IR Notes

The Dublin Labour Court has handed down an exemplary punishment in a sexual harassment case. The case involves the manager of a Costa Coffee branch who, on the Facebook Messenger platform used to convey information regarding staff work rosters, posted a photo of himself in boxer shorts, after asking “where’s Shauna?” (the person in question was a 19-year-old female employee who worked as a barista, preparing and decorating the coffees served in store). Two days later, on the group chat, he posted a video of a male barista drawing male genitalia on a flat white coffee, accompanied by the comment: “who does this, I’ll promote him to Barista Maestro straight away”. Shauna Quilty, the young female employee involved, then sought a formal investigation and lodged a complaint with the Workplace Relations Commission (WRC) alleging discrimination on grounds of gender, and also discrimination in conditions of employment and sexual harassment (see Harassment and violence at work). The WRC partially upheld the complaint, judging it to be in the less serious category of such complaints. It awarded her compensation of €3,500, corresponding to 12 weeks’ pay. The young woman then appealed the level of the award, arguing that she had been the victim of sexual harassment at the upper end of the scale, that her employer had failed to take the steps necessary to protect her against such harassment, and that the sum of 3,500 euros she had been awarded was not ‘dissuasive’. The Labour Court agreed and ordered her employer to pay her 20,000 euros in compensation. In its decision dated 1 September, the Court set out its thinking as follows: “it is not easy (…) to measure the level of seriousness of a complaint of sexual harassment. Obviously, the very upper end of seriousness includes situations of sexual assault. However, it is not possible to say with any certainty what might be construed as minor examples, as much can depend on the impact of harassment on the individual. Each case has to be examined on its unique facts. What can be said in the instant case is that the Complainant has a right to go to work without being subjected to unwanted pictures of her manager in his underwear or childish and offensive representations of male genitalia. While the nature of such offensive behaviour may not be in the same category as physical assault, it is considerably more than harmless banter”. The Court also criticised the employer for not having a policy covering social media use for work purposes, and expressly setting out a prohibition on the type of sexual harassment to which the Complainant was subjected. The employer is responsible for content posted on the Facebook Messenger platform. In the Court’s view, this failure heightens the sense that while the behaviour of an individual employee gave rise to the complaint, the employer “bears significant responsibility for what occurred.” Lastly, the Court ordered the employer to put in place four types of measures to protect employees against behaviours involving sexual harassment, by: 1) developing a workplace anti-harassment and sexual harassment policy; 2) developing a workplace anti-bullying policy; 3) developing an appropriate social media policy; 4) taking the necessary steps to ensure, using awareness raising and training as considered appropriate and necessary, that policies are verifiably communicated to, and understood by, all employees.

Transparency of financial information : On 28 September, the Council adopted its position concerning the proposal for a directive amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches, commonly referred to as the “public country-by-country reporting (CBCR) directive”, thereby paving the way for its final adoption by the European Parliament (see Council press release). This directive will require multinational undertakings with revenue of more than 750 million euros to disclose publicly, in a specific report, the income tax they pay. This reporting will also contain a “list of subsidiary undertakings included in the consolidated financial statements of the ultimate parent undertaking”, plus a “brief description of the nature of their activities” and “the number of employees on a full-time equivalent basis” (Article 48c). As pointed out in recital 4, “public country-by-country reporting is also likely to have a positive impact on employees’ rights to information and consultation as provided for in Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community, and, by increasing knowledge of undertakings’ activities, on the quality of the dialogue that takes place within undertakings”.

Pay transparency : On 30 September, the European Parliament’s Committees on Employment (EMPL) and Gender Equality (FEMM) embarked on their scrutiny of the draft report produced by Samira Rafaela (Renew Europe) and Kira Peter-Hansen (Greens/EFA), on the proposal for an EU directive on pay transparency. One of the main points of divergence concerns Article 8, which requires companies with at least 250 employees to publish information on their own gender pay gap, every year. The European Commission’s proposal sets the threshold of this obligation at 250 employees, whereas the two MEPs envisage a threshold of 10 employees but adjusting its frequency in line with the size of the company (once every three years for companies with 10 to 50 employees, once every two years for those with 50-250 employees and every year in the case of companies with at least 250 employees). Sylvie Brunet (Renew) is inclined to favour a threshold of 50 employees, whereas some Social Democrats, such as Marc Angel, believe that this obligation should apply to all companies. The report is due to be adopted at the committee meeting held on 9 December.

Limit value covering exposure to asbestos : On 27 September, the European Parliament’s Committee on Employment and Social Affairs adopted, by a very large majority, the own-initiative report submitted by Danish MEP Nikolaj Villumsen (The Left), who plans to set an occupational exposure limit value for asbestos (see Asbestos), despite the European Commission having a contrary opinion. The report calls on the Commission to produce a standard to protect workers against asbestos, especially when they are working on thermal building renovation sites. The numbers of projects of this nature are destined to grow significantly, given the need to meet the targets set by the Green Deal and to cut greenhouse gas emissions. This would mean drawing up an EU strategy to eliminate asbestos altogether, and setting an occupational exposure limit value of 1,000 fibres/m³ (i.e. 0.001 fibre/cm³). The Commission pointed out that it is not in favour of setting a limit value, and would prefer to leave the social partners to work out for themselves how workers can best be protected against asbestos.  The text is expected to be adopted in plenary at the second session in October. The Commission will then have to set out its intentions. The European Trade Union Confederation and eight of its federations asked MEPs to vote in favour of the report and the exposure limit, and against an amendment submitted by the Conservatives, who wanted to abolish this limit value.

Just transition : On 22 September, the Executive Committee of the IndustriAll Europe trade union federation adopted a policy paper calling for “a robust EU Just Transition framework for all […] industries and workers [affected]” by targets set for cutting greenhouse gas emissions. The trade unions state that they are fully committed to meeting these targets, but they also call for: 1) additional resources to supplement those provided for by the Just Transition Fund, so that genuine support is available for job-to-job transitions; 2) a clear, granular mapping of the employment consequences of a shift towards climate-neutral industries at the regional level; 3) reactivation of the proposal for a directive on the anticipation and management of change, as submitted in 2013 by former MEP Alejandro Cercas (S&D); 4) a right to quality training and life-long learning for every worker; 5) over and above regional transitions, a Just Transition framework at EU level for certain severely impacted sectors (see IndustriAll Europe press release).

• Due diligence obligations for multinational companies: The European Trade Union Confederation and several of its federations submitted a joint statement when they met with members of the cabinet of European Commissioner Thierry Breton (Internal Market), and called on the European Commission to wait no longer before submitting the legislative proposal requiring multinational companies to honour fundamental rights and undertake due diligence. It was due to be introduced in June but has since been delayed (see IndustriAll Europe press release).

• Wages paid to Works Council members : The regional court in Braunschweig, Lower Saxony, has acquitted four managers employed by the car maker Volkswagen, one of whom is still in post, of charges that they awarded excessive rates of pay to influential Works Council members, including its former Chairman, Bernd Osterloh. Osterloh earned up to 750,000 euros a year, including bonuses. Since 2017, the group has capped Works Council members’ pay at the level of the higher bracket stipulated by the collective labour agreement, rather than well above this level, as it had done previously. In this particular case, which rocked the ‘joint management’ business model, the court ruled that the group’s managers did not breach any rules when they awarded high rates of pay to employee representatives. The law governing company formations does not appear to contain any specific rules on pay levels.

A first collective bargaining agreement at Ikea : On 23 September, the Croatian retail-industry trade union and IKEA Hrvatska d.o.o. signed the first collective agreement for employees of IKEA Hrvatska d.o.o., which will be valid for a five-year period. This is the first collective labour agreement signed by the multinational company in the South-Eastern Europe region. The agreement guarantees existing rights and enhances some of them. For example, the Christmas bonus paid to employees, the amount of their holiday pay and the number of annual leave days they receive, have all been increased. The text places limitations on the use of temporary workers and fixed-term contracts. The social partners have emphasised the importance of this collective agreement, which marks the beginning of the development of social dialogue and of joint cooperation on all matters of importance to employees (see press release).

• Extension of short-time working: A decree dated 28 September automatically extends the temporary measures intended to maintain employment relationships during the Covid-19 crisis, through to 31 October 2021. A further extension until 28 February 2022 is possible, provided that the company submits an application to the Labour Authority. In this application, the company is required to report the number of hours and days of work suspended during July, August and September, for each employee concerned. In a number of severely impacted sectors, the company may be granted relief from having to pay social security contributions during the temporary lay-off period. Under the new measure, the percentage reduction in the contribution paid will depend on whether or not the company is providing training for its employees. For example, a small company can benefit from a 40% reduction if it is not undertaking any training whatsoever, but this figure will rise to 80% if the company offers training for its employees.
  


• Increase in minimum wage: Royal decree 817/2021, published on 29 September, raises the country’s monthly minimum wage from 1,108.33 euros to 1,125.83 euros. It entered into force retroactively on 1 September 2021. This increase had been awaited since the start of 2021, but was postponed due to the Covid-19 crisis. The new amount applies through to 31 December 2021, and a further increase might be granted in January 2022. The decree states as follows: “the aim of this increase is to continue to give effect to the right to fair and sufficient rates of pay, thus ensuring that workers and their families can enjoy a decent standard of living, as recommended by the European Committee of Social Rights, which interpreted this threshold as meaning 60% of the average wage, thereby guaranteeing that wages will offer sufficient purchasing power to keep up with the cost of living, and taking account of the general economic situation”.

Social dialogue on platforms : The government is continuing work on the preparation of a brand-new set of regulations intended to improve the working conditions of workers employed by delivery platforms and platforms providing vehicles with drivers. On 28 September, the French Parliament definitively passed a law that firstly ratifies order no. 2021‑484 of 21 April 2021 on methods of representation for self-employed workers using platforms to perform their work (see IR Notes 163), by organising an election for workers’ representatives, which is expected to be held in early 2022, according to the Minister of Employment. Secondly, Parliament has authorised the government to adopt, by decree, further measures relating to 1) negotiating “sector-specific agreements” applicable to platforms within the same sector and to their workers; 2) negotiating “platform-specific agreements” to set working conditions on a given platform; 3) setting up an industrial relations authority for employment platforms (Arpe), which will be responsible for organising elections and approving “sector-specific agreements” on behalf of the State.

• A law on occupational health: Law no. 2021-1018 “to enhance prevention in the field of occupational health”, published on 3 August, transposes the national cross-industry agreement concluded by the social partners on 10 December 2020, with a view to reforming the country’s occupational health system. Within the framework of the periodic mandatory negotiations carried out at company level, once every four years the social partners will have to discuss the notion of “quality of life and working conditions”. This law also harmonises the definition of sexual harassment contained in the Employment Code with that appearing in the Criminal Code, to make it clear that comments or behaviours with sexist connotations can also constitute sexual harassment.


• A plan to help self-employed workers: On 16 September, the French President, Emmanuel Macron, put forward a plan to support self-employed workers. This plan comprises 20 measures seeking to enhance their social protection and make it easier for them to gain access to training and redeployment. One provision will be of particular interest to platform workers: to make it easier for self-employed workers to join the voluntary insurance scheme offering cover against workplace accident and occupational illness risks, the plan provides for a reduction of approximately 30% in contribution rates. Indirectly, this measure will also benefit platforms themselves, which are required to reimburse these voluntary contributions.

> Find out more: We have posted the latest ‘Flash reports on labour law’ on line (May, June, August). These reports are produced by the Network of Labour Law Experts coordinated by Goethe University (Frankfurt) and ICF on behalf of the European Commission, for the purpose of monitoring changes in employment law in the 27 Member States.

A new council : On 5 March, the management of the US plastics group Aptar (13,000 employees) signed an agreement on the establishment of a European Works Council. The group, which manufactures packaging for drugs and cosmetics, employs just over 7,700 people in the EU and 154 in the United Kingdom (which will be covered by the agreement for the first four years). The main countries represented on the EWC are France (7 seats for 4,655 employees) and Germany (4 seats for 2,030 employees). The group’s four countries with more than 20 employees each have 1 seat. The agreement contains a number of interesting clauses: it is one of very few agreements to contain specific details of the data to be provided to the EWC. The list of standard topics giving rise to consultation (trends in the group’s business, size of the workforce, etc.) is supplemented by further detailed information. For example, results must be provided “by segment, region, Business Unit and Division for the previous year, and with a projection of targets to be achieved over the next five years or so, including the following indicators: growth in sales, EBITDA (financial results) and returns on investment”. In addition to the subjects featuring on this list, the parties have identified two themes to work on, which will be explored in greater depth during the EWC’s first term: “Health and Safety” during the first two years of its term, and “Sustainable Development and the Environment” during its last two years. Where exceptional circumstances arise, management will inform the EWC’s executive committee and undertake an exchange of views upstream from the plenary information and consultation meeting held with the EWC. At the executive committee meeting, its members can choose and appoint one or more experts. The EWC will issue its opinion within eight calendar days (i.e. one week) following the EWC’s extraordinary plenary meeting, but depending on the scale of the project referred for consultation, an extra meeting may be organised “so that the Council can have extra time to scrutinise the information provided, at the end of which the EWC will make its opinion known by the same deadline of eight calendar days”. EWC members will be credited with a specified number of hours (64 hours or 96 hours for executive committee members, 128 hours for the secretary), plus a budget of 60,000 euros to cover annual auditing costs in respect of the group’s financial statements. Lastly, this is one of the first such agreements to include a clause on how the EWC will operate in the event of a public health crisis: it allows meetings to be held, “in exceptional circumstances, via videoconferencing or in hybrid format (face-to-face/remotely), with remote interpreting”.