IR Notes

Following the evaluation of Directive 2009/38/EC on European Works Councils, the European Commission decided that a revision of the text was not required, and instead, invited the European social partners to join forces with it on the task of drawing up a handbook. However, the European Trade Union Confederation (ETUC) does not want to proceed with this experiment, which began in April of this year, until an undertaking is given regarding strengthening the provisions of this text. At the annual conference for European Works Councils, organised by the ETUC, and held on 11 and 12 September in Brussels, more than 200 representatives of around 100 European Works Councils from 18 EU countries signed a statement calling for greater democracy at work (see press release and live webstreaming from the conference). In addition to calling for a framework directive that revises and strengthens workers’ rights to be informed and consulted and to take part in decisions affecting them, as set out in several directives, the ETUC is also seeking a revision of the directive on European Works Councils. This is nothing new, but for once the planets are aligned in a way that offers new hope to the trade-union movement: 1° The composition of the new European Commission gives the ETUC hope that its voice will be heard (see below). 2° MEPs from the main democratic political groupings were on the platform, and all of them supported the initiative and the need to revise the directive. Marc Born, Secretary of the IBM European Works Council, summed up the situation as follows: “Everyone is in agreement, so what are we waiting for?”. 3° European Works Council members who spoke during this two-day event, in the presence of EU Commission representatives, repeatedly called for concrete ways to enable them to exercise their rights: tougher sanctions where the information-consultation process is not adhered to (this is still an extremely common occurrence); securing the resources they need in order to take legal action, given that European Works Councils have no budget to cover this (the idea of a trade-union solidarity fund was put forward); and seizing a special European court to deal with this type of dispute. However, this dynamic is unlikely to prompt BusinessEurope (which is opposed to a revision) to change its mind, and further efforts will be required to convince Member States.

A European Commission with a social face: The new European Commission will include a number of commissioners who have an in-depth knowledge of the employment and social affairs brief (see press release issued by the Commission). In addition to President Ursula van der Leyen, who previously held the Family and subsequently the Work ministerial portfolios, the ‘Jobs’ portfolio will now go to the former Luxembourg Minister of Work, Nicolas Schmit, who was recently elected to the European Parliament and is an enthusiastic advocate of social dialogue. Valdis Dombrovskis (Latvia), who is Vice-President for “the Euro and Social Dialogue” in the current Commission, is to become Executive Vice-President, and will be responsible for coordinating work on the economy that works for people. Working with Nicolas Schmit, he will steer the plans for a European minimum wage and unemployment insurance mechanism. During the European elections campaign, Frans Timmermans (Netherlands), who is also becoming an Executive Vice-President, argued passionately for the creation of a Just Transition Fund, which would allow the goal of a carbon-neutral economy to be achieved in a socially fair way. Other commissioners too, have acquired career experience in the social field, such as Sweden’s current Employment Minister Ylva Johansson, who will be the new Commissioner for Internal Affairs, and will thus be responsible for integration of migrants. While the composition of the future team – which is still to be ratified by the European Parliament – has been welcomed by the European employers’ organisation BusinessEurope (see press release), it has received rapturous praise from the ETUC. The composition of this Commission “gives us reason to believe that progress can be made on social issues over the next five years”, emphasises Luca Visentini, ETUC General Secretary. […] “We’re pleased that politicians with a strong track record of standing up for working people have been proposed for key roles” (see press release).

• A shortage of skilled labour in the EU: For the first time, on 12 September, 17 different European employers’ organisations and the cross-industry employers’ organisation BusinessEurope, issued a statement entitled “reducing labour shortages by improving skills matching”, setting out their views.

Recognition of a disability and protection : To prepare for implementing a collective dismissal, an employer adopted four selection criteria: being assigned to one of the production processes, having productivity below 95%, a low level of multi-skilling in the undertaking’s posts, and a high rate of absenteeism. A female employee, who was frequently on sick leave and suffered from a physical impairment but was not recognised as a disabled worker, met these four criteria, and she was therefore dismissed. Did this dismissal constitute discrimination, in light of her disability? The Court of Justice sets out the basis on which this employee could be deemed a disabled worker: if her “state of health leads to a limitation of capacity arising as a result of, inter alia, long-term physical, mental or psychological impairments, which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in their professional life on an equal basis with other workers”. Consequently, it is for the national court to determine whether these conditions are met.  If they are, does the dismissal constitute discrimination? The Court notes that the criteria “are ostensibly neutral”, but that their application may give rise to a difference of treatment. The national court must therefore check whether, before dismissing the worker, the employer took effective and practical measures to adapt the workplace to the worker’s disability. If the employer did not provide “reasonable accommodation” for these needs, within the meaning of Article 5 of Directive 2000/78/EC, then this dismissal constitutes an act of “indirect discrimination on grounds of disability”. However, the Court adds, the directive “does not require the recruitment, promotion or maintenance in employment of an individual who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities”. (CJEU, 11 September 2019, case C-397/18, DW).

• River cruises : On 25 July, two employers’ organisations, in conjunction with the European trade-union federation ETF, signed an agreement aimed at enhancing working conditions on board river cruise vessels, while at the same time maintaining fair competition in the sector. Following an initial analysis phase, the parties “will draw joint conclusions and propose adequate binding measures or agreements, to be implemented by autumn 2020”. (see press releases issued by ETF and EBU).

Future employment : On 20 September, the Federal Ministry of Work and Social Affairs published the results of the consultation launched in September 2018 on the future of work (see press release). This consultation, entitled “New work – New security”, has given rise to the publication of two booklets: one contains a summary of the discussions (“Zuhören”) and the other sets out the solutions proposed by the Ministry (“Anpacken”).

Supervision of package deliveries : The Federal Ministry of Work has published a (Paketboten-Schutz-Gesetz) bill that aims to provide better protection for workers employed by parcel delivery services, notably by applying a rule already in force in the construction sector and the meat industry, which involves making the main work-provider jointly and severally liable for non-payment of its subcontractors’ social security contributions. This measure seeks to combat abusive practices that have been apparent for several years now (see press release). The initiative has been welcomed by the trade-union federation Ver.di (see press release).

• Guidelines to promote teleworking : In June 2017, the social partners signed a joint teleworking agreement (English version) that includes 10 rules specifying in particular that teleworking is voluntary and based on mutual agreement, that all employees with similar responsibilities should have similar possibilities for teleworking and that teleworkers have the same rights as other employees. In April 2018, a similar agreement was signed in the public sector. For employers, the main difficulty lies with matters of health and safety, and more specifically how to protect the health and safety of employees who are working away from the employer’s premises. In point of fact the employer is responsible by law, regardless of where the employee is working. In July, the Ministry of Social Affairs published guidelines and recommendations on teleworking (in Estonian), aimed at both employers and employees. These offer in-depth explanations, focusing in particular on health and safety (when, where and how teleworking is permitted, how to guarantee health and safety and how to conduct risk assessments).

• Class discrimination : The Trades Union Congress (TUC) has launched a campaign to make discrimination on the basis of social class unlawful, just like discrimination based on sex, religion or age (see press release). The campaign is based on a study showing that graduates from wealthier backgrounds are more than twice as likely as their working-class peers to start their career in a job paying a salary of 30,000 pounds (see article).

Revised agreement : The management of the French cable manufacturer Nexans and the members of its European Works Council, which was established by means of an agreement dated 16 July 2003, have revised the initial agreement by means of an amendment dated 12 February 2019. The text, which boosts the resources available to the European Works Council, sets out how the Council will operate in conjunction with the national bodies. “To ensure that the process is effective”, the required procedures for informing and consulting the representation bodies of the States concerned by a project that calls for the European Works Council to be consulted, “cannot be initiated before these procedures have started at EWC level.” The various representation bodies concerned “cannot therefore be convened before” the European Works Council “has itself been convened, nor can they hold their first meeting before the European Works Council has held its first meeting.” However, the consultation process at the level of the companies concerned “can be completed, if applicable, before the consultation [of the European Works Council] has been finalised”, according to the legislation applicable. The amendment adds a termination and revision clause providing for the agreement to be maintained following its termination, until a further agreement has been reached, within a maximum period of three years.

• Group works council / European Works Council merger: On 4 July, the management of the Compagnie des Alpes group (5,000 employees), which operates the largest downhill ski resorts in France and a number of amusement parks in Europe, signed, with the unanimous consent of the trade unions concerned, an agreement establishing a European group works council. This initiative, which is permitted by the French Employment Code, involves merging the group works council and the European Works Council. The parties emphasise that “having these two bodies operating side by side is not an optimal arrangement, given that the themes dealt with and the participants involved are often identical”.

Workplace gender equality : The Suez group (61,000 employees in the EU) and a group of trade-union negotiators mandated by the two European trade-union federations EPSU and IndustriAll Europe have renewed the Group agreement on Gender Equality in the workplace, signed in 2015. The new agreement, signed on 12 September, emphasises the persistence of pay gaps in “certain areas”; the under-representation of women in “some technical and operational occupations” and in “managerial functions and posts carrying responsibilities”; and their “over-representation among part-time employees”. The signatories’ aim is to: 1° achieve gender equality in terms of opportunities; 2° create a better work-life balance, and, the new agreement adds, 3° strengthen the prevention of sexual harassment. The agreement requires group business units employing more than 150 people to implement action plans, in conjunction with employee representatives. It contains more ambitious quantified objectives than those in the 2015 agreement, plus a number of monitoring indicators (see press release issued by the Suez group and EPSU).

Diversity and inclusion: : On 5 September, the management of the Italian insurance group Generali (71,000 employees) signed a Joint Declaration on inclusion and diversity, drawn up in conjunction with the European Works Council. This second joint statement follows the declaration promoting teleworking, which was adopted in 2017. In particular, the signatories plan to promote: 1° diversity, which is seen as a source of enrichment, innovation and creativity; 2° inclusion, notably by providing support to persons with disabilities; 3° work-life balance; 4° a flexible environment; 5° equal opportunities for people at all stages of their career; 6° excluding all forms of discrimination. “This new joint statement sends out a signal that management would like to develop a social dialogue with the European Works Council,” emphasises Carole Bourner, EWC Secretary. “The Council is not merely the signatory of a text: it plans to be a stakeholder in the process of establishing a company policy to promote diversity and equality.”

• Sexual harassment: On 15 July, the international union federation IUF signed an Agreement on fighting against sexual harassment with the management of the Accorinvest group (30,000 employees), which owns and operates hotels (see IUF press release). The Meliá hotel group has already signed an agreement on this subject. This is the first agreement to be signed following the adoption of ILO Convention (No. 190) on Violence and Harassment.


• Digitalisation: The European Works Council of the French energy group Engie, which has set up a working group to tackle the issues associated with digitalisation, is due to issue a joint statement with management on this subject in November, before starting work on the task of negotiating a European agreement, which is more binding in nature, in 2020.

Parental leave : The management of the Kering luxury goods group has announced that, from 1 January 2020 onwards, the group plans to increase its paternity/partner leave from the current figure of five days to 14 weeks’ leave on full pay for all of its employees worldwide (see press release).