IR Notes

On 10 April the European Commission sent a consultation document on “a consolidation of the EU Directives on information and consultation of workers” to the European social partners. The initiative follows on from the “fitness check” published in July 2013, which found that the three directives granting employees the right to information and consultation at national level (transfers of undertakings, framework directive on I&C, collective redundancies), were “fit for purpose (…) relevant, effective, coherent and mutually reinforcing”. Nevertheless, the Commission singled out certain shortcomings which it regarded as justifying amendments, in particular a harmonisation of the definitions of information and consultation. It is therefore seeking the views of the social partners on the merits of “consolidating” the directives by means of a “recast”, which implies “the adoption of a new legal act which incorporates in a single text both substantive amendments to (an) earlier act(s) and the unchanged provisions of that act(s)”. The European social partners have until 30 June to reply to the Commission and give their opinion on the different options, and to state whether they would consider initiating a dialogue on any of the issues identified. Failing this, the Commission will be able to launch a second consultation phase in which it will unveil its proposal for a directive, at which stage the social partners will still have the option of negotiating on this subject. The chances of a negotiation are extremely slim, however, given the gap between positions on this issue – especially since the discussion is likely to extend to the definitions of information and consultation in the European works council and European Company (SE) directives, even if the Commission has stated that these texts are different in nature. (The three I&C directives operate at national level, whereas the other two documents are transnational in approach.) In reality, apart from the Commission, which is promoting its better regulation programme, few players, including the member states, appear truly motivated by this issue, preferring the convenient status quo. In other respects, the Commission also wishes to launch an evaluation of directive 2009/38 on European works councils in order to ascertain whether the new provisions of the directive are effective and relevant.

• The Council of Europe adopts a recommendation on the treatment of employees’ personal data: The Council of Europe on 2 April adopted a recommendation on the processing of personal data in the context of employment which should encourage the 47 member states to update their national legislation concerning the processing of personal data of employees and job candidates (see press release). The document aims to avoid unjustifiable and unreasonable interference with employees’ right to a private life in the workplace, stating that this principle is applicable to all information technologies (monitoring of internet use, monitoring of electronic communications, use of video surveillance, geolocation, genetic tests etc.).


• Employers take a stand on working time directive review: Having replied to the public consultation launched by the European Commission on revising the legislation on working hours, ten European sectoral organisations representing employers as well as the BusinessEurope umbrella organisation have sent a joint letter to the European commissioner responsible for this dossier, Marianne Thyssen. The signatories regard the directive as a text that aims to protect workers’ health and safety and believe that the current provisions sufficiently meet this objective. There are no grounds for its revision, they argue, apart from in targeted areas to create greater legal certainty to deal with the practical problems caused by the European Court of Justice rulings, such as a clear stipulation that inactive on-call time is not counted as working time; or, in cases when a worker is on-call but does not need to be present at the workplace, that this standby time does not count as working time unless the worker is called to actively perform his work.

• Issue of banning the wearing of Islamic headscarves at work referred to the European Court of Justice: In a ruling delivered on 9 April, the French supreme court (Cour de cassation, judgement of 9 April 2015, No. 13-19855) has referred to the Court of Justice of the European Union a case concerning the dismissal of a female employee who refused to remove her Islamic headscarf when deployed to work for a client company. Directive 78/2000 of 27 November 2000 in particular prohibits discrimination “based on religion or belief”. However, it accepts that a “difference of treatment” does not constitute discrimination “where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate”. The senior French judges have consequently referred the matter to the European Court, asking if “the wish of a client of an IT consultancy that the IT services being provided by the consultancy should no longer be delivered by a female design engineer wearing an Islamic headscarf” comes under the category of “genuine and determining occupational requirements”, allowing a difference of treatment to be authorised which could ultimately justify the female employee’s dismissal. The European Court of Justice is expected to issue a ruling within a period of 12 to 18 months.


• Can the fact that his wife does not work prevent a husband from taking parental leave? A case has been brought before the European Court of Justice concerning a Greek civil servant who was denied the right to take parental leave on the grounds that his wife was not in work and therefore able to look after the child. This decision by the administration complies with Greek national legislation. For the Advocate General of the European Court of Justice, who has now delivered her conclusions (CJEU, conclusions, 16 April 2015, case C-222/14), the framework agreement on parental leave implemented by directive 96/34, and article 14 of directive 2006/54 are at odds with the contested regulation, which provides that “if the civil servant’s wife does not work or exercise any profession the male spouse is not entitled to parental leave, unless it is considered that due to a serious illness or injury the wife is unable to meet the needs related to the upbringing of the child”.

• An online counter calculates the cost of long-term unemployment: The STTK trade union federation has launched a counter on its website which automatically works out the cost of long-term unemployment in Finland. The figure appears on the website home page. The cost per day is around 18.7 million euros, which includes unemployment allowances, other social benefits and lost taxes on income and pension contributions. The federation’s economists consider that a person who belongs to the group of long-term unemployed costs society 600,000 euros on average, given the fact that 70% of people classified as long-term unemployed have little chance of returning to work and that they are aged 48 on average when they join this group.

• Draft law aimed at reforming social dialogue in companies: Following the failure of talks by the social partners to modernise social dialogue in companies, the minister of labour on 22 April presented a bill relating to social dialogue and employment (see press release, in French). The principal new features are as follows: 1. The creation of joint regional bodies in order to permit representation of employees in very small enterprises (up to 10 employees). 2. The expansion of the “single staff delegation” which until now has allowed this employee representative body to be formed in companies with fewer than 200 workers by combining the works council and the staff delegates. The draft law provides for this option of creating a single body to be extended to include companies with up to 300 employees, and to incorporate the committee responsible for health and safety. 3. The possibility of merging the staff representative bodies by collective agreement – signed by one or more trade unions representing at least 50% of the workforce – in companies having 300 and more employees.

• Expert body to advise IG Metall: The IG Metall trade union for Germany’s metalworking industry has set up an advisory body on the future of work comprising 27 experts from metalworking companies and the worlds of academia and politics. In particular, they include the chairmen of the central works councils of Daimler and Robert Bosch. They will be tasked with advising the trade union on managing the digitisation of industrial work practices and finding answers to the questions about the future of jobs and for workers in Germany (see IG Metall press release ).

• Minimum wage to go up: The government decided on 17 March to increase the minimum wage for adults from £6.50 to £6.70 per hour with effect from 1 October 2015, following the recommendation made by the Low Pay Commission (see press release). By contrast, it disregarded the opinion of the Low Pay Commission regarding pay for apprentices: their minimum wage will go up by 57 pence to a rate of £3.30, the largest ever increase granted to apprentices. According to the government, this is the largest real-terms increase in the national minimum wage since 2007, and it will directly benefit more than 1.7 million people.


• Shared parental leave becomes law: Since 5 April it has been possible for employees to choose to share parental leave following the birth of their child or an adopted child’s arrival in the home. The scheme makes it compulsory for mothers to take two weeks maternity leave following the birth (or 4 weeks if they work in a factory). Beyond this, parents eligible to take part in the scheme (which is conditional in particular on a period of continuous employment with the same employer of 26 weeks) can share up to 50 weeks of Shared Parental Leave and 37 weeks of Statutory Shared Parental Pay, which is set at £138.18 per week (or 90% of the weekly wage where lower). The parents can take their leave together or consecutively. They can also take it all at once or – with the employer’s consent – it can be split into blocks. The government has published several guides to explain the scheme to employers and to parents , also allowing them to calculate their leave and pay online.

• Tripartite consultations on the minimum wage and the collective bargaining system: On 15 April the government opened consultations with the social partners on its plan to increase the minimum wage in two stages between now and the end of 2016, raising it from its current value of 580 euros to 650 euros on 1 October 2015 and then to 751 euros in July 2016 – the level promised by Syriza during the election campaign. The talks will also address the reinstatement of collective agreements revoked in conjunction with various austerity plans adopted since 2010.

Renault: The French carmaker Renault on 24 March concluded a revised agreement on the Renault group works council (CGR), which was signed by the representatives of the employees in the main European countries and the representative French federations for the metalworking industry. The chair, co-chairs of the select committee and IndustriALL Global Union also signed the new accord. The revised agreement states the different formations in which the CGR can meet: 1. The world works council brings together 40 employee representatives from 18 countries (including 9 members from non-EU countries) or groups of countries once a year. 2. The select committee of the group works council brings together 11 members (a chair and ten co-chairs, elected from among the European members) several times a year, depending on current developments in the company. 3. The group works council at European level brings together the 31 members of the European Economic Area in the case of exceptional decisions. On top of this, the “learning session” allows the members of the select committee once a year to visit a country in which the group has operations to obtain information about the social, economic and cultural aspects and gain a better understanding of the issues for Renault in that country (Morocco in 2013, Brazil in 2014).

• Gestamp: The Spanish automotive supplier Gestamp (nearly 19,000 employees in the EU) on 29 January signed an agreement on the creation of a European works council. It is one of the rare agreements to explicitly provide for the EWC to “negotiate” with management on all matters concerning the employees. The agreement provides a visiting right to sites to meet the workers or their representatives in order jointly to identify transnational issues going beyond the sphere of competence of staff representatives at local level. The works council has 21 members, of whom 6 are Spanish, 5 German, 3 British and 2 French. A select committee is informed in the event of exceptional circumstances affecting employees’ interests in at least two countries and can invite the representatives of the locations concerned or decide to convene a plenary meeting. The signatories also created a working party dedicated to the topic of health and safety.


• Alcatel-Lucent / Nokia: The coordination between the staff representatives of the Alcatel-Lucent and Nokia groups, which have announced they are to merge, should be facilitated by the fact that the trade union representatives of the two companies are already based at the ICT sector committee of the IndustriAll European trade union federation. “The chairs of the two European works councils know each other,” adds Philippe Saint-Aubin, national secretary of the FGMM-CFDT. Information about the merger was provided to the European works council on 17 April.

• BNP-Paribas / Société générale: The UNI Global Union international trade union federation has announced the creation of two global trade union alliances within the two banking groups following a meeting attended by the trade union representatives of its affiliates on 14 April, in Marrakesh (Morocco). The UNI press release presents the two documents with details of each of the two alliances. The federation underscores that negotiation of an international framework agreement at Société Générale is on track.

Social dialogue or European social lobbying? A study by the European Trade Union Institute (ETUI, “Dialogue social sectoriel européen : une ombre au tableau ?”, Christophe Degryse, Working Paper 2015.02 ; (“European sectoral social dialogue: a shadow on the picture?”, in French) retraces the evolution of European social dialogue, with its current total of 43 sectoral social dialogue committees, bringing together the European social partners in the sectors concerned. A mixed picture is revealed: while some committees are dynamic, others are gripped by a “profound lethargy” (insurance sector, banks, gas, footwear). In addition, if sectoral social dialogue from 1999 to 2009 primarily produced reciprocal commitments between the partners, it has been transformed since 2010 into a “social dialogue mainly of joint lobbying”. “There has not been a single new agreement negotiated in 2011, or in 2013, or in 2014,” notes Christophe Degryse. The fact is that the change in attitude of the European Commission – which subjects such agreements and the representativeness of the signatories to detailed scrutiny, thus delaying or even preventing their implementation by way of directives – does little to encourage the social partners to continue down this path.

The study published by the European Trade Union Institute (see above) refers to the control exercised by the European Commission over agreements concluded by the European social partners. Certain experts query the legitimacy of a power of control resting with the Commission, with a reminder that article 152 of the Lisbon Treaty states that the European Union shall “facilitate dialogue” between the social partners, “respecting their autonomy”. In addition, as article 155 explains, this dialogue “may lead to contractual relations, including agreements” which shall be implemented “at the joint request of the signatory parties, by a Council decision on a proposal from the Commission”. In this event, “the European Parliament shall be informed”. In other words, the Treaty appears to allow the Commission only to use the text in the form of a proposal for a decision for the Council to adopt (or not as the case may be) or to adopt unanimously if the subject matter of the agreement comes under the unanimity rule. The question is whether the Treaty grants the Commission a degree of discretion, or whether the principle of the parties’ autonomy in the framework of social dialogue bars its intervention.