IR Notes

On 28 June, the European Commission presented the EU strategic framework on health and safety at work 2021-2027, which offers an overview of future actions to be taken by the European Union to cut the number of accidents at work (3,300 fatal accidents and 3.1 million non-fatal accidents per annum) and the number of workers who die each year from work-related illnesses (200,000 per annum) (see press release). Although the number of fatal accidents at work decreased by about 70% between 1994 and 2018, the reduction has slowed down significantly since 2009, justifying new initiatives being taken at EU level. Within this new strategic framework, the Commission is rolling out a series of initiatives, some of which are legislative and binding, while others are based on the social partners or on funding research and communication campaigns. In the field of legislative interventions, the Commission is announcing a revision of directives concerned by digitalisation and recourse to teleworking, by 2023: Directive 89/654 of 30 November 1989, concerning the minimum safety and health requirements for the workplace and Directive 90/270 of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment. As for the right to disconnect, which the European Parliament is strongly demanding, the Commission explains that it will “ensure appropriate follow-up”, without mentioning any particular dates or instruments. To tackle occupational illnesses, the Commission plans to either fix or revise certain exposure limit values downwards, in 2022, i.e. those for asbestos (Directive 2009/148), lead and diisocyanates (Directive 98/24) and, in 2024, for cobalt (Directive 2019/130). The emphasis is on substances to which workers will be exposed in the context of ecological transition (thermal renovation, electric batteries). The Commission is also announcing an update of EU rules on dangerous substances with a view to tackling cancer, and reproductive and respiratory diseases. It therefore plans to launch a consultation of social partners on lower limit values for welding fumes, polycyclic aromatic hydrocarbons, isoprene and 1,4-dioxane within the framework of the Carcinogens and Mutagens Directive in 2023, and to identify a priority list of reprotoxic substances, without setting a date. The impact of digitalisation is dealt with via an awareness campaign led by the European Agency for Safety and Health at Work, with the aim of covering musculoskeletal disorders and psychosocial risks. On the latter point, European social partners are due to assess emerging issues linked to mental health at work and to put forward guidance for action by the end of 2022.  One of the objectives set by the Commission is to develop a “Vision Zero” approach for work-related deaths in the EU, in order to minimise their number.

Democracy at work and European Works Councils : On 1 July, MEP Gabriele Bischoff (S&D) will present the draft own-initiative report entitled Democracy at work: A European framework for employees’ participation rights and the revision of the European Works Council Directive to the European Parliament’s Committee on Employment and Social Affairs. In this ambitious text, Gabriele Bischoff “calls on the Commission to introduce a new framework directive on workers’ information, consultation and participation for the various kinds of European companies, including subcontracting chains and franchises (…) in order to establish minimum standards on issues such as anticipating change and restructuring”. We must “ensure that information and consultation is an integral part of company decision-making at all levels within companies”. The Commission needs to make improvements to the directives regulating SEs, European Cooperative Societies and company law. It will also need to amend Directive 2001/86/EC to introduce minimum EU rules governing employee representation on supervisory boards, so that workers have 2 or 3 seats on the boards of companies with more than 50 employees, rising to one half of the seats at companies with more than 1,000 employees. The report condemns the shortcomings in the European Works Councils directive, as highlighted by the trade unions at regular intervals: ensuring access to justice, ending the exemptions that apply to old, so-called ‘voluntary’ agreements; introducing sanctions for breaches of information and consultation rights; consolidating the concept of the ‘transnational character of a matter’ and preventing the abuse of confidentiality rules.
> Future prospects: if the report is adopted by the Commission in the autumn and subsequently by a plenary session of Parliament, the European Commission will be forced to take a position on this matter and potentially to take an initiative, such as a consultation of European social partners (see European social dialogue).

Biometric and facial recognition : On 18 June, the European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) adopted a joint opinion on the proposal for a regulation laying down harmonised rules on artificial intelligence. They are calling for: 1. A general ban on any use of AI for automated recognition of human features in publicly accessible spaces (facial recognition, fingerprints, and any other biometric or behavioural signals). 2. A ban on AI systems that use biometrics to categorise individuals into clusters based on any grounds on which discrimination is prohibited under Article 21 of the EU Charter of Fundamental Rights. 3. A ban on the use of AI for any type of social scoring and to infer emotions of a natural person (other than in very specific cases, such as for certain health-related purposes) (see press release). More than 145 other organisations are also calling for a ban on biometric surveillance. These include trade unions which, in an open letter (“ban biometric surveillance“) call on various actors, including workers employed at technology companies, with the support of trade unions, to organise in their workplaces, as far as possible, against the development or sale of facial recognition or remote biometric recognition technologies. Isabelle Schömann, Deputy General Secretary of the European Trade Union Confederation said: “Orwellian surveillance of workers, without their knowledge and consent, breaches EU privacy law and basic democratic EU values and principles” as she presented a Policy Brief by the European Trade Union Institute (ETUI) (see press release), written by Aida Ponce Del Castillo, which advocates the adoption of a specific directive on the use of AI in employment. The ETUC has sent a letter to MEPS calling on them “to correct the imbalance between the interests of companies and workers in the European Commission’s proposals” (see the European Commission’s proposal, IR Notes 163 and a previous ETUI study, IR Notes 165).

• Recovery plan: On 11 June, the European employers’ organisation BusinessEurope published its Reform Barometer 2021, which presents the opinions of its members based in EU Member States, on the European recovery plan and the various ways it will be implemented in these countries. Only 11% of member federations believe that the impact of their country’s national recovery and resilience plans will be either large or very large. In addition, more than half of the federations consider that their countries’ national recovery and resilience plans put insufficient focus on business competitiveness and particularly research, development and innovation (see press release).


• G20 Employment Ministers’ Meeting: At their meeting on 23 June, the G20 Ministers of Employment issued a declaration entitled “Fostering an inclusive, sustainable, and resilient recovery of labour markets and societies“ (see press release). In appendix this includes a number of commitments to provide better jobs for women, reminding everyone of the Ministers’ desire to reduce the gap in labour force participation rates between men and women by 25% by 2025. The declaration also mentions adequate social protection for all, regulatory frameworks for remote working arrangements (including the right to disconnect) and digital platform work.

Freedom of establishment and the right to strike : On 10 June, the European Court of Human Rights (ECtHR) delivered a judgment on a case concerning a boycott organised by dockers at a Norwegian port. The Court states that the principle of freedom of establishment should be taken into account, among other criteria, for the purpose of checking that industrial action, such as a strike or lockout, is lawful. On the other hand, it holds that the principle of freedom of establishment is not a fundamental right applicable on a level comparable to that freedom of association: these two freedoms do not have to be reconciled. “The principle of freedom of establishment is not a counterbalancing fundamental right to freedom of association but rather one  element, albeit an important one, to be taken into consideration in the assessment of proportionality” (see press release). The European Trade Union Confederation (ETUC) believes that, in reaching this conclusion, the ECtHR has clearly indicated that the right to strike takes precedence over the “economic freedoms” of the single market. “This is an important ruling for the European trade union movement”, comments the ETUC with satisfaction, “as it establishes a clear hierarchy of rights, with those of workers taking precedence over economic freedoms. This has long been a contentious issue within EU law, following the European Court of Justice’s judgments in the Viking and Laval cases, which the ECtHR has now clarified for the first time.” (see Viking and Laval ; Strike action at EU level).

• Freedom of expression and social media: In a judgment delivered on 15 June, the European Court of Human Rights (ECtHR) considered the case of a woman employed as a cleaner by the Ministry of National Education in Turkey. She was dismissed for adding “likes” to certain anti-government posts published on Facebook by third parties. The Court emphasises that the “Like” button could be “regarded as enabling people to show their interest in and approval of content” [and is] “as such a common and popular form of exercising freedom of expression online“.  The ECtHR emphasises that “the national authorities had not sought to assess the potential of these ‘Like’ comments to bring about an adverse reaction in the applicant’s workplace, having regard to the content of the material to which they related, the professional and social context in which they were made and their potential scope and impact. Accordingly, the reasons given in the present case to justify the applicant’s dismissal could not be regarded as relevant and sufficient.”

• Guidance on violence and harassment at work : To coincide with the entry into force of ILO Convention no. 190 and recommendation 206, several international trade union federations have published a guide for trade union trainers and a workbook containing suggested training activities.

• Domestic carers : In a judgment issued on 24 June, the Federal Court states that foreign domestic carers posted to a private household in Germany are entitled to receive the statutory minimum wage for the hours worked. That also includes on-call care services which may involve the carer living in the home of the person requiring care, and usually being required to work at any time of day or night, as needed (see press release).

• Cross-industry agreement :
  
  

  On 8 June, the social partners reached a cross-industry agreement for the period 2021-2022, which was approved last week by the three trade union confederations CSC, CGSLB and FGTB. Among other things, the text increases the minimum wage to 1,702 euros gross on 1 April 2022 and subsequently, in two stages, to 1,772 euros gross.  The quota set for overtime hours is increased to 120 hours for all sectors and tax exemption measures remain unchanged. The text also regulates general increases in pay, which can rise by 0.4% over a two-year period (see press releases issued by the CSC, FGTB and the employers’ organisation FEB).

Suspension of reform of the unemployment benefit system : Following an application by several trade unions that are challenging the government decree of 30 March 2021 on reform of the unemployment benefit system, the Council of State, France’s highest administrative court, satisfied the unions’ demands with an order issued on 22 June. The court is suspending the rules used for calculating unemployment benefit that were due to come into force on 1 July. The Council of State takes the view that the current uncertainties surrounding the economic situation preclude the introduction, on that date, of these new rules, which are intended to promote stable employment by making unemployment benefit less favourable for employees who alternate between short-term contracts and periods of inactivity. During this recovery period following the pandemic, companies in many sectors are making extensive use of short-term contracts to meet temporary needs. The new benefit calculation rules would have heavily penalised employees working in these sectors, who have to contend with alternating periods of work and inactivity to a greater extent than they would like. (see press release).

• 4-day week : On 22 June, the government announced the launch of a research project examining the social, economic and environmental implications of reduced working time, with a view to moving to a four-day week, the benefits of which would include enhanced protection of the environment. Learning the lessons of developing the amount of working from home during the pandemic, the Minister for Enterprise and Employment, Leo Varadkar, said that it was “too early to say whether a four-day working week could work in Ireland. The idea is ambitious, to achieve the same outcomes and productivity, for the same pay with 20% fewer hours worked.” (see press release).

Lowering wages at Foodora : The first collective agreement concluded between the food-delivery platform company Foodora and a trade union has resulted in lower wages for the delivery workers who have worked for the firm longest. After signing contracts of employment with its workers, Foodora then signed a collective agreement in February 2020 (see press release), which entered into force on 1 April 2021. Around forty delivery workers found themselves facing the alternatives of working for less pay or losing their jobs. The company is applying the collective agreement to all employees, while disregarding both the more favourable remuneration terms that applied before the agreement, and the length of time its delivery workers have been with the firm. The union believes that there is a loophole in the collective agreement, and that Foodora is not allowed to lower the wages it pays under any circumstances. It therefore intends to take the case to an employment tribunal.
> Find out more: article written by our expert on Sweden, Christer Thornqvist.

• Due diligence law : On 10 June, Parliament passed the transparency law, which requires companies to demonstrate that they are exercising due diligence in the areas of human rights and decent workers’ rights, not only in their supply chain, but also in all of their business relations. The law requires companies to undertake risk assessments and to state how they plan to prevent any risks identified from materialising. This obligation will apply to companies with at least 50 employees and sales turnover of at least 70 million crowns (approx. 7 million euros). The Norwegian Forum for Development, which represents a number of NGOs that mobilised in support of this law, is delighted that these thresholds of application are low: it means they will apply to around 8,800 companies. However, the law does not tackle the issue of environmental responsibility, and victims of human rights violations will not be entitled to take their case to court (see analysis by the Norwegian Forum for Development and Environment).

Parental leave : To ensure the effectiveness of the entitlement to parental leave (Shared Parental Leave and Pay), the government has introduced an online tool to help future parents to share their time off during the first key stages of their baby’s life. Shared Parental Leave allows parents to share up to 50 weeks of leave and up to 37 weeks of pay during the first year of their child’s life. Using the new tool, parents can check their eligibility for the system, calculate their pay entitlement and download all the documents they need to secure leave from their employer. Each parent can also take up to 20 SPLIT (“Shared Parental Leave in Touch Days”) days. They can use up one or more of their SPLIT days to work during the week when on shared parental leave, so that they can experiment with part-time working during this time.

• Workers’ rights: On 8 June, the government announced the creation of a new body in charge of protecting workers’ rights. Enforcement of the legislation applicable to tackling modern slavery, enforcing the minimum wage and protecting agency workers – which is currently spread across three different bodies – will now be brought under one roof and handled by this new authority (see press release).

Denouncing and abandoning an agreement : On 23 June, the Pontoise district court handed down a judgment in the case brought by the Atos SE European Works Council and supported by five European trade unions, against the group’s management, which denounced the agreement establishing the Atos SE European Works Council and announced the creation of a special negotiating body to negotiate a new agreement (see IR Notes 163). The dispute concerned the interpretation of Article 23 para. 4 of the agreement, which states that if the agreement is denounced, negotiations must be initiated, and “until both parties have signed a new agreement, this agreement shall prevail”. The employee representatives believed that the council should remain in place until a new agreement was signed. However, the court’s view is that the disputed clause is not as clear-cut as it might appear. The court holds that this clause breaches the principle of “prohibition of perpetual contracts”, which is enshrined in French law. In point of fact, the provisions of the agreement “stipulate no terms other than that of a new agreement (…), thereby potentially removing the option of unilateral termination granted to each party (…), due to the other party’s refusal to sign a new agreement”. As this is a matter of interpretation of law, the court dealing with urgent applications [juge des référés] holds that there is no clear breach of public policy, and rejects the EWC’s application. The employee representatives were also calling for a “temporary council” to be set up, operating according to the subsidiary requirements of the directive on worker participation in the SE, until an agreement was reached. “This notion of a ‘temporary’ council enshrined in law does not feature – in those specific terms – in any of the legislation linked to the SE works council”, and the fact that this group does not have its own EWC while restructuring is under way, does not present a manifestly unlawful breach of public policy.

Seasonal work : On 15 June, the European Commission published a report on the Intra-EU mobility of seasonal workers. The report identifies the main challenges facing between 650,000 and 850,000 (according to estimates) intra-EU seasonal workers: access to information on their rights, adequate social protection, decent housing, decent pay and working conditions (see press release). The report, which was announced in the communication on guidelines on seasonal workers in the EU in the context of the Covid-19 outbreak, published in July 2020, comes out at a time when the European Labour Authority is launching its first campaign for the rights of seasonal workers.