IR Notes

Just over two years after the European Commission put forward its proposal (see IR Notes 159), the European Parliament has definitively adopted the directive on pay transparency (see press release and Pay transparency). The directive now has to be approved by the Council before it is published in the OJEU. Member States will then have three years to transpose the directive into their domestic law. And the employers will not have very long to prepare for this directive, which introduces many changes. Its flagship measure is the introduction of a new obligation requiring employers to produce a report on their gender pay-gap data, including on its “complementary or variable components” (Article 9). Companies with more than 150 employees will have to prepare the report four years after the directive enters into force. This exercise will then have to be repeated annually by companies with at least 250 employees, and once every three years by those with between 150 and 249 employees. Companies with between 100 and 149 employees, for their part, will have to compile this report within eight years from now, then do so again once every three years. This mechanism is supplemented by a “joint pay assessment” that must be performed in conjunction with workers’ representatives in circumstances where: 1/ the report demonstrates “a difference in the average pay level between female and male workers of at least 5% in any category of workers”. 2/ The employer has failed to justify this difference on the basis of objective, gender-neutral criteria. 3/ The employer has not remedied this unjustified difference (…) within six months of the report’s publication date (Article 10). One recital of the directive states that “If there are no workers’ representatives, they should be designated by workers for the purpose of the joint pay assessment”.
The directive requires employers to have “pay structures ensuring equal pay” and to use gender-neutral job evaluation and classification systems (Article 4). It also confers a number of direct rights. Applicants for employment shall have the right to receive information about the level of “initial pay or its range” for the position concerned (Article 5). Once they are in post, workers shall have the right “to request and receive in writing” information “on their individual pay level and the average pay levels, broken down by sex, for categories of workers performing the same work as them or work of equal value to theirs” (Article 7). In addition, contractual terms that prevent workers from disclosing information about their pay will be prohibited. The directive introduces a reversal of the burden of proof in cases where the employer has not discharged its pay transparency obligations or the employee establishes “facts from which it may be presumed that there has been direct or indirect discrimination”. The directive introduces stronger penalties, facilitates access to justice and establishes a right to claim compensation or reparation. Lastly, it introduces into EU law the concept of intersectional discrimination, which is “discrimination based on a combination of sex and any other ground or grounds of

> Find out more: The gender pay gap in the EU fell from 16.4% in 2012 to 12.7% in 2021 (see Eurostat data, a European Parliament briefing and Gender pay gap).

Strengthening social dialogue : The European Parliament’s Committee on Employment and Social Affairs has prepared a draft motion for a resolution on strengthening social dialogue which it is expected to pass later this month, on 26 April. The scope of the text is vast – reacting to the European Commission’s proposals to strengthen social dialogue (see IR Notes 201), while at the same time calling new directives to be passed in the field of social affairs. In a letter sent on 27 March to the members of this committee, eight sectoral employers’ organisations expressed strong opposition to everything that might hamper the autonomy of the social partners, such as setting a target of reaching 90% collective bargaining coverage, as proposed by the draft motion, arguing that this implies “interference” by the authorities in the wage-setting process. “We’re in favour of social dialogue and collective bargaining, but if they are to be strengthened, this must be done via the social partners”, explains Delphine Rudelli, Director General of Ceemet, who is one of the eight signatories of the motion (see Strengthening collective bargaining). The employers also call on the Commission to refrain from proposing new legislation in the field of information and consultation of workers, and take the view that the EWC directive is “appropriate in its current form”.

Telecoms : On 15 March, the social partners in the telecommunications sector adopted a joint statement condemning all violence and harassment in the workplace. The text calls on social partners in branches and companies to negotiate “appropriate support and safety measures for victims of domestic violence” and to organise information and training sessions (see Harassment and violence at work).

Sexual harassment : On 23 March, Parliament passed a law on sexual harassment, implementing the tripartite agreement concluded on this subject in March 2022. The government emphasises that the text is intended to support the “necessary cultural change in every workplace”. The law imposes an obligation on employers “to provide an environment in which work can be carried out free of harassment, and to deal with incidents of sexual harassment”. It also allows the victim to seek compensation from the employees who have committed the offence (see press release).

Mental health : The Minister of Employment, Yolanda Díaz, has presented a report on insecure employment and mental health. She stresses that this report “also sends a message, loud and clear, that mental health is linked to inequality and reminds us that the impact on mental health is more than twice as acute among workers in the least secure jobs, and that the worst situation is to be seen among women, immigrants and young people”. The committee that wrote the report advocates conditions that will provide better protection, health and care for workers, and the introduction of a “mental health system that is universal, fair, free to use, human and of high quality” (see press release). The experts emphasise that the informal economy, precarious employment, decentralised forms of organisation of production, and underestimating the need to look after employees are some of the causes of the deterioration in mental health, but they also emphasis that, even where employees are on stable contracts, the issues of digital disconnection, overtime and unpredictable working hours all have a negative impact.

Pension reform : Despite widespread social unrest and a united trade union movement, the government has managed to pass an amending finance law for the social security system, which is designed to reform the country’s retirement pension arrangements. The government used a provision of the Constitution (Article 49.3) to make this bill an issue of its responsibility, and the reform was deemed to be approved on 20 March (see legislative dossier). Before it can enter into force, it must be promulgated by the French President, provided that, on 14 April this year, the Constitutional Council rules that this law is not in breach of the Constitution (see press release). The main measures are as follows: 1/ Starting on 1 September 2023, the legal retirement age will be gradually raised to 64, at the rate of an additional three months per year, based on a person’s year of birth, until it reaches 64 in 2030. 2/ Speeding up the timetable stipulated by the previous pension reform for extending the term of the pension contributions payable in order to qualify for a full pension. The 43 years’ worth of contributions will now be required with effect from 2027 (instead of 2035), representing an increase at the rate of three months per year (instead of three months once every three years). 3/ The age at which contributors can take a full retirement pension (without any reduction in payments being applicable), will remain at 67. 4/ Various measures are being introduced to adapt the arrangements for employees who have had a long career and those taking early retirement. 5/ Several special regimes are being abolished for new recruits (e.g. those previously applicable to the RATP [Paris Transport Authority], the electricity and gas industries, etc.). 6/ A minimum pension is stipulated for employees who have completed a career of full-time work. 7/ To encourage the employment of older workers, the law provides for a “seniors index” that will require companies to evaluate their current practices in terms of retaining (and recruiting) older workers, similar to the existing gender equality legislation. The law imposes an obligation on the social partners to negotiate a national agreement on employment of older workers. If this agreement is not reached, the government will experiment with a specific (‘CDI senior’) contract of employment, i.e. an ‘older worker’s permanent contract’, on which lower social security contributions are payable.

A plan to combat racism : On 21 March, the government unveiled a national action plan against racism. It contains initiatives in the field of employment, such as the creation of a workers’ and employers’ guide for combating racism and promoting racial equality in the workplace across all sectors, with an associated awareness campaign. The plan will also introduce specific measures aimed at sectors and workplaces where minority ethnic groups are under-represented, and for sectors and workplaces where they are over-represented. (see press release).

Wholesale inspection of couriers : huge nationwide operation took place on 24 March, inspecting the credentials of delivery riders employed by food delivery platforms. The aim is to protect delivery riders against new forms of exploitation, known as “illegal digital recruitment”, which involve making transfers from one account to another, in order to gain access to delivery platforms, in return for paying the account holder a percentage of the delivery rider’s daily income. This phenomenon only affects foreign workers. The operation revealed that 11% of foreign delivery riders are working within the framework of account transfers (see press release issued by the Ministry of Employment and a more detailed document published by the Carabinieri).

Strengthening collective bargaining : The government has reconsidered the social dialogue reform of 2011, which eradicated collective bargaining at national level and downgraded the role of branch agreements in favour of decentralised collective bargaining at companies with more than 21 employees. This move prompted the collapse of collective bargaining coverage from 100% to a level of approximately 32% (see Living and working in Romania). Pursuant to the major reform of social dialogue and collective bargaining passed by Law 367/2022 of 19 December 2022 (see AFSRU Article), the government has just increased the number of sectors permitted to negotiate collective bargaining agreements from 30 to 58 (see press release). The government has also adopted a draft order supplementing and amending the Law of 19 December 2022.

Redeployment obligation : On 17 March, the Parliament (the Storting) passed an amendment to the working environment legislation, whereby companies forming part of a group are required to offer a suitable position and give priority to workers who are affected by redundancies in other parts of their group and are seeking a new job. This broader redeployment obligation, which is intended to “strengthen job protection for employees”, according to the Minister of Employment, will enter into force on 1 January 2024 (see press release).

Long Covid : On 27 March, the TUC trade union confederation published a survey of just over 3,000 people, on the impact of long Covid. The number of people stating that they were suffering from long Covid has risen from 970,000 in August 2021 to two million, according to the latest study by the Office for National Statistics. The survey shows that 14% of people who self-reported long Covid, lost their job. The TUC is calling for urgent measures to ensure that people suffering from long Covid are properly protected, and is putting forward a number of recommendations, including the introduction of reasonable adjustments for the workers concerned (see press release).

• Women’s health: On 14 March, the TUC trade union confederation published a report on Women’s health and the workplace, putting forward numerous recommendations concerning menstruation and the menopause, pregnancy, maternal health in the workplace and women’s participation in the labour market.

New EWCs : The US group Google has signed an agreement to set up a EWC covering its employees in the EU, the UK and Switzerland (the latter, together with Ireland, are the three largest European country operations for Google). The EWC’s first meeting will take place in six months’ time, after the phase involving elections and appointments of members (see UNI Europa press release). Another EWC has been created at the agricultural machinery and construction equipment manufacturer CNH Industrial, following the Iveco demerger (see trade unions’ press release). Lastly, the French biotechnology company Biomérieux (5,127 employees in the EU) signed an EWC agreement on 16 January, which follows on from previous agreements.

Accidents at work sustained while teleworking : On 31 March, Eurogip published a report comparing the rules applicable to accidents at work that take place during teleworking periods, in seven European countries (Austria, Finland, France, Germany, Italy, Spain, Sweden). In each of the countries examined, among other things, the report offers an insight into the regulations in force and the obligations applicable in terms of health and safety in the workplace around teleworking; the rules applicable to accidents at work that occur during teleworking; and the associated case law.

Compliance with the European Social Charter: : On 22 March, the European Committee of Social Rights (ECSR) published its Conclusions 2022 in respect of 33 States, regarding compliance with the European Social Charter relating to Labour Rights. This exercise shows whether Council of Europe member countries are properly applying a number of the Charter’s articles. As part of this work, the ECSR publishes a report on each country, whose conclusions may be useful for legal experts and social partners at national level. The most common breaches of the Charter noted by the ECSR include insufficient promotion of collective bargaining mechanisms and the absence of an effective right for employees to participate in the decision-making process within the undertaking about working conditions, work organisation and the working environment. The ECSR adds that the obligation to promote “awareness, information and prevention of sexual harassment in the workplace or in relation to work, and to take all appropriate measures to protect workers from such conduct” (Article 26) extends to online harassment (see summary fact sheet, summary of the report and press release with links to country reports).

AI and management by algorithm : On 16 March, the German NGO AlgorithmWatch, with the support of the Hans Böckler Foundation, published a study advocating that workforce representatives should be more closely involved in the deployment of AI and automated decision-making systems, from the design phase through to their deployment. The authors want to go further than either current legislation, which puts forward a risk mitigation approach, or “trade union discussions focus[ed] on addressing … ethical standards”. “… a step toward more practice- and process-oriented approaches is urgently needed” by “empower[ing] employees in the face of algorithmic decision-making”, via “transparency requirements, support for co-participatory governance approaches, or funding for ADM-focused training programmes for employee representatives”.