IR Notes

The Grand Chamber of the European Court of Human Rights on 5 September issued a ruling (ECHR, 5 September 2017, application No. 61496/08, Bărbulescu v. Romania) with major practical implications concerning the right of employers to monitor conversations conducted via electronic messaging by their employees. The case concerns a Romanian engineer who used a Yahoo Messenger account, set up at his work station at the request of his company in order to facilitate dealings with a client. He was charged with using this messaging service for personal purposes as well, to conduct communications of a private nature with people close to him. The employee, whose correspondence was monitored and transcribed by his employer, argued that the latter had violated article 8 of the European Convention on Human Rights concerning the right to respect for private life and correspondence. In a judgement of January 2016 (ECHR, 12 January 2016, application No. 61496/08, Bărbulescu v. Romania, see IR Notes 45, lead story), the Court did not find it unreasonable that an employer should want to verify that its employees were completing their professional tasks during working hours and noted that the employer had accessed the employee’s account in the belief that it contained client-related communications. However, one judge expressed a dissenting opinion, contesting the Court’s decision and noting that a proper company policy concerning the scope for monitoring conversations and the use of IT resources provided by the employer did not exist. IR Notes commented at the time of this first ruling that the position adopted by the Court should not release employers from clearly defining the rights and obligations of employees in relation to the use for personal purposes of the company’s communication resources. Following the appeal of the young engineer, the Court revised its analysis. Having in its first judgement found nothing wrong in the way the national courts which had confirmed the employee’s dismissal handled the case, the Court this time found that they should have: 1/ verified that the engineer had received prior notice from his employer of the possibility that his communications might be monitored; 2/ had “regard […] to the fact that he had not been informed of the nature or the extent of the monitoring, or to the degree of intrusion into his private life and correspondence”; 3/ determined “the specific reasons justifying the introduction of the monitoring measures”, thus requiring that surveillance be justified; 4/ considered whether the employer could have used measures entailing less intrusion into the applicant’s private life and correspondence. The Court thus requires the principle of proportionality to be respected. This judgement – which was welcomed by the European Trade Union Confederation, which intervened in the hearing (see press release) – compels the 47 member states of the Council of Europe (including all EU member countries) to improve the way they protect employees’ digital lives.

Proposal for a directive to improve the protection of seamen: The European Commission on 27 July presented a proposal for a directive with a view to transposing the agreement concluded on 5 December 2016 by the European social partners in the maritime transport sector (the employers’ association ESCA and the European trade union federation ETF). The agreement aims to modify directive 2009/13 in order to take into account the amendments introduced in June 2014 by the ILO to the 2006 Maritime Labour Convention (MLC) (see Commission press release). The provisions of this convention were incorporated in EU law by directive 2009/13 based on a preceding agreement of the European social partners dated 19 May 2008. The proposal presented by the Commission will ensure that seafarers will be better protected in future against being abandoned in foreign ports and will shore up their right to compensation in the event of death or long-term disability due to occupational injury, illness or hazard. The proposal’s adoption was welcomed by the European social partners. In a press release they express their satisfaction at having arrived at a third agreement that will become mandatory once adopted as a directive by the Council (see ETF and ESCA websites).

• Towards a social framework in civil aviation: According to the European trade union federation ETF and the association ECA, which represents pilots, the European commissioners Marianne Thyssen (employment) and Violeta Bulc (transport) undertook at a meeting with these two organisations on 20 July in Brussels to present a “social package” for the civil aviation sector in 2018 (see ETF press release).


• Conference to strengthen trade union cooperation: The German metalworkers’ union IG Metall, the trade union federations IndustriAll Europe and UNI Europa, together with the Friedrich Ebert Foundation and the European Trade Union Institute (ETUI) on 6-7 September in Berlin organised the first conference of its kind on building stronger transnational cooperation between trade unions (see IndustriAll Europe press release).

Parental leave suspends a probationary period intended to enable a worker’s suitability to be assessed: The Court of Justice of the European Union has ruled in a case (CJEU, 7 September 2017, case C-174/16, H. v/ Land Berlin) brought by a female civil servant employed by the state of Berlin concerning a decision by the latter taken while she was on parental leave, informing her “that, as she had not, due to her absence related to that leave, successfully completed the two-year probationary period in the managerial post to which she had been assigned before that leave, her status as a civil servant on probation had ended, and that she was accordingly returned to her former position at a lower level” (point 2). The Court, which recalled that the right to parental leave is enshrined in article 33(2) of the Charter of Fundamental Rights of the European Union, condemned the legal provision of the state of Berlin that deprived the female civil servant of her managerial post, and asked the German court to ensure her reinstatement in the post to which she was entitled in order to carry out the probationary period.

Presentation of texts aimed at reforming the Labour Code: On 31 August the government presented five texts (executive decrees) aimed at fundamentally overhauling the provisions of the French Labour Code (see press release). Three of these decrees are particularly important. They are those on: 1/° Collective bargaining, with a new link between sectoral collective agreements and company-level negotiation, whose role has been strengthened. The wording allows companies with fewer than 50 employees to negotiate company-level agreements without trade union involvement if there is no trade union delegate at the company. The agreement can be negotiated and signed by an elected employee representative. It will even be possible for such an agreement to be concluded directly with the workforce in companies with fewer than 20 employees. 2/ Organisation of social dialogue in companies and recognition of trade union activity. In particular, this concerns the amalgamation, in all companies of more than 50 employees, of the three bodies currently involved in information and consultation (the staff delegates, works council and health, safety and working conditions committees) in a single “comité social et économique” (social and economic committee) which, subject to an agreement having been signed by the majority trade unions, will also be able to negotiate company-level agreements. 3/°Making industrial relations predictable and providing safeguards in order to remove a certain number of provisions considered by employers as impeding recruitment. The text provides for the economic difficulties of multinationals effecting redundancies in France to be assessed at national level rather than globally as before. The executive decrees are due to be adopted by the Council of Ministers on 22 September to allow them to take effect on 1 January 2018. The social partners are now to be consulted on a reform of unemployment insurance, before tackling the reform of the vocational training system.
> Also see the article published by the European Trade Union Institute.

• Oracle: On 5 July the European works council of the American IT group Oracle, established in Europe under British legislation, lodged a complaint with the Central Arbitration Committee (CAC) against company management for failing to respect its right to information and consultation. The CAC may therefore issue a decision unless the parties arrive at a compromise.

• Ikea: Accused of closing its eyes to the exploitation of people employed by the transport and logistics subcontractors carrying its goods, the Swedish furniture giant on 5 September commenced talks with the International Transport Workers’ Federation (ITF) with a view to achieving better working conditions for the drivers concerned (see ITF press release).


• McDonald’s: The European Public Service Union (EPSU) published a press release to coincide with the strikes held on 4 September that notably affected some McDonald’s establishments in the United Kingdom. The federation calls on the European Commission to speed up its enquiry into the group’s tax-avoidance strategy. According to EPSU, the company’s effective tax rate went down from 1% in 2014 to 0.7% in 2015, when it avoided paying €1.5 billion of taxes. The federation denounces this strategy which weakens public finances and consequently impacts public services and public service workers. It therefore supports the demands of employees for higher wages, while at the same time denouncing the fiscal practices pursued by the group, as well as by other multinationals (see press release).

Assessing the cost of work-related accidents and illnesses: The European Agency for Safety and Health at Work (EU-OSHA) has, in collaboration with the ILO, presented new estimates of the cost of poor workplace safety and health (see press release). Each year work-related injury and illness result in the loss of 3.9% of GDP worldwide. In the EU the figure is slightly lower, at 3.3 % of GDP. “That’s €476 billion every year which could be saved with the right occupational safety and health strategies, policies and practices”, stresses the director of EU-OSHA, Christa Sedlatschek.

• German metalworkers want more free time: The metalworkers’ trade union has conducted its second major survey, in which more than 681,000 employees took part (of whom 38% were not IG Metall members). The results reveal that German workers wish to have more free time as well as legislation that sets maximum limits for working hours (see article in Mitbestimmung magazine).