IR Notes

The Advocate General of the European Court of Justice has presented his conclusions in a Finnish case concerning the application of directive 2008/104 of 19 November 2008 on temporary agency work (CJEU concl., 20 November 2014, case C-533/13, Auto- ja Kuljetusalan Työntekijäliitto AKT/Öljytuote ry, Shell Aviation Finland Oy, in French, not available in English). If the European Court of Justice follows his conclusions when it delivers its judgement, the employment and recruitment sector could see major changes because numerous restrictions or bans on the use of temporary agency workers (see table devised by Eurociett, the employers’ organisation for the sector in Europe), provided for by national legislation or collective agreements, could be called into question. This prospect raises concerns for the European Trade Union Confederation (see press release), which fears that “national rules, often agreed with trade unions, restricting use of temporary agency workers” could be undermined, but fully satisfies the employers’ organisations in the employment and recruitment industry (see Eurociett press release, in English). It therefore remains to be seen whether the Court of Justice follows the Advocate General’s recommendations to challenge the restrictions on the use of temporary agency workers at sectoral level in several countries, in particular in the port sector (Belgium), inland waterway transport (Belgium), the public sector (Belgium, Greece, Netherlands), construction (Germany, Greece) or bus drivers and the transport of goods (Netherlands).

• Publication of the directive on non-financial information: Directive 2014/95/EU of 22 October 2014 “amending directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups” was published on 15 November in the Official Journal of the European Union (see IR Notes 17).

• Investment plan worth €315 billion: On 26 November the European Commission presented an investment plan worth 315 billion euros over three years “to get Europe growing again and get more people back to work” (see Commission press release). The plan must now be discussed with the Council and the Parliament. The European Trade Union Confederation (ETUC) is sceptical and doubts whether Jean-Claude Juncker can raise 315 billion euros of investment by contributing only 21 billion euros from the EU budget (see ETUC press release). The employers’ organisation BusinessEurope is pleased with this “first important step forward” which, with a “small amount of public funds” to leverage private-sector provision, guarantees that the chosen investment projects will drive productivity and growth (see press release).

• Port sector: In the framework of the sectoral social dialogue committee, the European social partners in the port sector on 23 October adopted Recommendations on Women’s Employment in the Port Sector and a Joint statement on training and qualifications.


• Civil aviation: The European and American trade union organisations in the civil aviation sector have adopted a Joint statement in opposition to the application by the airline Norwegian Air International to offer transatlantic flights. According to the trade unions, giving a licence to NAI would be tantamount to granting a flag of convenience.

• An age limit for taking a competition has to be fully justified: A Spanish citizen contested a notice of competition requiring applicants for local police officer posts to be not older than 30 years of age. The European Court of Justice found that, given the duties to be performed, physical aptitude constitutes a “genuine and determining occupational requirement” (CJEU 13 November 2014, case C-416/13, Pérez). However, by setting such an age limit, the notice of competition imposes a requirement which is not proportionate, that is to say not appropriate in order to achieve the aim being pursued, and that it goes beyond what is necessary in order to achieve it. The Court noted that the competition included physical tests allowing the applicants’ physical fitness to be evaluated, and it stressed that other similar competitions had higher age limits or had even abolished the age limit altogether. These indicators showed that the age limit of 30 years was not justified.


• The use of fixed-term contracts is not admissible without a definite time period being set: The European Court of Justice has delivered a judgement on Italian legislation which allows fixed-term contracts to be concluded with teachers and administrative staff to fill vacant posts in state schools until such time as a competition is held to recruit staff on a permanent basis (CJEU 26 November 2014, joined cases C‑22/13, C‑61/13 to C‑63/13 and C‑418/13, Raffaella Mascolo). In this particular case, no competitions were held for ten years, which led the education ministry to renew fixed-term contracts over periods of several years. The Court noted that, in practice, the renewal of the fixed-term contracts was intended to cover needs which were not temporary in nature but, on the contrary, were fixed and permanent, because of the structural shortage of posts for tenured staff in Italy. These regulations therefore did not comply with directive 1999/70 of 28 June 1999 and, in addition, did not include any other measure aimed at preventing and penalising the misuse of successive fixed-term employment contracts.

• Moving towards social affairs’ reforms: With the new government in place, the public debate about reforming the pension and social security system has been resumed. The minister for social affairs, Ivailo Kalfin, is in favour of a gradual, long-term increase in the retirement age. He insists that the minimum wage should go up to 380 BGN (an about 194 euro, an increase of around 10%) in 2015, but finance minister Goranov believes that such a rise in the current climate of deflation and weak growth could put pressure on the labour market. According to the CITUB trade union confederation, Bulgaria must adopt a fiscal reform and new mechanisms for setting the minimum wage and salaries in the public sector, and must introduce incentives for sector-level bargaining on wage growth.

• Measures to combat abuses relating to the posting of workers: Following the announcements made by the minister of labour on 27 October 2014 with a view to strengthening the resources of the labour inspectorate and tougher penalties, the government has published an implementing circular for law No. 2014-790 of 10 July 2014 aimed at combating unfair social competition. It defines the conditions for bringing an action before an interregional court specialising in complex cases, the grounds for accessing certain special investigative techniques, and the new administrative sanctions. In addition, the government has prepared draft legislation “in support of growth and economic activity” which strengthens the sanctions in the case of fraud committed in the framework of worker posting. Breaches of the law relating to the posting of workers, for example, will no longer be penalised by fines per worker concerned up to a limit of 10,000 euros: the maximum fine will now be raised to 150,000 euros.


• Negotiation on social dialogue: The social partners at interprofessional level will meet on 11 December for a new round of negotiations on the reform of social dialogue. The key sticking points relate to the merger of employee representative bodies, the representation of workers in very small enterprises, and the place of trade unions in companies. If the social partners fail to reach an agreement by the end of the year, the government has announced that it will bring in a bill.

Transdev: French case law has been augmented by a recent legal decision concerning the information and consultation of European works councils. Members of the EWC of the public transport operator Transdev brought a case before the high court of Nanterre to denounce the fact that the EWC had not been consulted on the group’s plans for the future of its SNCM maritime transport subsidiary, which operates ferries between France and Corsica. The management underlined that this was a purely national matter concerning plans adopted by the French headquarters relating to a French subsidiary whose entire workforce was based in France. The employee representatives for their part explained that the plan would cause the group’s turnover to fall and would have a major social impact on the entire group. To settle the dispute, the judges first consulted the content of the EWC agreement, thus respecting the parties’ autonomy. The agreement follows the formula contained in paragraph 16 of directive 2009/38: matters which concern at least two sites in two different member states are considered to be transnational; these include matters which, “regardless of the number of member states involved, are of importance for the European workforce in terms of the scope of their potential effects or which involve transfers of activities between member states”. The court easily demonstrated that the plan did not affect any other member state apart from France and therefore decided to examine whether the plan had a major impact on the European workforce or could involve transfers of activity. Here too, the court rejected the jurisdiction of the EWC: the plan only concerned SNCM’s employees who themselves made up only 2.5% of the group’s workforce; whatever the future of SNCM, a transfer of activity was not planned. In short, no element supported the claim that the plan had a major impact on the European workforce. The European works council therefore did not need to be consulted. It should be noted that the judges validated the legal action although the secretary of the EWC had not received a mandate from all the members of the EWC at a vote, as envisaged by the agreement and the rules of procedure of the EWC, stating that time pressure prevented the EWC from being convened in order to formally mandate the secretary.

• Crédit agricole: The European works council of the Crédit agricole group (130,000 employees) has produced a newsletter, translated into ten languages, for employees in the 15 European countries covered by the EWC. As well as presenting the role of the EWC and the names of all its members, the newsletter in particular explains the medium-term plan adopted by the banking group in March. This is an interesting communication initiative by a European works council aimed at all European employees.

• GDF Suez: The French energy group GDF Suez (147,400 employees) and the European trade union federations EPSU and IndustriALL on 27 November 2014 signed an agreement on the improvement of working conditions. In 2015, each of the Group’s companies in Europe will, in close cooperation with its social partners, draw up a related action plan. (See the press release from the group).


• Orange: The management of the French telecommunications group Orange (160,000 employees), the UNI Global Union international trade union federation, the UNI-Orange global trade union alliance (which brings together all the trade unions in the company that are members of UNI Global), and the French trade unions on 21 November signed a global group agreement on health and safety at work. This is the second global agreement signed within the group following the 2006 agreement on fundamental labour rights. The text recognises the role of the trade unions in matters relating to occupational health and safety; provides for the creation of health and safety committees in every country, with the involvement of trade unions and/or employee representatives; puts in place a core of common, occupational health and safety measures, and sets up health care and major risk coverage for the employees and their families. Corporate social responsibility clauses with health and safety criteria meeting the group’s minimum standards will be introduced to contracts with the group’s service providers. For Franca Salis-Madinier, national secretary of the CFDT Cadres French trade union and president of UNI Europa ICTS, “this is a historic agreement” which contributes “to the spread of sound practices across a multinational (…)”. (See CFDT press release). “The good health of its employees is essential to the company’s social and economic performance,” emphasises the group in a press release.

• Trade unions in Sweden, Norway and Poland: The Friedrich Ebert Foundation has published surveys of trade unions in Sweden (available in English and German), Norway (in English) and in Poland (in German).


• Unemployment stable in October: The EU28 unemployment rate was 10% in October 2014 – stable compared with September 2014, but down from 10.7% in October 2013. In the euro area, the unemployment rate was 11.5% in October, unchanged from September, but down from 11.9% in October 2013 (see Eurostat press release).


• Joint Employment Report: Accompanying the Annual Growth Survey 2015, in which the European Commission makes its recommendations on economic and social matters, the draft Joint Employment Report has been published. This document analyses the employment situation in Europe and follows a certain number of indicators, allowing comparisons to be made between the member states.

The Annual Growth Survey assesses the economic and social situation in Europe and sets out, for the entire EU, the overall priorities for action in the coming year. It is part of the European Semester process which, year on year, measures the application of the “Europe 2020” strategy. In the Annual Growth Survey 2015 the new European Commission, which took up office on 1 November 2014, describes the principal elements of its new programme for jobs and growth. See Eurofound’s European Industrial Relations Dictionary.