IR Notes

This topic will probably not be debated during the European elections, but it is one that the next European Parliament legislature and the Commission will simply have to address: the growing exploitation of third-country nationals (see Third-country nationals), who come to work legally within the EU, yet are being openly exploited. They join the cohort of workers who are being exploited within the large Community-wide single market, such as seasonal workers and undocumented foreign nationals employed by digital platforms. Several recent publications have tried to zero in on a situation which, if it is not dealt with properly, will weaken our democracies. 1/ On 30 April, the Commission published the report on the application and implementation of Directive EU 2018/957 of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, accompanied by a working document (see below). This report emphasises that “posted third-country nationals are generally more exposed to abusive practices, such as fraudulent posting, labour rights violations, precarious working conditions, irregular payment and non-payment of social contributions”. They are also “likely to accept remuneration below what should be paid” and are heavily exposed to risks linked to precarious living and working conditions, especially due to “their potential dependency on their employer for the renewal of work and/or residence permits”. 2/ This report is based in particular on a study ordered by the Commission, monitoring the situation of temporary cross-border mobile workers and workers in subcontracting chains. Using several enlightening case studies, the authors note that “the number of posted TCNs is increasing rapidly, particularly in countries like Slovenia, Poland and Lithuania, as well as in sectors such as construction, road transport, live‑in care, and agriculture”. Some Member States have introduced “permissive entry regimes”, a development that has significantly increased the proportion of third-country nationals working in some sectors. 3/ The report on third-country drivers in European road transport produced by Progressive Policies for the European Transport Workers’ Federation (ETF) confirms the wholesale recruitment of third-country nationals by Slovenia, Poland, Lithuania and Spain. In Lithuania, in 2021, 65% of road-transport drivers came from third countries. Once recruited, these drivers are dispatched EU-wide, taking advantage of free movement legislation, and they will remain with their lorry for several months. The report finds evidence of working conditions that could be categorised as “severe exploitation”, with wages paid below the minimum levels, thanks to the imposition of various deductions and driving time being extended by tampering with the tachographs that are supposed to log drivers’ time behind the wheel. Faced this situation, the Commission does not plan to amend EU legislation, but is considering a number of ways to tackle the problem, such as giving posted third-country workers better access to information on their rights; strengthening transnational cooperation between inspection bodies and migration authorities; and strengthening the application of posting rules in specific sectors that have a large number of posted third-country workers. In other words, the ball is now in Member States’s court, even though social partners too, can take on their share of the responsibility, as those in the transport sector have recently done (see below). However, doing nothing would be highly damaging for the construction of Europe, which is supposed to aim at “full employment and social progress”.

Directives passed : On 7 May, following votes in Parliament, the Council definitively adopted the directive on combating violence against women and domestic violence (see press release) and two directives that will strengthen the role of equality bodies across the EU (see press release). These directives will shortly be published in the OJEU, and Member States will then have three years to transpose the first one into their domestic law, and two years for the other two. On 29 April, the Council also definitively adopted the directive on time limits for the adoption of sustainability reporting standards for certain sectors and third country undertakings, to give the companies concerned more time to apply European Sustainability Reporting Standards (ESRS) (see press release).

Revision of European Works Council directive : In response to the statement issued by EU employers’ organisations on 22 March, (see IR Notes 229), on 6 May, six European trade union federations and the European Trade Union Confederation published a joint statement of their own, denouncing the arguments put forward by the employers: 1/ the European Commission’s proposal for a directive in no way envisages granting EWCs a right of co-decision-making; 2/ in the event of a breach of information and consultation rights, the signatories are calling primarily for an injunction that can suspend a management decision until a proper consultation is carried out; 3/ the new definition of transnational matters is justified, because a decision taken by head office in one Member State, which affects a production site in another Member State, may sometimes also have effects in a third Member State, thus requiring employees to be informed and consulted; 4/ the obligation for management to provide a written response to an opinion adopted by an EWC already exists in agreements and improves the quality of the consultation process; 5/ EWCs must be able to ask management to justify why information is categorised as confidential, and must be entitled to pass on confidential information to employee representatives at national level (who are themselves bound by a confidentiality obligation), failing which effective consultation cannot be guaranteed; 6/ in addition to the permanent support of a trade union representative, a EWC needs support from experts, whether legal or financial, in order to be able to provide a proper consultation contribution. As the EWC has no income of its own, these external experts’ fees must be paid by the employer, which has entire teams of experts at its disposal to advise management; 7/ the deletion of exceptions does not automatically end existing agreements: “if these agreements work as well as the employers’ organisations claim, neither side will apply to replace them with new ones in accordance with Article 5 of the Directive”. In conclusion, the trade unions call on the Council “not to be blinded by false arguments and to finally ensure that European Works Councils are given sufficient and enforceable rights and have the necessary resources to exercise them”.

Financial independence for women : On 7 May, the Council adopted conclusions entitled “Economic empowerment and financial independence of women as a pathway to substantive gender equality”. These conclusions call on Member States to promote measures to support victims of domestic violence, “including measures to help them maintain or gain financial independence, such as measures to help them retain employment or measures providing for paid leave from work”. They call on the Commission to launch awareness-raising campaigns on the new rights for workers in the Pay Transparency Directive and the Work-Life Balance Directive, so as to ensure that citizens know and can exercise their rights.

Discrimination based on sexual orientation : On 7 May, the European Court of Human Rights (ECtHR) handed down a judgment in a Russian case relating to a dismissal linked to a female employee’s sexual orientation. A teacher was summoned to appear before her school management, which had become aware of photos posted on social media, showing her kissing other women. She was asked to resign in light of “her propaganda of non-traditional sexual orientation”.  She refused, but was then dismissed some days later because of “immoral acts incompatible with continued performance of teaching activities”. Relying on Articles 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination), the Court holds that an individual’s sexual orientation cannot be isolated from the private and public expressions of it, and is protected by Article 8. The posting of photos showing intimacy to partners while travelling or at parties is a staple of social media. The employer’s hostile reaction to such posting demonstrates its lack of acceptance of the teacher’s sexuality. The dismissal represents “a disproportionate interference with her Article 8 rights based solely on her sexual orientation” (see press release and Discrimination on the grounds of sexual orientation).

Road transport : On 19 April, the European social partners in the road transport sector, IRU and ETF, issued a joint statement on the creation of a European framework for improved working conditions of third-country drivers employed by companies based in the EU (ETF and IRU press releases). This text tries to reach a compromise between the claims of the trade unions, which seek to improve drivers’ working conditions, and the need to recruit more drivers, given the current labour shortages. In this text, the trade unions agree to the use of third-country drivers, but they insist that road transport companies must comply with social security and tax rules (see Lead story).

• Last minute: On 14 May, the social partners in the banking sector signed a joint declaration on employment aspects of artificial intelligence (see press release).

Breaks at work : According to a survey conducted in 2021 by the Federal Institute for Occupational Health and Safety (BAuA) and involving 17,000 workers, 31% of those questioned stated that they “frequently skipped” work breaks lasting more than 15 minutes. The highest rate (49%) was in the healthcare sector. The study showed that workers who frequently skipped their breaks were more likely to suffer from “sleep disorders” (46%, compared to 30% of those who skipped their breaks less often or always took them) and “burn-out” (51%, compared to 35%).

Berry pickers : The government has published a report in preparation for a new law that will oversee the use of third-country workers employed to pick wild berries. Previously, the pickers came mainly from Thailand, and were granted a tourist visa lasting no more than three months. As there had been a number of cases of people trafficking, no visas were granted in 2024, and the government asked experts to examine the possibility of granting the pickers an alternative status for the next berry-picking campaign in 2025: either that of seasonal workers or self-employed workers. Classifying them as seasonal workers (see Seasonal workers) would allow them to be paid the minimum wage and would meet health and safety obligations, but would not wipe off the debt they take on in their home country to finance their trip (see press release).

Childbirth leave : The government has today begun a consultation with social partners and associations with a view to introducing “childbirth leave”, to replace the current parental leave arrangements. The plan is to grant three months’ leave each to mothers and fathers, which can be taken concurrently during the child’s first year, and will be paid at the rate of 50% of the parent’s normal wage, up to a ceiling of 1900 euros/month. The current parental leave arrangements are seen as unappealing (a fixed monthly payment of 448 euros) and as lasting too long (three years), which can make it hard for women to return to the labour market.

Combatting extremism : To mark the 30th meeting of the Siemens Europe Committee (SEC) (see press release), its members travelled to Nuremberg and visited the site where the Nazi party held rallies of its members. Here, they issued a joint declaration, in which they condemned “all forms of extremism, exclusion and discrimination, and all hatred and violence. What is associated with this place must never be repeated”. The declaration was signed by management, and by the Chairman and Deputy Chairwoman of the European Works Council.

Posted workers : On 30 April, the Commission published the report on the application and implementation of Directive EU 2018/957 of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, accompanied by a working document and a study. These documents contain valuable information on the subject of posting workers and on bad practices noted. The Commission believes that the directive has “improved the working conditions of posted workers, especially as regards their remuneration, the equal treatment of posted temporary agency workers and the reimbursement of expenditure incurred on account of the posting”. It thinks there is no point in amending the legislation, but within Member States, it has identified “various issues of non-conformity” with the directive, which might prompt it to bring new legal proceedings against countries that are in breach of the directive and reluctant to cooperate. The Commission also refers to a number of new initiatives, in partnership with the European Labour Authority (ELA), which could include providing “guidance on applying more stringent rules at national level with regard to the scope of subcontracting liability”. However, it is refusing to amend the directive on this point, which is what some European trade union federations are calling for. Having noted certain difficulties in determining the pay applicable to posted workers, it believes that ELA “could work on a tool to facilitate the calculation” of their remuneration “and increase its transparency”. Such a tool, for which the general elements could be established by ELA, would be used and implemented at national level.

Working conditions in 2023 : The European Foundation for the Improvement of Living and Working Conditions (Eurofound) has published its annual report, setting out a summary of the various studies it performed in 2023 on numerous topics, ranging from labour shortages to the impact on health and well-being of stress factors in the workplace, via the future of hybrid work. Of particular note is the chapter on democracy at work, which attempts, using three criteria — the ability of social partners to influence economic policy, social dialogue at company level and workers’ rights – to rank Member States’ systems of social relations, based on their performance. Each subsequent chapter then facilitates the task of analysing the reports used as a basis for this ranking, and provides a short summary in the form of “takeaways”.