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IR Notes 5 – 13 March 2014
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Interview
Filip Dorssemont, Professor at the Université catholique de Louvain
(UCL)
The European Trade Union
Confederation is holding a mass European demonstration in
Brussels on 4 April against the austerity
policies. What is the legitimacy of such a
protest? The
legal legitimacy of this demonstration can be derived from the
analysis of its objectives, which are linked to the impact of the
austerity policy on the material interests of the workers. It is
sufficient to read the “Euro Plus Pact” of March 2011 to determine
that many of the objectives of the new economic governance relating
to promoting competitiveness and employment, as well as the
viability of public finances, are being implemented through
strategies which directly affect the social gains established by law
or by collective negotiation at Member State level. The classic
objection of claiming that these are “political” strikes does not
ring true. The supervisory bodies of the International Labour
Organisation (ILO) have long since recognised the right of trade
unions to use strikes as a means of protest, in particular in order
to criticise the government’s economic or social policy. Such
strikes are not “purely political” actions.
Is a “pan-European” call to observe
a one-hour work stoppage imaginable as a way of allowing workers
to express their dissatisfaction with the austerity
policies? It
is not at all difficult to imagine such a thing, but clearly those
who lack imagination cannot imagine what is lacking. First of all,
it must be remembered that the approach advocated by the ILO has not
been followed by all of the Member States. The European Social
Charter (ESC) recognises the right to collective action in
connection with the effective exercise of the right to collective
bargaining. Although the notion of “collective bargaining” must not
be reduced to the process whose aim is the conclusion of collective
agreements, the European Committee of Social Rights (ECSR) tends to
limit it to negotiations between workers’ and employers’
representatives. The legitimacy of taking collective action as part
of a conflict between trade unions and the political authorities is
therefore far from obvious in the light of the ESC. In our opinion,
this legitimacy can be defended when one observes that many of the
recommendations arising from the European Semester as well as a
large number of conditions inserted into the Memorandums of
Understanding tend to subjugate the autonomy of the social partners.
From this perspective, I feel that it may be possible to position
the collective action in the context of exercising collective
bargaining. Note, however, that whereas this bold reflection might
make it easier for German workers to take part in such a European
action, the participation of British workers remains difficult.
Under British law, the immunity granted to the trade unions
presupposes that the strike is part of an industrial dispute between
workers and their employer. The contractual liability of each worker
will therefore be assessed according to the law that applies to his
employment relationship. In my opinion, a pan-European strike in
legal terms constitutes a juxtaposition of national strikes which
does not present any foreign-law element which could allow the judge
to perceive any conflict of laws. In short, what is transnational in
the eyes of a lawyer working in the field of collective labour law
will not necessarily be regarded as such by a specialist in
international private law. In concrete terms, we must understand
that each worker’s responsibility will be assessed according to 28
separately applicable laws. In the absence of increased permeability
of these national laws to the acquis of international labour law,
this assessment will therefore be very divergent.
What type of collective action
could be envisaged under the law as it currently
stands? In my
view, the European trade union movement should not allow itself to
be influenced by a purely legal approach to legitimacy. In other
words, a distinction must be made between the character of
lawfulness in legal terms and that of the moral or political
legitimacy of the trade union action. The rise of the trade union
movement is explained by its courage to overcome these legal
considerations. It is clear that, should a demonstration against the
austerity policy fail to coincide with the exercise of the right to
strike, it could be perfectly compatible with the exercise of the
freedom of peaceful assembly. But, however beneficial it may be, is
a Sunday stroll really capable of exercising any pressure?
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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 (excluding tax), via the IR Share website. IR
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of the Dublin Foundation since 2009 and for Bulgaria since 2014.
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Lead story
A directive
that regulates the posting of workers
The Council and the European Parliament on 27 February finally reached agreement on
the text of the directive which aims to regulate the posting of workers in order to
limit abuses (Parliament
press release). The wording of the document remains largely unchanged from
that adopted by the 28 Member States on 9 December 2013. The text (see Council
press release, in English) has still to be formally adopted by the two
institutions before being published in the Official Journal. The states will have
two years to transpose the directive into their national law. They will have greater
latitude to carry out checks and will be able to adopt additional measures beyond
those proposed in the directive, simply by informing the European Commission. The
text also contains elements to combat bogus self-employment. The European Trade
Union Confederation has voiced its disappointment in a press
release. Although the document may allow certain forms of abuse relating
posted workers to be tackled, it does not cover all of the problems and does not
address social dumping linked to differences in the cost of social protection. In
other respects, whatever the measures taken by the states, they will need to be
justified and proportionate if they are to avoid being considered as in breach of EU
law by the European Court of Justice.
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1. European
Union
Legislation
- Road transport:
Publication of Regulation
No. 165/2014 of 4 February 2014 on the tachographs used in road
transport which also allow compliance with social legislation to be verified.
The majority of the measures will take effect from 2 March 2016, with the
exception of three articles which will come into force on 2 March 2015 (OJEU,
28 February 2014, No. L 60, p. 1).
- Chemical products:
Publication of Directive
2014/27/EU of 26 February 2014 amending five directives in order to
align them to Regulation No. 1272/2008 on the classification, labelling and
packaging of substances and mixtures. The Member States have until 1 June 2015
to implement this directive. As pointed out by the European
Trade Union Institute, “The most visible sign of this new law for
workers and the public will be that the old symbols and risk phrases on
chemicals labels will gradually be replaced by new pictograms and hazard
statements” (OJEU
5 March 2014, No. L 65, p. 1).
- Non-financial information:
On 25 February the Council endorsed the agreement reached between the Parliament
and the Council on a draft directive concerning the publication of non-financial
information on diversity matters by certain large companies. The European
Commission had presented this Proposal
on 16 April 2013. The text has still to be formally adopted by the two
institutions before being published in the Official Journal. Some 6,000
companies with more than 500 employees will be required each year to publish a
statement containing information on environmental, social and employee-related
issues, respect for human rights and anti-corruption measures. Although no
sanctions are envisaged, companies which do not respect these obligations will
have to explain why. In their statement on corporate governance (as prescribed
by article 20 of directive 2013/34/EU), companies will be required to describe
the diversity policy which they apply to their executive, management and
supervisory bodies with regard to criteria such as age, gender, and educational
and professional background.
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Case law
- Parental leave and
redundancy: The European Court of Justice has delivered
a judgement in which it adds to its body of case law protecting employees
choosing to take parental leave. In this case, a female employee was dismissed
at the beginning of a period of part-time parental leave that followed her
maternity leave. She did not accept that her protective award for dismissal
should be calculated on the basis of her part-time salary. The Court of Justice
found that the protective award had to be calculated on the basis of the
remuneration applicable when the employee was working full-time prior to
parental leave. A reduction in the protective award would dissuade employees
from taking parental leave and would therefore be contrary to the framework
agreement on parental
leave of 14 December 1995. The Court stated that clause 2, paragraph 4
of this agreement, which is intended to protect employees against dismissal in
association with taking parental leave, “must be interpreted as articulating a
particularly important European Union social right and it may not, therefore, be
interpreted restrictively” (CJEU,
27 February 2014, Case C-588/12, Lyreco Belgium NV v. Sophie Rogiers).
- Maternity leave: The
European Court of Justice has delivered a judgement in a case concerning a young
woman who had taken a competitive examination for the Italian prison service.
She was successful in the competition in April and was due to begin a 12-month
training course in December, before being appointed to a post. Just before the
training course began, she gave birth and was placed on compulsory maternity
leave for three months, that is to say until March. Under the legislation, a
candidate is prevented from taking the training course if absent for more than
30 days. She was therefore informed by letter that, once the first 30 days of
her maternity leave had elapsed, she would be excluded from the course concerned
and that payment of her salary would be suspended. On the other hand, she would
be admitted as of right to the next course, although the date on which the next
course would be held was not indicated. In the eyes of the Court, the exclusion
from the training course and the fact that she was prevented from participating
in the examination at its end constitute “unfavourable treatment for the
purposes of Article 15 of Directive 2006/54”. Consequently, this action, “which
provides for automatic exclusion from a training course and renders it
impossible to sit the examination organised at the end of that course, without
account being taken, in particular, either of the stage of the course at which
the absence for maternity leave takes place or of the training already received,
and which merely grants the woman who has taken such leave the right to
participate in a training course organised at a later, but uncertain, date, does
not appear to comply with the principle of proportionality”. The Court also
stated that the provisions of articles 14 (1) (c) and 15 of directive 2006/54
“are sufficiently clear, precise and unconditional to have direct effect” (CJEU
6 March 2014, Case C-595/12, Napoli).
- Transfer of an undertaking in the case of
a non-autonomous economic entity: The European Court of
Justice has found that European legislation on the transfer of undertakings
(directive 2001/23 of 12 March 2001) must be interpreted as not precluding
national legislation which applies the rule of maintaining employment contracts
upon the transfer of part of an undertaking, even if the latter does not
constitute a functionally autonomous economic entity existing before the
transfer. The directive “is intended to achieve only partial harmonisation of
the area in question. It is not intended to establish a uniform level of
protection throughout the European Union on the basis of common criteria, but to
ensure that the employee is protected in his relations with the transferee to
the same extent as he was in his relations with the transferor under the legal
rules of the Member State concerned”. The case concerned the transfer of a
division of Telecom Italia to one of its subsidiaries (CJEU
6 March 2014, Case C-458/12, Lorenzo Amatori).
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Social
update
- European Globalisation Adjustment Fund:
On 5 March, the European Commission proposed to provide
Italy with €3 million from the European Globalisation Adjustment Fund (EGF) to
help 1,146 former workers of VDC Technologies SpA and its subsidiary Cervino
Technologies Srl to find new jobs (see press
release). It has also proposed to provide Spain with €1.9 million from
the EGF to help 285 former workers of the car manufacturer Grupo Santana in
Andalucía find new jobs (see press
release).
- Remuneration in the banking
sector: On 4 March the European Commission adopted a Regulation
on the regulatory technical standards defining the criteria to identify
categories of staff whose professional activities have a material impact on an
institution’s risk profile (the “risk-takers”). Supplementing the directive
on own funds requirements (CRD IV), which took effect on 17 July 2013,
these new provisions entered force on 1 January 2014. The variable component
must not exceed 100 % of the fixed component of the total remuneration for
risk-takers. The latter are defined by 15 qualitative (being a member of senior
management, having the authority to commit significantly to the bank’s risk
exposure, etc.) and quantitative criteria (total remuneration exceeding
€ 500,000 per year or inclusion in the 0.3% of staff with the highest
remuneration in the institution etc.).
- Regulation of
traineeships: During its plenary session on 27 February,
the European Economic and Social Committee (EESC) adopted an opinion
on the “proposal
for a Council Recommendation on a quality framework for traineeships”
and called for a framework which emphasised both regulations to guarantee the
quality of the traineeships (apprenticeship content) and rules to ensure
adequate working conditions (working hours, financial compensation, social
security). It came too late to be heeded by the Council, however, since Coreper
(the Permanent Representatives’ Committee responsible for preparing the work of
the Council) had already adopted a compromise
to the proposal put forward by the European Commission on 4 December 2013 which
the European Trade Union Confederation (ETUC) regards as extremely inadequate
(see press
release).
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2. Member
States
Belgium
- Social dumping in road
transport: On 28 February the Council of Ministers
approved a draft
royal decree which provides for penalties in the framework of the action
plan to combat social dumping in the road transport sector. The amount of the
fine if there is no consignment note in the truck or for drivers taking their
weekly rest in the vehicle is increased from € 50 to € 1800, payable immediately
for foreign drivers, failing which the truck will be detained.
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France
- Reform of training and social
democracy: On 27 February 2014 the Parliament
definitively adopted the law on
vocational training, employment and social democracy. In particular it
implements the national interprofessional agreement (ANI) of 14 December on
vocational training (see article published by Eurofound). However, the text also
contains provisions on: 1. Reforming apprenticeships. 2. Reforming the
representativeness of employers’ professional bodies with the creation of a
public finance mechanism for these and the trade union organisations. 3.
Measures intended to increase the transparency of the works councils’ accounts
(L.
N° 2014-288 of 5 March 2014, Official Journal Dated 6 March). Link to
the press
pack of the Ministry of Labour (in French).
- Responsibility pact: To
reduce payroll costs, the government has decided to decrease the burden of
social security contributions on businesses, on condition that the employers
undertake to create jobs. The government asked the social partners to reach
agreement on the measures in return for the reduction in contributions. The
three employers’ organisations and three trade union organisations (CFDT,
CFE-CGC, CFTC) adopted a “statement
of conclusion” on 5 March on the pact’s implementation. The text
requires the social partners, at branch level, to open discussions, as soon as
the arrangement for reducing the social security contributions is known, with a
view to arriving at a “signed list of conclusions” or “negotiations with a view
to arriving at an agreement” which specify “quantitative and qualitative
objectives in terms of jobs”. In a press
release the government speaks of an “historic social compromise”.
- Restructuring: The
“Florange law” (loi
visant à reconquérir l’économie réelle) has been definitively adopted by
the Parliament and, from 1 April, it will impose a new obligation on businesses
with at least 1,000 employees which wish to close an establishment to find a
buyer. A company which fails to comply with this obligation could have to pay a
penalty of up to 20 times the monthly value of the French minimum wage per job
lost.
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Germany
- Minimum wage: The Minister
of Labour, Andrea Nahles (SPD), on 24 February opened the dialogue with the
social partners on the establishment of a national minimum wage. The minister
expects the draft law to be adopted in April, which will allow the minimum wage
to take effect on 1 January 2015. The hourly rate has already been set at
€ 8.50.
- Workplace elections:
Around 25 million people employed in the private sector in around 650,000
companies are invited to vote for representatives to their local works council
(Betriebsrat) in elections taking place between 1 March and 31 May.
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Great
Britain
- Transfer of Undertakings:
The Transfer
of Undertakings (Protection of Employment) Regulations 2006 have been
amended; the revised regulations came into force on 31 January last (see analysis of the law
firm Harbottle & Lewis).
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Spain
- Reduction in social security
contributions: The Royal Decree
3/2014 establishes that the employer’s social security contribution will
be only € 100 per month during 2 years for new permanent employment contracts.
The contribution may be as low as €50 per month if the contract is part-time. In
companies with fewer than 10 employees, during the third year there is a 50
percent reduction in employer’s social security contributions:
- CCOO confederation: The
trade union federations for industry and of the chemicals sector within the CCOO
confederation on 20 February merged to form a new organisation, CCOO Industria.
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3.
Companies
European
Works Councils
- Rio Tinto: At an
extraordinary meeting on 5 March, the European Works Council of Rio Tinto called
for “greater transparency and more dialogue”, stating that “listening more
attentively to its demands and its opinions on the dysfunctional aspects of the
company would allow Rio Tinto to advance more reliably than by implementing
futile and costly restructuring programmes”. The EWC, like many other staff
bodies, is calling for the CEO of the group to attend its next meeting in order
to demonstrate the group’s social responsibility. In addition, the EWC intends
to “follow the campaign led by IndustriAll” to establish a trade union network
within the group.”
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European
company
- Schneider Electric: The
first meeting of the special negotiating body (SNB) set up to negotiate an
agreement on the involvement of employees as part of the conversion of Schneider
Electric to a European company (SE) was held on 27 February. The SNB comprises
30 members who have appointed a smaller technical group of 11 members to
negotiate with management. The negotiating meetings are scheduled for 20 March
and 10 April next. In addition, the office of the European works council has
adopted a statement
in connection with the consultation on the sale of the Appliance division of
Invensys, which the group acquired in January. The text criticises a rapid
resale which does not take social commitments in terms of preserving jobs into
account.
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Transnational agreements
- Orange: The second
follow-up meeting of the international framework agreement signed in 2006 with
the Worldwide Trade Union Alliance of the Orange group, under the auspices of
the UNI Global Union trade union confederation, will take place on 27 and
28 March next at Abidjan (Ivory Coast), with the French and African affiliated
unions, as well as members of the group’s senior management.
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4. Studies
and reports
- Deteriorating health affecting the
population of Greece: An article
written by British researchers and published by the scientific journal The
Lancet on 22 February provides “fresh evidence of the enormous impact of
austerity measures on the Greek public health system,” underlines the European
Trade Union Institute (Etui). The number of cases of severe depression
more than doubled in the period from 2008 to 2011. Suicide attempts rose by 36 %
between 2009 and 2011, with a 45% increase in deaths caused by suicide in the
2007-2011 period. The article should be required reading for the MEPs who are
soon to adopt the own-initiative report prepared by Alejandro Cercas on the
impact of the Troika’s decisions in the four countries, including Greece, which
received financial aid.
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Phrase of
fortnight
The posting
of workers
Although in recent months the term “posting of workers” has regularly been associated
with that of “social dumping”, it actually stems from a directive adopted on 16
December 1996 (Directive
96/71) aimed at regulating the mobility of employees sent by an employer for
a limited period to another Member State to carry out their work in the framework of
the provision of services. It therefore summed up two fundamental rights of the
European Union: the free movement of people (and thus of workers) and the free
movement of services. Even then, the law-makers were at pains to avoid social
dumping, by stipulating that workers posted to another Member State were governed by
a certain number of mandatory provisions in terms of social legislation, such as the
rules applicable to nationals regarding health and safety at work, a minimum wage,
paid leave etc.. However, 18 years on, the European Union has just tightened up
certain aspects of this directive (see lead story) which, although well-meant, was
too often flouted. For more information: See the Industrial
Relations Dictionary of the European Foundation for the Improvement of
Living and Working Conditions (Eurofound).
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