IR Notes

On 19 October, the European Commission adopted its work programme 2022, entitled “Making Europe stronger together”, which contains 42 new initiatives covering the six main ambitions set out in President von der Leyen’s policy orientations. A table sets out a summary of the proposals, revisions or withdrawals of texts that are now deemed obsolete. The work programme announces a public consultation launched on the same day, to debate the budget rules (which were suspended during the Covid-19 crisis) and the EU’s framework of economic governance. This is a crucial issue: it comes down to establishing whether the Twenty-Seven plan to return to budgetary orthodoxy, with binding convergence criteria, such as the deficit threshold of 3% of GDP, or whether they agree to maintain a high level of public expenditure, even if that means departing from the hitherto imposed budgetary standards.  In the area of social affairs, for all that the Commission emphasises the extremely effective contribution made by “the European instrument for temporary support to mitigate unemployment risks in an emergency” (SURE), it plans to analyse the results of this scheme without taking further steps towards making it a permanent tool. The main item on its programme in the employment field is monitoring implementation of the action plan on the European Pillar of Social Rights, though no further details are provided. It does however announce a number of specific texts: 1/ a legislative initiative seeking to enhance the protection of workers from the risks associated with exposure to asbestos at work (in the 3rd quarter), which will take account of the outcomes of consultations with social partners. In passing, the Commission holds out the hand of friendship to the European Parliament, by quoting its recent report (see below) and concluding that it shares MEPs’ opinion that “the issue of asbestos is of grave concern”. 2/ Another legislative initiative is announced with the aim of boosting the role and independence of organisations promoting equality (in the 3rd quarter), which will have an impact on how cases infringing the principle of non‑discrimination will be dealt with, including in the field of employment. 3/ Also worthy of note is a revision of the directive relating to certification of train drivers operating locomotives and trains on the railway system, which should facilitate driver mobility. Furthermore, while acknowledging that “the pandemic highlighted the importance of strong social safety nets”, the Commission, which is already struggling to promote its proposal for a directive on minimum wages, merely announces a recommendation on “minimum income”. This will therefore be a non-binding text designed to “support the policies of Member States” (in the 3rd quarter) in establishing safety nets. In its programme (though not in the table), the Commission will present a communication seeking to boost social dialogue at national and EU level, “to support the key role of social partners in fostering a fair economic, social and cohesive recovery and the green, digital and labour market transitions”. Lastly, despite the United Kingdom’s departure, the Commission is maintaining its “one in, one out” approach no matter what, “to ensure that when introducing new burdens, we systematically and proactively seek to reduce burdens imposed by existing legislation”. ETUC General Secretary Luca Visentini describes this approach as a “populist gimmick” (see press release) which, in terms of employment law, and workplace health and safety in particular, may prove lethal.

Main outcomes of the Employment and Social Affairs Council : the Employment Ministers of the Twenty-Seven did not adopt any major texts at the Council meeting held on 15 October. The main step they took was to relaunch the European Semester process – the annual process whereby Member States coordinate their economic, social and fiscal policy within the EU (see European Semester). Ministers want to see a return to a semester process that includes a strong social dimension. They discussed how the European Pillar of Social Rights Action Plan, and in particular the EU’s three main objectives in terms of jobs, skills and reducing poverty, can be reflected as effectively as possible in the future European Semester. They adopted the key messages of the Employment Committee and those of the Social Protection Committee, as well as a decision to maintain, in 2021, the guidelines laid down in 2020. The Commission will use these documents to prepare the recommendations it makes to Member States. Ministers also debated the European framework on health and safety at work, expressing the view that new technologies and remote working may be relevant for enabling older workers to hold on to their jobs. During the press conference, the Slovenian Presidency emphasised ministers’ concerns regarding mental health and psychosocial risks faced by workers. The Twenty-Seven also adopted Conclusions on Gender Mainstreaming in the EU Budget (see Council press release).

Asbestos : On 19 October, at a plenary session, the European Parliament voted to accept the report (see summary) presented by Danish MEP Nikolaj Villumsen (The Left), who is calling on the European Commission to put forward several directives in order to provide better protection for workers against exposure to asbestos, in the context of the thermal renovation policy set out by the Commission in a communication dated 14 October 2020. MEPs are calling for a European framework directive for national asbestos removal strategies, including the assessment of existing asbestos in the built environment, and the creation of public digital asbestos registries mapping all existing asbestos in a country or region. These registries should be accessible for workers and companies, owners, inhabitants, and users of buildings and regularly updated.  Member States are called on to facilitate recognition procedures by reversing the burden of proof, especially if national registers for asbestos workers were set up only recently, and to establish adequate compensation for workers suffering from asbestos-related diseases. The Commission should also put forward a proposal for a directive setting minimum standards for recognising and paying compensation for occupational illnesses, including asbestos-related diseases. Member States are called on to facilitate the recognition of and compensation for documented victims of second-hand exposure through non-occupational contact with asbestos. The report is also calling for a drastic reduction in the occupational exposure limit (OEL) applicable to asbestos. The current minimum standard applicable within the Union is 100,000 fibres per m3 (0.1 fibre/cm3). While most States are applying this minimum standard, others are using much lower OEL, e.g. the Netherlands, where the limit is set at 2,000 fibres/m3 (0.002). In light of the work undertaken by researchers, Parliament is asking for the OEL to be cut to 0.001 fibre/cm3 (1,000 fibres/m3). When questioned on the fringes of the Employment and Social Affairs Council meeting on 15 October, Nicolas Schmit, European Commissioner for Jobs and Social Rights, explained that discussions were in progress regarding this requested reduction in the OEL and he would be seeking the opinion of the Advisory Committee on Safety and Health at Work on Parliament’s report. “New limits will doubtless be introduced, it’s an ongoing process”, he said. It will be recalled that earlier, the Commission waded into the parliamentary debate, asking MEPs not to reduce the limit, so that the social partners could be left to seek out the best solution for themselves.

• Health and safety at work: The European Parliament’s Committee on Employment and Social Affairs is studying the report on a new EU strategic framework on health and safety at work presented by the European Commission, on 28 June 2021 (see IR Notes 167). The rapporteuse, Danish MEP Marianne Vind (S&D), plans to beef up the strategy by calling on the Commission to adopt legislation covering teleworking, the right to disconnect and the prevention of musculoskeletal disorders and psychosocial risks. The report, which can be amended by MEPs up to 9 November, emphasises that it is time to “take seriously problems of stress, anxiety, depression, harassment and burnout, as well as the negative impact on workers’ work-life balance when working in their free time”. The report, which includes many of the demands put forward by the European Trade Union Confederation (see ETUC position), is expected to be adopted at a committee vote on 26 January 2022.


• Restructuring: The European Commission is proposing to pay out 1.2 million euros from the European Globalisation Adjustment Fund (EGF), to support 300 former workers in the metal sector in the Basque region in Spain. This is the first application for aid under the new EGF regulation covering the period 2021-2027 (see press release).

Airline strikes : The Court of Justice has added to its case law on payment of compensation to airline passengers whose flights are cancelled because the company’s staff go on strike. Other than in cases where the demands of the staff in question can only be met by the authorities, such strikes are inherent in the normal exercise of an air carrier’s activity, even if they are illegal. They cannot exempt it from the obligation to pay compensation to passengers. In so doing, the Court is acknowledging that industrial action is “one of the ways in which collective bargaining may manifest itself and, therefore, [it] must be regarded as an event inherent in the normal exercise of the activity of the employer concerned” (CJEU, 6 October 2021, C‑613/20, Eurowings).

• Electricity : On 22 September, the European social partners in the electricity sector organised the final conference of their Skills2Power project. Its main goal was to develop concrete joint strategies for anticipating and monitoring the needs for skilling, upskilling and reskilling of workers in the electricity sector in France, Italy, Spain, Hungary and Sweden (see executive summary of the final report and EPSU press release).

• Vocational training agreement : During the night of 14 to 15 October, the social partners concluded a cross-industry framework agreement for the purpose of adapting the vocational training reforms adopted in 2018. This text opens the way to a series of seven themed negotiations, which the social partners plan to complete by the end of June 2022. One of them will relate to the “vocational transition” scheme for financing the redeployment of employees from one sector to another. As Les Échos points out, “the importance of the agreement does not really lie in its content, which gives rise to a handful of changes to social legislation in the short term, but rather in its political scope”, which allows the social partners to demonstrate that they are capable of negotiating based on their own agenda, without government intervention, and of influencing the government that will come to power at the next presidential election, due to be held in April 2022.

Using the health pass at work : In his State of the Nation speech on 12 October, Prime Minister Xavier Bettel confirmed that employers would be allowed to insist that their employees showed the health pass (CovidCheck certificate) they already have to use in order to gain access to public places such as restaurants. This additional constraint should encourage people to get vaccinated, and thereby “firstly protect the health of employees, and secondly allow a return to greater normality”. However, this proposal was rejected by a trade-union front made up of three national confederations (see joint letter sent to the Prime Minister and article in the Luxemburger Wort daily newspaper), while the press reports that the amount of progress made on using the CovidCheck varies from one company to another (see article in the Luxemburger Wort). This new measure is due to enter into force on 1 November.

• Right to part-time working: Prime Minister Xavier Bettel has indicated that the government is drawing up “a ‘work-life balance’ plan”, which includes introducing the right to part-time working. The transition to part-time working should not reduce “the future pension entitlements of mothers and fathers”, as “the State will pay a proportion of their contributions”. He specified that people who exercised this right would be entitled, for a certain period of time, to return to full-time working in their job. The plan will also include a measure to reward parents who have both taken parental leave, in order to “promote an equitable distribution of family roles”.


• Teleworking: Prime Minister Xavier Bettel emphasised that “the pandemic has once again clearly highlighted the benefits of teleworking”, as “many employees have experienced” its “positive side effects”. Rejecting a return to the current model whereby “hundreds of thousands of people commute daily from all directions to work in the same conurbation”, the Prime Minister announced that the government would “speed up the process of decentralising employment”, in order to “bring housing and jobs closer together”.

• Downsizing : Negotiations are currently under way at the Anglo-Indian steelmaker ArcelorMittal, with a view to revising its EWC agreement. Management wants to adapt the body to match the group’s new configuration. In point of fact, since it came into being in 2006, the group has shed more than one third of its workforce worldwide. In the EU, the number of employees fell from 111,000 in 2006 to 83,000 at the end of 2015, and subsequently to 56,700 in June 2021. On 23 September, at a negotiation meeting, management put forward proposals to 1/ cut the number of EWC members from 42 to 14, by applying the calculation rules set out in the subsidiary requirements of the directive; 2/ cut the number of select committee members from 25 (a high figure that allows each trade union represented within the group to have a representative on the select committee) to 4 members, which corresponds to the size of the current secretariat; 3/ change the current arrangement of one plenary meeting plus three annual select committee meetings to four European Works Council meetings per year, one of which all deputy members would be invited to attend. Management is demanding a “change in the EWC’s structure”: in its view, this will create a “more efficient” council, with “clearer governance” and a “more concentrated” number of posts. For their part, the negotiators instructed by the EWC, who include an IndustriAll Europe representative, emphasise that they have no mandate to change either the council’s structure or the existing number of EWC or select committee members.

An agreement for overseeing negotiations : On 5 May 2021, the management of the French energy group EDF and its EWC members signed a “method agreement relating to the negotiations surrounding revision of the EDF European Works Council Agreement“, signed on 14 November 2001, for the purpose of overseeing its renegotiation process in the context of the “ongoing Covid-19 public health crisis”. The EWC agreement had already been revised in February and May 2005, and again in June 2015. The aim of these negotiations, which commenced in late September, is to “modernise” the agreement, in order to bring it “into closer alignment with the strategic issues facing the group”. The text of the agreement defines the details of how negotiations are to be conducted, such as the composition of delegations, organising preparatory and debriefing meetings, resources to be made available, use of videoconferencing, and how the agreement can be signed electronically. The nine secretariat members in charge of the negotiations will report back to the other full members at “back-office” meetings, to be held before and after each negotiation meeting with management. The negotiation body includes a representative of each of the European trade-union federations, i.e. IndustriAll Europe and EPSU. The agreement lasts for a fixed term, ending on 31 December 2021.

Platforms and safety at work : The European Agency for Safety and Health at Work (OSHA-EU) has published a Policy Brief taking stock of the occupational health and safety risks faced by platform workers. The document notes that: 1/ platform workers are more exposed to these risks than other workers performing similar tasks; 2/ prevention and management of risks is more complicated, due to the nature of platform work and the conditions under which it is performed; 3/ there are critical knowledge  gaps and a lack of awareness of OSH-related issues in this sector.

• Social dialogue during Covid-19: The ILO has published a study analysing 381 tripartite and bipartite social dialogue initiatives between governments and employers’ and workers’ organisations at national or sectoral level, which have been instrumental in shaping countries’ responses to the crisis (Social dialogue in times of COVID-19 pandemic: What works).