IR Notes

Despite the breakdown, in December of last year, of the European negotiation on telework and the right to disconnect, which should have led to the adoption of a directive applicable in all Member States (see IR Notes 219), the European Commission, the Belgian presidency of the EU and the European social partners managed to restore some optimism regarding the prospects for European social dialogue, at a summit held on 31 January at the château of Val Duchesse, near Brussels (see Val Duchesse). There, they signed a Tripartite Declaration for a Thriving European Social Dialogue, prefaced by a quotation from the late Jacques Delors: “If the European Union is to work, it will need competition to boost it, solidarity to unify it and cooperation to strengthen it” (see European Social Dialogue). This declaration represents “a renewed commitment to strengthen social dialogue at EU level” and sets out several other commitments. One of them relates to the economic challenges facing the EU, and seeks to address labour and skills shortages by drawing up an “Action Plan” by spring 2024. The aim is to “bring more people to the labour market, improve working conditions, facilitate the recognition of qualifications and integrate workers coming from abroad, through social dialogue and collective bargaining”. The other commitments attempt to defuse the crisis surrounding the EPSU case (see IR Notes 129), when the Commission refused to submit a European sectoral agreement to the Council for approval, with a view to converting it into a directive (see EPSU case). This review of the appropriateness of European agreements, exercised in the name of the Commission’s right of initiative, as recognised by the Treaty, was upheld by the EU Court of Justice, thereby increasing tensions between the Commission and the social partners. The declaration points out that “the role that the Treaty awards to social partners differentiates social dialogue from other forms of consultation, such as the dialogue with civil society”. In more concrete terms, the Commission has decided to appoint “a dedicated European Social Dialogue Envoy” to “support and coordinate the implementation of the Commission Communication on strengthening social dialogue in the EU” (see IR Notes 201), building on “the Commission’s network of social dialogue coordinators”, as recommended by the Nahles report (see IR Notes 157). A mechanism will be put in place in cases “where social partners jointly identify that social dialogue is not being respected and appropriately promoted at EU level”. Similarly, if social partners “jointly identify concerns at national level, the Envoy will channel these joint concerns to the EU institutions”. The Envoy will contribute to the implementation of the commitments taken to support and promote social dialogue, including in the quadripartite statement “A New Start for Social Dialogue“ (see IR Notes 58). Lastly, the signatories will initiate a process leading to the signing of a “Pact for European Social Dialogue” by the beginning of 2025. This process will take the form of a series of tripartite and bipartite meetings, designed to “identify new proposals to reinforce European Social Dialogue”. These will cover financial aspects, which have been an area of tension ever since the Commission expressed a desire to end direct funding of European social partners, by inviting them to draw up project funding applications, as part of EU funding arrangements. These meetings will also have to produce an “agreed bipartite approach on the negotiation processes and the implementation and promotion of European autonomous agreements and agreements implemented via European Directive/Council decision”, so that everyone can put the EPSU case behind them. It remains to be seen whether the stakeholders concerned will finally decide to make use of the powers, granted to them under the Treaty, to be co-legislators on employment-related matters, by coming up with standards, even without the threat of a legislative intervention by the Commission.

> Social partners’ reaction: The European Trade Union Confederation has expressed its delight at this declaration, which contains “measures designed to end the gridlock in European social dialogue”, resulting from the failure of telework negotiations (see press release). BusinessEurope warns that “autonomous bilateral social dialogue can only thrive if employers and workers have the necessary space to engage with each other.” (see press release), in other words without the threat of a legislative intervention by the Commission. Ceemet, which represents the employers of the metal, engineering and technology-based industries, says it is “highly satisfied with the outcomes of the Val Duchesse Summit” (see press release).

> Further information: Note from Notre Europe – Jacques Delors Institute – Social Europe: social dialogue at the heart of the debate, January 2024

Working conditions in the passenger transport sector : On 29 January, the Council presidency and the European Parliament’s negotiators reached a provisional agreement on the proposal for a revision of Regulation (EC) No. 561/2006 on driving times and rest periods in the occasional passenger transport sector. This law aims to introduce derogations covering breaks and rest periods taken by drivers engaged in occasional road passenger transport, for example those driving tourist buses (see Council press release). The necessary technical work is continuing, so that the law can be definitively passed by the Council and Parliament.

• Due diligence: Following the agreement reached by the trilogue, negotiators from the European Parliament and Council have finalised the proposal for a Directive on Corporate Sustainability Due Diligence. The document should enable a consolidated text to be presented, on 13 February, at Parliament’s Legal Affairs Committee, with a view to being passed at the plenary session in April. Once it has been passed by the Council, the new directive can be published.

Revision of the European Works Council directive : Reactions to publication, on 24 January, of the proposal for a revision of the European Works Council directive (see IR Notes 222), have been extremely positive on the trade union side. IndustriAll Europe says that it wants to keep battling to improve the text as it progresses through Parliament, in a number of ways: by introducing the possibility of a court injunction suspending the employer’s decision if the EWC has not been properly consulted; by providing “simple and rapid access to justice for EWCs in each Member State”; via recourse to a trade union expert, not only at the special negotiating body stage but also to support EWCs once they are operating; and by broadening the EWC’s powers to include “projects planned in one country that affect another” (see press release), which is explicitly provided for by the directive on worker participation in the European company. The European Trade Union Confederation (ETUC) is calling for “penalties strong enough to stop companies violating these rights [to be informed and consulted]”, and for the directive to be “extended to franchises to ensure that companies like McDonalds have to be covered by an EWC, and [that] at least one EWC advisor is a trade union representative” (see ETUC and EPSU press releases). The employers, for their part, are not inclined to give in, and BusinessEurope will continue to insist on various points: 1/ it does not accept that the future directive should apply to agreements signed before 1996 or between 2009 and 2011. Its view is that there is a risk this “will damage many well-functioning European Works Councils” and it calls for “the renewal procedures in these agreements, allowing for mutually beneficial adaptations” to be respected; 2/ it rejects the proposed extension of the definition of transnationality to include cases that only involve one Member State; 3/ in terms of deciding what is confidential information, it is against the proposal to allow Member States to impose prior administrative or judicial authorisation of non-disclosure by companies, as this “would harm business competitiveness and delay companies’ decision-making” (see press release). The chemical industry employers’ organisation (ECEG) is also demanding that the revision should “at least safeguard the existing status of established European bodies, and allow employers to rely on their continuance, as originally intended in the Directive” (see press release). Some national employers’ associations too, are expressing alarm, such as the BDA in Germany, which believes that “the revision that has just been proposed is superfluous, shows insufficient respect for the existing bodies, and will merely create disruption within companies”. It explains that transforming the European Works Council “into a co-decision-making body based on the German model does not reflect the realities of multinational companies and would not be accepted throughout Europe” (see press release).

> See also: European Parliament, Briefing, Revision of Directive 2009/38/EC on European works councils

Psychosocial risks : At the recent high-level conference on mental health in relation to work, organised by the Belgian presidency of the EU on 30 and 31 January, the speakers addressed the role of regulation and particularly the role that a future European directive specific to psychosocial risks could play. The discussions revealed that specific pieces of legislation incorporating organisational measures designed to combat work-related stress have a greater impact in terms of protecting workers’ mental health. The European Commission has announced that it will soon be launching a peer review of existing national legislation in this area, with a view to drawing up “a strengthened European legislative framework guaranteeing a level playing field throughout the European Union”. The Belgian presidency will be inviting the various EU Member States to Brussels in order to start work on this initiative (see conference Conclusions).

Asbestos : In a letter dated 25 January, the European Trade Union Confederation and the European trade-union federations IndustriAll Europe, EFBWW, EPSU and CSEE-ETUCE, call on the European Commission to keep its promise to put forward a proposal for a directive on the screening, registration and monitoring of asbestos in the construction industry, with a view to improving workers’ safety, especially in light of the forthcoming and much-needed energy-saving Renovation Wave initiative. The text was on the Commission College’s agenda in June 2023, but has since disappeared from the Commission’s agenda (see ETUC press release).

• Encadrement des stages : le 29 janvier, la Confédération européenne des syndicats a adressé un courrier, à la Commission européenne, s’inquiétant du retard pris dans la présentation d’une initiative visant à encadrer les stages et notamment de faire en sorte qu’ils soient rémunérés. La Commission a effectué une déclaration à ce sujet, le 6 février, devant le Parlement européen.

Permanent disability : The Court of Justice has issued a ruling on a Spanish case concerning a household refuse collection vehicle driver who suffered an accident at work (CJEU, 18 January 2024, Ca Na Negreta SA, not available in English). As he was unable to carry on doing this job, his employer redeployed him to a driving job in the mobile collection point sector. This work was less physically demanding, involved less driving time and was compatible with his physical limitations. At the same time, the national social security institute refused to recognise that the employee in question was now permanently unable to work. However, after he lodged an appeal, his permanent disabled status was finally acknowledged. The employer had exercised its right under Spanish law to terminate the driver’s contract of employment, because once it has been determined that an employee is permanently and totally unable to carry on their normal occupation, the employer is automatically entitled to terminate their contract of employment, without having to comply with any formalities and without such termination being conditional on any prior obligations linked to “reasonable accommodation”, in contrast to the provisions contained in EU Directive 2000/78. The CJEU therefore held that Spanish law did not comply with EU law, and that prior to any termination, the employer must either “first make or maintain reasonable accommodation allowing this worker to hold on to their job,” or “demonstrate, if applicable, that such accommodation would give rise to a disproportionate burden”.

A common front against the far right : Faced with the rise of the far-right AFD party, the social partners have issued a joint message, reminding all Germans that they “have made a decisive contribution to the reconstruction” of Germany “after the horrors of the National Socialist (Nazi) regime, and to the development of a social and economic model that maintains a fair balance in society”. They “have never drawn any distinctions regarding workers’ origins or nationality. This has helped to guarantee our country’s democracy and prosperity over a period of many decades. The German economy, Germany’s trade unions and its works councils are all aware of the enormous importance that social peace represents for Germany”. Denouncing “right-wing extremists’ current plans to repatriate immigrants to their country of origin”, the social partners emphasise that “our companies are a reflection of society. The people who work in our country, and with us, are our colleagues, neighbours and friends” (see joint declaration issued by DGB-BDA).

• Holiday pay : Since 1 January, a worker who falls ill while on annual leave has been entitled to hold on to their holiday entitlement and take the days in question at a later date. (see press releases issued by CSC and FGTB). In this case, they must immediately inform their employer of the address they are staying at, submit a medical certificate by the normal workplace deadline applicable and tell their employer that they wish to postpone their remaining days of leave and take them after their current period of absence comes to an end (see Ministry of Employment press release).

• Delivery workers’ employment status : For the second time, Amazon has lost a court case brought by the country’s social security authority, and as a result, 3,688 delivery workers who were previously regarded by the multinational as self-employed workers will now be reclassified as employees. The group has decided to appeal (see UGT press release and article in El Periódico).

Inflation : Even though European Works Councils have no powers in the area of wage policy, the impact of inflation on European employees is prompting them to address this issue. At its plenary session in December 2023, the BNP Paribas European Works Council (“CEG”) observed a minute’s silence to highlight workers’ lost purchasing power, while each member held up a placard indicating the rate of inflation in their respective countries (see photo). The press release issued by the BNP Paribas CEG select committee emphasises that “although some efforts have been made in some countries and business lines, the CEG regrets the lack of collective and significant measures taken”.

International social dialogue : During Saint-Gobain’s global union network meeting on 19 and 20 December 2023, which was attended by 20 union representatives from 9 countries, union delegates had the chance to engage in a debate with Régis Blugeon, social affairs director at Saint-Gobain. Among other things, they discussed possibilities for expanding social dialogue with the group internationally (see IndustriAll press release).