IR Notes

The theme of social democracy, i.e. employee participation in a company’s decision-making process, is back on the European social agenda, after a long period of inaction (Industrial democracy). At European level, the European Trade Union Confederation is taking a number of initiatives to promote this theme at institutional level, in particular via an online petition calling for a revision of the European Works Councils Directive and a new horizontal framework on information, consultation and board-level participation of workers (Democracy at Work campaign). It is receiving a favourable hearing at European Parliament level. The Committee on Employment and Social Affairs has voted, by a large majority, to accept the own-initiative report submitted by MEPs Dennis Radtke (EPP) and Agnes Jongerius (S&D), in which they call on the EU to now set itself binding targets in the social field and adopt a new framework directive on workers’ rights to information and consultation, including for subcontracting chains and franchisees. Furthermore, as early as the start of next year, Dennis Radtke will be compiling an own-initiative report on revision of the European Works Councils Directive, while Gabriele Bischoff (S&D) will be working on an own-initiative report relating to democracy at work, with a view to boosting worker participation in the decision-making process. This development echoes a number of initiatives taken at national level. Germany’s Social Democratic Party (SPD) has prepared a position calling for legislation in the field of codetermination, in particular by cutting the workforce size threshold, at which companies are obliged to grant one half of the seats on their supervisory boards to employee representatives, from the current figure of 2,000 employees to 1,000 on German soil. However, the initiative that has made the most progress is that of the Finnish government, which has just submitted for consultation a draft law prepared by a tripartite working group, aimed at strengthening social democracy within companies. This draft law includes three chapters on: continuous dialogue between employer and employees; negotiations linked to restructuring (strengthening the rights of workers’ representative to put forward proposals and alternative solutions); and employee representation on company management bodies. The aim is to improve the company’s operations and the employees’ ability to influence the decisions it makes (see government press release, in English). During this period, which is witnessing wholesale restructurings, the idea of involving employees to a greater extent in decisions made by their companies seems to have regained popularity.

• Homelessness : MEPs have passed a resolution (see draft dated 18 November), by an almost unanimous vote (647 for, 13 against and 32 abstentions), calling on the EU and its Member States to set, for the first time, a binding target aimed at ending homelessness by 2030. They want this target to be included in the action plan on the European Pillar of Social Rights, which the Commission is due to present at the start of next year (see press release).

• Right to disconnect : On 1 December, the Committee on Employment and Social Affairs adopted the own-initiative report submitted by Alex Agius Saliba (S&D) on the right to disconnect (see meeting page, item 11) (Right to disconnect). The report, which now has to be adopted at a plenary meeting, is intended to prompt the European Commission to react on this issue.

Supplementary maternity leave : The Court of Justice has issued a ruling on a French case concerning a provision contained in the national collective labour agreement applicable to staff employed by social security bodies, stating that the amount of statutory maternity leave (16 weeks) can be extended for female employees who are bringing up their child themselves. This supplementary leave, which is available exclusively to women, ranges in length from one and a half months (on full pay) to 12 months unpaid leave (with the option of extending it by one further year of unpaid leave)(Pregnancy and Maternity). The case in point concerns a father who is bringing up his child on his own and wants to claim this supplementary leave. The employer rejected his application on the grounds that he was a man. Unsurprisingly, the Court of Justice held that “a collective agreement which excludes from the benefit of such additional leave a male worker who is bringing up a child on his own establishes a difference in treatment between male and female workers”. So now it is a question of checking whether this difference in treatment is justified or not. In the Court’s view, if the disputed provision applied to women solely in their capacity as a parent, i.e. the leave was restricted to them simply on the grounds that they were mothers, that article would institute, as regards male workers, direct discrimination. The difference in treatment would therefore be prohibited by Article 14, paragraph 1, of Directive 2006/54. On the other hand, if this supplementary leave seeks the protection of the mother in connection with the effects of pregnancy and motherhood, the difference in treatment might be justified.
The Court notes that “the duration of and the manner in which the supplementary maternity leave is exercised must also be appropriate to ensure the biological and psychological protection of the woman and of the special relationship between the woman and her child during the period after childbirth, without exceeding the period which appears necessary for that protection”. In other words, even though the Court did not rule directly on the validity of the clause (this responsibility is incumbent on the national court), as a result of its analysis, such leave should not be deemed to be entirely restricted to women (CJEU, 18 November 2020, case C-463/19, CFTC).

• Gas: On 23 November, the European social partners in the gas industry (Eurogas and the European trade union federations EPSU and IndustriAll Europe) adopted a common position on the issue of a Just Transition within the framework of the European Green Deal (see press releases issued by EPSU, IndustriAll Europe and Eurogas).


• Hospitality: On 27 November, the European social partners in the hospitality sector – HOTREC and EFFAT – agreed a joint statement on rebuilding the hospitality sector (see press releases issued by EFFAT and HOTREC).


• Metalworking and electronics: The European social partners in the metalworking and electronics sectors – Ceemet and IndustriAll Europe – have agreed a joint position on the impact of digitalisation on the world of work in the met industries (see press releases issued by IndustriAll Europe and Ceemet).

Towards supervision of platform work : The Federal Ministry of Labour has unveiled the key points of a plan entitled “Fair work in the platform economy” (Faire Arbeit in der Plattformökonomie), which seeks to introduce social regulation of the platform economy. The Federal Ministry of Labour wishes to create a “digital market social economy” by ensuring that self-employed workers, whose services are increasingly offered via online platforms, are protected by social security law and employment law. In particular, the ministry wants to: 1/ include platform workers in the statutory pension regime and ensure that platforms pay social security contributions; 2/ enhance the cover provided by the accidents-at-work insurance regime; 3/ grant workers the right to organise themselves and to engage in collective bargaining with platforms to determine their working conditions; 4/ reverse the burden of proof required in lawsuits where workers are seeking to have their employment relationship reclassified as that of employees; 5/ provide for the portability, from one platform to another, of assessments given to workers; 6/ set minimum notice periods for ending the employment relationship, which would depend on the employee’s length of service with the platform (see press release issued by the Federal Ministry of Labour). The plan has been welcomed by the metalworkers’ union IG Metall (see press release).

Working conditions in abattoirs : On 27 November, the two main parties making up the ruling coalition (CDU/CSU and SPD) reached agreement on the draft law concerning the improvement of occupational health and safety in abattoirs. The law, which was drafted at the time when Covid-19 clusters were proliferating at abattoirs due to the poor working conditions to be found there, will be passed by Parliament in mid-December and will enter into force in early 2021. In substance, once it is in force, this draft law will stipulate that at companies with more than 50 employees, the tasks of slaughtering and butchering can be carried out only by employees of the company itself. The use of contracts for services (Werkvertrag) – and thus of subcontracting – will no longer be allowed from 1 January 2021 onwards, and the use of temporary agency workers will be banned from 1 April 2021. This plan has been welcomed by the trade union confederation DGB (see press release) and the food industry trade union confederation (see NGG press release).

• Extension of short-time working scheme: The draft law to protect jobs in the wake of the Covid-19 pandemic was passed by Parliament on 20 November, together with two draft orders relating to short-time working and its remuneration. These laws will enter into force on 1 January 2021 (see press release issued by the Federal Ministry of Labour).

National agreement on teleworking : On 26 November, all of the social partners, with the exception of the CGT, reached agreement on teleworking. This agreement supplements the existing legal framework and sets it out in greater detail, but does not create any new rights. According to the signatories, it is “a tool for providing assistance with social dialogue, and support with negotiations” for branches and businesses. The employer, in conjunction with the employee, must define “times during which he/she can be contacted, in accordance with the working hours in force within the company”. Other than in exceptional circumstances, such as a health crisis, the frequency of recourse to teleworking is to be determined by agreement between the employer and employee. The agreement does not prohibit full-time teleworking, but emphasises the importance of achieving a balance between time spent teleworking and time spent working on site, to prevent the social connection being broken (see also press release issued by the Ministry of Labour).

Delivery rider reclassified as an employee: : On 24 November, the Palermo Court handed down an innovative decision in the area of classification of the employment relationships of couriers working for delivery platforms, in this case the Glovo platform. Although some courts had previously managed to extend one aspect of employment law to these riders indirectly, by granting them the status of so-called “quasi-subordinate” self-employed workers, over whom the platform has certain powers to organise their work, in this case the Sicilian court managed to apply employee status directly to a delivery rider who considered that he had been unfairly dismissed, by being excluded from the platform. The court relied in particular on a recent order issued by the EU Court of Justice (CJEU, 22 April 2020, case C-692/19, Yodel) to highlight the fictitious nature of the freedom enjoyed by the delivery rider in organising his work. According to the court, the ways in which the Glovo platform was set up forced the delivery rider to remain at the platform’s disposal for a certain period of time before performing his service and to stay within a certain geographical area, just like an employee, while the system established for ranking the performance of delivery riders contained a series of consequences comparable to disciplinary sanctions.

Renegotiation fails to reach a successful conclusion : The management of the US telecommunications group Verizon has dissolved its European Works Council, which was established under English law, and immediately set about the task of making the appointments required to set up a new European Works Council, this time under Irish law. This choice, made by central management, was prompted by Brexit (European Works Councils). The original agreement, signed on 20 October 2016, was concluded for a fixed four-year term (Article 13). This article states that after three years, the parties shall reassess the agreement and can decide either to keep it in force for a further four years or to renegotiate it. In the event of renegotiation, the agreement will remain valid and in force. This clause is subject to differing interpretations. In management’s view, as the agreement is a fixed-term arrangement, it will come to an end no later than its expiry date (20 October 2020). The agreement remained in force during the negotiation period, but was automatically extinguished on that date, as no agreement was reached regarding a new text. Consequently, the European Works Council no longer exists. Management is therefore at liberty to instruct its representative in Ireland to set up a new special negotiating body and to initiate the process for appointing EWC members in the various Member States concerned (Special negotiation body).
This analysis is disputed by the EWC’s “former” members. In the opinion of the EWC’s former secretary, Jean-Philippe Charpentier (CFTC), the renegotiation of the agreement already in progress should continue for as long as necessary, without the 20 October deadline being applicable. The provision stipulating that the agreement remains valid and in force during the renegotiation obliges management to keep the EWC active until the negotiation comes to an end.

• Making use of a directive’s subsidiary requirements : The parties have failed to reach agreement on setting up a European Works Council at the residential-homes-for-the-elderly group ORPEA. The European Public Service Union (EPSU) is critical of a management that “has used any possible stratagems” to keep talks going until the three-year negotiating deadline provided for by Directive 2009/38 expired, and calls on management to set up a EWC as soon as possible, pursuant to the directive’s subsidiary requirements (see EPSU press release), which stipulate the minimum arrangements applicable if the negotiations aimed at concluding an agreement on the EWC’s functioning do not reach a successful outcome.
  

Disputes : In a ruling dated 19 November, the Paris Appeal Court upheld the order handed down on 9 October by the Paris ordinary court in the case brought by several employee representation bodies (Economic and Social Committees) of the Suez group against the managements of Veolia and Engie. In particular, this order called for the operation resulting from Veolia’s offer to purchase Suez shares held by Engie, to be suspended until such time as the Economic and Social Committees concerned had been informed and consulted about decisions that had already been taken and announced publicly. The Suez EWC wished to intervene in the appeal proceedings. And it was entitled to do so, in the view of the Appeal Court: Article 554 of the French Code of Civil Procedure provides that persons who were neither parties to, nor represented at, a first-instance case, or who featured in the case in another capacity, can still intervene in appeal proceedings, provided they have an interest entitling them to do so. Article 1 of the EWC agreement defines the European Works Council as a body for informing and consulting employee representatives on matters that concern the entire Suez group (parent company and subsidiaries). “It therefore justifies the EWC’s right to take part in these proceedings” before the Appeal Court.

• Support for the textile industry’s supply chain : Further to the joint declaration signed with Inditex (see IndustriAll press release), the IndustriAll Global Union federation and the German group Tchibo have now signed a joint declaration, publicly reaffirming and strengthening their commitment to work together to help the garment industry to recover from the crisis created by the global pandemic (see IndustriAll Global Union press release).

Empowerment of women : At the plenary meeting of its European Works Council held on 18 November, the Korian group signed the Women Empowerment Principles) document. This programme, which is part of the UN Women and UN Global Compact initiative, defines seven principles supporting women’s empowerment in the workplace, in the labour market and in society (see Korian press release).

Health and well-being : The insurance group Axa has announced the launch of a global programme to improve the health and well-being of its 121,000 employees. This commitment, which is formalised in a charter signed by and between the EWC secretary and management, seeks to “better align the benefits offered to its employees across the globe”. This programme will be deployed from 2021 onwards: 1/ Each employee will be able to benefit, at no expense to themselves, from a complete in-person or digital medical check-up depending on their age, receive an annual flu vaccination and participate in information and awareness days. 2/ Employees who encounter difficulties in their professional or personal life, will benefit from an employee assistance program which provides psychological support and guidance, accessible at all times (see press release issued by Axa management and press release issued by the CFE-CGC trade union).