IR Notes

This is probably one of the most progressive initiatives that the European Commission has taken in two decades: it has proposed a directive that, firstly, establishes a presumption of employment for digital platform workers who meet certain criteria demonstrating a relationship of subordination, and secondly, grants platform workers new “digital rights” in relation to algorithmic management, which apply both to employees and to self-employed workers. It’s hard to imagine that in future, this innovation in EU law will continue to be limited solely to platform workers (see press release). It was therefore no surprise that some drivers travelled to the Commission to present Nicolas Schmit, the European Commissioner for Jobs and Social Rights, with a bouquet of flowers, to thank him for listening to them. You have to go back a long time to find a representative of the Left group in the European Parliament (GUE/NGL) – in this instance it was Leïla Chaibi, who joined this delegation (see picture) – congratulating a European Commissioner. She tweeted the message “well done” to Nicolas Schmit. So, on 9 December, the Commission published three texts: 1) a communication setting out the EU approach and measures on platform work (these measures will be complemented by actions that national authorities, social partners and other relevant actors should take at their level); 2) draft guidelines clarifying the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons (see below); 3) a proposal for a directive on improving working conditions in platform work, which provides for measures enabling the employment status of digital platform workers to be correctly determined.
The proposal for a directive lists five criteria to be used for determining whether the platform is an “employer” (Article 4.2), e.g. setting the level of remuneration, supervising the performance of work or verifying the quality of the results of the work, including by electronic means. If the platform meets at least two of these five criteria, the legal presumption will then be that it is an “employer” and it will have to treat the workers in question as “employees”. If the platform disputes this classification, it will have to prove that there is no employment relationship, which will make things much easier for workers who apply for their employment relationship to be reclassified as that of employees. The directive also enhances transparency in the use of algorithms by platforms. The directive states that platforms must not use “automated monitoring and decision-making systems in any manner that puts undue pressure on platform workers or otherwise puts at risk the physical and mental health of platform workers” (Article 7.2). Furthermore, in cases where decisions go against the worker, e.g. disconnection from the platform, the latter must provide workers “with access to a contact person designated (…) to discuss and to clarify the facts, circumstances and reasons having led to the decision” (Article 8). This decision can be challenged. Platforms will also have to inform and consult workers and their representatives on algorithmic management decisions (Article 9). The text is now due to be discussed in the Council and in the European Parliament.

> Find out more: “European Commission takes the lead in regulating platform work“, an article by Valerio De Stefano and Antonio Aloisi, published by Social Europe, analysing the text presented by the Commission. See also the ETUI Policy Brief: Does it pay to work? Unpaid labour in the platform economy, which analyses the unpaid time and activities of platform workers.

Council now has the green light to negotiate two directives : At the Council meeting on 6 December, European Ministers of Employment and Social Affairs finalised their position on the proposal for a directive on adequate minimum wages in the EU (see press release, and IR Notes 151) for the Commission’s proposal). The Council adopted its position despite rejections by Denmark and Hungary, and abstentions by Germany and Austria. Negotiations can now get under way with the European Parliament (see text adopted by Parliament, IR Notes 174), with a view to reconciling their respective positions, so that the directive on minimum wages can be adopted under the French Presidency of the EU. The Council also adopted a position on the proposal for a directive on pay transparency (see press release, and IR Notes 159, for the Commission’s proposal). Negotiations concerning this directive can commence as soon as Parliament finalises its position (the Committee vote is scheduled for 10 February 2022). The text, which was adopted with five abstentions (Germany, Austria, Hungary, Sweden, Slovakia), will be used as a basis for negotiations with Parliament but one topic in particular is creating friction: the threshold above which employers will be subject to transparency obligations. The Commission’s proposal sets this threshold at 250 employees, and the Council agrees with this figure, but Parliament has a lower threshold in mind, and one of the female rapporteurs would like to set it at 50 employees. Nevertheless, while some States (Spain, Italy, Finland, Luxembourg) appear to be in favour of lowering the threshold, others, such as the Netherlands, have stated clearly that the threshold of 250 employees is a minimum and constitutes a “red line” that they will not go beyond, as reported by Janez Cigler Kraljj, the Slovenian Minister of Employment, at the press conference.
The Council also approved two conclusions: 1) on sustainable work over the life course, which will enable people to enter and remain in the world of work throughout the course of an active life; 2) on the Impact of Artificial Intelligence on Gender Equality in the Labour Market which, when used for human resource management purposes, must promote transparency and gender equality, particularly when it comes to pay, training, access to promotion and career progress.

> See also: Press release covering all items dealt with at the Council meeting.

• Access to collective bargaining for self-employed workers: : longside its proposals for assisting platform workers (see Lead story), the European Commission has also unveiled Guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons, i.e. those with no employees. These guidelines state that some categories of collective agreements concluded by self-employed workers who are “in a situation comparable to that of workers”, do not come within the scope of Article 101 of the TFEU (which prohibits agreements between companies that restrict competition within the internal market, especially if they involve fixing purchase prices or selling prices, either directly or indirectly). Solo self-employed persons placed “in a situation comparable to that of workers” are either economically dependent workers, those working “side-by-side” with workers or those working for digital platforms. The guidelines also state that the Commission will not intervene against some other categories of collective agreements, such as those concluded by solo self-employed persons with counterparties of a certain economic strength: one or more counterparties which represent the whole sector or industry; or with a counterparty whose annual aggregate turnover exceeds EUR 2 million or whose staff headcount is equal or more than 10 persons; or with several counterparties which jointly exceed one of these thresholds. When it comes to dealing with such counterparties, the Commission notes that solo self-employed persons may have insufficient bargaining power to influence their working conditions. The communication project setting out these guidelines is subject to a public consultation that closes on 24 February 2022. Contributions can be submitted by email, in all EU languages, to this address: COMP-COLLECTIVE-BARGAINING-1@ec.europa.eu.

Action plan for the social economy : On 9 December, the European Commission presented a communication entitled “Building an economy that works for people: an action plan for the social economy”, seeking to support this sector, which represents some 2.8 million entities (cooperatives, mutual benefit societies, associations, foundations and social enterprises) and 6.3% of the EU’s workforce (see Factsheet and press release. This communication is supplemented by a Commission working document and another document on “scenarios” to accompany the environmental and digital transition of the social economy, which it is submitting for consultation by stakeholders. The Commission has also announced a Council recommendation on the definition of social economy framework conditions, which it will put forward in 2023.  The European Trade Union Confederation (ETUC) has given the initiative a positive but lukewarm reception (see press release). The organisation representing employers in the sector (Social Economy Europe) is much more enthusiastic, and sees this as a successful outcome for its 2014 initiative to promote the social economy (see press release).

• Individual learning accounts and micro-credentials : On 10 December, the European Commission presented two proposals for Council recommendations, one concerning individual learning accounts and the other on micro-credentials. Member States, in conjunction with social partners, are invited to 1) set up individual learning accounts and provide training entitlements for all adults of working age; 2) create a digital catalogue, which can be accessed via smartphone, of labour-market relevant and quality-assured training that is eligible for funding from individual learning accounts; 3) offer opportunities of career guidance and validation of previously acquired skills, as well as paid training leave. The scheme’s philosophy is to put “the individual directly at the centre of skills development” (see press release and Factsheet).

• Labour mobility dispute mediation : The new European agency ELA (European Labour Authority) is now fully operational at its Bratislava (Slovakia) premises, and on 29 November, adopted a dispute mediation procedure linked to labour mobility in EU Member States and a cooperation agreement with SOLVIT. The ELA “will be able to provide national authorities a tailor-made mechanism to resolve their disputes on EU labour mobility”, focusing in particular on issues arising within the framework of posting of workers, “in a costless and timely manner” (see ELA press release).

French Presidency of the EU : At a press conference held on 9 December, the French President, Emmanuel Macron, set out the priorities of the French Presidency of the EU (FPEU), which begins on 1 January and will last for six months. In the field of social affairs, the President emphasised that “if Europe fails to provide better protection for the weakest in society, if it allows social dumping to prosper and if it looks like an unregulated market, then further Brexits will follow”. He emphasised that Europe must create jobs, and hammered home the message that “a Europe riven by unemployment will regress into the Europe that went to war. So, the main challenge we face is that of creating jobs, jobs and more jobs” (see video). “If we need to invest 100, 1000 to achieve that goal, then that’s what we must do”. France promises that adopting the directive on adequate minimum wages in the EU “will be at the heart of our presidency”. Emmanuel Macron, who wants to “apply the finishing touches” to this initiative, emphasised that “successful discussions in the Council have allowed considerable progress to be made”. Also on the presidency’s menu are the proposals for a directive on pay transparency and on setting quotas for company boards. Lastly, Emmanuel Macron also intends to take forward the proposals relating to due diligence obligations for multinational companies. The Commission has previously announced that this text would be published in December of this year (see press release and press pack).

Banking sector : On 7 December, social partners in the banking sector signed a joint declaration on remote work and new technologies (see press releases), following on from two previous declarations – one on telework (2017), and the other on the impact of digitalisation on employment (2018). The joint declaration highlights the issue of “digital rights” relating, for example, to surveillance tools used to spy on employees (principles of transparency and proportionality) and decisions taken by algorithms. The declaration also deals with collective rights, health and safety, work-life balance, working hours and the right to disconnect. The text defines remote working and invites employers to allow trade unions and employee representatives to remain in contact with teleworking employees, e.g. via “secure digital meeting spaces.

• Allowance payable in lieu of annual leave entitlement when an employee resigns: The case of an Austrian employee who ended his employment relationship by resigning “prematurely and without justification” was referred to the EU Court of Justice. He claimed he was owed payment for three days of paid annual leave that he had not taken. The employer rejected his request on the grounds that Austrian law stipulates that “no allowance is payable when a worker ends their employment relationship prematurely, without having serious grounds for so doing”. Relying on the Maschek ruling (CJEU 20 July 2016, C‑341/15), the Court holds that “the reason for which the employment relationship has ended is not relevant as regards entitlement to receive allowance in lieu of paid annual leave” and confirmed that “the fact that a worker terminates, at his own request, his employment relationship has no bearing on his entitlement to receive, where appropriate, an allowance in lieu of paid annual leave which he has not been able to use up before the end of his employment relationship.” (CJEU, 25 November 2021, case C-233/20, Job medium not available in English).


• Paid leave entitlement following illness: In a Dutch case, the Court of Justice ruled that “entitlement to paid annual leave must, in principle, be determined by reference to the periods of actual work completed under the employment contract, without account being taken of the fact that the amount of that remuneration was reduced on account of a situation of incapacity for work due to illness” (CJEU 9 December 2021, case C-217/20, Staatssecretaris van Financiën)


• On-call periods and working days system: The European Committee of Social Rights (ECSR), which is tasked with overseeing adherence to the European Social Charter (see European Social Charter) concluded within the framework of the Council of the Europe (see Council of Europe), has handed down a decision, published on 10 November, stating that on several points, French law relating to the on-call and working days system is in breach of the European Social Charter. The case was brought by the trade-union confederations CFE-CGC and CGT (see CFE-CGC and CGT press releases).

A progressive government : The new government’s 2021-2025 coalition agreement plans to raise the statutory minimum wage directly from 9.60 to 12 euros per hour, without any intermediate increases. The minimum wage commission will then decide on any further staged increases. This is one of the new coalition’s flagship measures in the field of social affairs. The coalition has announced that it will support the proposal for a directive on adequate minimum wages in the EU (and also the directive on protecting platform workers). Other measures include: 1) works councils can decide to meet on line; 2) trade unions are granted access to companies’ digital data, so that they can make contact with employees; 3) the legislation on joint management is to be retained in the context of creating a European company (SE), so that it will no longer be possible to completely prevent joint management or to limit it in cases where the SE’s workforce expands; 4) the right to work remotely, unless this is against the company’s interests. Moreover, “it should be possible to undertake mobile work throughout Europe, without any problems”. 5) promotion of coworking spaces, which “are a good opportunity to perform mobile work and to strengthen rural regions” ; 6) greater flexibility in working hours via collective labour agreements.

• Short-time working extended : Faced with the resurgence of the Covid-19 epidemic, on 26 November, the social partners and the government decided to extend the short-time working scheme, which provides a replacement income representing 90% of an employee’s net wage, through to March 2022 (see press release issued by the ÖGB trade union confederation). A 500 euros allowance will be paid to employees who were placed on short-time working after March 2020 and were still in this position in November 2021. The basis used for calculating the pay of employees who normally receive tips will also be increased by 5%.

• Leave granted to parents caring for a child with serious illness : On 8 December, Parliament definitively adopted a bill providing support for children suffering from chronic illness or cancer. It creates a specific category of leave for employees, to be taken in circumstances where their child is found to be suffering from cancer or a chronic illness, requiring the parents to spend time learning how to manage this disease. The length of this paid leave, which already exists for situations where a child is found to have a disability, is set by a collective agreement. If no agreement is in place, it must last a minimum of two days. This law applies to all businesses, regardless of how many people they employ, and to all employees, regardless of how long they have worked for the company.

Taking the menopause into account : On 25 November, commenting on a report that she commissioned from the principal employers’ organisations and associations of HR professionals, in July of this year, the Minister of Employment urged employers to take the menopause into account more fully in the workplace (see press release). The report contains a number of recommendations, mainly in terms of communication and information campaigns, and the government has promised to respond to these in the coming months. In 2019, the Chartered Institute of Personnel and Development (CIPD) published a report (see press release) emphasising that three out of five working women aged 45-55 who are experiencing menopause symptoms, say that this has a negative impact on their work, whether as a result of increased stress, difficulties with concentration, anxiety or other symptoms. According to this report, nearly 900,000 women quit their job over an undefined period, due to suffering symptoms of the menopause. This might mean that women leave companies “at the peak of their experience”, which in turn will “have an impact on productivity”. The CIPD subsequently published guidance on managing the menopause at work and related printable resources. For its part, the Women and Equalities Committee of the House of Commons is currently performing a survey on menopause and the workplace.

Sustainable development skills : The European Works Council agreement of the construction group Eiffage, which was revised on 9 September, has expanded the number of topics on which the EWC is informed and consulted: it now includes social, environmental and sustainable development policies, as well as the group’s annual report, climate report and biodiversity action plan. As far as we are aware, this is one of the first agreements to take in the issues of sustainable development, climate change and biodiversity so explicitly.

Keeping a Council in place after a EWC agreement has been revoked : On 9 December, the Versailles Appeal Court delivered a ruling on the dispute that arose between the Atos EWC (Atos SE Council) and the management of the digital services group Atos SE (107,000 employees), following the company’s decision to dissolve its Council. In 2020, management denounced the agreement establishing the Atos SE Council, and at the end of a fruitless six-month negotiation period, it then decided to abolish the body. Article 23 para. 4 of the agreement states that “in the event of notification of termination, both parties will immediately commence the renegotiation process”. This is what happened. However, the article adds that “until both parties have signed a new agreement, this agreement shall prevail” (see IR Notes 163). This provision implies that the Atos SE Council should remain in place until such time as the parties have agreed on a new text. However, management believed that this clause amounted to extending the agreement on an open-ended basis, and was therefore in breach of French law, which prohibits “perpetual engagements”. The case was referred in the form of urgent proceedings to the Pontoise court in France, which held that dissolving the Council did not constitute a manifestly unlawful disruptive action (see IR Notes 167), but at the same time ruled that this clause was subject to interpretation. However, this opinion was not shared by the Versailles Appeal Court, which firstly noted the manifestly unlawful disruptive action resulting from the Council’s abolition, and secondly, emphasised drily that “the parties do not have the power to obfuscate clauses that are already clear, especially by means of applying an interpretation that is unnecessary”. The Court’s view is that there is no doubt that “this clause clearly means that the agreement will endure until such time as another agreement is signed”. It also rejects the “prohibition of perpetual engagements” argument, emphasising that the process of negotiating a new SE Council agreement is time-limited: it is due to last for six months (which can be extended to one year), failing which the company must establish a EWC based on the subsidiary provisions of the directive on worker participation in the SE. In practice, the Court ruled as follows: 1/ dissolving the Atos SE Council was unlawful and it must be reinstated, including the mandates held by all of its members; 2) the agreement establishing the Council will remain valid on a temporary basis until at least March 2022, i.e. until the end of the period allowed for negotiating a new agreement (or until September 2022 at the latest, if the parties decide to extend the negotiations); 3) if no agreement is reached by the end of this negotiation period, management will have to set up a SE Council based on the subsidiary provisions of the directive.
In practice, even though management’s decision to dissolve the EWC was declared unlawful, management still remains in control of the negotiation: either an agreement will be reached by March 2022, seeing some EWC resources scaled back, which is what management wants, or alternatively, management will have to set up a SE Council as required by law. In reality, this new body will be much less favourable than the previous agreement denounced by management, was.

• Global agreement extended : On 29 November, the management of the French energy sector group EDF (160,000 employees), and the global union federations IndustriALL Global Union and PSI, signed a two-year extension of the Global Framework Agreement on the EDF Group’s Corporate Social Responsibility, which was concluded in 2018 for a four-year period (see IndustriAll press release).