IR Notes 145 – 1 July 2020
  A question for...
Esther Lynch, Deputy General Secretary of the European Trade Union Confederation

The European Trade Union Confederation has concluded a European framework agreement on digitalisation with the three European employers' organisations (see “Lead story”). What are the most important points of this agreement?
The main message of the agreement is that changes affecting digitalisation should not only be decided by company boards but also discussed with trade unions and employee representatives. Our agreement offers a fully-fledged action plan to discuss the concept of digitalisation, thus ensuring a fair transition process. The text also specifies an important point: during the negotiation process, the trade unions must have access to all employees to prepare for the negotiation. The aim of the agreement is to bridge the gap between all the very good and positive statements that exist on digitalisation and the reality on the ground, which is far from demonstrating the involvement of trade unions and workers' representatives.
As regards the right to disconnection, it was planned in our work programme that we had to negotiate an autonomous agreement on connection and disconnection. The employers did not have a mandate to negotiate a "right to disconnect" per se. However, this does not in any way detract from the value of this agreement. First of all, to focus on this right is to forget that in many important respects it already exists. The rules on working time, such as the eleven hours of rest between two working days, do not currently allow an employer to request an employee to connect at any time. Secondly, with this agreement, the employers undertake to ensure that adaptation to the changes brought about by digitalisation will not be achieved by job cuts, but by investing in the workforce and helping employees to adapt to changes. This is important at a time when so many employees’ jobs are threatened as a result of the Covid-19 crisis. Lastly, the agreement makes it clear that an employee must not feel obliged to connect, either directly or indirectly, outside working hours, and that if contacts have to take place outside normal working hours, they must be covered by a collective agreement and give rise to compensation. An employee who has to connect to work outside working hours must qualify to be paid overtime, and this must be done in accordance with working time legislation.
Our agreement will be implemented by the social partners themselves. It will not be an exercise of copying and pasting the text of the agreement, but of bringing it to life at the various levels where negotiations will take place. This text offers a process to support the negotiations and to create a climate of confidence. One of its limitations is that it will not be operational in settings where there are neither trade unions nor staff representatives.

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Lead story
A European Framework Agreement to make digitalisation a topic for social dialogue

On 22 June, the European cross-sectoral social partners – the European Trade Union Confederation and the employers’ organisations BusinessEurope, CEEP and SMEunited – signed an autonomous framework agreement on digitalisation (*) covering four major topics: Digital skills and securing employment; Modalities of connecting and disconnecting; AI and guaranteeing the human in control principle; Respect of human dignity and surveillance (see Autonomous agreement). To address these topics, the agreement is based on “a joint dynamic circular process, which takes into account the different roles and responsibilities of the different actors and can be tailored to different national, sectoral and/ or enterprise situations, industrial relations systems, jobs and different digital technologies/tools”. It offers all social dialogue actors a process comprised of five stages: 1/ Exploring, raising awareness and creating a climate of trust - based entirely on equal representation of both sides - so that the opportunities and challenges/risks of digitalisation, their impact at the workplace and the possible actions and solutions can be openly discussed. 2/ Establishing “Joint mapping/regular assessment/analysis” so that each of the topic areas covered by the agreement, the benefits, opportunities, challenges and risks can be looked into. 3/ Preparing a “joint overview of the situation” and adopting “strategies for digital transformation”. 4/ Adopting “appropriate measures/actions” based on the joint finding. 5/ Performing “regular joint monitoring / follow-up, learning and evaluation” of the effectiveness of actions and discussion on whether further analysis, awareness-raising, underpinning or actions are necessary. The agreement states that “workers’ representatives will be provided with such facilities and information as necessary to effectively engage in the different stages of the process.” The agreement invites the social partners to address the question of connecting and disconnecting, without establishing a “right to disconnection”. The trade union movement will therefore continue to call on the European Commission, which organised a seminar on this topic with Eurofound in mid-June, to enshrine this right in law. Esther Lynch, Deputy General Secretary of ETUC (see press release, explains that “the ETUC is committed to promote this agreement with our affiliates at national, sector and transnational level”. Its affiliates will then make contact with their national and sectoral counterparts, requesting that the negotiations begin on the implementation of the agreement. The agreement is also a source of inspiration for the social partners at multinational companies.

> see also: joint press release on the ETUC, CEEP and BusinessEurope websites, and also that of the European trade-union federation EPSU

(*) Article 155 of the TFEU allows the European social partners to conclude an agreement and to implement it in accordance with the particular procedures and practices followed by the social partners and Member States concerned. This procedure means that the social partners will not have to ask the European Commission to convert their agreement into a European directive that would be binding on all Member States (see European social dialogue).

1. European Union

Defining environmentally sustainable economic activities : Regulation 2020/852 of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending regulation (EU) 2019/2088, has been published in the OJEU. This regulation establishes a common language for all Member States, in terms of sustainable investment. It sets a series of environmental objectives and allows an economic activity to be declared sustainable if it contributes to at least one of the following objectives, without significantly harming any of the others: 1/ climate change mitigation and climate change adaptation; 2/ the sustainable use and protection of water and marine resources; 3/ the transition to a circular economy, and in particular preventing waste and increasing the use of secondary raw materials; 4/ pollution prevention and control; 5/ protection and restoration of biodiversity and ecosystems. Moreover, for an economic activity to qualify as sustainable, it must be carried out in alignment with the “minimum safeguards” derived from the OECD Guidelines for Multinational Enterprises and UN Guiding Principles on Business and Human Rights, including the principles and rights set out in the ILO’s eight fundamental conventions.

Social update

Protection of cross-border and seasonal workers : On 19 June, MEPs passed a resolution by a very large majority (593 votes for, 34 against and 38 abstentions) calling on the European Commission to evaluate the terms of employment and the health and safety conditions of cross-border and seasonal workers, and in particular the role played by temporary work agencies and subcontractors, with a view to addressing the shortcomings of national and EU legislations. Kristjan Bragason, EFFAT General Secretary, is delighted with the resolution, and is calling for legislative initiatives, pointing out that “gangmaster practices and even modern slavery predate [the Covid-19 crisis] by many years” (see press release).

> See also: a report on working conditions in the meat industry, published by the European trade-union federation EFFAT, which establishes a link between these working conditions and the spread of Covid-19 among workers in the sector (see press release).

Case law

Entitlement to annual paid leave for the period preceding reinstatement : The Court of Justice has pronounced judgment on two cases relating to employees who have been dismissed by their employer and reinstated in their employment, after their dismissal was declared unlawful by a court ruling. The question at issue was to determine whether the period between their unlawful dismissal and their reinstatement gives rise to entitlement to paid annual leave, as if they had still been performing their work. The Court of Justice holds that this period must be assimilated to a period of actual work for the purposes of determining the entitlement to paid annual leave. Consequently, a worker who has been unlawfully dismissed then reinstated in his or her employment, is entitled to paid annual leave acquired during this period. If the reinstated worker is again dismissed or if the employment relationship, after reinstatement, ceases for any reason, the worker is entitled to a payment in lieu of paid annual leave not taken, to which the entitlement was acquired during the period between the unlawful dismissal and the reinstatement (see CJEU 25 June 2020, case C-762/18 and C-37/19 not available in English, and press release).
see also Annual leave

  • Reference period for the purpose of recognising a collective redundancy: An important case that arose in practice has given rise to an opinion issued by the Advocate General, which will be used to assist the Court of Justice when it issues its ruling in the coming months (CJEU, opinion, 11 June 2020, case C-300/19, Marclean Technologies). This case concerns the interpretation of Directive 98/59 of 20 July 1998 on collective redundancies. Article 1 of this Directive defines collective redundancies as dismissals “effected by an employer for one or more reasons not related to the individual workers concerned where [...] the number of redundancies” in the company exceeds a certain threshold, either over a period of 30 days or 90 days. So, which should be taken into account: dismissals effected during the 30-day or 90-day period preceding the disputed dismissal? Or during this same period following dismissal? “Neither of these two interpretations is convincing”, emphasises the Advocate General, who believes that protection for a worker will be triggered if the worker was dismissed “within a consecutive 30 or 90 day period, however calculated, in which the number of redundancies reaches the required threshold”. “Depending on the facts of each specific case, the reference period could thus lie fully before, fully after or partly before and partly after the dismissal at issue”, which is the solution that provides most protection for employees. Logically, the Court is expected to confirm this analysis.
    see also Collective redundancy

Trade unionism

Statement on worker involvement in the event of restructuring : On 20 May, faced with an avalanche of restructuring announcements linked to the Covid-19 crisis and its economic consequences, the European Trade Union Confederation and six of its affiliated European trade-union federations sent a letter calling on Nicolas Schmit, EU Commissioner for Jobs and Social Rights, to urge “the European and national institutions to deliver concrete and rapid actions to guarantee the effective enforcement of workers’ rights to be informed, consulted and to participate in decision-making” before adopting any restructuring measures (see ETUC press release).

2. Member States

Return to work : several employment tribunals (Neumünster, Berlin, Stuttgart) have ruled that workers cannot return to work after the pandemic until the company’s works council is operational again. Before an employer can ask its employees to return to work, an agreement must have been signed at companies that have their own works council, covering the following areas: duty rosters (section 87, paragraph 1, no. 2, BetrVG [“Workplace Labour Relations Act”]); implementation of short-time working (section 87, paragraph 1, no. 3, BetrVG); performing a risk assessment (section 87, paragraph 1, no. 7, BetrVG); and health and safety measures to be taken in the workplace (section 87, paragraph 1, no. 7, BetrVG).


Parental bereavement leave for the death of a child : On 16 June, with the unanimous support of the country’s Parliament, the government decided that all parents who lose a child aged under 18 will be entitled to take six months’ parental bereavement leave. At the present time, parental bereavement leave is available only to parents who lose a child before the 32th week after its birth. The future law, which is derived from a citizen proposal supported by thousands of Danes, will be approved at the beginning of October (see press release issued by the Ministry of Employment).


  • New short-time working arrangements : At a meeting held with the social partners on 24 June, French President Emmanuel Macron set out details of the two short-time working schemes designed to mitigate the effects of the Covid-19 crisis on employment. 1/ The exceptional part-time working scheme that has enabled the State to pay 100% of the amount of employees’ wages since the start of the health crisis (cut to 85% since 1 June) will come to an end in September. 2/ A scheme (which will last for three months and can be renewed once) operating under ordinary law and aimed at companies experiencing short‑term difficulties, will be set up to replace the current emergency arrangements. It will pay between 72% and 100% of the value of employees’ wages, depending on the net amount of these wages, up to a maximum of 4,156.43 euros per month. The employer will receive between 60% and 90% of the gross remuneration paid to the employee. 3/ In addition to these two mechanisms provided for by law, it is expected that agreements can also be negotiated at company and branch level, providing for “reduced activity intended to maintain employment” from 1 July onwards. These agreements should be able to provide for enhanced payments (between 84% and 100% of the amount of net wages, up to a maximum of 4,849.16 euros) and longer terms (between 6 months and 2 years).


  • A tripartite agreement on short-time working: : On 9 June, the government and the social partners agreed on four new ways of allowing short-time working for companies affected by the Covid-19 crisis (see government press release).

3. Companies
European works councils

Obligation to set up a European Works Council : On 11 June, the Court of Appeal in Florence (Italy) ordered the Italian papermaking group Sofidel (6,327 employees in 13 countries), which manufactures disposable paper products (wipes, toilet paper, paper tissues), to set up a European Works Council. With the support of the UNI Europa trade-union federation, the Italian trade unions embarked on the process of creating a European Works Council in 2015. Five years later, when the unions threatened it with legal action, management decided to convene a special negotiating body (SNB) shortly before a hearing at the Lucca court, via videoconferencing but with no interpreting provided (in English only). The Lucca court found in the employer’s favour, ruling that there was nothing in the directive that prevented the SNB being convened via videoconferencing, but the Florence Court of Appeal then reversed the lower court’s ruling. In its judgment (in Italian), the Appeal Court 1/ Holds that the behaviour of Sofidel, which made the convening of the SNB conditional on only the English language being used at the meeting, i.e. with no interpreting services available, was anti-union in nature. 2/ Declares that the European Works Council is automatically constituted, given that no agreement had been reached during the three-year period following the application submitted by the trade unions (Article 1 § 1 of legislative decree no. 113/12). 3/ Orders Sofidel to pay the associated interpreting costs when convening meetings of the European Works Council, as provided for by Article 16 § 12 of the decree. 4/ Orders Sofidel to pay one half of the legal costs (slightly over 12,000 euros). 5/ Orders Sofidel to display a copy of this ruling for a period of 30 days, at a location accessible to everyone on the company’s Italian and foreign production sites, together with a translation into the national language concerned.

Virtual EWC established : Despite the Covid-19 crisis and the impossibility of organising a face-to-face meeting, the Korian group (56,000 employees) managed to set up its European Works Council, which was created by means of an agreement dated 29 April 2019, at a virtual plenary meeting held on 24 June. It was attended by 36 full members and alternates, together with the European trade-union federation EPSU’s expert. The main meeting was preceded by a training session and a preparatory meeting, both held the day before, to prepare the persons appointed to their various executive committee posts (see press release).

  • Split-off : The European Works Council of the Siemens group met on line on 9 June, at a virtual meeting, to adapt the agreement following the departure of Siemens Energy / Siemens-Gamesa employees under a spin-off scheduled for October 2021. The new entity will negotiate the creation of its own European Works Council (see IG Metall press release).

    >>> Last minute: a press release from the EWC of the Engie Group calling on the management to enter into discussions with the EWC to inform the council of the content and the details of its global project to reorganise and “simplify” the Group, that will have local consequences and impacts in several countries.