IR Notes

The Draft Report on Revision of the European Works Council Directive presented on 12 May by MEP Dennis Radtke (EPP), contains a number of proposed amendments to the directive, which should allow EWCs to function properly, i.e. without being obstructed by management as they attempt to exercise their basic right be informed and consulted (see European Works Councils). As Dennis Radtke pointed out, the aim here is not to create any new rights (see IR Notes 183), but rather to enforce compliance with the current directive. MEPs have until 21 June to make amendments to this text, which achieves its stated aim in every way, and proposes to: 1/ Strengthen sanctions: at the present time, failure to honour the rights of European Works Councils is punishable by financial penalties ranging “from 23 euros to 187,515 euros”. Consequently, they are not effective, dissuasive and proportionate, in terms of their effect on the multinational companies concerned. The report suggests taking action on two fronts: a) based on the example of recent European legislation, increasing the level of financial penalties, in this instance up to 10 million euros or 2% of the undertaking’s total annual worldwide turnover (double that figure for a repeat offence); b) sanctioning undertakings by excluding them from public procurement contracts and from European aid and subsidies for a three-year period. Before the stage of imposing sanctions is reached, Dennis Radtke is calling for decisions made by central management to be suspended, on a temporary basis, when they are disputed on the grounds of a breach of workers’ rights to be informed and consulted. 2/ Facilitate access to justice: to ensure that sanctions are effective, EWCs need to be able to take legal action against their employer. The fact is that EWCs “do not have direct access to justice in many Member States”, as in Ireland, whose legislation is so appealing that multinational companies are transferring their European headquarters there. In the rapporteur’s view, each State should draw up procedures allowing EWC rights to be exercised “in a timely and effective manner”, and the central management should bear any direct costs incurred in carrying out the procedures, including the costs of legal representation and subsistence and travel expenses for at least one workers’ representative. 3/ Restate that information and consultation rights are to be exercised in advance of any action taken: the latest ETUI survey, published in 2019, revealed that just 20% of EWCs are informed and consulted before management reaches its decision, whereas the directive requires advance consultation to be the norm. The definition of consultation should point out that the EWC must “express a prior opinion on the basis of the information provided” by the employer, and no longer merely an “opinion”, which is the wording under the current directive. 4/ Purge the directive of any provisions that limit its effectiveness. The report tackles several provisions currently used by managements to restrict EWCs’ rights. For example, the text proposes that the previous so-called “Article 13” agreements could remain in force only if “the obligations arising from this Directive have already been fully complied with”. The confidentiality obligation that imposes a duty of silence on some councils, would not apply to EWC members who pass on to national or local works councils, information that may affect the employees’ situation. The definition of transnationality incorporates recital 16 of Directive 2009/38 into the body of the directive and relates to matters that “directly or indirectly” concern the group as a whole or at least two entities in two different Member States.

Covid-19 to be recognised as an occupational disease : On 18 May, Member States and social partners sitting on the EU Advisory Committee on Safety and Health at Work (ACSH) reached an agreement on the need to recognise Covid-19 as an occupational disease in the health and social care and the domiciliary assistance sectors, and – in a pandemic context – in sectors where there is an outbreak in activities with proven risk of infection (see press release). EU Commissioner for Jobs and Social Rights, Nicolas Schmit, said: “Based on this agreement, the Commission will update its Recommendation of 19 September 2003 on occupational diseases to promote the recognition of Covid-19 as an occupational disease by all Member States.” Such recognition will allow employees in the sectors concerned, who have contracted this disease at their workplace – and especially long Covid – to acquire specific rights based on national rules, such as an entitlement to compensation on more favourable terms than those applicable to diseases unrelated to work. Even if many countries have already taken this step, this recommendation should lead to better harmonisation. The European trade-union federation EPSU has welcomed this decision, for which its member unions have been campaigning (see press release).

Protecting platform workers : On 19 May, MEP Elisabetta Gualmini (S&D) presented her report on the proposal for a directive on improving working conditions in platform work to members of the European Parliament’s Committee on Employment and Social Affairs (see press release). This report introduces significant changes to the proposal put forward by the European Commission. The main proposed changes are: 1/ the provisions relating to algorithmic management should apply not just to platform workers, but to all workers who are subject to automated and semi-automated surveillance and decision-making systems controlling their working conditions or the organisation of their work. This would substantially increase the directive’s scope of application. 2/ The Commission’s proposal stipulates that if a worker’s working conditions meet at least two of the five criteria whereby the employment relationship can be classified as salaried employment, the worker shall be deemed to be a salaried worker. The MEP opts for a presumption of salaried status for all workers, who would be regarded as salaried workers, unless the platforms can demonstrate that they are genuinely self-employed. This position is defended by Ludovic Voet, Confederal Secretary (see ETUC press release). He believes that responsibility for ensuring compliance with this presumption of salaried status should not lie either with workers, via legal action, or with the authorities.

European Semester : On 23 May, the European Commission adopted a series of documents giving Member States guidance on their economic, social and environmental policies (see European Semester). As forecast, due to the war in Ukraine among other things, the Commission is maintaining the escape clause of the Stability Pact in 2023, so that States can free themselves from the EU’s budget rules in order to support their healthcare systems and economy (see press release). The various documents published include a communication setting out the key economic policy orientations to be followed, country-specific recommendations for Member States and a proposal for a Council decision on guidelines for the employment policies of the Member States (see press release). According to the Commission, these guidelines were updated this year “with a strong focus on the post-Covid 19 environment, on making the green and digital transitions socially fair, as well as on reflecting recent policy initiatives, including in response to Russia’s invasion of Ukraine, such as measures to enable access to the labour market for people fleeing the war in Ukraine”.

Ireland served with formal notice regarding EWC legislation : On 19 May, the European Commission served an infringement notice on the Irish government, to highlight defects in the way it has transposed Directive 2009/38 on EWCs into domestic law. The Commission has identified “a number of shortcomings in Irish legislation, which fails to guarantee the right of workers’ representatives, the Special Negotiating Body or the European Works Council to go to a national court over disputes related to breaches of the rights and obligations under this Directive. This concerns for instance disputes related to the right to request assistance and presence of an expert in negotiation meetings or disputes related to confidentiality obligations” (see press release, point 10). This initiative follows the complaint filed by representatives of the Irish trade union SIPTU, according to its EWC expert, Denis Sheridan (see SIPTU press release). After witnessing an influx of multinational companies that decided to move their European headquarters to Ireland in the wake of Brexit, because they were attracted here by shortcomings in Irish legislation, which make it difficult for EWCs to take any legal action, SIPTU alerted the government to the need to review the country’s legislation. However, no action was taken, hence the complaint submitted to the Commission. The Irish government now has two months to respond to the Commission. If it fails to do so, or if its response is unconvincing, the Commission will be able to issue a reasoned opinion, which is the final stage before the case is referred to the Court of Justice for a ruling.

• Support for Greek employees in the household electrical appliances industry: On 29 May, the European Commission announced a proposal to release aid from the European Globalisation Adjustment Fund (EGF), to support 206 workers dismissed by companies in the household electrical appliances sector in Greece. (see press release).

The law applicable to aircrew : On 19 May, the Court of Justice delivered a ruling on the social security legislation applicable to aircrew employed by an airline (CJEU, 19 May 2022, Case C-33/21, INAIL and INPS), which also gave it the opportunity, for the first time, to set out the new applicability criterion introduced in 2012 by Regulation 883/2004, namely the “home base” used to determine the social security legislation applicable to aircrew. The case concerns 219 Ryanair employees based at the Italian airport of Bergamo. The Italian social security authorities took the view that these employees, who were recruited on an Irish contract of employment and were subject to Irish social security legislation, should pay their social security contributions in Italy. Ryanair “belatedly” submitted E101 certificates to the Italian court to prove that these employees were posted workers and were covered by the Irish social security scheme. When an appeal was lodged, the judges examined these E101 certificates closely: without referring to fraudulent certificates, they note “that they were not numbered or arranged in an intelligible or orderly manner, that there were 321 certificates, thus some were probably duplicates, and that they did not cover all of the 219 Ryanair employees assigned to” Bergamo airport. The judges decided that all employees who were not covered by a valid E101 certificate were governed by Italian legislation. The Court of Justice upheld this decision: this legislation is applicable to the employees in question, even if they only work for 45 minutes per day in Ryanair premises intended to be used by staff, known as the ‘crew room’, and who, “for the remaining working time [are] are on board that airline’s aircraft”. Within the meaning of Regulation 1408/71, which is applicable to part of the period concerned, this ‘crew room’ constitutes “a branch or permanent representation” and the crew have a “significant connection” “with the place from which” they “principally discharge their obligations to their employer”. The Court reaches the same finding in respect of periods that come under the new Regulation 883/2004, and also when it applies the home base criterion, introduced in 2012: the activity of aircrew shall be “deemed to be an activity pursued in the Member State where the home base […] is located”, i.e. the location nominated by the operator where the crew normally starts and ends its duty period (see press release).

• Menstruation is a trade union issue : On 27 May, the international trade-union federation IUF published a statement inviting its affiliates to take concrete initiatives in the workplace, in order to address the problems faced by women during menstruation. This statement provides full details of the federation’s follow-up to the resolution adopted on this subject at its Congress in 2017.

An obligation to be vaccinated : Since 15 March this year, Article 20a of the law on protection against infections (IfSG) has imposed an obligation to be vaccinated on employees of healthcare establishments and of residential and care homes for the elderly, persons with disabilities or dependent persons, i.e. places where employees may come into contact with vulnerable people during the course of their duties. The employees concerned have to provide their management either with proof of vaccination or recovery, or with a medical certificate evidencing a permanent medical contra-indication to vaccination. The Federal Constitutional Court has rejected several constitutional appeals against this obligation (see press release). Protecting so-called ‘vulnerable groups’ is deemed to be a more important consideration than breaching the fundamental rights of healthcare personnel and care staff. The obligation to be vaccinated is therefore deemed to be a constitutional requirement.

• A national LGBTQI+ plan : The government has unveiled a plan for a LGBTQI+ friendly Belgium containing 133 separate measures, some of which concern the field of employment. These measures primarily involve communication and awareness-raising. In terms of legislative changes, the plan proposes to include sex changes in the provisions of the well-being law offering protection against reprisals (in addition to the existing characteristics of gender identity and gender expression) (see press release).

A trade-union study of the circular economy : On 17 May, the Spanish trade-union confederation UGT published a study devoted to the circular economy, which advocates a just transition and recourse to collective bargaining. The union recommends expanding the scope of collective bargaining to include ecological transition-related matters, so that the impact of this transition on employment and the quality of employment can be discussed. Collective bargaining should address employees’ training requirements and occupational health and safety issues, by anticipating future needs (see press release). The UGT also suggests introducing clauses into collective labour agreements that will oblige companies to initiate actions that will be favourable to the environment and to the circular economy, while guaranteeing that employees and their representatives will be involved (see Circular economy). The UGT is also calling for a requirement for businesses to appoint an environmental delegate, who would be granted a time-credit to be specifically spent on solving the company’s environmental problems in general, and to developing low-carbon emissions and the circular economy in particular. A further suggestion is the creation of bodies specifically devoted to environmental issues. This would involve either setting up an Environmental Committee, made up of environmental delegates plus an equal number of company representatives, or extending the Occupational Health and Safety Committee’s remit to encompass environmental matters.

Gender balance within management bodies : The provisions aimed at achieving a balanced gender representation among senior company executives, introduced by the law of 24 December 2021 to speed up economic and professional equality (the so-called ‘Rixain law’) entered into force on 1 March and are set out in a circular issued by the Ministry of Employment. Now that this law has been passed, companies with at least 1,000 employees are required to publish an annual statement showing any differences in gender representation, both among senior executives and company directors. They are also required to publish these differences on the Ministry of Employment’s website. Moreover, from 1 March 2026 onwards, the proportion of men or women making up each of these groups must not fall below the threshold of 30%.

• Integrating migrants into the construction industry : The government and social partners in the construction sector have concluded a partnership to promote the integration of at least 3,000 people into working life, including: seekers and holders of international or temporary protection, including Ukrainians; holders of special protection; unaccompanied foreign minors transitioning to adult age; and former unaccompanied foreign minors (see press release).

An initial evaluation of teleworking: : The government has published an Evaluation of the Impacts of Remote Working on the economy and society, part of which is devoted to employment. For employees, the resulting increases in heating and electricity costs for households, estimated at 79 euros and 30 euros per year respectively, would appear to be offset by the savings from reduced commuting, which are estimated at 413 euros per remote worker. Remote workers can also save an average of 93 hours per year through reduced commuting which, according to the report, represents an equivalent monetary benefit of 1103 euros. The reduction in travel has the potential to “save 164,407 tonnes of CO2 a year, with an equivalent monetary saving of €7.6m” (provided that remote workers do not take more frequent, shorter trips from home during the day). The report, which emphasises that teleworking facilitates participation in the labour market for persons with disabilities or family responsibilities, suggests introducing targeted support with ‘start-up’ costs for people with disabilities or low incomes, including helping them with equipment purchases, and emphasises that promoting teleworking does not exempt companies from the requirement to continue adapting the workstations on their premises. Also worthy of note is a growth in demand for housing in rural areas in 2021, which should also prompt the government to boost access to high-speed broadband nationwide.

• Equal pay: The Gender Pay Gap Information Act 2021 requires companies to issue an annual report on their hourly gender pay gap, based on a set of parameters. A guide announced on International Women’s Day (8 March) (see press release), and published on 10 May, explains how to calculate the figures required for the report, so that the law can be implemented for companies with more than 250 employees in 2022. Thereafter, it will apply to companies with more than 150 employees (2024), followed by those with more than 50 employees (2025). Companies in the first wave will have until December to submit their report.

• Family leave : The government Council of the 18 May passed two draft laws, one of which introduces an entitlement to extraordinary leave where a child is born to anyone recognised by the national legislation applicable, as an equivalent second parent. The other law transposes Directive 2019/1158 of 20 June 2019 on work-life balance for parents and carers, by laying down minimum requirements applicable to paternity leave, parental leave and carer’s leave, and flexible work patterns for workers who are parents or carers (see press release).

Restructuring : On 18 May, a major restructuring was announced by Vallourec management to the group’s European Works Council. This will result in 2,950 job losses, primarily in Germany (2,500 jobs), where two production sites will close by the end of 2023 (with production being transferred to Brazil), and France (320 jobs). Following this announcement, at the initiative of trade union IG Metall, almost 1,000 German employees descended on the group’s head office near Paris. IG Metall, which described the group’s attempts to find a buyer for its German sites as “a farce”, is planning a trial of strength on a scale large enough to negotiate favourable redundancy terms for these German employees (see press release).

On 5 May, the ILO presented a major study on the role played by collective bargaining (Social Dialogue Report 2022: Collective bargaining for an inclusive, sustainable and resilient recovery). The study, which is based on an examination of collective agreements and practices in 80 countries at different levels of economic development and the legal and regulatory frameworks in 125 countries, emphasises that collective bargaining can effectively reduce wage inequality, whether in an enterprise, sector or industry (see press release and executive summary). Collective bargaining also has a positive effect on the gender pay gap. The study also highlights the added value of collective bargaining agreements concluded for the purpose of tackling the Covid-19 pandemic and putting in place decent hybrid and teleworking practices. Based on the lessons it has learned, the ILO emphasises that collective bargaining will be “an essential tool to face the fundamental changes that are shaking up the world of work”. This plea for the development of collective bargaining, which also echoes a preoccupation of the European Commission, endows the right to collective bargaining (which can have positive effects worldwide) with a universal reach, and includes scarce comparative data. In order to strengthen collective bargaining, the ILO is calling among other things for employers’ and workers’ organisations to be revitalised, for the right of all workers – regardless of their status – to engage in collective bargaining, to be properly recognised, and for social dialogue to be strengthened, so that sustainable development targets can be achieved. The lessons learned in the study will be presented on 14 June (see agenda).

• Guide to preventing discrimination against LGBTIQ+: To help with the inclusion of LGBTIQ+ persons into the world of work, the ILO has compiled a learning guide aimed at representatives of governments, employers’ and workers’ organisations and other stakeholders.


• Study of employment and trade union membership in Fintech: The final conference of an EU-financed research project, which has studied the impact of Fintech companies on the financial services sector, and the role that the trade unions might play in ensuring good working conditions at these companies, was held in Copenhagen on 10 May. The final report is available here: The digital transformation of financial services markets and industrial relations – Exploring FinTech development in Denmark, Estonia, the Netherlands and Sweden.