IR Notes

The consultation exercise launched in March 2021, seeking the views of civil society and citizens on the future of the European Union, has resulted in a final report that does not disappoint, in terms of the social ambitions set out in it. First of all, the conference wishes to extend qualified majority voting at EU Council level. This would mean abandoning the unanimity rule that still exists (Art. 153 of the TFEU) in the following areas of social affairs: social security and social protection of workers; protection of workers where their employment contract is terminated; and representation and collective defence of the interests of workers and employers, including co-determination and conditions of employment for third-country nationals legally residing in Union territory. Another remarkable change is that of granting the European Parliament, which is usually the most progressive of the European institutions, the right to submit a proposal for a directive. These radical transformations will require revision of the Treaties. Most actors are hoping and praying for this development, which would involve convening a Convention composed of representatives of the European institutions and of national governments and parliaments. In addition to these institutional changes, the Conference on the Future of Europe includes a growing number of calls for social Europe to be strengthened. For example, proposal 14 calls for “Reinforcing the competences of the EU in social policies and proposing legislation to promote social policies and ensure equality of rights, including health, harmonised for the entire EU (…)”. It also calls for the creation of “a common framework for minimum incomes to ensure that nobody is left behind.” Proposal 13 on inclusive labour markets calls for measures to “ensure that social rights are fully protected and safeguarded in case of conflict with economic freedoms including via the introduction of a social progress protocol in the Treaties”. The conference report supports existing initiatives such as the introduction of “statutory minimum wages guarantee[ing] that each worker can earn a decent and similar quality of living across all Member States” and “effective and proportionate EU legislation to ensure that decent work standards are fully applied along the global value chains”. The conference also innovates by calling for a revision of the Working Time Directive to “ensure a healthy work-life balance”. In terms of discrimination, it encourages the recruitment of “people that are usually most subject to discrimination (e.g. youth, elders, women, minorities), including through subsidies, and, as a second step, temporary quotas”. The report also wants the Union to ensure human oversight of decision-making processes involving artificial intelligence in the workplace and transparency of the algorithms used. It calls for “negative impacts of illimited digital surveillance in the workplace” to be taken into account and for steps to be taken to ensure that “new forms of work, such as platform work, respect worker rights and provide appropriate working conditions”. In addition to the many calls for social partners to be integrated more effectively into EU governance, and for collective bargaining to be strengthened, the report points out that “democracy is embodied in the institutions and in society at large, including in the workplace through the role of social partners”, for example “informing and consulting workers prior to the introduction of digital technologies that impact working conditions”. The European institutions will reveal in the autumn how they plan to meet these expectations (see European Parliament press release and European Parliament infographic on the Conference on the Future of Europe).

• Support for employees dismissed by Air France : On 10 May, the European Commission announced a proposal to provide financial support from the European Globalisation Adjustment Fund (EGF) to 1,580 former Air France employees who lost their jobs as a consequence of the Covid-19 pandemic. The EGF is being asked to contribute funding worth 17.7 million euros. In 2020, KLM employees received support worth 5 million euros (see press release).

Equal treatment for temporary agency workers : On 12 May, the EU Court of Justice delivered a ruling on a Portuguese case concerning two temporary agency workers made available to a user undertaking (Luso Temp) for a period of just over two years (see CJEU, 12 May 2022, Case C-426/20, Luso Temp not available in English). Under the specific legislation applicable to temporary employment, when their contract came to an end, both employees received compensation corresponding to 44 days of paid leave, whereas if they had been recruited directly by the user undertaking to do exactly the same job there for the same period of time, they would have been entitled to 67 days and 65 days respectively. Article 5 of Directive 2008/104 of 19 November 2008 on temporary agency work states that “the basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.” (see Temporary agency work). According to the directive, these “basic working and employment conditions” include binding general provisions in force at the user undertaking, relating among other things to “rest periods” and “holidays”. The Court of Justice holds that this notion of “basic working and employment conditions” must be interpreted “as meaning that it includes an amount of compensation which an employer is obliged to pay a worker on account of the termination of the latter’s temporary agency employment, in respect of days of paid annual leave not taken and the corresponding holiday bonus pay”. Excluding such compensation “would be contrary to the objectives” pursued by the directive, given that, among other things, it would diminish “the scope of the protection granted to temporary agency workers in terms of equal treatment” (see press release).

Chemical industry : European social partners in the chemical sector have issued a joint statement calling on the European Commission to intensify its efforts to implement its European strategy in the fields of science, technology, engineering and mathematics (STEM). The signatories believe that skills in these areas “are vital in responding to the (structural) changes induced, for example, by climate goals, digitalisation or the Chemicals Strategy for Sustainability”. One of the proposals is that Member States should “encourage and support well-paid internships for STEM students, as foreseen in the collective agreement of the Spanish chemical industry” (see press release).

A change of leader for the DGB : The Congress of the EU’s main trade union confederation, the DGB, has chosen the Social Democratic MP Yasmin Fahimi, aged 54, as its new leader. She was born in Hannover and represented it as a MP. Like her predecessor Reiner Hoffmann, Yasmin Fahimi, who will be the DGB’s first woman President, previously worked for the chemical industry’s trade-union federation IG BCE. Yasmin Fahimi was accepted by the service industries trade union Ver.di and elected by a comfortable majority, with 93.2% of the votes cast. Her task will be to rejuvenate and feminise her army of trade union members, who have shed almost a further 2 million members since the beginning of the century, and around 200,000 members since the last Congress. The DGB’s membership currently stands at 5.7 million. She is in favour of a wealth tax, and will be responsible for defending the purchasing power of German employees and accompanying them in the forthcoming “transitions” –  a concept that covers adaptation to climate change, digitalisation of the economy and demographic changes. As far as the confederation’s positioning on Europe is concerned, few changes are anticipated. A motion passed by Congress supports all initiatives aimed at strengthening social Europe and adopts most of the European Trade Union Confederation’s claims in terms of democracy at work, such as revision of the European Works Council Directive and the adoption of a social protocol to be added to the EU Treaty. The motion also calls on the EU to develop collective bargaining in various ways, including by incorporating it into the procedures applicable to public procurement contracts.

• Wage rises in several branches : On 6 May, social partners in the electrical and electronics sectors reached a wage agreement covering the branch’s 67,000 employees, who will receive a 4.8% wage rise backdated to 1 May, with a minimum nominal rise of 130 euros. This represents a 6.7% increase in the minimum wage. The rise amounts to 8.6% for apprentices, and represents a wage of 1,000 euros per month during their first year and 1,950 euros in the fourth year. The agreement has been concluded for a 12-month period (see GPA press release). On 3 May, social partners in the chemical industry (47,000 employees) secured a 4.95% increase from 1 May, over a 12-month period, with a minimum sum of 120 euros, thus raising the minimum wage by 5.9% (see GPA press release). Similar agreements have previously been reached in the papermaking industry (a 4.9% increase, see press release) and the textile industry (a 4.5% increase, see press release).

• Wage rises in the public sector : On 26 April, the government and the trade unions reached an agreement to increase civil servants’ salaries and public-sector workers’ wages by 4%, backdated to 1 May. This figure matches the trade unions’ pay claim, whereas the government had offered 2%. The pay of Croatia’s 240,000 public-sector employees was frozen from 2012 to 2016, but has risen by 18.31% since Prime Minister Andrej Plenković came to power in 2016. This agreement, which also increased the value of certain bonuses and allowances, will serve as a benchmark for forthcoming negotiations in the private sector (see article in Vlada).

A step towards menstrual leave : The Minister for Equality, Irene Montero, has announced that the government plans to introduce, in the bill on sexual and reproductive health and voluntary interruption of pregnancy, which was due to be passed on 17 May at the Council of Ministers, an entitlement for women who are experiencing painful menstruation to receive a special temporary disability benefit. This will be financed by the State from day one, as is currently the case for sick leave linked to accidents at work or occupational diseases. If this law is passed, Spain will become the first country in Europe to allow workers to take sick leave when suffering painful periods. The proposal has been welcomed by Carolina Vidal López, the CCOO union’s Confederal Secretary for Women, Equality and Working Conditions, who agrees wholeheartedly with the measure granting three days of sick leave for painful menstruation (see press release).

• The “pre-pandemic world” is returning: In a press release, the UGT trade union confederation laments the gradual abandonment of teleworking, due to the declining seriousness of the pandemic and the importance of “face-to-face culture”. Teleworking is now at its lowest level for two years, with just 13.1% of employees working remotely (7.5% of them telework on more than one half of their working days and just 5.6% do so occasionally). The UGT believes that companies and public services have used the so-called “Covid exception” (a transitional provision of the law on teleworking) “to prevent teleworking becoming a permanent feature of their production model, thereby holding back the aspirations of millions of workers”. The UGT notes how few collective agreements on teleworking were signed in 2021: just 123 for Spain as a whole.

• The first platform elections have been a fiasco : The elections held to appoint representatives of the “self-employed” workers used by delivery platforms and vehicle-with-driver platforms, prior to the opening of a social dialogue in these two sectors that could potentially result in collective bargaining agreements, have been a fiasco. Just 1.83% of the 84,000 registered delivery riders (a figure far lower than their actual total number), took part in the vote. The first three trade unions each received between 300 and 400 votes. Turnout among the 39,000 drivers was 3.91%. The model that France boasted about in the negotiations currently under way on the Council of the EU, regarding a directive providing protection for platform workers, in particular by recognising their status as an employee as soon as they meet certain criteria, will therefore be hard to defend.

A charter for women working in finance : On 27 April, Finance Minister Sean Fleming unveiled the country’s first Women in Finance Charter. The signatories of the charter, which has been drawn up by the government and employers’ organisations, commit to increasing the number of women in management and board-level positions, in order to achieve a better gender balance and a more inclusive working environment. They will submit data on an annual basis to an independent research institute (ESRI) (see government press release and presentation fact sheet on the charter). Companies will be required to draw up an action plan, and the progress made on this will be assessed every year. The charter states that the company’s CEO and senior management team will be accountable for the progress made.

• Women’s wellbeing in the workplace : On 13 May, the government announced the creation of a fund to assist the voluntary, community and social enterprise (VCSE) sector. Organisations operating in this sector will be entitled to apply for grants of between £200,000 and £600,000 (approx. 235,000 to 706,000 euros) to fund projects delivered at SME level, to support women experiencing the menopause, fertility problems, miscarriage and pregnancy loss or menstrual health and gynaecological conditions in the workplace, and help them to remain in or return to their workplace (see press release).

Creation : After nearly four years of negotiations, on 11 May, the management of e-commerce giant Amazon (238.000 employees), signed a European Works Council agreement. The EWC comprises 30 members, including representatives of the United Kingdom, and the agreement is governed by Irish law, following what the European trade union federations ETF and UNI Europa describe as the “sudden decision” of Amazon management to move the jurisdiction from Luxembourg to Ireland (see joint press release). “We see this agreement as the first step to ensure workers’ participation, provided the management lives up to the commitments and obligations of the agreement”, explains Livia Spera, who is ETF’s General Secretary. For his part, Mathias Bolton, Head of UNI Global Commerce, is now calling on Amazon’s management “to engage in proper collective bargaining with trade unions”. Clearly, this is a major event in the GAFA world, where negotiations to set up European Works Councils are all either bogged down or simply non-existent. It is remarkable too, that Amazon management, which adopts a strongly anti-union position in the USA, is opening up to social dialogue in Europe, with the signing of a national agreement for Italian workers in September 2021 (see ETF press release) and now the signing of a EWC agreement that will open the door to a European social dialogue. Although management originally adopted the typical position of letting the negotiations drag on for as long as possible (three years), it changed its position at the end of 2021, when the negotiations that had been interrupted during the Covid-19 crisis, resumed. The agreement provides for two annual EWC meetings and four Select Committee meetings (two of which are held away from the annual meetings), with simultaneous interpreting. The EWC has a number of resources at its disposal, such as 24 paid hours per year for members of the European committee and 72 paid hours for Select Committee members, plus an entitlement to 15 days of support per year from an expert and 5 days of training per member over their four‑year term of office. The EWC has to choose a single expert, which therefore means opting either for a consultant or a trade-union expert. The weaknesses of the agreement include the high threshold set for employee representation (1,000 in a country), and the threshold set for organising an extraordinary meeting of the Select Committee: a proposal must concern 5% of the workforce (i.e. 12,000 employees in the EU) and at least 7% of the workforce in at least two countries over a period of no more than 90 days. These percentages are also used to determine whether a transnational issue is sufficiently important to warrant initiating an information and consultation process. The agreement’s scope of application has been the subject of intense discussions: the EWC is staffed by employees of Amazon’s ‘Operations’ division in the EU, which excludes a (minority) proportion of group employees who do not work directly in warehouses or logistics. This point is legally debatable, as the EWC must represent a group’s entire workforce in Europe. Sebastian Schulze-Marmeling, the (Syndex-wmp consult) external consultant who accompanied the special negotiating body, explains: “The compromise is that the EWC covers all European employees, but will be informed and consulted only within the scope of ‘Amazon Operations’ and merely informed regarding other activities.” Also worthy of note is a conciliation clause that applies in the event of a dispute, with recourse to two conciliators appointed by each party.

A disputed appointment : EWC members are appointed in a variety of ways, which are regulated by national procedures. Sometimes, a loophole allows local management to appoint one of its members or an employee who is close to management. The internal rules of procedure of the Adecco Group European Works Council, signed by its members and central management, contain a provision to protect against irregularities of this nature: if the select committee has any doubts about the appointment procedure followed by local management, it must inform central management of its concerns, so that a joint investigation can be conducted, to check that the procedure was in order. In the meantime, the disputed appointment will be suspended. However, this did not prevent a Hungarian representative, who was appointed in March and whose legitimacy was contested by the select committee, from appearing on the list of participants in the plenary meeting that commenced last Monday – despite the fact that on 30 March, the select committee had sent a letter to the Hungarian HR manager expressing its doubts regarding the appointment procedure followed. The investigations conducted by the select committee suggest that management gave preferential treatment to a strike-breaking candidate, and that the procedure was tainted by irregularities. EWC secretary Klaus Reitgassl expressly wrote to the “so-called” Hungarian representative, instructing him not to attend the first two days of the plenary session, which is an internal meeting for council members who are employees.

• Collective agreement in the video game industry : On 29 April, the Croatian video games development studio Gamechuck and the trade union Novi Sindikat signed the first collective bargaining agreement regulating a company in Croatia’s video games industry. For the first time in that country, a company-level agreement has introduced a profit-sharing scheme, whereby 10% of net profits can be distributed to the employees. However, these profits are currently still quite modest (133 euros paid out in 2022). The agreement also provides for a shorter working week (reduced to 35 hours), a paid 45-minute daily break, 24 days of annual leave and an annual medical examination paid for by the company, which will also pay contributions into a supplementary pension scheme. The agreement provides for employees to be briefed at regular intervals on the company’s progress and a union representative is invited to attend board meetings (see UNI Global Union press release and article in HRT Vijesti).