IR Notes

A footballer who scores an own goal always makes people feel uneasy, but history will only remember the final score. The same goes for the definitive adoption, on 3 February, of the decree-law of 28 December 2021 relating to Spanish labour market reforms (see IR Notes 177), by just one vote. This vote was cast by a Conservative MP from the People’s Party, who was opposed to the reforms, but made a mistake during the voting procedure while voting remotely from home, and accidentally voted in favour. As a result, with 175 votes in favour and 174 against, the reforms just scraped through, handing an unexpected victory to Yolanda Diaz (see photo), who is Spain’s Second Deputy Prime Minister and also its Minister of Employment and of the Social Economy. Just before the vote, she welcomed the leaders of the two trade union confederations CC.OO and UGT, who had come to watch Parliament in session from the public gallery. The blunder made by this Conservative MP thus allowed the adoption of labour market reforms which, beyond the confines of Spain, bring an end to the long cycle of labour market reforms adopted in the EU with a view to making employment more flexible. These reforms are seen as significant in Spain (see interview opposite and analysis by Francisco Gomez Abelleira), but the same is true at European level, as they mark a paradigm shift. Firstly, as Pablo Sanz de Miguel emphasises, they are based on a dialogue between the social partners which, all too often, have either not been listened to properly or have even been completely left out of the process of preparing the labour market reforms observed within the Union. Secondly, the objective of combatting the “duality” of the labour market – i.e. the excessive proportion represented by temporary jobs within the total employment market – was set by the European Commission, which made such reforms a pre-condition for obtaining EU funding. This is a more laudable position than the one the Commission was previously defending within the framework of the troika, i.e. advocating cuts in public expenditure and liberalising whole swathes of employment law. In the end, this voting error may create a virtuous circle if EU Member States finally admit that greater flexibility of labour and a wholesale increase in precarious employment pose a threat to social justice, and thus to the foundations on which peace rests. As Yolanda Diaz explained in the public gallery of Spain’s Parliament, “reforming employment and giving it the key social and political focus it deserves, is about defending democracy” (see op-ed in El Diaro). A minor voting error, but a major step forward for social justice…

New rules on the posting of drivers : The rules related to the posting of drivers, fixed by Directive 2020/1057, came into effect on 2 February. Member States will now need to provide transparent information about the remuneration payable to posted drivers carrying goods on their territory, and who are deemed to be posted workers. This information will be published on the Your Europe website. Road transport operators will also be required to submit their drivers’ posting declarations on a dedicated website (see press release issued by the European Labour Authority) (see European Labour Authority).

• Whistleblower Directive: None of the Member States had transposed Directive 2019/1937 of 23 October 2019 on whistleblower protection by the deadline set (17 December 2021). At the present time, according to the EU Whistleblowing  Monitor, 7 Member States have adopted a transposition text, while no action has been taken in Hungary. The process is under way in all other Member States.

Health and safety at work (1) : On 1 February, the European Parliament’s Committee on Employment and Social Affairs adopted, by a large majority (43 votes in favour, 3 against and 8 abstentions), its report on the new EU strategic framework on health and safety at work 2021-2027, presented by the European Commission in June 2021 (see IR Notes 167). In this text, MEPs call in particular for better protection of the mental health of health care professionals and other frontline workers, and for “an EU directive on psychosocial risks and well-being at work aimed at the efficient prevention of psychosocial risks in the workplace of, inter alia, anxiety, depression, burnout and stress”. They call on the Commission to present legislation establishing minimum requirements applicable to telework across the EU, and reiterate the demand they submitted to the Commission more than a year ago, that it come forward with a directive on the right to disconnect (see IR Notes 156). The report will be voted on at the plenary session in March (see press release).(see. Framework Directive on health and safety).

Health and safety at work (2) : On 19 January, the European Economic and Social Committee (EESC) adopted an opinion on “Social dialogue as a tool to promote health and safety at work”. In response to the EU strategic framework on health and safety at work 2021-2027, presented by the European Commission in June 2021 (see IR Notes 167), the EESC is calling for EU legislation to be adopted on psychosocial risks (PSR), focusing on the working environment, and for the draft directive on musculoskeletal disorders (MSD) to be reactivated. The opinion recommends that the legislation on artificial intelligence (AI) should be amended, because “systems that assess workers’ behaviour, working time and performance and detect their emotions, when qualifying as high-risk AI, should be subject to third-party conformity assessments”. Teleworking should also be “regulated by collective bargaining in order to prevent the difficulties that have been identified in numerous surveys”. The opinion emphasises that “the European Framework Agreement signed in 2002 is not suited to meeting these new challenges” and that “new guidelines [should] be drawn up, with a particular focus on [preventing] PSR and MSDs”.

A just transition in the civil aviation sector : On 3 and 4 February, the French Presidency of the EU organised an “Aviation Summit”, at Toulouse (France), resulting in the adoption of the “Toulouse Declaration on future sustainability and decarbonisation of aviation“, which supports the goal of achieving carbon neutrality in the air transport sector by 2050. The signatories emphasise “the importance of also encouraging the social sustainability of the air transport sector” and of placing with this issue on a par with its “environmental and economic sustainability”. They also “acknowledge the social dimension of the transition to sustainable aviation and the importance of encouraging social sustainability and a just transition, mainly via appropriate social dialogue at all stages, and by enhancing the qualifications and skills of its workforce.” (see press release). “Trade unions are satisfied that the principle of a Just Transition and social dialogue have been included as key factors in the move towards greener aviation”, says the trade-union federation IndustriAll Europe (see press release), while the European Transport Workers’ Federation (ETF) too, is pleased with the declaration (see press release). The European airlines organisation A4E (see press release) and the air traffic management industry body (Canso) (see press release) have also expressed their satisfaction with the declaration.

A single collective bargaining agreement in the metalworking industry : After six years of negotiations, on 7 February, the social partners in the metalworking sector signed a single national collective bargaining agreement that will replace the 78 agreements currently in existence (76 territorial agreements, plus a sector-wide agreement covering the steel industry and a national agreement covering engineers and managerial staff). This new agreement, which will enter into force on 1 January 2024, will be supplemented by territorial agreements dealing with aspects not covered by the single collective bargaining agreement, which will apply to 1.4 million employees (see press release).

• Whistleblowers: After an agreement was reached on the joint committee staffed by members of both Chambers of Parliament (CMP), on the bill seeking to enhance whistleblower protection, which transposes EU Directive 2019/1937 of 25 September 2019 into French law, Parliament is expected to definitively pass the law on 16 February. The coalition of 36 associations and trade unions assembled by the Maison des Lanceurs d’Alerte [‘Whistleblowers’ Organisation’] has expressed its satisfaction at “the significant progress in terms of whistleblower protection” contained in this text (see press release). The new law will allow these associations and trade unions to become “whistleblowing facilitators” and to enjoy the protection granted to whistleblowers. It will also abolish the requirement for whistleblowers to follow an internal procedure and refer their concerns to their employer in the first instance, before they consider reporting the matter to an authority.

Right to request remote working : On 25 January, the government submitted a bill awaited within the framework of resuming on-site working, in the wake of the Covid-19 pandemic and of the development of teleworking in rural areas of Ireland. This bill will entitle employees who have completed at least six months’ service to ask their employer to agree to remote working (Draft Scheme of the Right to Request Remote Working Bill 2022) (see press release). It has not created a “right to teleworking”, because the employer is not obliged to agree to the request under any circumstances. In fact, the text sets out a long and indicative list of 13 “business grounds” that the employer can invoke as the basis for rejecting the employee’s request for remote working, ranging from the nature of the work not allowing for it to be done remotely due to health and safety reasons, through to data protection grounds or concerns on the part of the employer regarding the commute between the proposed remote working location and the employer’s on-site location. The bill establishes a formal framework and rules to be followed, both by the employer and the employee submitting the request, which are to be set out in a “Remote Working Policy” guide produced by the employer. This guide, to which the employer must draw their employees’ attention, must clearly set out the formal rules to be followed when submitting, accepting or rejecting a request, as well as the time period allowed for making a decision, plus the specific terms that will apply to remote working. If the request is rejected, the employee must wait twelve months before submitting a further request. If the employer fails to compile a remote work policy guide, they will be liable for a fine of 2,500 euros. The bill, which is due to be scrutinised by Parliament, has been criticised by the Irish Congress of Trade Unions (ICTU), whose general secretary, Patricia King, argues that “the 13 sweeping and subjective criteria” that the employer can use as the basis for rejecting such a request, “do not strike a balance between employer and employee needs” (see press release).

• Support for employers : The government has set up a platform that businesses can use to register for financial support to help them cope with the increase in the minimum wage, which rose from 665 euros to 705 euros on 1 January. This support can be as much as 112 euros per employee. To qualify for it, companies must register by 1 March.

Paid leave for workers incorrectly classified as independent contractors : On 1 February, the England and Wales Court of Appeal handed down a judgment of significance for workers who have been incorrectly classified as independent contractors, regarding the matter of paid annual leave. This case concerns the application of the right to paid annual leave, as guaranteed by Article 7 of EU Directive 2003/88 of 4 November 2003, and by Article 31 of the Charter of Fundamental Rights of the European Union. The respondent Pimlico Plumbers argued that Gary Smith, who had worked for the company as a plumber from 2005 to 2011 was not an employee, but a self-employed independent contractor and although he was entitled take leave, this was unpaid leave. After his contract was terminated by the company, Gary Smith took his case to the Supreme Court and won recognition as a “worker”*, thereby entitling him to four weeks’ paid leave under the UK legislation transposing the European directive (see IR Notes 100). Pimlico Plumbers argued that because Gary Smith had taken his leave entitlement, he had benefited from the rest periods provided for by law. However, as he had not requested payment for this leave within the two-year time limit provided for by law, it was too late to him to seek redress. This line of reasoning was followed by the lower court, but rejected by the Court of Appeal. Relying on the King judgment (CJEU, 29 November 2017, Case C-214/16), it points out that the right to paid leave is one and the same right: a right to leave, and to paid leave. The Supreme Court holds that if the worker takes unpaid leave because the employer disputes this right and refuses to pay him or her, then the worker is not exercising his or her right to take paid leave. Although domestic legislation may stipulate that leave entitlement lapses at the end of each year if the worker has not taken it, the Court takes the view that if they are to lose this leave, the person concerned must have had the option of exercising the right conferred on them. Consequently, a worker can only lose his or her leave entitlement if the employer can prove that it specifically and transparently gave the worker the option to take it, and informed the worker that his or her entitlement would be lost at the end of the year if he or she did not take it. If the employer fails to discharge this obligation, the entitlement to paid leave is not extinguished, but continues accumulating until the employment relationship comes to an end, at which point the worker is legitimately entitled to payment for all leave taken but not paid, with no time limitation. According to some experts (see below), this decision is expected to particularly affect digital platforms employing workers who are incorrectly classified as independent contractors, and whose employment status might now be reclassified as employees or “workers”.

* “worker”: a hybrid status under British law, granting a number of social rights

> Find out more: analysis of this judgment by law firm Lewis Silkin.

• Menopause in the workplace : Following the adoption of the first government-led Women’s Health Strategy for England, which seeks to tackle the gender health gap, the inaugural meeting of the UK Menopause Taskforce was held on 3 February (see press release). This taskforce will tackle issues surrounding the menopause, including increasing access to treatment (one of which should be available over the counter at a pharmacy, without requiring a prescription), and ending the taboos and stigmas that still surround conversations about the menopause. This taskforce will meet once every two months for 18 months, and one of the scheduled meetings will cover “menopause in the workplace”.

European companies : A new SE-Works council: On 23 November 2021, the management of the J.P.Morgan bank signed an agreement on the involvement of employees in J.P. Morgan SE, at the time of its conversion into a European company (SE). This text applies to the 2,752 employees of the US bank who work in the EU. The main countries represented on the SE’s works council are: Ireland (685 employees) and Germany (557), each with 4 representatives, followed by Luxembourg (508) and France (481), each with 3 representatives. In total, there are 26 seats on the works council, which covers 14 countries. The United Kingdom is not represented. The agreement makes it clear at the very beginning that no decisions that come within the scope of the works council’s competence shall be be implemented at a European, national, local or site level until the SE works council has been informed and consulted. The transnationality clause assigns competence to the SE works council where the employees of a single country are concerned, if they have no employee representation of their own. Information and consultation concerning exceptional circumstances are limited to projects that have “a substantial impact”, insofar as they affect at least 4% of the group’s workforce. Members are entitled to five days of training per calendar year, for which they have a budget of 1,000 euros per member at their disposal to cover the costs of courses and travel. Each member will receive a corporate credit card, to prevent them having to finance advance payments. The company, which has been created under German law, has a supervisory board, one third of whose members are employee representatives.

> See also: agreement on employee participation in TIER Mobility SE, recently published on line.

Violence and harassment at work : On 27 January, the management of the Italian energy company ENI (33,000 employees) signed an addendum to its global framework agreement with the international Uni Global Union federation and the Italian trade-union federations (Filctem CGIL, Femca CISL and Uiltec UIL), for the purpose of incorporating the provisions of ILO Convention 190 and Recommendation 206 towards the elimination of violence and harassment in the world of work, into this agreement. It states that “ENI must provide a world of work free from violence and harassment”, and the group opts for “zero tolerance”. The agreement applies to all workers, regardless of their status and, as provided for by ILO Convention 190, includes violence and harassment occurring beyond the physical workplace, including using digital tools. The parties agree on the mechanisms to be put in place for providing information and training, and for reporting (see IndustriALL Global Union press release ).

Fundamental rights in the supply chain : On 21 January, in conjunction with the international trade-union federation IUF, the management of the British retail giant Tesco (360,000 employees), signed an innovative agreement guaranteeing fundamental rights for workers employed in the group’s supply chain. This memorandum of understanding, which does not apply to employees working in the retail sales sector, places the emphasis on how women in global foods supply chains can benefit from “effective grievance mechanisms” (in the event of breaches of fundamental rights, violence or sexual harassment), “freedom of association and trade  union representation”. The IUF notes that “as agriculture is one of the three most dangerous industries, the agreement includes commitments to joint activities to promote safe workplaces”. With this goal in mind, Tesco and the IUF will meet three times a year (see press releases issued by IUF and Tesco).

• Health and safety at work : On 1 February, the international trade-union federations BWI and IndustriAll Gobal Union, and the European trade-union federation EFBWW sent a letter to the management of HeidelbergCement, calling for occupational health and safety issues to be addressed more effectively by initiating a social dialogue on this subject with the three federations, and ensuring that health and safety committees are in place on all of the company’s sites (see press release).

Teleworking : The World Health Organisation (WHO) and the International Labour Organization (ILO) have published a new healthy and safe telework technical brief, calling for measures to be put in place to protect the health of employees who work remotely. The brief emphasises that telework offers various benefits, all of which can improve physical and mental health and social well-being.

> Other news: The ILO has published its annual report World employment and social outlook: Trends 2022 , analysing the state of labour markets after two years of the pandemic.

Industrial disputes : On 8 February, the European Foundation for the Improvement of Living and Working Conditions published a report on collective labour disputes in the EU (see executive summary and full report). The report emphasises the variety of legislation in place governing the right to strike, given the absence of harmonisation at EU level, and notes a downward trend in industrial disputes, at least those taking the form of strikes. The report places these labour disputes in 5 categories (“clusters”) and then evaluates their respective significance within Member States. The authors nevertheless lament how hard it is to produce international comparisons, due to the absence of reliable statistics in this area. They call for the adoption of an international standard.