IR Notes

On 1 June, MEPs adopted, by 366 votes in favour, 225 against and 38 abstentions, their position on the Corporate Sustainability Due Diligence directive (see press release and fact file prepared by Parliament). Negotiations will therefore commence with Member States’ representatives, with a view to passing this highly divisive directive. This will be no easy task, as Parliament’s position is much more ambitious than the position of Member States (see Due diligence). The text prepared by MEPs seeks to hold companies liable for “actual and potential human rights adverse impacts and environmental adverse impacts that they caused, contributed to or are directly linked to, with respect to their own operations, and those of their subsidiaries, and the operations carried out by entities in their value chain with whom the company has a business relationship”. This liability applies to companies with more than 250 employees on average and more than 40 million euros worldwide net turnover, and to parent companies with more than 500 employees and a worldwide turnover of more than 150 million euros (at least 40 million of which was generated in the EU, in the case of companies based in third countries). Companies will be required to inform and consult “workers and workers’ representatives as well as other relevant affected stakeholders” when they are developing a due diligence policy, and also when they are “identifying adverse impacts”, “developing action plans”, “prioritising their adverse impacts” and “developing remedial measures”. Companies will also have to adopt a “transition plan” in line with the reporting requirements in Article 19a of Directive (EU) 2021/0104 (CSRD), to ensure that the business model and strategy of the company are aligned with the objectives of the transition to a sustainable economy and with the limiting of global warming to 1.5 °C, as well as the objective of achieving climate neutrality by 2050 as established in Regulation (EU) 2021/1119 as regards its operations in the Union, including its 2050 climate neutrality target and the 2030 climate target. Company directors will be responsible for overseeing these climate obligations, and companies with more than 1,000 employees on average will be required to have a relevant and effective policy in place to ensure that a part of the directors’ variable remuneration is linked to the company’s transition plan. A further requirement is to have “effective notification and non-judicial grievance mechanisms at operational level”, that can be used by persons and organisations – including trade unions and other workers’ representatives representing individuals working in the value chain concerned – to raise grievances and notify them to companies, and to request remediation. The text has been criticised by BusinessEurope, whose view is that Parliament has failed to deliver “workable” rules (see press release). Prior to the vote, on 25 May, BusinessEurope convened a meeting of 35 European employers’ organisations, seeking to change Parliament’s position (see joint business statement). As far as the European Trade Union Confederation (ETUC) is concerned, the text “represents an important step forward in putting people and planet before the profits at all costs, and making businesses accountable”. Bear in mind that in its response to the consultation on revision of the European Works Councils Directive (see IR Notes 209), the ETUC emphasised the need to link due diligence policy to the revised future directive, with a view to granting the EWC a role in this area.

> See also: European Parliament briefing: “Corporate sustainability due diligence – How to integrate human rights and environmental concerns in value chains

Progress made by the Employment and Social Affairs Council : Meeting on 12 June, representatives of the Twenty-Seven adopted several positions on social issues, meaning that negotiations with the European Parliament can now commence: 1/ A position on the platform workers directive, adopted by 22 countries (with 5 abstentions), which introduces the presumption of employment (Article 4.1) if the employment relationship between a taxi driver or a food delivery driver and a platform meets three of the seven criteria allowing this relationship to be reclassified as that of employer-employee, under labour law (and not necessarily social security law). The text also provides for oversight of the practice of management by algorithm (see Council press release, the European Trade Union Confederation’s negative reaction and interview with Leïla Chaibi, opposite). 2/ A position on the directive on protection against exposure to lead and diisocyanates, submitted by the Commission on 13 February (see IR Notes 202), which will allow negotiations to start with Parliament, once the latter has finalised its position (the text is currently with the Committee on Employment and Social Affairs) (see Council press release). 3/ A position on a directive on standards for equality bodies, which aims to strengthen their role in combatting discrimination. The Twenty-Seven have also adopted a recommendation in favour of strengthening social dialogue (see IR Notes 201).

> See also: Council press release covering all of the discussions and the texts adopted.

Gender-based violence and harassment : In a resolution on sexual harassment in the EU adopted on 1 June, MEPs emphasise that “sexual harassment and violence are not commonly defined and criminalised in the EU, thus creating fragmented rights and protection for victims across Member States”. To remedy this situation, they reiterate their call for the Commission to submit a “proposal for a Council decision identifying gender-based violence as a new area of crime” (see Harassment and violence at work). They also call on the EU and all Member States to swiftly ratify the Istanbul Convention on preventing and combating violence against women. The resolution stresses that “harassment experienced at work constitutes a violation of human rights and can have serious consequences for survivors’ physical and psychological health, making them feel uncomfortable and insecure at work, and in many cases preventing them from doing their job”. It also highlights the importance of “addressing cyber violence in the workplace, as it has an enormous impact on the mental health of victims”. The Commission and Member States are therefore invited to “ensure that laws against workplace sexual harassment are updated to protect women working remotely against online abuse”. Member States will also have to “ensure effective reporting mechanisms and procedures in cases of violence and harassment in the world of work”, and “establish necessary measures protecting against the victimisation of or retaliation against complainants, victims, witnesses and whistleblowers.” MEPs also call on Member States to ensure that “all workers, at the start of their contract, receive information on anti-harassment procedures and policies in place, the workers’ rights in instances of harassment and violence against them in the workplace and accessing external counselling services”. Also noteworthy is the suggestion to create “safe spaces in the workplace, both online and offline, in particular single-gender safe spaces, where women in all their intersectional diversity, may go in order to exchange information, build community networks and receive peer-support, with the goal of empowering and uplifting all women”.

Strengthening social dialogue : On 1 June, by a large majority, the European Parliament passed a resolution in response to the European Commission’s communication dated 25 January 2023 seeking to strengthen social dialogue in the EU (see IR Notes 201). MEPs support sectoral-level European social partners (see joint letter of 3 May, sent to Ursula von der Leyen), stating that they want the Commission to maintain “its logistical support for sectoral social dialogue committees” and increase “its financial, legal and technical support”. They stress that “further efforts are needed to provide sustainable solutions for organising and financing sectoral social dialogue committees”. The text contains several passages that employers’ organisations are unhappy with, such as this one: [the European Parliament] “warns that the decrease in collective bargaining coverage is also due to anti-union practices, weak representation within employers’ organisations and the difficulties caused when employers refuse to participate in collective bargaining (…)”. The resolution is instructive regarding Parliament’s position, and is very favourable to the notions of social dialogue and strengthening collective bargaining (see Strengthening collective bargaining), in all current and future cases.

> See also: Opinion of the European Economic and Social Committee, “Strengthening social dialogue”, adopted on 27 April.

Bringing an end to fast fashion : MEPs have adopted, by an overwhelming majority, recommendations for the EU Strategy for Sustainable and Circular Textiles (see press release), in which they emphasise “the urgency of ensuring that textile products placed on the EU market are long-lived, reusable, repairable, recyclable […] and free of hazardous substances”. They call for “respect for human and social rights”, and note that labour rights in this sector suffer “a broad range of abuses, in particular affecting women and other marginalised groups, including poverty wages, wage theft, undue limitation of the right to join or form a union of an individual’s choosing, child labour, forced labour, exposure to unsafe working conditions and sexual harassment” (see press release). The vote in Parliament has been welcomed by NGOs and IndustriAll Europe (see press release).

Temporary agency workers’ pay : On 31 May, the Federal Employment Court delivered its judgment in a case involving a temporary worker who challenged the fact that she was less well paid than the user undertaking’s permanent employees, who were carrying out identical work in order preparation. The Federal Employment Court referred this case to the European Court of Justice. The European judges concluded that the collective agreement covering temporary work, which allows temporary agency workers to be paid less than employees of the user undertaking, must provide for countervailing benefits in order to comply with “the overall protection” to be afforded to them (see ECJ, 15 December 2022, Case  C-311/21, CM v. TimePartner, and IR Notes 199). The Federal Court follows the line of argument adopted by the Court of Justice, emphasising that the unequal treatment linked to lower pay was counterbalanced in particular by the fact that temporary workers continued to be paid between two missions, when they were not working (see press release). The German trade union confederation DGB expressed its disappointment that the Federal Court’s ruling did not find in favour of the claimant (see press release).

Domestic violence : In the wake of the 2023 Work-Life Balance Act, which introduced a legal entitlement to five days’ leave for victims of domestic violence (see IR Notes 206), the government has just signed a contract with the NGO Women’s Aid, aimed at developing tools for employers supporting employees who are experiencing domestic violence. Furthermore, in the face of criticism emanating from various quarters – including Women’s Aid and the trade unions – that the law does not require the employee to be kept on full pay during this leave, Roderic O’Gorman, the Minister responsible for this area, has announced that regulations “setting out the level of pay for domestic violence leave” will be published in the coming months, so the awaited clarification should hopefully arrive soon (see press release).

A four-day week : On 5 June, the government embarked on phase three of the four-day week pilot project, which began in November 2022. This third phase involves 1,000 employees from 39 companies in the social, industrial and retail sectors. The outcome will be evaluated using surveys (before, during and after the experimental period). The government will take stock of the situation in February 2024. Participating companies have agreed to take part in an experiment lasting at least six months, without receiving any State aid. The State will provide only technical and administrative support to accompany the experiment (see press release).

Menopause and menstruation : The British Standards Institution (BSI) has published a guide entitled “Menstruation, menstrual health and menopause in the workplace” aimed at companies planning to put in place prevention policies, mainly regarding attitudes to women in the workplace. After setting out a detailed description of how these symptoms can affect working life, which is intended to combat the received wisdom, the guide offers a toolkit for HR and line managers, and guidance on holding conversations to facilitate exchanges between people suffering from these symptoms and their manager or a designated trusted person within the company (see press release).

A four-day week : A four-day week: Members of the Axa European Works Council (CEG Axa) have shared their findings regarding four-day week experiments conducted in their countries and proposals put forward by their trade unions at national level. At the request of its Spanish and French representatives, the CEG Axa secretariat decided to set up a committee to work on projects in progress in the various countries, in order to monitor the progress made on this issue.

> See also: The European Trade Union Confederation has published a guide to Access to justice for European Works Councils and a guide to Coordination and interaction in European Works Councils.

Psychosocial risks: The European Parliament has published a study on minimum safety and healthcare requirements for protecting mental health in the workplace, in preparation for the debates regarding a European initiative. A number of stakeholders, including the European trade union movement and the European Parliament (in a resolution dated 10 March 2022, see IR Notes no. 182), are calling for an initiative to be taken in this area. The study, which is aimed at political decision‑makers, will also be of interest to actors engaged in social dialogue, including European Works Councils that are tackling this subject (see Psychosocial risks). The document presents an overview of the scale of the problem of poor mental health and psychosocial risks in the workplace, and of trends in this area; it identifies vulnerable groups of workers and/or sectors that are particularly exposed; and it provides an overview of the legislation in Member States and identifies examples of good practice. The authors advocate a directive that will specifically and explicitly make reference to psychosocial risks, while setting minimum standards, such as an obligation for employers to perform internal evaluations of psychosocial risks in the workplace, in collaboration with their employees or the latter’s representatives.

> See also: Opinion of the European Economic and Social Committee on mental health and precarious employment (see IR Notes 208).