
which they would have been entitled at the time their contract of employment was
terminated. The Court of Justice’s view is that the system is indeed characterised
by a difference in treatment that is directly linked to age (see Discrimination on the grounds of
age). However, is it justified? The Court holds that
debt-reduction imperatives cannot be a valid reason. However, the Greek Government
explained that this policy was also about maintaining full employment (the system
avoided the need to dismiss workers) and rebalancing the age pyramid in favour of
young civil servants. Although these two arguments are somewhat strained, together
they allow the Court of Justice to accept direct discrimination, as the disputed
system “also pursues employment-policy objectives referred to in Article 6(1) of
Directive 2000/78, in principle capable of justifying objectively and reasonably a
difference in treatment on grounds of age”. This is a further illustration of how
Member States can easily circumvent the prohibition on discrimination on grounds of
age (CJEU;
15 April 2021, Case C-511/19, AB and press
release).
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2. Member
States
France
- Health-protection measures strengthened :
On 8 April, to combat the COVID-19
epidemic, the government strengthened the national
protocol setting out companies’ teleworking obligations and the rules
governing the provision of catering services. Teleworking for at least 4 days
per week is now the rule, and every company is required to draw up “an action
plan for the coming weeks, to minimise the amount of time that employees spend
on site”.
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Ireland
Teleworking :
As a continuation of the Remote Working
Strategy published on 17 January (see IR notes 157), the
government, in conjunction with the social partners, has organised recourse to
teleworking by immediately putting in place a new Code
of Practice on the Right to Disconnect, which was published on 1 April (see
press
release). This code serves as a guide and sets out good practice for
companies and their employees. Although it has no legal force, it can still be used
in the event of a dispute. “The Right to Disconnect refers to an employee’s right to
be able to disengage from work and refrain from engaging in work-related electronic
communications, such as emails, telephone calls or other messages, outside normal
working hours”. Three rights are enshrined in this code: 1. “The right of an
employee to not routinely perform work outside normal working hours”. 2. “The right
to not be penalised for refusing to attend to work matters outside of normal working
hours.” 3. “The duty to respect another person’s right to disconnect (e.g., by not
routinely emailing or calling outside normal working hours”. Ireland’s Workplace
Relations Commission (WRC) is also organising a national online public
consultation on the introduction of a statutory right to request remote
work. The government wants to provide “a clear framework” for the use of teleworking
and depending on the case, it envisages “a hybrid or blended model with a
combination of remote work and onsite work”, involving the presence of “a core of
‘anchor’ people, who will be in the office or on site most days because they need to
be.”
- Parental leave extended:
The Parent’s Leave and Benefit Act 2019, amended by the Family
Leave and Miscellaneous Provisions Act 2021, increases the statutory
leave entitlement of a “parent” from two to five weeks. This leave must be taken
during the first two years of a child’s life or, in the case of adoption, within
two years of the placement of the child with the family. Parent’s leave is
available to each parent. This period of paid leave is in addition to two weeks’
paid Paternity
leave and unpaid Parental
leave of up to 26 weeks (see press
release).
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Italy
Platform companies :
An agreement
between the trade union confederations Cgil, Cisl and Uil on the one hand, and the
employers’ organisation Assodelivery on the other, was signed on 24 March, in the
presence of the Minister of Employment, Andrea Orlando (see Ministry of Employment
press
release). This “experimental framework protocol for upholding the law and
for combatting illegal employment practices, illegal subcontracting and exploitation
of labour in the food-delivery industry” is intended to “combat unlawful labour
brokerage and the phenomenon of “caporalato” [forced labour], and, more
generally, any form of exploitation of labour designed to benefit other parties, in
the goods delivery industry, whose structure is complex.” The signatories will have
6 months to meet the obligations laid down by the protocol, which relate mainly to
supervision of the organisation of labour and performance-measurement algorithms.
There are three main points: 1) An undertaking given by Assodelivery member
companies to adopt firstly an organisational model that complies with legislative
decree no. 231/2001 and is capable of preventing reprehensible behaviour within a
company; and secondly a code of ethics. 2) An undertaking given by platforms not to
use third-party companies for making deliveries, at least until such time as a
special register has been created. 3) The creation of a safeguarding body tasked
with supervising the dynamics of how delivery workers are employed, with a view to
identifying any unlawful activities.
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3.
Companies
European
Works Councils
Maintaining UK representation :
After several years of tense discussions, on 30 March, the
management of the French group Safran
(55,000 employees in Europe), its European Works Council and an
IndustriAll Europe representative signed an Amendment
that allows the British delegation to remain on the European Works Council. While
formally noting that the United Kingdom “no longer has the legal conditions
necessary to be represented” on the European Works Council since the transition
period came to an end (on 31 December 2020), the parties nevertheless emphasise that
“employee representation in the United Kingdom has been ensured since the creation
of the Committee”, and they “expressly agree to maintain the United Kingdom within
the perimeter of the agreement, to maintain its members (…) and to maintain its
prerogatives in the same way as the other Member States.” The group’s intention is
for this amendment to strengthen the European Works Council Bureau, by increasing
the number of its members from five to seven, four of whom should, where possible,
be from countries other than France. This change in composition is necessary “in
view of the challenges of European social dialogue and the high level of activity of
the European Works Council Bureau”. In its newsletter,
the European Works Council emphasises that “this signature marks the end of a
five-year long battle waged by your European elected representatives to ensure that
the rights to information, consultation and participation of the group’s second
largest country in terms of workforce in Europe are not weakened”. The Council sees
this as “a positive signal sent by the [company’s] new governance”.
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Select committee and Brexit :
The European Trade Union Institute (ETUI) has published Amendment no. 8 to the Saint-Gobain European Works
Council agreement, which was signed on 18 December 2020, more than ten years after
the previous amendment. The text takes account firstly of the change in the group’s
organisational structure (it no longer operates on the basis of “delegations”, but
by country or grouping of countries), and secondly, of Brexit. Here, the amendment
specifies a list of the countries covered, including Norway, Switzerland and the
United Kingdom. The European Works Council is composed of 70 members and meets at
least once a year, whereas the select committee, which has 9 members, meets four
times a year for one day. Each body also holds a one-day preparatory meeting before
these meetings. Select committee members are granted a credit of 30 hours for each
six-month period, and the secretary is granted 80 hours. These credits can be used
“by means of remote working”. This period of time rises to 40 and 120 hours
respectively if an extraordinary meeting is held during a given six-month period.
Members also have a collaborative workspace in Microsoft Teams, whose secretary will
be the administrator. The amendment confirms the mandate given by the European Works
Council to the select committee “to exercise – in its name and on its behalf – its
powers in terms of rights to information and consultation”. A clause provides for
half-yearly meetings between select committee members and the management of a
country or grouping of countries, for the purpose of reviewing the changes taking
place within the group and in the group’s strategy.
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4. Studies
and reports
Overview of industrial relations and employment
during the pandemic : The European Foundation for the
Improvement of Living and Working Conditions (Eurofound) has published a summary of
the situation concerning working conditions and industrial relations in the EU in
2020 (Working
life in the COVID-19 pandemic 2020). It includes the 29 national
reports produced by Eurofound’s correspondents (including IR Share, which publishes
IR Notes). These national reports describe how Member States have coped with the
pandemic; the role played by social partners; and the main legislative changes that
occurred in 2020. One of the articles summarising the situation shows that there was
a significant decline in industrial disputes in 2020 (Relative
calm on the industrial action front in 2020).
- Labour costs: Hourly
labour costs in the economy as a whole were estimated, in 2020, at 28.5 euros in
the EU and 32.3 euros in the euro zone, compared to €27.7 and €31.4 respectively
in 2019 (i.e. an increase of 3.1% in the EU and 2.9% in the euro zone
respectively), according to Eurostat’s latest statistics.
The lowest hourly costs are in Bulgaria (€6.5), Romania (€8.1) and Hungary
(€9.9), while the highest are in Denmark (€45.8), Luxembourg (€42.1) and Belgium
(€41.1). Hourly costs rose in all Member States with the exception of Malta
(down by 4.7%), Cyprus (by 2.7%), and Ireland (also 2.7%) and Croatia (1%).
There were increases of 7% or more in the following countries: Portugal (8.6%),
Hungary (7.9%), Bulgaria (7.8%), Lithuania (7.5%), the Czech Republic (7.4%),
Romania (7.2%) and Slovakia (7%).
- Human rights and due diligence:
The Amnesty International Report
2020/21 (not available in English) on the global human rights situation
covers 149 countries and offers an analysis of the main human rights trends
observed around the world in 2020. The pandemic has laid bare the systemic
inequalities suffered by minorities, healthcare personnel and women, who make up
some of the most severely affected populations. As far as Europe is concerned,
the report calls on governments to “accelerate [their] timetables to reduce
greenhouse gas emissions [and] reach zero-carbon emission” and to “condition any
economic support measure to high-emitting companies with time-bound commitments
to phase out fossil fuels.” The NGO is also in favour of a due diligence
directive to ensure that “laws effectively hold businesses accountable for human
rights and environmental harm within their value chain and provide victims with
access to remedy.
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