IR Notes

The proposal for a regulation laying down harmonised rules on artificial intelligence, presented on 21 April by the European Commission, constitutes the first legal framework regulating artificial intelligence (AI) in the European Union. It is accompanied by a communication in which the Commission explains its initiative, plus two annexes, one to the regulation and the other to the communication, and a Coordinated Plan on AI to be developed in conjunction with Member States and by a proposal for a regulation on machinery products, which is intended to replace the current “Machinery” directive (see press release). Once they have been passed, these regulations will apply directly in Member States, without needing any transposition law. In terms of employment relationships, Annex III to the regulation lists “high-risk” AI systems that require supervision: 1/ AI systems intended to be used for recruitment or selection of natural persons, notably for advertising vacancies, screening or filtering applications, evaluating candidates in the course of interviews or tests; 2/ AI intended to be used for making decisions on promotion and termination of work-related contractual relationships, for task allocation and for monitoring and evaluating performance and behavior of persons in such relationships; 3/ AI systems intended to be used for the purpose of determining access to vocational training or for assessing students in educational and vocational training institutions. These AI systems are deemed high-risk, as they may significantly affect the career prospects and future means of subsistence of these persons. The Commission states that when these systems are “improperly designed and used”, they may perpetuate historical patterns of discrimination, for example against women, certain age groups, persons with disabilities, or persons of certain racial or ethnic origins or sexual orientation. AI systems used to monitor the performance and behaviour of these persons may also impact their rights to data protection and privacy. The regulation stipulates that the Commission may be entitled to amend the list of high-risk AI systems under certain conditions. The fact that an AI system features in this classification gives rise in particular to two obligations to provide “users” with guarantees (see Editorial). These AI systems are designed and developed in such a way as to ensure that, firstly their operation is sufficiently transparent to enable users to interpret the system’s output and use it appropriately (Article 13), and secondly, using appropriate human-machine interface tools, that they can be effectively overseen by natural persons during the period in which the AI system is in use. Human oversight shall aim at preventing or minimising the risks to health, safety or fundamental rights that may emerge when a high-risk AI system is used (Article 14). These two obligations are definitely intended to establish trust vis-à-vis AI systems classified as “high-risk”. This trust must also be based on the compliance obligation incumbent on the AI supplier, who has to implement a kind of self-certification of its compliance prior to placing AI systems on the market or putting them into operation. It is unclear to what extent the guarantees provided by the proposal for a regulation on artificial intelligence as presented by the European Commission are sound, and their concrete application in the area of employment relationships will inevitably raise many questions (see Editorial, opposite).

Proposal for a regulation on “machinery products” : The European framework on AI (see Lead story) is accompanied by a proposal for a regulation on “machinery products” that is intended to replace the current “Machinery” directive. This project is intended to facilitate the free circulation of machinery products in the Union and to protect consumers and workers who use them. The text is accompanied by an annex, an impact assessment and an executive summary of this assessment. “Machinery products cover an extensive range of consumer and professional products”, says the Commission, “from robots to lawnmowers, 3D printers, construction machines, industrial production lines”. Companies shall perform only one conformity-assessment procedure.

Proposal for a Non-Financial Reporting Directive (NFRD) : On 21 April, the European Commission put forward a proposal for a directive on the publication of a Corporate Sustainability Reporting Directive. This proposal is intended to harmonise the sustainability information published by companies, which will provide financial firms, investors and the broader public with access to comparable and reliable information in this area (see press release and Questions and Answers press release). The sustainable development report they will be required to publish should enable workforce representatives to understand their company’s impact on the environment and on society, and its sustainability strategy. This new text will apply to all large companies and all listed companies, i.e. to nearly 50,000 companies, compared with the figure of 11,000 companies covered by the current non-financial directive. While the new text undeniably represents progress with regard to the current directive, the proposal requires further improvements, emphasises Sigurt Vitols, senior researcher at the Social Science Center Berlin (WZB) and associate researcher at the European Trade Union Institute (ETUI), in an analysis published by Social Europe.

New regulation on the European Globalisation Adjustment Fund : On 27 April, the European Parliament definitively adopted the proposal for a regulation revising the functioning of the European Globalisation Adjustment Fund (EGF) (see European Globalisation Adjustment Fund), which helps workers who have lost their jobs as a result of restructuring linked to globalisation (see Parliament’s press release). The main changes with regard to Regulation 1309/2013 are as follows: 1/ speeding up the procedure for granting support; 2/ expanding eligibility for support to encompass restructurings affecting at least 200 workers (instead of 500 as at present); 3/ abandoning the reference to globalisation as the sole justification for seeking support: the fund can now be also mobilised for restructurings linked to the digital transition and automation, and to the coronavirus crisis; 4/ the fund will pay a higher proportion of the cost of measures provided for by the Member State. The annual budget is fixed at 186 million euros, compared to 150 million over the period 2014-2020. The regulation will enter into force after its forthcoming publication in the OJEU.

Porto Social Summit : On 7 and 8 May, the Portuguese Presidency of the EU is hosting the Porto European Social Summit, more than three years after the previous European Social Summit held at Gothenburg (see Tripartite Social Summit). On this occasion, the Portuguese Prime Minister plans to give “a new political impetus to the creation of the European Pillar of Social Rights”. Nicolas Schmit, the European Commissioner for Jobs and Social Rights, will set out the action plan for the European Pillar of Social Rights before the participants join parallel working groups covering the following topics: “work and employment”, “skills and innovation” and “welfare and social protection”. European social partners and representatives of the European institutions will close the day. Heads of State and of Government will hold an informal council the next day and issue a joint declaration. The level of ambition expressed in the declaration remains uncertain as yet, given the divergences between Member States.

• Aid for dismissed workers: In recent weeks, the European Commission has proposed several interventions by the European Globalisation Adjustment Fund to support workers to find a way back into employment: 1/ 476 former workers of the metal-works factories of GMH Guss in Germany, who lost their employment after several client companies relocated their production to countries outside the EU (see press release); 2/ 1500 former workers of the aviation services company Swissport Belgium, who lost their jobs due to the impact of the coronavirus crisis (see press release); 3/ more than 5,000 tourism workers and self-employed in Estonia who lost their jobs or whose activities have ceased as a consequence of the pandemic (see press release).
  > Find out more: factsheet on the EGF produced by the European Commission, EGF website.

Social services : On 26 April, the European social partners in the social services sector (EPSU and FESE) issued a joint statement calling on the European Commission to set up a “dedicated and recognised” European sectoral social dialogue committee, which “in turn will help to develop social dialogue in Member States and support them in facing their challenges”. They believe they represent the biggest economic sector in terms of employment (approximately 11 million employees) which is still outside the scope of EU-level sectoral social dialogue. If the Commission agrees to their request, it will be the first time in more than ten years that such a committee has been set up.

• Industry open to LGBTIQ workers : On 15 April, the Executive Committee of the IndustriAll Europe union federation adopted a position paper in favour of rainbow workplaces, confirming that the federation is committed to “equal treatment and respect for lesbians, gay men, bisexuals, transgender, intersex and queer/questioning workers (LGBTIQ)”.

• Representation of platform workers : On 21 April, the government passed order no. 2021-484, establishing a form of collective representation for platform workers, but only those defined in Article  L. 7341-1 of the Employment Code, i.e. car drivers and delivery workers “using a two- or three-wheeled vehicle, motorised or otherwise”. This text provides for organising an election of platform workers’ representatives in 2022. This initial step is intended to open the way to collective bargaining, in a form to be specified by a future text, as indicated in the Council of Ministers’ press release. The draft order presented in March imposes an obligation to hold negotiations at least once every two-year electoral cycle. The content of this negotiation would be freely chosen by the representatives, from among seven themes, including working conditions and methods of determining workers’ remuneration.

Challenging a decision to dissolve the Works Council : On 16 April, the management of the digital services group Atos SE (120,000 employees) announced the dissolution of the Atos SE Council, which was one of the first French SE works councils, established via a 2012 agreement negotiated at the initiative of Thierry Breton, the current European Commissioner responsible for industrial policy and digital services. The European social dialogue held on this Council won an award in 2017. Management denounced the agreement in 2020 and initiated a six-month renegotiation period, at the end of which the parties had not reached agreement. Management’s stated objective was to make the Council more efficient and agile, by cutting the number of representatives and redefining the information and consultation process. For their part, workforce representatives recognised the need to review certain procedural aspects, while retaining the spirit of their agreement and safeguarding their existing prerogatives. According to members of the former select committee, management announced its intention to convene a special negotiating group as soon as possible, in order to negotiate a new agreement. In other words, for a period of between 12 and 18 months – if the negotiations proceed quickly – an information and consultation procedure will no longer be in place at European level, as the Council has been dissolved. However, before it was dissolved, the Council granted its secretary a mandate to initiate legal proceedings with the aim of disputing the employer’s decision. Legal action was therefore launched before the Pontoise ordinary court, in whose jurisdiction the group’s head-office lies, calling for the restoration of the Atos SE Council. The court is due to examine the case in urgent proceedings to be held on 11 May, and will publish a decision soon afterwards. It will rely in the first instance on the text of the agreement, which seems clear as regards the signatories’ intentions. Article 23 section 4 states that “in the event of notification of termination, both parties will immediately commence the renegotiation process”, which indeed they did. On the other hand, the article adds that “until both parties have signed a new agreement, this agreement shall prevail”.  This provision calls for the Atos SE Council to remain in place until such time as the parties have agreed on a new text.

First global agreement on teleworking : On 26 April, the management of the car maker Renault and the IndustriAll Global Union federation signed an addendum to their global framework agreement on developing life at work signed in 2019, “setting out the conditions for remote working by employees”. This text, signed by all parties concerned, including the CGT union, which did not sign the framework agreement, is a response to “the continuation of the health crisis and the high level of interest in remote working, shared by the Renault Group and its employees”. It is about preparing for “a new era, combining on-site working and remote working”. The organisation of working time is destined to evolve around two fixed targets: teleworking is to be practised for at least two days per week, while at the same time adhering to “a minimum rate of return to on-site work, estimated at around 20% of monthly working time” in order to “maintain a bond with other team members as well as with the company”. The social partners are therefore putting forward a comprehensive framework for nurturing collective bargaining at local level, based on several fundamental principles: the adoption of remote working is to proceed on a voluntary basis, and it will be reversible, with each teleworker being entitled to return to work on-site, following an experimental period. Special attention must be paid to new arrivals who join a team, a  majority of whose members are working remotely. The text also sets out the role of managers and the support provided by the company (good-practice guides, training, etc.). Managers can request additional training to detect “any early warning signs of hyperconnectivity”. The parties reaffirm “each employee’s right to choose whether or not to connect outside of their usual working times and during their leave, their connections being limited to use within the applicable time periods for carrying out their professional duties”. The text leaves employees with a high degree of individual freedom: teleworking can be undertaken at home, at any other location chosen by the employee or at a coworking space. Remote working in a different country can also be envisaged. As far as we are aware, this is the first global agreement on this subject. This initiative sets Renault apart from its competitor Stellantis, which opted to apply the group’s teleworking policy for local negotiations.
> See also: IndustriAll Global Union press release.

according to Eurostat data, in 2020, 7% of enterprises in the EU with at least 10 people employed used AI applications: 2% of enterprises used machine learning to analyse big data internally; 1% analysed big data internally with the help of natural language processing, natural language generation or speech recognition; 2% used a chat service, where a chatbot or virtual agent generates natural language replies to customers; 2% used service robots, which are characterised with some degree of autonomy, for example to carry out cleaning, dangerous or repetitive tasks. Among the EU Member States, Ireland recorded the highest share of enterprises (23%) using AI applications, followed by Malta (19%), Finland (12%) and Denmark (11%).

• Teleworking: On 30 April, the European Parliament published a study that analyses recent trends in the use of telework and ICT-based mobile work, and its impacts (listing benefits and drawbacks) on workers, employers and society. It attempts to identify the challenges to be met if political action is to be taken at EU level. It is supplemented by five case studies of Member States (Finland, Germany, Ireland, Italy and Romania).