IR Notes

Workers posted to another EU Member State must receive equal pay for equal work in the same place. This principle was finally adopted on 29 May, with the vote in the European Parliament on the revision of the posting of workers directive no. 96/71. Beyond the provisions designed to boost administrative cooperation between Member States to combat fraud relating to the posting of workers, and those which enable employers to access the legislations and collective agreements which apply to their posted workers more easily, the new directive actually contains few significant amendments. The main problem lies in implementing the legislation, which will require political will and resources. It should, however, be noted that: 1. the “core” of the employment law rules, which must apply to posted workers, is currently fixed by legislation or by an extended collective agreement. The Member States which have no extension mechanism – such as Denmark, Italy or Sweden – can, however, consider that unextended collective agreements apply to posted workers. The new directive extends this option to Member States which already have an extension system. As a result, these Member States will be able to decide that certain unextended agreements reached by the most representative social partners, at sectoral, regional or even national level, apply to posted workers.  2. This “core” is supplemented by two provisions. In addition to the rules covering maximum work periods, minimum rest periods and pay, the new directive firstly adds the conditions of workers’ accommodation when provided by the employer to workers away from their regular place of work. Secondly, allowances or reimbursement of expenditure to cover travel, board and lodging costs incurred by a posted worker when he/she is required to travel to and from his/her regular place of work in the Member State to which he/she is posted, or when he/she is temporarily sent by his/her employer from this workplace to another workplace. This, however, only transposes into the directive the rulings of the Court of Justice which has already clarified the details of the pay to which posted workers are entitled. However, the directive does have the virtue of explaining clearly that employers cannot deduct accommodation, meals and transport expenses from the salary. The text should reduce distortions of competition, but they will still remain: firstly, the advantages stipulated in company agreements are not included in the principle of equal pay; and secondly, and more importantly, the text does not even up the variation in the level of social security contributions between Member States, which represents a significant competitive advantage for companies which have their head office in countries where the level of social security contributions on wages and salaries is low.

• Combatting unfair competition: on 30 May, MEPs finally adopted the proposal for a regulation amending regulations 1225/2009 and 597/2009 on protection against dumped or subsidised imports from countries which are not members of the European Union (see press release).

The European Commission publishes its country-specific recommendations: this year’s country-specific recommendations dedicate “special attention to social challenges, building on the European Pillar of Social Rights, proclaimed on 17 November 2017”, the European Commission emphasised when, on 23 May, it presented its recommendations to EU Member States (see fact sheet on the “European Semester” package). In addition to the country-specific recommendations, the Commission issued a summary report in a communication which explains the Commission’s position as regards the labour market reforms to be undertaken in the Member States (see Commission’s press release). These recommendations are more balanced than the previous ones, they include the EU’s social dimension, and turn away from an exercise which focuses exclusively on reducing debt and improving competitiveness. They were, for once, welcomed by the European Trade Union Confederation (see press release). Furthermore, on the basis of a Eurofound report on the involvement of the national social partners in the European Semester, to which IR share contributed, the Commission notes that, since 2017, certain Member States have taken steps to provide more scope for structured dialogue and the participation of social partners.

• Pierre Gattaz becomes President of BusinessEurope: On 18 May, Pierre Gattaz, the current President of the French employers’ organisation Medef, was unanimously elected President of BusinessEurope, a confederation which brings together 39 employers’ organisations in Europe. He will replace the Italian Emma Marcegaglia (Confindustria) from 5 July (see press release).


• Resolution to tackle precarious employment: on 31 May, in response to a large number of petitions, MEPs adopted a resolution which, among other things, invites the European Commission to take steps to combat precarious employment (including so-called “zero hours” contracts) and the abusive use of fixed-term employment contracts.


• A European appeal for a social Europe: “it is time to revisit the situation of the more than 140 million EU employees working in companies”, is the emphatic statement from more than 400 figures from the world of academia, politics and trade unionism, in a European appeal entitled “Companies and Employees – Blazing a New European Trail”. The initiative is supported by the European Trade Union Confederation and echoes its resolution for more democracy at work.

• Legal action against the European Commission: on 17 May, the executive committee of the European Public Service Union (EPSU) decided to take the European Commission to the European Union Court of Justice over its refusal to present to the Council the sectoral agreement on information and consultation rights for workers in central government agreed by European social partners, so that it could transpose the agreement through a European directive (see EPSU press release).

Right to holiday pay: on 29 May, the Advocate General of the Court of Justice delivered his opinions in several cases relating to the entitlement to paid annual leave, which is guaranteed by article 7 of directive 2003/88 of 4 November 2003, concerning the organisation of working time. In two cases, one of which involved a private employer, and the other a local authority (CJUE, concl., 29 May 2018, cases C-569/16 and C-570/16), the Advocate General, whose opinion is followed in 80% of cases by the Court of Justice when it delivers its judgments: 1.Confirms that the directive precludes legislation which, when the employment relationship is terminated by the death of the worker, provides that the entitlement to paid annual leave is lost without conferring entitlement to an allowance in lieu of outstanding paid annual leave, and which therefore makes it impossible for the deceased’s heirs to be paid such an allowance. 2. For the first time, refers to the right to paid annual leave as a “fundamental social right” enshrined in article 31, paragraph 2, of the EU Charter of Fundamental Rights, which means in practice that this entitlement can be relied on directly in a dispute between an employee and an employer in the private sector, in order to disapply national provisions which have the effect of depriving a worker of his right to an annual period of paid leave (see press release). In two other cases (CJEU, concl. 29 May 2018, case. C-619/16 and C-684/16, not available in English), the Advocate General: 1. deems that the mere fact that a worker did not apply for leave cannot automatically entail the loss of the right to an allowance in lieu of untaken leave at the end of the employment relationship. 2. However, where the employer shows that he took the necessary steps to enable workers to exercise their right to paid annual leave and, in spite of the measures taken, the worker deliberately declined to exercise that right, even though he was able to do so during the employment relationship, that worker cannot claim the allowance (see press release).

• Return to tripartite social dialogue: the government and social partners have re-established tripartite social dialogue by holding a meeting to discuss pertinent social policy and work-related issues. The last tripartite meeting was held in 2002. The aim of the meeting was to discuss subjects which the government and social partners considered most important, for example the expansion of democracy in the workplace and issues related to foreign workers. It was agreed that these meetings should take place several times a year. The next one will be held in September 2018.

• Right to work part-time for a fixed period: on 17 April, the government introduced a bill which amends current legislation on part-time and fixed-term work (Teilzeit- und Befristungsgesetze) by introducing the right to work part-time for a fixed period (“Brückenteilzeit”) and to return to full-time employment at the end of the period of part-time work. The text will be presented to Parliament and should come into force on 1 January 2019. Employees who have worked for at least six months in a company which has fewer than 45 employees will be able to apply for a period of part-time work lasting between a minimum of one year and a maximum of five years. In the case of companies which employ between 45 and 200 people, employers will be able to reject the request when a certain number of employees are already taking advantage of the law (for example, if more than 10 employees in a company of between 135 and 150 employees are already working part-time) (see Ministry of Labour press release).
  > See also the article in the European Trade Union Institute’s ReformsWatch online service.

First collective agreement signed at Amazon: on 22 May, Amazon’s management and trade unions signed a collective agreement, which is supplementary to the sectoral agreement, to improve the working conditions of Amazon employees in areas such as the organisation of working time. According to UNI Global Union, this is the first-ever agreement between the American group and trade unions (see press release). The Italian trade union federation FILCAMS CGIL sees it as a “historic agreement” (see press release).

• A collective agreement for the social services sector: on 18 May, a national collective agreement was signed between the Ministry for Social Affairs and six trade unions which represent social workers (but no employers’ organisation, however, because there is not one in this sector). The agreement is designed, among other things, to introduce a minimum wage for employees who are covered by the collective agreement by virtue of being members of one of the signatory trade unions (see press release). By offering a salary which is higher than the normal rate of pay in the sector, the agreement also seeks to boost trade union participation. The text also introduces a salary scale based on qualifications to encourage workers to develop their skills.

• Protection for victims of sexual harassment: the law dated 8 April 2018, which amends various provisions of the Labour Code, came into force on 15 April. It involves the extension of the rules for compensation applicable in the event of dismissal or resignation as a result of sexual harassment to cover any employee who resigns on the grounds of gross misconduct by the employer.
  > See also the newsflash from the Castegnaro law firm.

Esterline: on 14 December 2017, the management of the American equipment supplier Esterline (13,000 employees), which specialises in aeronautics and defence, signed an agreement to set up a European Works Council. Although 57% of the company’s employees are in France, the agreement was signed under UK transposition law. If the United Kingdom leaves the EU or the EEA, the management could adopt a new subsidiary to represent it in the EU and new applicable legislation from among those of countries in the EU and EEA. The text also states that the council “will not generally engage in dialogue on any issues which relate to a single country and which are purely local/national issues. If two or more unrelated projects are executed at the same time, and without joint planning, Information and Consultation obligations only apply if each of them is a Transnational Matter in their own right”. However, if a project submitted in one country has an impact and consequences for employees in other Member States, the council will be informed about this proposal “sufficiently in advance to allow Information to be properly reviewed”.

EDF: on 29 May, at the headquarters of the ILO in Geneva, the management of the EDF group and the IndustriAll Global Union and Public Services International (PSI) international trade union federations signed a new global agreement on corporate social responsibility. The agreement is the result of a collaborative negotiation process begun in June 2017 and involving 11 national trade union federations (see press releases from IndustriAll and ISP). This agreement replaces a previous agreement on social and environmental responsibility signed in 2005 and renewed in 2009. “It is designed to guarantee the development of a shared set of standards for the Group’s 160,000 employees whilst consolidating international social dialogue” announces the EDP in its press release. In addition to the protection of fundamental social rights, the text includes commitments on fiscal transparency, protection for whistle blowers, combating corruption and fraud, combating violence and harassment in the workplace, the duty of vigilance when it comes to subcontractors and suppliers, equality between women and men, and combating discrimination related to sexual orientation. As far as we know, this is the first agreement to include the principle of a “just transition towards environmentally sustainable economies and societies for all”, in accordance with the ILO’s guidelines. In the agreement, the group undertakes to provide adequate training for its employees, endeavouring to protect their rights, interests and to develop their skills in cooperation with workers’ representatives.” One of the most comprehensive agreements in this area, it will serve as a benchmark for new global framework agreement negotiations in the years to come.

STMicroelectronics: to mark the appointment of the new STMicroelectronics CEO on 24 May, the international trade union network set up in the Franco-Italian semi-conductor manufacturer by the IndustriAll Global Union international trade union federation adopted a declaration (see press release). The unions are calling on the management to negotiate an international framework agreement “to ensure a common base of fundamental rights for all STMicroelectronics workers and to set up a global works council.”

• Alstom-Siemens: on 30 May, the IndustriAll Global Union-affiliated trade union organisations in the two companies Alstom Transport and Siemens Mobility, which are currently involved in a merger, organised an Action Day across Europe (see IndustriAll Europe press release).


• LafargeHolcim: in a press release, the European Federation of Building and Woodworkers (EFBWW) has expressed its “surprise and outrage” at LafargeHolcim’s announcement, on 25 May, of its intention to close its headquarters in France and Switzerland, whereas on 17 May, at a plenary meeting of the European Works Council, the management “denied rumours of such as closure”, notes the EFBWW. The federation says that it will “be contacting its lawyers in the next few days” and will request an extraordinary meeting of the European Works Council “to take appropriate decisions in response to this failure to comply with the agreement and European legislation”. It appears that Lafarge’s tradition of social dialogue has not survived the merger with Holcim.


• Marriott: the international trade union federation IUF is launching a campaign to encourage Marriott, the world’s largest hotel group (220,000 employees), to put in place a policy for combatting sexual harassment which is “endemic” in the hotel industry.


• Ryanair: according to the International Transport Workers’ Federation (ITF), the management of the low-cost airline Ryanair will, on 3 and 4 July, meet for the first time with trade union representatives from the Cabin Crew United trade union alliance (see press release).


• Yves Rocher: the international trade union federation IndustriAll Global Union denounces the attitude of the French cosmetics group Yves Rocher (13,500 employees) which, “since April, has dismissed a total of 115 workers at a Turkish subsidiary for exercising their fundamental right to join a union” (see press release).