IR Notes

In its document accompanying the second-phase consultation of social partners on a possible revision of the European Works Council Directive, published on 26 July, the European Commission sketches out the likely content of the proposal for a directive that it plans to put forward by the end of the year (see press release and European Works Council). The social partners have until 4 October to reply. The document summarises the contributions received during the first consultation phase (see IR Notes 206 and IR Notes 209). The Commission says that it will made up its mind on a number of points “in light of the ongoing evidence-gathering”. However, a number of ways forward are clearly apparent in its “Avenues for EU action” (point 5.2): 1/ Phasing out “exemptions from the scope of the Directive of undertakings with pre-existing agreements”. This measure would have “to be accompanied by carefully calibrated transitional provisions to preserve the principle of autonomy of the parties and maintain functioning agreements that are already in conformity with the (revised) minimum requirements of the Directive”. 2/ Inclusion in the scope of the directive of “structurally independent undertakings that can influence one another’s operation and business decisions by virtue of contractual arrangements”, such as franchises. 3/ A “clear requirement to establish the special negotiating body and convene the first meeting within a certain timeframe could be laid down” and the negotiation period (currently set at 3 years) could be shortened. The text might clarify that central management’s obligation to bear the expenses relating to the negotiation of an agreement, also includes reasonable support and training costs. 4/ Improving the information and consultation procedure: this is about ensuring that “the applicable procedure is to remain limited to genuinely transnational matters”. The document also mentions a number of ways to ensure “effective consultation”, such as an obligation for management to provide a reasoned response to EWCs’ opinions and specifying the timeline for consultation between the European level and national procedures. An action is planned to strengthen the subsidiary requirements (more annual meetings, strengthening the select committee) so that they apply directly to councils operating without an agreement and indirectly to future councils, given that these provisions “often serve as a benchmark for such negotiations”. Agreements should set out in detail the resources to be allocated to EWCs (experts, training, legal advice and litigation); allow virtual meetings to be organised; set out more clearly the conditions under which management can impose confidentiality and withhold information, among other things by specifying how information given to EWC members can be passed on to employee representatives at local level. 5/ Effective application of the directive by means of sanctions and access to justice, without going as far as using the mechanism put in place in the GDPR regulation (a fine calculated as a percentage of the group’s global turnover), as proposed by the European Parliament. To implement these changes, the Commission would rely on a binding directive supplemented by a number of non-binding measures, such as a recommendation to Member States and/or interpretative guidelines in the form of a communication.

European Globalisation Adjustment Fund: : On 11 August, the European Commission published the report on the activities of the European Globalisation Adjustment Fund (EGF) for the period 2021-2022 (see European Globalisation Adjustment Fund). This report states that the EGF spent a total of 51.8 million euros helping 13,000 workers who had been made redundant, to retrain and find another job. Nine countries submitted applications for assistance, mainly in the air transport and car manufacturing sectors. Since 2007, in total, the EGF has spent 688 million euros on 177 cases of collective redundancies, and in the process, has helped nearly 168,000 redundant workers in 20 Member States. France is the fund’s largest consumer (123 million euros since 2007), with the largest number of beneficiaries (21,687 workers) (see the report’s Appendix).

Collective redundancies : On 13 July, the EU Court of Justice specified that an employer’s failure to submit information to the public authorities regarding a reorganisation, cannot be invoked as grounds for claiming that notice of termination of an employment contract is not valid if issued within the framework of a collective redundancy (see Collective redundancy). The Court states that “the employer’s obligation to forward to the competent public authority a copy of, at least, the elements of the written communication […] is not intended to confer individual protection on the workers affected by collective redundancies” (see CJEU, 13 July 2023, Case C- 134/22, G GmbH and press release).

Audiovisual : The social partners on the audiovisual sector’s EU social dialogue committee  have added a new chapter, devoted to the elimination of workplace bullying, harassment and sexual harassment, to their Framework of Actions on Gender Equality published in 2011.

> Recently published on line on IR Share: A multisectoral action plan in the field of public services and telecoms on the role of social partners in preventing third-party violence and harassment at work.

An age limit of 70 : The Federal Court of Justice has ruled that the upper age limit for practising notaries, which is fixed at 70 by law, is compatible with EU law. This state of affairs had been challenged by a notary who reached the age of 70. The judges ruled that this age limit is justified, as it aims to facilitate the process of generational change and to rejuvenate the notarial profession. If elderly notaries remain in post with no age limit, young people’s career prospects will be harmed, and they will be unable to plan a career path towards holding economically lucrative notarial offices (see press release).

UGT concerned about “ergophobia : As the summer holiday period draws to a close, the UGT trade union confederation is trying to raise awareness of “ergophobia” syndrome, or the fear of returning to work. “Post-vacation syndrome is not an illness in itself”, comments the UGT, “but rather a process of adaptation to work life after vacation, which can last approximately 15 days and is characterized by both psychological and physical symptoms, such as: tiredness, boredom, sadness, palpitations or difficulty sleeping”. It occurs mainly in “people who do not feel comfortable in their workplace”. The UGT believes that during this period, employers should exercise greater vigilance in terms of preventing psychosocial risks (see press release).

Protection for parents of a seriously ill child: : A law aimed at strengthening the protection of families of children suffering from an illness or disability or who have been the victim of a particularly serious accident was published on 20 July. This law, which has been in force since 21 July, introduces protection for employees against termination of their employment contract throughout the period of their childcare leave, which is provided for by law to enable them to care for a seriously ill child. It also makes it easier for employees who are caring for a family member to switch to teleworking.

Minimum wage for delivery workers : Following the agreement signed on 20 April between the organisations representing self-employed workers and platforms in the sector, self-employed delivery workers using a two- or three-wheeled vehicle, motorised or otherwise, and working through a digital platform, will have to be covered by a minimum income guarantee of €11.75 per hour worked. The agreement was approved on 30 August by the Autorité des relations sociales des plateformes d’emploi (ARPE), which is the public authority responsible for labour relations in the digital platform sector covering deliveries and private passenger cars with driver. The minimum wage will enter into force on 30 November. It follows on from a first agreement signed for private passenger cars with driver, which fixed a minimum income of 7.65 euros per journey (see Ministry of Employment press release).

Law on flexible working : Amendments to the Flexible Working Act, enacted on 20 July (see press release), will enter into force in 2024. Their main aims are to: 1/ abolish the requirement for the employee to explain how their request to change their working hours will affect the employer; 2/ increase the number of flexible working requests permitted over the same 12-month period from one, as at present, to two; 3/ oblige the employer to respond to such requests within two months instead of three; 4/ oblige the employer to discuss the matter with the employee before rejecting it. Such a request can only be submitted after the employee has completed six months’ service, but the government has promised to bring forward a regulation allowing an employee to submit a request from day one of a new job. This is one of the main demands made by the unions and campaigners (see TUC press release). These changes are still limited in scope and are a long way off representing a genuine right to flexible working, as the employer can still reject a request on the basis of eight criteria that allow them a wide margin of discretion. ACAS has also embarked on a consultation with a view to updating its 2014 Code of Practice on handling in a reasonable manner requests to work flexibly, whose content may be taken into account by the courts in the event of a dispute.

Law on minimum service levels : On 20 July, a new law entered into force, which allows the government to impose a minimum service level in the event of a strike in a number of public services, such as healthcare, fire and emergency services, education and public transport. As a result, regulations specific to each of these sectors can now impose minimum service requirements where trade unions call for strike action. Until now, in contrast to several European countries, there has been no obligation to provide a minimum level of service in the United Kingdom. The government might, however, refrain from introducing sector-specific regulations if voluntary agreements are reached between the employers and the trade unions to define a minimum service. Under this law, the employers would be able to serve “work notices” on unions that have warned them of impending strike action. In this “notice”, employers would have to name the people required to work on each strike day in order to maintain minimum service levels, and also specify the work they will be required to undertake. Once a union has received such a notice, it must take “reasonable steps” to ensure that none of its members who are identified in the notice takes part in the strike. A code of practice has yet to be drawn up to clarify the details of the law and, in particular, to specify what “reasonable steps” unions will have to take. The TUC has already announced its intention to oppose this law using all available options, including legal action, based among other things on the law’s potential incompatibility with Article 11 of the European Convention on Human Rights, dealing with freedom of association (see press release).

Restructuring in several countries : In a judgment dated 26 July, the Court of Appeal overturned the judgment issued on 13 December 2022 by the Employment Appeal Tribunal (EAT), which had rejected Adecco Group management’s appeal against the decision reached by the Central Arbitration Committee (CAC) in favour of the Adecco European Works Council (AEWC) (see IR Notes 149). The EAT had confirmed at that time that redundancies taking place in more than one country are a “transnational” matter, creating an obligation for central management to call an extraordinary meeting of the AEWC. The EAT holds that it is not necessary for decisions relating to redundancies declared in more than one country to be based on one ground only. Redundancies taking place more or less at the same time constitute a transnational matter, even if they do not share a “common rationale” (see IR Notes 198). The Court of Appeal disagrees with the CAC’s and the EAT’s reasoning. To justify the use of an information and consultation procedure, “collective redundancy proposals affecting undertakings in two countries must therefore have a common link or nexus of some kind or there must be some way in which each proposal affects or has potential effects on undertakings in each of two different countries. If that link or nexus is not present, the matter is not transnational for these purposes.” The Court holds that “a mere coincidence of timing of proposals for collective redundancies or business restructuring happening in undertakings in two countries is not enough to trigger” an extraordinary meeting of the EWC. The AEWC has decided to appeal to the Supreme Court.

Restructuring : On 20 July, three European trade union federations (EFBWW, IndustriAll and UNI Europa) sent a letter to the management of the Lecta group, condemning the announcement of plans to cease production of two-sided coated paper at its Condat plant in France (where 187 of the site’s 412 employees are at risk of losing their job) and the failure to convene the group’s European Works Council in order to conduct “a social dialogue worthy of the name on the future of each of the group’s sites in Europe” (see press release).

Abolition of a council: : On 13 June, the mining group Rio Tinto (52,000 employees) and European trade unions signed an amendment to the European Works Council agreement, providing for the EWC’s abolition on 31 December 2024. An initial amendment, concluded in March 2017, had already taken account of the downward trend in the group’s scope and the size of its workforce in France and Europe, and merged the EWC with the French group’s council, as permitted under French law. The signatories of the amendment explain that since that time, the United Kingdom’s exit from the scope of the agreement and the ongoing decline in the size of the group’s workforce in France, mean that the terms applicable to EWC workforce thresholds “are no longer met”. The signatories have nevertheless decided to extend the EWC members’ terms of office to 31 December 2024, “so that exchanges within the European perimeter can continue.” On 1 January 2025, these terms of office will therefore come to an end, and the body will disappear.

Domestic violence : On 5 June, the catering group Sodexo (422,000 employees) and the international trade union federation IUF signed a declaration of intent on domestic violence. The group promises to disseminate global directives aimed at providing a joint framework of actions to be implemented at local level; to organise awareness-raising campaigns; to set up a listening platform and a local domestic violence helpline number; and to deploy an e-learning module among 35,000 managers worldwide (see IUF press release).

Global framework agreement : On 24 August, the management of the Norwegian company Aker ASA and the IndustriAll Global Union federation renewed their global framework agreement, extending the scope of the company’s responsibility for its workers along its entire supply chain. IndustriALL’s Norwegian affiliates Fellesforbundet, NITO and Tekna are co‑signatories of the agreement. Its application is being overseen by the company’s global works council (see press release).