IR Notes 177 – 12 January 2022
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  Happy New Year!

The whole IR Share team sends you its best wishes for 2022! It is likely to be a difficult year for all of us, as were 2020 and 2021, but we nevertheless hope it will bring you joy and happiness. IR Notes, which is now embarking on its eighth year, will be pleased to enlighten you over the coming months.

 
  A question for…
Francisco Javier Gómez Abelleira, Professor of Employment Law and Social Security Law at Carlos III University (Madrid)

What is your analysis of the labour market reforms adopted by the Spanish government in late December, in the form of a decree-law, which is yet to be approved by the country’s Parliament?
After months of tripartite negotiations between the government and social partners, an agreement was concluded in late December on labour market reforms affecting three areas: fixed-term contracts, short-time working and collective bargaining. For this agreement to be reached, all of the parties involved had to sacrifice something significant. The initial objective of the government and the trade unions was to repeal the 2012 labour reforms in full (these were conservative reforms, which introduced greater flexibility into employment relationships, greater decentralisation of collective bargaining and cut the cost of making workers redundant). From the viewpoint of the employers’ organisations, it was important to maintain flexibility of labour (and in particular, fixed-term contracts and decentralised collective bargaining).
The agreement means that the main aspects of the 2012 labour reforms will remain in place. Nevertheless, the government and the trade unions achieved one important objective: branch-level collective agreements will take precedence over company-level collective agreements in terms of pay levels and pay structures. The employers, for their part, managed to ensure that company-level agreements will continue to prevail in other areas, such as working time schedules. The government and the trade unions also achieved another objective: collective labour agreements will remain in force after their expiry date and for more than one year following that date, unless otherwise agreed by both parties.
In other ways, the 2021 reforms don’t match what the government and the trade unions were looking for: for instance, in the area of redundancies (both individual and collective), these reforms do not introduce any changes in terms of the grounds, procedures, effects and costs involved in making workers redundant. The reforms do not alter the substantial changes made to working conditions: employers are still entitled to make unilateral changes to working conditions, provided that there is sufficient economic, technical or organisational justification for doing so, and that these conditions are not set by a collective agreement.
Although the reforms are less ambitious than those initially planned by the government, they may still make a significant impact on the labour market. One of the worst aspects of the labour market is the way in which fixed-term contracts are abused, by using them as a form of flexible labour: companies are making excessive use of temporary contracts instead of resorting to other forms of flexible labour, such as shorter hours or temporary lay-offs. One of the main lessons learned from the pandemic is that companies can maintain levels of employment and hold onto their employees, even during difficult trading periods: the legal mechanisms put in place during the pandemic to prevent excessive numbers of workers being made redundant, were based on cooperation between employers, trade unions and the authorities, but are now established as normal ways of coping with future crises (whether of a general, sectoral or company-level nature).


> For further details of these labour market reforms, see article in English written by our expert on Spain, Francisco Javier Gomez Abelleira.

 
  Diary

 


17 to 20 January
Strasbourg
Plenary session of the European Parliament


27 and 28 January
On line
A workshop organised by the European Trade Union Institute (ETUI) on “Work-related Psychosocial Risks (PSR) in the European Union” which, on the basis of an ETUI study, offers mapping of national law, collective agreements and jurisprudence concerning PSR in the European Union, with the aim of fostering discussion of the potential adoption of a European directive on PSR (Programme and registration).


7 and 8 February
On line
Training course organised by the European Trade Union Institute, for new EWC (or SNB) members (other proposed dates: 10 and 11 February).
Contact: esantaniello@etui.org and link to register.


14 February
Bordeaux
Informal meeting of the Employment and Social Policy Council.


16 February
On line
Start of the “droit européen du travail“ MOOC, on the subject of European employment law (delivered in French), organised by CNAM. This free on-line training course will run from 16 February to 4 April 2022 (registration is now open). IR Notes is a partner in this initiative, led by Michel Miné, who is a professor at CNAM, and holds the “Employment Law and Personal Rights” Chair.


17 and 18 February
Strasbourg
Conference organised by the French Presidency of the EU and the European Economic and Social Committee on the theme of the social and solidarity economy


14 March
Brussels
Employment and Social Policy Council


16 June
Luxembourg
Employment and Social Policy Council


27 and 28 June
Hamburg
14th conference of the EWC Academy for European and SE Works Councils, featuring Gabriele Bischoff, Udo Rehfeldt and Ilaria Armaroli.

 
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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 (English, French, German, Italian, Spanish). It offers Europe-wide monitoring of employment law, labour relations and employment policy. It is available by subscription for 18 euros per month.


The team This issue was producaed by Francisco Gomez Abelleira, Sylvain Nadalet, Pascale Turlan and Frédéric Turlan.
Find out more about the  IR Share team on our website.



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Lead story
Social issues on the agenda of the EU’s French Presidency

The French Presidency of the EU Council, which began on 1 January, has set out its priorities in the field of employment and social affairs (see Council of the European Union). Although the programme is largely dictated by initiatives on which work has already begun, the Presidency can still prioritise certain issues, with a view to taking them forward. In its work programme, the Presidency emphasises its desire to “commence negotiations with the European Parliament concerning the proposed directive on adequate minimum wages in the EU”. Just a few months away from the next presidential election in France, due to be held in April, the adoption of this directive would undoubtedly be a significant political victory for the current French President, Emmanuel Macron, whose policy has been criticised in some quarters as being too liberal. However, the Presidency is not announcing either the adoption of the text nor a compromise with Parliament, as negotiations with MEPs are proving difficult (see IR Notes 174 and IR Notes 175). The second text is the proposal for a directive to improve the working conditions of platform workers. This proposal has made much less progress than the first one, as the Commission has only just presented it (see IR Notes 176), whereas the minimum wage proposal has already been adopted by both the Council and the Parliament. The Presidency announces that it “will also initiate discussions” on this text on the Council. The Commission’s proposal is somewhat distant from the way in which the French government is attempting to regulate working conditions on online platforms in France, by placing the emphasis on social dialogue. The third text is the proposed directive on pay transparency, for which the “Presidency will move forward negotiations through trilogues” once Parliament has finalised its position, the Council having already reached a political agreement under the Slovenian Presidency (see IR Notes 176 and IR Notes 159). At the same time, the Presidency is committed to “advancing discussions on the proposed directive on improving gender balance on company boards”, which has been mired on the Council for almost ten years now. The French Presidency is also involved in the joint programme, prepared in conjunction with the future Czech (2nd half of 2022) and Swedish (1st half of 2023) presidencies. This “Trio Programme” defines the priorities for the next 18 months. The aim is to strengthen the European social model and to make labour markets more inclusive for older workers and persons with disabilities. Other issues included in the programme are: improving the working conditions of platform workers; health and safety at work; and tackling gender inequalities. The trio will also “promote the establishment of due diligence obligations regarding human rights and environmental impacts and support the setting up of EU standards for corporate sustainability reporting in order to promote an EU model of responsible business”.


1. European Union
Project

Carcinogens and Mutagens : On 16 December 2021, the Presidency of the Council and the European Parliament reached a provisional agreement on revision of the Directive on Carcinogens and Mutagens (see Carcinogens directive revision). This fourth revision of the directive was proposed by the European Commission in September 2020 (see IR Notes 149). The text has yet to be formally approved by the Council and Parliament, prior to publication in the OJEU. The new text provides greater protection, firstly by setting limit values for acrylonitrile and nickel compounds, and secondly by revising the limits for benzene downwards. At the present time, approximately 33,000 workers are exposed to acrylonitrile, 79,000 to nickel compounds and one million to benzene. MEPs also managed to secure the inclusion, in the directive’s scope of application, of 12 reprotoxic substances that have adverse effects on reproduction and may impair fertility or even cause infertility. The new directive will cover 39 substances: the 25 substances with an occupational exposure limit stipulated by the previous version of the directive, plus the two new limits and the 12 reprotoxins. The text also provides for the adoption, by the end of 2022, of an action plan designed to add 25 new carcinogens to the scope of the directive. In addition, the directive will provide better protection for employees working with dangerous medicines. Better training will be required, showing employees how to handle these medicines in complete safety. The Commission is due to publish guidelines on training, supervision and monitoring by the end of 2022.


> See also: presentation fact sheet issued by the European agency OSHA-EU, press releases issued by the Council and by Parliament).


Social update

Strengthening democracy at work : On 16 December 2021, by a large majority, the European Parliament passed a resolution on strengthening democracy at work, submitted by MEP Gabriele Bischoff (S&D). This text is intended to strengthen employee participation in company decision-making processes and calls for the revision of several directives, including those regulating European Works Councils. Companies that make use of European mobility instruments, and in particular those provided for by Directive no. 2019/2121 on cross-border mergers or by European Company (SE) status, should abide by “minimum EU rules governing employee participation and representation on supervisory boards, including on gender equality”. To this end, “the number/proportion of seats” on supervisory boards “for workers’ representatives should range from a few seats to parity, depending on the number of employees in the company and its subsidiaries”. The resolution also notes the existence of “loopholes in the EU Statute for a European Company (SE)” that enable companies to circumvent national regulations, particularly as regards employee representation on company boards, including supervisory boards. The Commission is urged to close these loopholes. As far as revision of European Works Councils Directive no. 2009/38 is concerned, MEPs want to strengthen information and consultation rights, especially in cases involving restructuring. They express regret that “the financial, material and legal resources needed to enable EWCs to perform their duties in an appropriate manner are not always provided by central management”. The Commission and the Member States should also ensure that “the EWC’s opinion is taken into account in company decisions and is delivered before consultation is completed at the respective level and before the governing bodies come to a decision”. Lastly, MEPs call on the Commission and the Member States to: put an end to “exemptions” that permit the survival of old, so-called “voluntary” agreements concluded more than 20 years ago; clarify the concept of the ‘transnational character of a matter’; and “to prevent the abuse of confidentiality rules as a means to limit access to information and effective participation”.



  • Coordination of social security systems : On 22 December 2021, Member States’ representatives (via the COREPER committee) rejected the inter-institutional agreement reached the previous week on regulations relating to coordination of social security systems (see Free movement and social security). The revision of these systems has been under discussion for five years now. Nine Member States voted against the text and five abstained, including Germany and Poland, thus preventing the passing of any qualified majority vote.

2. Member States
Italy

A framework for hybrid working : The Minister of Employment has signed a memorandum of understanding on hybrid working with 26 different trade unions and employers’ organisations, which offers a non-binding framework of reference for use in collective labour agreements. Via this non-binding initiative, the government is responding to the rapid changes that have occurred in this area since the introduction of Law no. 81/2017 on hybrid working. Drawing on a study based on 200 collective agreements, the government plans to provide rules that will be adapted outside pandemic periods. The principles on which this initiative is based are as follows: 1/ hybrid working must not be confused with teleworking, as it may specify alternating arrangements of working from home (or another location) and working on the employer’s premises: any individual agreement reached between the employer and employee on “agile working” must stipulate such alternating arrangements, plus any locations that are excluded. 2/ Hybrid working is voluntary in nature, i.e. if an employee chooses not to engage in it, they cannot be subject to any sanctions.  3/ The individual agreement may stipulate a fixed term for hybrid working, but this can be terminated, both by the employer and the employee, giving the required period of notice. 4/ Hybrid working involves allowing employees to work to a flexible timetable without changing the number of hours they work (in principle, overtime working is excluded), e.g. by creating “core time” and including the right to disconnect. 5/ The agreement must specify which monitoring tools the employer will use. 6/ The employer must provide the tools necessary for performing the work and pay for them. If an employee uses their own hardware, the parties must reach agreement on the IT security tools to be put in place, and agreement may also be reached on how the employer will refund the costs incurred by the employee.



A law to reduce wage inequality levels : Law no. 162/2021 on equality of opportunity, passed on 5 November 2021, which came into force on 3 December, aims to eliminate the gender pay gap. The law expands the scope of both direct and indirect discrimination, with a view to protecting job applicants. Discrimination now covers not only cases where employees are subjected to unfavourable treatment but also changes in organisational arrangements and working hours prompted by pregnancy, maternity or paternity and the exercising of employee rights relating thereto, plus discrimination based merely on gender, age or needs related to care or family support, which put, or might put, a female worker in at least one of the following positions: 1) being disadvantaged in relation to the rest of the workforce; 2) limiting the employee’s options in terms of taking part in the company’s life or the decisions made by the company; 3) limiting access to mechanisms for achieving advancement and career progress. In addition to these changes, the approach being taken is one of incentivisation, via the adoption of a gender equality certification mechanism, which will allow businesses to demonstrate what concrete actions they have taken to reduce the existing gaps in career opportunities and wage disparities, to manage gender differences or to protect maternity (the criteria in question will be covered by a decree). Businesses will require this certification to benefit from lower social security contributions or to secure financing. Companies with more than 50 employees (the previous figure was 100) will also have to issue a report at two-year intervals on the situation regarding their male and female employees in each business line.



  • Various social measures : The 2022 finance law, passed by Parliament on 30 December, contains various social measures (see presentation published by the Ministry of Employment). The principal measures are: firstly, expanding the scope of social support mechanisms (Cassa integrazione / short-time working) to include companies previously unable to access this support; and secondly, strengthening the social responsibility obligations applicable to companies with at least 250 employees, which are planning to close a site in Italy. These companies will be obliged to notify the trade unions and various authorities of their plans, 90 days before proceeding with any redundancies. Within 60 days, they will have to draw up a plan to limit the impact on employment, and put forward measures allowing the employees concerned to be redeployed and these industrial sites to be revitalised. If this procedure is not followed, the redundancies in question will not be legally valid. The law increases the budget of the Equal Pay Fund by 50 million euros and, for 2022, on an experimental basis lasting one year, introduces a 50% exemption from the social security contributions payable by mothers employed in the private sector, when they return to work after maternity leave. For a one-year period, this measure will provide them with a net wage higher than the pay they were receiving at the time they went on maternity leave. The aim is to encourage women to return to the labour market. Their pension entitlements will not be affected by the reduction in the contributions paid.

3. Third countries

  • Executive pay : The issue of so-called “fat cats”, i.e. senior managers who receive enormous remuneration packages, is one that continually arises in the United Kingdom. A study by the High Pay Centre suggests that the median FTSE 100 CEO’s earnings for 2022 surpassed the median annual wage for a full-time worker in the UK by around 09:00am on Friday 7 January (see press release). The TUC General Secretary, Frances O’Grady, is calling for “big reforms to bring CEO pay back down to earth”. The trade union leader comments: “Executive pay committees have to change. They should be required to include workforce representatives who can speak up for a fair balance of pay with ordinary workers. And incentive schemes for company directors should be replaced by profit share schemes that include the whole workforce. Too much wealth is being hoarded at the top.” (see press release)

4. Companies
European Works Councils

Adaptation following a spin-off : The CNH Industrial NV group, a holding company incorporated under Dutch law, came into being in 2013, following the merger of Fiat Industrial and and its US subsidiary CNH Global. It has now been split into two: the Iveco Group subsidiary, which encompasses CNH International’s road vehicle businesses, including manufacturers such as Iveco, Iveco Bus, Heuliez Bus and Astra, has been floated on the stock market, while the CNH Industrial arm of the business retains production of agriculture and construction vehicles. On 23 November 2021, the management of CNH Industrial and the select committee of its EWC, which was created in 2015, based on the subsidiary requirements of the Dutch transposition law, signed an agreement adapting the EWC’s composition to match this new configuration. As both of the groups resulting from this demerger come within the scope of application of EWC legislation, given the size of their respective workforces in the EU, the Iveco Group too, is set to embark on a procedure for setting up a EWC.



Revised agreement : On 6 June 2021, the management of the logistics group Geodis (41,837 employees, including 15,500 in France) renewed its agreement, signed on 8 February 2010, relating to the “European Consultation Council” (Comité Européen de Concertation or CEC), which is the name that the group’s European Works Council goes under. Under the new agreement the council’s composition remains strongly focused on France, with 7 of the 8 seats on the EWC’s executive committee being reserved for French trade unions. “In a spirit of openness and taking account of the group’s international scope”, the agreement states that the council “will benefit at regular intervals from information on the group outside its strictly European perimeter”. The Council Secretary is also “invited to sit in on meetings of the Geodis Supervisory Board in an advisory capacity”. “Prior consultation” within the meaning of the agreement involves “arranging for accurate and rapid information to be provided” by management “so that the CEC can make its opinion known within no more than 21 days, via its executive committee”. The CEC is endowed with an annual operating budget of 12,500 euros, plus an additional annual budget of 10,000 euros for training its members. Executive committee members will benefit from a personal quota of 120 hours per annum to perform their duties, while the other members will share an annual quota of 650 hours.


> Other agreements published on line on IR Share: Groupe Up and Keolis.


Trade unionism

  • An international network : The trade union network of the pharmaceuticals group Sanofi, which covers around 30 countries, held a virtual meeting on 16 December, to discuss the group’s future orientations and the problems encountered in the area of social dialogue. IndustriAll Global Union’s aim in setting up this network is to convince the group to negotiate an international framework agreement, so that a social dialogue can be initiated at global level.

5. Studies and reports

Scrutiny of EWCs ahead of revision of the EWC directive : The European Trade Union Institute has just published a benchmark study of EWCs entitled (European Works Councils: contested and still in the making), which will make a vital contribution to the process of revising Directive 2009/38. This well-documented publication offers a critical examination of the EWC, which even now, despite revision of the EWC directive in 2009, remains primarily an information body. Its consultation role continues to be disputed by the employers, say the authors, who highlight management’s tendency to use the EWC as a way of serving the company’s own interests. As a body, the EWC is still constantly evolving, but whatever changes it undergoes appear to emanate solely from actors on the ground, including the trade unions, whereas institutional actors seem to have adopted positions firmly opposing any revisions.



Inequalities in Europe : Benchmarking Working Europe is one of the European Trade Union Institute’s flagship publications. The latest edition, which came out in December, focuses on rising inequalities, a trend that “is both increasingly measurable and alarming”. These inequalities have been exacerbated by the Covid-19 crisis, but they have been structurally present for several decades now. For those who are convinced that there can be no lasting peace without social justice, these findings offer food for thought and inspiration for taking action.



  • Psychosocial risks : The European Agency for Safety and Health at Work (EU-OSHA) has published a study analysing the links between psychosocial factors and musculoskeletal disorders (MSD). One of the conclusions is that measures introduced at workplace level to address and eliminate psychosocial risks can be highly effective in preventing MSDs (press release, Executive summary, Full report). The Agency has also published an article on the occupational safety and health of LGBTI workers, with a focus on psychosocial and organisational risks, including discrimination, harassment and bullying in the workplace (see press release).


  • A just transition : In an article, Adrien Thomas, a researcher at LISER, returns to the issue of how international trade unions arrive at their climate policy positions. He emphasises that the concept of a just transition “allows the simultaneous pursuit of contradictory policies, accommodating both the most climate-ambitious and the more reticent unions”. The success of this formula “has been its capacity to bridge and temporarily conceal disagreements over the adequate framing of climate policies”. The author highlights a new North-South fault line in the international trade union movement, notably with regard to any customs barriers supported by trade unions in the North, penalising products with a high carbon footprint. Such mechanisms open up new “dissensions within the international union movement, bringing to the fore some of the disagreements previously hidden by the joint advocacy for the just transition concept”.


  • Social consultation in Belgium : What impact will the Covid-19 crisis have on social dialogue? A study performed by Michel Ajzen and Laurent Taskin, of the Catholic University of Leuven, offers an initial answer to this question. Looking at the role played by social partners since the start of the pandemic, and scrutinising its various phases, the authors consider what lasting changes this crisis might bring about in the field of social dialogue. They note in particular “the preponderance of negotiations at company level as the relevant level used for negotiating during the crisis”, whereby “management and trade union officials often worked together to ensure the safety of employees, and sometimes the company’s very survival”. This practice confirms the trend towards decentralisation of collective bargaining, “as well as opening the way to new partnership dynamics” that go beyond some of the “dogmatic postures” observed in particular at sectoral level.