IR Notes

The Court of Justice has delivered a ruling concerning a maintenance technician recruited by the Belgian railways company to work on railway tracks. During his traineeship period prior to qualification at the company, he was diagnosed with a heart condition. He was subsequently fitted with a pacemaker, a device that is incompatible with the electromagnetic fields present on railway tracks. As a result, this worker was recognised as having a disability. He was quickly reassigned to a warehouseman’s position, then dismissed before the traineeship came to an end. As a trainee, does he enjoy the protection granted to workers by Directive 2000/78 of 27 November 2000, establishing a general framework for equal treatment in employment and occupation? Yes, the Court of Justice replies. This law applies to “a worker undertaking a traineeship following recruitment by his or her employer”, provided that the traineeship period is served “under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer”. Furthermore, Article 5 of the Directive stipulates that “reasonable accommodation” shall be provided, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities. The Court states that where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of “reasonable accommodation”. Admittedly, this provision does not oblige an employer to take measures which would impose a “disproportionate burden” on it, taking account in particular “of the financial costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance”. Although the Court leaves the national courts to assess whether or not a disproportionate burden exists, it adds that the worker “was reassigned to a warehouseman’s position within the same company”, which would tend to indicate that reassignment to another position was possible. However, the Court does specify one criterion applicable to this reclassification obligation: “the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding” (see press release and CJEU, 10 February 2022, Case C-485/20, HR Rail SA).

The Commission has today adopted a proposal for a Directive on corporate sustainability due diligence. The aim of this Directive is to foster sustainable and responsible corporate behaviour and to anchor human rights and environmental considerations in companies’ operations and corporate governance. The Commission has published a proposal for a Directive and a communication (see press release and a Questions and Answers document published by the Commission, plus the reactions of the European Trade Union Confederation and BusinessEurope).

• Carcinogens, mutagens and reprotoxic substances : On 17 February, MEPs adopted, by 686 votes for, 4 against and 4 abstentions, the fourth revision of the directive limiting workers’ exposure to carcinogens, mutagens or reprotoxic substances (see IR Notes 177). The directive now has to be approved by the Council before it is published (see press release issued by Parliament).

Representation of women on company boards : In January 2012, just 14% of the directors of publicly listed EU companies and just 3% of the Chairs of these companies were women. To tackle this gender imbalance, in November 2012, the European Commission put forward a proposal for a directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures. One of its objectives was to ensure that publicly listed companies at which board members of the under‑represented sex hold less than 40% of non-executive directorships, reached this percentage by 1 January 2020 at the latest… After ten years of obstruction on the Council, the German government has just announced its support for this law and its intention to vote for it at the forthcoming Employment and Social Affairs Council meeting on 14 March. This change of position means that a qualified majority is certain to be achieved, guaranteeing that the directive will be adopted. Germany’s Federal Minister of Foreign Affairs, Annalena Baerbock, offers the following explanation in a statement: “It is unacceptable that in the heart of Europe, we are still having to search really hard to find any women on company boards”. The recent meeting of German business leaders at the Munich Security Conference clearly illustrates her point… (see photo).

Court of Justice examines the issue of joint management again : On 8 February, an important case was heard before the EU Court of Justice, concerning compliance with German law on joint management, where a company is converted into a European company (SE). This case concerns the validity of the provision covering the composition of the supervisory board, within the agreement on employee involvement in SAP SE. Where this board comprises 12 representatives, the agreement concluded at the time SAP was converted into a SE, stipulates that six of them must be employee representatives. However, the agreement does not provide for a specific election to appoint two trade union representatives among the six representatives, as required by German law. Consequently, although the agreement on employee involvement maintains the required parity of representation, it removes the specific mechanism whereby the trade unions can have two representatives who are not company employees, sitting on the supervisory board. The employer believes that the agreement was able to stipulate such a provision, given the principle of autonomy of the parties, whereas the two trade unions who took this case to court – IG Metall and Ver.di – take the view, in light of the “before and after” principle stipulated by the directive on the involvement of employees in the SE, that any conversion into a SE should keep this mechanism in place, as it is one of the strengths of the German industrial relations model. The two trade unions claimed that the European Commission and the representatives of the German and Luxembourg governments supported their positions at the hearing. The Advocate General’s opinion is expected to be made public on 28 April. Thereafter, the Court usually rules on the case within six to nine months (see joint press release issued by IG Metall and Verdi, and the request for a preliminary ruling submitted to the CJEU).

• BDA’s position on European social dialogue : In a statement published in January, the German employers’ organisation BDA, one of the heavyweights at the European employers’ organisation BusinessEurope, made clear its position on the revision of European social dialogue, on which the European Commission is due to publish a communication in the second half of 2022. The BDA, which is calling on the Commission to respect the social partners’ autonomy, expresses its regret in the following terms: “Unfortunately, the European Commission is launching a growing number of social policy initiatives that are being implemented by the Council and the Parliament, within the framework of the ordinary legislative process”. The BDA adopts most of the proposals contained in Andrea Nahles’ report (see IR Notes 157), such as designating a specific person to be responsible for social dialogue at each of the Commission’s directorates-general, so that the social partners can be more closely involved in formulating all EU policies, not just social policies. The BDA believes that any agreements signed by the social partners should be respected: for example, according to the BDA, the European framework agreement on digitalisation, which was concluded for a three-year term, prevents the Commission and the Parliament from passing a directive on the right to disconnect, during that time.

A new offence of obstructing the creation of a works council? : On 9 February, in Berlin, the executive committee of the German trade union confederation DGB set out its work priorities for 2022 (see press release). Just a few weeks before fixed-term elections are held to appoint 180,000 works councils representatives who hold offices at 28,000 companies, DGB Chairman Reiner Hoffmann welcomed the government’s proposal to create an offence of obstructing the creation of a works council. Reiner Hoffmann emphasised that “it is simply unacceptable that the creation of one in six works councils is being prevented, in unlawful ways”. He also called for joint management to be strengthened, with a view to tackling the social and environmental transition, a topic that will feature prominently at the DGB Congress, which is being held in Berlin, from 8 to 12 May.

• Better pay and additional leave in the care-for-the-elderly sector: On 5 February, the care commission (Pflegekommission) established by the law setting minimum wage levels in the care-for-the-elderly sector, unanimously decided to raise the minimum wages paid in this branch. The commission recommends a three-stage increase in the minimum wage, starting on 1 September 2022, so that by 1 December 2023, the following rates will apply: 14.15 euros per hour for nursing assistants; 15.25 euros per hour for qualified nursing assistants; and 18.25 euros per hour for specialised nurses. The commission also recommends granting additional paid leave, on top of the statutory leave entitlement. This additional leave is expected to amount to seven days for employees who work five days a week in 2022, and nine days for 2023 and 2024 (see press release issued by the Ministry of Employment).

• Minimum wage rises to 1,000 euros : The national minimum wage will rise to 1,000 euros per month, payable in 14 instalments after an agreement concluded between the Minister of Employment, Yolanda Díaz, and the two leading trade unions: CCOO and UGT. However, the employers’ organisations reject this increase, which they regard as premature.  The increase was approved at the Council of Ministers on 22 February, and will be applied retroactively, with effect from 1 January. The national minimum wage currently stands at 965 euros and will therefore be raised by 35 euros.

Length-of-service allowance returns : Up to 2012, employees receiving the minimum wage – which at that time was set by a national collective bargaining agreement – enjoyed a 3% pay rise, provided for by law, for each continuous three-year period of employment they completed, regardless of their employer. This pay rise applied for a maximum of three periods (i.e. nine years in total, representing an increase of approx. 10% on the minimum wage). Under the terms of the Memoranda concluded with the EU and the IMF during the debt crisis, this “allowance for persons employed on the minimum wage” was abolished until such time as the unemployment rate fell below 10%. As a result, in 2012, all employees who were receiving the minimum wage, and had qualified for this entitlement, lost their allowance. Now, by virtue of a Council of State decision, this bonus has been reinstated for employees who completed one or more of these three-year periods by 2012. However, employees receiving the minimum wage after 2012 do not qualify for it because unemployment has not fallen below the 10% threshold stipulated by law. The return of this length-of-service bonus only applies to employees who are receiving the statutory minimum wage. This increase does not apply to other employees who are covered by sectoral agreements that include wage-related provisions, or who have negotiated their contract of employment with their employer.

New employment rights : On 1 February, at the presentation of a  Tips and Gratuities Bill, Leo Varadkar, the Minister for Enterprise, Trade and Employment, announced that he wanted to create jobs with better terms and conditions, that are “more sustainable, secure and valued”. To this end, he plans to establish five new workers’ rights in 2022, namely: a new public holiday (St Brigid’s day, to be observed on the first Monday of February each year), which brings Ireland more into line with the European average; statutory sick pay (see IR Notes 175); the right to request remote working (see IR Notes 179); new rights around redundancy for people laid off during the pandemic; and a guarantee that tips will be passed on to staff, by virtue of the tips and gratuities bill. This law is based on four principles: 1) it will prohibit employers from using tips and gratuities to ‘make up’ contractual rates of pay. Tips and gratuities must be added to staff wages in all circumstances. 2) It establishes a legal entitlement for workers to receive tips and gratuities paid in electronic form. 3) An employer may not retain any share of tips received electronically, other than in exceptional circumstances (e.g. to pay tax, or bank charges arising from providing electronic modes of tipping). 4) Businesses will be required to clearly display their policy on how tips are distributed.

• First-ever strike in the private sector : 600 of the 1300 employees at fertiliser producer AB Achema are on strike, following the employer’s refusal to negotiate a collective bargaining agreement. What is unusual about this news, which would probably be seen as unremarkable in most EU Member States, is that it is the first strike in the Lithuanian private sector for more than 30 years. All of the strikes that have taken place in Lithuania have involved only the public sector (see IndustriAll Europe press release and article in Delfi.en).

A guide offering support for divorcees : On 8 February, the National Confederation of Christian Trade Unions (CNV) published a study of divorced employees, highlighting their heightened risk of absenteeism and burnout (16% of employees say they suffered burnout during the year following their divorce). Based on these results, the CNV is calling for the introduction of protocols within companies, to provide support for employees who are in the process of getting divorced or are already divorced. The CNV advocates that employers should put in place a separation policy, indicating ways in which divorced employees can be supported as effectively as possible, in practical, financial and psychological terms. With this goal in mind, the CNV has published an e-book and is preparing a practical guide for divorced employees (see press release).

A new European Works Council : On 19 January, the management of Intersnack signed an agreement, with a special negotiating body, covering the setting-up of a EWC at this German snack food company, which employs 13,000 people. The European trade-union federation EFFAT accompanied the SNB during the negotiations. The EWC includes representatives from 20 countries (see EFFAT press release).

> See also: Interview with Daniela Cavalho, president of the European and World Group Works Councils of Volkswagen, published on the IndustriAll Global Union website.

• Restructuring : The international trade-union federation IUF, accompanied by representatives of the Finnish trade union SEL and of the Unilever EWC, has paid a visit to employees of the Sipoo ice cream production factory (64 employees) in Finland, which is threatened with closure by Unilever’s management (see press release) to argue the case for keeping the site open.

Social dialogue at Uber : On 17 February, the International Transport Workers’ Federation (ITF) and Uber signed a memorandum of understanding to begin social dialogue on the working conditions of drivers and couriers globally. This text covers a variety of topics, such as trade union representation, freedom of association and bargaining, health and safety, social protections and dispute resolution. ITF thinks that this agreement “can accelerate improvements in rights and conditions for drivers and couriers through a dual policy of social dialogue and structural reform” but the federation plans to continue to “robustly challenge employment status misclassification and disguised employment practices”. (see ITF press release)

Artificial intelligence : The European Economic and Social Committee (EESC) has published a guide, in partnership with CFDT Cadres, for better mastering AI in the work environment. It is aimed at anyone wishing to address the risks associated with using artificial intelligence in the workplace. If we are faced with facial recognition during recruitment, the use of our personal data without our knowledge, if we are monitored by software during teleworking, if we depend on the arbitrary decision of an algorithm to obtain a promotion… this guide, produced by Franca Salis-Madinier (CFDT), who is an EESC member, will help employees and their representatives to ask the right questions, and to act. This publication also features interviews with researchers, sociologists, staff and worker representatives, and bodies confronted with the introduction of artificial intelligence in organisations. It has also been published in French, under the title of “Le guide de l’intelligence artificielle au travail”.

Links between board-level employee representatives and EWCs : The European Trade Union Institute (ETUI) has published a Policy Brief advocating stronger links between European Works Councils and employee representatives serving on boards of directors or supervisory boards, when the two forms of employee representation co-exist within the same group. This document, which is based on a vast survey conducted in 2018, emphasises that EWCs “are underusing this potential asset”, which is about “having friends in high places – namely, well-informed allies within the heart of corporate decision-making”. This publication should prompt thinking within every EWC concerned, with a view to establishing such links: frequently they are absent, in some cases due to excessively strict interpretation of confidentiality rules.