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IR Notes 154 – 16 December 2020
www.irshare.eu
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***Everyone in the IR Share team sends
our readers the season’s greetings and wishes them an
enjoyable Christmas break. We’ll be back with IR Notes 155
on 13 January 2021, after a short winter
break.
***
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A question for…
Aurélie Decker, Director of the European Federation for Services to
Individuals (EFSI)
Along with three other
organisations (EFFAT, EFFE, UNI Europa), you’ve signed a joint
statement calling for Personal and Household Services
(PHS) workers to be included among the priority groups for
vaccination against Covid-19. Why? As a result of the Covid-19 crisis, we had
already issued a statement in April this year, calling for improved
recognition for PHS workers and for them to have easier access to
personal protective equipment (PPE), especially masks and gowns. Our
sector has been recognised in many countries as key to the provision
of service continuity, yet there is no guarantee in place that all
workers will receive PPE, even though many of them visit the
elderly. This means they have been at risk of being exposed to the
virus and of contaminating the people they have been caring for. Our
new initiative is linked to the vaccination strategy published by
the European Commission, in which our own sectors do not feature
among the priority sectors listed. The same situation exists in some
Member States, such as Ireland, where personal and household
services are not regarded as a priority, unlike sectors involving
residential care for the elderly. We have therefore worked on a
European project, which has shown there is both a real problem with
access to PPE and also a problem linked to well-being at work,
arising from the stress suffered by workers, firstly through being
exposed to the virus, and secondly through exposing the people they
visit to the same risks. Moreover, our employees enjoy few
safeguards against losing their jobs and have only limited access to
social protection, e.g. in Spain, PHS workers are not entitled to
unemployment benefits. We want to use this statement to draw the
authorities’ attention to our sector and to the 6 million or so
people who work in it (as well as nearly 3.3 million undeclared
workers).
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European Industrial Relations Dictionary
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Lead
story
Artificial
intelligence becomes a subject for social dialogue
On 30 November, the European social partners in the telecommunications sector (ETNO
and UNI Europa) issued a Joint
Declaration on Artificial Intelligence. This is the first time that European
social partners at sectoral level have produced a text devoted to this subject.
Their work follows on from the European
framework agreement on digitalisation adopted in June this year. Chapter 3
of this agreement deals with AI, and enshrines the “human in control principle” with
regard to AI (see IR
Notes 145). The social partners in the telecoms sector emphasise the
importance of social dialogue in the design and deployment of AI, especially as
regards matters such as data collection and management, ethical AI and and the needs
for workforce reskilling/upskilling in the field of AI. The social partners’
responsibility “is to help shape how AI systems are designed, developed, and
regulated, and to raise awareness about ethical concerns among AI developers and
users”. Moreover, “European trade unions and employer organisations as social
partners have an essential role to play in resolving complex questions regarding
employment, training, the nature of work, inequality, and social protection
systems.” The signatories emphasise that “AI systems should be as transparent as
possible for employees, to let them understand both how their data is used, and how
decisions affecting them are taken.” They also stress the need for vigilance
regarding “algorithmic bias and resulting employment discrimination”, to ensure that
AI works “in the service of people, not against them.” The signatories call on their
peers at sectoral level to develop training and reskilling policies, with the
support of Member States, while at the same time hiring diverse talent to handle AI.
Governments also need to “boost education and training programmes for AI and AI
ethics”. With the European agreement on digitalisation and this sector-wide
agreement in place, the social partners now have sound foundations on which they can
develop and nurture a social dialogue around AI, based on transparency.
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1. European
Union
Legislation
Human rights :
On 7 December, the Council passed a decision
and a regulation
establishing a global human rights sanctions regime. For the first time, the EU is
equipping itself with a framework that will allow it to target individuals, entities
and bodies – including state and non-state actors – responsible for, involved in or
associated with serious human rights violations and abuses worldwide, no matter
where they occurred. In addition to serious human rights violations (slavery,
torture, execution, etc.), this text covers other violations or abuses – such as
trafficking in human beings, sexual and gender-based violence and violations of
freedom of peaceful assembly, of association or of opinion – where those violations
or abuses are widespread, systematic or are otherwise of serious concern. The
sanctions envisaged consist, in the case of individuals, of a ban on entering EU
territory and the freezing of funds applying to both individuals and entities. In
addition, persons and entities in the EU will be forbidden from making funds
available to those listed, either directly or indirectly. (see press
release). > Find out more:
European Parliamentary Research Service, Martin Russel, EU
human rights sanctions: Towards a European Magnitsky Act, December
2020
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Social
update
Due diligence : An important
milestone has just been reached on the road to establishing a due diligence
requirements for European companies operating on a global basis. On 1 December, the
Council adopted a set of conclusions
inviting Member States and the European Commission to promote human rights in global
supply chains and decent work worldwide (see press
release). The Council welcomes the European Commission’s commitment to
present a legal framework for an EU Action Plan focusing on shaping global supply
chains sustainably, promoting human rights, social and environmental due diligence
standards and transparency by 2021. Lastly, the Council is calling
on States to step up their efforts to effectively implement the UN Guiding
Principles on Business and Human Rights, including through National Action Plans
containing a mix of voluntary and mandatory measures. This is the first time that
such a consensus has emerged at the level of Heads of State and of Government. As
the European Parliament is also favourably disposed towards the idea of action in
this area, it should be possible to make rapid progress, especially since several
States, including France, either already have legislation in place imposing a due
diligence on their multinationals, or are planning to introduce it. This is the case
in Germany, where Hubertus Heil, the Federal Minister of Labour, is applying
pressure at government level, with a view to presenting a draft law to this effect.
He, incidentally, has openly expressed delight at the conclusions adopted by the
Council (see press
release). In Finland, the Ministry of Economic Affairs and Employment will
be appointing a working group to support the drafting of legislation on responsible
business conduct (see press
release). This topic will also be at the heart of the Commission’s proposed
revision of Directive
2014/95/EU as regards disclosure of non-financial information, next
year. > Find out more: European
Parliamentary Research Service, Ionel Zamfir, Towards
a mandatory EU system of due diligence for supply chains, October
2020.
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A European transport strategy :
On 9 December, the European Commission
presented its Sustainable
and Smart Mobility Strategy, together with an action plan of 82 initiatives
that will guide its work for the next four years. This strategy relates to the green
and digital transformation planned for the sector, with a view to achieving the goal
outlined in the European
Green Deal: “a 90% cut in emissions by 2050, delivered by a smart,
competitive, safe, accessible and affordable transport system” (see press
release). In this sector, which directly employs around 10 million workers
in the EU, the Commission notes that working conditions are harsh and “precarious”.
In particular, it emphasises “long working hours, periods spent away from home and
low paid work”. These working conditions, the Commission adds, “are exacerbated by a
lack of respect for, and proper enforcement of, applicable labour standards”. In its
view: “Providing higher social standards would contribute directly to reverse the
current general lack of attractiveness of the sector” (paragraph 93). That is why it
is considering “measures across the different modes of transport to strengthen the
legislative framework on conditions for workers” while at the same time guaranteeing
“correct implementation [of] the applicable social rights (…)” (see Mobility package). It “will
seek to promote high social standards, including in the aviation sector” (paragraph
94). The Commission acknowledges that the green and digital transformation “– which
needs to be socially fair and just – will not come easily” (paragraph 109). It “will
issue recommendations (….) on means to mitigate their impact on the transport
workforce” (paragraph 95). The European Transport Workers’ Federation (ETF) welcomes
the commitments to improve working conditions and strengthen the enforcement of
applicable legislation. However Livia Spera, ETF General Secretary, comments that:
“Regrettably, the action plan is devoid of details on how this commitment would be
implemented” (see ETF press
release and detailed
reaction). On the employers’ side, the response to the strategy has been
mixed. It has been broadly welcomed by the employers’ organisations in the rail
sector (see CER press
release), but denounced by the road transport employers’ organisation IRU,
which fears the destruction of the coach transport sector, whose greenhouse gas
emissions are too high, in the Commission’s view – though this finding is disputed
by IRU (see press
release).
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Sectoral
social dialogue
- Europe’s economic recovery :
The European social partners in the Metal
Engineering and Technology-based sector (Ceemet and IndustriAll Europe) have
adopted a joint
statement, calling on the European Union and Member States to keep on
“investing in a swift economic recovery” and “in the future of the European
industrial base” (see press
release).
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Case law
Applying the Posted Workers Directive to road
transport : The Court of Justice has issued
a ruling on a case involving a road haulage undertaking in the Netherlands, which
used drivers hired out to it, under charter contracts, by two of its subsidiaries
located in Germany and Hungary. These drivers loaded goods in the Netherlands and
then transported them to other Member States, while also undertaking cabotage
operations in the Netherlands. The Dutch undertaking did not regard these drivers as
being posted to the Netherlands, and therefore did not apply the collective labour
agreement applicable to the road transport sector, to them. This position was
challenged by one of the trade unions that had signed this agreement: it believed
that the drivers concerned should enjoy the benefit of the agreement as a result of
being hired out in this way. The Court of Justice recalled its previous case law (CJEU,
19 December 2019, case C-16/18, Dobersberger): “A worker cannot, in the
light of Directive 96/71, be considered to be posted to the territory of a Member
State unless the performance of his or her work has a sufficient connection with
that territory” (see Posted workers). “As regards
mobile workers such as drivers working in international road transport, the degree
of connection between the activities carried out by such a worker, in the framework
of the provision of the transport service to which that worker has been assigned,
and the territory of each Member State concerned”, must be evaluated. The degree of
connection with the territory of a Member State may be characterised by the fact
that the driver himself or herself carries out “operations involving loading or
unloading goods, maintenance or cleaning of transport vehicles”. By contrast, “a
worker who provides very limited services in the territory of the Member State to
which that worker is sent cannot be regarded as ‘posted’ within the meaning of
Directive 96/71. This applies to a driver who (…) merely transits through the
territory of a Member State. The same would also be true of a driver carrying out
only cross-border transport operations from the Member State where the transport
undertaking is established to the territory of another Member State or vice versa”.
The fact that a driver who has been hired out by the Dutch undertaking “receives the
instructions related to his or her tasks, starts or finishes them at the place of
business” of the Dutch undertaking, “is not sufficient in itself to consider that
that driver has been posted” to the Netherlands, “provided that the performance of
that driver’s work does not have a sufficient connection with that territory on the
basis of other factors” (CJEU,
1 December 2020, case C-815/18, Federatie Nederlandse
Vakbeweging). >
See also:
The Court of Justice has rejected the appeals lodged by Hungary and Poland against
Directive (EU) 2018/957 amending the legislation covering posted workers. The Court
states that the EU legislature was entitled to adjust the balance inherent in this
legislation relative to the freedom to provide services, taking into account the
“overarching objectives” of the treaty, such as the promotion of a high level of
employment and the guarantee of adequate social protection. (see CJEU, 8 December
2020, case
C‑620/18, Hungary and case
626/18, Poland and press
release).
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Trade
unionism
Violence against women :
The European Transport Workers’ Federation
(ETF) has published new guidance
addressing violence and harassment against women in the world of work (see
press
release) (see violence and harassment). The
guide relies on the tools defined in ILO Convention no. 190 on Eliminating Violence
and Harassment in the World of Work and will help the social partners at company and
sector level to prepare effective workplace policies aimed at preventing and
eliminating violence and harassment against women transport workers. To underpin its
guide, EFT is also broadcasting several interviews with Dr Jane Pillinger, a global
expert on gender equality and gender-based violence at work (link to videos).
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2. Member
States
Germany
- Status of “crowdworkers” :
On 1 December, the Federal Employment Court issued a ruling
on the status of so-called “crowdworkers”. This decision states that micro-jobs
actually performed by users of an online platform, based on an agreement
concluded with an operator (the “crowdsourcer”), can be classified as an
employment relationship. This particular case concerns a platform that, on
behalf of its clients, arranges inspections of how branded products are
presented in retail outlets and service stations. To carry out these inspection
activities, it commissions workers whose main tasks are to take photos of how
goods are presented and to answer questions on product visibility. The contract
binding these workers to the platform contains an incentive mechanism that
prompted the worker, in this case, to work full-time. The Court held that as a
result, he should be regarded as an employee.
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Belgium
- Childbirth leave : On 16
December, Parliament was due to approve the draft
law-programme (see section 6, sole chapter) providing for the length of
childbirth leave, which is available both to the father and to the co-parent, to
be increased from 10 to 15 days, with effect from 1 January 2021. It will then
be raised to 20 days in January 2023. Workers will be free to choose when they
take these additional days of childbirth leave, within four months following the
date of their child’s birth. The employer will continue to provide three days’
paid leave, as at present, while the employee’s health insurance scheme will
finance the remaining days. Self-employed workers (see section 1, chapter 5)
will benefit, on the same terms, from an extension to the current paternity and
childbirth allowance introduced in May 2019.
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France
- Health and safety at work :
On 9 December, the social partners reached
a cross-industry
agreement on health and safety at work. This text requires legislative
and regulatory amendments. According to the Minister of Labour, “the government
will ensure that, when this agreement is transcribed into employment law, its
content and equilibrium are adhered to”. The main purpose of the agreement is to
boost efforts to prevent accidents at work and occupational illnesses. It
provides for the creation of a “prevention passport” for each employee,
certifying the training they have undergone in terms of health and safety at
work. The text also deals with measures intended to reduce the risk faced by
employees who fall ill or suffer an accident at work, i.e. that of finding
themselves excluded from the labour market (“preventing workers being excluded
from the labour market”). The agreement includes a section on quality of life at
work and provides for the “modernisation” of occupation health services, by
assigning a role to community medical professionals, in terms of performing
medical examinations and certifying that employees are fit to return to work.
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United
Kingdom
- Campaign for social rights: :
On 2 December, the Welsh Government decided to launch an information
campaign to encourage employees to join a trade union and employers to
join an employers’ organisation. “This is not a new concern”, explains Hannah
Blythyn, Deputy Minister for Housing and Local Government, “but COVID-19 and the
challenges it presents have intensified the need to act now”. Recalling her
experience in the trade union movement, she explains: “I know first-hand the
importance of workers and employers understanding their rights and
responsibilities and the benefits that having access to expert advice and
representation can bring.”
> See also: a campaign
launched in Scotland by the Unite union to improve the working conditions and
pay of care sector workers (see article in “The
National”).
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3.
Companies
European
Works Council
Failure to follow established consultation
procedures : On 2 December, the United
Kingdom’s Central Arbitration Committee (CAC), which is the legal authority endowed
with specific powers to deal with industrial relations, and in particular matters
concerning European Works Councils, pronounced a decision,
in a case brought against the management of the American IT group HP by its European Works
Council. This Council was originally established under UK law but has since been
transferred to the jurisdiction of Irish law. The European Works Council argued that
it had not been properly informed and consulted regarding a restructuring involving
approximately 350 job losses in Europe. The CAC found in favour of the European
Works Council and invited management to set out more detailed information at the
next plenary meeting. The CAC did not call for the process to be suspended or for an
extraordinary meeting to be convened.
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Corporate
Social Responsibility
Environmental guidelines: :
On 6 November, the French construction group Vinci and its European Works
Council adopted environmental guidelines that constitute “a framework of reference
for limiting the direct and indirect effects of our activities on the ecosystems on
which we depend”. The guidelines offer a “programme for delivering continuous
improvement and progress”, one aspect of which involves “training and raising the
awareness” of all group employees regarding environmental matters. The results of
the actions taken will be measured by indicators to be published in the group’s
annual report. They will also be presented “to the executive committee, the
management board and the European Works Council at regular intervals”. In addition,
“the environmental protection commitments given are being implemented within each
part of the business, with a view to promoting their application and continuous
improvement”.
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