IR Notes

On 21 December, the European Commission unveiled a proposal for a directive “on transparent and predictable working conditions”. This proposal goes well beyond a mere tidying up of directive 91/533, which imposes a requirement to inform each employee of his/her working conditions (see the Commission’s press release). With this proposal, the Commission is aligning the notion of a worker to the case-law of the European Court of Justice. A worker is defined as “a natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration” (Article 2.1 a). This definition means that the Directive can be extended to encompass forms of employment that are frequently not covered by it at the present time, such as domestic work, marginal part-time work or very short-term contracts, together with new forms of employment, such as on-demand work, voucher-based work and platform work. The proposal stipulates that workers are to receive written information (Article 3), on their first day at work and not within a period of two months, as stipulated by the current directive. In response to abusive forms of working relationships, the proposal grants a series of minimum rights: 1° A six-month limit on the probationary period (including any extension); 2° An employer cannot prevent a worker from taking up another employment unless this is justified by legitimate reasons (such as protection of business secrets or avoidance of conflicts of interest). 3° Where “a worker’s work schedule is entirely or mostly variable and entirely or mostly determined by the employer”, the worker may be required to work by the employer only “if work takes place within predetermined reference hours and reference days, established in writing at the start of the employment relationship”, or “if the worker is informed by their employer of a work assignment a reasonable period in advance”. 4° Workers “with at least six months’ seniority with the same employer may request a form of employment with more predictable and secure working conditions where available”. In this case, the employer must provide “a written reply within one month of the request”. Once it has been adopted, the directive can be implemented by Member States within two years, either via legislation or collective agreements. In the latter case, “social partners should be able to modify the minimum rights proposed by the directive, as long as the overall level of protection of workers is not lowered”.
> see also the comment made by the European Trade Union Confederation. There has been no reaction from BusinessEurope, which had already rejected the idea of putting forward a new social directive.

Protection against carcinogens and mutagens: Directive 2017/2398 of 12 December 2017 amending Directive 2004/37 on the protection of workers from the risks related to exposure to carcinogens or mutagens at the workplace was published in the OJEU on 27 December 2017. This initial revision of the Directive reinforces the protection of workers against a further 11 carcinogens, in addition to the three covered by the current Directive 2004/37 of 29 April 2004. The Directive stipulates that the European Commission must envisage amending the scope of the Directive no later than the first quarter of 2019, with a view to including substances that are toxic to reproduction.

• Recognition of qualifications in inland navigation: Directive 2017/2397 of 12 December 2017 on the recognition of professional qualifications in inland navigation and repealing Council Directives 91/672 and 96/50 was published in the OJEU on 27 December 2017. The Directive stipulates that EU qualification certificates, service record books and logbooks issued by the competent authorities will be valid on all EU inland waterways. The Directive, which has been welcomed by the European social partners (see press release) must be adopted by Member States no later than 17 January 2022.

Protection of whistle-blowers: in a recommendation in the wake of the inquiry on money laundering, tax avoidance and tax evasion, on 13 December, the European Parliament called for the introduction of a system “designed to protect those acting in the public interest and avoid the silencing of whistle-blowers while also taking into account the legal rights of firms”. MEPs want legislation providing instruments that will offer whistle-blowers support, in the form of effective protection and adequate financial assistance.

• Integration of refugees: on 20 December, the European Commission and the European social and economic partners – ETUC, BusinessEurope, UEAPME, CEEP and Eurochambres –signed a “European Partnership for Integration“ establishing a number of key principles and commitments to support and strengthen opportunities for refugees and migrants who are legally resident in the EU to integrate into the European labour market (see press release).


• Adjustment Fund intervention in Sweden: on 18 December, the European Commission offered to use 2.1 million euros from the Globalisation Adjustment Fund to help around 900 redundant former employees of the Ericsson group to find a job (see press release).

Lorry drivers cannot take their long rest period in the vehicle’s cabin: the EU Court of Justice has delivered a ruling in a case concerning a transport company that had challenged a fine imposed on it because one of its drivers had spent his weekly rest period in his vehicle (CJEU, 20 December 2017, case C-102/16, Vaditrans). Article 8, paragraph 6, of regulation n° 561/2006 of 15 March 2006 provides that in any two consecutive weeks, a driver must take either at least two “regular” weekly rest periods, or one regular weekly rest period and one reduced weekly rest period lasting at least twenty-four hours. paragraph  8, for its part, states that, “where a driver chooses to do so, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary”. The issue to be decided was that of whether “regular” weekly rest periods can be taken inside the vehicle. The Court rightly points out that the purpose of the Directive is to “improve drivers’ working conditions and road safety”. While recognising the progress made in terms of cabin comfort, the Court takes the view that a lorry’s cabin “does not appear to constitute an appropriate resting place for rest periods longer than daily rest periods and reduced weekly rest periods. Drivers should be able to spend their regular weekly rest periods in a place which offers them adequate and suitable accommodation”.

• The right of residence is maintained for a self-employed worker who loses his job: a Romanian national arrived in Ireland in 2007. From 2008 to 2012, he worked in a self-employed capacity. In 2012, he ceased working, due to an absence of work caused by the economic downturn. Having no income, he applied for a jobseeker’s allowance. This was rejected on the grounds that he had lost his right of residence. The Court of Justice holds that the decision is contrary to Article 7 of the directive, which states that a citizen of the Union who is no longer working as an employee or in an self-employed capacity still retains the capacity of employed worker or self-employed person, and therefore has a right of residence in the host Member State in four cases, including that of finding themselves “involuntarily unemployed […] after having worked as an employee for more than one year” (CJEU, 20 December 2017, case C-442/16, Florea Gusa). The Court takes the view that it cannot be inferred from the wording of this provision that it applies only to the situation of persons who have ceased to work as employed persons. Such a restrictive interpretation would introduce an unjustified difference in the treatment between former employees and self-employed persons, because someone who has carried on a self-employed activity may be obliged to stop working. “That person might thus be in a vulnerable position comparable to that of an employed worker who has been dismissed”, the Court emphasises. Moreover, “Such a difference in treatment would be particularly unjustified in so far as it would lead to a person who has been self-employed for more than one year in the host Member State” and has paid his social security contributions and income tax there, “being treated in the same way as a first-time jobseeker in that Member State who has never carried on an economic activity in that State and has never contributed to that system”.

• Obligation on employers to adapt the work station: on 1 January 2018, the Code of Employment was amended by law n° 159 of 2017. The amendment changed a number of important provisions: 1° A more detailed provision has been inserted on reasonable adaptation, which obliges the employer to adapt the working conditions and in particular the timetable of working hours in the event of a deterioration in their employee’s physical condition. 2° This obligation is aimed in particular at pregnant women. The employer must first of all modify their working conditions or offer them a new work station. If the necessary adaptations are not made, the employer will have to exempt the employee from the requirement to work. 3° From now on, full-time trade union officials are to be considered as workers’ representatives, granting them a higher level of protection against unfair dismissal, because they will be entitled to demand reinstatement in their former job.

• Extension of paternity leave: on 1 January 2018, the amount of statutory paternity leave linked to the birth or adoption of a child was increased from two to four days. This leave must be taken within five months following the birth and may therefore coincide with the mother’s maternity leave. Paternity leave is paid as full salary. The law also provides for a further four days’ optional leave, but the father is entitled to these only if the mother waives her right to an equivalent number of days of maternity leave.

• Law modifying different types of family leave comes into force: a law dated 15 December 2017 extended paternity leave from two to ten days on 1 January 2018. All fathers will be entitled to take at least ten working days’ paternity leave around the date of the child’s birth. This leave will be paid as normal leave. Employees who are entitled to paternity leave must give two months’ notice informing the employer of the dates and ways in which they propose to take this leave. The same arrangements apply to the adoption of a child aged under 16. This law also increases the amount of compassionate leave granted to parents in the event of the death of a child aged under 18 from three to five working days (see comments made by the law firm Castegnaro, in French).

• Thyssenkrupp: on 21 December, the management of the Thyssenkrupp group and the IG Metall trade union signed an agreement granting guarantees to the German employees and sites of the group, which is currently holding discussions with the Indian company Tata, with a view to setting up a joint company grouping together all of their European iron and steel production activities. The agreement signed will enter into force as soon as the joint company is created and will remain in force until 30 September 2026 (see IG Metall press release).

Engie: on 21 December 2017, the management of the Engie group and the three European trade union federations (IndustriAll Europe, EPSU and EFBWW) signed a European Agreement on Professional Gender Equality (see press release). For the purpose of implementing this agreement and encouraging a change in attitudes, all of the group’s companies in Europe will now draw up and follow their own action plan.

• LafargeHolcim: in an unusual development, the cement manufacturer LafargeHolcim, which signed a memorandum in July 2017 with the union federation IndustriAll Global Union, promising to negotiate a global framework agreement, changed its mind and terminated the discussions on 22 December last year, according to IndustriAll Global Union, even though a signing ceremony was scheduled for 10 January, says the union federation (see IndustriAll’s press release).

XPO: on 5 December 2017, the International Transport Workers’ Federation organised a meeting between its American and French affiliates representing workers at the global logistics and transportation giant XPO. The unions discussed ways of improving social dialogue at global level (see press release).

• Unemployment down in all Member States: according to Eurostat, unemployment has fallen in all Member States since November 2016. In the EU, the unemployment rate dropped from 8.3% in November 2016 to 7.3% in November 2017. In October last year, it stood at 7.4%. Over a one-year period, the sharpest falls were recorded in Greece (down from 23.2% to 20.5%), Portugal (10.5% to 8.2%), Croatia (12.5% to 10.4%) and Cyprus (13.1% to 11%) (see news release).