IR Notes

The European Council and Parliament have reached a provisional agreement on the directive intended to make working conditions more transparent and predictable. The agreement now has to go forward for final approval by the Council and the Parliament, which will open the way to publication of the directive in the OJEU. This text, which will repeal Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, will require employers to provide workers with information on some essential aspects of the employment relationship between their first and seventh day on the job, instead of the current two-month period allowed under Directive 91/533. In addition to the information already required by this directive, in circumstances where work schedules are totally or largely unpredictable, the employer will also have to inform workers, before they start work, of the reference hours and days during which they may be required to work, their minimum notice period and the number of guaranteed remunerated hours. The provisional agreement establishes a number of other minimum rights, such as the right to: 1° accept a job with another employer in parallel; 2° benefit, in principle, from a trial period lasting no more than six months; 3° request, after at least six months’ service with the same employer, a job with more predictable and more secure working conditions. Under the agreement, anyone who works more than three hours per week over a four-week period (i.e. more than 12 hours per month) must be covered by the directive. These arrangements are much more favourable than the initial position adopted by Member States, which planned to exclude workers who were working fewer than 20 hours per week. However, as the European Trade Union Confederation (ETUC) notes with regret, the text excludes workers employed in the public sector, and the emergency services, the armed forces, the police and seamen.
> For further information: Up-to-date Factsheet published by the Commission, Factsheet published by the Parliament in October 2018, press release issued by the Council, the European Parliament, the Commission and ETUC.

Revision of the “carcinogens or mutagens” Directive: Publication of Directive (EU) 2019/130 of 16 January 2019 amending Directive 2004/37 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work, which introduces six new occupational exposure limit values for carcinogenic substances, including diesel engine exhaust emissions (see comment by the European Trade Union Institute (ETUI). The Council of Ministers and the Parliament also reached a provisional agreement, on 29 January, on a third revision of the Directive, which seeks to reduce workers’ exposure to five chemical carcinogens. The agreement will now go forward for formal approval by the Council and the Parliament, before the Directive is published in the OJEU (see Council press release).

• Posting of workers: On 1 February, the European Federation of Building and Woodworkers (EFBWW) filed a complaint with the European Commission against Slovenia for granting illegal State aid to its companies when they post workers abroad (see press release).

Work programme: On 1 February, the European social partners unveiled their autonomous work programme for the period 2019-2021. This document tackles six priority issues: 1° Digitalisation, 2° Improving the performance of labour markets and social systems, 3° Skills, 4° Addressing psycho-social aspects and risks at work, 5° Capacity-building for a stronger social dialogue, 6° Circular economy. On the topic of digitalisation, a joint fact-finding seminar will explore the acquisition of digital skills and “modalities of connecting and disconnecting”, before embarking on the negotiation of an autonomous framework agreement, the only one featuring in their programme (see press release issued by ETUC and BusinessEurope). As far as psycho-social risks are concerned – an issue already addressed in their framework agreements on work-related stress (2004) and harassment and violence at work (2007) – a seminar will be organised with a view to “reaching joint conclusions” and identifying possible further joint actions.

Breakdown of working hours: In a Spanish case, the Advocate General of the EU Court of Justice, whose opinion is 80% followed by the Court when delivering its ruling, argues that EU legislation on working hours (Directive 2003/88) imposes on undertakings “an obligation to set up a system for recording the actual number of hours worked each day for full-time workers who have not expressly agreed, individually or collectively, to work overtime” (see conclusions and press release).

Wearing a headscarf: By means of a ruling dated 30 January, the Federal Employment Court referred a question to the EU Court of Justice for a preliminary ruling, concerning a female shop worker who began to wear the Islamic headscarf when she returned from parental leave. The issue at stake is whether internal rules prohibiting the wearing of any ostensible tokens of religious or political affiliation in the workplace, in light of European anti-discrimination directives, can still justify discrimination based on the principle of freedom to conduct business, as guaranteed by the EU Charter of Fundamental Rights. Or whether freedom of religion should be protected by the EU Court of Justice, the European Convention on Human Rights and the German constitution (see press release).

• Weekly rest day: The Supreme Court delivered its judgment following the Court of Justice ruling of 9 November 2017, (case C-306/16, Maio Marques da Rosa; v. IR Notes 86), which concluded that legislation which does not ensure that a worker “is entitled to a minimum rest period no later than the seventh day following six consecutive days of work” complies with EU law. However, whereas the CJEU had recognised that States are entitled to apply or introduce provisions that are more favourable to workers, surprisingly, the Supreme Court held that Portuguese legislation must be interpreted as not requiring the minimum uninterrupted weekly rest period of 24 hours to which a worker is entitled to be provided no later than the day following a period of six consecutive working days, thus enabling twelve consecutive days to be worked, without a break.

Protection of personal data: Law 3/2018 of 5 December relating to protection of personal data and to guaranteeing digital rights, includes a section devoted to the employment relationship that introduces a new article into the Employment Code granting workers the right to respect for their privacy with regard to the digital devices they use at work, the right to switch off from work and the right to privacy vis-à-vis the use of videosurveillance and geolocalisation equipment. Rules governing the right to switch off from work, which seek to guarantee rest periods and to protect personal and family privacy, are due to be established through collective bargaining.
> Further details available in Flash reports on Labour Law December 2018, produced for the European Commission (p.53).

> For further information on national situations: See the January 2019 edition of the Collective Bargaining Newsletter, which includes a report on the first increase in the minimum wage in Greece for nearly a decade (it rose from 586 to 650 euros, i.e. by more than 11%) and, for updates on legislation and case law, the October, November and December 2018 editions of Flash reports on Labour Law.

Transformation into a European company: On 26 December 2018, the French car parts supplier Faurecia (which employs 110,000 workers, including 45,000 in the EU) was converted into a European company, following the signature, on 22 October, of an agreement on worker participation in the European company (see press release) and of an addendum stipulating that the UK representative will be invited to attend Plenary Sessions of the Council, with guest status, for a period of one year starting on the day the United Kingdom effectively leaves the EU.

Fundamental social rights: On 4 February, the French bank Société Générale (147,000 employees) and the Uni Global Union federation renewed their 2015 global agreement on fundamental rights. The new agreement includes the duty of vigilance that applies to French multinationals (law of 27 March 2017) with a whistleblowing mechanism applicable where necessary to prevent and mitigate “risks of serious violation of human rights and fundamental freedoms, health and safety of people and the environment” (see press release issued by UNI Global Union and Société Générale). On 31 January, the Brazilian bank Banco do Brasil also renewed its global framework agreement signed with UNI Global Union (see UNI press release).

• Artificial intelligence: The European federation IndustriAll Europe has published a study on the subject of artificial intelligence, listing the various matters of legitimate concern to employees.

In this section, our aim is not to influence your vote in the forthcoming European elections, but to inform you of initiatives seeking to open up a debate on the future of the European Union or to put forward proposals here and now.

> In this edition, we are highlighting the initiative launched by a number of European academics, who published an opinion piece in several daily newspapers. This exercise is not about putting forward a turnkey programme, but instead sketching out a number of possible avenues that could be taken, without calling into question either the process of European construction or the founding treaties, and which do not rule out following economic and social policies that are different from those inspired by the neoliberal model. The manifesto entitled “It is still possible to breathe fresh life into the European Union” was published in several European daily newspapers, and we invite you to read the German, French, English, Portuguese and Polish versions here.