IR Notes

On 28 February, the management of the Belgian chemicals manufacturing group Solvay and its European Works Council signed a Charter on the Recognition of Trade Union and Employee Representative Experience EN, a theme never before covered by a transnational company agreement. The aim is to recognise “skills acquired in the exercising of mandates for trade unions or works councils”. The signatories consider “social dialogue to be one of the drivers behind the Group’s economic performance, and an integral part of how the company operates and transforms itself”. “Many young employees want to take up the challenge of being an employee representative provided that it doesn’t damage their career”, emphasises Jean-Christophe Sciberras, Vice-President and Head of Industrial Relations and Social Innovation. If we say that social dialogue is an essential instrument for the company, then we need to understand this fear. All companies should be doing this, otherwise it means that they don’t regard social dialogue as being really important”. The missions discharged by employee representatives, whether it be meetings with management, negotiation meetings or outreach meetings with employees, must be viewed “as a standard business activity” and “the skills developed and applied (…) should therefore receive the same recognition as would be the case for business activities”. Each country represented on the European Works Council will have to adapt the overall framework defined by the charter to meet its own needs and legal requirements. The agreement stipulates that a national joint working group will be tasked with identifying the mandates covered by each national agreement. If necessary, this group can consult “a specialised provider” whose services will paid for by Solvay. All participation by employee representatives in this skills recognition scheme is voluntary. The evaluation is conducted by a management representative and a representative of the Works Council or the trade union, the objective of which is to reach an agreed observation between the evaluators. The charter’s practical provisions will be defined in each country. The frameworks at national level will then be added to the charter in an appendix. The individual evaluation will be implemented after the national frameworks have been defined. The text applies to the countries represented on the European Works Council (Germany, Bulgaria, Spain, France, Italy, the Netherlands, Portugal, United Kingdom). It will be adopted by way of agreement at national level by 31 December 2018. “This is an important project”, emphasises Albert Kruft, Secretary of the European Works Council, “because it won’t necessarily be very easy to adapt the agreement to the national context.” For example, in Germany, the legislation stipulates that workforce representatives shall be placed neither at an advantage nor a disadvantage, on account of their mandate. We have therefore set up a working group with the trade-union federation IG BCE, to decide how to proceed. In point of fact, an evaluation of skills acquired within the framework of a mandate may lead, like any other skills developed during the course of business activities, to a wage increase, which might be perceived as a benefit linked to the mandate.” “A seminar is being organised in May with industrial relations managers from each country and we will review how the charter is being transposed”, says Jean-Christophe Sciberras. “It will of course be necessary to convince people, both at local management and trade union level of the benefits of this initiative. Some trade unions don’t seem to understand why management is taking on this issue. However, the European Works Council has grasped this subject believing that the agreement already signed in France was in the interests of the group as a whole”.

• Updated rules on lorry and bus drivers’ training: On 12 April, the Council definitively adopted an amendment of the directive on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, and of the directive on driving licences (see press release). The directive, which will shortly be published in the OJEU, will enter into force 20 days after publication. For most provisions, member states will have two years to adopt national rules to put them into practice.


• Modernisation planned for Europass: On 12 April, the Council adopted a decision on a new Europass framework that will offer a broader range of services, such as an enhanced user‑friendly tool for creating CVs and skills profiles. The Europass portal receives over 55,000 visits every day, and the Europass CV – which is standardised at EU level – has been downloaded more than 100 million times since 2004 (see press release).

• Unfair trading practices: On 12 April, the European Commission presented a proposal for a directive to ban unfair trading practices in business-to-business relationships in the food supply chain, to ensure fairer treatment for small and medium sized food and farming businesses (see the Commission’s press release). The text is welcomed in a press release by the European trade-union federation EFFAT, as it has the potential to create “a minimum harmonisation” at EU level, though the federation would have preferred the text to cover all companies, regardless of their size, and not just SME.

A wildcat strike does not release an airline from its obligation to pay compensation to passengers for cancelled or delayed flights: the Court of Justice has ruled that a strike did not release an air carrier from its obligation to pay compensation to its customers who were affected by a delay, insofar as an industrial action does not constitute “extraordinary circumstances” for an air carrier (CJEU, 17 April 2018, case C-195/17, Krüsemann and Others). The case concerns the employees of the German company TUIfly, many of whom placed themselves on sick leave following the company’s surprise announcement of a restructuring (see the facts set out in the Court’s press release). So, could this industrial action, which was classified as a “wildcat strike”, because German law does not allow employees to strike outside the renegotiation period of collective agreements, release the air carrier from its obligation to pay compensation to its passengers whose flights were cancelled or delayed for more than three hours, as provided for by Regulation no. 261/2004 of 11 February 2004? The Court points out that although recital 14 of the Regulation states that extraordinary circumstances may occur, in particular, “in cases of strikes that affect the operation of an operating air carrier”, it has already had occasion to hold “that the circumstances referred to in this recital are not necessarily and automatically grounds of exemption from the obligation to pay compensation”. In the Court’s view, restructurings and their social consequences must be considered to be inherent in the normal carrying out of the activity of the air carrier concerned. Moreover, the strike at issue cannot be regarded as beyond the actual control of TUIfly, whose actions prompted it, and which was also able to bring the strike to an end by reaching an agreement with staff representatives.

• Religious affiliation is not automatically a genuine, legitimate and justified occupational requirement: the Court of Justice has issued a ruling on a case concerning a dispute between an applicant for a job offered by an organisation forming part of the Protestant Church, who believed she was the victim of discrimination on the grounds of religion (CJEU, 17 April 2018, case C-414/16, Vera Egenberger). The claimant responded to a job advertisement, which stated that applicants had to belong “to a Protestant Church” and should indicate their denomination in their CV (see press release). The applicant believes she was not selected as she had indicated that “she was of no denomination”, unlike the person who was recruited. Was the institution entitled to rely on German law, which transposed Directive 2000/78 of 27 November 2000 (equal treatment in employment and occupation), and allows a difference in treatment based on a person’s religion or belief in the case of employment with an organisation whose ethos is based on religion or belief, provided that religious affiliation appears in light of its activities to be “a genuine, legitimate and justified occupational requirement”? The Court answers this question in the affirmative but at the same time sets limits: “it must be possible for such an assertion to be the subject, if need be, of effective judicial review” and this “requirement must comply with the principle of proportionality”.

A first collective agreement signed with an on-line platform: Hilfr, an on-line platform for cleaning services, has signed a collective agreement with the trade-union federation 3F. With this one-year trial agreement, workers receive an employment verification letter which entitles them to a pension, sickness benefits, holiday pay and collective agreement wages. However, they do not yet have access to unemployment benefits or vocational training. The aim is that these will be included when the agreement is renewed (see press release from the trade-union confederation LO).

• Merger of the two major trade-union confederations: at their respective congresses held on 13 April, the two trade-union confederations LO and FTF decided to merge and form a new confederation. LO proudly announces that as a result of this decision, 1.5 million employees (out of an active population of 2.7 million people) will be united on 1 January 2019 “in an organisation that is stronger than ever” (see press release).

Safran: the management of the Safran aerospace group and its European Works Council have signed an amendment updating the European Works Council agreement so that it complies with directive 2009/38. This amendment takes into account the council’s demands “such as freedom of movement and the protection of elected representatives“, as highlighted in a press release issued by the European Works Council. “However, this agreement does not take up the major demands that were made by the elected representatives, in particular the question of transnational concept”. The first annual plenary meeting of the European Works Council, held on 10 April, also welcomed five employee representatives from the Zodiac Aerospace group – which has just been taken over by Safran – as observers, to facilitate the process of integrating Zodiac Aerospace into the group. Lastly, the European Works Council has expressed its reservations about the management’s refusal to guarantee the retention of a British delegation after Brexit.

• Amazon Europe: On 6 March, the Spanish (FSC-CCOO), Italian (FILT-CGIL) and French (CGT Commerce) trade-union federations sent a joint letter to the European management of the American group Amazon, asking it to initiate negotiations for the establishment of a European Works Council.

Delivery Hero: On 16 April, the German food delivery start-up Delivery Hero signed an agreement on the involvement of workers in its conversion to the status of European company (“SE”). The coordinators of the European trade-union federation EFFAT are pleased with the outcome, which includes setting up a SE Works Council and employee participation on the company’s Supervisory Board, where they will hold one half of the seats (see EFFAT press release). A few days previously, the Berlin regional court had ordered Delivery Hero AG (which includes the Foodora, Lieferheld and pizza.de brands) to apply the law on co‑determination and to ensure that one half of the Supervisory Board was made up of employee representatives (see press release issued by the trade-union federation NGG).

Schreiber: On 5 April, the management of the American agri-foodstuffs group Schreiber (8,000 employees) signed a declaration on inclusion, diversity and equality between men and women with the European trade-union federation EFFAT and the group’s European Works Council. Within the EU, the group is established mainly in Germany, Bulgaria, Spain, Portugal, the Czech Republic and Slovakia. In the declaration, the parties make a commitment to implement effective measures for achieving real equality between women and men and eliminating all direct or indirect discrimination on the grounds of religion, ethnicity, gender, sexual orientation, political convictions, trade-union membership or any other personal or social situations or circumstances.

ArcelorMittal: In order to secure the green light from the European Commission to go ahead with its proposed takeover of the Italian steel producer Ilva, the ArcelorMittal group announced plans on 13 April to divest itself of some of its businesses in response to the competition concerns identified by the Commission. These proposals affect assets located in Belgium (at Liège), Italy, Luxembourg (the Dudelange site), Macedonia and the Czech Republic (see ArcelorMittal press release). These divestment plans were presented at an extraordinary meeting of the ArcelorMittal European Works Council, held in Luxembourg on 17 April. The European trade-union federation IndustriAll Europe, which is organising a trade-union coordination meeting in Brussels on 26 April, announced in a press release that it regards the proposed dismantling of an integrated steel production network such as ArcelorMittal’s, as inconceivable. Luc Triangle, General Secretary of IndustriAll Europe, believes that it is high time to reconsider competition rules that are now ‘obsolete’ in the context of globalisation. IndustriAll, which requested a meeting with the President of the Commission, Jean-Claude Juncker, and the department overseeing merger control, is also critical of the fact that employees are being presented with a fait accompli and are excluded from the dialogue between the Commission and ArcelorMittal.

General Electric: The European trade-union federation IndustriAll has called for a Europe‑wide week of action to coincide with the General Electric (GE) shareholders’ meeting due to be held on 25 April (see press release). Among other things, the European trade unions are calling, for the group to suspend its restructuring plan and to stop cutting jobs and closing sites.