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IR Notes 36 – 15 July 2015
www.irshare.eu
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Who we are?
IR Share is a
provider that shares information, documentation and expertise for HR
managers and employee representatives. The IR Share agency operates by
way of online publications, working groups, training devoted to relevant
topics and a network of experts.
The team
This issue was produced by Sylvain Nadalet and Frédéric Turlan.
Find out more about the IR Share
team on our website
Subscribe to IR
Notes Via the IR
Share website or by calling us on:
+33 (0)6 81 41 53 95 or
E-mail: frederic.t@irshare.eu
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Note to our readers
IR Notes is taking a summer break!
The team will all be back with IR Notes 15 on 10 September. We wish you a
pleasant and restful holiday period. Let us not forget that the right to
paid annual leave is “regarded as a particularly important principle of
European Union social law” by the Court of Justice of the European
Union. Nevertheless, even during our publishing pause, we remain at your
disposal contact@irshare.eu + 33
(0) 6 81 41 53 95. Happy
holidays!
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Interview
Alain Supiot, Professor at the College de France
What
is your assessment of the recommendation in the five
presidents’ report (see IR
Notes 35) to set up a national authority in the
Member States for issuing guidance on the possible level of
wage rises? This is one more
illustration of the governance by numbers that is currently
spreading in Europe. This governance, which owes its dual heritage
to liberalism on the one hand and Soviet-style planning on the
other, establishes what the Chinese constitution calls a “democratic
dictatorship” (*). It cannot live alongside true trade union
freedom, whose primary objective historically was free wage
negotiation – which is why all collective freedoms are subjugated to
the economic calculation. In this case, the posse of presidents are
simply following the path mapped out by the European Court of
Justice since Union enlargement to include the former Communist
countries and its Laval and Viking rulings.
Isn’t
a wage recommendation desirable in the name of improving
competitiveness? You will note that no
similar initiative is envisaged to reduce inequalities or rein in
dividends or company share repurchases – whose dizzying rise even
the IMF recognises is hampering investment. No, because the fantasy
at work here is to remove the question of social justice, i.e. the
fair distribution of work and wealth, from the political sphere
forever. This is thanks to automatic pilot mechanisms which would
index the fate of workers once and for all on the basis of a
calculation of competitiveness on a global scale. All the
authoritarian and totalitarian regimes which have sought to impose a
“scientific” definition of social justice from above in this way
have collapsed in the end; it would be best to remember that.
On
the subject of the social dimension of economic and monetary
union, the five presidents’ report recommends the creation
of a “social protection floor” for “the most vulnerable”.
What do you think of this? This
so-called “floor” is nothing other than what was once called public
charity. The social state — that great legal invention of
democracies in the 20th century — had allowed us to leave behind
this vision of a world divided between those capable of asserting
themselves as masters amid ubiquitous competition and those “of no
use to the world” whom it is charitable to prevent from dying of
hunger. The solidarity systems of which the state is the guarantor
link the fates of rich and poor by conferring on everyone, when
facing certain risks of life, the right to receive according to
their needs and the duty to contribute according to their
capabilities (**). Ultra-liberal doctrine, as expressed for example
by the recommendations of the World Bank with regard to pensions in
1994 and as relayed by the European oligarchy, intends to end these
solidarity mechanisms in order to drain off compulsory contributions
towards the insurance market and leave the states with
responsibility for financing a “floor” for those without the means
to access this market. If Europe were still “social”, it would take
the time – as the emerging continents are doing – to rethink, and
not to destroy, the principle of solidarity at its own level.
(*) “La
gouvernance par les nombres”, Alain Supiot, Fayard,
2015, 512 p., 22 euros
(**) “La
solidarité. Enquête sur un principe juridique”, Alain
Supiot (dir.), Odile Jacob, 2015, 368 p. 25,90 euros
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Diary
16
July Luxembourg Informal
meeting of the ministers of Employment, Social Affairs and Equal
Opportunities
10-11
September Gothenburg IREC
annual conference on industrial relations in Europe with the title “Converging or
diverging industrial relations in Europe?“.
10-11
September Porto Third international
congress on working conditions, organised by the Working
Conditions Research Network (RICOT).
29
September Lisbon European
conference on the future of labour relations (individual and collective)
in the European Union, organised by SOCIUS-ISEG, CESIS and IR Share with
funding from Fundação para a Ciência e Tecnologia. For information
contact: Fernando
Vasquez or Raquel
Rego.
29 September – 2
October Paris European
Trade Union Confederation Congress.
1-2
October Brussels European
seminar organised by Astrees, IR Share and SBI-FNV Formaat with funding
from the European Commission on managing confidentiality of information
provided to European works councils. This seminar is reserved for
managers responsible for European works councils. An online registration form
is available. The participation costs are 250 euros. For
information contact: Frédéric Turlan (frederic.t@irshare.eu – +33
6 81 41 53 95) or Christophe Teissier (c.teissier@astrees.org)
5
October Brussels Employment,
Social Policy, Health and Consumer Affairs Council.
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IR Notes is a fortnightly
newsletter produced by IR
Share and its network of experts, and is available in
several European languages. It offers Europe-wide monitoring of employment law,
labour relations and employment policy. It is available by subscription for 15
euros per month ; 150 euros per year (excluding tax), via the IR Share website. IR Share
is a privately- owned, independent, apolitical company whose aim is to inform
and assist all players involved in social dialogue within and outside Europe. It
has been the correspondent organisation for France and Luxembourg of the Dublin
Foundation since 2009 and for Bulgaria since 2014.
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Lead
story
Debt
repayment also requires reform of collective bargaining
The impact of the “No” vote in the Greek referendum will have been only marginal when
the final position of the proposals made by the institutions representing the
creditors (European Commission, ECB, IMF) in the version
of 26 June is compared with the document
submitted by the Greek government to the creditors on 9 July. With regard to the
reform of the labour market (point 8 of both documents), a certain shift, at least
in semantics, is apparent. Thus, the creditors were demanding that the Greek
government should not undertake any reform of collective bargaining until the
existing legislation on collective dismissals, the right to strike and collective
bargaining had been reviewed. No reform was to be undertaken “before end-2015”, and
“any proposed changes to the legislative frameworks” could only be adopted “in
agreement with” the three institutions. The latter were widely exceeding the powers
devolved by the Treaty on European Union. While the IMF may not feel concerned by
the treaties of the EU, it is not right on the other hand for the European
Commission and the ECB to issue orders concerning the right to strike or collective
bargaining or to dictate the principal terms of a pension reform when none of these
matters comes under the jurisdiction of the EU. This criticism is partly dispelled
by the version of 9 July, however. The review announced now only concerns itself
with a reform of the labour market, without citing the right to strike or collective
bargaining. The government is no longer banned from proposing a reform without the
agreement of the creditors, but undertakes to present a reform of collective
bargaining “by Q4 2015.” Nevertheless, this essentially boils down to initiating a
reform in an area outside the Treaty’s remit; what’s more, the involvement of the
social partners will inevitably be limited, given the time-frame allowed to prepare
the relevant legislation. Finally, one can ponder the economic sense of this demand
in the absence of any study demonstrating a serious link between improving growth
and reducing public debt and any form of collective bargaining system.
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1. European
Union
Social
update
- Corporate governance: The
European Parliament on 8 July adopted a resolution
on the proposal for a directive concerning long-term shareholder engagement and
corporate governance (see Parliament press
release. Negotiations are set to begin with the Council with a view to
adopting the text at first reading.
- Transatlantic treaty: In a
resolution
adopted on 8 July relating to the negotiations of the Transatlantic Trade and
Investment Partnership, the European Parliament has requested that the chapter
on sustainable development “is binding and enforceable and aims at the full and
effective ratification, implementation and enforcement of the eight
fundamental ILO conventions (…)” including those on the freedom of
association and the right to collective bargaining. The MEPs also call for
“employees of transatlantic companies, registered under EU member state law, to
have access to information and consultation in line with the European works
council directive”.
- Employment policy: The
European Parliament on 8 July adopted a resolution
on guidelines for the employment policies of the Member States. The members of
the European Parliament recommend in particular to the Member States to set up
“a minimum income proportionate to their specific socio-economic situation” in
order to combat poverty.
- “Green” jobs: In a resolution
adopted on 8 July concerning the communication
from the European Commission on the green employment initiative, the
MEPs call for “the strengthening of worker information, consultation and
participation rights regarding matters concerning sustainable development, and
effective workforce representation”. They recommend “involvement of trade union
‘green representatives’ working with employers on strengthening the greening of
the economy and increasing sustainability at their workplaces”.
- Maternity leave: The
European Commission has withdrawn the proposed revision of the maternity leave
directive (see Commission press
release. It has announced a “new initiative”, which it will unveil in a
“roadmap” before launching a “public consultation”. The European Trade Union
Confederation denounced this withdrawal in a press
release as did the IndustriAll European Trade Union federation (see press
release).
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Case law
Number of workers to be taken into account in
the case of collective redundancies: A German company
decided to close one of its establishments and to dismiss the employees. The
establishment had a workforce of 18, so did not reach the threshold of 20 employees
at which notification of the redundancies to the German authorities becomes
compulsory. Under German legislation, a director of the company and an intern were
not included in the calculation of the number of workers. The European Court of
Justice noted that the director “performs his duties under the direction and subject
to the supervision of another body of that company, receives remuneration in return
for the performance of his duties and does not himself own any shares in the
company”. As for the intern, she was undergoing training within the company to
re-qualify as an office assistant, funded by the public employment office, which was
paying her a grant in recognition of her work. The European Court of Justice found
that the national legislation which excluded them from the calculation of the number
of workers did not comply with directive 98/59 of 20 July 1998 concerning collective
redundancies (CJEU
9 July 2015, case C-229/14, Ender Balkaya).
- Equal treatment and fixed-term
contracts: The European Court of Justice was asked to
consider a legal action involving a female worker in Spain and her employer, the
Spanish Council of State, concerning the refusal of the latter to grant the
employee her three-yearly length-of-service increments because of her particular
status as a member of the ‘personal eventual’ (‘non-permanent staff’), akin to a
fixed-term contract. If she performed “duties identical or similar to those
performed by a career official”, only an “objective ground” could justify “the
difference in treatment between those two workers”. However, the Court of
Justice underlined that “the non-permanent nature of the category of staff at
issue could in no case be considered such a ground” (CJEU
9 July 2015, case C-177/14, Regojo Dans).
> Also
see: The judgement of the European Court of Justice (CJEU
9 July 2015, case C-87/14) which found that the European Commission had
not succeeded in establishing that Ireland had failed to fulfil its obligations
under the working time directive for non-consultant hospital doctors (see press
release)
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2. Member
states
Germany
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Italy
- Implementation of the “Jobs Act”:
The government has published two decrees constituting the second
implementation phase of the “Jobs Act” adopted in December 2014. The first
decree extends the arrangements for paternity leave to self-employed
fathers, adapts maternity leave in special circumstances (hospitalisation of the
newborn child, premature birth) and increases the scope for accessing parental
leave. The second
decree brings together in a single document the system covering all
forms of employment other than the permanent contract, which is presented as the
normal form of employment. In other respects, the decree authorises the transfer
of an employee to a lower-level job in the event of company restructuring.
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Luxembourg
- Social dialogue in
companies: The chamber of deputies on 2 July adopted a
law
to reform social dialogue within companies. The staff delegation becomes
the single body representing the interests of the employees and is granted the
powers of the joint committee, particularly with regard to codetermination, once
the threshold of 150 employees is exceeded. The law has been rather badly
received by employers and by the country’s second-largest trade union, the LCGB
(see press
release). The biggest confederation, the OGBL, on the other hand, is
pretty satisfied (see press
release).
> Also see: The positive
assessment of the minimum wage six months after its introduction,
published by the ministry of labour in Germany; a new law in the Netherlands
(Work and Security Act, see commentary
by Lexicology) on dismissals on economic or incapacity grounds.
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3.
Companies
Transnational negotiations
Suez Environnement: The
management of Suez Environnement, trade union representatives from 11 Member States
and from two European trade union federations have completed the signing process of
an group
agreement on gender equality in the workplace. Under the agreement, “All
Group companies with over 150 employees commit to establishing an overview of
actions taken to promote gender equality in the workplace, and undertake to define a
new action plan”. Those companies that do not yet have an action plan on this matter
“must implement the provisions of this agreement within 15 months of its signing”.
(Link to the agreement in different
languages).
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European
works councils
- Air France KLM: The group
works council of Air France KLM has reacted unfavourably to a plan to
restructure call centres which, according to the EWC, would affect 80 employees
in Europe. The EWC has appointed an expert.
- ArcelorMittal:
Negotiations having been completed (see IR
Notes 28), the number of representatives on the EWC is to be reduced
from 54 to 42. The select committee will go from 25 to 21 members, with 17
permanent and 4 “rotating” members, which will allow all the representative
trade unions in the group to have at least one representative on the select
committee for part of the term in office.
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4. Studies
and reports
Articulation of information and consultation
processes: The Foundation for the Improvement of Living and
Working Conditions (Eurofound) has published a study (Linking
information and consultation procedures at local and European level) which
examines the articulation of information and consultation processes between European
works council level and national-level employee representation channels. Produced by
Peter Kerckhofs and Filip Dorssemont, the study outlines the legal frameworks and
case law in Belgium, France, Germany, Italy, the Netherlands and the United Kingdom.
“It appears,” Peter Kerkhofs comments, “that a company which decides upon a
transnational restructuring programme will have difficulty in respecting both the
imperatives of European legislation and those of national standards relating to
information and consultation if its EWC agreement does not provide for the precise
linking of the different information and consultation processes.” The report
concludes with pragmatic recommendations guided by jurisprudence. In June, Eurofound
also published a report (European
Works Council developments before, during and after the crisis) based on 10
case-studies of European works councils.
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