IR Notes

At last, following a number of last-minute developments (see IR Notes 224), the European Union has passed a directive that firstly establishes a presumption of employment for digital platform workers when “facts indicating control and direction are found” (Article 5.1). Secondly, it grants platform workers – whether self-employed or recognised as employees – a number of new “digital rights” with regard to algorithmic management (see Platform work). The text also invites Member States to take “adequate measures to promote the role of the social partners and encourage the exercise of the right to collective bargaining in platform work”.  The text of the agreement, which was adopted on 11 March by and between the Council and Parliament, will now be finalised in all official EU languages and formally adopted by both institutions. Member States will then have two years to incorporate the new provisions into their domestic legislation (see Council press release).
To achieve this outcome, Parliament’s negotiators had to agree to the removal of a key provision of this proposal for a directive (see IR Notes 176): that of a presumption of employment harmonised at European level, triggered as soon as an employment relationship ticks a number of boxes indicating a link of subordination between worker and platform, thereby turning the worker into an employee. France completely ruled out this provision, which had been fiercely debated over a period of months, and had already been substantially amended by the Council (see interview with Leïla Chaibi, IR Notes 210). As a result, each of the 27 EU Member States is now free to define this presumption in their own domestic law, thus creating a heresy at odds with the very purpose of a directive, which is to harmonise the governing law within the EU. This “back of an envelope” provision, which was finalised between late 2023 and 8 February this year, will lead to different interpretations and to disputes. It does however have the merit of allowing the passing of a much-needed and important law, whose scope extends beyond the simple matter of determining a worker’s status.
This directive is actually the first-ever piece of EU legislation to regulate algorithmic management in the workplace. Chapter 3, which extends to ten or so pages, will firstly be used as the basis for preparing a future directive applicable to all employees (this one only applies to platform work) and, secondly, as a source of inspiration for all social dialogue actors planning to regulate the use of algorithmic management. The directive includes a list of prohibited practices, such as processing of biometric data or personal data in a number of cases; it requires an impact assessment to be carried out in situations where authorised processing of personal data is undertaken; and it demands transparency on automated monitoring or decision-making systems and on human oversight of automated systems. Lastly, the directive repeatedly calls for workers’ representatives to be involved, and its provisions covering information and consultation rights extend further than current European legislation in this area. It requires platforms to seek the views of these representatives regarding assessment of the impact of personal data processing systems, and to present the results to them. Moreover, “given the technical complexity of algorithmic management systems, information should be given in due time”, to enable representatives to “prepare for consultation, with the assistance of an expert chosen by the platform workers or their representatives”. According to the Commission, this text applies to 28 million workers at the present time and will apply to 43 million by 2025.

> Reactions: See press releases issued by the European trade union federations ETF, EPSU and the European Trade Union Confederation. See also: article on “‘Gig’ workers in Europe: the new platform of rights“, by Antonio Aloisi and Valerio de Stefano.

Due diligence directive rescued from the brink : Finally, on 15 March, Member States adopted the proposal for a due diligence directive (see Due diligence), after Parliament’s negotiators gave way on its scope of application: the future directive, which has yet to be formally approved by the Council and Parliament before being published, will eventually cover companies with more than 1,000 employees and a turnover of more than 450 million euros. It will then have to be transposed within two years. Both the European Commission’s proposal and the position reached by the Council and Parliament on 14 December 2023, were aimed at companies with more than 500 employees and a turnover of at least 150 million euros (see IR Notes 221). Previously, in its general approach adopted on 30 November 2022, the Council had agreed on a threshold of 1,000 employees, with a turnover of 300 million euros. For its part, in June 2023, Parliament fixed these thresholds at a much lower level: more than 250 employees and a turnover in excess of 40 million (see IR Notes 196). The outcome is a long way from the threshold of 5,000 employees that France suddenly proposed before the meeting on 15 March, but at the risk of torpedoing the directive’s adoption, (see IR Notes 225), under pressure from the employers’ organisations, Member States managed to water down the text significantly: it will now apply to just under 7,000 companies, compared to the expected figure of 16,000, according to the European Trade Union Confederation (see press release). The directive’s effects will also be phased in gradually: it will apply in the first instance to companies with more than 5,000 employees and a turnover of at least 1500 million euros in 2029 (covering financial year 2028), then in 2030 to those with 3,000 employees and a turnover of at least 900 million euros (for FY 2029) before being extended to include those with more than 1,000 employees and a turnover of 450 million euros in 2031 (for FY 2030). In addition to reducing its scope of application and gradually phasing in its application, the directive no longer specifies lower thresholds for certain activities carrying specific risks, and all of its provisions seeking to link executive pay with meeting climate targets, have been dropped. The definition of “value chain” to which the due diligence obligations apply, has also been reduced in scope. In concrete terms, the companies concerned will have to: 1/ map the risks of potential adverse impacts on human rights and the environment, assess and prevent them, and if applicable, ensure that they are brought to an end or, failing this, minimise them via the use of prevention plans and corrective action plans; 2/ remediate adverse impacts caused by their own actions or those of companies in their value chain; 3/ publish an annual statement relating to their exercising of due diligence; 4/ adopt a transition plan for climate change mitigation, to ensure that their business is compatible with the transition to a sustainable economy and with limiting global warming to 1.5 °C. The directive assigns an important role to workforce representatives and trade unions. The company’s due diligence implementation policy is to be developed in prior consultation with its employees and their representatives. The text states that this consultation must be conducted in accordance with relevant EU law, where applicable, and with domestic law and collective labour agreements, without prejudice to workers’ rights to information, consultation and participation, and in particular those covered by Directives 2002/14/EC (Information and Consultation), 2009/38/EC (European Works Council) and 2001/86/EC (Worker involvement in the European Company).

> Reactions: See press releases issued by ETUC, UNI Europa, BusinessEurope and the NGO Global Witness. See also briefing published by the European Parliament.

Regulating AI in the workplace : On 13 March, the European Parliament definitively adopted the proposal for a regulation on laying down harmonised rules on Artificial Intelligence, which will regulate, among other things, the use of AI systems in the workplace (see IR Notes 162, IR Notes 163 and Artificial intelligence) First of all, the regulation prohibits the use of some AI systems: those “that create or expand facial recognition databases through the untargeted scraping of facial images from the internet or CCTV footage”, as well as those seeking to “infer emotions of a natural person in the areas of workplace and education institutions”, with two exceptions, which are likely to be too vague: “for medical or safety reasons”, such as recognising the signs of tiredness on a lorry driver’s face. The regulation also prohibits the use of systems that categorise individuals on the basis of their biometric data, and are used to “deduce or infer an individual’s political opinions, trade union membership, religious or philosophical beliefs, race, sex life or sexual orientation”. The regulation then stipulates a second category: that of high-risk AI systems. In employment terms, these are AI systems that are intended to be used: 1/ for the recruitment or selection of natural persons, in particular to place targeted job advertisements, to analyse and filter job applications, and to evaluate candidates; 2/ to make decisions affecting terms of work-related relationships, the promotion or termination of work-related contractual relationships, to allocate tasks based on individual behaviour or personal traits or characteristics or to monitor and evaluate the performance and behaviour of persons in such relationships. Before introducing or using a high-risk AI system in the workplace, the regulation requires “deployers” who are employers, to inform “workers’ representatives and the affected workers that they will be subject to the use of the high-risk AI system”, in accordance with the rules and procedures laid down in Union and national law and practice on providing information to workers and their representatives. A third category concerns AI systems intended for general-purpose use, including those presenting “a systemic risk”, which are subject to transparency obligations. The regulation also imposes training obligations on employers. Consequently, when they deploy a high-risk AI system, they must entrust “human oversight to natural persons who have the necessary competence, training and authority, as well as the necessary support” (Article 26 section 2). In more general terms, they must take “measures to ensure, to their best extent, a sufficient level of AI literacy of their staff and other persons dealing with the operation and use of AI systems on their behalf, taking into account their technical knowledge, experience, education and training and the context the AI systems are to be used in, and considering the persons or groups of persons on whom the AI systems are to be used” (see Parliament press release).

> See also: Report presented to the French government by the Artificial Intelligence Commission, with a chapter on social dialogue and co-construction as the cornerstone of AI deployment.

Future social policies : At the Employment and Social Affairs Council meeting on 11 March, Member States approved an Opinion on future policy priorities for the Union on the European Pillar of Social Rights, prepared by the Employment Committee and the Social Protection Committee (see European Pillar of Social Rights). Among other things, the document refers to “further actions promoting a mindset of lifelong learning” and asks whether it is necessary to intervene in the face of “the progressive proliferation of platform work, artificial intelligence, and algorithmic management”. The text calls for further adaptations to the rules, so as to “better incorporate both the psychosocial risks linked to the digital transition, including negative impacts on mental health, and specific hazards stemming from climate change […] by encouraging their prevention, in addition to speeding up the setting of minimum standards regarding hazardous substances” (see Council press release).

Cruising : On 6 March, European social partners in the river cruise sector signed a framework agreement to improve the working conditions on board of river cruise vessels, as well as to ensure a level playing field for the sector. The text is presented as being binding, as it goes further than the usual “recommendations” or “guidelines” encountered in the marine and inland waterways sector”, says ETF (see ETF press release).

Menstruation and menopause : On 7 March, the eve of International Women’s Day, the UNI Europa trade union federation published, for the first time, a guide that explains how trade unions can support menstruating workers, including negotiating menstrual leave, access to sanitary products, improving facilities in the workplace and combating the stigmatisation associated with menstruation. Other guides will follow, on menopause and maternity (see press release).

> See also: In France, the national agency for improving working conditions has published a guide on endometriosis in the workplace.

Trade unionism in good shape : On 18 March, ÖGB, the country’s main trade union confederation expressed its satisfaction at the biggest increase in its member numbers for 40 years, with 97,978 new members. ÖGB now has a total of 1,212,990 members, and believes this growth can be attributed to the successes achieved by trade unions in collective bargaining negotiations. The percentage of women members has reached an unprecedented level (37.5%) and the number of young people under the age of 19 has risen by 6.3% (see press release).

Due diligence : The Paris Appeal Court has created a new specialised chamber to hear all disputes emerging, at national level, on the issues of corporate due diligence and environmental liability. It will therefore hear appeals linked to disputes heard before the Paris Ordinary Court [Tribunal Judiciaire], which has “sole” competence to hear these disputes at national level. So far, fewer than ten cases have been referred to this court, but it has already ruled against one company, the La Poste group (see IR Notes 220), which decided on 11 March to appeal the ruling. (see press release).

• Menstrual leave: On 30 January, social partners in the poultry hatching and selection industry signed one of the first branch-level collective agreements to introduce one day’s monthly leave for women suffering from incapacitating endometriosis.

Artificial intelligence : The topic of Artificial Intelligence (AI) frequently appears on European Works Council agendas. For example, on 14 December 2023, members of the TotalEnergies EWC were given a presentation on the deployment of AI systems within the group, together with accompanying measures, including in the area of training, and examples of how AI has been implemented within the group’s various branches. This week, on 20 March, the Danone group EWC is being consulted on “a redeployment of resources and skills within its ‘planning’ and ‘business services’ functions, in connection with the group’s introduction of AI”. “The group is envisaging a number of new professions, which will be presented to European trade union representatives”, says the FGA-CFDT.

Renegotiation : On 6 March, a new agreement was concluded at American Express Global Business Travel (7,713 employees in Europe). It is very similar to the previous agreement but EWC members will be given slightly more time to perform their duties: 30 hours for members (as against 20 hours previously); 70 hours for “coordination committee” members (was 60 hours); 90 hours for the secretary (was 80 hours); and the deputy secretary will now have 80 hours, which is a new development. An annual budget of 25,000 euros has been earmarked to fund training and recourse to an expert, instead of the previous separate budgets of 10,000 euros and 15,000 euros respectively. In the event of a dispute, the group will pay the legal costs. However, these will be borne by the other party if it has “acted in bad faith and/or frivolously” in bringing these proceedings. The text includes the 2021 addendum, which opts to be governed by Dutch law but retains the United Kingdom (2,127 employees) within its scope of application. However, the agreement does not solve the ongoing dispute between the group’s EWC and its management, which is refusing to allow the EWC to cover the company’s Egencia subsidiary (2,000 employees in the EU), purchased in 2021.