IR Notes

An analysis of the amendments made to Directive 2009/38 on European Works Councils in the wake of the compromise reached on 21 May by negotiators from the Council and the European Parliament, offers a degree of visibility over the fate of the 1200 or so EWC agreements currently in force. The aim is that by 2030, all of these agreements, or virtually all of them, will be subject to the key provisions of the directive.
The text transmitted by the Council to the European Parliament’s Committee on Employment and Social Affairs was adopted by Parliament on 5 June, with 35 votes cast in favour. Nevertheless, 10 votes were cast against it and there were 3 abstentions, with a number of defections among the EPP group (Conservatives), which suggests that the vote at Parliament’s plenary session may be closer than expected. Given that the text is not due to be presented to Parliament until September, opponents of all kinds will have time to try and change MEPs’ minds, using pernicious arguments – of the kind currently in vogue in Brussels – in favour of simplification. At Council level, the text is expected to be formally adopted at the Employment and Social Affairs Council meeting on 19 and 20 June. If Parliament votes it down, a new trilogue will be set up under the Danish presidency, which starts on 1 July.
If the text is adopted as expected, the revised directive might be published in October or November this year, meaning that the deadline for its transposition by Member States would be the 4th quarter of 2027 (and 4th quarter 2028 for implementation of the directive in its entirety, due to companies being granted a one-year adaptation period beyond the deadline). So the effects are not immediate, despite the fact that all current or future renegotiations and negotiations will have to take the new text into account.
What impact will there be on current agreements? See below for our interpretation, which remains to be confirmed, once the text of the revised directive has been consolidated, translated and published.

Any so-called pre-directive agreements, i.e. those concluded before 23 September 1996, which, under the exemption granted by Directive 94/45 (Article 13) do not come within its scope, are liable to fall. Actually, the 1994 directive does not apply to approximately 350 “employee information and consultation bodies”, as they are referred to in the revised directive (Recital 19). With regard to agreements that “have been concluded and continue to operate outside the scope of Union law”, the revised directive states that maintaining this exemption can no longer be justified. As a result, employees of the companies concerned will gain the right to request the establishment of a European Works Council. To do so, they will have to follow the procedure stipulated by Directive 2009/38, i.e. sending a letter to management, signed by at least 100 employees or their representatives, from at least two Member States. Management will then have six months to convene an initial meeting of the special negotiating body set up with a view to concluding an agreement within two years (instead of the three-year period specified by the normal procedure applicable to companies that do not yet have their own EWC). Article 14b states that the initiation of negotiations does not affect the terms of the existing agreements. The European body will therefore continue to function. Beyond this time, if no agreement has been reached, companies will have to set up a EWC operating on the basis of the subsidiary requirements of the revised directive, which have been strengthened by comparison with the current version. Note that the aim of abolishing the exemption and requiring EWCs to comply with the existing law will require an initiative to be taken either by management, or by at least 100 employees or their representatives from two different Member States. If neither party plans to trigger a negotiation, the pre-directive agreement that led to the creation of the European body will continue “to be governed by the applicable national rules” and can therefore to continue to function. The opinion of employers’ organisations has been heard on this point, i.e. that once the parties are satisfied with the workings of their EWC, there can be no grounds for calling this into question.
Moreover, as the law firm Lewis Silkin points out in an article on their website, some businesses could plan to terminate their pre-directive agreement just before the revised directive comes into effect, thereby enabling them to benefit from a negotiation period of three years rather than two.

Any agreements concluded between 24 September 1996 and the publication date of the revised directive, are liable to be renegotiated if, at the date the directive comes into force (or the date on which the national transposition text enters into force), they do not comply with “one or several of the elements and requirements” of Article 6, which includes a number of new topics to be covered by the EWC agreement (e.g. format in which meetings are held, use of experts, training for committee members). If the agreement does not meet these requirements, it can be renegotiated. The initiative to do so may be taken, as with a negotiation aimed at creating a EWC, either by management or by means of a written request from more than 100 employees or their representatives from two different Member States, but also now by the EWC itself (this represents a change from the current situation). The renegotiation procedure can follow that stipulated by the adaptation or renegotiation clause provided for by the agreement. In the case of a request emanating from employees and/or their representatives, it would be logical to set up a special negotiating body. This option would make it possible to challenge dysfunctional EWCs whose members dare not call for the initiation of a renegotiation procedure.
If no agreement has been reached after (here, too) two years, the subsidiary requirements will apply. Lastly, one other important provision stipulated in Article 14a is that the signatories of the amended agreement are not exempted from the need to comply the applicable “minimum requirements” of the revised directive. This term remains undefined by the text, but in all likelihood it refers to the provisions relating to information and consultation, and the definitions of transnationality, information and consultation. In other words, even if the revision only relates to a small number of mandatory points that have to appear in a EWC agreement, the new provisions referred to above will apply.
Finally, in addition to the deadline for transposition, which is typically two years, the revised directive includes a provision that defers by one year the application of the provisions adopted by Member States, to give managements and employee representatives time to scrutinise the revised minimum requirements and to prepare for their application. In our view, renegotiation requests can therefore be submitted only after the expiry of this one-year period following the directive’s transposition date (which may vary from one country to another).

Exposure to solvents : The European Commission has published a regulation dated 2 June, amending Annex XVII of Regulation no. 1907/2006 (“REACH”), primarily concerning exposure to two dipolar aprotic solvents, DMAC and NEP, which are listed as toxic to reproduction. The new measures set strict exposure limits, both for inhalation and for skin contact (‘dermal routes’), to provide better protection for workers handling these substances on a regular basis. The restriction will come into effect in 18 months’ time, to allow users to adapt to the new requirements. A longer transition period (four years) is planned for the use of DMAC in the synthetic and artificial fibres industries.

Artificial intelligence : On 5 June, Ceemet, the organisation representing European employers in the metal, engineering and technology-based industries, published a position paper on Artificial Intelligence at the workplace, establishing seven principles that stakeholders should comply with. After emphasising that the current legal framework (AI Act, GDPR regulation, etc.) is fully adequate for regulating the safe use of AI in the workplace, Ceemet highlights the role played by AI in improving health and safety at work, and emphasises that social dialogue should be promoted to “increase the use of AI”. Ceemet comments: “At the company level, when implementing AI systems, it is important to train employees, as well as to inform and consult workers or their representatives in accordance with national and European regulations”.

Air passenger rights : On 5 June, EU transport ministers reached a political agreement on revision of the regulations on air passenger rights and on airline liability. Although the text grants passengers a number of new rights (the right to be rerouted, the right to assistance, etc.), it limits the options for payment of compensation where flights are delayed by more than four hours, instead of the current figure of three hours (see press release). The European Transport Workers’ Federation (ETF) warns that this decision “can have serious consequences for airlines’ and airports’ frontline workers”. EFT also condemns the proposal to classify labour disputes, including strikes, as qualifiers to deny passengers compensation in case of delay or cancellation (see Right to strike in civil aviation). The Council is actually drawing a distinction between strikes relating to claims that can be met by the employers – which might result in compensation being paid to passengers who are affected by delays lasting longer than 4 hours – and those relating to more general considerations (such as a strike against pension reforms decided on by a government). ETF argues that this position “undermines the role of collective bargaining and constitutes an attack on the fundamental right to strike” (see press release).

Telecoms : On 4 June, social partners in the telecommunications sector adopted a Joint Declaration on Accelerating Sustainability (see press release). The text calls for the sector’s environmental impact to be taken into account to a greater extent, for the introduction of “robust upskilling and reskilling programs” for employees, and for the development of policies that will ensure equitable treatment of remote and on-site workers, mental well-being, data privacy, work-life balance and the right to disconnect.

Protecting workers against hot weather : A decree dated 27 May, relating to protection of workers against abnormally hot weather, obliges employers, with effect from 1 July, to assess occupational risks arising during heatwaves, and to take preventive measures to reduce these risks. The decree also requires employers to maintain an “appropriate temperature” within enclosed premises used as workplaces, at all times of year. In other words, the Employment Code is now introducing an explicit obligation to keep work premises cool during episodes of hot weather, whereas previously, the employer was merely required to heat their premises to a certain temperature. The decree is accompanied by a statutory instrument relating to the process of determining vigilance thresholds for declaring a heatwave, as laid down by the national weather forecasting body (Météo France), to indicate the danger level posed by the heat. Lastly, although a decree published in June 2024 already allows employers in the construction sector to implement short-time working in the event of a heatwave, the new statutory instrument clarifies the notion that a heatwave corresponds to the “orange” or “red” vigilance thresholds determined by Météo France.

Older workers : On 31 May, the government launched a vast communication campaign promoting the employment of workers aged 50 and over, with a view to changing attitudes and practices around this subject. The campaign takes its inspiration from the Scandinavian countries and Germany, where employment rates for older workers are far higher than those seen in France (see Press kit). The campaign is accompanied by its own website and a practical guide. At the same time, the government has presented a bill to Parliament with a view to adopting the National cross-industry agreement signed by the social partners in November 2024, which establishes a number of new tools to help promote retention of experienced workers.

TCO report : A study of white-collar workers aged between 50 and 67, performed by the TCO trade union confederation, shows that 90% of those questioned, representing more than 810,000 individuals, might choose to remain in employment if their working conditions were favourable (see press release). In point of fact, most of those taking early retirement are doing so primarily because their working environment has an adverse effect on their health. Flexibility, such as the option of allowing employees to adapt their working hours and the way their work is organised, is also a key factor in people deciding whether or not to keep working. Part-time working is the option preferred by 56% of respondents, followed by the option of combining work and retirement (50%) (see press release). Other significant factors are the distance between work and home, and the extent to which a job is mentally demanding.

Demerger : The Unilever European Works Council (UEWC) has completed the consultation process relating to the separation of the multinational company’s Ice Cream business announced in March 2024 (see press release) and its stock market flotation, which was decided on in February this year.  The EWC is pleased that, at all stages of the process, it was able to facilitate the redeployment of many employees affected by job losses, and to secure an undertaking that the working conditions of employees who are being transferred to the new entity – The Magnum Ice Cream Company (TMICC) – will remain unchanged for at least three years. TMICC is due to start operating as a standalone business on 1 July, and the demerger is scheduled for the year end. Until then, Unilever’s EWC will continue to represent TMICC employees. Preparations are under way to establish a EWC for TMICC, in order to ensure the ongoing representation of European employees, with effect from Day One.

Disciplinary action against an EWC member : On 20 May, the Adecco group EWC initiated a dispute resolution procedure with central management, citing a breach of one of the provisions of its agreement, relating to protection of EWC members against disciplinary action. Article III.1.3 states that Members and Substitutes of the EWC may not be dismissed or suffer any unfavourable change in their conditions of employment or any unfair treatment, including selection for redundancy, or suffer any other action prejudicial to their employment, because of their status or reasonable activities as employees’ representatives. However, Beni Hegedűs, a Hungarian employee who became an EWC Substitute on 19 March, after coming second in the vote cast by that country’s employees to elect their representatives, was summoned to a meeting by three senior members of local management. He was invited to choose between instant dismissal and leaving the company by mutual agreement, accompanied by the offer of an extra month’s wages. The explanation appears to be linked firstly to general concerns regarding a fall in the company’s profitability, and secondly to objections to a number of messages that he published on the company’s internal Teams platform during his electoral campaign. The company’s national chief executive was said to have taken an unfavourable view of these. His contract was terminated on 2 May. In the meantime, he sent a message to the EWC, telling them that he was leaving and expressing regret that he would be unable to take up his seat on the Council. Following an investigation, the Steering Group reached the conclusion that the electoral process had been influenced by local management and that the EWC representative’s departure was directly linked to his EWC appointment. It initiated the dispute resolution procedure provided for in Article IX.4 of the agreement and called for their colleague to be reinstated immediately.