IR Notes

On 21 June, representatives of governments, workers and employers of the 187 Member States of the International Labour Organization (ILO) adopted the Convention concerning the elimination of violence and harassment in the world of work by an overwhelming majority (439 votes for, 7 against and 30 abstentions), thus demonstrating that its values are universal and that such phenomena will not be tolerated anywhere in the world (see ILO press release). This convention, the first one adopted since 2011, is accompanied by a recommendation that is not legally binding but provides guidelines on how the Convention is to be applied. This second text was adopted with slightly fewer votes – 397 for, 12 against and 44 abstentions – notably because it contains a number of measures deemed too prescriptive by some employers’ organisations. The convention defines “violence and harassment” in the world of work as “a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment”. Each ILO Member State will have to adopt legislation requiring employers to take appropriate measures to prevent these phenomena. Protection is extended to all workers, irrespective of their contractual status, including volunteers and interns, and of the economic sector concerned (public, private and even the informal economy). Protection covers the workplace in the broadest sense, including work-related communications based on information and communication technologies. The convention also calls on States to take appropriate measures to “recognize the effects of domestic violence” in order to “mitigate its impact in the world of work”, for example, as the recommendation suggests, by adopting “leave for victims of domestic violence” or “flexible work arrangements and protection for victims”. This text has been unanimously welcomed by the trade union movement, which campaigned strongly in favour of the convention (see press releases issued by the international trade-union federations IndustriAll Global Union, UNI Global Union and IUF and the European Trade Union Confederation).

> The Conference also adopted the “ILO Centenary Declaration for the Future of Work”) (see ILO press release). In this declaration, the ILO plans to develop an “approach to the future of work, which puts workers’ rights and the needs, aspirations and rights of all people at the heart of economic, social and environmental policies”.

• Carcinogens and mutagens : Directive 2019/983 of 5 June 2019 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work, has been published in the OJEU. This is the third revision of Directive 2004/37/EC.

• Strategic agenda 2019-2024 : On 20 June, the Twenty-Eight adopted a new strategic agenda 2019-2024, containing several paragraphs demonstrating a level of social concern. As regards the transition “towards a greener, fairer and more inclusive future”, it will be necessary “to help communities and individuals adjust to the new world”. For example, the text emphasises that the climate transformation will have to be conducted “in a way (…) that is socially just“. States will have to pay “keen attention to social issues” and implement the European Pillar of Social Rights. (see reaction of the European Trade Union Confederation).

Protection for a witness of discrimination : a female store manager employed by a chain of clothes shops in Belgium accepted an application for a job as a salesperson from a woman who stated during the course of the interview that she was 3 months pregnant. In the manager’s opinion, the applicant possessed all of the skills required. However, the Human Resources Department rejected the application on the grounds that the young woman was pregnant. After notifying her line management, to no effect, that such a refusal to hire due to pregnancy was prohibited by law, the manager then informed the applicant that her application was being rejected because of her pregnancy. The applicant lodged a complaint with the authorities on the grounds of discrimination. The manager in question, whom the company’s management blamed for being the cause of the complaint, subsequently had her contract of employment terminated. Various reasons were given, including her lack of respect for safety regulations. The manager herself then lodged a complaint and applied to avail herself of the protection against retaliatory measures, granted under Belgian law, claiming that she had appeared as a witness in the investigation of the complaint. The Belgian court to which the case was referred held that she was not entitled to enjoy the protection provided for witnesses in disputes relating to equal treatment of men and women on the grounds that the law calls for specific formalities to be complied with, i.e. the witness statement must be presented in the form of a dated and signed document. The question referred to the CJEU was to establish whether Article 24 of Directive 2006/54 of 5 July 2006, relating to equal treatment of men and women and offering protection to witnesses of discrimination, precludes the strict criteria imposed by Belgian domestic legislation. The Court of Justice rules that this legislation contravenes Article 24 of the directive, which must “be interpreted as meaning that it precludes legislation (…) under which, in a situation where a person who believes to be discriminated against on grounds of sex has lodged a complaint, an employee who has supported that person in that context is protected from retaliatory measures taken by the employer solely if that employee has intervened as a witness in the context of the investigation of that complaint and that that employee’s witness statement satisfies formal requirements laid down by that legislation.”  (CJEU 20  June 2019,  case. C-404/18, Hakelbracht).

Paternity leave granted on the grounds of a child’s hospitalisation : a decree dated 25 June has created paternity leave to be granted in the event of a child’s immediate hospitalisation following its birth, and which is available to the father, the mother’s spouse or a person linked to her by a civil partnership or living in a conjugal relationship with her. This leave will last for a maximum period of 30 consecutive days and must be taken within four months following the birth. During the course of this leave, the person concerned will receive social security benefits under the same conditions as those applicable to paternity leave. These new arrangements will apply to the parents of babies born from 1 July 2019 onwards.

jurisprudence regarding choosing the law applicable to negotiation of an agreement : following a demerger that took place in 2015 within Hewlett-Packard, the management of one of the new entities, Hewlett-Packard Enterprise (HPE), embarked on negotiations with a view to creating a European Works Council. The group appointed its UK subsidiary to set up a special negotiating body. However, one year later, due to Brexit, the group decided to place the negotiation under the auspices of Irish law, and appointed its Irish subsidiary to pursue these discussions. In 2018, a member of the Special Negotiating Body (SNB) applied to undergo training on the UK legislation applicable to European Works Councils, by virtue of the UK transposition law. Management denied them permission to receive this training, as the legislation applicable to the negotiation process was Irish law. The SNB disputed this decision and argued that the group could not unilaterally change the subsidiary appointed to represent it. On 18 June, the UK legal authority responsible for resolving collective bargaining disputes, the Central Arbitration Committee (CAC), issued a decision stating that HPE was able to terminate the appointment of its UK subsidiary. The CAC states that a multinational company acting in good faith, which appears to be the case here, is at liberty to change the subsidiary acting as its representative agent, provided that it continues to honour its obligations to inform and consult its employees. A multinational company acting in bad faith might however have the appointment of a new representative overturned. The CAC also states that the company is at liberty to opt for whichever legislation it chooses (the directive does not stipulate any imperative provisions on this point), even the one that it considers to be the most favourable, in the sense that it provides less onerous obligations to inform and consult. The CAC justifies its position by upholding the principle of freedom of establishment and relies on an EU Court of Justice ruling on registered office relocations (CJEU, 25 October 2017, case C-106/16, Polbud).

New agreement : On 20 June, the management of the French cheese-making group Bel, which is also active in processing fruit and dairy products, signed an agreement on the establishment of a European Works Council with a special negotiating body assisted by the European trade-union federation Effat. The manufacturer employs 12,600 people, of whom 6,646 are in Europe (mostly in France, where it has 3,874 employees). This is one of the few agreements that also covers the Ukraine (342 employees). Moreover, the countries covered by the agreement will continue to form part of it even if they leave the EU, so this clause will keep the British on board. The definitions of information and consultation stipulated by the directive have been improved (management responses to opinions and alternative solutions put forward by the European Works Council). The deadline set for consultation “will be agreed on a case-by-case basis, depending on the scale of the measures envisaged”. It also includes the possibility of using videoconferencing, with the council’s agreement, and operating resources that are deemed appropriate by the Effat union, given the group’s size.

Global framework agreement renewed : On 21 June, the management of the Italian energy group Eni (31,000 employees in 67 countries) and the IndustriAll Global Union federation renewed their global framework agreement (see press release). The improvements relate to the human rights due diligence process, the prohibition of any form of violence or harassment, improving working conditions in supply chains; sustainable development and environmental protection; introducing the principle of a “just transition” and granting 10 working days with 100 per cent of their annual salary to all fathers and mothers working in the company when a child is born. Lastly, for the first time, a list of indicators has been added to the annex of the agreement for the purpose of monitoring its implementation, as well as a dispute resolution mechanism for dealing with possible conflicts.

Accompaniment for Industry 4.0 : On 21 June, the Italian group Luxottica, which has initiated a merger process with the French company Essilor, signed a major company agreement covering the 11,430 employees in Italy, with the trade unions representing them (FEMCA CISL, FILCTEM CGIL, UILTEC UIL) and the group’s unitary trade union representative body (or “RSU”). This agreement stipulates that the company’s 1150 temporary workers will be given permanent contracts of employment from July 2019 onwards, but also accompanies its large-scale adoption of new 4.0 technologies requiring a rethink of how work is organised. In particular, the text provides for: 1° The adoption of strategic and organisational participation systems with the creation of specific joint committees within each establishment, dealing with subjects such as health and safety, training, job classification and catering. 2° The adoption of organisational participation groups made up of the teams responsible for continuous improvement (Kaizen), which are tasked with suggesting improvements, initiating experiments and reporting back to the RSU on their work. 3° Arrangements covering training and well-being at work, involving the transposition of the European agreement on violence and harassment in the workplace. 4° The introduction of financial incentives to encourage employees to achieve objectives. 5° The creation of a high-level participation committee, made up of managers and trade union officials, which will be able to issue opinions on the company’s strategy.

Report on the future of industry : On 28 June, the European Commission published a report on “A vision for the European Industry until 2030“ resulting from the high-level roundtable set up in December 2017 and bringing together trade unions, employers and experts with a view to preparing a European industrial strategy. The report has been welcomed by the European Trade Union Confederation (see press release) and IndustriAll Europe (see press release).

• Report on artificial intelligence: On 26 June, following on from an initial report on “Ethics Guidelines for Trustworthy AI ” (see interview with Thiébaut Weber, IR Notes 117), the high-level experts group on artificial intelligence submitted a second report, this time containing “Policy and investment recommendations for trustworthy Artificial Intelligence”. The document, which is one of very high quality, states in particular that workers (not only employees but also independent contractors) “should be involved in discussions around the development, deployment or procurement of algorithmic scheduling and work distribution systems, to ensure compliance with health and safety legislation, data policy, working time legislation and work-life balance legislation. Social dialogue plays a key role to enable this.”