IR Notes

“If Europe were once united in the sharing of its common inheritance, there would be no limit to the happiness, to the prosperity and glory which its three or four hundred million people would enjoy (…) We must build a kind of United States of Europe.” These words were spoken by Winston Churchill in September 1946. Nearly 70 years later, it is another British prime minister who is Europe’s assassin. David Cameron will go down in history as the destroyer of a European Union that will now struggle to survive the attacks of dark forces returning from the past – those that mowed down Jo Cox, who embodied all that is wrong in extremists’ eyes: a young woman, brilliant, brave and on the left politically, someone who preferred a United Kingdom open to the world, ready to welcome refugees, rather than looking inwards and retreating behind national boundaries. Gambling with the future with loaded dice, as David Cameron has done, is an act not of politics, but of immeasurable folly. Admittedly, the EU is not ideal. It is perhaps “the worse of systems”, to paraphrase Winston Churchill, but “to the exclusion of all others”. To suggest that a member state can go it alone to achieve prosperity and meet the full range of challenges, from the migrant crisis to the energy transition, is deception. Those who advocate rolling back history in this way will bear a heavy responsibility, especially since the victims will be the British themselves, and in particular those marginalised by globalisation who have voted to leave in huge numbers. The British workers will be the first losers. The next government will be able to sweep aside the various social measures adopted thanks to the EU: to set aside the right to information and consultation, which has never succeeded in gaining full acceptance; to make working time more flexible without restriction, free from the worry of obtaining a derogation from the EU directive; to cancel the pointless 11-hour rest period between two working days; to withdraw the generous four weeks’ annual paid leave imposed by EU law… The British Conservative party, having practically eliminated the right to strike, will thus be able to create a “social paradise” at Europe’s gates. In transnational companies, nothing more will prevent British delegates from being removed from European works councils, at a time when the British trade unions were beginning to take a serious interest in this body and even the use of experts. And so it will be possible to keep the British delegations on the sidelines, looking on while the other representatives of European employees continue to be informed and consulted, without themselves having access to even the slightest information on either a transnational or national level. The only glimmer of hope would be if charismatic European leaders were to rebuild the European Union, finally aspiring to a fiscal and social convergence that would be capable of consolidating a social market economy. What remains is to find those charismatic leaders…

Initial exchanges on the directive relating to cancer-causing chemicals: On 13 May, the Commission proposed changes to the Carcinogens and Mutagens Directive (2004/37/EC) to limit exposure to 13 cancer-causing chemicals at the workplace, instead of three at present (see IR Notes 54). However, during the discussions at Council level, on 7 June (see Council report), several member states expressed the opinion that the limit values adopted by the Commission setting a maximum concentration for the presence of a chemical carcinogen in the workplace air were too high and did not offer sufficient protection to employees. The Employment and Social Affairs Committee of the European Parliament on 2 June appointed the Swedish Social Democrat MEP Marita Ulvskog as the rapporteur on this proposal, which is likely to attract intense lobbying.
> For further information, see the documents presented by the Commission (in English): the proposal for a directive, annex with limit values for occupational exposure, impact assessment, and a working paper published by the European Trade Union Institute (free, “Cancer risks in the workplace: better regulation, stronger protection“, in English).

• Gender equality: On 16 June the Council adopted conclusions on gender equality which, although not enforceable, indicate the path to be followed to the member states and the European Commission. According to the Commission, “There are still significant gender gaps in employment, self-employment, part-time work, entrepreneurship and decision-making, as well as in pay and pensions”. The Council calls on the Commission “to implement the actions outlined in its Strategic engagement for gender equality (2016-2019) without delay and in accordance with the timetable set out therein” and “to present new initiatives to address the work-life balance challenges faced by working parents and caregivers” and to “reduce the gender gaps in employment, pay, earnings and pensions”.


• LGBTI equality: On 16 June the Council adopted conclusions on LGBTI equality (equal treatment for lesbian, gay, bisexual, transgender and intersex people). The text invites the European Commission to promote the measures outlined on its list of actions to advance LGBTI equality, “while fully respecting the Member States’ national identities and constitutional traditions as well as the competence of the Member States in the field of family law (…)”. In our opinion, raising the concept of national identity is a way of introducing differences in emphasis among the Member States in how they apply fundamental rights, which can only weaken these rights.


• Minimum wage in road transport: On 16 June the European Commission decided to take legal action against France and Germany owing to the consequences of the application of their respective minimum wage legislation to the road transport sector. The European Commission takes the view that the systematic application of the minimum wage legislation by France and Germany to all transport operations touching their respective territories restricts in a disproportionate manner the freedom to provide services and the free movement of goods (see Commission press release). For its part, IRU, the global industry association for road transport, has demanded that France impose a moratorium on the country’s minimum wage regulations that are due to become law on 1 July (see press release).
  > Also see the recently updated comparative article originally published by Eurofound in June 2015.


• Minerals from conflict zones: A political understanding between MEPs, the Council and the European Commission was reached on 16 June, making “due diligence checks”, conducted according to the OECD due diligence guidance, mandatory for importers of tin, tungsten, tantalum and gold and their ores from conflict and high-risk areas. The Commission and the Council had initially proposed only voluntary checks. The MEPs successfully pushed for the measures to be made mandatory. The final text of the legislation should be sealed by the end of the year (see press release of the Parliament and that of the Commission).


• Endocrine disruptors: The European Commission on 15 June presented criteria to identify endocrine disruptors, substances that can alter the functions of the hormonal system (see Commission press release). The European Trade Union Institute has put forward a critical analysis of the Commission’s proposals, conveying the concerns of several NGOs.

• Role of social dialogue in encouraging growth and jobs: The employers’ organisation BusinessEurope on 14 June called on the European social partners to support reforms and growth to secure the EU’s social model (see press release), and cites positive experiences in Ireland, Spain and Portugal, as well as the recent agreements concluded in Finland and France. The organisation supports the decision taken by the Council to create “national productivity boards”, which the European Trade Union Confederation opposes (see press release). Elsewhere, the Employment and Social Affairs Council on 16 June adopted conclusions on a new start for social dialogue. The Council expressed the view that the “better regulation principles should be applied without prejudice to the role and autonomy the TFEU entrusts upon them”. Thus, “transparency, evidence-building and the respect for the Union’s general principles of subsidiarity and proportionality should be ensured”.

Towards greater flexibility in working hours’ legislation: Last March, the government proposed to review the legislation on employment contracts with the social partners with regard to on-call times. At present, a provision that would prevent employees who carry out standby duty from taking their daily or weekly rest period is considered as invalid. To meet labour shortages in the health and ICT sectors, the government is proposing to introduce exceptions to this rule. In parallel, pay negotiations in the health sector have also come up against the issue of working hours, to the point that collective action was taken on 31 May in this sector, with the employees bringing their pillows to work.

Draft legislation on temporary agency work and works or service contracts: The government on 1 June adopted a draft law intended to tackle abuses relating to temporary employment (Leiharbeit) and the use of works and service contracts (Werkvertrag). As far as temporary agency work is concerned, the legislation will compel employers to remunerate temporary staff on the same terms as employees of the user enterprise after a period of nine months. However, the text offers flexibility to the social partners at sectoral level. They will be able to arrive at equal pay more quickly, as already envisaged by certain collective agreements. However, they will also be able to adjust salaries more gradually by setting a higher rate of pay after the sixth week of using a temporary worker, with the aim of reaching equal treatment within a period of 15 months instead of nine. Otherwise, after 18 months, a temporary worker must be taken on by the user enterprise and given a permanent contract. But there too, exceptions are envisaged, allowing the 18-month period to be exceeded under the terms of a sectoral or company-level agreement. On these two points, says Andrea Nahles, the federal labour minister, the bill establishes “minimum standards”, the aim being to invite the social partners to negotiate the use of temporary workers rather than to impose fixed rules. Concerning the fraudulent use of works or service contracts, the draft law in particular grants the works council a right to be informed about workers employed on the same site and their contractual status. It also introduces in the Civil Code a definition of what constitutes an employee “and what doesn’t,” explains the minister, in order to draw a clear dividing line between being employed and self-employment (see ministry press release).

• Contradictory case law on reassignment obligation: Italian case law obliges the employer to reassign employees made redundant for economic reasons. Since redundancy must be a measure of last resort, the employer must attempt to find a position for the employee among vacancies in the company. While failure to comply with this obligation is now legally sanctioned, through payment of compensation (but no longer by re-employment) for employees taken on after 7 March 2015, the court of cassation has adopted contradictory rulings on the burden of proof. Traditionally, it fell to the employee to indicate to the judge which positions he believed he should have been offered in order to avoid redundancy. Then it was up to the employer to prove that the employee could not be recruited for the post concerned. A recent ruling by the court of cassation (No. 5592/2016) has effected a major shift by establishing that, from now on, it falls to the employer to prove that he had properly considered his reassignment obligation, without the employee having to demonstrate anything. One month later, the court of cassation has just returned to its original guidance in its ruling No. 9467/2016. This same judgement also appears to re-establish the previous case law on another point: the employee must be reassigned to a position comparable to his previous one and not, as suggested by an earlier ruling (No. 4509/2016), to a less-qualified post. This considerably enlarges the scope of the obligation on the employer. With so many turnarounds in such a short space of time, the positions adopted by the lower-level courts are not expected to be consistent, so that legal uncertainty will persist.

• Arctic Paper SA: The management of the paper group, which was originally formed in Sweden and has its head office in Poznan, Poland, on 1 June signed an agreement to establish a European works council. Arctic Paper SA employs around 1,650 people in the EU. The European works council will have seven members “with the ambition that at least two should be female”, an explicit requirement that is rare among EWC agreements. In other respects, of the seven members, three will be Swedish and three Polish, while the seventh will represent all the sales companies. The EWC will have an annual budget of 25,000 euros.


• Aviapartner: In response to a call by the European Transport Workers’ Federation (ETF), around one-hundred trade union activists on 14 June staged a protest outside Aviapartner’s headquarters at Brussels Airport. Aviapartner is a provider of aviation ground handling services based in Brussels and present in 40 airports. It has some 8,000 employees. The trade union representatives denounced the “lack of social dialogue within the company” and in particular within the EWC (see ETF press release).


• Safran: The EWC of Safran on 21 June adopted a declaration deploring the lack of information to representatives of European employees in connection with the sale of the group’s specialist security subsidiary Morpho, which has more than 8,000 employees. The management “has still not convened and informed the bodies representing both national and European employees on the matter, despite endless requests”. This, the EWC says, is in contradiction of “talk from management about wishing to encourage social dialogue with European and global trade union organisations”. Faced by this situation, the EWC “will assume all its responsibilities and use all the necessary means to obtain clarity on this matter and ensure that the European body is respected, informed and consulted as required under the 2009 European directive”.

• Airbus Group SE: On 14 June in Toulouse, the European works council of the Airbus SE group (SE-WC) adopted a declaration, warning “the British electorate of the risks Airbus UK employees will face in terms of job security and the development if Britain votes in favour of Brexit”. The signatories, SE-WC chair Marc Ambiaux (FO Métaux), and SE-WC deputy chair Thomas Busch (IG Metall), express the view that “a pro-Brexit outcome of the forthcoming referendum would represent a major risk for the Airbus Group and the stability and development of industrial employment in the UK”.

Downward spiral of Social Europe: There is always a risk that, by criticising the way the European Union is currently functioning, this may weaken it. Nevertheless, certain cogent conclusions are worth listening to, especially at present, when many heads of state and of government are sending a wakeup call to the European Union to get back in touch with the people. Analysing how the most recent years of the European edifice have resulted in the weakening of social Europe is therefore by definition a useful exercise. This joint work, which provides an assessment of Social Europe and its achievements, sheds light on the various social consequences of economic governance and reform policies implemented on a national scale in the fields of social protection and labour law. It shows that the crisis and its management by the EU28 have contributed to increased economic, political, and cultural heterogeneity and inequality between and within EU Member States, which is undermining the legitimacy of the European project as a whole. The rise of nationalism and Euroscepticism – and indeed Brexit – are merely the avatars of this collective failure.
> “Social Europe: A Dead End, What the eurozone crisis is doing to Europe’s social dimension “, by Arnaud Lechevalier & Jan Wielgohs (eds.).

• Hourly labour costs: According to a Eurostat estimate, hourly labour costs rose by 1.7% in both the EU28 and the euro area in the first quarter of 2016, compared with the same quarter of the previous year. In the fourth quarter of 2015, these costs had increased by 2% and 1.3% respectively.


• Slow rise in employment: The number of persons employed increased by 0.3% in both the EU28 and the euro area in the first quarter of 2016 compared with the previous quarter according to estimates published by Eurostat. In the fourth quarter of 2015, employment had risen by 0.4% in the EU28 and by 0.3% in the euro area. Year-on-year, employment has gone up by 1.4% in both zones.