IR Notes

MEPs have adopted a report, by 385 votes in favour and 118 against, calling on the European Commission to submit a proposal for a revision of Directive 2009/38 on European Works Councils by 31 January 2024. This step has been welcomed by the European trade union movement, which regards it as a successful conclusion to several years of pressure exerted through its More Democracy at Work campaign (see ETUC press release). The purpose of the text, which is supported by a broad majority of Parliament’s largest political groups, giving it an undeniable strength, “is not to reinvent the wheel, but to strengthen the existing law and apply it more effectively”, explains its rapporteur Dennis Radtke, MEP (EPP) (see “A question for…”, opposite). The report contains a resolution, as well as a more detailed legal annex covering the various articles of Directive 2009/38 that require amendment. Without going into detail, the philosophy here is to point out that European Works Councils serve a useful purpose, especially when they maintain “a relationship of trust between the EWC and the management based on a constructive dialogue” and that placing obstacles in their way is no longer acceptable. Examples include: consultation taking place after the employer has already made its decision or even started to implement this, excessive use of confidentiality clauses designed to prevent information and consultation rights being exercised effectively, making it difficult or even impossible to access the legal system, ineffective sanctions in cases involving a breach of information and consultation rights, etc. Parliament also wants to make it easier to set up EWCs by boosting the resources available to the special negotiating body and by shortening the deadline for negotiating an agreement, from the current three years to 18 months. This desire to make European Works Councils effective is prompting Parliament to formulate proposals that are at odds with the positions adopted by employers: as far as sanctions are concerned, these proposals include granting the courts powers to prevent the employer making a decision until the EWC has been consulted and bringing the financial penalties applicable, which at present are often insignificant, into line with those stipulated by the EU’s GDPR regulation: a fine of 10 million euros or up to 2% of the company’s global turnover (or double this amount in the event of an intentional breach). MEPs also want to bring all opt-out agreements, especially those concluded in September 1994 and September 1996, into line with the future directive (see European Works Councils). Consequently, a full range of measures will be available to ensure that companies take European Works Councils seriously, addressing many of the problems experienced so far by EWCs that have attended hearings with MEPs. We shall have to see what remains of the text once it has completed the next stage: the Commission, which is now going to analyse it, will no doubt perform a sorting process of its own before submitting a proposal for a directive to the European social partners, within the framework of the two consultation cycles provided for by the treaty. These partners can be expected not to negotiate on the revision, as the employers’ organisations are totally opposed to it. BusinessEurope believes that it will be “counter-productive for competitiveness”, is likely to slow down the decision-making process within companies and will include “unrealistic penalties”. “It’s surplus to requirements – even the Commission believes so”, adds Germany’s influential employers’ organisation BDA, which is calling on the Commission to abide by the principle of “Better regulation” (see Better Regulation). This however has long served as the basis for inaction in the area of social legislation. The vote in Parliament is certainly a victory for the trade unions, but a long battle lies ahead and the positions set out in the Radtke report will be difficult to maintain.

Strengthening social dialogue : On 25 January, the European Commission presented two texts on the topic of strengthening social dialogue in the EU: a communication from the Commission and a proposal for a Council recommendation. This initiative, which was announced in March 2021 at the Porto summit (see IR Notes 159), adopts proposals contained in Andrea Nahles’ report (IR Notes 157).  In the recommendation, the Commission emphasises the weaknesses of social dialogue and of the actors taking part in it in the Member States, and calls on the Twenty-Seven to strengthen social partners’ organisations, involve them more closely in social policymaking and promote collective bargaining (see Strengthening collective bargaining). The communication, for its part, relates to EU-wide social dialogue and seeks to strengthen European sectoral social dialogue, promote agreements between social partners, involve them in EU policymaking – not limited to social policy issues – and improve the “technical and financial support” provided for social partners (see press release issued by the Commission and European social partners). European social partners have reacted positively (see press releases issued by the ETUC, SMEunited, SGI Europe, Ceemet), mainly concerning the proposal for a recommendation. However, criticism is emerging regarding the communication. For example, in a joint press release, the European trade-union federations say that they expect the Commission to: 1/ “define the criteria on the legislative implementation of European agreements”, 2/ determine who can take part in EU sectoral social dialogue committees; 3/ maintain “its logistical and financial support for sectoral social dialogue committees” and “enhance its political support” (see press release). In a separate press release, the European Public Service Union (EPSU), which clashed with the Commission and took its case to the Court of Justice, in an attempt to have the agreement on information and consultation in central government administrations converted into a directive (IR Notes 169 and EPSU case), delivers a scathing verdict (see press release). EPSU believes that the Commission is not relinquishing its right to exercise an appropriateness check before deciding to submit a European agreement to the Council, with a view to its implementation via a European directive. Admittedly, it is offering social partners “administrative support and legal advice” and promises to notify them of its “preliminary considerations” within three months after receiving a European agreement. It will then notify the social partners of whether it has decided to commission an impact assessment. However, in the end, it alone will decide, without setting any time limit for issuing its decision to refer a European agreement to the Council, with a view to having it converted into a directive. Another contentious issue is that details of the resources earmarked for the Commission, for the purpose of allowing it to promote sectoral social dialogue, have yet to be confirmed. And the Commission’s announcement that it plans, in the name of its environmental commitments, to “develop a new and greener approach” to organising sectoral social dialogue meetings, by developing the use of videoconferencing, is worrying the social partners, and especially the trade unions. However, one aspect of this Commission initiative is still missing: it announces plans to engage in the modernisation of the framework for EU sectoral social dialogue and for a possible revision of the Commission’s Decision 98/500 on the establishment of sectoral dialogue committees. This will be an opportunity to provide the final clarifications and maybe to create a new sectoral social dialogue committee in the area of social services, which still awaits green light from the Commission.

• Minimum income : On 30 January, the Council adopted a recommendation on adequate minimum income ensuring active inclusion, as per the proposal put forward by the European Commission on 28 September 2022 (see IR Notes 193 and Minimum income). By the end of 2030, “income support for persons lacking sufficient resources” should reach at least one of the following levels: the national at-risk-of poverty threshold; or the “monetary value of necessary goods and services, including adequate nutrition,  housing, healthcare and essential services” (see press release).
  
  

“Platforms” directive : On 2 February, the European Parliament approved the decision to commence negotiations regarding the proposal for a directive to improve conditions for workers on digital labour platforms. Negotiations regarding the adoption of this directive will be able to commence once the Member States have decided their own position (see press release and Platform work).

> See also: Article by Aude Cefaliello, a researcher at the European Trade Union Institute (ETUI), in the Journal of Work Health and Safety Regulation, highlighting the fact that the legal and financial responsibilities for preventing (physical and psychological) risks are shifted onto these “independent contractors”, even if they “do not have the organizational means and powers to do so”.

Women’s economic empowerment : At a conference organised by the Swedish Presidency of the European Union (see press release), Carlien Scheele, Director of the European Institute for Gender Equality (EIGE) outlined the direct relationship between women’s access to financial resources – in other words, economic empowerment – and gender equality. Progress in these two areas is achieved in parallel, she explained (see press release).  EIGE will explore this theme in greater depth in a report on gender equality and financial independence, which is intended to support the Belgian Presidency of the EU in the first half of 2024.

Part-time working : A paramedic recruited on a part-time basis was paid a gross wage of 12 euros per hour, whereas his colleagues working full-time at the same company were being paid 17 euros per hour. The company justified the difference in pay on the grounds that less planning is required for the work of full-time employees who have to come to work at times determined by their employer, whereas part-time employees are free to organise their own working hours by indicating their availability times. The Federal Employment Court held that part-time workers who have equivalent qualifications and are performing an identical activity should not be paid a lower hourly wage than full-time workers. The fact that an employee has to come to work at times determined by their employer does not justify paying them a higher hourly wage than a worker who is free to accept or decline the duty hours offered to them (see press release).

DGB’s demands : On 23 January, Germany’s main trade union confederation DGB set out its political priorities for 2023. To cope with “the many changes taking place simultaneously, both for people individually and for society as a whole”, DGB Chairwoman Yasmin Fahimi is calling for a “democratic renewal”, involving the adoption “of a national action plan to boost collective labour agreements”. Adopting the target set by the recent directive on adequate minimum wages, she urges the federal government to commit to the target “of raising the percentage of workers covered by collective agreements to at least 80%”. For her part, with a view to boosting women’s participation in the labour market, DGB Vice-Chair Elke Hannack has called for care provision tailored to different needs: “not just for very young children but also schoolchildren and family members who need to be cared for”, as well as ten days of paid leave for fathers at the time their child is born. (see press release).

Sexual harassment : On 1 February, the Minister of Employment, Ane Halsboe-Jørgensen (photo), presented a bill to Parliament, implementing several initiatives contained in the tripartite agreement on sexual harassment, which was concluded in March 2022 between the previous government and the social partners. It aims to boost efforts to combat sexual harassment and promote a healthy culture in the workplace. Among other things, the bill proposes to increase the amount of compensation payable to victims of harassment in particularly serious cases, and to improve the position of students and apprentices who fall victim to sexual harassment. This law is due to enter into force on 1 July 2023 (see press release).

Transfer of employees : A number of workers employed by the construction company Roadbridge were transferred to the United Kingdom but lost their jobs a few months later, after the company went into receivership. They received their redundancy entitlements under UK legislation. However, representatives of the SIPTU trade union won their case when they took it to court, citing Section 25 of Ireland’s Redundancy Payment Act, 1967. This states that anyone who has worked in Ireland for longer than in the UK should receive payment under Irish legislation, which offers more favourable terms (see press release).

• Telework : The Employment Code, amended by a law passed on 1 December 2022, now includes teleworking provisions. Article 6718 of the Employment Code states that work can be performed in whole or in part at the place indicated by the employee and agreed with the employer. Rules will have to be set, governing health and safety inspections carried out in the context of remote working. An employer is required to agree to a remote working request submitted by a pregnant employee, a parent who is bringing up a child aged under 4 or a child with disabilities, or by an employee who is caring for a close family member, unless this arrangement is not feasible due to the work management system in place or the type of work being undertaken by the employee. Remote working can be carried out occasionally, at an employee’s request, provided that this is for no more than 24 days per calendar year. The same law allows employers to perform sobriety tests on their employees, as well as tests to detect the presence of other addictive substances.

• Fire and rehire : Following the scandal involving the ferry company P&O, which made 786 seafarers redundant in March 2022 (see IR Notes 182) and then rehired some of them under less favourable conditions, on 24 January, the government announced plans to introduce a statutory code of practice to crack down on “unscrupulous employers that use the controversial practice of ‘fire and rehire’” (see press release). The code will make it clear to employers that they must not use threats of dismissal to pressurise employees into accepting new terms, and that they should have “honest and open-minded” discussions with their employees and representatives. The reaction from the Unite trade union, which had called for this practice to be banned by law, is scathing: this initiative is an “insult to workers and their families”. Instead of banning this practice, “bullying bosses like those at P&O – who use this abhorrent tactic to boost their profits – are presented with a ‘code of practice’.” (see press release).

European funding : European Works Councils should now find it easier to access funding for European projects, following a judgment handed down on 21 December 2022 by the EU General Court, ruling that the Commission was not entitled to reject the project funding application submitted by the consultancy company EWC Academy and two European Works Councils, those of DS Smith and Mayr-Melnhof Packaging, on the grounds that these EWCs were unable to provide “guarantees” of their sound financial capacity, as they had no budgets, bank accounts or annual accounts to demonstrate this (see EUGC, 21 December 2022, Case T-330.21, EWC Academy GmbH). This decision is echoed by the Radtke report (see Lead story), which highlights “the difficulties of EWCs to access financial support provided by the Commission” and “the urgent need to facilitate the application procedure and reduce all administrative burdens to access this funding”.

A new council : On 17 January, after nearly three years of negotiations, the management of Worldline (13,500 employees), a former division of the Atos group, concluded a European Works Council agreement. It contains a number of interesting provisions, firstly in terms of seat allocation, using a method for distributing seats among the various countries that achieves a balance between large and small countries, and secondly as regards the criteria justifying the convening of an extraordinary meeting.

Ukraine : Eurofound recently published a comprehensive fact file describing working conditions and industrial relations in Ukraine. This is particularly useful insofar as a declaration by the European Trade Union Confederation, to which the country’s two main trade-union confederations now belong, openly criticises decisions taken by the Ukrainian government to curb workers’ rights and the influence of trade unions. The ETUC’s view is that such a policy can only delay the country’s application for EU membership.