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IR Notes 179 – 9 February 2022
www.irshare.eu
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A question for…
Pablo Sanz de Miguel, a researcher at the Notus Centre for Applied Social
Research (Barcelona).
Spain has already seen numerous
labour market reforms in the past. So, what’s new about the
reforms adopted definitively on 4
February? In
2006, a package of labour market reforms negotiated with the social
partners was intended to increase security of employment by reducing
the use of fixed-term contracts. However, the results did not live
up to expectations. In 2012, the Popular party government decided to
adopt a much more radical package of reforms, without seeking
agreement with the social partners. These reforms completely
overhauled the collective bargaining system, by giving company
agreements precedence over branch-level collective agreements and
abolishing the validity of collective labour agreements once they
had lapsed, rather than keeping them in force until a new agreement
was signed (the principle of “ultraactividad” that
previously prevailed). The reforms also made it easier to make
workers redundant; cut the amount of compensation payable for unfair
dismissal; and introduced measures to facilitate flexible working
within companies (employees’ working hours,
etc.).
After the
crisis was over, the labour market had to cope with new problems,
and in particular an increase in precarious employment linked to the
development of so-called “multi-service companies”. These companies
don’t state that they specialise in any specific activity at the
time they apply to be added to the Trade Register, so they’re not
subject to any collective bargaining agreements. As a result, they
are at liberty to decide their own wage structure. For example, some
of them employ large numbers of chambermaids in the hospitality
sector but don’t pay the minimum wages applicable under the
collective agreement covering cleaning services in the hotel
industry. The development of these companies has created a great
deal of precarious employment.
Faced with this situation, the new
government promised to overhaul the 2012 reforms. First of all, it
reached an agreement with the social partners. We should say
immediately that it is remarkable that these new reforms are the
outcome of social dialogue, in contrast to the 2012 reforms. In
addition, three other points are worthy of note: 1) At collective
bargaining level, the new reforms restore precedence to the sectoral
agreement over any company agreements in terms of wages paid, a move
that should contribute to reduce “social dumping”. Nevertheless, the
company agreement continues to prevail in other areas, such as
organisation of working time. This is something positive, which
improves the balance between centralised and devolved collective
bargaining. The reforms also restore the principle of
ultraactividad of collective bargaining agreements, a move
welcomed by the trade unions. 2) The reforms are intended to reduce
precarious employment and to halt the abuse occurring in the form of
subcontracting to multi-service companies. These companies will now
have to set the wages they pay in line with the sectoral collective
agreement applicable to their workers’ particular activity. This
will reduce precarious employment for the most vulnerable workers.
3) The reforms tackle the duality of the labour market, by reducing
the options available to employers for offering and renewing
fixed-term contracts and by making it easier to convert a succession
of fixed-term contracts into an open-ended contract. The overall aim
is to cut the proportion of fixed-term contracts among the total
numbers employed (currently, these still account for around 25%).
The category of a contract for specific projects, which employers
could previously use as a pretext to avoid issuing open-ended
contracts, has been abolished. Overall, it will be much harder to
make use of fixed-term contracts, also because the financial
penalties applicable have been increased.
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Diary
14
February Bordeaux Informal
meeting of the Employment and Social Policy Council.
16
February On line Start
of the “droit
européen du travail“ MOOC, on the subject of European
employment law (delivered in French), organised by CNAM. This free
on-line training course will run from 16 February to 4 April 2022
(registration is now open). IR Notes is a partner in this initiative,
led by Michel Miné, who is a professor at CNAM, and holds the
“Employment Law and Personal Rights” Chair.
17 and 18
February Strasbourg Conference
organised by the French Presidency of the EU and the European Economic
and Social Committee on the theme of the social and solidarity economy.
28 February-1
March On
line Training
course organised by the European Trade Union Institute (ETUI), on US
multinationals’ European Works Councils (EWC). Contact: lcoremans@etui.org
14 March Brussels Employment
and Social Policy Council.
22 and 23
March Brussels Training
course organised by the European Trade Union Institute (ETUI) for
European Works Council secretaries, on European social dialogue.
Contact: esantaniello@etui.org
24 March On line A
conference (in French) organised by IR Share on “A
year of European social case law” [une année de
jurisprudence sociale européenne], with Jean-Philippe
Lhernould, Professor of Law at the University of Poitiers.
16 June Luxembourg Employment
and Social Policy Council
27 and 28
June Hamburg 14th
conference of the EWC Academy for European and SE Works
Councils, featuring Gabriele Bischoff, Udo Rehfeldt and Ilaria
Armaroli.
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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
Pablo
Sanz, Pascale
Turlan
and
Frédéric
Turlan. Find
out more about the IR Share
team on our website.
Subscribe to IR Notes
Via the IR
Share website or by calling us on: +33 (0)6 81 41 53 95
or E-mail: frederic.t@irshare.eu
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Publisher: IR Share SARL – 5, Les Compères – 89520 Fontenoy,
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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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Lead
story
The Spanish
labour market reform marks a turning point at European level
A footballer who scores an own goal always makes people feel uneasy, but history will
only remember the final score. The same goes for the definitive adoption, on 3
February, of the decree-law of 28 December 2021 relating to Spanish labour market
reforms (see IR Notes
177), by just one vote. This vote was cast by a Conservative MP from the
People’s Party, who was opposed to the reforms, but made a mistake during the voting
procedure while voting remotely from home, and accidentally voted in favour. As a
result, with 175 votes in favour and 174 against, the reforms just scraped through,
handing an unexpected victory to Yolanda Diaz (see photo), who is Spain’s Second
Deputy Prime Minister and also its Minister of Employment and of the Social Economy.
Just before the vote, she welcomed the leaders of the two trade union confederations
CC.OO and UGT, who had come to watch Parliament in session from the public gallery.
The blunder made by this Conservative MP thus allowed the adoption of labour market
reforms which, beyond the confines of Spain, bring an end to the long cycle of
labour market reforms adopted in the EU with a view to making employment more
flexible. These reforms are seen as significant in Spain (see interview opposite and
analysis
by Francisco Gomez Abelleira), but the same is true at European level, as they mark
a paradigm shift. Firstly, as Pablo Sanz de Miguel emphasises, they are based on a
dialogue between the social partners which, all too often, have either not been
listened to properly or have even been completely left out of the process of
preparing the labour market reforms observed within the Union. Secondly, the
objective of combatting the “duality” of the labour market – i.e. the excessive
proportion represented by temporary jobs within the total employment market – was
set by the European Commission, which made such reforms a pre-condition for
obtaining EU funding. This is a more laudable position than the one the Commission
was previously defending within the framework of the troika, i.e. advocating cuts in
public expenditure and liberalising whole swathes of employment law. In the end,
this voting error may create a virtuous circle if EU Member States finally admit
that greater flexibility of labour and a wholesale increase in precarious employment
pose a threat to social justice, and thus to the foundations on which peace rests.
As Yolanda Diaz explained in the public gallery of Spain’s Parliament, “reforming
employment and giving it the key social and political focus it deserves, is about
defending democracy” (see op-ed in El
Diaro). A minor voting error, but a major step forward for social justice…
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1. European
Union
Legislation
New rules on the posting of drivers :
The rules related to the posting of drivers, fixed by Directive
2020/1057, came into effect on 2 February. Member States will now need to provide
transparent information about the remuneration payable to posted drivers carrying
goods on their territory, and who are deemed to be posted workers. This information
will be published on the Your
Europe website. Road transport operators will also be required to submit
their drivers’ posting declarations on a dedicated website (see press release issued by the
European Labour Authority) (see European Labour Authority).
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Social
update
Health and safety at work (1) :
On 1 February, the European Parliament’s Committee on Employment
and Social Affairs adopted, by a large majority (43 votes in favour, 3 against and 8
abstentions), its report on the new EU strategic framework on health and safety at
work 2021-2027, presented by the European Commission in June 2021 (see IR Notes 167). In
this text, MEPs call in particular for better protection of the mental health of
health care professionals and other frontline workers, and for “an EU directive on
psychosocial risks and well-being at work aimed at the efficient prevention of
psychosocial risks in the workplace of, inter alia, anxiety, depression,
burnout and stress”. They call on the Commission to present legislation establishing
minimum requirements applicable to telework across the EU, and reiterate the demand
they submitted to the Commission more than a year ago, that it come forward with a
directive on the right to disconnect (see IR Notes 156). The
report will be voted on at the plenary session in March (see press
release).(see. Framework Directive on health and
safety).
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Health and safety at work (2) :
On 19 January, the European Economic and Social Committee (EESC)
adopted an opinion on “Social
dialogue as a tool to promote health and safety at work”. In response to the EU strategic
framework on health and safety at work 2021-2027, presented by the European
Commission in June 2021 (see IR Notes 167), the
EESC is calling for EU legislation to be adopted on psychosocial risks (PSR),
focusing on the working environment, and for the draft directive on musculoskeletal
disorders (MSD) to be reactivated. The opinion recommends that the legislation on
artificial intelligence (AI) should be amended, because “systems that assess
workers’ behaviour, working time and performance and detect their emotions, when
qualifying as high-risk AI, should be subject to third-party conformity
assessments”. Teleworking should also be “regulated by collective bargaining in
order to prevent the difficulties that have been identified in numerous surveys”.
The opinion emphasises that “the European Framework Agreement signed in 2002 is not
suited to meeting these new challenges” and that “new guidelines [should] be drawn
up, with a particular focus on [preventing] PSR and MSDs”.
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A just transition in the civil aviation sector :
On 3 and 4 February, the French Presidency of the EU organised
an “Aviation Summit”, at Toulouse (France), resulting in the adoption of the “Toulouse
Declaration on future sustainability and decarbonisation of aviation“, which
supports the goal of achieving carbon neutrality in the air transport sector by
2050. The signatories emphasise “the importance of also encouraging the social
sustainability of the air transport sector” and of placing with this issue on a par
with its “environmental and economic sustainability”. They also “acknowledge the
social dimension of the transition to sustainable aviation and the importance of
encouraging social sustainability and a just transition, mainly via appropriate
social dialogue at all stages, and by enhancing the qualifications and skills of its
workforce.” (see press
release). “Trade unions are satisfied that the principle of a Just
Transition and social dialogue have been included as key factors in the move towards
greener aviation”, says the trade-union federation IndustriAll Europe (see press release), while
the European Transport Workers’ Federation (ETF) too, is pleased with the
declaration (see press
release). The European airlines organisation A4E (see press
release) and the air traffic management industry body (Canso) (see press
release) have also expressed their satisfaction with the declaration.
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2. Member
States
France
A single collective bargaining agreement in the
metalworking industry : After six years of negotiations, on
7 February, the social partners in the metalworking sector signed a single national
collective bargaining agreement that will replace the 78 agreements currently in
existence (76 territorial agreements, plus a sector-wide agreement covering the
steel industry and a national agreement covering engineers and managerial staff).
This new agreement, which will enter into force on 1 January 2024, will be
supplemented by territorial agreements dealing with aspects not covered by the
single collective bargaining agreement, which will apply to 1.4 million employees
(see press
release).
- Whistleblowers: After an
agreement was reached on the joint committee staffed by members of both Chambers
of Parliament (CMP), on the bill
seeking to enhance
whistleblower protection, which transposes EU Directive 2019/1937 of 25
September 2019 into French law, Parliament is expected to definitively pass the
law on 16 February. The coalition of 36 associations and trade unions assembled
by the Maison des Lanceurs d’Alerte [‘Whistleblowers’ Organisation’]
has expressed its satisfaction at “the significant progress in terms of
whistleblower protection” contained in this text (see press
release). The new law will allow these associations and trade unions to
become “whistleblowing facilitators” and to enjoy the protection granted to
whistleblowers. It will also abolish the requirement for whistleblowers to
follow an internal procedure and refer their concerns to their employer in the
first instance, before they consider reporting the matter to an authority.
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Ireland
Right to request remote working :
On 25 January, the government submitted a bill awaited within
the framework of resuming on-site working, in the wake of the Covid-19 pandemic and
of the development of teleworking in rural areas of Ireland. This bill will entitle
employees who have completed at least six months’ service to ask their employer to
agree to remote working (Draft Scheme of the Right to Request Remote Working Bill
2022) (see press
release). It has not created a “right to teleworking”, because the employer
is not obliged to agree to the request under any circumstances. In fact, the text
sets out a long and indicative list of 13 “business grounds” that the employer can
invoke as the basis for rejecting the employee’s request for remote working, ranging
from the nature of the work not allowing for it to be done remotely due to health
and safety reasons, through to data protection grounds or concerns on the part of
the employer regarding the commute between the proposed remote working location and
the employer’s on-site location. The bill establishes a formal framework and rules
to be followed, both by the employer and the employee submitting the request, which
are to be set out in a “Remote Working Policy” guide produced by the employer. This
guide, to which the employer must draw their employees’ attention, must clearly set
out the formal rules to be followed when submitting, accepting or rejecting a
request, as well as the time period allowed for making a decision, plus the specific
terms that will apply to remote working. If the request is rejected, the employee
must wait twelve months before submitting a further request. If the employer fails
to compile a remote work policy guide, they will be liable for a fine of 2,500
euros. The bill, which is due to be scrutinised by Parliament, has been criticised
by the Irish Congress of Trade Unions (ICTU), whose general secretary, Patricia
King, argues that “the 13 sweeping and subjective criteria” that the employer can
use as the basis for rejecting such a request, “do not strike a balance between
employer and employee needs” (see press
release).
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Portugal
- Support for employers : The
government has set up a platform that businesses can use to register for
financial support to help them cope with the increase in the minimum wage, which
rose from 665 euros to 705 euros on 1 January. This support can be as much as
112 euros per employee. To qualify for it, companies must register by 1 March.
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3. Third
countries
United
Kingdom
Paid leave for workers incorrectly classified as
independent contractors : On 1 February, the England and
Wales Court of Appeal handed down a judgment of
significance for workers who have been incorrectly classified as independent
contractors, regarding the matter of paid annual leave. This case concerns the
application of the right to paid annual leave, as guaranteed by Article 7 of EU
Directive 2003/88 of 4 November 2003, and by Article 31 of the Charter of
Fundamental Rights of the European Union. The respondent Pimlico Plumbers argued
that Gary Smith, who had worked for the company as a plumber from 2005 to 2011 was
not an employee, but a self-employed independent contractor and although he was
entitled take leave, this was unpaid leave. After his contract was terminated by the
company, Gary Smith took his case to the Supreme Court and won recognition as a
“worker”*, thereby entitling him to four weeks’ paid leave under the UK legislation
transposing the European directive (see IR Notes 100).
Pimlico Plumbers argued that because Gary Smith had taken his leave entitlement, he
had benefited from the rest periods provided for by law. However, as he had not
requested payment for this leave within the two-year time limit provided for by law,
it was too late to him to seek redress. This line of reasoning was followed by the
lower court, but rejected by the Court of Appeal. Relying on the King judgment (CJEU,
29 November 2017, Case C-214/16), it points out that the right to paid leave
is one and the same right: a right to leave, and to paid leave. The Supreme Court
holds that if the worker takes unpaid leave because the employer disputes this right
and refuses to pay him or her, then the worker is not exercising his or her right to
take paid leave. Although domestic legislation may stipulate that leave entitlement
lapses at the end of each year if the worker has not taken it, the Court takes the
view that if they are to lose this leave, the person concerned must have had the
option of exercising the right conferred on them. Consequently, a worker can only
lose his or her leave entitlement if the employer can prove that it specifically and
transparently gave the worker the option to take it, and informed the worker that
his or her entitlement would be lost at the end of the year if he or she did not
take it. If the employer fails to discharge this obligation, the entitlement to paid
leave is not extinguished, but continues accumulating until the employment
relationship comes to an end, at which point the worker is legitimately entitled to
payment for all leave taken but not paid, with no time limitation. According to some
experts (see below), this decision is expected to particularly affect digital
platforms employing workers who are incorrectly classified as independent
contractors, and whose employment status might now be reclassified as employees or
“workers”.
* “worker”: a hybrid status under British law, granting a
number of social rights
> Find out
more: analysis
of this judgment by law firm Lewis Silkin.
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- Menopause in the workplace :
Following the adoption of the first government-led Women’s
Health Strategy for England, which seeks to tackle the gender health gap, the
inaugural meeting of the UK Menopause Taskforce was held on 3 February (see press
release). This taskforce will tackle issues surrounding the menopause,
including increasing access to treatment (one of which should be available over
the counter at a pharmacy, without requiring a prescription), and ending the
taboos and stigmas that still surround conversations about the menopause. This
taskforce will meet once every two months for 18 months, and one of the
scheduled meetings will cover “menopause in the workplace”.
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4.
Companies
European
companies
European companies : A
new SE-Works council: On 23 November 2021, the management of the J.P.Morgan bank signed an agreement
on the involvement of employees in J.P. Morgan SE, at the time of its
conversion into a European company (SE). This text applies to the 2,752 employees of
the US bank who work in the EU. The main countries represented on the SE’s works
council are: Ireland (685 employees) and Germany (557), each with 4 representatives,
followed by Luxembourg (508) and France (481), each with 3 representatives. In
total, there are 26 seats on the works council, which covers 14 countries. The
United Kingdom is not represented. The agreement makes it clear at the very
beginning that no decisions that come within the scope of the works council’s
competence shall be be implemented at a European, national, local or site level
until the SE works council has been informed and consulted. The transnationality
clause assigns competence to the SE works council where the employees of a single
country are concerned, if they have no employee representation of their own.
Information and consultation concerning exceptional circumstances are limited to
projects that have “a substantial impact”, insofar as they affect at least 4% of the
group’s workforce. Members are entitled to five days of training per calendar year,
for which they have a budget of 1,000 euros per member at their disposal to cover
the costs of courses and travel. Each member will receive a corporate credit card,
to prevent them having to finance advance payments. The company, which has been
created under German law, has a supervisory board, one third of whose members are
employee representatives.
> See also:
agreement
on employee participation in TIER
Mobility SE, recently published on line.
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Transnational agreements
Violence and harassment at work :
On 27 January, the management of the Italian energy company
ENI (33,000 employees) signed
an addendum to its global framework agreement with the international Uni Global
Union federation and the Italian trade-union federations (Filctem CGIL, Femca CISL
and Uiltec UIL), for the purpose of incorporating the provisions of ILO Convention
190 and Recommendation 206 towards the elimination of violence and harassment in the
world of work, into this agreement. It states that “ENI must provide a world of work
free from violence and harassment”, and the group opts for “zero tolerance”. The
agreement applies to all workers, regardless of their status and, as provided for by
ILO Convention 190, includes violence and harassment occurring beyond the physical
workplace, including using digital tools. The parties agree on the mechanisms to be
put in place for providing information and training, and for reporting (see
IndustriALL Global Union press
release
).
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Fundamental rights in the supply chain :
On 21 January, in conjunction with the international trade-union
federation IUF, the management of the British retail giant Tesco (360,000 employees),
signed an innovative agreement guaranteeing fundamental rights for workers employed
in the group’s supply chain. This memorandum
of understanding, which does not apply to employees working in the retail
sales sector, places the emphasis on how women in global foods supply chains can
benefit from “effective grievance mechanisms” (in the event of breaches of
fundamental rights, violence or sexual harassment), “freedom of association and
trade union representation”. The IUF notes that “as agriculture is one of the three
most dangerous industries, the agreement includes commitments to joint activities to
promote safe workplaces”. With this goal in mind, Tesco and the IUF will meet three
times a year (see press releases issued by IUF
and Tesco).
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Trade
unionism
- Health and safety at work :
On 1 February, the international trade-union federations BWI
and IndustriAll Gobal Union, and the European trade-union federation EFBWW sent
a letter
to the management of HeidelbergCement, calling
for occupational health and safety issues to be addressed more effectively by
initiating a social dialogue on this subject with the three federations, and
ensuring that health and safety committees are in place on all of the company’s
sites (see press
release).
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5. Studies
and reports
Teleworking : The World Health
Organisation (WHO) and the International Labour Organization (ILO) have published a
new
healthy and safe telework technical brief, calling for measures to be put in
place to protect the health of employees who work remotely. The brief emphasises
that telework offers various benefits, all of which can improve physical and mental
health and social well-being.
> Other
news: The ILO has published its annual report World
employment and social outlook: Trends 2022 , analysing the
state of labour markets after two years of the pandemic.
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Industrial disputes : On 8
February, the European Foundation for the Improvement of Living and Working
Conditions published a report on collective labour disputes in the EU (see executive
summary and full
report). The report emphasises the variety of legislation in place governing
the right to strike, given the absence of harmonisation at EU level, and notes a
downward trend in industrial disputes, at least those taking the form of strikes.
The report places these labour disputes in 5 categories (“clusters”) and then
evaluates their respective significance within Member States. The authors
nevertheless lament how hard it is to produce international comparisons, due to the
absence of reliable statistics in this area. They call for the adoption of an
international standard.
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