IR Notes

The 2019 strike by SAS pilots in Norway, Sweden and Denmark lasted seven days and resulted in the cancellation of 4,000 flights due to be operated by this airline. One of the 380,000 passengers whose flights were cancelled, decided to assign his compensation rights to the claims-management company Airhelp, which applied to the courts for 250 euros compensation (the amount permitted under EU Regulation no. 261/2004). The air carrier argued that this strike constituted an “extraordinary circumstance” within the meaning of that regulation, thus exempting it from the obligation to pay compensation. In its ruling, the Court of Justice held that the SAS pilots’ strike is not an “extraordinary circumstance” (CJEU, 23 March 2021, Case  C-2820, Airhelp, and press release). It points out that two cumulative conditions apply to the concept of “extraordinary circumstance” under its case law. This concept refers to events which firstly, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned, and secondly, are beyond that carrier’s actual control. These two conditions are cumulative, and they must be assessed on a case-by-case basis and interpreted strictly (CJEU, 17 April 2018, Case C-195/17, Krüsemann not avaible in English), concerning a ‘wildcat strike’ by pilots). The Court goes on to emphasise that “strike action is a fundamental right laid down in Article 28 of the Charter of Fundamental Rights of the European Union”. Even though strike action embodies a moment of conflict that seeks to paralyse activity, the Court holds that it “nevertheless remains one of the ways in which collective bargaining may manifest itself and, therefore, must be regarded as an event inherent in the normal exercise of the activity of the employer concerned”.  Thus, “a strike whose objective is limited to obtaining from an air transport undertaking an increase in the pilots’ salary, a change in their work schedules and greater predictability as regards working hours constitutes an event that is inherent in the normal exercise of that undertaking’s activity, in particular where such a strike is organised within a legal framework.” In the Court’s view, since the right to strike is a fundamental right for workers, the fact that workers invoke that right and launch strike action “must be regarded as foreseeable for any employer, in particular where notice of the strike is given”, which was the case here. The Court holds that the carrier could not be unaware that the pilots intended to put forward demands and that it had, in principle, “the means to prepare for [a strike] and, as the case may be, mitigate its consequences, with the result that the employer retains control over events to a certain extent.”

• Tripartite social summit : On 24 March, EU leaders and social partners came together for the tripartite social summit that traditionally precedes the European Council (see Tripartite Social Summit). The press release issued following this summit emphasises plans for a Social Europe. Looking ahead to the Social Summit due to be held in Porto on 7 May, Charles Michel, President of the European Council, said: “we will put social Europe at the top of our political agenda”, and called for “sustainable growth that is measured in more than GDP”. Ursula von der Leyen, President of the European Commission, observed that the Porto summit “will be an opportunity for everyone, trade unions and employers, but also civil society and institutions, to renew our joint commitment on the Social Europe we want to build”. Luca Visentini, General Secretary of the European Trade Union Confederation (ETUC), struck a less lyrical tone, calling on Member States to “make full use of EU support to prolong job and wage protection until recovery is complete and extend it to cover all working people.” He also noted that “half of the EU SURE funds to protect jobs and wages are unused” (see press release).

Wage agreement in the metalworking industry : On 30 March, the IG Metall trade-union federation and North Rhine-Westphalia employers reached a wage agreement covering the region’s 700,000 metalworkers. The plan is for this “pilot” agreement to then be adopted in Germany’s other regions, to cover the 3.8 million workers employed in the metalworking and electronics industries. The agreement provides firstly for a 500-euro “Corona virus bonus payment” in June 2021, and secondly, a 2.3% monthly increase. This increase will be “saved up”, so that it will represent up to 18.4% of one month’s wages in February 2022, rising to 27.6% of one month’s wages in February 2023 (i.e. 12 x 2.3%). This wage supplement, known as Transformationsgeld [‘transformation money’] can be paid either as a lump sum or, for companies experiencing difficulties, converted into leave. In conjunction with other items making up a worker’s overall remuneration package, Transformationsgeld is intended to facilitate the transition to a 32-hour week, without cutting the worker’s monthly wage pro rata to the reduction in working hours (IG Metall press release).

• Wage agreement in the steel industry: On 27 March, the IG Metall trade-union federation and the employers reached a wage agreement covering the steel industry in north-west Germany (70,000 employees). It will apply until 31 May 2022. On 30 June 2021, employees will receive a 500-euro “Corona virus bonus payment”. They will subsequently receive two further 250-euro wage supplements, one payable on 28 December 2021 and the other on 28 February 2022. From 28 February 2023 onwards, this wage supplement will rise to 600 euros, paid as a lump sum. This supplement, which will then be revised in line with future wage negotiations, can be converted into leave by collective agreement, to protect jobs. The additional payment of 1,000 euros per year, which was introduced in 2020, is renewed. It will be paid in June 2022 and, at the employee’s option, can be converted into leave days (IG Metall press release).


• Works council: The government has passed the bill presented by the Federal Minister of Work, Hubertus Heil (SPD), which is intended to strengthen works councils. To persuade the other coalition parties to vote for the bill, the word “strengthening” has been replaced by “modernisation”. However, the aim remains the same: to make it easier to set up works council within companies, by providing better protection for employees who call for the creation of a council; and to strengthen the powers of these councils, in particular by creating a co-decision-making right that will apply where companies wish to introduce artificial intelligence.

The future lies in rural areas : The government has unveiled its Our Rural  Future strategy for rural development, covering the period 2021 to 2025, and complementing the Project Ireland 2040 plan. This strategy recognises “the fundamental importance of rural towns, enterprises, and people to our national prosperity and wellbeing”. This highly ambitious plan, which offers up the prospect of ecological transition and a carbon-neutral economy, is the first to emerge in Europe since the pandemic. It puts forward numerous measures, several of which are intended to develop teleworking and to attract talent to live and work in rural areas: creating 400 teleworking spaces and the right to teleworking from 2021 onwards, and setting a target (at least 20%) for employees in the public sector to move to teleworking. More generally, with a view to reducing inequalities and modernising the rural world, the strategy puts forward a number of measures to revitalise rural areas, create jobs, improve access to new technologies, develop apprenticeships, set up social enterprises and lastly, to embark on a vast investment plan aimed at enhancing the quality of rural life. These measures include a Rural Youth Assembly to give a voice to young people; developing services; and enhancing access to higher education on line.

Unvaccinated employee placed on compulsory leave : the Belluno Court has issued an order in the context of urgent proceedings, allowing an employer to place a nurse, who was employed in a residential care home and refused to be vaccinated, on paid leave. The court’s decision was issued under Article 2087 of the Civil Code, which orders employers to ensure the safety of their employees. The decision also affirms that administering the Covid-19 vaccine is an effective measure in these circumstances. The employer’s freedom to fix periods of paid leave means it can use this to remove the nurse from his workplace on a temporary basis. However, the court does not rule on whether the employee can be suspended without pay or made redundant.

• Covid-19 : On 25 March, the Council of Ministers extended until 31 December 2021 the exceptional and transitional arrangements covering the reorganisation of work, aimed at minimising the risks of COVID-19 transmission through contact in the workplace (see press release). This regime was enacted by Decree-law 79 –A/2020, which was initially due to come to an end on 31 March. These arrangements will therefore now remain in place through to the end of the year, “without prejudice to the possibility of a further extension following consultation with the social partners”. These exceptional arrangements apply to companies with more than 50 employees, which are located in territorial zones deemed to be at risk. In order to maintain physical distancing, the employer is required to stagger the times at which employees start and finish work, and to adapt their working hours and break times. The employer must also promote teleworking, “where the nature of the activity allows this”.

• Artificial intelligence. The Trade Union Congress (TUC) is pursuing a campaign (“Dignity at work and the AI revolution”) calling for UK data protection law to be amended, so that it includes a universal right to “explainability” of AI systems in the workplace, and the right to ask for a personalised explanation. In particular, the TUC is proposing a new right to data reciprocity, and is calling for a new role for the trade unions, and for ethical behaviour at all stages of the AI production and implementation chain.  The TUC is highlighting the fundamental values that employers should adhere to whenever they introduce artificial intelligence.

Parental leave : To encourage men and women to share the role of parent equally, the car maker Volvo has decided to grant its 40,000+ employees around the globe, the right to 24 weeks of parental leave, remunerated at 80 per cent of their base pay. The press release states that a pilot scheme was launched in the EMEA (Europe Middle East & Africa) zone in 2019, in which 46 per cent of all applicants were fathers. This measure is backed by communications that have been prepared with the help of behavioural scientists, to ensure that the persons concerned do not feel reluctant in any way to take this leave. For example, the checklist for communications promoting the scheme emphasises the need to speak of ‘24 weeks’ rather than ‘up to’ 24 weeks of leave, as saying ‘up to’ might encourage employees to request a shorter period of leave (see press release).

Maternity and paternity leave : On 22 March, the Italian banking group UniCredit announced that from April onwards, it would be granting all of its employees (most of whom are in Europe) 16 weeks’ maternity leave on full pay and 4 weeks’ paternity leave on full pay (see press release). This measure is part “of a broader approach to work-life balance, as discussed with the European Works Council”, says Emanuele Recchia, Head of Industrial Relations, Labour Policies and Welfare at UniCredit.

Health and safety at work : On 15 March, the management of the catering services group Sodexo and the international trade-union federation IUF signed a Declaration of Intent , “on health and safety, including the pandemic as prompted by COVID-19 Crisis”, to be appended to their international framework agreement dated 12 December 2011. Both parties urge the trade unions and the representatives appointed by Sodexo to embark on negotiations at national and/or local level, with a view to concluding agreements on health and safety at work, that will be consistent with the mutually accepted global approach and principles (ILO conventions), and to review their existing agreements at regular intervals.

Teleworking : On 22 March, the Scottish Trades Union Congress (STUC) published the results of the Covid-19 and Working from Home survey, for which academics questioned 3,000 workers about their experiences of working from home, and their hopes and fears for the future. The study was commissioned by the STUC, with the support of several trade unions, and was performed by the Universities of Manchester and Strathclyde. Responding to the survey findings, STUC General Secretary Roz Foyer emphasised that “significant numbers of workers have experienced work intensification and stress over the past year, yet for many others the overall experience has been positive.” Professor Phil Taylor said: “There is a majority preference from workers of wanting to spend two days or less in the workplace.” However, a ‘blanket’ approach is inappropriate. There is also compelling evidence that Working From Home [‘WFH’] is not desirable for a significant minority. Employers will need to accommodate, and unions to represent, multiple, often contrasting, worker interests and preferences. The development of agile or hybrid arrangements should follow best practice by being fully negotiated with unions (see press release).