IR Notes

The General Court of the European Union has delivered a ruling (TEU, 24 October 2019, Judgment T-310/18, EPSU and Jan Goudriaan v. European Commission), which calls into question a practice provided for since 1991 by the Treaty on the Functioning of the European Union (TFEU). The treaty enables the social partners to sign European agreements, either at their own initiative or in response to a consultation by the European Commission, where the Commission deems it useful to have a European initiative in an area that comes under the heading of social affairs and is therefore within the competence of the European social partners (TFEU, Articles 154 and 155). This applies both to cross-industry agreements and to those signed at sectoral level. So that the provisions of these agreements can apply to all EU employers and employees, the signatories are entitled to ask the Commission to submit their agreement to the Council (which represents the Member States). The Council can then adopt a decision that seeks to extend the provisions of the agreement by means of a directive, so that they will apply throughout the European Union. The unique feature of this procedure is that it enables the European social partners to set social standards in areas such as fixed-term contracts, part-time working, working hours, health and safety in the workplace, etc. via collective agreements. The other distinctive feature is that on the basis of a Council decision, these agreements can therefore be extended within the EU, without either the Commission or the Council being able to change the text, while the European Parliament is merely notified of the steps taken. Until 2012, the Commission systematically passed on to the Council any agreements signed, for the purpose of adopting a decision, while performing a check based on three criteria, namely: that the signatories were duly representative; that the content complied with EU law; and that the content did not constitute an excessive burden for SME. However, from 2012 onwards, sectoral social dialogue became an annoying anomaly, during a period when the Commission froze all initiatives in the area of social legislation. As it was continuing to receive requests from social partners to extend their agreements, and thus to create harmonised standards at EU level, the Commission decided to challenge the quasi-automatic way in which agreements are submitted to the Council, taking the view that it is vested with powers to judge whether or not it is appropriate for the agreement to be referred to the Council. A series of restrictions on the social partners’ autonomy have since followed, accompanied by a number of vexatious interventions, the effect of which has been to block this original source of new social standards. The Tribunal’s ruling brings this original model to an end, thereby confirming the Commission’s right not to implement the outcome of European social dialogue.
> Find out more: the highly instructive working paper published by the European Trade Union Institute, “Legislative implementation of European social partner agreements: challenges and debates“, by Jean-Paul Tricart.
> See also: reactions of the social partners: EPSU, ETUC

Moves towards a directive on management of restructuring : When a resolution was passed on 24 October, noting the “negative impact of the bankruptcy of Thomas Cook on EU tourism”  (see press release), MEPs took the opportunity to remind the European Commission that they had passed a resolution in January 2013, calling on it to submit a proposal for a legal act on information and consultation of workers, anticipation and management of restructuring.

• Public consultations: the European Commission has launched a public consultation on evaluation of the action taken by the European Social Fund over the period 2014-2018 and has extended until 13 November a consultation on the European strategy relating to health and safety in the workplace 2010-2020. Questionnaires are open to everyone and available in all EU languages.

Justification of secret surveillance : in a Spanish case concerning a supermarket manager who dismissed a number of employees for their involvement in thefts as demonstrated by secret surveillance, the European Court of Human Rights (ECtHR) accepts that this type of mechanism can be used without giving prior notification to employees. Admittedly, it accepts that both Spanish law and “the relevant international and European standards … establish that it is, in principle, necessary to inform” employees “clearly and prior to implementation, of the existence and conditions of such data collection, even if only in a general manner”. However it rules that the “detailed balancing exercise”, carried out by the Spanish courts, between the employees’ right to respect for their private life, and on the other the employer’s interest in ensuring the protection of its property and the smooth running of the company, is legitimate. The existence of reasonable suspicion that serious misconduct has been committed and the extent of the losses identified in the present case may appear to constitute weighty justification of the absence of any prior notification. Three judges published a dissenting opinion in which they argue that “by not condemning such behaviour committed by private parties, the Court is encouraging individuals to take legal matters into their own hands”. The European Trade Union Confederation had intervened in the case to defend the principle of prior notification (ECtHR, 17 October 2019, no. 1874/13 and 8567/13, Lopez Ribalda and others v. Spain).

• Gas : the European trade-union federations IndustriAll Europe and EPSU, and the employers’ organisation Eurogas, have relaunched their European social dialogue in the gas sector in a context of a “decarbonised” economy, with the support of the European Commission (see joint press release issued by EPSU and Eurogas, EPSU press release and speech by the Eurogas General Secretary).

Equal pay : the European Trade Union Confederation (ETUC) will be submitting its proposals to the European Commission for strengthening legislation relative to pay transparency, with a view to “compulsory gender pay reporting, backed up by fines for companies who fail to make the necessary declarations, becoming some of the “binding pay transparency measures” promised by the new European Commission President, Ursula von der Leyen (see press release).

• New rights to leave: the European Trade Union Confederation (ETUC) has launched a campaign to encourage Member States to pass into their domestic law, as soon as possible, the EU directive on work-life balance, which grants parents in several countries rights to new types of leave (see press release)


• The right to switch off from work: the Uni Global Union federation has launched a campaign to promote the right to disconnect from work, with the support of a handbook drawn up to help affiliated trade unions to negotiate this right (see press release).

• Bicycle allowance to be provided across the board : According to the main Belgian trade union confederation (CSC), approximately 793,000 employees will soon be entitled to a bicycle allowance for the first time, under 12 sector-wide agreements signed within the framework of the 2019-2020 draft cross-industry agreement (AIP), drawn up in the spring of this year. Workers receiving either a new or an increased allowance will soon benefit on average from the sum of 17 centimes per kilometre (see press release).

Minimum wage : A new minimum wage law came into force on 1 January 2019. The aim is to make the minimum wage policy more predictable and more transparent. The government will continue to fix the minimum wage level once a year for the next calendar year, based on a recommendation made by the Minister of Employment, following consultation with the social partners. However, to strengthen this consultation mechanism, the law now specifies that the minimum wage level should be determined by 31 October each year, while consultations with the social partners must be held from September onwards. The law also establishes a committee to monitor and analyse the minimum wage. This committee is an advisory body assisting the minister, who proposes the minimum wage level for the following year. Accordingly, on 31 October, the government proposed raising the minimum wage to 4,062.51 HRK (544.60 euros) for next year, i.e. a rise of 8.33% (41.90 euros), representing 46.49% of the average wage of Croatian workers.
> Find out more: government press release (in Croatian)

Reform of the employment market : Law no. 93/2009 of 4 September 2019 has introduced major changes to social legislation. These changes concern trial periods for jobs, vocational training, fixed-term contracts, temporary and intermittent work (including on-call work), organisation of working hours and collective bargaining. The main aim is to promote stability of employment and to tackle the high level of segmentation of the employment market, by limiting the use of fixed-term contracts and offering temporary workers greater protection. Nevertheless, some of the measures adopted have been highly controversial, which has led the left-wing parties supporting the government to formulate a request calling for an evaluation of the law’s constitutionality (still in progress). The more controversial questions concern: the new six-month trial period for employees looking for their first job or in a situation of long-term unemployment; an extension of the periods authorised for very short-term contracts (casual work); and the new arrangements governing the expiry of collective agreements. The new law, with a few exclusions, came into force on 1 October 2019.

IG Metall forum for European Works Council members : On 24 and 25 October, the German trade union IG Metall organised its “ERB/SE-BR forum” in Frankfurt. This takes place once a year and, explains Ralf Götz, the manager of the union’s team responsible for European Works Councils and SE Works Councils, “it’s the only place where European Works Council members and SE Works Council members, experts and our team can come together to discuss specific issues encountered by these transnational employee representation bodies.” More than 35 European Works Council members and SE Works Council members took part in workshops. While those dealing with restructurings and with information and consultation procedures were full to capacity, two others also aroused a great deal of interest: one  on how dialogue between management and the European Works Council can create added value, both for companies and their employees, highlighting the practices employed by the European Works Council of the Swedish group Sandvik. The other workshop focused on how European Works Councils should approach the implementation of IT systems for production management and planning.

• New European Works Council created : On 29 October, following three years of negotiations, the US-based group XPO Logistics Europe signed an agreement establishing a European Works Council, with a special negotiation group supported by the European trade-union federation ETF (see ETF press release).

• Trade union network : The first global union network meeting of the German pencil and crayon manufacturer Faber-Castell was held from 30 September to 2 October, in Germany. Participants from seven countries and eight production plants were present at this meeting, which was coordinated by the global union federation BWI and the German trade union IG Metall, with the support of the Friedrich Ebert Foundation (FES). They issued a Declaration of Solidarity with workers at the Goa site (India) (EN DE) (see press release). Also, on 16 October, 15 trade union representatives from Slovakia, the Czech Republic, Germany and Hungary met in Slovakia to discuss and share their experience with the Austrian construction company Strabag (75,000 employees), with the support of the trade-union federations BWI, EFBWW and FES (see press release). The union network of the Saint-Gobain group (549,000 employees) met at the beginning of November in Paris, and discussed the group’s new strategy, as well as the application of digitalisation and its impact on company workers. They decided to pursue their work on this subject and to gather information via an online questionnaire (see press release).