IR Notes

2022 was a vintage year for Social Europe, with the adoption of directives on: adequate minimum wages (see IR Notes 192 and IR Notes 188);  strengthening the representation of women on company boards (see IR Notes 197); pay transparency (see below); and on the publication of corporate sustainability information (IR Notes 196). The Commission also confirmed that self-employed workers are entitled to have access to collective bargaining (see IR Notes 193). So, a high bar has been set for an even better year in 2023! Nevertheless, several laws are well on the way to being adopted, if the Council and Parliament can rapidly reach agreement: the Directive on Corporate Sustainability Due Diligence (see IR Notes 181), for which the Council has already finalised its position;  the revision of Directive 2009/148 of 30 November 2009 concerning exposure to asbestos (see IR Notes 193), which is a priority for the EU’s Swedish Presidency, which began on 1 January; and the regulation establishing a Social Climate Fund.
Other projects too, might reach a successful conclusion: the proposal for a regulation on prohibiting products made with forced labour on the EU market (see IR Notes 192); a new proposal for a revision of the Directive on chemical agents that the Swedish Presidency plans to push forward; the proposal for a directive to improve the working conditions of platform workers (see IR Notes 195)(see Platform work) ; and revision of the regulations governing coordination of social security systems.
Parliament is also challenging the Commission on two matters. The first one is teleworking and the right to disconnect. Although European social partners have already commenced negotiations with the aim of reaching a Europe-wide agreement by June of this year, (see IR Notes 189), the Commission has work to do on this subject, so that it can still propose a directive if the negotiations fail. The second is the revision of the European Works Council Directive: according to Dennis Radtke’s legislative report, which has already been adopted by the Committee on Employment and Social Affairs (see IR Notes 198 and IR Notes 187), the Commission is being invited to put forward a proposal for a directive by 1 January 2024, meaning that by then, it will have to consult the social partners and prepare an impact assessment on a revision of the directive.
In addition to these laws, there are also a number of non-legislative initiatives. The Commission is due to adopt a Council recommendation that seeks to strengthen social dialogue within Member States and to revise the rules by which European social dialogue operates, especially at sectoral level (see IR Notes 191). Also worthy of note, on the Commission’s side, is an update of the quality framework applicable to training courses, so that issues such as fair pay and access to social protection can be addressed. The Commission will also present a law, the nature of which is still somewhat vague, concerning a “global approach to mental health” that might include an initiative on prevention of psychosocial risks at work, as requested by Parliament (see IR Notes 190). At the present time, these are not dealt with directly by any European directives.
The dynamic triggered in 2022 should therefore be maintained in 2023, particularly since Spain’s Minister of Employment Yolanda Diaz has clearly stated that Social Europe will be one of the priorities of the Spanish Presidency of the EU, which begins in July.

“Pay transparency” to pass into law : On 15 December 2022, the Council and the European Parliament reached a provisional agreement on the proposal for a directive on pay transparency (see IR Notes 184), with the aim of achieving gender pay equality (see Press release). The text now has to be formally approved by both institutions before it is published in the OJEU. States will then have two years to implement it. Pay transparency applies to the remuneration structures that will allow assessments to be made as to whether employees are in a comparable situation, based on objective and non-sexist criteria, such as skills, effort, responsibility and working conditions. Employees will be entitled to ask their employer for information “on their individual pay level and on the average pay levels, broken down by sex, for categories of workers doing the same work or work of equal value”. Likewise, a job applicant will receive information on their initial pay level or pay bracket, based on objective and non-sexist criteria, and on the collective agreement applicable. A report on pay gap data will be produced once a year by businesses with at least 250 employees; this interval will be three years for businesses with between 150 and 249 employees; and for those with between 100 and 149 employees, once every three years, starting from the fifth year after the directive has entered into force. If the report highlights a difference in average pay of at least 5% between female and male workers, a joint pay assessment will then be made in conjunction with employee representatives. Sanctions are provided for, and the burden of proof that no discrimination is involved, rests with the employer who is failing to meet their obligations. The concept of “intersectional discrimination”, which is a combination of gender-related discrimination and one or more other grounds of discrimination from which protection is provided by Directive 2000/43 or Directive 2000/78, appears in the directive (see Pay transparency).

Regulation for machinery products: : the Council and Parliament have reached a provisional agreement on the regulation governing machinery and related products (IR Notes 189). This will replace the 2006 “machinery” directive, which harmonises basic health and safety requirements applicable to machinery at EU level, permitting its free movement and at the same time ensuring that workers receive a high level of protection. Once it has been formally adopted, Member States will have 42 months to apply the rules of the regulation (see press release). The text has been welcomed by the European Trade Union Confederation (see press release), particularly because it introduces mandatory third-party conformity checks for six categories of high-risk machinery.

Further details regarding the “overall protection” afforded to temporary agency workers : On 15 December 2022, in a German case, the Court of Justice specified how a collective agreement allowing temporary agency workers to be paid less than employees of the user undertaking must provide for countervailing benefits, to respect ”the overall protection” to be afforded to them, under Article 5 of Directive 2008/104 of 19 November 2008, on temporary agency work (see Temporary agency work). The Court accepts that, by means of a collective agreement, the social partners can authorise differences in treatment with regard to basic working and employment conditions (as defined in Article 3 of the Directive: duration of working time and pay) to the detriment of temporary agency workers. However, in order to respect the “overall protection” of the temporary agency workers concerned, in return, this collective agreement must afford them advantages in terms of basic working and employment conditions which are such as to compensate for the difference in treatment they suffer. To ensure compliance, in concrete terms, with the obligation to respect this overall protection, an assessment must be made by comparing, for a given job, the basic working and employment conditions applicable to workers recruited directly by the user undertaking with those applicable to temporary agency workers. This comparison will determine whether the countervailing benefits afforded in respect of those basic conditions can counterbalance the effects of the difference in treatment suffered (CJEU, 15 December 2022, Case  C-311/21, CM).

Employer ordered to pay for spectacles : In Romania, an employee working on computers requested that his employer pay for his spectacles. The employer refused. The employee then took his case to court, seeking the application of Directive 90/270 of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment. This stipulates that “workers must be provided with special corrective appliances appropriate for the work concerned”, which “may in no circumstances involve workers in additional financial cost”.  The Court of Justice held that spectacles come under the heading of “special corrective appliances” and that “the employer’s obligation … may be met by the direct provision of the appliance to the worker, [or] by reimbursement of the necessary expenses incurred by the worker” (CJEU, 22 December 2022, Case  C-392/21, TJ).

Social measures planned for 2023 : On 20 December 2022, the Federal Ministry of Labour and Social Affairs published a press release relating to the changes and regulations that will come into force in 2023. We note in particular: an extension to 30 June 2023 of the special temporary provisions relating to short-time working; an end, on 7 April, to the exemption provisions linked to the pandemic allowing meetings, including works council and SE works council meetings, to be held virtually; and transposal into German law of the Directive of 27 November 2019 as regards cross-border conversions, mergers and divisions, to be completed by 31 January 2023. It stipulates provisions covering the protection of workers’ rights to be involved in running their company. The law “governing obligations to exercise vigilance over the supply chain” (LkSG) also entered into force on 1 January, for companies with their registered office in Germany and at least 3,000 employees (from 1 January 2024, the threshold will be reduced to 1,000). The works council’s economic committee, which is to be created in companies with more than 100 employees, is granted competence to deal with matters relating to companies’ obligations to exercise diligence in supply chains.

New measures in 2023 : The government has set out details of the measures that will enter into force in 2023 (see press release). We note: 1/ a refutable presumption of the existence of a contract of employment will apply to persons working in the platform economy, where an analysis of their situation shows that a minimum number of criteria defined by law are met, such as exclusivity, geopositioning, setting tariffs, and restricting the freedom to determine working hours or periods of absence. 2/ During a 30-week notice period linked to a redundancy, an employee will be allowed to take time off work on full pay, in order to follow up measures related to their employability, such as training courses or a redeployment. 3/ At a company with at least 20 employees, employees will have a personal entitlement to 4 training days in 2023. If a company has between 10 and 20 employees, this entitlement will equate to one day per year for each full-time employee.

Menstrual leave: : On 15 December, the Congress of Deputies approved the framework bill on sexual and reproductive health and voluntary interruption of pregnancy (see press release). In employment terms, this bill provides for “sick leave” for women suffering from “disabling menstruation”. Spain’s Minister for Equality, Irene Montero, is delighted: “This is definitively a legislature of feminist progress”, she says. “We are also recognising menstrual health as part of the right to healthcare, and we are combatting stigmatisation and silence” (see article in Filo.news). If the law is passed, Spain will be the first country in the EU to introduce menstrual leave into its legislation.

• LGBTI rights: On 22 December, the bill for genuine and effective equality for transgender persons and guaranteeing the rights of LGTBI persons was approved by the Congress of Deputies. In the field of employment, the bill encourages “specialised training for inspection personnel”, to guarantee effective compliance with rights guaranteeing equal treatment and non-discrimination for LGTBI workers (see press release). The CC.OO trade union confederation is pleased that this law requires companies with more than 50 employees to have “a package of measures and resources designed to achieve genuine and effective equality for LGTBI persons, including a protocol of action for dealing with harassment or violence perpetrated against them”. These measures will be put in place “through collective bargaining and agreed with workers’ legal representatives” (see press release).


• A paradise for digital nomads: Law 28/2022 of 21 December 2022 on promoting the start-ups ecosystem, seeks to position Spain in the forefront in this area, with a package of specific measures in the fiscal, commercial, civil and employment fields. These provisions include the objective of attracting “digital nomads”, for whom a simplified procedure has been established, so that they can obtain a visa allowing them to perform international teleworking and secure the right of residence, while also benefitting from an advantageous tax regime.

Agile working and parental leave : Finance law no. 197 of 29 December 2022, which has been criticised by the trade unions for not providing a sufficiently robust response to the effects of inflation (see press release and memorandum published by the CGIL labour confederation), contains a number of mechanisms, including two measures in the area of labour law: 1/ “Agile working” will be extended to 31 March 2023 for “fragile workers”, who will retain the right to work remotely. If their job is not compatible with remote working, the employer must assign the worker to a different task that comes within the same category or classification area, as defined by collective labour agreements, without any cut in their pay. 2/ Parental leave will be extended by an additional month. This optional maternity leave, or failing this, paternity leave, is extended by one month and paid at the rate of 80%. It can be taken up to the child’s sixth birthday.

A new agreement : The German lift manufacturer TK Elevator, which was hived off in 2020 from the ThyssenKrupp group, signed a European Works Council agreement, on 21 June 2022, covering the new independent entity. The agreement includes the United Kingdom and Switzerland. The works council will hold three plenary meetings a year and its select committee will meet four times a year. Extraordinary meetings can be organised remotely. Matters relating to the environment and climate change explicitly form part of the EWC’s competence, in terms of information and consultation, as do psychosocial risks and pandemic risks.