IR Notes

Two and a half years after the European Commission put forward its proposal for a regulation laying down harmonised rules on artificial intelligence (see IR Notes 163), on 8 December, representatives of the Twenty-Seven, in conjunction with the Spanish Presidency of the EU, the European Parliament and the Commission, reached agreement on this text, which will now have to be formally adopted by the Council and Parliament, before it is published (see Artificial intelligence). Everyone will therefore have to wait a few more weeks or even months before a consolidated text is published. “This is a historic day” proclaimed Thierry Breton, European Commissioner for Internal Market: “the EU is the first region of the world to legislate on the use of AI, with a draft text whose adoption was disrupted by the sudden emergence of generative AI.” The text maintains the risk‑based approach, which involves identifying high-risk AI systems, whose use requires specific oversight, while the most dangerous forms of AI are simply banned. The regulation lists the following types of AI as “high-risk”: AI used for recruitment and selection purposes, for determining access to training or making decisions on promotion and termination in work-related contractual relationships, for task allocation and for monitoring and evaluation of employee performance and behaviour. The Commission can amend this list by means of delegated acts. The fact that an AI system features in this classification gives rise to obligations, both for AI designers (“suppliers”) and for “users” of AI. However, workers will enjoy greater protection from the existing legislation, which requires employers to inform and consult employee representatives when a new technology is introduced, or requires risk analyses to be performed regarding health and safety aspects, and for situations involving the processing of personal data. “The risk-based approach provides some protection but given the impact of AI on millions of workers, what we need is a dedicated directive on AI in the workplace”, says Aida Ponce Del Castillo, a researcher at the ETUI (see A question for…). Today’s adoption of the proposal for a Platform Work Directive (see press release) by Parliament, the Council and the Commission, also argues in favour of expanding the protection provided against algorithmic management to include all workers (see Algorithmic management).

This week, on 13 December, the European Council and Parliament reached agreement on the proposal for a directive on the working conditions of platform workers (see press release). The European Commission is also due to put forward its proposal for revision of the European Works Council Directive, on 16 January next year.

Exposure to asbestos : Directive 2023/2668 of 22 November 2023 amending Directive 2009/148/EC on the protection of workers from the risks related to exposure to asbestos at work was published in the OJEU of 30 November (see IR Notes 212). The directive must be adopted into domestic law no later than 21 December 2025.

“Net-zero” industry : On 7 December, the Council adopted its position (General approach) on the “net-zero” industry regulation, which aims to speed up the industrial roll-out of technologies supporting the transition to climate neutrality. It calls for European industries to produce at least 40% of the annual deployment needs for the corresponding technologies necessary to achieve the Union’s 2030 climate and energy targets (Article 9a). As this target involves a major training and reskilling effort, the regulation provides for the establishment of “European Net-Zero Industry Academies” to “develop education and training programmes, content and materials, as well as the credentials showing that these have been used, to upskill and reskill people of all working ages required for key net-zero technology value chains” (see press release).

Bus and coach drivers’ working hours : On 4 December, the Council adopted its position (see press release) on the proposal for revision of Regulation no. 561/2006, presented by the European Commission on 24 May 2023, on relaxation of the rules governing bus and coach drivers’ minimum daily breaks and rest periods, which are currently subject to the same rules as lorry drivers. The text is supported by the employers (see IRU press release), but has been criticised by the European trade union federation ETF (see press release).

Green negotiations : At the latest Employment and Social Affairs Council meeting, held on 27 November, Ministers of Employment exchanged views on a discussion guidance note of the Spanish Presidency of the EU on green collective bargaining. Two questions were on the agenda: 1/ How can collective bargaining support the fight against climate change, increase environmental sustainability and accompany a fair transition towards climate neutrality? 2/ While respecting the autonomy of the social partners, what measures could be taken by the Union, Member States and social partners themselves to promote green collective bargaining? The note emphasises that green collective bargaining could include “information and consultation of workers through the appointment of representatives on green transition or their participation in specialised committees”. It also calls for better “environmental training of the negotiating parties of collective agreements” (see press release).

Democracy at work : At the latest Employment and Social Affairs Council meeting, held on 27 November, for the first time, Ministers of Employment adopted conclusions relating to strengthening democracy at work, under the impetus of the Spanish Presidency of the EU, led by the Minister of Employment, Yolanda Diaz. The text emphasises that “from the outset, strategic decisions may benefit from the involvement of workers in corporate decision-making processes, thus mitigating the risk of future conflicts”. It calls for “effective enforcement of information and consultation rights” to accompany digitalisation processes and for “the use of artificial intelligence and algorithms in work organisation and labour relations”. The conclusions call on Member States to “share experiences and the good practices of national and European mechanisms for workers’ participation in companies’ administrative, management or supervisory bodies”. For its part, the European Commission must “reflect on the need and relevance of EU law developments regarding worker participation in companies, in particular transnational companies”, for instance by revising the legislation governing European companies, European cooperative societies and cross-border operations, so that it “does not circumvent or undermine workers’ participation rights”.

Mental health : On 30 November, European Ministers of Health adopted conclusions on mental health, which invite Member States to prevent “mental problems (including suicide, self-harm and depression) in different contexts such as (…) workplaces (…), including a mix of universal, selective and indicated preventive interventions and policy measures”. They are also invited to ensure “the effective application of existing EU and national legislation to guarantee safety and health at work and promoting mental health, prevention and managing psychosocial risks and strengthening mental health resources in the workplace” (see press release).

Revision of the European Works Council directive : On 30 November, the European employers’ organisation BusinessEurope published its key messages to the European Commission, which is due to put forward an initiative on European Works Councils at the start of next year. This document sets out the main points of a position adopted the same day, which is consistent with the viewpoints already expressed during the phases of consultation with social partners.

Religious neutrality : In a case concerning the Commune d’Ans in Belgium, the Court of Justice upheld religious neutrality policies in force at local authorities, which allow a municipality to ban any of its staff from wearing any visible signs which might reveal their religious beliefs, regardless of whether they are in contact with the public (see Discrimination on the grounds of religion or belief). The judgment also echoes a recent news story: a resolution passed by the municipal council of Anderlecht – a municipality within the Brussels conurbation – which approves the principle of allowing visible signs of beliefs to be worn by holders of all positions within its administration, adding that the same may also apply to “the choice of another public administration, depending on that administration’s own context and within the framework of its competences, in favour of another policy of neutrality, such as a general and undifferentiated permission for the wearing of visible signs of beliefs – philosophical or religious in particular – including in contacts with users, or a prohibition on the wearing of such signs limited to situations involving such contacts”. (CJEU, 28 November 2023, Case C-148/22, Commune d’Ans) (see press release).

• European company: On 7 December, the Advocate General of the Court of Justice delivered his opinion on the formation of a special negotiating body within the German group works council of the Japanese company Olympus for the purpose of negotiating an agreement on employee involvement, following the creation of a European company (SE) that was clearly set up for the purpose of abolishing the participation of one third of employee representatives at this German subsidiary. The Court of Justice is invited to rule that the arrangements put in place by Olympus comply with EU law, unless it can demonstrate that the SE has been misused.

Telework and the right to disconnect : Following the breakdown of negotiations on telework and the right to disconnect, the employers’ organisation SGI Europe has declared that “this negative outcome must serve as a lesson for us all” (see Newsflash of 1 December). “We now need a genuine commitment from all parties concerned – employers, trade unions and institutions – so that we can reinvigorate social dialogue”, explains Valeria Ronzitti, Secretary General of SGI Europe. The organisation calls on the Commission “to take inspiration from the compromises which were reached amongst social partners”, based on the Framework Agreement reached by negotiators for their final meeting on 9 November, which SGI Europe was prepared to put to its members for a vote.

• Steel industry : In a joint statement issued on 27 November, European steel social partners commit to working towards a competitive transition of the European steel sector (see press releases issued by IndustriAll Europe and Eurofer).

• Railway sector : European social partners in the railway sector have conducted a review of the application of their autonomous agreement designed to promote employment of women in the rail industry, which was signed on 5 November 2021 (see IR Notes 174). According to the employers’ organisation CER, 91.5% of workers employed by CER member companies are now covered by a comprehensive gender equality policy, which is ensured by this agreement (see press release).

Climate bureau : This summer, the Austrian trade union confederation ÖGB set up an internal “climate bureau“, which in future will coordinate the ÖGB’s energy and climate policy-related activities and develop instruments to support employees and works councils in the transformation process (see press release).

Cost of work-related stress : The National Centre for Research into the Working Environment has published the results of a survey of more than 52,000 Danish employees, concerning their exposure to stress. The study, which estimates the cost of stress at 16.4 billion crowns (2.1 billion euros) per year and 61.9 million lost working hours (equivalent to 37,335 employees withdrawing from the labour market), emphasises that “prolonged stress is a dangerous companion, who is becoming familiar to increasing numbers of people” (see press release).

> See also: press release issued by the trade union confederation FH which, given the amounts of money involved here, calls for investment in prevention.

Working conditions of migrants employed in the building industry : Aalborg University has published a research report, commissioned by the 3F trade union, on the working environment of migrant workers in the construction sector. The report, which includes more than 80 interviews and is 350 pages long, is a benchmark for research in this area, at both a Danish and a European level. According to 3F, migrant workers in this sector are living in “appalling conditions. They are systematically doing the most dangerous, the most exhausting and the dirtiest jobs. Accidents at work are seldom reported, wages are not paid and there are stories of threats of violence and human trafficking” (see press release).

More women on company boards : On 5 December, the Council of Ministers approved the framework bill on equal representation and gender balance, which transposes Directive 2022/2381 on improving the gender balance among directors of listed companies. At the present time, women account for 29.3% of company directors, and this figure falls to just 19.6% in the case of senior executives. The bill requires women to account for no less than 40% of the total number of board members (see press release).

Right to strike : The government has announced the adoption of a draft law on “social peace” in February 2024, regulating the right to strike. Having already undertaken a public consultation, the government now plans to conduct a number of other consultations before that date (see press release). The three trade unions SAK, Akava and STTK condemn the plan and the absence of sufficient dialogue with the unions (see press release).

Three cross-industry negotiations : On 21 November, the government sent the social partners a policy paper “on the New Deal for Working Life”, inviting them to commence negotiations on three subjects: the universal working time account, employment of workers aged over 50 (with a view to increasing the employment rate of this demographic) and career paths (for adapting to the green, digital and demographic transitions). The Ministry of Employment says that the aim is for cross-industry agreements to be reached by 15 March 2024. The universal working time account will enable each member of the workforce to benefit, throughout their career, from a mechanism allowing them to accrue leave or rest time, and to subsequently use this time to help manage their career and private life.

Due diligence plan : For the first time, a company has been found guilty of breaching French law on due diligence, which requires groups of a certain size to prepare a due diligence plan. One of the orders contained in the ruling handed down to La Poste by the Paris court is an instruction to “draw up procedures for evaluating subcontractors, based on the specific risks identified by risk-mapping”, in order to take into account the working conditions of delivery workers employed by its subcontractors, who are often undocumented persons, according to the Sud-PTT trade union, which brought the case (see press release).

Transnational restructuring : On 18 September, the National Labour Court of Madrid handed down its ruling on the complaint filed by the EWC of the airlines group IAG against IAG management, for failing to inform and consult the European Works Council over its proposal to dismiss 12,000 British Airways employees and 500 Aer Lingus employees in 2020, in response to the drop in business linked to Covid-19. The court holds that failing to inform the European Works Council prevented the EWC from receiving the information it needed from IAG in order to evaluate the employment measures adopted and their possible impact on the group’s entire workforce. However, the court also takes the view that the criteria required for opening a consultation procedure were not met, in light of the provisions of the European Works Council agreement. The text states that a matter is transnational in nature when it affects more than 25 workers (in more than one EU country) or more than 50% of workers in a single country. Jonathan Hayward, the international delegate of the British trade union Unite the Union, says: “The European Works Council has appealed the decision, so that it can also be granted the right to be consulted”, (see European Trade Union Confederation press release).

Corporate Social Responsibility: : On 4 December, the French group Safran (83,000 employees), which supplies parts to the aircraft industry, and the IndustriAll Global Union federation renewed their corporate social responsibility global framework agreement. Changes in relation to the previous agreement include an article on climate change, plus a number of indicators, some of which will be specifically developed in order to monitor application of the agreement, such as the percentage of the workforce with access to employee representation bodies on their site or at their subsidiary (see press releases issued by IndustriAll Global Union and Safran.