IR Notes

Today is International Women’s Day, but several recent reports show that there is still a long road to travel towards equal rights. Using a new indicator – access to employment – in place of the unemployment rate, an ILO report paints a much bleaker picture of the situation than before: 15% of working-age women would like to work but do not have a job, compared with 10.5% of men. This gender disparity has remained virtually unchanged for two decades. Personal and family responsibilities, including unpaid care work, disproportionately affect women. These activities can prevent them not only from being employed but also from actively searching for employment or being available to work at short notice (see press release). This finding echoes the initial results published within the framework of the latest “working conditions” survey, carried out by Eurofound. This survey, which is based on more than 70,000 interviews conducted in 36 countries, reveals that “segregation in employment – sectoral, occupational and in the workplace – and the uneven distribution of paid and unpaid work limit the participation of women in paid work and restrict their career opportunities, affecting their financial security, now and in the future”. Meanwhile, a study performed in France by the High Council for Equality [Haut Conseil à l’Égalité] shows that an unequal distribution of household tasks, an imbalance in family burdens and mental burdens… are all phenomena that are amplified by recourse to teleworking (see press release).
Eurofound also reveals that women are 3.6 times more likely to suffer from “unwanted sexual attention” than men, especially among female frontline workers, such as those in the healthcare and social services sectors (see article and Harassment and Violence at work). Exposure to these risks has an impact on women’s health: they are three times more likely to experience physical and emotional burnout. These effects may last for years and also affect their families, their colleagues, their employers… the time has come to act, at all levels.

One year on from the start of the invasion of Ukraine, the IR Notes editorial team would like to express its solidarity with the Ukrainian people and with the social partners who are working to further that country’s prospects of joining the European Union.

Revision of the European Works Council directive : In a letter to the European Parliament, the European Commissioner for Jobs and Social Rights, Nicolas Schmit, has confirmed his intention to accept the application for a revision of the EWC Directive (see IR Notes 201) and to launch the process of consultation with social partners (see European social dialogue), as provided for by the treaty, so that a proposal for a directive can be put forward by the end of the year.

Rest periods : Interpreting Directive 2003/88/EC of 4 November 2003, concerning the organisation of working time, the EU Court of Justice has ruled that the daily rest period of 11  consecutive hours (Article 3) is not part of the weekly rest period of 24 hours (Article 5), but is additional to it, even if it directly precedes the latter. The same applies where national law or a collective agreement stipulates a weekly rest period lasting longer than 24 hours. The 11-hour daily rest period is also additional to this. The Court explains that the “directive provides the right to daily rest and the right to weekly rest in two different provisions”, which “indicates that they are two autonomous rights” (see press release and CJEU, 2 March 2023, Case  C477/21, MÁV-START).

Equal pay : On 16 February, the Federal Labour Court delivered a ruling regarding wage discrimination between a female employee and her male colleague. Despite performing equal work and having an equivalent length of service, the male employee was receiving a higher salary, solely because he had been more effective in negotiating his pay, which had therefore been set above the amount applicable under the collective agreement. The female employee’s pay, on the other hand, was fully aligned with the amount provided for by the collective agreement. The Court noted a difference in treatment, which the employer was unable to justify by invoking the fact that the male colleague’s higher pay was based not on gender, but on the fact that he had negotiated a higher level of remuneration (see press release).

Regular and irregular night-time work : As previously announced (IR Notes 202), the Federal Labour Court has pronounced judgment on the provisions of collective labour agreements stipulating that employees working nights on an irregular basis should receive a higher level of financial remuneration than employees who normally work nights. The question posed was whether such provisions were discriminatory. When a similar case was referred to the EU Court of Justice, it did not pass judgment, holding that this issue “is not implementing” the Working Time Directive (CJEU, 7 July 2022, Case  257/21 and C‑258/21, Coca-Cola European Partners Deutschland GmbH). The Federal Court’s view is that the difference in treatment does not contravene the general principle of equality set out in Article 3, Paragraph 1, of Germany’s Basic Law (the Constitution), if there is an objective reason for it. Such a reason may lie in the fact that, in addition to the specific constraints linked to night-time working, the higher supplement is also intended to compensate for the constraints associated with the fact that it is harder for workers to plan ahead for irregular night-time working (see press release).

Performance monitoring: : On 9 February, the Hanover Administrative Court held a public hearing concerning the Amazon logistics site at Winsen, following a complaint filed by the data protection commissioner of the state of Lower Saxony (see press release). The commissioner had ordered the site’s management to abandon its practice of using manual scanners to gather quantitative and qualitative data on its employees round the clock, and then using this data to compile quantitative and qualitative performance profiles, conduct appraisals and analyse logistics processes. Her view is that this practice of continuously gathering data on employees’ performance is unlawful. The commissioner’s lawyer, Marcus Helfrich, explains in the TAZ daily newspaper “that monitoring employees for every minute of the day goes against the basic principles of German labour law. Employees are not obliged to deliver 100% performance during every single moment of their time at work”. The court took the view that such continuous data gathering does not constitute a breach of Article 26 of the federal data protection law, which allows employees’ data to be processed if this is necessary for the purpose of executing or ending the employment relationship. The court held that employees’ privacy was not affected and that the primary purpose of gathering this data was not that of monitoring and controlling employees, but managing logistics processes  (see press release). The data protection commissioner regrets this decision and believes that “the boundaries of processing employees’ data should be clearly fixed by law”, which would justify passing a specific law governing data protection in the workplace. In her view, the issue of the pressure exerted on employees to fit in and to demonstrate that they are performing well, by gathering data on their performance every minute of the day, should be deemed to take precedence over the employer’s economic interests (see press release).

Abolition of a public holiday : Parliament has passed the draft law abolishing the “Great Day of Prayer” as a public holiday, with effect from 2024 (see IR Notes 200). The efforts of the LH trade union confederation to oppose this move were in vain. Unusually for a country whose industrial relations model is based on seeking consensus, the social partners – including the employers – were not involved in drawing up this measure (see press release).

Health and safety at work : The government and the social partners have unveiled the Spanish strategy on health and safety at work 2023-2027 (summary) (see press release). It is organised into six strategic objectives, 38 action lines and 170 actions, and plans to act on risks that can cause significant harm to workers, as well as on work-related cancer and new risks linked to the digital, ecological and demographic transition, but also such as the imbalance between family life and working life, sexual violence and harassment, and discrimination on grounds of gender. The government and the social partners are going to compile an action plan that will fix the priorities for the next two years (see the CC.OO’s reaction). This issue is an emergency, argues vocational health secretary Ana García de la Torre, pointing out that in 2022, 826 people died in accidents at work, i.e. 121 more than in 2021, representing a 17.2% increase in fatal accidents (UGT press release).

• More seats for women on company boards: On 7 March, the Council of Ministers approved a preliminary draft bill on equal representation of men and women on decision-making bodies, in particular company boards. The text, which transposes the European directive, stipulates that women must constitute at least 40% of the total number of board members of listed companies and of unlisted companies with more than 250 employees (or with a turnover in excess of 50 million euros). This rule also applies to the managing boards of professional associations (see press release).

Agreement on value-sharing : All of the social partners (with the exception of the CGT trade union) have signed a national cross-industry agreement on “value-sharing”, which is intended to give employees a larger share of the fruits of their company’s financial performance. There are already several profit-sharing instruments in existence in France that apply to companies with at least 50 employees, such as ownership interest [participation] (which is compulsory and pays out a bonus based on the company’s profits) and profit-sharing schemes [intéressement] (which are optional, and involve paying bonuses linked to the company’s results or its non-financial performance). The new agreement, which will have to be transposed by a law, provides for an obligation requiring companies with between 11 and 49 employees to put in place one of these instruments, from 1 January 2025 onwards. Furthermore, when companies with at least 50 employees make extraordinary profits in France, they would then be obliged to either negotiate the automatic payment of a participation or intéressement [see above] supplement, or to commence discussions regarding an alternative value-sharing mechanism. Interestingly, the agreement allows for information on the group’s tax policy to be passed on to the EWC pursuant to Article L.2343-2 of the Employment Code. At companies with a workforce of more than 300, the economic, social and environmental database will be supplemented by new financial and tax information that may be useful to French EWC members.

• Labour Inspectorate priorities : The Labour Inspectorate has unveiled its priorities for 2023 in an inspection activities planning document. These priorities include: efforts to combat undeclared work, possible forms of discrimination linked to the use of algorithms, and compliance with health and safety rules applicable to platform workers.

EWC survey : On 12 and 13 January, the metalworking federation of France’s CFDT trade union confederation (FGMM-CFDT) organised a conference for its members who have been elected to EWCs. Here, it unveiled a survey to which 72 members from among its 260 representatives on EWCs have responded. The results support the need for a revision of the EWC Directive. For example, 45.8% of respondents think that the EWC “never” has any influence over decisions taken by management, while 51.4% declare that this is “seldom” the case, and just 2.8% believe this is “often” the case. Are EWC members allowed to pass on information to employee representatives at national and local level? Almost 28% of them stated that they were prohibited from doing so, because “everything is confidential”. In 50% of cases, the documents presented at meetings are distributed either “just before” the meeting (50%) or even “during” it (18%). The level of information passed on by management is deemed to be “neither good nor bad” (43%) or in some cases, even insufficient (19%). Other findings worthy of note: 54% of EWCs have already expressed an opinion; 24% of the EWCs entitled to use the services of an economics expert do not do so (this figure is 11% for using the assistance of a trade union expert).

Composition of the supervisory board : At a conference organised by the IMU Institute of the Hans Böckler Foundation, two experts set out the consequences of the ruling issued by the EU Court of Justice in the case concerning the composition of the supervisory board of the SAP group, following its transformation into a European company (SE) (see IR Notes 195). Sebastian Sick, an expert in company law at the IMU, reminded everyone of the German context, which is marked by an erosion of co-determination, based on a study published in 2021 (see press release). In the SAP case, the Court of Justice ruled that, under the “before-after” principle provided for by the directive on worker participation in the SE, not only did the equal representation in force on the supervisory board before its transformation into a SE have to be maintained, but so too did the right of trade unions to appoint two representatives among the quota of employee representatives, as provided for by German law in the field of co-determination. However, all European trade unions must be eligible for these seats reserved for the trade unions, to prevent any discrimination arising between German and non-German trade unions. What needs to be done next? Sandra Carlson, the lawyer representing the trade unions involved in the case, IG Metall and Ver.di, indicated that one possibility could be to have the EWC appoint two of its unionised members to these posts, but that it was necessary to wait for the Federal Labour Court’s decision, which is due to be announced on 23 March, pursuant to the Court of Justice ruling. Aline Hoffmann, Head of the Unit on Europeanisation of Industrial Relations, comments: “the European method closest to the German model would be to have this appointment made by the competent European trade union federations”.

• Minimum benefits package : The contract catering group Sodexo has announced the creation of a “minimum employee benefits package” for its 412,000-strong workforce in the 53 countries where it operates. This package will steadily be rolled out to cover 60% of these countries by the end of 2024 (see press release).