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IR Notes 86 – 22 November 2017
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 Frédéric Turlan, Märt Masso and Mariangela Zito.
Find out more about the IR Share
team on our website
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Editorial
What future for the European Pillar of Social Rights?
Twenty years after the last “European
Social Summit” that he organised in Luxembourg, the President of the
European Commission, with the support of the Swedish Prime Minister,
Stefan Löfven, who was formerly the head of the Swedish
metalworkers’ union IF Metall, pulled off the coup of
bringing together virtually all of the EU Heads of State and
Government, accompanied by their Ministers of Employment, to debate
social Europe and to proclaim the European Pillar of Basic Rights.
From the very beginning of the conference, Stefan Löfven set the
tone by explaining that “the best way to boost citizens’ confidence
in the EU and its institutions is to bring about a genuine
improvement in their daily life”. In his view, it is time to place
improvements in living and working conditions at the top of the
European agenda and to think “people first”.
The first act in this trend reversal has
been the proclamation of the European
Pillar of Social Rights by the
Twenty-Seven Member States concerned. In its introduction, this
document defines itself as “a number of key principles and rights to
equip 21st century Europe with fair and well-functioning labour
markets and welfare systems”. It reaffirms some of the rights
already enshrined in the Union’s acquis, and adds a number
of new principles intended to meet the challenges posed by societal,
technological and economic changes”.
Of course, these are only principles. Yet
they have the virtue of highlighting the values that make the
European Union the only geographical zone in the world that wishes
to maintain and reinforce a social model seeking to grant a minimum
level of protection to its citizens and workers. Admittedly, several
participants present at the conference, and the Danish
representative in particular, pointed out the limitations of this
exercise, with reference to the document’s introduction: The pillar
“does not extend the powers and tasks” devolved to the Union, and it
does not “prejudice the right of Member States to define the basic
principles of their social security systems and to manage their
public finances”. These principles must be implemented in accordance
with those of proportionality and subsidiarity.
In other words, their implementation is
reliant on the goodwill of Member States. Listening to some of the
leaders who spoke at the summit (all videos of the round-table
sessions are available on line), and were at times kicking in doors
that were already open, or alternatively crowing about the results
they had achieved at domestic level, raises fears that the Pillar
will be transformed into a “damp squib that will quickly fizzle
out”, in the words of Philippe Pochet, head of the European Trade
Union Institute (read his editorial
on putting the pillar into a historical
perspective). For all that, can we hold out hopes of “a long-term
change (…) that will attempt to rebalance social and economic
concerns”? This is what Philippe Pochet would like to see, though at
the same time he acknowledges that this scenario is somewhat
unlikely, given the prevailing balance of power.
Whatever the case, after disappearing from
the field of social Europe for more than ten years, the European
Commission is unquestionably demonstrating its goodwill, and has
already started to put forward proposals for a directive seeking to
implement the principles underpinning the pillar, with the
publication, by no later than 20 November, of the Second Phase
Consultation of the European social partners on ways of promoting
access to social protection and to employment services for everyone
who is in work, whether as an employee or self-employed (see
press
release
and consultation
document).
Lastly, some European leaders, such as
French President Emmanuel Macron, have put forward proposals, which
include: 1° at long last making full use of the European
Globalisation Adjustment Fund, which took ten years to spend the
budget allocated to it for just one year; 2° widening the scope of
application of the “Juncker plan” to encompass investments in
skills; 3° boosting the Erasmus programme and genuinely expanding
its scope – by voting for it to receive the necessary funds – to
include apprentices; 4° reducing the level of European aid granted
to countries that practise fiscal or social dumping, in order to
promote social convergence within the EU. Jean-Claude Juncker put
forward the idea of organising a social summit of this kind every
year, but it remains to be seen whether the other proposals have had
a favourable reception. We shall see from what happens next.
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Agenda
4 November
Paris
Symposium organised by AFDT, ENM and INTEFP on the theme of «le
fait religieux en entreprise» [“religion in the workplace”].
29 November
Paris
Meeting
of the European Works Councils Club, led by the French association
Astrees and IR Share, on the theme of « Les CE européens face à la
tension entre décentralisation et “recentralisation” des processus de
dialogue social dans les groupes d’entreprises » [“How European Works
Councils are coping with the tension between decentralisation and
‘recentralisation’ of social dialogue processes within groups of
companies”]
Tel: + 33 (0)6 81 41 53 95.
7-8 December
Brussels
Meeting of the Employment, Social Policy, Health and Consumer Affairs
Council.
11 and 12
December
Brussels
Annual
conference of the European Trade Union Institute on workers’
participation. Worker Board members and members of European
Works Councils and SE-Works Councils are particularly welcome to attend.
13 December
Paris
DARES
symposium entitled « Mieux
comprendre l’évolution des salaires depuis la crise – comparaisons
internationales » [“Towards a better understanding of trends in
earnings since the crisis – international comparisons”].
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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 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
Court of
Justice approves the twelve-day week
In a surprising judgment, the European Court of Justice has granted employers the
right to ask their employees to work for twelve days in a row, by choosing not to
give precedence to the legal basis of directive 2003/88 of 4 November 2003,
concerning the organisation of working time (CJEU,
9 November 2017, case C-306/16, Marques da Rosa). It is the legal basis of
this directive that constitutes workers’ protection, in terms of health and safety.
The Court interpreted article 5 of this directive, which stipulates that “per each
seven-day period, every worker is entitled to a minimum uninterrupted rest period of
24 hours plus the 11 hours’ daily rest […]”. The Court was asked to rule whether
article 5 requires this minimum rest period to be granted no later than on the day
following a period of six consecutive days worked, and it therefore had to clarify
what was meant by the expression “per each seven-day period”. Article 5 “does not
specify when that minimum rest period must take place”, the Court notes, “and thus
gives Member States a degree of flexibility with regard to the choice on timing”.
Following a “systemic analysis” of that directive, it deems this seven-day period to
be a “reference period” that allows the rest period of 24 hours to be granted at any
time within each seven-day period, e.g. on Monday of the first seven-day period,
then Sunday of the second seven-day period. This leaves twelve working days between
the two rest days taken. The Court continues to go astray by confusing the degrees
of flexibility actually available to Member States in terms of implementation of the
directive – which contains many exemptions – with the “flexibility” that the
directive appears to grant to employers. Thus the Court explains that these degrees
of flexibility benefit “not only the employer, but also the worker”, by allowing the
former to grant the latter several consecutive rest days “at the end of a reference
period and at the start of the following period”. Lucky indeed then, are those
employees who, by working this way, can accumulate a weekly rest, after twelve days
of labour. The Court concludes that legislation that does not guarantee that an
employee “is entitled to a minimum rest period no later than the seventh day
following six consecutive days of work” complies with EU law. A stricter
interpretation should have led the Court to give precedence to the health of
employees, by imposing a rest period after six working days, rather than legalising
the right to make them work twelve days in a row without a rest.
> Reaction
of the European Trade Union Confederation (ETUC): in a press
release, ETUC highlighted the dangers posed by this ruling, pointing out
that employers should not see this judgment as a green light to force employees to
work twelve days in a row without taking a day of rest. “The Court was clear that
each seven day period must include a rest day”, said ETUC. “Specifically the ruling
states that the 35 hour rest period must be ‘provided within each seven-day
period’.” The Court of Justice does not state otherwise, but the outcome
nevertheless means that a particular pattern of working may result in an employee
working for twelve consecutive days, which might have merited a somewhat less
diplomatic reaction on the part of ETUC.
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1. European
Union
Social
update
Court of Auditors emphasises lack of oversight
in application of labour market reforms adopted in Greece:
In a highly critical report
(see other
languages) on the European Commission’s intervention in the Greek crisis,
published on 16 November, the European Court of Auditors notes that the employment
reforms were imposed without taking account of “specific features of the Greek
economy, in particular the prevalence of micro and small enterprises” (see press
release). The Court examined the decentralisation of collective bargaining,
which was intended to allow adjustment of wage and salary levels. However, allowing
terms of employment to be regulated by company-level negotiations, despite the fact
that trade unions and employee representation bodies are not very well established
in Greek micro enterprises and SME, proved to be an ineffective measure. To adjust
to the situation, Greece then had to introduce into its legislation the option of
negotiating company-level agreements with “unions of persons”, which allowed
negotiations to take place with employees directly, with no trade union involvement.
In spite of this gap in the right to collective bargaining, “the use of special
firm-level collective agreements was marginal”. Moreover, “no report was produced”
on the effectiveness of this measure, despite an evaluation being provided for in
the memorandum of understanding determining the financial support granted to Greece.
Furthermore, in respect of the other reforms, the Court emphasises that “in numerous
cases”, the implementation of labour market reforms “was delayed compared to the
programmes’ deadlines (by up to 21 months) or did not fulfil them at
all”.
- New CO2 reduction standards in
car industry: On 8 November, the European Commission put
forward its proposals
for CO2 emission standards beyond 2021. It proposes a 30% reduction in
emissions for private cars and vans by 2030, with an intermediate objective of a
15% cut by 2025 (see Commission
Fact Sheet). The European trade union federation Industriall Europe
views this as a “balanced compromise between different objectives” while at the
same time calling for “accompanying measures for automotive workers and
automotive regions” (see press
release).
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Trade
unionism
IndustriAll Global Union mobilises against
sexual violence: The executive committee of IndustriAll
Global Union is calling on its affiliate members to take a pledge to combat violence
against women and to take pro-active measures to implement this (“Violence
and harassment against the women: Not in our workplace, not in our union”).
Trade unionists are asked to print out a copy of the pledge,
to put it up on display in their workplace and to circulate a video.
- A conference for European Works
Councils: On 17 and 18 October, the European Trade Union
Confederation (ETUC) organised, as it does each year, a conference on European
Works Councils, which was attended by around 160 participants from 14 countries,
of whom half were members of European Works Councils. At the conference, ETUC
showed a video in English (with
sub-titles in several languages) explaining the function of European Works
Councils and supporting ETUC’s calls for the directive to be improved. This is a
matter that European Commission representatives have not engaged with, pointing
out instead that the evaluation report on directive 2009/38, which has already
been delayed several times, is due to be published in early 2018. ETUC asked
conference participants to rank the ten
improvements that it believes should be given priority in order of
importance. Here, almost 70% of participants said that the main priority should
be tougher sanctions to guarantee an effective right to information and
consultation, ahead of ensuring access to justice in the event of a violation of
the European Works Council’s rights (40%), improving the functioning of the
various committees (38%), strengthening the role played by the trade unions in
subsidiary requirements (35%) and preventing the abusive use of confidentiality
clauses (33%). Among the other lessons learned from this mini-survey were:
Almost 60% of participants believe that the presence of employee representatives
on companies’ executive or supervisory boards constitutes an additional resource
for European Works Councils and is a reliable source of information; nearly 56%
believe that transnational agreements are important vehicles for ensuring that
similar working conditions apply within the same group; 64% believe that
European Works Councils should be able to negotiate such agreements in
cooperation with trade unions, and that these agreements should be jointly
signed. As regards deciding what topics should be dealt with next year, the
participants ranked digitisation and the future of employment in first place
(25%), ahead of the globalisation of companies’ strategies (18%). A study to be
conducted at the end of the year by the European Trade Union Institute and
involving 2,000 members of European Works Councils will provide more information
on how SE Works Councils and European Works Councils function, and on the
obstacles encountered. ETUC Deputy General Secretary, Peter Scherrer, expressed
regret at the lack of action taken by the Commission on the matter of employee
involvement and argued that trade unions should have a seat on European Works
Councils, which they do not in 40% of cases, even though this is a pre-condition
for strong European Works Councils. “The conference emphasised the scale of the
measures being developed by employers to minimise the role of European Works
Councils”, noted Patrick Renard (CSC), who is the Secretary of Honda’s European
Works Council, “as well as highlighting the expertise of ETUC and the European
Trade Union Institute”. “I was struck by the number of European Works Councils
(42%) that still operate under old agreements that are either voluntary or
governed by the 1994 directive”, added Tuula Aaltola (TEK), who is member of the
select committee of Nokia’s European Works Council. “It should really be against
the law to keep on working with the old directive now”, she added, at the same
time acknowledging the protracted and huge efforts made by the trade unions to
secure changes in EU legislation.
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Case law
- Taking ‘vertical’ part-time work into
account for the purposes of unemployment benefit: The
system used in Spain to determine the basis for calculating the length of time
for which vertical part-time workers (who work certain days of the week and not
others) are eligible for unemployment benefit is contrary to EU law. In the
Court’s view, Spanish legislation which “excludes days not worked from the
calculation of days in respect of which contributions have been paid and
therefore reduces the unemployment benefit payment period” negatively affects
women, who constitute the majority of vertical part-time workers (CJEU,
9 November 2017, case C‑98/15, Maria Begona Espadas Recio). The
legislation in question is therefore leading to indirect discrimination, which
is prohibited under EU law.
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2. Member
States
Estonia
- Increase in minimum wage for
2018: The five months of negotiations conducted between
the Estonian Trade Union Confederation (EAKL) and the Estonian Employers’
Confederation (ETKL) on setting the minimum wage eventually resulted, on 26
October, in a new agreement. The national minimum wage is being raised from 470
euros per month, as fixed by the previous agreement in 2015, to 500 euros (i.e.
2.97 euros per hour) from 1 January 2018. It was also agreed that until 2022,
the increase in the minimum wage will be calculated annually, on the basis of
productivity and economic growth.
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United
Kingdom
- Uber ordered on appeal to pay the legal
minimum wage to two drivers: On 10 November, the London
Employment Appeal Tribunal (EAT) rejected the appeal filed by Uber against a
previous Employment Tribunal ruling recognising that two Uber drivers were
“workers”, i.e. their status was half-way between that of being self-employed
and being an employee. The court therefore ordered the company to pay the two
claimants, who were supported by the Independent Workers Union of Great Britain
(IWGB), the minimum wage (8.50 euros per hour) and to award them holiday pay.
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3.
Companies
European
works councils
Ferrero: In September, the
Italian food-manufacturing group Ferrero embarked on a major training initiative in
the field of health and safety at work, promoted by the health and safety committee
of the European Works Council, which is made up of representatives of employees and
management. With the aim of sharing health and safety values among its European
manufacturing plants, the “health and safety laboratory” consisting of staff
representatives in charge of health and safety at the European sites, in
collaboration with the health and safety committee, has laid down the “10 golden
rules” to ensure safety in the workplace. These rules are as follows: 1° A
commitment to prevention: everybody has to take care of everybody else’s safety; 2°
Speak about safety and dangers; 3° Keep the workplace clean and safe; 4° Machinery
must be safe; 5° Put protective equipment back in its place after cleaning; 6° Obey
the rules implementing safety procedures; 7° Use personal protective equipment; 8°
Look after your health: do not consume alcohol and/or tobacco (only in places where
it is allowed); 9° Drive safely: wear seat belts, keep to speed limits and do not
use mobile phones; 10. Continuous improvement. In the coming months, these 10 rules
will be illustrated and explained one by one, using innovative images and
communications tools.
- Rio Tinto: In March this
year, the management of the Anglo-Australian mining group Rio Tinto (50,000
employees) and the French trade unions CFE-CGC, CFDT and FO, together with the
European trade union federations IndustriAll and Feccia, signed an amendment to the European
Works Council agreement with a view to merging it with the France group
works council. The text of the amendment provides for extraordinary meetings in
the event of exceptional circumstances that have a significant impact, i.e.
those which firstly involve cutting the group’s total workforce in Europe by
more than 30% and secondly also involve more than half of the countries covered
by the agreement. The select committee of the European Works Council, comprised
of five members, can be convened for an extraordinary meeting, so that it can be
consulted on transnational subjects that involve reducing the size of the total
workforce by more than 10% if the project in question concerns at least two
European countries, or 20% of the workforce if just one country is involved.
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European
company
MLP SE: The German asset
management and financial services company MLP AG was converted into a European
company (“SE”) on 22 September (see press
release). Previously, it concluded an agreement on employee
involvement (EN ES DE) with a special negotiation
group to set up a works council for the European company, with eight German members
and one Luxembourg member, and to maintain employee representation on the
supervisory board at the level of one third of the number of directors, i.e. two out
of six. Such an agreement will enable MLP SE to escape German law on
co-determination which, in view of the size of the company’s workforce in Germany,
would require the level of employee representation to be at one half of the members
of the supervisory board.
> See also the
agreement on employee
involvement signed in December 2016 at Phoenix
Pharma.
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Corporate
social responsibility
Rio Tinto: On 21 September, the
Anglo-Australian mining group Rio Tinto (50,000 employees) announced that it had
implemented a new global
minimum standard, granting its employees 18 weeks of paid parental leave on
full pay, following the birth or adoption of a child. This leave came into effect on
1 October in the United States and will be gradually phased in worldwide during 2018
(see Rio Tinto press release).
> Last
minute: Building and Wood Workers’ International (BWI) signs
a framework
agreements with the Vinci and QDVC groups on working conditions for workers
employed on Qatar construction sites (see press
release).
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Trade
unionism
- Froneri: The European
trade union federation EFFAT has published a press release on the restructuring
going on at the Froneri Group, a joint
venture between Nestlé and R&R Ice Cream, owned by the French private equity
fund PAI Partners, which involves closing a factory in Parma (Italy, 120
employees) and transferring production from the Uelzen (Germany) factory,
putting 180 jobs at risk (see press
release). EFFAT is facilitating communication between trade unionists in
the two countries concerned.
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4. Studies
and reports
Evaluating the cost of professional
cancer: On 14 November, at the “Work and Cancer” conference,
the European Trade Union Institute (ETUI) presented the results of a study on the
costs of work- related cancer in the European Union. “The cost is immense”, the
Institute emphasises, “between €270 and €610 billion each year, which represents
1.8% to 4.1% of the gross domestic product of the European Union”. The study takes
account of direct costs for Member States’ health systems (related to medical
treatment), indirect costs for workers and their employers (associated with monetary
losses due to the cessation of work) and human costs for the victims (impact
suffered by workers and their families on their quality of life). The calculation
seeks to bring the matter to the attention of political decision-makers by speaking
financial language (see press release).
> To find
out more, here are the links to the press
release and the study (“The
Cost of occupational cancer in the EU”).
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