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IR Notes 199 – 11 January 2023
www.irshare.eu
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Happy New Year!
The whole IR Share team sends you
its best wishes for 2023 with a special thought for our
readers in Ukraine! ! We hope it will bring you
joy, and above all peace. IR Notes, which is
now embarking on its ninth year, will be
pleased to enlighten you over the coming months.
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A question for…
Cécile Pitrou, Vice-President for Mobility and Social Dialogue at the
Engie Group
After renewing, on 20 January 2022,
the global agreement between Engie and the global trade-union
federations IBB, IndustriALL and PSI, in November you organised
the “World Forum” monitoring the application of this agreement.
It’s now one year since it was signed, so what benefits have
this agreement and this initiative delivered for the
group? This global agreement represents continuity
with the international social dialogue developed between Engie and
its employee representatives over the past ten years and more, which
has already resulted in several global agreements. However, it was
signed at a time when the group was undergoing an in-depth
restructuring, with the sale of Equans (74,000 employees) and the
introduction of a matrix organisation system, whereby the company is
divided into 4 business lines and 4 regional hubs (Europe, Latin
America, North America, Asia-Middle East-Africa). Over and above
social dialogue, the deployment of this agreement has provided
superb leverage for stimulating an internal dynamic dealing with the
issues covered by the agreement, at global level. We therefore
invited the human resource directors (HRD) of the four regional hubs
to attend the annual meeting of the monitoring body for this
agreement (the World Forum), which is made up of members of the
group’s general management plus 20 trade union representatives. This
gave rise to exchanges regarding the group’s strategy and the
deployment of the agreement; it will enable us to assess the amount
of progress made each year. These regional HRD set out how the
social indicators adopted in the agreement, and especially those
representing the basic level of social protection, had performed in
their own hub, namely: 14 weeks’ maternity leave and 4 weeks’
paternity leave on full pay; total incapacity benefit; healthcare
benefit and cover in the event of an employee’s death (see IR Notes
178). For Engie management,
getting the group’s various regions involved in implementing the
agreement at grassroots level was a real challenge. Responsibility
for implementing our commitments has been devolved to the group’s
regional entities. The Forum clarified how the social partners will
be involved in implementing the group’s Vigilance Plan. It was
agreed that the Vigilance Plan would be sent to the trade-union
federations that signed up to the agreement for checking, before
being published in the document concerning the group’s financial and
extra-financial strategy, with its risk mapping and information on
ethical alerts updated.
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Diary
30 and 31
January Hamburg (and on line, on the first
day) 15th Conference for
European and SE Works Councils, organised by the EWC Academy. Day one is
devoted to revision of the European Works Councils Directive, the
agreement signed with the Engie EWC to protect employees transferred to
Bouygues and a presentation by the Orpéa EWC secretary, who was twice
made redundant and reinstated. Programme
and registration, French-German interpreting.
13 March
Brussels
Employment and Social Policy Council.
22 March Brussels
Tripartite Social Summit.
3-4 May Stockholm
Informal meeting of Ministers of Employment and Social Affairs.
12 June Luxembourg
Employment and Social Policy Council.
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The team This issue
was producaed by
Pascale
Turlan and Frédéric
Turlan. Find out more about the IR Share
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European Industrial Relations Dictionary
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Lead
story
How will
Social Europe evolve in 2023?
2022 was a vintage year for Social Europe, with the adoption of directives on: adequate
minimum wages (see IR Notes 192 and IR Notes 188);
strengthening the representation of women on company boards (see IR Notes 197); pay
transparency (see below); and on the publication of corporate sustainability
information (IR Notes
196). The Commission also confirmed that self-employed workers are entitled
to have access to collective bargaining (see IR Notes 193). So,
a high bar has been set for an even better year in 2023! Nevertheless, several laws
are well on the way to being adopted, if the Council and Parliament can rapidly
reach agreement: the Directive on Corporate Sustainability Due Diligence (see IR Notes 181), for
which the Council has already finalised its position; the revision of Directive
2009/148 of 30 November 2009 concerning exposure to asbestos (see IR Notes 193),
which is a priority for the EU’s Swedish Presidency, which began on 1 January; and
the regulation establishing a Social Climate Fund. Other projects too, might
reach a successful conclusion: the proposal for a regulation on prohibiting products
made with forced labour on the EU market (see IR Notes 192); a
new proposal for a revision of the Directive on chemical agents that the Swedish
Presidency plans to push forward; the proposal for a directive to improve the
working conditions of platform workers (see IR Notes 195)(see
Platform work) ; and revision
of the regulations governing coordination of social security systems.
Parliament is also challenging the Commission on two matters. The first one is
teleworking and the right to disconnect. Although European social partners have
already commenced negotiations with the aim of reaching a Europe-wide agreement by
June of this year, (see IR Notes 189), the
Commission has work to do on this subject, so that it can still propose a directive
if the negotiations fail. The second is the revision of the European Works Council
Directive: according to Dennis Radtke’s legislative report, which has already been
adopted by the Committee on Employment and Social Affairs (see IR Notes 198 and
IR Notes 187), the
Commission is being invited to put forward a proposal for a directive by 1 January
2024, meaning that by then, it will have to consult the social partners and prepare
an impact assessment on a revision of the directive. In addition to these
laws, there are also a number of non-legislative initiatives. The Commission is due
to adopt a Council recommendation that seeks to strengthen social dialogue within
Member States and to revise the rules by which European social dialogue operates,
especially at sectoral level (see IR Notes 191). Also
worthy of note, on the Commission’s side, is an update of the quality framework
applicable to training courses, so that issues such as fair pay and access to social
protection can be addressed. The Commission will also present a law, the nature of
which is still somewhat vague, concerning a “global approach to mental health” that
might include an initiative on prevention of psychosocial risks at work, as
requested by Parliament (see IR Notes 190). At
the present time, these are not dealt with directly by any European
directives. The dynamic triggered in 2022 should therefore be maintained in
2023, particularly since Spain’s Minister of Employment Yolanda Diaz has clearly
stated that Social Europe will be one of the priorities of the Spanish Presidency of
the EU, which begins in July.
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1. European
Union
Projects
“Pay transparency” to pass into law :
On 15 December 2022, the Council and the European Parliament
reached a provisional agreement on the proposal for a directive on pay transparency
(see IR Notes 184),
with the aim of achieving gender pay equality (see Press
release). The text now has to be formally approved by both institutions
before it is published in the OJEU. States will then have two years to implement it.
Pay transparency applies to the remuneration structures that will allow assessments
to be made as to whether employees are in a comparable situation, based on objective
and non-sexist criteria, such as skills, effort, responsibility and working
conditions. Employees will be entitled to ask their employer for information “on
their individual pay level and on the average pay levels, broken down by sex, for
categories of workers doing the same work or work of equal value”. Likewise, a job
applicant will receive information on their initial pay level or pay bracket, based
on objective and non-sexist criteria, and on the collective agreement applicable. A
report on pay gap data will be produced once a year by businesses with at least 250
employees; this interval will be three years for businesses with between 150 and 249
employees; and for those with between 100 and 149 employees, once every three years,
starting from the fifth year after the directive has entered into force. If the
report highlights a difference in average pay of at least 5% between female and male
workers, a joint pay assessment will then be made in conjunction with employee
representatives. Sanctions are provided for, and the burden of proof that no
discrimination is involved, rests with the employer who is failing to meet their
obligations. The concept of “intersectional discrimination”, which is a combination
of gender-related discrimination and one or more other grounds of discrimination
from which protection is provided by Directive 2000/43 or Directive 2000/78, appears
in the directive (see Pay transparency).
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Regulation for machinery products: :
the Council and Parliament have reached a provisional agreement
on the regulation governing machinery and related products (IR Notes 189). This
will replace the 2006 “machinery” directive, which harmonises basic health and
safety requirements applicable to machinery at EU level, permitting its free
movement and at the same time ensuring that workers receive a high level of
protection. Once it has been formally adopted, Member States will have 42 months to
apply the rules of the regulation (see press
release). The text has been welcomed by the European Trade Union
Confederation (see press
release), particularly because it introduces mandatory third-party
conformity checks for six categories of high-risk machinery.
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Case law
Further details regarding the “overall
protection” afforded to temporary agency workers : On 15
December 2022, in a German case, the Court of Justice specified how a collective
agreement allowing temporary agency workers to be paid less than employees of the
user undertaking must provide for countervailing benefits, to respect ”the overall
protection” to be afforded to them, under Article 5 of Directive 2008/104 of 19
November 2008, on temporary agency work (see Temporary agency work). The
Court accepts that, by means of a collective agreement, the social partners can
authorise differences in treatment with regard to basic working and employment
conditions (as defined in Article 3 of the Directive: duration of working time and
pay) to the detriment of temporary agency workers. However, in order to respect the
“overall protection” of the temporary agency workers concerned, in return, this
collective agreement must afford them advantages in terms of basic working and
employment conditions which are such as to compensate for the difference in
treatment they suffer. To ensure compliance, in concrete terms, with the obligation
to respect this overall protection, an assessment must be made by comparing, for a
given job, the basic working and employment conditions applicable to workers
recruited directly by the user undertaking with those applicable to temporary agency
workers. This comparison will determine whether the countervailing benefits afforded
in respect of those basic conditions can counterbalance the effects of the
difference in treatment suffered (CJEU,
15 December 2022, Case C-311/21, CM).
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Employer ordered to pay for spectacles :
In Romania, an employee working on computers requested that his
employer pay for his spectacles. The employer refused. The employee then took his
case to court, seeking the application of Directive 90/270 of 29 May 1990 on the
minimum safety and health requirements for work with display screen equipment. This
stipulates that “workers must be provided with special corrective appliances
appropriate for the work concerned”, which “may in no circumstances involve workers
in additional financial cost”. The Court of Justice held that spectacles come under
the heading of “special corrective appliances” and that “the employer’s obligation
… may be met by the direct provision of the appliance to the worker, [or] by
reimbursement of the necessary expenses incurred by the worker” (CJEU,
22 December 2022, Case C-392/21, TJ).
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2. Member
States
Germany
Social measures planned for 2023 :
On 20 December 2022, the Federal Ministry of Labour and Social
Affairs published a press
release relating to the changes and regulations that will come into force in
2023. We note in particular: an extension to 30 June 2023 of the special temporary
provisions relating to short-time working; an end, on 7 April, to the exemption
provisions linked to the pandemic allowing meetings, including works council and SE
works council meetings, to be held virtually; and transposal into German law of the
Directive
of 27 November 2019 as regards cross-border conversions, mergers and
divisions, to be completed by 31 January 2023. It stipulates provisions
covering the protection of workers’ rights to be involved in running their company.
The law “governing obligations to exercise vigilance over the supply chain” (LkSG)
also entered into force on 1 January, for companies with their registered office in
Germany and at least 3,000 employees (from 1 January 2024, the threshold will be
reduced to 1,000). The works council’s economic committee, which is to be created in
companies with more than 100 employees, is granted competence to deal with matters
relating to companies’ obligations to exercise diligence in supply chains.
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Belgium
New measures in 2023 : The
government has set out details of the measures that will enter into force in 2023
(see press
release). We note: 1/ a refutable presumption of the existence of a contract
of employment will apply to persons working in the platform economy, where an
analysis of their situation shows that a minimum number of criteria defined by law
are met, such as exclusivity, geopositioning, setting tariffs, and restricting the
freedom to determine working hours or periods of absence. 2/ During a 30-week notice
period linked to a redundancy, an employee will be allowed to take time off work on
full pay, in order to follow up measures related to their employability, such as
training courses or a redeployment. 3/ At a company with at least 20 employees,
employees will have a personal entitlement to 4 training days in 2023. If a company
has between 10 and 20 employees, this entitlement will equate to one day per year
for each full-time employee.
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Spain
Menstrual leave: : On 15
December, the Congress of Deputies approved the framework bill on sexual and
reproductive health and voluntary interruption of pregnancy (see press
release). In employment terms, this bill provides for “sick leave” for women
suffering from “disabling menstruation”. Spain’s Minister for Equality, Irene
Montero, is delighted: “This is definitively a legislature of feminist progress”,
she says. “We are also recognising menstrual health as part of the right to
healthcare, and we are combatting stigmatisation and silence” (see article in Filo.news).
If the law is passed, Spain will be the first country in the EU to introduce
menstrual leave into its legislation.
- LGBTI rights: On 22
December, the bill for genuine and effective equality for transgender persons
and guaranteeing the rights of LGTBI persons was approved by the Congress of
Deputies. In the field of employment, the bill encourages “specialised training
for inspection personnel”, to guarantee effective compliance with rights
guaranteeing equal treatment and non-discrimination for LGTBI workers (see press
release). The CC.OO trade union confederation is pleased that this law
requires companies with more than 50 employees to have “a package of measures
and resources designed to achieve genuine and effective equality for LGTBI
persons, including a protocol of action for dealing with harassment or violence
perpetrated against them”. These measures will be put in place “through
collective bargaining and agreed with workers’ legal representatives” (see press
release).
- A paradise for digital
nomads: Law 28/2022 of 21 December
2022 on promoting the start-ups ecosystem, seeks to position Spain in
the forefront in this area, with a package of specific measures in the fiscal,
commercial, civil and employment fields. These provisions include the objective
of attracting “digital nomads”, for whom a simplified procedure has been
established, so that they can obtain a visa allowing them to perform
international teleworking and secure the right of residence, while also
benefitting from an advantageous tax regime.
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Italy
Agile working and parental leave :
Finance
law no. 197 of 29 December 2022, which has been criticised by the trade
unions for not providing a sufficiently robust response to the effects of inflation
(see press
release and memorandum
published by the CGIL labour confederation), contains a number of mechanisms,
including two measures in the area of labour law: 1/ “Agile working” will be
extended to 31 March 2023 for “fragile workers”, who will retain the right to work
remotely. If their job is not compatible with remote working, the employer must
assign the worker to a different task that comes within the same category or
classification area, as defined by collective labour agreements, without any cut in
their pay. 2/ Parental leave will be extended by an additional month. This optional
maternity leave, or failing this, paternity leave, is extended by one month and paid
at the rate of 80%. It can be taken up to the child’s sixth birthday.
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3.
Companies
European
Works Council
A new agreement : The German
lift manufacturer TK Elevator,
which was hived off in 2020 from the ThyssenKrupp group, signed a European
Works Council agreement, on 21 June 2022, covering the new independent
entity. The agreement includes the United Kingdom and Switzerland. The works council
will hold three plenary meetings a year and its select committee will meet four
times a year. Extraordinary meetings can be organised remotely. Matters relating to
the environment and climate change explicitly form part of the EWC’s competence, in
terms of information and consultation, as do psychosocial risks and pandemic risks.
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