IR Notes

It was considered outmoded during the period when neo-liberalism was the dominant ideology but collective bargaining (see Collective bargaining)is now back at centre stage: in 2019, the OECD published a report stating that “collective bargaining is essential to help workers and companies adapt to changes in the labour market and ensure an inclusive and prosperous world of work” (see IR Notes 130). At the end of 2020, the European Commission put forward its proposal for a directive on adequate minimum wages in the European Union. One of the pillars of this directive is strengthening collective bargaining in Member States to such an extent that 70% of workers are covered by a collective agreement. In the Commission’s view, introducing widespread collective bargaining via national action plans should see a rise in minimum wages in the European Union. Whatever happens to this proposed directive, it is likely that the instruction to Member States to place greater emphasis on collective bargaining will also feature in the recommendations sent out by the Commission each year to States as part of the European Semester process, which seeks to achieve convergence of economic and social policies. The Report on strengthening EU social dialogue, presented on 3 February by Andrea Nahles, Special Advisor on Social Dialogue to Nicolas Schmit, Commissioner for Jobs and Social Rights, also seeks to involve social partners to a greater extent in the task of implementing the European Pillar of Social Rights and to strengthen the role of actors engaged in social dialogue in Member States (see below). Collective bargaining is also repeatedly advocated as a way of improving the working conditions of platform workers, although this would mean revising EU competition law to ensure that collective labour agreements concluded by the “self-employed” are not deemed unlawful agreements that limit competition. Lastly, the role played by collective bargaining was emphasised on several occasions at the recent ETUC-ETUI conference, held from 3 to 5 February this year (we will return to this in the next edition of IR Notes), where it was described as an essential tool for adapting work management to the challenges posed by decarbonisation of the economy. It was also cited as a way of urgently adapting work management systems to cope with the pandemic and of supervising recourse to teleworking. Much is now expected of collective bargaining. However, another challenge remains: finding ways to strengthen the actors who are involved in it. This is also one of the issues highlighted in Andrea Nahles’ report.

• European Social Fund : On 28 January, the European Parliament and Council concluded an agreement on the European Social Fund+. This fund, for which the sum of almost 88 billion euros has been earmarked for the period 2021-2027, will help to boost social inclusion and job opportunities, and to fight poverty (see press release issued by the Parliament).

Proposals for strengthening social dialogue : On 3 February, Andrea Nahles, Special Advisor on Social Dialogue to Nicolas Schmit, Commissioner for Jobs and Social Rights, submitted her Report on strengthening EU social dialogue with the aim of contributing to the Action Plan on the implementation of the European Pillar of Social Rights (see Social Pillar), which the Commission will present in March this year. This plan is subsequently due to be adopted by the Twenty-Seven at the Porto Social Summit on 7 and 8 May this year. Andrea Nahles, the former General Secretary of Germany’s Social Democratic Party (SPD), who was also Federal Minister of Work from 2013 to 2017, is formulating ten proposals: 1/ Creating a European award for good practice in the area of social dialogue, to be awarded every two years, in order to highlight innovations in this area. 2/ Setting up a two or three-week training programme in the field of European social dialogue, for future leaders of national employers’ and trade-union organisations. 3/ Greater involvement of countries’ national social partners in preparatory work on recovery and resilience plans within the framework of the European Semester. 4/ Reviewing the workings of the Tripartite Social Summit (see Tripartite Social summit), which brings together social partners and representatives of European institutions on the eve of the European Council meeting, and of the social dialogue committee, which is the forum for discussions between European social partners at cross-industry level. 5/ Improving the consultation process for European social partners (at either cross-industry or sectoral level) on the initiatives taken by the Commission in fields other than social affairs (energy, the environment, transport, etc.). The report proposes that each of the Commission’s directorates-general (DG) should appoint a member of staff responsible for social dialogue, who can guarantee effective consultation on these initiatives at an early stage. 6/ Increasing the number of European agreements. The report does not offer a recipe for doing so, but announces that the Commission will take a position once the European Court of Justice has passed judgment on the case brought by EPSU against the Commission (see IR Notes 156), in order to “clarify how any future requests by EU social partners for the incorporation of their agreements into EU law are to be handled. A transparent process based on clear criteria is needed”. 7/ Financial support for the creation, in each country, of national registries of collective agreements, including company agreements. Such registries “are a valuable information resource, ensure transparency, and can help the social partners when negotiating new collective agreements”. However, some signatories have yet to be convinced of the need to cooperate in this area: the issues involved seem very complicated in some countries. 8/ Funding programmes, notably via the European Social Fund, to strengthen the capacities of national social partners. 9/ Encouraging exchanges of experience and of good practice by setting up a platform supported by the Commission. 10/ Enhancing dialogue on future-oriented subjects (digitalisation, climate change) with the support of the European agencies concerned (Eurofound, EU-OSHA and CEDEFOP). Social partners could offer to include “forward-looking dialogues of this nature” in their future work programmes. Lastly, the report concludes with a prudent suggestion: a revision of the European framework directive 2002/14/EC on workers’ information and consultation rights, “so as to include common minimum standards for European and national companies, to prevent misuse in the form of letterbox companies or chains of subcontractors”. This proposal does not feature in the Commission’s work programme and Commissioner Nicolas Schmit is not keen on the idea.

• How European social partners have reacted : Andrea Nahles’ report grants most of the requests formulated by European social partners in a joint statement published on 18 December 2020, though it remains evasive on the issue of funding European sectoral social dialogue. In this connection, in a joint statement, European social partners in the services industry criticise the Commission for shifting the costs of running sectoral social dialogue committees onto them (see UNI-Europa press release). The European Public Service Union points out that this report comes at a time when trust between the Commission and the social partners is at a low. EPSU is expecting to work with Commissioner Nicolas Schmit on “how to deal with negotiated agreements” (see press release).

Due diligence : The Legal Affairs Committee of the European Parliament has adopted (21 votes in favour, 1 against and 1 abstention) a draft legislative initiative that will introduce due diligence for European companies. The report calls on the Commission to urgently put forward a law ensuring that companies are held liable for any adverse effects caused by them, or to which they have contributed, in terms of human rights, the environment and good governance. This legislation should also guarantee access to legal remedies for victims (see press release).
> Find out more: documents published by the European Parliamentary Research Service: 1/ EPRS Study: Corporate due diligence and corporate accountability; 2/ EPRS Briefing: Towards a mandatory EU system of due diligence for supply chains
> Taking action: A campaign to introduce due diligence is being waged by several trade unions and NGOs.

A European plan for beating cancer : On 2 February, the European Commission issued a communication on “Europe’s Plan for Beating Cancer”, in which it emphasises the importance “[of reducing] exposure to carcinogens in specific settings like the workplace, where 52% of annual occupational deaths in the EU can be attributed to work-related cancers”. It plans “to present a legislative proposal in 2022 to further reduce workers’ exposure to asbestos to protect them from cancer risks”. Moreover, the new Occupational Safety and Health Strategic Framework 2021-2027 “will set strong commitments to reduce occupational exposure to chemicals”. In 2022, it will embark on a study of cancer survivors’ return to work, in order to evaluate national policies in this area and to identify any ongoing obstacles and challenges. The European Trade Union Confederation’s opinion is that “the level of ambition” shown by the Commission “is disappointing”. According to Per Hilmersson, ETUC’s Deputy Secretary General, “more than 100,000 people die every year from occupational cancer – around 10% of all cancer deaths in Europe. Work-related cancer should be a specific ‘flagship initiative’ in the plan”. (see press release)

• Leather industry: On 2 February, European social partners in the leather industry (Cotance and IndustriAll Europe) embarked on an EU-sponsored project (ERICA) that will allow them to examine and compare collective agreements concluded at national level in their sector (see press release)


• Services: On 27 January, European social partners in the service industries (WEC Europe, Insurance Europe, EBF, Coiffure EU, CoESS, EFCI, EuroCommerce and ETNO) adopted a joint statement entitled “Strengthening sectoral social dialogue in the services industry: The all-important role of social partners in building a resilient Europe”.

Discrimination between workers with recognised disabilities : To enable it to benefit from a reduction in the amount of contributions paid to the public body responsible for integration of workers with disabilities, the management of a Polish clinic decided to grant allowances to employees, following a meeting held in 2013 with staff, to encourage them to provide it with disability certificates. 13 employees were subsequently granted an allowance of 60 euros per month. However, this allowance was not granted to a female employee working at the same establishment, who had submitted a disability certificate some years earlier. She and 16 of her colleagues were denied the benefit of this allowance. Interpreting Article 2 of Directive 2000/78, the Court of Justice states that protection against discrimination does not only cover discrimination between people who have disabilities and those who don’t (see Discrimination).. “The protection granted by that directive would be diminished” if discrimination within a group of persons, all of whom have disabilities, is, “by definition, not covered by the prohibition of discrimination laid down thereby solely on the ground that the difference in treatment at issue takes place as between persons with disabilities” (35). The directive “is intended to protect a worker who has a disability (…) against any discrimination on the basis of that disability, not only as compared with workers who do not have disabilities, but also as compared with other workers who have disabilities.” (36) (CJEU, 26 January 2021, Case C-16/19, VL and press release).

• Temporary collective agreement on teleworking : On 26 January, at a meeting of the National Labour Council, the social partners adopted a collective labour agreement on teleworking recommended or decreed as a result of the coronavirus crisis (CCT no. 149), which will remain in force until 31 December 2021. It does not replace CCT no. 85, which transposes the European agreement on teleworking, as the new agreement only applies to remote working scenarios decreed or recommended by the authorities in order to combat the pandemic. It obliges any companies that did not already have “normal” teleworking arrangements in place, to conclude agreements setting a clear framework for “corona teleworking”.

• Agreement for delivery riders : The 3F trade union has concluded a branch-level agreement with the employers’ organisation Danks Erhverv, which will cover workers employed by the delivery platform Just Eat through to 2023. The agreement provides for a minimum hourly wage of 16.60 euros from 1 March 2021 onwards, rising to 17.22 euros from 1 March 2022. The normal weekly working time is set at a minimum of eight hours and up to 37 hours, with an upper limit of 44 hours, including overtime (see ETF press release).

• Posting of workers : On 21 January, the Ministry of Employment published a directive governing international posting of employees to France by companies established outside France, and supervision of such postings. This text specifies the legislation and regulations applicable to posting of workers, and in particular the “hard core” of rules that constitute French employment law, which must be obeyed at all times, and the methods used to calculate the wages of posted worker.

Strategy for developing teleworking : On 15 January, the government published its first National Remote Work Strategy, with the aim of making this a permanent option for life after the pandemic. The strategy defines plans for strengthening the rights and responsibilities of employers and employees, and for putting in place the infrastructure needed for remote work. The government plans to legislate in order to grant employees the right to request remote working and it intends to introduce a code of practice for the right to disconnect.

Creation : The management of the US group Aptar and its special negotiating body (SNB) will meet on 15 February to review the draft agreement establishing its European Works Council. The group has appointed the French branch of its UK subsidiary as its representative for the purpose of negotiating the agreement which, as a result, will be governed by French law. The EWC will have 17 seats and one representative for each country with at least 20 employees. The UK representative will sit on the European Works Council for the first four years of its term, and negotiations will commence in year three with a view to reaching a decision on this representative’s future on the EWC. The main delegations come from France (4,647 employees and 7 seats) and Germany (2,156 employees and 4 seats). The EWC covers just over 7,800 employees in the EU. The draft agreement contains a highly detailed clause on the EWC’s powers and cites two topics to be focused on in greater depth: “occupational health and safety” and “sustainable development and the environment”, which will be covered at two training days. Members will be allowed 64 hours per year to perform their duties. This figure rises to 96 hours per year for executive committee members and 128 hours for the secretary. EWC members are at liberty to select whatever training body they choose to deliver a two-day course during the EWC’s term. The EWC is entitled to commission an expert of its choosing to execute a mission costing up to 60,000 euros per year. It can also seek assistance from an expert nominated by IndustriAll Europe, which has already supported the SNB during the negotiations. As far as we are aware, this is the first draft agreement to take account of the risk of a pandemic, by granting permission for the EWC to hold remote meetings (either via videoconferencing or hybrid meetings, attended by some members in person) in the event of a public health crisis, and in exceptional circumstances.

• Maternity and co-parenting : The amendment to the 2017 global agreement on minimum level of protection for employees concluded on 15 December 2020 between the management of Solvay and the Solvay Global Forum, is now available on line. The signatories are adapting the overall policy by raising it from 14 weeks’ maternity leave to 16 weeks, and extending it to include co-parents employed by the company, regardless of gender, from 2021 onwards.