IR Notes

At the High-Level Conference on the European Pillar of Social Rights, organised on 15 and 16 April by the Belgian presidency of the EU, most of the Member States, social partners and representatives of institutions in attendance signed the La Hulpe Declaration on the Future of the European Pillar of Social Rights (see European Pillar of Social Rights). Its aim, as the Belgian presidency explains, “is to prepare the future social agenda of the 2024-2029 period and to reconfirm the European Pillar of Social Rights as the EU social policy compass for years to come”. With so many signatories to the document, inevitably the outcome can only take the form of a compromise text, i.e. one that is fairly general in nature and devoid of any concrete measures. Even so, the search for consensus was still unsuccessful, as the European employers’ organisation BusinessEurope refused to sign the text, arguing that it already left too much room for possible futures binding rules. Moreover, two countries did not support the text: Austria and Sweden, which has still not got over the adoption of the directive on adequate minimum wages. Nevertheless, reading between the lines, some areas of agreement can be found, which will enable social Europe to move forward. For example, the declaration calls for “determined action to combat all forms of violence against women and domestic violence and harmful gender stereotypes”. As a remedy for labour shortages, the declaration emphasises the issue of job quality, given that “decent working conditions are vital to attract and retain workers”. The signatories also call for initiatives “to improve the ability to detect fraud and abuse”, in ways such as increasing the capacity of labour inspectorates, thereby “improving working and living conditions, for EU and third country nationals”, and paying special attention to the areas of sub-contracting and agency work.
The declaration also refers to “promoting employee involvement and workers’ and their representatives’ right to information, consultation and participation”, so that employees can “have an active role in anticipating and managing the digital and green transitions”. Incidentally, the most prescriptive section of the document is the one on occupational health and safety, which sets out the following ambition: “further […] adaptation of the relevant regulations and frameworks may be considered to better incorporate psychosocial risks, e.g. those linked to the digital transition, including negative impacts on mental health”. The text also declares its intent to prevent “specific hazards stemming from climate change” and to speed up “the setting of minimum standards” regarding hazardous substances.
Lastly, the declaration calls for “sustainable public procurement” that will “promote collective bargaining”, which may involve revision of the “directives on public procurement”, with the idea of permitting public authorities to sign contracts only with companies that are covered by a collective bargaining agreement.

Parliamentary report on revision of the European Works Council directive : On 3 April, by a large majority, Parliament’s Committee on Employment and Social Affairs adopted its report on the proposal for a directive relating to revision of Directive 2009/38/EC on European Works Councils (28 votes for, 7 against and 8 abstentions) (see press release and European Works Council). The EPP’s Conservative MEPs have remained impervious to the arguments put forward by the employers, despite their pressing demands (see below). The main amendments concern access to justice and strengthening the rules on sanctions applicable to breaches of the EWC’s right to be informed and consulted. As regards the first point, adequate judicial and administrative procedures should be available and easily accessible to European Works Councils. They must be able to apply to the courts for a temporary suspension of decisions made by central management, thereby suspending the effects of the disputed decisions on the contracts of employment of the employees concerned. At the same time, the sanctions regime is being strengthened and set out in more detail. It will provide for: 1/ financial penalties proportionate to the nature, seriousness and duration of the offence committed by the company (the amount of these penalties rises in line with the number of workers concerned); 2/ measures denying the company the right to access relevant EU funds, for a period of up to three years; 3/ measures restricting the company’s right to bid for public procurement contracts, as defined in Directive 2014/24/EU. The rapporteur, Dennis Radtke (EPP), also says that “existing agreements don’t need to be fully renegotiated, but only have to be adapted to fulfil the new requirements”. The text is now due to be submitted to a European Parliament plenary session, probably after the European elections in June. Because not enough MEPs were present, or because certain political groupings were absent at the time of the vote, the committee did not adopt Parliament’s negotiating mandate. The plenary session of Parliament will be responsible for adopting the mandate, so that negotiations can commence with the representatives of Member States, which also began to scrutinise the proposal last week, on 11 April.

> See also: positive reactions of the European Trade Union Confederation (see press release) and IndustriAll Europe (see press release).

Employers’ positions on revision of the European Works Council directive : Before the Parliamentary committee’s vote took place, the employers’ organisations tried to influence MEPs by setting out their red lines in a joint statement, adopted on 22 March by the European employers’ organisation BusinessEurope and five of its sector-specific organisations (Ceemet, EBF, ECEG, Eurocommerce, Hotrec). The ECEG issued its own press release on 3 April. In their statement, the employers take up a position on eight different points: 1/ The EWC’s competence should apply only to projects affecting at least two Member States, and never to a project concerning just one Member State. 2/ The future directive should not undermine any agreements concluded under Article 13 of Directive 94/45/EC or agreements concluded or revised during the transition period from June 2009 to June 2011, which followed the adoption of the recast Directive 2009/38/EC. It should be noted that the ECEG press release is more wide-ranging and even seems to cover all agreements concluded before the future directive enters into force. 3/ Management’s ability to keep information confidential must be maintained in order not to delay the decision-making process. Furthermore, oversight of recourse to confidentiality should be provided for in the agreement establishing the EWC, without the need for a rule in the directive. 4/ The matter of legal costs borne by the EWC should be regulated by domestic law, and the employer should approve the expert’s mandate and the amount of their fees. “It is not enough for management to be informed of the costs in advance”, say the employers. 5/ The revised directive should require Member States to develop alternative dispute resolution mechanisms for avoiding unnecessary increases of court cases. 6/ Allowing the EWC to express an opinion before the company adopts its decision, and making such an opinion the subject of a reasoned written reply from management before the latter adopts its decision “could delay important decisions at a time when companies often need to react quickly given the fast changes in the economic environment”. 7/ The procedures for informing and consulting workers should be conducted with their representatives “including but not prioritising trade union-affiliated members”. As a result, they see no point in placing greater importance on trade-union representatives than is the case under the current directive. 8/ The option of applying to the courts for suspension of a decision made by management, where there may have been an infringement of information and consultation requirements “would be highly detrimental for companies as it will significantly hamper their decision-making process and will be a serious intrusion in corporate governance”. In its press release, the ECEG also adds that the directive should allow meetings to be held virtually, using automatically generated subtitles for interpreting into other languages.

Social Europe survey : On 12 April, the European Commission published the results of the Eurobarometer survey of citizens’ expectations of social Europe. The best-known recent initiatives are the directive on adequate minimum wages (49% of those questioned were aware of it) and the work-life balance directive (38%). When questioned about future initiatives, citizens said they wanted interventions in the areas of health care (38%), wages (34%) and old age income and pensions (30%). At national level, they believe that the main priority should be to address the high cost of living (48%) – respondents from 20 countries put this as their top priority – ahead of low wages (35%) and poor quality health care (29%) (see abstract, press release and infographic).

Care leave allowance : For the first time, the Court of Justice has had to rule on the question of access to an allowance paid to a caregiver, where the person benefitting from the care does not reside in the same Member State as the employee applying for care leave allowance (see Work-life balance directive). In 2022, an Italian national who had been working in Austria since 2013, applied to his Austrian employer for care leave in order to care for his father, who resided in Italy. The employer granted the leave but the authorities refused to pay him the care leave allowance. The authorities explained that his father was not in receipt of a care allowance of level 3 pursuant to Austrian law, whereas payment of such an allowance to the person in need of care was a necessary condition for entitlement on the part of the caregiver to the care leave allowance. The Court of Justice emphasises that the ancillary nature of the care leave allowance in relation to the care allowance itself, “gives rise to indirect discrimination on the ground of nationality which is permissible only if it is objectively justified”, because only employees whose close relative resides in Austria are entitled to receive it. Moreover, the state of health of the employee’s father was such that he would have been entitled, had he been habitually resident in Austria, to a care allowance of level 3. Such discrimination can only be justified if the condition for receiving a care allowance of level 3 is “objectively justified by a legitimate aim relating, in particular, to maintaining the financial balance of the national social security scheme, and is a proportionate means of achieving that aim”, which is a matter for the Austrian court to verify (CJEU, 11 April 2024, Case  C-116/23, Sozialministeriumservice).

Subcontracting : On 8 April, three European trade union federations (EFBWW, EFFAT and ETF) published a policy brief calling for EU action to limit subcontracting, regulate the role of labour intermediaries and bolster the frequency and effectiveness of labour inspections (see press release), especially as regards the mobility of third-country nationals who find themselves in precarious situations and “completely dependent on intermediaries” (see press release).

Building industry : The ETUC and two European trade union federations (EFBWW and FSESP) have sent a letter to the Belgian presidency of the EU, urging it to put pressure on the European Commission to put forward, as per its announcement in 2022, a legislative proposal on screening and registration of asbestos in buildings, and to call on States to establish national asbestos removal strategies (see press release).

Defending industrial jobs : On 12 April, the metalworking industry social partners Gesamtmetall and IG Metall issued a joint statement, in which they expressed alarm at the choices made of companies, to the detriment of Germany, either in terms of location or investments. To this end, they call on the authorities to take the following measures: 1/ guarantee competitive energy costs and create more attractive investment conditions; 2/ speed up infrastructure development; 3/ develop and boost training provided in the form of sandwich courses; 4/ provide better equipment for schools and vocational training colleges; 5/ expand childcare; 6/ attract professionals, and create less bureaucracy and a more welcoming culture (see press release). Lastly, noting the drop in the number of employees covered by branch-level collective labour agreements, the social partners “commit to a structured dialogue” with a view to remedying this situation.

Paid leave entitlement : On 10 April, Parliament definitively adopted a draft law adapting French law to EU law, to bring the Employment Code into compliance with EU law on the question of entitlement to paid leave accrued during periods of sick leave. Among other things, the new law provides for employees to:  1/ accrue leave at the rate of two working days per month in the event of a non-occupational illness, up to a  limit of 24 days per reference period (12 months); 2/ benefit from a 15-month carry-over period to use up some or all of the paid leave they have built up, if they are unable to take this leave during the permitted period for reasons of illness or accident (whether work-related or otherwise); 3/ receive information from their employer, within one month following their return to work, on the number of leave days still available to them and the deadline by which these leave days must be taken. These new rules take retroactive effect at 1 December 2009.

Government programme : The new programme of the government led by Luis Montenegro, leader of the centre-right Democratic Alliance coalition, was adopted by Parliament on 10 April, with the votes of Socialists, among others. The programme includes 60 measures proposed by other parties, 32 of them by the Socialist Party, which appears to indicate that this minority government will favour the Socialists as its main partner. The CGTP, which is the main trade-union confederation, recently expressed reservations about the Democratic Alliance’s plans (see press release) to “revisit” the changes to labour law that came into force in early 2023, within the framework of the Decent Work Agenda (Agenda do Trabalho Digno) introduced by the previous Socialist government (see IR Notes 202) and article in CM jornal). The government also wants to reinstate social dialogue, emphasising that the latest tripartite agreements have been concluded without being signed off by the employers, and to pursue the goal of raising the national minimum wage to 1,000 euros by the end of the current legislature, in 2028, with increases based on inflation and productivity gains.

> See also: Changes in case law and legislation listed in the January and February 2024 editions of “Flash Reports on Labour Law” written by the European Centre of Expertise (ECE), based on reports submitted by the Network of Labour Law Experts in the Goethe Universität and ICF consortium. For its part, the March 2024 ETUI Collective Bargaining newsletter monitors developments in the area of collective bargaining in the various EU countries.

Creation : The French poultry meat production group LDC (25,000 employees) has concluded the negotiation of a European Works Council agreement (in the process of being finalised), with a special negotiating body assisted by the EFFAT European trade-union federation. The company has production sites in France, Hungary, Poland and the United Kingdom. According to EFFAT, the agreement provides for two face-to-face plenary meetings and two online meetings of the select committee per year, and the possibility of being assisted by an expert who, for at least the first two years, will be an EFFAT representative (see press release). An initial application to establish a EWC was submitted in 2015, but drew no response from management. A second application was submitted in spring 2021, with a letter from EFFAT signed by two of the three French trade unions represented at the company: FO (representing a majority of its workers) and CFDT (representing a minority) – but not the CGT.

• Restructuring: The European trade-union federation UNI Europa and the H&M group’s EWC have sent a message of solidarity to the 588 (out of a total of around 4,000) Spanish employees threated by a plan to close 28 of the group’s shops.

European benchmark : This annual work published by the European Trade Union Institute (ETUI) contains a large amount of data and information relating to the world of work. It documents the progress made by social Europe during the course of the current EU legislature, which is now drawing to an end. A chapter is devoted to the topic of democracy at work, with developments in the area of EWC practice, in the context of the debate surrounding revision of the EWC directive. It includes a discussion of confidentiality rules and their impact on the work of EWCs and a development concerning the potential of the recent Corporate Sustainability Reporting Directive, in terms of developing additional worker participation rights.

Telework and the right to disconnect : This study, in which IR Share took part and which was developed by Visionary Analytics and Notus, was commissioned by the European Commission for the purposes of: analysing the trends, challenges and opportunities associated with telework and the right to disconnect; presenting an overview and an analysis of the “acquis communautaire”, national legislations and agreements reached with social partners; identifying likely scenarios for the evolution of telework; and putting forward future policymaking recommendations. This is a very comprehensive and useful document, in a context in which the Commission is supposed to be launching a first-stage consultation of European social partners on an EU initiative aimed at introducing oversight of telework and the right to disconnect.