IR Notes

At midday on 24 January, the European Commission’s Vice President, Valdis Dombrovskis and the European Commissioner for Jobs and Social Rights, Nicolas Schmit, set out details of the revision of the European Works Council Directive 2009/38, following the two phases of consultations with European social partners (see IR Notes 209 and IR Notes 213), in response to the legislative resolution passed by the European Parliament, calling for a revision of the directive (see IR Notes 201). In view of the tight deadlines for publication of IR Notes, we are not yet able to offer a detailed analysis, but here, for now, is some initial information. Our readers can also consult the press release and the proposal for a directive, which we have published on line. As Valdis Dombrovskis indicated, this is a “targeted revision” of the directive, which also meets the requirements set out by Dennis Radtke, rapporteur of Parliament’s legislative resolution, who argued that there was no point in reinventing the wheel. Many of the views put forward by the European trade union movement and Parliament have been taken into account: 1/ Nicolas Schmit acknowledges that the Commission has not opted for the level of financial penalties advocated by Parliament in the event of a breach of information and consultation rights (based on those laid down in the GDPR regulation), but nevertheless the proposal calls on Member States, when determining what penalties they should impose, “to take into consideration the gravity, duration, consequences, and the intentional or negligent nature of the offence, and in case of pecuniary sanctions, in addition also the size and financial situation of the sanctioned undertaking or group (for example, its annual turnover), and other relevant criteria”. 2/ Recital 16 of Directive 2009/38/EC is now included in the body of the directive. 3/ The number of plenary meetings is increased from one to two per year. 4/ The text confirms – this time explicitly – that EWC consultation must take place before the decision is made: its purpose is to enable employees’ representative “to express an opinion prior to the adoption of the decision and that such an opinion must receive a reasoned written response from central management before the latter adopts its decision on the proposed measure”. 5/ A transitional period is provided for, during which the parties to existing EWC agreements should verify whether these fulfil the revised requirements of the new directive and, if this is not the case, they should “renegotiate them to avoid the risk of legal disputes once the revised requirements become applicable. Should such renegotiation not be successful, the subsidiary requirements annexed to the Directive will apply”. We will examine these significant changes – which as Dennis Radtke explained, are being adopted to ensure that European Works Councils will no longer be paper tigers – in more detail in the next issue.

European Labour Authority : On 18 January, MEPs adopted a resolution on revision of the European Labour Authority (ELA) mandate. The ELA, which was established in 2019 and is based in Bratislava, is tasked with improving cooperation between EU countries in the area of labour mobility, coordinating joint inspections and performing risk analyses and assessments on matters of cross-border labour mobility, as well as mediating disputes between Member States (see European Labour Authority). Regulation (EU) 2019/1149 of 20 June 2019 states that its mandate is to be reviewed after five years, and the Commission shall report on its findings by August this year. This is the background against which MEPs plan to strengthen the ELA’s mandate. Dennis Radtke (EPP), the resolution’s co-rapporteur, believes that the time has come to give this paper tiger teeth, because at the moment, the ELA is an authority in name only (see IR Notes 114). “The new mandate should make an active contribution to protecting EU employees from exploitation and ensuring that EU rules are complied with, in order to guarantee a fair single market”, he emphasises. Pointing out that nobody likes to open the door to visitors if their house is in a mess, his co-rapporteur Agnes Jongerius (S&D) is calling for the ELA to be granted independent powers to perform investigations, because at the moment, it is only allowed to conduct inspections when invited by a Member State. Needless to say, those who know that labour exploitation is going on, are unlikely to issue this invitation. The ELA’s remit should also include workers who are nationals from third countries, whose movement within the EU is not covered by its mandate. “There are examples of cases where nationals from third countries have been exploited, but the ELA has not been able to intervene”, she adds. “When an EU-based employer is not paying its workers or is treating them badly, this should be investigated and prosecuted by the ELA, no matter if workers are Europeans or non-Europeans”. It will be up to the next Commission, which will take office after the European elections in June, to deal with this matter and to put forward any revision of the ELA’s founding regulation.

Public procurement : On 15 January, in the context of an oral question put to the European Commission, MEPs debated the need to revise Directive 2014/24/EU on public procurement, with a view to expanding the use of social criteria when awarding contracts. According to a recent study commissioned by Parliament’s Committee on Employment and Social Affairs, the authorities face legal obstacles and uncertainties when they try to apply social and sustainable award criteria to the task of selecting companies (see Social clauses). This debate marks the final stage of a campaign waged by the UNI Europa trade union federation (see press release). The main calls for revision are focused on ensuring that a public authority is able to impose social criteria on invitations to tender, for instance by ensuring that public contracts are only awarded to companies that apply collective agreements, or excluding companies that fail to respect the ILO’s fundamental conventions. One after the other, the leading lights of the Committee on Employment and Social Affairs issued a clear message from the podium to European commissioner Nicolas Schmit (see debate). Dennis Radtke (EPP) hoped that a “gentle prompt” in the form of an oral question, would persuade the Commission to “promise that public funds will be spent on those who abide by the rules of the social labour market economy”. Agnes Jongerius (S&D) denounced a directive that “leads to exploitation, underpayment and violations of their basic rights”. This subject will no doubt be back on the agenda after the European elections in June.

Reporting allegations of harassment : The European Court of Human Rights has delivered an important judgment concerning the treatment of harassment allegations made by employees (see press release). An applicant who was employed as a secretary by a non-profit association believed that she was the victim of harassment by her employer, and asked the employer’s son, who was the association’s spiritual director, for a transfer to another position, on account of his father’s behaviour. The managing director then suggested that she take sick leave until such time as her contract could be terminated. She then sent an email to the association’s managing director, with the subject line “sexual assault, sexual and mental harassment”, reporting what she had experienced, and copied it to five people: her husband, her employer, the spiritual director, another of the employer’s sons and the State Labour Inspector. As a result of this email, she was found guilty of public defamation, for failing to provide evidence of sexual assault. This conviction was confirmed by the Court of Cassation (the French Supreme Court). The Court emphasises the need, in light of Article 10 of the European Convention on Human Rights (freedom of expression), for anyone who believes they are the victim of mental or sexual harassment, to be given appropriate protection. The EctHR holds that the domestic courts (…) had placed an excessive burden of proof on the applicant, by requiring that she provide evidence of the acts that she wished to report. The Court notes that the email sent by the applicant had had only a minor impact on her alleged harasser’s reputation, but the financial penalty imposed on her, in connection with a criminal conviction, was likely to discourage people from reporting such serious actions as those amounting, in their view, to mental or sexual harassment, or even sexual assault.

Right to strike : For the first time, the European Court of Human Rights has ruled on prohibition of the right to strike, in a judgment (summary in French) concerning teachers employed by the German Federal State, who have civil-servant status. They faced disciplinary sanctions for going on strike, which is a right denied to civil servants under the Constitution (see press release). The Court points out that the right to strike is one form of freedom of association, but is “only one aspect of the right to freedom of association” (Article 11 of the ECHR). It notes that the variety of different institutional safeguards put in place enable civil servants and their unions to effectively defend their professional interests. Consequently, the prohibition of strikes by teachers with civil-servant status did not render their trade-union freedom devoid of substance.

Paid annual leave : Under Article 7 of Directive 2003/88/EC on the organisation of working time, a worker who has been unable to take all of their paid annual leave entitlements before their employment relationship comes to an end, is entitled to receive financial compensation for any days of paid annual leave not taken. The Court of Justice therefore ruled that EU law is not compatible with legislation preventing an employee from being paid such compensation when they voluntarily terminate their employment relationship, in this particular case in order to take early retirement (CJEU, 18 January 2024, Case C-219/22, Comune di Copertino). EU law is compatible with the loss of this right only in cases where the worker has refrained from taking his or her paid annual leave deliberately, despite the employer encouraging them to do so and informing them that they risk losing this leave at the end of a reference period or authorised carry-over period (see press release).

AI in commerce : The European trade union federation UNI Europa Commerce is leading a two-year, EU-funded project on the use of AI in the retail sector, in four countries: Spain, France, Hungary and Sweden, in cooperation with the CCOO Servicios, CFDT Services, KASZ, Handels and Unionen federations. The project aims to produce a toolkit and instructional videos to support unions in securing good working conditions by negotiating the use of algorithms (see press release).

Psychosocial risks : For the first time, a Spanish court has classified the mental health problems experienced over the past five years, while moderating online content, by a young person employed by a subcontractor of the technology giant Meta, as “Occupational illness – Accidents at work”, rather than ordinary sickness. The Barcelona social court ruled that the violent videos he had had to watch between 2018 and 2020, showing beheadings, suicides and incidents of self-harm, were at the root of his problems: “work-related stress is the sole, exclusive and undeniable factor” triggering these disorders (see article in El Païs). The daily newspaper La Vanguardia reported that between 20 and 25% of the company’s 2,030 workers were absent on sick leave, most of them – according to the trade unions – due to mental health problems (see article in La Vanguardia).

Rejecting a permanent job offer : Since 1 January 2024, under Law no. 2022-1598 of 21 December 2022 enacting emergency measures relating to the functioning of the labour market and aimed at achieving full employment, an employer planning to offer a permanent contract to an employee at the end of their fixed-term or temporary agency contract, is required to notify the employee of this offer, and if it is declined, the employer must then inform the public employment service (France Travail) within one month of this rejection. Details of this mechanism are set out in a government decree and order. An employee who rejects two offers of permanent employment over a 12-month period will be denied unemployment benefit.

Integration of young people : The Safran group (50,000 employees in the EU), which supplies parts to the aircraft industry, and the IndustriAll Europe trade union federation, have completed the negotiation of a European Agreement in favour of the professional integration of young people. The agreement builds on the first agreement signed in 2013 and the second agreement dating from 2017. The group’s significant recruitment requirements mean that it needs to enhance its appeal to young people. The introduction to the agreement recognises that these young people are aware of the “environmental and societal impact of their jobs, work-life balance, the possibility of working in other countries” and they “are worried about the challenges of the ecological and digital transitions”. Consequently, the agreement includes measures intended to promote the integration of apprentices, work-study students, interns and European research students, and recruitment targets have been set. The agreement enables any young people undergoing work-linked training to have an interview with the Human Resources department, to discuss their career path. In the event of any difficulties, a follow-up will be scheduled “to ensure that the situation develops properly”. The agreement also calls for “particular attention [to be] paid to accommodation”. Corinne Schievene (CFDT), Secretary of the Safran EWC, says: “The emphasis is on the agreement’s roll-out, especially by involving people at local level”. Accordingly, the following will be organised within 6 months of signature of this agreement: i) a joint meeting of the Monitoring Committee and HR managers of the European entities, based on quantitative and qualitative indicators defined in the agreement; ii) communication to the companies’ HR teams and a presentation to local workforce representatives. In addition, action plans will be drawn up between local management and trade unions and/or employee representative bodies, and implemented within 9 months of signature, in cases where they do not already exist.