IR Notes

The downward trend in fatal accidents at work in the EU has come to a halt – a fact that should encourage us all to take another look at prevention policies, especially since we are just a few days beyond International Workers Memorial Day (28 April), when those killed or injured at work are remembered. Health and safety practices in Europe vary widely when it comes to recording and declaring accidents at work in general, and fatal accidents in particular (see Occupational accidents and diseases). Consequently, it is difficult to make comparisons. One of the resources that can be mobilised is the data published by Eurostat, in a form that is standardised as possible, on the number of fatal accidents at work by country. This data includes both absolute values and, to facilitate comparisons, the number of fatal accidents at work per 100,000 workers. The latest available dataset is for 2020: the number of fatal accidents at work in the EU was 3,358 in 2020. This figure was slightly down on 2019 (3,408) but slightly above the figures for 2016 to 2018.  Following a steady decline, the average EU accident rate has been stagnating at between 1.74 and 1.79 since 2017. The countries now suffering the most deaths at work are Italy (776), France (541), Spain (392), Germany (371) and Poland (190). These figures only partially reflect the reality of the situation: they are influenced by the size of the economic sectors suffering the most accidents, under-declaration of accidents and differing calculation methods, e.g. excluding certain causes of death (suicide, illness, attacks at the workplace, accidents on the way to/from work). When the number of fatal accidents per 100,000 workers is taken into account, the rankings look very different: the EU average is 1.77, but the worst figures are those for Cyprus (4.45), Bulgaria (3.68), Italy (3.39), Romania (3.31) and Lithuania (3.17). One of the lessons to be learned from the 2020 figures is that the number of accidents at work has fallen in all countries with the exception of Denmark, due to the impact of the Covid-19 crisis. However, the initial national feedback for 2022 is not encouraging, especially given that after two years of lockdown and working from home, fatal accidents on the way to/from work have resumed an upward trend. In Finland, which is one of the countries with the lowest accident rates (0.95), 24 workers died in fatal accidents at work in 2022, i.e. double the figure for 2021 (see press release). In Italy, INAIL recorded a 25.7% rise in accidents at work between 2021 and 2022, and a total of 1,089 fatal accidents; even though this figure is lower than it was in 2021 (1,221) and 2020 (1,270), it is still extremely high (see press release). In Spain, fatal accidents at work rose by 17.2% in 2022: there were 826 deaths (i.e. 121 more than in 2021), according to an analysis produced by the CCOO trade union confederation. Denmark recorded between 43 and 45 deaths at work. This figure too, represents an increase (see press release). In all of these countries, trade unions are mobilising and calling on their government, sometimes in conjunction with the employers (as in Denmark – see FH press release), to take this subject in hand. The EU is still a long way off meeting its target of 0 deaths at work (see Strategic Framework on Health and Safety at Work).
> See also: Eurogip, Study of the phenomenon of under-reporting of accidents at work in Europe (in French), 2017

Due diligence: : On 25 April, the European Parliament’s Legal Affairs Committee adopted, by a large majority, the report on the proposal for a directive on corporate sustainability due diligence, which the European Commission presented in February 2022 (see IR Notes 181 and Due diligence). Parliament is due to vote on this text at a plenary session on 1 June, before the start of negotiations with the Council, which finalised its position on 1 December 2022 (see press release). Definitive adoption of this text is a priority for the Spanish presidency of the EU, which will commence on 1 July. MEPS are more ambitious than the Commission (see press release). Their position is that these due diligence rules should apply to all EU-based companies with more than 250 employees and a turnover higher than 40 million euros, regardless of their sector of activity (rather than companies with over 500 employees and a turnover higher than 150 million euros). They also want the rules to apply to multinational companies based outside the EU, if they have more than 500 employees and a turnover higher than 150 million euro, at least 40 million of which is generated in the EU. MEPs have included financial services companies in the directive’s scope of application. Companies will be required to implement – rather than simply to adopt – a transition plan compatible with a global warming limit of 1.5°C. They will have to demonstrate that they are set to meet this target and are committed to cutting their greenhouse gas emissions in the short, medium and long term. This plan must be drawn up in conjunction with the stakeholders concerned. European Works Councils can be expected to play a role here – some EWCs have already included due diligence monitoring in the scope of their competence (e.g. SNCF, Eiffage). Furthermore, directors of companies with over 1,000 employees will be directly responsible for this step, which will affect the variable elements of their pay. MEPs want companies that breach the rules to be subject to fines amounting to at least 5% of their net worldwide turnover, and in the case of non-compliant third-country companies, banned from participation in public procurement contracts. The trade-union world has given a warm welcome to MEPs’ proposals: the European Trade Union Confederation has expressed satisfaction at the increased role played by unions in defending victims (see press release). Employers’ organisations, on the other hand, are highly critical of them. Delphine Rudelli, Director General of Ceemet, argues that this text is not workable in practice, as it imposes unreasonable requirements on companies (see press release). NGOs, on the other hand, believe that this text does not go far enough, especially as it allows companies to set their own priorities for tackling environmental pollution issues and breaches of human rights (see press release issued by French NGOs), which “could enable companies to postpone their efforts to prevent or cease certain unlawful activities, simply on the grounds that they have prioritised other more serious or more likely violations”, explains legal expert Brice Laniyan, who works for the climate campaigning organisation Notre Affaire à tous, in an article in the environmental newsletter Reporterre. Given these strongly diverging positions, the stage is set for some intensive lobbying. Likewise, the forthcoming discussions between Parliament and the Council are likely to be extremely vigorous, given their very different positions.

Protection against asbestos : The European Parliament’s Committee on Employment and Social Affairs has approved a draft report on revision of Directive 2009/148/EC on the protection of workers from the risks related to exposure to asbestos at work (see press release issued by Parliament), presented by the European Commission on 28 September 2022 (see IR Notes 193 and proposal for a directive). The text invites employers to reduce exposure to asbestos fibres to the lowest possible level and bring it below an occupational exposure limit (OEL) of 0.001 fibre/cm³ over an average eight-hour period, while at the same time aiming to introduce the use of electron microscopy, with a view to maximising the effectiveness of detecting the finest and most carcinogenic fibres. A four-year transition period is provided for in the run-up to this threshold, during which the exposure limit would be cut from the current standard (0.1 fibre/cm³) to 0.01 fibre/cm³, as stipulated by the Commission. During this time, Member States would still be allowed to use the current detection method (phase-contrast microscopy), which is less effective. The text takes passive and secondary exposure to asbestos into account, and sets out a list of ways to prevent this. It substantially reinforces the notification requirements, by requiring employers to specify, on asbestos removal sites, the spaces where work will be carried out, a list of the workers assigned to them, setting out details of their certification to carry out such work and the training they have received for this purpose, together with the measures taken to reduce exposure, such as the use of personal protective and respiratory equipment, safe cleaning of workers’ clothing and a compulsory decontamination procedure. It is expected that the text and the mandate to commence negotiations with the Council will be adopted at a plenary session of Parliament on 8 May, thereby opening discussions with the Council with a view to definitive adoption of the revised directive later this year. The European Federation of Building and Woodworkers (EFBWW) and the European Trade Union Confederation are urging Member States to adopt the proposal for a directive, in line with Parliament’s “more ambitious and holistic approach” and to go for the new OEL, measured with electronic microscopes, “with no transition period” (see press release).

Hazardous medicinal products : On 28 April, the European Commission published a non-binding guide containing practical advice on how to reduce workers’ exposure to hazardous medicinal products (HMP) at all life-cycle stages: production, transport and storage, preparation, administration to human and animal patients, as well as waste management (see press release). This publication has been welcomed by the European public service union EPSU (see press release).

Fast fashion : The European Parliament’s Environment Committee has adopted its recommendations on EU measures to ensure that textiles sold in the EU are more durable, easier to reuse, repair and recycle, and that they are made to a great extent of recycled fibres, and are free of hazardous substances. Textiles should also be produced in a manner that respects human, social and labour rights, the environment and animal welfare throughout their supply chain (see press release). The report, which was accepted by a unanimous vote, is due to be adopted at a plenary session before the summer.

• Minimum wage : The Swedish government has announced that it will be supporting Denmark’s appeal seeking annulment of the directive on minimum wages. “It’s important to examine whether the EU has powers to legislate on minimum wages via this directive”, says Paulina Brandberg, the country’s Gender Equality Minister and Deputy Minister of Labour (see press release).

• Gas : On 28 April, European social partners in the gas industry announced the launch of collective bargaining negotiations aimed at reaching a sector-wide Just Transition framework agreement, which is intended to safeguard jobs and upskill the workforce (see IndustriAll Europe press release).

Breakdown of working hours : On 18 April, the Federal Ministry of Labour introduced a draft bill on logging working hours, in order to bring German law into line with EU Court of Justice case law (see CJEU, 14 May 2019, aff. C-55/18, Federación de Servicios de Comisiones Obreras /Deutsche bank et IR Notes 120) and its recent application by the Federal Labour Court (see Decision and IR Notes 192). The text, which has not yet been made public, requires companies to systematically log the hours worked by their employees, using electronic means, but grants exemptions for certain categories of workers, via collective agreements (v. Press release of the Bundesrechtsanwaltskammer).

Parents of twins: : The 2023 finance bill, which was passed by the government with the support of a majority of the parties, provides for 26 weeks of additional leave with maternity benefits for the parents of twins. Its methods of application will be discussed in due course. Parliament is expected to pass this law in mid-May.

• Transposition : Employment Minister Ane Halsboe-Jørgensen has submitted a bill to Parliament (see procedure file) transposing Directive no. 2019/1152 of 20 June 2019 on transparent and predictable working conditions in the EU. The directive’s implementation is based on a memorandum of understanding dated 30 June 2022, reached between the social partners FH (the Danish Trade Union Confederation) and DA (the Danish Employers’ Confederation). The substantive rights granted by the future law will not apply if the employment relationship is covered by a nationwide collective bargaining agreement that has been concluded by the most representative social partners and provides an equivalent level of global protection for the employees concerned. This law is due to enter into force on 1 July 2023 (see press release).

Ecological transition and social dialogue : The social partners have concluded their negotiations concerning a national cross-industry agreement on the theme of ecological transition and social dialogue. This text, which is not binding, provides some examples and good practices for applying the legal framework covering ecological transition. The agreement comprises five chapters: 1/ identifying methods of leverage for change within the framework of an informed social dialogue around ecological transition; 2/ enabling social dialogue to address environmental issues at company level; 3/ incorporating environmental issues into collective bargaining; 4/ addressing environmental issues within territorial and sectoral social dialogue spaces; 5/ dealing with employment and skills-related issues as part of the process of implementing the ecological transition. What good practices are suggested here? One example is that of including a regular review of environmental policy on the agenda of works council (‘Economic and Social Committee’ – ESC) meetings at companies with more than 50 employees, and setting up further ESC subcommittees, with their own budget, to deal with environmental matters. A concrete example of this, as suggested by the text, is having “green clauses” to mitigate the consequences of environmental and climate-related changes, e.g. by providing for adaptations to organisational arrangements and working conditions, or including environmental criteria in profit-sharing agreements.
> Note: The Economic, Social and Environmental Council (CESE) has unanimously adopted an opinion on the impact of climate disruption on employment and health at work. It contains 17 concrete recommendations, which together form a fully-fledged action plan for adapting the world of work to global warming, and mitigating the impact of human activities on the climate (see press release).

Restrictions on the use of temporary workers : Since 1 April, a law has severely restricted the use of temporary workers. The aim is to promote permanent employment and combat social dumping (see press releases issued by the government and the LO trade union confederation). The use of temporary workers is limited to specific cases such as cover for maternity or sick leave, and coping with a temporary increase in activity levels, and furthermore, it can only proceed with the agreement of workforce representatives at companies that have signed a collective agreement with a representative trade union at national level. It is still possible to recruit temporary replacement staff in the healthcare sector, without the agreement of a representative trade union. The law prohibits the use of temporary workers on building sites at Oslo, Viken and Vestfold. In contrast to what was initially planned, as requested by the Samfunnsviterne trade union, consultancy firms will still be able to send employees to work at clients’ premises. The new law also stipulates that a temporary worker will automatically be recruited on an open-ended contract of employment at the end of a three-year period with the same employer.  “We don’t yet know what effects the new law will have”, explains Gunn Elisabeth Myhren, General Secretary of the Samfunnsviterne union. “It might be feared that temporary workers who are already employed on a fixed-term contract at a temporary work agency will find themselves unemployed again when it comes to an end, and if they are not taken on again by the user company, they might subsequently find themselves back in precarious employment”.