IR Notes

European social partners have submitted their comments to the European Commission, as part of the first phase consultation on “a possible recast of the European Works Council Directive” (see IR Notes 206). These are some of the points on which they hold diametrically opposed positions: 1/ The need for a revision of the directive: in its response, the European Trade Union Confederation (ETUC) welcomes the European Commission’s intention to “remedy the shortcomings” of the directive. BusinessEurope, on the other hand, believes that there are no shortcomings to be remedied: its position highlights the fact that there have been only a limited number of court cases involving EWCs: “This is not because EWCs lack the means to go to court. It is because most EWCs work satisfactorily”. The ETUC, however, argues that “the low litigation level is due to the manifold hurdles put in the way of EWCs”. 2/ The best instrument to use: while the ETUC supports the aim of putting forward a “legally binding initiative”, i.e. a directive, BusinessEurope believes this is unnecessary. The employers’ organisation cites the Commission’s evaluation report, published in 2018, stating that it is in favour of the idea of compiling a step-to-step guide to help social partners to run their EWCs properly and of funding awareness-raising actions, to encourage the creation of EWCs at multinational companies that do not yet have one.  3/ The fate of pre-directive agreements: the ETUC points out that “after more than 25 years, there is no longer justification for exempting old, so-called voluntary (Pre-Directive, ‘Article 13’) agreements” that are already in force. It is calling for these agreements to be brought “into the scope” of the future directive. However, BusinessEurope argues that if a revision does go ahead, the future directive “should create a safe harbour for pre-existing EWC agreements […] by ensuring they can remain out of its scope in the future”. 4/ Penalties and access to justice: BusinessEurope believes that the treaty does not allow the EU to instruct Member States on the precise level of penalties to be applied. The fines provided for by the GDPR regulation (up to 2% of annual turnover), “do not have any positive role to play in labour relations and would seriously damage the cooperation and trust between social partners at company level (…).” The ETUC, which favours this level of financial penalty, also adds a further demand: the directive must provide for access to “an administrative structure or judicial system […] that allows for swift decisions 24/7 in a few hours” when an EWC believes that its information and consultation rights have been breached, so that this EWC can call for a decision made by the employer to be temporarily suspended. This mechanism would also be used to lift the confidentiality obligations imposed by the employer in respect of certain information.
The explanation for these diverging points of view, which on the face of it, mean that any chances of commencing negotiations aimed at revising the directive via a European agreement are doomed, is the radically different conceptions of the EWC held by the parties involved. On one hand, BusinessEurope is exploiting the EWC as a “useful tool in large companies for improving the common understanding of employment-related issues”, without once mentioning the right to information and consultation that lies at the heart of the directive. The ETUC however, defends this right, and even lectures the Commission, whose consultation document makes no mention of Article 27 of the EU’s Charter of Fundamental Rights, which stipulates that “workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time”. In response to the Commission’s temptation to reconcile a revision of the directive with its Better Regulation principles, the ETUC warns that a “question of fundamental rights must never be considered in purely economic terms, which risks fundamental rights and, in the long run, endangers democracy at work itself.” And it is precisely because this is a fundamental right, that the ETUC believes that the penalties applicable here should be brought into line with those of the GDPR regulation and that EWCs should be able to apply for a decision to be suspended. As MEP Dennis Radtke explained to Suez EWC members, on 23 May this year, in those countries where such penalties act as a deterrent, companies follow the rules and there are no disputes, because company management teams take information and consultation rights seriously.

Porto Social Forum : Two years after the Porto European social summit, which saw the adoption of the Porto Declaration and of the European Pillar of Social Rights Action Plan put forward by the European Commission (see IR Notes no. 159), on 26 and 27 May the Portuguese government initiated a biennial meeting, known as the Porto Social Forum, with the support of the Commission, working closely with the European Parliament, and involving social partners and civil society. The aim was to reaffirm the role played by ‘Social Europe’ and to provide continuity for the commitments entered into at the Porto Summit, as seen in the signing of an open letter by the main political leaders attending the forum. Ana Mendes Godinho, the Portuguese Minister of Labour, Solidarity and Social Security, emphasised the objective of combatting poverty, which means increasing wages and social investment made by the State, “in order to reach out to those who are most vulnerable”. The real challenge facing the forum is to consolidate the group of progressive countries planning to pursue the goal of strengthening Social Europe, especially under the two forthcoming EU presidencies, i.e. those of Spain, starting on 1 July, followed by Belgium, in the first half of 2024.

Health and safety at work : The Occupational Safety and Health (OSH) summit, held on 15 and 16 May in Stockholm, provided an opportunity to take stock of the application of the European Strategic Framework on Health and Safety at Work, which was adopted in 2021, focusing on four themes: Mental health in working life; national OSH strategies (with a view to encouraging Member States to strengthen these); the ‘Vision Zero’ target for work-related deaths; and climate change, heat waves and OSH (see press release). In their conclusions, the participants “reconfirm that Framework Directive 89/391/EEC, with its prevention approach, is a golden standard to workers’ protection. It covers all risks to their safety and health, including those resulting from the OSH issues identified above”.

Artificial intelligence and algorithms : Speaking at the ETUC Congress on 25 May, Ursula von der Leyen, President of the European Commission, explained that her organisation is “keeping a very close eye on the potential need to regulate the use of algorithms in the wider world of work”, with a view to ensuring that the human stays in control and that an algorithm cannot make decisions such as that of dismissing a worker. The Commission has appointed consultants Visionary Analytics to perform an exploratory study to this end.

ETUC congress : At its recent congress, the European Trade Union Confederation (ETUC) appointed Irish trade unionist Esther Lynch to the post of General Secretary and, as is customary, partially renewed its secretariat by re-electing Isabelle Schömann, who steered the democracy at work campaign, and Claes-Mikael Stahl as its Deputy General Secretaries, and electing Ludovic Voet, as its Confederal Secretary. The new members of the ETUC leadership team are Slovenian trade unionist Tea Jarc and Italian Giulio Romani. Esther Lynch emphasised that this was “the ETUC’s youngest-ever elected team”, and its task would be to implement the Confederation’s action plan and manifesto, which were agreed over four days of debate in Berlin among 1,000 trade union officials representing over 45 million workers. The priorities of the current mandate, which runs until the next congress in 2027, are as follows: 1/ A ban on public funding for companies which refuse to recognise unions or bargain collectively. 2/ The regulation of Artificial Intelligence in the workplace based on the ‘human in control’ principle. 3/ Preventing a return to austerity and advocating new EU economic rules which put people and planet first. 4/ The full and fast implementation of the Equal Pay Directive. 5/ Ensuring no workers are left behind in the transition to a green and digital economy. 6/ Increasing trade union membership as a bulwark against the rise of the far right. Wolfgang Katzian, who has been President of the Austrian trade union confederation ÖGB since 2018, was elected ETUC President. He takes over from Laurent Berger, whose term of office as CFDT General Secretary comes to an end in July (see press release).

> Find out more: The documents – ETUC Action Plan, Berlin manifesto and Charter – will be published on line on IR Share as soon as they have been finalised by the ETUC.

Violence and harassment at work : New legislation, which comes into force on 1 June, strengthens the protection offered against retaliation by the employer, in response to employees’ complaints of discrimination and violence, bullying or sexual harassment at work. The instruments in question – a law dated 7 April and a Royal Decree dated 1 May – were published on 15 May (see press release). This so-called ‘Retaliation’ law follows on from the Hakelbracht ruling issued by the EU Court of Justice in 2019 (see IR Notes 123), when a female store manager was dismissed for helping a job applicant to file a complaint for discrimination against the company’s management, which had refused to offer this applicant a job, solely on the grounds that she was pregnant. The Court of Justice ruled that the store manager should have enjoyed protection against retaliation. Michel Pasteel, Head of Belgium’s Institute for Gender Equality, says: “the strict conditions set by Belgian law used to undermine the effectiveness of the protection offered. Fear of retaliation was likely to deter workers from offering their support to someone suffering discrimination” (see press release).

Austerity and pension reform : On 11 May, the government unveiled a package of reforms aimed at rehabilitating the country’s public finances, via fiscal measures and higher sickness insurance premiums. One of the main measures being introduced by the government is pension reform. These reforms include: introducing an automatic mechanism to gradually raise the retirement age; strengthening the incentives for employees to work during their retirement; a slower rise in the new pensions; defining a number of demanding occupations from which people will be entitled to take earlier retirement… Parliament is expected to pass this package, which is supported by all five parties that make up the ruling coalition.

Social dialogue : On 24 May, pursuing its plans to reform social dialogue (see IR Notes 205), the government put forward a number of new amendments to the law on social dialogue and to the Employment Code. In particular, these specify the various levels of trade union organisation (territorial trade union, trade union, trade union federation and trade union confederation) and make the national Tripartite Council for Social Dialogue responsible for defining those sectors of the economy in which social partners are entitled to engage in social dialogue, instead of leaving this task to a government decision. The choice of sectors will then be approved by the minister responsible for social dialogue (see press release).

Protecting parents and carers : Three new laws are set to extend the rights of parents and carers: 1/ The Neonatal Care (Leave and Pay) Act provides for up to 12 weeks of paid leave for employed parents whose children are admitted to neonatal care. 2/ The Protection from Redundancy (Pregnancy and Family Leave) Act establishes redundancy protection for pregnant women and new parents, with the extension of existing redundancy protections to cover pregnancy and a period of time after parents return to work. 3/ The Carer’s Leave Act, which introduces a new entitlement for unpaid carers to one week of flexible unpaid leave per year, for employees who are caring for a dependant with a long-term care need (see press release).

Takeover of a group with its own SE works council : On 10 February Adecco Group, which in 2021 purchased the engineering and technology consulting company Akka, renaming it Akkodis, signed a supplemental agreement with its EWC in preparation for Akkodis joining the Adecco Group’s EWC. This text provides for the creation of a working party made up of Adecco Group management, the five members of its EWC’s select committee and the three members of the Akkodis SE works council’s executive committee. Their task is to propose amendments to the Adecco Group’s current EWC agreement by the end of 2023. Among other things, the revision will cover a series of subjects laid down in the supplemental agreement, such as the number of EWC meetings; the budget available to members for carrrying out their activities; confidentiality; dispute resolution, etc. The text also stipulates that management is required to inform (but not consult) employee representatives on transnational issues concerning the ‘Akkodis’ workforce up to 31 December or alternatively, the agreement’s revision date. As soon as the merger is completed, the Akkodis SE works council will be dissolved and the three executive committee members mentioned above will become ex officio members of the Adecco Group EWC.