IR Notes

We shall have to wait for the future European Commission to be appointed, and for Parliament to vote to approve this, before Ursula von der Leyen (photo) can prepare her new work programme. Nevertheless, after being re-elected on 18 July this year on the basis of her “Political guidelines for the next European Commission 2024−2029”, she will have to adhere fairly closely to the content set out in this policy document. Its social chapter represents continuity with her previous term of office, without introducing any flagship initiatives. The only explicit announcement of a binding law is the proposal “to introduce a right to disconnect”, which presupposes the adoption of a directive. New rules can also be expected, which are aimed at “increasing participation in the labour market, especially by women and young people” and “supporting young parents for a healthy work-life balance”. Also referenced in the document are: 1/ “initiatives” that include “looking at how digitalisation is impacting the world of work, from AI management, to telework and the impact of an ‘always on’ culture on people’s mental health”. 2/ “strategies” for reducing poverty, combatting racism, promoting education and vocational training, encouraging equal treatment for LGBTQI+ persons and striving for gender equality by tackling “the scourge of femicide and violence against women [and] obstacles preventing women from progressing in their careers or their education”.  3/ “plans” to tackle the housing crisis, strengthen the Child Guarantee and implement the European Pillar of Social Rights, as “part of a renewed commitment to strengthening European social dialogue”. 4/ A “roadmap” to “ensure a just transition for all”, so that “quality jobs” can be offered. This roadmap, which will be “developed together with the social partners”, “will support fair wages, good working conditions, training and fair job transitions for workers and self-employed people, notably by increasing collective bargaining coverage”. 5/ A “pact” with EU trade unions and employers for European social dialogue, to be delivered in early 2025. Lastly, the document announces a “revision of the Public Procurement Directive”, with a view to modernising and simplifying the rules currently in force. This will enable the European trade union movement to call for stronger social clauses and for public procurement contracts to be awarded only to companies that apply collective labour agreements, which would be a useful means of exerting leverage with a view to reaching the target of 80% of employees being covered by a collective agreement, as set by the directive on fair minimum wages. These guidelines remain vague and they leave the question of means and resources – both financial and legal – to be discussed between the Council and Parliament, and to be resolved by the balance of power within a Parliament that is somewhat more conservative than its predecessor.

A new Committee on Employment and Social Affairs : Over the summer, Parliament appointed the members of its various committees, which draw up reports, in preparation for their adoption at a plenary session. The composition of the Committee on Employment and Social Affairs is now significantly different, with around 80% of its members sitting on it for the first time. It has lost a number of previous members who were close to the trade union movement, including Dutch MEP Agnes Jongerius (S&D) and Danish MEP Nikolaj Villumsen (The Left), as well as some influential personalities, such as France’s Sylvie Brunet, who supported the platform workers directive and Malta’s Alex Agius Saliba (S&D), who put forward a proposal for a directive on the right to disconnect. However, two heavyweights have remained on the committee: Gabriele Bischoff (S&D) and Dennis Radtke (EPP), the German MEPs whose work has focused in particular on the issues of democracy at work and revision of the European Works Council directive. Their presence should ensure a degree of continuity in monitoring the revision of this directive. Another very active Parliamentarian, Leila Chaibi (The Left), who championed the platform workers directive, has also been reappointed, this time as coordinator of its political group. The Luxembourg MEP Marc Angel (S&D), who is a mainstay of the trade union movement, also remains. Li Andersson (photo), the former Minister of Education within Sanna Marin’s government, and ex-leader of the Left Alliance party, has been elected as President of the Committee, and will be the bête noire of far-right MEPs. She wants the committee to take several issues forward: reform of the rules governing public procurement contracts, regulation of long subcontracting chains and the use of artificial intelligence in the workplace, as well as enhancing social dialogue and the security of working conditions.

Overtime worked by part-time workers : On 29 July, the Court of Justice ruled on a German case involving care assistants who were working part-time (CJEU, 29 July 2024, Cases C‑184/22 and C‑185/22, KfH Kuratorium für Dialyse und Nierentransplantation). This is an issue that is frequently encountered: when these carers work longer hours than those specified by their part-time employment contract, the additional hours do not qualify for the overtime supplements paid to full-time care assistants when they work longer than their contractually agreed 38.5-hour working week. The applicants also claimed that this difference in treatment between part-time workers and full-time workers constitutes indirect discrimination against female workers, given that it affects women workers more, as they are employed on a part-time basis more frequently than male employees are. The Court of Justice agrees: 1) Full-time workers and part-time workers are treated differently. The Court emphasises that setting a uniform threshold of 38.5 hours represents, for persons working as part-time care assistants, “in view of the normal working time agreed in their contracts, a greater burden in so far as at least part of the hours worked in excess of that normal working time, although remunerated, does not give rise to entitlement to a supplement”.  2) This difference in treatment is not justified by any objective reason: neither by the possible “objective of deterring employers from requiring workers to work overtime in excess of the individually agreed working hours for those workers”, nor by that of “preventing full-time workers from being treated less favourably than part-time workers”. 3) The indirect discrimination here “may be characterised by the sole fact that persons of one sex are put at a particular disadvantage compared with persons of the other sex”, whereas there is no “need for there to be, among the full-time employees, considerably more men than women”. This is the case here, as women represent 84.74% of part-time workers and 68.20% of full-time workers. Consequently, more women than men are affected by this difference in treatment.

Collective redundancies : On 11 July, the Court of Justice delivered a judgment in a Spanish case concerning the application of Directive 98/59 on collective redundancies consequent upon an employer’s retirement.  In the case in point, the employer decided to retire, and informed the company’s 54 employees that their contract of employment would be terminated in one month’s time. Under Spanish law, the procedure for consulting workers’ representatives in the event of collective redundancies does not apply in cases where these redundancies result from the employer’s retirement (if the employer is a natural person). The Court of Justice points out that collective redundancies within the meaning of this directive occur where contracts of employment are terminated without the consent of the workers concerned. As a result, it holds that Spain’s domestic law is in breach of the directive. The directive becomes applicable as soon the specified redundancy thresholds are reached. The Court points out that this scenario is not comparable with that of an employer’s death – in connection with which it handed down a previous judgment rejecting the directive’s application, because unlike an employer who has died, an employer who decides to take retirement is in a position to hold consultations aimed at preventing redundancies, limiting their number, or at the very least, mitigating their consequences.

Vaccination against Covid-19 : On 29 August, the European Court of Human Rights delivered a judgment concerning 26 healthcare professionals and social workers who were punished for refusing to be vaccinated against Covid-19. They were temporarily suspended from service without pay and assigned to alternative duties, for which they were paid 600 euros per month. In view of the wide margin of discretion afforded to States for the purpose of defining their healthcare policy, the Court held that the disputed measures were proportionate and justified in light of the legitimate aim being pursued, namely protecting the health of the population in general, including that of the applicants, and protecting the rights and freedoms of others. It also noted that the losses suffered by the applicants were an inevitable consequence of an “exceptional and unforeseeable” context, i.e. a global pandemic that was rife at the time.

Remuneration paid to works council members : In a ruling dated 10 January 2023, the Federal Court of Justice [Bundesgerichtshof] opened the way to penalising Volkswagen managers who awarded excessive levels of pay to works council members (see IR Notes 171). At that time, the Ministry of Employment set up a tripartite committee to examine the legal security of the remuneration paid to works council members. It submitted its proposals in November 2023, and they were incorporated into the bill amending the Workplace Labour Relations Act, which was definitively adopted by Parliament, by a unanimous vote. The law, which came into force on 25 July, sets out details of how, for the purpose of determining a works council member’s remuneration, to compile a group of employees comparable to the member in question, both at the time their term of office commences and also while their term is in progress. It also explains how an employer is to guarantee that the member will be afforded career progress equivalent to the progress they would have made, had they not held this office. Overall, this law has been welcomed by the trade unions, although some criticisms remain. IGBCE believes that the knowledge, qualifications and skills acquired by EWC members while they hold office continue to be overlooked (IGBCE press release).

Banking sector : On 11 July, social partners in the banking sector signed the Collective Bargaining Agreement for the Luxembourg Banking Sector for the period 2024-2026 (see joint press release issued by the social partners and detailed factsheet published by the ALEBA trade union). In addition to an exceptional bonus of 500 euros, the agreement provides for a minimum training budget in the event of outplacement (between 5,000 and 8,000 euros) for every employee who is made redundant, a 10% increase in the annual training budget (from 1.5 to 1.65% of the total wage bill), and an individual training time allocation of at least 16 hours per year.

Fundamental rights : On 26 August, the management of the Swedish garment group H&M (143,000 employees) renewed the global framework agreement it signed in 2015 with the IndustriAll Global Union federation and its Swedish affiliate IF Metall (see press release). The new agreement, which applies throughout the value chain (with more than one million employees), contains a number of significant changes compared to the previous version. Particular emphasis is placed on the application of this new agreement, which includes a budget of 100,000 dollars earmarked for communication and training actions, and the creation of a procedure for resolving any disputes regarding the agreement’s interpretation, using mediation conducted by the ILO or a third party chosen by mutual agreement between the signatories. An appendix lists all of the ILO conventions and recommendations to be complied with, including the Violence and Harassment Convention (No. 190). Two other appendices set out the role played by the governance bodies put in place at several levels and the procedures applicable for resolving any breaches of the agreement occurring at factory level.

Subcontracting : On 22 July, the French parcel delivery company Geopost (57,000 employees, a subsidiary of the La Poste group) and the Uni Global Union federation signed an amendment to the global framework agreement first signed in 2017. The amendment expands the agreement’s scope of application to include all subcontractors, self-employed workers, temporary work agencies and all employees of the group and its subsidiaries worldwide, regardless of their form of employment. “This is a huge step forward!” says the French trade union CGT-FAPT, which also emphasises management’s undertaking to restrict subcontracting to a single level. The fundamental rights guaranteed by the agreement include payment of decent wages based on the ILO’s definition, and reasonable working hours that allow employees to enjoy adequate rest periods and a work-life balance. The trade unions will also have access to the contracts placed by the company with its service providers, to help with understanding the payment structure in place (see CGT FAPT press release).

Excessive heat in the workplace : The ILO has published a study on Heat at work and its implications for safety and health. This document, which is very easy to read, provides an overview of the contributions made by research into this topic, and of legislative initiatives taken around the world, by describing in detail the regulations in force in four EU countries (Belgium, Cyprus, Spain, Greece) and putting forward solutions that can be implemented at workplace level. The data shows that while overall, Europe is the region of the world least affected so far, it also lies in second place (16.4%) among regions with the most rapidly increasing rate of heat-related occupational injuries since 2000, after the Americas (33.3%). This is linked to the fact that Europe is also the region with the most rapidly increasing workforce exposure to excessive heat (17.3%) over that same period.

Developments in working life : The European Foundation for the Improvement of Living and Working Conditions (Eurofound) has published individual country reports on the main developments in industrial relations and working conditions in the 27 EU Member States and Norway (see the “working papers” tab on the web page). These country reports are the only sources of information available for monitoring developments in these countries, in terms of social dialogue, collective bargaining, working time and initiatives regarding employment contracts, reducing the gender pay gap, health and safety, and work-life balance.

• Increased industrial unrest in the EU: Based on the abovementioned country reports, in an article on the subject of labour disputes in Europe in 2023, Eurofound points out that there has been a rise in industrial unrest. While data on industrial action are “scarce and fragmented”, the information gathered by Eurofound from its network of correspondents (including IR Share) shows that the downward trend in industrial unrest in the EU observed before the Covid-19 pandemic seems to have come to an end, at least in some countries. The main reason behind these disputes is that wages have not kept up with the rising cost of living.