IR Notes

On 23 September, when passing a bill transposing Directive 2019/1158 of 20 June 2019 on work-life balance, the Irish government announced that, by means of an amendment to this bill, it would introduce paid leave for victims of domestic violence, as recommended by a report published the same day (Domestic Violence Leave Report and recommendations). Once enacted, this bill will entitle persons who are suffering – or at risk of – domestic violence, to take up to five days of paid leave per year. The government will put in place support for employers to assist them in developing domestic violence workplace policies and to better support employees experiencing domestic violence. The government is already talking about the possibility of doubling this leave within two years (see press release). For its part, Spain, which in 2004 passed the first legislation to protect victims of domestic violence, has now passed new cross-cutting legislation in the form of its Implementing Act 10/2022 of 6 September 2022, which provides a “total guarantee of sexual freedom”. This law seeks to protect women and children who are victims of sexual violence. The concept of “sexual violence” is defined as any sexual act of a non-consensual nature or one that that limits the victim’s freedom of sexual expression, in any public or private sphere, including the digital sphere. The introduction to the law notes that “the physical, psychological and emotional impact of sexual violence may seriously affect women and girls, who may be subjected to power relationships in which this type of violence is ongoing, or which prevent them from fulfilling a personal project in their lives.” The law calls on employers to put in place specific procedures to prevent sexual harassment, to receive complaints from victims and to combat violence in the digital sphere. They are invited to “establish measures to be negotiated with workforce representatives, such as the preparation and dissemination of codes of good practice, information awareness campaigns, action protocols or training actions”. Sexual violence must be included in risk assessments and companies that implement these provisions will be entitled to apply for the “Companies for a Society Free of Sexist Violence“ label. Victims will enjoy the same rights as those granted to victims of gender-based violence, i.e. the right to a reduction in or adjustment of working time; to geographical mobility; a relocation; or termination of the employment relationship. A female employee will be entitled to change her place of work for a period of between 6 and 12 months, and to terminate her contract of employment when this period comes to an end. She will then be entitled to compensation amounting to twenty days’ wages for each year’s service (capped at 12 months) and will also qualify for unemployment benefit. An employer who hires a temporary worker to replace the victim will have their social security contributions relating to that employee paid for 6 months. Lastly, the law states that absences or late arrivals at work caused by a physical or psychological situation resulting from sexual violence, will be deemed to be justified and paid as normal. A dismissal on these grounds would therefore not be legally valid. Experts say that it is likely that case law will extend these provisions, which currently apply only to women, to include male victims of sexual violence, if the situation arises.

> To find out more about the new Spanish law, see article by Henar Álvarez Cuesta, Professor of Employment Law and Social Security Law (León University), and about the concept of “domestic violence”, see Article 3b of the Istanbul Convention.

Protection of workers exposed to asbestos : After being pressurised to act by a resolution passed by the European Parliament (see IR Notes 172), on 29 September, the European Commission presented a communication entitled “Working towards an asbestos-free future” (see Asbestos) and a proposal for a revision of Directive 2009/148/EC of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work (see press release and Questions and Answers: Towards an asbestos-free future). At the present time, “4.1 to 7.3 million workers are exposed to asbestos, 97% of whom work in the construction sector, and 2% in the waste management industry”. The revised directive seeks to improve protection of workers by cutting the current limit value for occupational exposure to asbestos by a factor of ten, i.e. from 0.1 fibres per cubic centimetre (f/cm³) to 0.01 f/cm³. This threshold is the same as those in force in Germany and France. However, it is higher than the values set in Denmark (0.003 f/cm³) and the Netherlands (0.002 f/cm³) and the threshold that Parliament wants to introduce (0.001 f/cm³). In a report dated 1 February 2021, the European Chemicals Agency points out that asbestos fibres are genotoxic carcinogens and there is no threshold below which the concentration of airborne asbestos fibres is harmless. The Commission also announces that: 1/ it will develop updated guidelines to support Member States, employers and workers in implementing the revised directive; 2/ it plans an awareness-raising campaign on the safe removal of asbestos. The Commission would like to see the revised directive adopted quickly, so it will have to be transposed within two years. The European Trade Union Confederation believes that the “European Commission has sided with business lobbyists” (see press release).

Minimum incomes : On 28 September, the European Commission called on Member States to modernise their minimum income schemes to help the EU achieve its target of reducing the number of people at risk of poverty or exclusion by at least 15 million people by 2030 (see press release). In its Proposal for a Council recommendation on adequate minimum income ensuring active inclusion, the Commission firstly calls for the minimum income to apply at an individual level per person and not per household, and secondly, wants the procedure for applying for minimum income to be accessible, simple and accompanied by information that is easy to understand, in order to reduce the phenomenon of unclaimed benefits.

Access to collective bargaining for self-employed workers : On 29 September, the European Commission adopted Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons (see Collective bargaining and competition law). These guidelines specify the circumstances in which certain self-employed workers who find themselves in a situation comparable to that of employees, can group together for collective bargaining purposes, in order to secure better working conditions, without infringing EU competition law. The guidelines apply to: solo self-employed people who: (i) provide services exclusively or predominantly to one undertaking; (ii) work side-by-side with workers; or (iii) provide services to or through a digital labour platform. The Commission explains that it will not enforce EU competition rules against collective agreements made by solo self-employed people who are in a weak negotiating position (see press release).

Compensation for dismissal : On 26 September, the European Committee of Social Rights (ECSR), which is the Council of Europe’s body overseeing the application of the European Social Charter, published its decision regarding the sliding scale of compensation payable for unfair dismissal in France (the so-called “Macron scale”). The ECSR concludes unanimously that this scale, which the courts are required to apply, is in breach of the Charter. The Committee “considers that the ceilings (…) are not sufficiently high to make good the damage suffered by the victim and be dissuasive for the employer”. Moreover, “the courts have [only] a narrow margin of manoeuvre in deciding the case on its merits by considering individual circumstances of unjustified dismissals”. Consequently, the real damage suffered may not be made good and “the right to adequate compensation or other appropriate relief within the meaning of Article 24.b of the Charter is not guaranteed”. In a previous decision adopted on 11 September 2019, (ECSR, 11 September 2019, Complaint No. 158/2017), the ECSR had already held that Italian law was in breach of the European Social Charter with regard to the capping of redundancy payments.

• Civil aviation: On 16 September, the social partners in the civil aviation industry adopted a joint statement on unruly passenger behaviour.


• Railway sector: On 16 September, the social partners in the railway sector presented a report entitled “Employability in the Rail Sector in Light of Digitalisation and Automation”. The document issues recommendations for developing digital transformation projects (see press release).

• Transposition of directives : At the National Employment Council [Conseil national du travail], the social partners have signed two new national collective labour agreements (CCTs) transposing European directives. CCT no. 161 transposes Directive 2019/1152 of 20 June 2019 on Transparent and Predictable Working Conditions. It establishes a legal entitlement for employees who have worked for an employer for at least six months to request a form of employment with more predictable and more reliable working conditions. CCT no. 162, which transposes Directive 2019/1158 of 20 June 2019 on Work-Life Balance, gives workers who are carers the right to request flexible work patterns. Both CCTs came into force on 1 October (see press release).

Institutional bullying : On 30 September, the Paris Court of Appeal delivered a ruling in the case brought by former employees (or their families) of the France Telecom group (now Orange) against the group’s former directors, regarding the pressure exerted by management on employees, with a view to persuading them to leave the company during its restructuring process. Two directors were given suspended prison sentences. The Court held that there had been “institutional bullying.” It noted that “the harassment resulting from the target set by the directors, i.e. that of cutting the workforce, created an ongoing climate of insecurity for all employees, and produced a domino effect, culminating in a number of employees suffering from depression, attempting suicide and actually committing suicide.” Sébastien Crozier, President of the CFE-CGC Orange union believes that “this a historic judgment that will see the banning of management methods that involve perpetrating violence against employees” (see press release).

• Labour market reform : The government has presented a number of employment-related measures, including a 10.15% increase in the minimum wage on 1 January 2023, taking this to 1,756.20 euros per month (see press release). A bill has also been announced, covering the following issues: pay transparency; limiting the use of non-competition clauses that inhibit mobility in the labour market; encouraging the recruitment of employees on open-ended contracts (setting a limit of three fixed-term contracts with the same employer). The government wants to tackle the use of bogus self-employed workers and to make it compulsory to use an online tool to determine the nature of the employment relationship. Lastly, the burden of proof that a worker really is self-employed will lie with the presumed employer.

• Teleworking :
  
  

  Law no. 142 of 21 September 2022 adopts the arrangements established by Article 25 bis of Decree-Law no. 115/2022 of 9 August 2022, which extends the simplified emergency telematic communication procedure applicable to teleworking (smart working) for private-sector employees to 31 December 2022, without the move to teleworking requiring an individual agreement to be signed between the employer and the employee (see press release).

Towards further dismantling of employment law : The new government has published two texts that will have consequences for employment law. The first of these is the Retained EU Law (Revocation and Reform) Bill. The second is the Growth Plan 2022, which sets out measures intended to improve the UK’s competitiveness. The first text provides for the expiry of EU-derived legislation on 31 December 2023, which could mean the abolition of legislation transposing EU regulations on working time, transfers of undertakings (the “TUPE” law), and fixed-term, part-time or temporary employment contracts. All government departments are required to draw up a list of laws to be abolished. The bill also brings the principle of the supremacy of EU law over UK law to an end. The government maintains that these reforms “will reduce the barriers caused by unnecessary and excessive [EU] regulation to allow businesses to realise their potential.” The Growth Plan provides for the introduction of a minimum service in the event of transport strikes and the repeal, on 6 April 2023, of the “Off-payroll” (IR35) rules that make the work provider responsible for determining whether a person recruited via a contract signed with an intermediary company is an employee or self-employed. The person recruited will then be responsible for determining their employment status and for paying their own social security contributions. Lastly, the government also intends to introduce legislation that will “make it easier to settle industrial disputes by ensuring meaningful employer pay offers are put to employees”.

Cancellation of a redundancy procedure : In Italy, the Trieste court has ruled that the Finnish multinational company Wärtsilä exhibited “anti-union behaviour” by announcing the closure of its Trieste site without consulting workforce representatives. The court cancelled the collective redundancy procedure and ordered the company to pay a joint sum of 150,000 euros for reputational damage to the three trade unions (Fim, Fiom, Uilm) that had challenged the decision in court (see Fiom-Cgil press release). Andrea Orlando, Italy’s Minister of Employment, commented that this judgment “proves that the trade unions were right, and demonstrates the soundness of the policy we have opted for, namely tougher regulations to protect workers in cases where companies flout the rules when they relocate” (see press release).

Maintaining an EWC following a restructuring : On 22 September, the Vallourec European Works Council issued an opinion on the reorganisation announced by the group at the end of 2021, involving the closure of its German sites (2,400 employees) and a restructuring of its French sites (250 job losses), including the closure of the Saint-Saulve site and restructuring of the Scottish site. EWC members express their regret at “a strategy for exiting Europe without any clear plan”, with further transfers of production to Brazil. They want to see “exemplary support” provided to the employees who are being made redundant. EWC secretary Michel Cardon (CFE-CGC) emphasises that the council arranged for information to be circulated among employees on the various sites, especially regarding progress made in the negotiations conducted at local level, which ended in September. The EWC’s future is uncertain, following the closure of all the sites in Germany. However, the scope of the agreement is “Europe” and the workforces in France and Scotland still meet the directive’s thresholds of application (1,000 employees in the group, including at least 150 employees in a second Member State).

Algorithmic management : a report published by Friedrich-Ebert-Stiftung explores the extent to which 1/ workers are aware of algorithmic management practices at their workplace; 2/ trade unions engage in collective bargaining concerning algorithmic management; 3/ employers implement practices to prevent and mitigate the negative impact of AM usage. A Policy brief published by the European Trade Union Institute (ETUI) analyses the algorithmic management provisions contained in the proposal for a directive to enhance the working conditions of platform workers. This text foresees new rights governing the use of algorithmic management. The document notes a number of shortcomings, and rights that are unclear and difficult for workers to exercise, and puts forward a series of recommendations to enhance these provisions which, let us remember, could be extended to cover all workers, which is what MEPs want.