Labour Law and Working Conditions Social Europe Guide | Volume 6

ISSN 1977-2343

Labour law and working conditions Social Europe guide | Volume 6

Social Europe

Labour law and working conditions Social Europe guide Volume 6

European Commission

Directorate-General for Employment, Social Affairs and Inclusion Manuscript completed in February 2014 Neither the European Commission nor any person acting on behalf of the Commission may be held responsible for use of any information contained in this publication.

Cover illustration: Mi Ran Collin — © European Union

For any use or reproduction of photos which are not under European Union copyright, permission must be sought directly from the copyright holder(s).

Europe Direct is a service to help you find answers to your questions about the European Union

Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you).

More information on the European Union is available on the Internet (http://europa.eu).

Luxembourg: Publications Office of the European Union, 2014

ISBN 978-92-79-33607-2 – doi:10.2767/58509 (print) ISBN 978-92-79-33610-2 – doi:10.2767/59037 (epub) ISBN 978-92-79-33604-1 – doi:10.2767/5682 (online) ISSN 1977-2343

Reproduction is authorised provided the source is acknowledged.

Printed in Belgium

Printed on elemental chlorine-free bleached paper (ECF) Labour law and working conditions I 3

Foreword

standards. I mean fairness for those in and out of work, proper responsibilities for employers, education and training reforms and removing barriers to employment.

Indeed, the EU has a crucial supporting role to play to avoid that the necessary reforms lead to a massive reduction of the quality of work. It is especially in times of recession that labour protection is of vital importance to provide a safety net for individuals and households, underpinning aggregate demand in the economy, © European Union and to prevent the marginalisation of vulnerable groups. This serves both social László Andor and economic objectives, encompass- ing Europe 2020 Strategy’s objectives of Commissioner for Employment, Social smart, sustainable and inclusive growth. Affairs and Inclusion Labour protection and economic growth go hand-in-hand. There is ample evidence The on-going economic and financial cri- suggesting that the EU’s most productive sis has put labour market rules across the and competitive economies are those that EU under severe pressure. Rising unem- have been able to combine comparatively ployment, especially among the young, high levels of social regulation and protec- together with continuing global competition with flexibility-enhancing measures tion, has led a large number of govern- and a dynamic social dialogue. Indeed, EU ments to review social rules especially in rules on working time, health and safety the areas of job protection, working time at work and working conditions have been and collective bargaining. The need for shown to have lead to higher productivity labour market reforms is obvious, espe- and less absenteeism by preventing acci- cially in the countries hardest hit by an dents and work-related diseases. Good and economic downturn, but by labour market healthy working conditions are not only a reforms I do not mean a race to the bottom core social right, they are an important implying a generalised lowering of labour competitiveness factor. 4 I Labour law and working conditions

Like all EU legislation, EU labour law and implementation of common EU rules rules on safety and health at work are and in their enforcement in practice. The Treaty-based. They form an integral part European Semester is by now a well- of the law of the Member States, and the established framework for coordination Commission plays an important role as the of national labour market reforms: coun- Guardian of the Treaties in ensuring that try-specific recommendations have been agreed rules on employment and working addressed to a number of Member States conditions are correctly implemented and over the recent years. We must ensure, applied across the Member States. though, that these reforms do not result in a race to the bottom in terms of labour A level playing field on employment and standards and that the social partners at working conditions is an essential aspect national level are properly informed and of the Single Market. But the European consulted before key decisions are taken. Union stands for more than that: labour This is an important aspect of the Com- law and rules on health and safety at work mission’s effort to strengthen the social have become a cornerstone of Europe’s dimension of the Economic and Monetary social dimension. The EU is a “social mar- Union: national reforms need to be seen in ket economy” underpinned by a core of context, with their aggregate and distribu- social values and goals, including social tional impacts considered. If some reforms protection, improvements in Europe- have a contractionary economic impact, ans’ living and working conditions and our coordination mechanisms should help social dialogue. us ensure that this can be offset through other measures. It should be kept in mind that the Union does not pluck the EU labour law standards With over 240 million workers throughout out of thin air. They have built upon the rich the Union, EU rights concerning working heritage of national labour legislation as conditions and health and safety at work well as the longstanding collective-bar- are of direct benefit to a great amount of gaining tradition in many Member States. citizens and have a positive impact on one In addition, they have been inspired by the of the most important and tangible areas of body of minimum standards on employ- their daily lives. EU law guarantees them a ment, established by the International number of rights: minimum rights to holi- Labour Organisation, which have been the days; a limitation of working time; to be reference for the working world for almost consulted and informed about decisions of a century now. their employers that affect them; the right to protection in case of insolvency of their In the debate on the future of EU labour employer; the right to protection against law we cannot ignore the very impor- abusive successions of fixed-term employ- tant role of Member States, both in the ment; the right to non-discrimination; the Labour law and working conditions I 5

right to work in workplaces that are safe has made the European labour market in and healthy and to work with safe equip- general a better place to work while at the ment, regularly maintained and checked; the same time contributing to a higher pro- right to information and training that is rel- ductivity and competitiveness of the EU evant to aspects of their health and safety economy. For anyone who wants to have a at work... to name but a few. Of course, deeper understanding of the history, purpose Member States can adopt more protective and current evolution of EU law and policy requirements than those laid down in the on employment and working conditions, EU rules, but by setting these EU minimum this Social Europe Guide can be an easy requirements I am convinced that the EU but comprehensive source of information. 6 I Labour law and working conditions

Table of Contents

Foreword ...... 3

CHAPTER 1 Why the European Union has a role in labour law and working conditions ...... 9 The EU’s objectives ...... 9 The Single Market ...... 11 The EU and international law ...... 13 The specific objectives of EU labour law ...... 14 Europe 2020 and the current context ...... 16

CHAPTER 2 How the EU deals with labour law and working conditions ...... 19 The legal basis for EU action ...... 19 The form and extent of EU action ...... 21 The role of the social partners ...... 23 Labour law’s interaction with other EU policy areas ...... 25

Contribution from Eurofound ...... 28 Juan Menéndez-Valdés, Director of the European Foundation for the Improvement of Living and Working Conditions ...... 28

CHAPTER 3 EU labour law – an overview ...... 33 A timeline of EU labour law ...... 33 Working conditions directives ...... 36 Directives on information, consultation and participation ...... 42 Other forms of EU action ...... 46

Contribution from the Lithuanian EU presidency ...... 50 Interview with Algimanta Pabedinskienė, Minister of Social Security and Labour ...... 50

CHAPTER 4 Health and safety at work ...... 53 OSH directives ...... 54 OSH strategies ...... 63 Advisory bodies ...... 65

Contribution from EU-OSHA ...... 68 Christa Sedlatschek, Director of the European Agency for Safety and Health at Work ...... 68 Labour law and working conditions I 7

CHAPTER 5 The international dimension ...... 71 Relationships with international organisations ...... 74 The EU and the ILO ...... 74 The Decent Work Agenda ...... 74 The EU and the Council of Europe ...... 76 The EU and the OECD ...... 77 The United Nations ...... 78 The EU on the global stage ...... 78

Contribution from the ILO ...... 87 Guy Ryder, ILO Director-General ...... 87

CHAPTER 6 The way forward ...... 91 Review of the Working Time Directive ...... 91 The posting of workers in the EU ...... 92 Seafarers ...... 94 Reducing the amount of undeclared work ...... 96 Youth Unemployment and the measures to combat the problem ...... 97 Quality Framework on Traineeships ...... 99 Quality Framework on Restructuring ...... 99 Related EU-level social policy guidance ...... 100 Helping workers make the most of jobs opportunities wherever they are ...... 101 Helping the disabled ...... 102 Corporate Social Responsibility (CSR) ...... 103 Europe 2020 and coordination of Member States’ policies ...... 103 Strengthening social dialogue ...... 104 Better Regulation: REFIT ...... 106 The international dimension ...... 108

Voice from the European Parliament ...... 110 Interview with Alejandro Cercas, Member of the European Parliament ...... 110

Forthcoming guide ...... 112 CHAPTER 1

Why the European Union has a role in labour law and working conditions

When people think and the media report The EU’s objectives about the European Union, the focus is often on big political issues such as the economic The European Union has certain explicit crisis, free trade, migration into the EU and values and upholds rights and freedoms, mobility between EU countries, or contribu- including in the labour and social fields. Its tions to the EU budget and investments Member States are committed to moving financed from it. However, in reality, for many towards an ‘ever closer union’, whose aims people their closest contact with the EU’s include promoting the wellbeing of its peo- activity probably comes at the workplace. ples, and which is based on the values of Across the Union, EU law guarantees mini- respect for human dignity, freedom, mum rights for workers, from health and democracy, equality, the rule of law and safety to information and consultation, from human rights. The EU is not just a Single working hours to maternity leave. Market or an economic and monetary union. It explicitly links its economic aims The European Commission, as Guardian of to social progress. The EU Treaties provide the Treaties, plays a central role in ensuring that the Union shall: that these rights are correctly implemented yy work for Europe’s sustainable develop- and applied across the Union. Furthermore, ment, based on balanced economic it regularly evaluates the rules and policies growth and price stability, and on to ensure that they remain effective and a highly competitive social market econ- appropriate, taking account of the EU’s omy, aiming at full employment and ‘Smart Regulation’ principles, and if neces- social progress (Article 3 of the Treaty sary proposes changes to modernise the on European Union, TEU); framework. yy combat social exclusion and discrimination, and promote social justice and In this chapter, we look at why the EU has protection, gender equality, solidarity come to legislate on such diverse work- between generations and protection of place matters as annual holidays, the con- children’s rights (Article 3 TEU); ditions of temporary workers, carrying yy promote economic, social and territorial heavy loads or consultations over planned cohesion, and solidarity among EU coun- redundancies. tries (Article 3 TEU); 10 I Labour law and working conditions

yy ensure economic and social progress by they implement EU law). The Charter draws common action to eliminate barriers on the constitutional traditions of the that divide Europe (Preamble to the Member States and on international instru- Treaty on the Functioning of the Euro- ments such as the Council of Europe’s pean Union, TFEU); and European Convention for the Protection of yy have an essential objective of con- Human Rights and Fundamental Freedoms stantly improving people’s living and and European Social Charter (see below working conditions (Preamble TFEU). under ‘The EU and international law’).

The rights, freedoms and principles recog- The Charter’s rights cover human dignity, nised by the EU are set out in the Charter basic freedoms, equality, solidarity, citi- of Fundamental Rights of the European zens’ rights and justice. A number of these Union, which has the same legal value as rights are of direct relevance to labour law the EU Treaties (the Charter applies to EU and working conditions – see box 1.1 – and institutions and to Member States when inform the EU’s action in this field.

Box 1.1 Key workplace rights guaranteed by the Charter of Fundamental Rights of the EU

yy Every worker has the right to working yy No one shall be required to perform conditions that respect his or her forced or compulsory labour, or held in health, safety and dignity (Article 31). slavery or servitude (Article 5). yy Every worker has the right to limitation yy Everyone has the right to engage in of maximum working hours, to daily work and to pursue a freely chosen or and weekly rest periods and to an accepted occupation (Article 15). annual period of paid leave (Article 31). yy Every EU citizen has the freedom to yy Every worker has the right to protection seek employment, to work, to exercise against unjustified dismissal (including the right of establishment and to dismissal for a reason connected with provide services in any Member State maternity) (Articles 30 and 33). (Article 15). yy The employment of children is yy Nationals of non-EU countries who prohibited. The minimum age of are authorised to work in the EU admission to employment may not are entitled to working conditions generally be lower than the minimum equivalent to those of citizens of the school-leaving age. Young people Union (Article 15). admitted to work must have working yy Any discrimination based on any conditions appropriate to their age ground such as sex, race, colour, and be protected against economic ethnic or social origin, genetic exploitation and harmful work features, language, religion (Article 32). or belief, political or any other Labour law and working conditions I 11

opinion, membership of a national yy Workers or their representatives minority, property, birth, disability, age must, at the appropriate levels, or sexual orientation, is prohibited be guaranteed information and (Article 21). consultation in good time in the cases yy Equality between women and men and under the conditions provided for must be ensured in all areas, including by Union law and national laws and employment, work and pay (Article 23). practices (Article 27). yy People with disabilities have a right yy Workers and employers, or their to benefit from measures designed respective organisations, have, in to ensure their independence, accordance with Union law and social and occupational integration, national laws and practices, the right and participation in the life of the to negotiate and conclude collective community (Article 26). agreements at the appropriate levels yy Everyone has the right to freedom of and, in the event of conflicts of interest, association, which implies the right to to take collective action to defend form and to join trade unions for the their interests, including strike action protection of interests (Article 12). (Article 28).

The Single Market yy prohibiting any discrimination based on nationality between EU workers in At the core of the European Union is a sin- employment, remuneration and other gle internal market without borders. Today, conditions of work; this market, which was established in its yy giving workers the right to take up jobs current form in 1993, covers 28 countries, in other EU countries, move freely within over 500 million consumers and more than the Union for this purpose, stay in 20 million businesses. another country while working and remain there after being employed; The basic role of EU law in the Single Mar- yy abolishing national procedures and ket is to guarantee the ‘four freedoms’ – practices, and qualifying periods for eli- the free movement of goods, services, gibility for employment, that present an capital and workers. It does this by, for obstacle to free movement; and example, ensuring that there are no barri- yy ensuring social security rights for workers to trade among countries, and that ers moving between EU countries. national authorities do not have in place discriminatory, restrictive or protectionist However, the free movement of labour is measures. With regard to workers, the EU not the only work-related aspect of the has sought to ensure their free movement Single Market. The foundation of the mar- (which is an integral aspect of the Single ket is that competition should be fair, Market) principally by: with a playing field that is level for all 12 I Labour law and working conditions

involved. To ensure this level playing field, The EU can play a role in preventing such the EU’s role, as the market’s ‘referee’, is a race to the bottom, by establishing to remove distortions of competition, such a level playing field in the form of common as unfair or artificial advantages given by labour standards applicable to all busi- national law or practice to businesses in nesses operating in the Single Market. The a particular country. extent to which the EU should play this role, harmonising aspects of labour law Labour law is one of the areas where there and thus preventing distortions of compe- are considerable differences among the tition or providing minimum labour stand- EU countries, with higher levels of protec- ards, has been debated since the early tion of workers in some Member States years of the European Economic Commu- than in others. At the same time, busi- nity (EEC). Since the late 1980s, there has nesses from the various EU countries com- also been a widespread view that the Sin- pete freely in the Single Market for goods gle Market should be accompanied by and services, regardless of these different a platform of minimum EU-wide social labour standards. Consequently, as higher rights. In practice, the approach taken has labour protection might entail higher costs been to adopt EU legislation that sets for businesses, companies in Mem- minimum standards in a number of impor- ber States with high levels of worker pro- tant areas, while promoting an overall tection could find themselves at improvement in working conditions (see a competitive disadvantage vis-à-vis busi- below under ‘The specific objectives of EU nesses from EU countries with lower labour labour law’). law standards. As such, companies and national authorities may be tempted to The various practices whereby companies compete on the basis of a lowering of their and governments may seek to exploit dif- labour standards, rather than on factors ferences between countries in labour such as productivity and efficiency, or the costs, and in the stringency of labour quality and innovation of their goods and services. If this occurs, other firms and countries in the Single Market may be prompted to follow suit, triggering a downward spiral in standards that is often referred to as a ‘race to the bottom’. If price competition in the Single Market for goods and services provides an incentive to lower labour standards, this would not be compatible with the EU’s mission to have a social market economy (see above under ‘The EU’s objectives’). © BelgaImage Labour law and working conditions I 13

legislation, in order to obtain an unfair basic principles and aims, as set out competitive advantage are often referred in its Charter, include the promotion of to as ‘social dumping’. An example universal respect for human rights and might be where a company based in fundamental freedoms, higher standards a country with a comparatively low level of living, full employment, and economic of labour protection and costs exercises and social progress. Respect for the prin- its freedom to provide services in other ciples of the UN Charter is built into the EU countries, for instance by winning EU Treaties. a contract to build a road in a country with higher protection and costs. If the com- All EU Member States are also members pany then sends its own workforce to of the International Labour Organiza- carry out the work in the other country, tion (ILO), a specialised UN agency with but continues to provide them with the a tripartite constituency, established in (lower) pay and conditions that apply in 1919 to pursue a vision based on the their home country, thereby undercutting premise that universal, lasting peace can standards in the destination country and be established only if it is based on social enjoying a competitive advantage not justice. The EU is committed to promoting available to local companies, social the ILO’s ‘decent work’ agenda to promote dumping would be considered to occur. rights at work, encourage decent employment opportunities, enhance social protec- In addition to adopting labour legislation tion and strengthen social dialogue on that sets minimum EU-wide standards work-related issues. in various areas, the Union has responded specifically to this threat of social dump- A key aspect of the ILO’s work is to adopt ing, notably through a directive that sets and promote international minimum labour a floor of basic employment rights for standards, notably in the form of Conven- workers posted temporarily by their tions, which are legally binding interna- employer to work in another EU country tional treaties that may be ratified by the (see Chapter 3). ILO’s member countries. ILO Conventions cover a wide range of work-related issues, including: The EU and international law yy freedom of association and collective bargaining; The EU does not exist in isolation. Its yy equality and non-discrimination; law and values, and those of its Mem- yy child labour and forced labour; ber States, are influenced by wider inter- yy the employment relationship; national standards which Europe has also yy employment security; helped formulate. At the global level, all yy wages; EU countries are, of course, members of yy working time; and the United Nations (UN). The UN’s yy occupational health and safety. 14 I Labour law and working conditions

All EU countries have ratified the core addition, the CoE’s European Social labour standards – that is, the fundamen- Charter deals in detail with employment- tal ILO Conventions on freedom of asso- related rights, such as workers’ rights to: ciation, collective bargaining, forced and yy just conditions of work (eg, in terms of child labour, equal remuneration and the working hours, annual leave, rest elimination of discrimination. EU countries periods); have also ratified the ILO ‘governance Con- yy safe and healthy working conditions; ventions’ on labour inspection, employ- yy fair remuneration; ment policy and tripartite consultations, as yy special protection, in the case of children well as a considerable number of other ILO and young people; Conventions. yy equal opportunities and treatment; yy be informed and consulted, including on While ILO standards cover a wider range collective redundancies; of areas than those in which the EU is com- yy take part in the determination and petent to legislate (see Chapter 2), and EU improvement of working conditions and law often goes beyond the minimum provi- the working environment; and sions of ILO Conventions, the principles yy protection of their claims in the event of that underlie the action of both organisa- their employer’s insolvency. tions are similar. There is much common ground in the content of EU directives and There is an interplay between EU labour ILO Conventions, with EU law reinforcing law, the European Social Charter and ILO ILO standards. Directives on issues such as Conventions: EU law, in particular the Char- working time and young workers (see ter of Fundamental Rights, takes into Chapter 3) explicitly seek to take into account the European Social Charter and account relevant ILO standards. ILO Conventions and in turn influences the evolving content and monitoring of the lat- The Council of Europe (CoE) predates, and ter instruments. is separate from, the EU, though all EU countries are among the Council’s More details on the relationship between 47 members. The CoE’s European Conven- the EU and the ILO and Council of Europe, tion for the Protection of Human Rights and on the international law issues and Fundamental Freedoms, commonly touched on here, are provided in referred to as European Convention Chapter 5. on Human rights, is arguably Europe’s most important human rights treaty and its fundamental rights constitute general The specific objectives of EU principles of EU law. The Convention has labour law some relevance to the area of labour law, notably in guaranteeing freedom of asso- In the context outlined above, the EU has, ciation and prohibiting discrimination. In since its inception as the EEC in 1957, had Labour law and working conditions I 15

explicit objectives in the field of labour law while the means of achieving them have and working conditions. These objectives, become more concrete, with greater scope and the means of achieving them, are set for legislative action in some areas. Fur- out in a specific ‘social policy’ title of the ther, the role of the social partners and Treaties (currently the Treaty on the Func- social dialogue in this field have been tioning of the European Union, TFEU). The given explicit recognition (see Chapter 2). objectives and means have changed over the years, notably in the light of the full The EU’s social policy objectives are now implementation of the Single Market and set out in Article 151 TFEU, which is repro- the move from an economic Community duced in box 1.2. Competence for social to a Union. The objectives have expanded policy in these areas is shared by the Union to take in new areas and considerations, and the Member States.

Box 1.2 Article 151 TFEU – the EU’s social policy objectives

The Union and the Member States, having To this end the Union and the in mind fundamental social rights such Member States shall implement as those set out in the European Social measures which take account of the Charter signed at Turin on 18 October diverse forms of national practices, in 1961 and in the 1989 Community particular in the field of contractual Charter of the Fundamental Social Rights relations, and the need to maintain the of Workers, shall have as their objectives competitiveness of the Union’s economy. the promotion of employment, improved They believe that such a development living and working conditions, so as to will ensue not only from the functioning make possible their harmonisation while of the internal market, which will favour the improvement is being maintained, the harmonisation of social systems, but proper social protection, dialogue also from the procedures provided for in between management and labour, the the Treaties and from the approximation development of human resources with of provisions laid down by law, a view to lasting high employment and regulation or administrative action. the combating of exclusion.

The Treaty thus sets an objective of differences and the need to keep the EU upward development of living and as a whole competitive. This objective is working conditions, to be achieved in part underpinned by the workers’ rights set out by harmonisation linked to the functioning in international and EU law (see above). of the internal market itself, and in part by the approximation of national provi- Article 153 TFEU sets out in detail the sions, while taking account of national fields in which the Union may act with 16 I Labour law and working conditions

a view to achieving its social policy objec- employment protection and high labour tives. These fields, and the type of action standards all the more important in turbu- that the EU may take, are examined in lent economic times, when workers face Chapter 2. increased insecurity and downward pressure on their living and working Since the 1970s, to achieve its social and standards? economic policy objectives, and to avoid a ‘race to the bottom’, the EU has adopted The EU’s response to these questions has a series of directives on health and safety, been to advocate the modernisation working conditions, and the information, and adaptation of labour law, in the consultation and participation of workers, light of the changing conditions. This does which are explored in detail in Chapters 3 not mean dismantling the body of EU rules, and 4. These directives form part of the which is widely appreciated for providing accumulated body of EU law (the acquis a basic floor of guarantees for workers communautaire) that countries must across Europe. The rules retain their key adopt when they join the Union. role of preventing social dumping and a race to the bottom, putting into practice recognised fundamental rights, and bal- Europe 2020 and the current ancing the concerns of workers and context employers.

EU labour law today finds itself in a new Since 2010, the EU has been focusing environment, facing new challenges. In many of its efforts on its 10-year growth particular, the economic and financial crisis strategy, Europe 2020, which aims both and its continuing repercussions pose to tackle the short-term challenges of the questions for labour law. With high unem- economic crisis and to make structural ployment, greater insecurity for those in reforms that will create the conditions for employment, massive company restructur- long-term, sustainable and inclusive eco- ing and increased global competition, is nomic growth. deregulation of the labour market needed in order to enable job creation and improve Key to the implementation of Europe 2020 flexibility and competitiveness? Or are is the European Semester, whereby EU Labour law and working conditions I 17

countries each year coordinate their budg- In short, the existing body of EU labour law etary, economic and employment policies. is acknowledged as ensuring minimum Through an Annual Growth Survey, the standards across the Union (for instance Commission and the Council agree on the in terms of working conditions, health and strategic objectives to be pursued, and safety, and employee involvement), and provide overall policy guidance for the underpinning fairer competition, high levels drafting by Member States of their own of productivity and the creation of good- National Reform Programmes. The Com- quality jobs. However, the law and effects mission evaluates these programmes and of its implementation must be regularly proposes country-specific recommenda- analysed and, where necessary, the EU tions that are endorsed by the European acquis must be adapted to make sure that Council. In the labour law field, the Annual it remains effective, relevant and easily Growth Survey and country-specific recom- applicable, and that, more generally, it mendations focus mainly on: reforms of addresses new emerging issues and needs, employment-protection legislation aimed such as those related to new working pat- at reducing the segmentation of labour terns and technologies. A process of market; the improvement of flexible work- reviewing existing labour law and assessing-time arrangements to enable greater ing its fitness for purpose is therefore labour market participation; and adapta- under way, without questioning the need tions in the functioning of wage-setting for decent labour standards. systems. The Commission also promotes ‘internal flexibility’ through collectively bar- We will return to the most recent and gained arrangements such as hour banking expected future developments in more and short-time working arrangements. detail in Chapter 6. CHAPTER 2

How the EU deals with labour law and working conditions

In Chapter 1, we examined why the Euro- specified fields. In the area we are con- pean Union has a role in setting minimum cerned with here, these are: workplace rights and obligations. In this yy improvement, in particular of the work- chapter, we look at how it plays this role, ing environment, to protect workers’ outlining the areas where the EU can and health and safety; cannot act, the nature of its action and the yy working conditions; legislative process. We also highlight the yy protection of workers when their links between EU labour legislation and the employment contract is terminated; Union’s activity in related fields. yy information and consultation of workers; yy representation and collective defence of the interests of workers and The legal basis for EU action employers, including co-determination (this refers basically to workers’ For the EU to act in a particular area, it participation, beyond information and needs a ‘legal basis’ for its action – essen- consultation); tially, a provision in the Treaties that spe- yy conditions of employment for third- cifically requires or justifies legislation or country (that is, non-EU) nationals other European-level measures. In the legally residing in the EU; and case of labour law, this legal basis lies yy equality between men and women with mainly in the ‘social policy’ title (Arti- regard to labour market opportunities cles 151 to 161) of the Treaty on the Func- and treatment at work. tioning of the European Union (TFEU). As well as listing the labour and working As we have seen in Chapter 1, Article 151 conditions fields in which the EU can act, TFEU sets objectives for the Union in the Article 153 identifies three specific areas social field, including the promotion of where it cannot act on the basis of this employment and the promotion of provision. These are: improved living and working conditions, so yy pay – though measures to ensure the as to enable their harmonisation while the application of the fundamental EU prin- improvement is being maintained. To ciple of equal pay for male and female achieve these objectives, Article 153 pro- workers for equal work or work of equal vides for the EU to support and comple- value are specifically permitted (by ment Member States’ activities in various Article 157); 20 I Labour law and working conditions

yy the right of association (that is, the right to join trade unions or employers’ organisations); and yy the right to strike or to impose lock-outs, although the right of association and the right to strike are guaranteed under the Charter of Fundamental Rights of the EU (see Box 1.1).

In all the fields listed above where the Union is empowered to act, the European Parlia- ment and the Council may adopt, by means of directives, ‘minimum requirements for gradual implementation’ (see below under ‘The form and extent of EU action’).

In most of the fields listed, directives are subject to the ‘ordinary’ legislative procedure. Broadly, this means that, once the Commission has proposed a directive, the Parliament and the Council decide on the proposal jointly, and the Council acts on the basis of a ‘qualified’ majority of national governments. However, © BelgaImage where the Commission proposes a directive relating to employee protection on termina- body of law. Counting the main directives tion of employment, workers’ and employ- that are currently in force, there are: ers’ representation and collective defence of yy around a dozen directives on working interests, or the employment conditions of conditions, dealing with matters such as third-country nationals, a special legislative working time, part-time work, fixed-term procedure applies. Under this procedure, the work, temporary agency work, young Council, which must act unanimously in such workers, posted workers and employer cases, takes the leading role, and the Parlia- insolvency (see Chapter 3); ment has only a consultative input. yy seven directives on the information, consultation and participation of workers, at In the areas covered by this guide, the legal both national and European level (see basis for EU action outlined above (which Chapter 3); and has changed and expanded over the years) yy approximately 30 directives on health has enabled the adoption of substantial and safety at work (see Chapter 4). Labour law and working conditions I 21

In addition to binding legislation, the EU has action is subject to the basic principles of a legal basis to take ‘softer’ initiatives (see ‘subsidiarity’ and ‘proportionality’. Chapter 3 for more details). In all the social policy fields listed above where the EU is Subsidiarity means that decisions should empowered to support and complement be taken at the lowest appropriate level. Member States’ activities, the Parliament and In most areas, the Union can act only if Council may adopt measures aimed not at and in so far as the proposed action’s harmonising national laws and regulations, objectives cannot be sufficiently achieved but at encouraging cross-border coop- by its Member States but can rather, by eration. Such initiatives may aim to improve reason of the proposed action’s scale or knowledge, develop exchanges of informa- effects, be better achieved at EU level. For tion and best practices, promote innovative example, minimum labour standards nec- approaches and evaluate experiences. essary for ensuring fair competition in the Single Market (see Chapter 1) need to be Further, the Commission is required by the legislated at the level of the EU. TFEU to encourage cooperation and coordination by making studies, delivering In the field of social policy, a related con- opinions, arranging consultations, estab- cept of ‘social subsidiarity’ is closely linked lishing guidelines and indicators, organis- to the role of the social partners at EU level ing exchanges of best practice, and (see below under ‘The role of the social conducting monitoring and evaluation. partners’). Social subsidiarity refers to the Specific areas include: principle that the social partners should yy labour law and working conditions; make the first move to arrive at appropri- yy basic and advanced vocational training; ate solutions within their area of respon- yy prevention of occupational accidents sibility, since employers and trade unions and diseases; are closer to the realities of the workplace yy occupational hygiene; and than political bodies. The EU institutions yy the right of association and collective intervene at the Commission’s initiative bargaining. only where negotiations fail.

Proportionality means that the content The form and extent and form of Union action must not exceed of EU action what is necessary to achieve the Treaties’ objectives. As discussed above, the Union can act only where the Treaties give it competence to In the field of labour law and working condi- do so in order to meet the Treaties’ objec- tions, EU law mainly takes the form of tives. In areas where the EU is able to act, directives. A directive is a legal act that is such as the abovementioned aspects of binding, in terms of the result to be achieved, labour law and working conditions, this upon each EU country, but leaves the 22 I Labour law and working conditions

national authorities free to choose the form protective measures for workers, as long and methods of achieving this result. Each as these are compatible with the Trea- directive sets a deadline by which all Mem- ties. Indeed, directives typically state that ber States must comply with its require- they do not rule out legislative, regulatory ments, but national authorities can comply or administrative provisions, or collective in a way that fits with their own legal sys- agreements, that are more favourable to tem and practice. Directives therefore give workers, and that a directive’s implemen- national authorities considerable flexibility tation cannot justify a reduction in the over how to ‘transpose’ EU standards into general level of protection for workers in national law, but not as regards the specific the fields that the directive covers. results to be achieved. If a Member State fails to comply properly by the deadline, it This means that directives do not impose may be subject to legal proceedings which a uniform labour law across the EU in the the Commission can initiate at the European areas that they cover. They lay down Court of Justice. In certain circumstances, a safety net of minimum requirements directives can also have ‘direct effect’, in that EU countries have to comply with, in that individuals can enforce their rights a way that suits their particular national legal under a directive against the Member State and industrial relations structures. They are concerned in court without the directive free to exceed these basic requirements if having been transposed into national law. they wish. In practice, directives may require no changes at all to national labour law, as National authorities are obliged to provide countries’ existing provisions may be more for appropriate measures in the event of favourable than the directive’s minimum non-compliance with directives (for exam- standards. To take the example of the 2001 ple, by employers), with adequate adminis- framework directive on employee informa- trative or judicial procedures that enable the tion and consultation (see Chapter 3), this obligations deriving from directives to be required no, or virtually no, change to existing enforced (for example, by workers and/or provisions in around a quarter of EU coun- their representatives). National authorities tries, minor changes in around half of the must also ensure that there are effective, countries, and major change in only the proportionate and dissuasive penalties in remaining quarter. the event of infringements of national provisions implementing EU directives. The second distinctive feature of labour law directives is that national authorities may Labour law directives are subject to entrust ‘management and labour’– that several special conditions set out in is, workers, employers and their representa- Article 153 TFEU. First, they may set only tives at various levels – at their joint minimum requirements for gradual imple- request, with the implementation of these mentation. They do not prevent countries directives. In such cases, collective agree- from maintaining or introducing more ments between trade unions and employers Labour law and working conditions I 23

would contain the provisions required by the creation and development of small and directives. Governments must always be medium-sized enterprises (SMEs). Again able to guarantee the results required by taking the framework information and con- the directive. sultation directive as an example of the practical effects of this rule, this directive This provision reflects the fact that in some seeks to avoid placing constraints on SMEs EU countries the social partners play a pri- by applying its requirements only to under- mary or significant role in regulating work- takings with at least 50 employees or place matters, with legislation taking establishments with at least 20 employ- a secondary place. In practice, the option ees (the choice is left to individual of leaving the implementation of directives countries). wholly to collective agreements is not often used in such countries, not least because it is rare for such agreements to The role of the social cover 100 % of the workers and employers partners to which a directive’s requirements apply. However, agreements have, for example, The social partners – organisations repre- played the leading role in implementing senting employers and workers at Euro- various information and consultation direc- pean level, either on a cross-industry basis tives in countries such as Belgium, Den- or in a specific sector (see text box 2.1) – mark and Italy. have a key part to play in drawing up EU labour law. The provisions of the TFEU Third, all directives on labour and working stipulating this form of social dialogue are conditions issues must avoid imposing based almost word-for-word on an agree- administrative, financial and legal con- ment reached by the cross-industry social straints in a way that would hold back the partners themselves in 1991.

Box 2.1 The EU-level social partners consulted in the social policy field

yy Three general cross-industry organi- Association of Craft, Small and sations - the European Trade Union Medium-sized Enterprises (Ueapme), Confederation (ETUC), Business Europe the Council of European Professional (mainly representing private sector and Managerial Staff (Eurocadres) employers) and the European Centre and the European Confederation of of Employers and Enterprises Providing Executives and Managerial Staff (CEC). Public Services (CEEP). yy Over 60 organisations representing yy Three cross-industry organisations employers in particular sectors. representing certain categories of yy Fifteen sectoral European trade union workers or undertakings – the European federations. 24 I Labour law and working conditions

Under the TFEU, the Union recognises and Where the social partners reach an EU-level promotes the role of the EU-level social agreement, they can decide that the agree- partners and facilitates dialogue between ment will be implemented by their national them, respecting their autonomy, while the member organisations, in ways consistent Commission has the task of promoting with the industrial relations systems in each their consultation. Specifically, under Arti- EU country. Alternatively, if the agreement cle 154 TFEU the Commission, before sub- deals with the social policy matters that fall mitting proposals in the social policy field, within the EU’s competence under Arti- must consult the social partners on cle 153 TFEU, the social partners have the the possible direction of Union action. This option of asking the Commission to propose consultation is in two stages. a directive, to be adopted by the Council, giving the agreement EU-wide legal force. In the initial consultation, the Commission seeks the social partners’ views on both If the social partners ask the Commission to the substantive issue in question and propose a directive to implement an agree- whether Union action is required, and asks ment reached following treaty-based con- if they might consider initiating a dialogue. sultations, the Commission checks the If, after this first consultation, the Commis- representative status of the signatory organi- sion considers EU action advisable, it con- sations, their mandate and the legality of the sults the social partners again, this time agreement’s content in relation to EU law, as on the envisaged proposal’s content. The well as the provisions regarding SMEs (in line second-stage consultation sets out more with the Treaty requirements in this area). concrete options for EU action. It asks the (Under Article 155 TFEU, social partners also partners for their views on the options and have the possibility to negotiate agreements whether they want to negotiate on all or outside a formal consultation procedure initi- some of the issues raised. ated by the Commission - when social partners request legislation to implement such In response to either a first- or second- agreements, the Commission also assesses stage consultation, under Article 155 TFEU the appropriateness of EU action in the field.) the social partners can decide jointly to If it is satisfied, the Commission drafts launch EU-level negotiations on the issue a directive, which would make the agreement in question. If the social partners decide to legally binding across the EU. The Council negotiate, they must inform the Commis- then decides whether or not to adopt the sion, which then temporarily suspends directive (it cannot amend the agreement’s work on the proposal. The partners then provisions). The directive’s adoption means have nine months to reach an agreement, that the Commission halts work on its pro- unless they agree with the Commission to posal in the specific areas covered by the extend this period. agreement. Labour law and working conditions I 25

Using the procedure described above, the EU legislation that defines the workplace social partners at both cross-industry and rights and obligations of workers and sector levels have reached a number of Euro- employers in respect of working conditions, pean agreements since the mid-1990s that information and consultation, and health have been implemented by EU directives. and safety. Labour law is closely related The value of this approach is illustrated by to and overlaps with many other EU policy that fact that in some cases, social partner areas, and action in the various areas is negotiations have broken the dead- often complementary. lock on issues on which national governments could not agree. In the areas covered EU action on working conditions and EU by this guide, cross-industry agreements on action on equal opportunities and part-time work (1997) and fixed-term work non-discrimination overlap so exten- (1999) have been implemented by directives sively that any clear distinction between and become part of EU labour law. At sector them is often artificial. Significant work- level, this has applied to agreements on place rights and obligations arise from working time in seafaring (1998), civil avia- directives such as those on: tion (2000) and cross-border rail services yy implementation of the principle of equal (2005), implementation of the ILO maritime opportunities and equal treatment of men labour Convention in seafaring (2008) and and women in matters of employment preventing sharp injuries in hospitals and and occupation (Directive 2006/54/EC); healthcare (2009). yy a general framework for equal treatment in employment and occupation, These examples all show the practical prohibiting discrimination on grounds of application of the principle of social sub- religion or belief, disability, age or sexual sidiarity (see above under ‘The form and orientation (2000/78/EC); extent of EU action’). Social dialogue is yy implementing the principle of equal treat- a pioneering example of improved consul- ment between persons irrespective of tation and the application of subsidiarity racial or ethnic origin (2000/43/EC); and in practice and is widely recognised as yy parental leave (2010/18/EU – this direc- making an essential contribution to better tive implements a European agreement governance, due to the proximity of the between the social partners). social partners to the world of work. Notably, workers are protected from discrimination on the above grounds in areas Labour law’s interaction with such as working conditions (including pay) other EU policy areas access to employment, including promotion, and access to vocational training. The focus of this guide is on labour Further, working parents have a right to at law, defined broadly as the body of least four months’ parental leave. 26 I Labour law and working conditions © BelgaImage

At the same time, labour law directives taken into consideration in other EU poli- contribute to the EU’s equality and non- cies, including labour law. The Union has discrimination objectives. For example, the a coordinated European Employment directives on part-time, fixed-term and Strategy that promotes a skilled, trained temporary agency work have a basic aim and adaptable workforce and labour mar- of preventing discrimination. Further, it is kets responsive to economic change. This worth noting that, in the case of part-time strategy is currently closely linked to the work, discrimination against the workers wider Europe 2020 Strategy, which frames concerned is often also discrimination the introduction of any new labour law and against women. Across the EU, around the current review of some existing direc- a third of women work part time, compared tives (see Chapter 1). Labour law directives with under a 10th of men, while nearly 80 % also make a specific contribution to the of all part-time employees are women. The European Employment Strategy. For exam- part-time work directive can therefore also ple, the directives on part-time, fixed-term be seen as partly a gender equality and temporary agency work meet the measure. strategy’s objectives of promoting employment that is both flexible and secure, with The EU’s social policy, which includes strong investment in human capital and labour law, is obviously closely linked to its reduced labour market segmentation. They employment policy, which is aimed at support a greater diversity of contractual achieving a high level of employment arrangements, while protecting working across the Union. This objective must be conditions. Labour law and working conditions I 27

As we have seen in Chapter 1, labour law such as working conditions, including pay plays a vital part in ensuring a level play- and dismissal, and health and safety. ing field and preventing distortions of competition in the Single Market. The Such equal treatment is also guaranteed two policy areas also have specific over- for holders of an ‘EU blue card’ – a com- laps. For example, the free movement of bined residence and work permit for highly- services within the Single Market raises qualified non-EU migrants introduced by questions about the situation of workers a directive in 2009 (2009/50/EC) – and will sent to other countries to provide these be in future for non-EU seasonal workers services, giving rise to the 1996 directive under a draft directive soon to be adopted on the employment conditions of such by the European Parliament and Council. ‘posted workers’ (see Chapter 3). Further, A further proposal awaiting adoption the free movement of workers within the would entitle non-EU intra-corporate trans- Single Market is guaranteed by rules that ferees (workers transferred temporarily have an impact on the workplace, such between subsidiaries in different countries as non-discrimination in employment on by multinational companies) to the terms grounds of nationality, and a system of and conditions of employment applicable mutual recognition of professional to posted workers in a similar situation in qualifications. the EU country where they work.

The Union has a policy on the labour The protection, realisation and enforce- migration into the EU of nationals of non- ment of core labour standards as well as EU countries. This has resulted in several the promotion of the ratification and effec- directives that, among other matters, regu- tive application of other up-to-date ILO late the working conditions of such migrant Conventions underpinning the Decent Work workers. Notably, a 2011 directive Agenda, are part of a growing number of (2011/98/EU) on a single EU-wide applica- bilateral agreements between EU and third tion procedure and permit for non-EU countries, such as the new generation migrants wanting to work and live in the of EU free trade agreements (see Union also establishes a common set of Chapter 5). The follow-up mechanisms of rights for permit-holders. This includes these agreements include monitoring equal treatment with EU nationals in areas mechanisms involving social partners. 28 I Labour law and working conditions

Contribution from Eurofound Juan Menéndez-Valdés, Director of the European Foundation for the Improvement of Living and Working Conditions

jobs. For those at work, there is an inevi- table rise in perceived job insecurity in the face of weak labour markets and changes in employment protection. The number of workers who feel it is likely that they will lose their job, or that their working conditions will worsen, has increased in most European countries. Both unemployment and job insecurity have long-term impacts on health.

A number of changes are relevant to employment conditions. Firstly, the num- bers working on fixed-term contracts has © European Union changed – in different directions and for different reasons. For example, in some In a nutshell, what have been the key countries, such as Spain, which previously changes in employment and working had a high rate of such contracts, there has conditions in Europe since the economic been a decline, which is largely attributable crisis started? to the downturn. In other countries, changes in labour legislation have facilitated the The most obvious consequence of the use of temporary contracts. Over 40 % of crisis is the overall increase in unemploy- young workers in the EU are employed on ment. Most job loss has concentrated on temporary contracts. Although this could middle-wage jobs, for example in construc- be a stepping stone to employment (as in tion and manufacturing, contributing to a apprenticeships), the proportion making polarisation of the labour market in terms the transition to permanent positions has of wages. declined during the crisis.

But the economic crisis has not only had In some countries, new contractual arrange- a severe impact on the overall number of ments and employment relations have Labour law and working conditions I 29

emerged: for example, the UK has adopted With regard to working time, we can distin- zero-hours contracts, whereby workers guish two periods of the crisis. From 2007 remain ‘on standby’ and in Poland there is a to 2009, the implementation of short-time growing number of workers whose employ- working schemes or partial retirement in ment is fixed by terms other than labour law several countries and the reduction of contracts, as well as new forms of employ- activity in some economic sectors led to a ment such as ‘employers’ groups’ (a form general reduction in average weekly work- of labour pooling) and ‘crowd employment’. ing hours. A more diverse trend emerged between 2010 and 2012. In countries While, on average, working conditions have such as Hungary, Portugal and Romania, not changed dramatically, there have been some reforms were implemented to facili- significant changes for particular groups of tate longer working hours. In other coun- workers over the past few years. tries, the provisions introduced in a bid to improve productivity include the introduc- There have been positive changes regard- tion of staffing pools and the temporary ing some indicators. Small increases can transfer of employees between signatory be seen in levels of job satisfaction, even firms. While overtime has decreased, in countries adversely affected by the crisis. unpaid overtime has increased in sev- In most European countries, accident rates eral countries. have declined, especially between 2008 and 2009 – possibly linked to both a reduced Pay cuts and pay freezes, particularly overall volume of work and changes in the in the public sector due to cuts in public composition of employment. budgets, have resulted in a marked downward pressure on pay. Pay and other condi- In other areas, developments in work- tions of work are increasingly negotiated ing conditions have been more nega- at a more decentralised level – shifting tive. Intensity of work has gone up in a either from national to industry-level and number of countries. In some cases, this company bargaining, or from industry-level is due to reorganisation and restructur- to company bargaining. Other impacts of ing, undertaken with a view to improved the crisis on industrial relations include a organisational performance. In general, drop in the overall volume of bargaining, this can provide opportunities for learn- and shorter agreements. ing, on the one hand, and higher levels of psychosocial risk on the other, particularly Our research indicates that there are some if not accompanied by increased autonomy 20 % of ‘low-quality’ jobs in Europe, which and participation. combine several detrimental features 30 I Labour law and working conditions

likely to impact both on the sustainabil- But policy makers also want to know what ity of work during the life cycle and on factors produce positive change – they people’s health in the future. This issue want to know ‘what works’. Eurofound’s requires policy attention and follow-up research helps to identify innovative by company actors if we are to tackle the practices and policies that have resulted sustainability of work in the context of a in good outcomes. Eurofound’s online shrinking workforce. databases outline, for example, labour law requirements and legal instruments Beyond analytical work, what other applied in the event of restructuring. They specific efforts does Eurofound under- also provide an overview of support meas- take to improve the working conditions ures that governments and social partners in Europe? have put in place to anticipate and cushion the effects of restructuring. Eurofound’s mission is to provide knowledge to assist in the development of Other research aims to identify success- social and work-related policies. This ful approaches to overcoming the crisis – knowledge, when used for the develop- looking at job creation in SMEs and youth ment of effective policies, can lead to entrepreneurship, as well as exploring the the improvement of working conditions in conditions for ‘win-win’ arrangements Europe. In addition to analysis, Eurofound which benefit companies and employ- provides easy access to comparative data ees alike. from its surveys, including the European Working Conditions Survey and the Euro- Eurofound provides specific information to pean Company Survey. The Survey Map- support policy debates, particularly in the ping Tool on Eurofound’s website allows EU Institutions and the European Social policy makers to compare the situation Dialogue, but also to national governments in their own country with the other EU and social partners. Member States and a number of reports analyse in depth these data. Results from To further exchange and mutual learning, other Eurofound monitoring activities, Eurofound organises small-scale seminars such as the annual review of collectively and networking initiatives. The tripartite agreed pay, are also presented in online, nature of the Agency constitutes a distinct searchable databases. added-value in this respect, for example Labour law and working conditions I 31

bringing together expert teams consisting of workplace diversity or sustainable work – representatives from trade unions, employ- can be applied directly in the national-level ers’ organisations and governments. In this tripartite debate, leading to better informed way, the knowledge gained – for exam- policies and thus assisting in the improve- ple, on successful active ageing policies, ment of working conditions. CHAPTER 3

EU labour law – an overview

This Chapter looks at the development of controversy, and has featured periods of EU labour law since the 1970s, and gives activity, consolidation and deadlock, influ- brief details of the directives that provide enced by the EU’s wider economic and a minimum platform of workers’ rights and political development. employers’ obligations at the workplace across the Union. 1970s and 1980s – protecting For convenience, this guide deals sepa- employees in restructuring rately with labour law and health and safety. However, it should be mentioned The first labour law directives were that there is much overlap between the adopted in the 1970s, against the back- two areas, and some directives fall within ground of the deepening of the common both categories. For example, directives on market and the economic restructuring working time and young workers have that accompanied it. The specific trigger a strong health and safety aspect, while was the economic crisis of the time, the health and safety directive on pregnant marked by the oil shocks and high inflation workers (covered in Chapter 4) also deals and unemployment. Thus, the first three with employment rights. directives, adopted from 1975 to 1980, dealt with workers’ rights when their Within the field of labour law, this Chap- employer faces problems or undergoes ter distinguishes between working condi- restructuring, specifically in the case of tions, and workers’ information, consultation collective redundancies, transfers of under- and participation. Again, there is overlap takings and insolvency. A key justification and, while we classify directives in line with for these directives was to narrow differ- their central themes, some deal with both ences among national provisions that areas. For example, the transfers of under- directly affected the functioning of the takings directive, categorised as an common market. employee involvement directive, also protects employees’ jobs and employment After 1980, a decade went by without any conditions. further labour law directives being adopted (though there were developments in the health and safety field – see Chapter 4). A timeline of EU labour law Several proposals, notably on employee involvement and on part-time and tempo- EU labour law has a history going back rary work, failed to achieve the unanimous around 40 years. The history has not been agreement required among governments smooth and continuous, or free of in the Council. 34 I Labour law and working conditions

1990s – focus on the Single yy informing employees about their Market’s social dimension employment conditions (1991); yy working time (1993); Labour law was given renewed impetus in yy young workers (1994); the late 1980s as the EU started to focus yy European Works Councils (1994); and its efforts on the realisation of the Single yy posted workers (1996). Market by 1993. A view developed that the market should be accompanied by The 1992 Maastricht Treaty further a platform of minimum EU-wide social expanded the labour law competence of rights. The aim was to grant social aspects the EU and made more areas subject to the same importance as economic aspects qualified-majority voting (a process con- in the creation of the Single Market, tinued in subsequent treaty revisions thereby giving workers a stake in the pro- between 1997 and 2010). It also gave the cess, especially because of the economic EU-level social partners a new role, ena- restructuring inherent in the market’s bling them to negotiate agreements on development. The 1986 Single European certain issues that could be given legal Act increased the EU’s scope to act in the force by directives (see Chapter 2). These social field and introduced qualified- new provisions were initially included in an majority Council voting on some issues, Agreement on Social Policy annexed to the rather than requiring unanimous approval. Treaty and did not apply to all Mem- ber States, as one country, the UK, did not These developments led to the adoption wish to participate. The first legislation in 1989 of the Community Charter of the adopted on the basis of the new arrange- Fundamental Social Rights of Workers, ments (and thus not applicable to the UK known as the Social Charter, which recog- at the time of adoption) was the 1994 nised and supported rights in areas such European Works Councils directive. The as working conditions, employee involve- Agreement on Social Policy was incorpo- ment and health and safety (and was rated into the Treaty proper in 1997, with a precursor of the Charter of Fundamental the UK ending its ‘opt out’ and signing up Rights of the EU – see Chapter 1). An to directives previously adopted under the accompanying action programme pro- Agreement. posed numerous measures aimed at implementing the Charter and creating The cross-industry social partners suc- a social dimension to the Single Market. As cessfully started using their new role in a result, various new labour law directives respect of several issues arising from the were adopted during the 1990s, includ- Social Charter, reaching agreements on ing on: part-time work (1997) and fixed-term yy health and safety for fixed-term and work (1999) that were implemented by temporary workers (1991); directives. Labour law and working conditions I 35

The social partners in several industries Keeping labour law up to date also negotiated agreements, implemented by directives, which adapted the 1993 The changing economic, political and social working time directive to the specific situ- context can create circumstances that ation of their sectors. Other directives (not were not considered when labour law based on social partner agreements) dealt directives were adopted. Further, over time, with working time in road transport in the national transposition of directives 2002, and extended the 1993 directive to often reveals practical problems in imple- other sectors and activities in 2000. mentation, such as gaps or unclear requirements, while European Court of Justice (ECJ) case law can alter the legal frame- The 2000s – employee work. Some directives have therefore been involvement to the fore adapted over the years to better achieve their objectives in a new environment. This Since the early 2000s, labour law directives is true of the earliest directives, on redun- have mainly focused on the information, dancies, transfers of undertakings and consultation and participation of workers. insolvency, which were amended in 1992, A framework directive on information and 1998 and 2002 respectively, and also consultation at national level was adopted applies to the European Works Councils in 2002. At transnational level, the EU intro- Directive in 2009. duced the European Company and Euro- pean Cooperative Society in 2001 and The original and amending directives on 2003, accompanied by directives laying various issues have been merged into sin- down rules for employee involvement in gle ‘codified’ directives. Such consolidated these new forms of EU-wide organisation. directives were adopted on collective In 2005, a directive on cross-border com- redundancies in 1998, transfers of under- pany mergers contained provisions on the takings in 2001 and insolvency in 2008. arrangements for board-level employee Similarly, the 1993 working time directive representation in some merged companies. and the 2000 directive applying it to some The EWCs Directive was revised in 2009. transport sectors were consolidated in 2003. When the 1994 EWCs Directive was Employee involvement aside, the only sig- amended in 2009, the original Directive nificant entirely new EU labour legislation was repealed and the amendments of the 2000s has been the 2008 directive included in a new ‘recast’ Directive. on temporary agency work and a 2009 directive (based on a social partner agree- Attempts to amend labour law directives ment) that implements the ILO maritime are not always successful. Notably, in labour Convention (see Chapter 5). 2004 the Commission proposed a revision 36 I Labour law and working conditions

of the working time directive, in the light yy Workers have a right to paid annual of ECJ case law and various other develop- leave of at least four weeks. ments, but the Parliament and Council yy Night workers must not generally work were unable to agree on the changes, and for more than eight hours per shift on the initiative ended in failure in 2009. The average, and must be subject to special Commission then consulted the social health and safety protection. partners on the matter, and the partners decided to negotiate over a review of the Special working time rules in the directive directive. However, these talks also failed apply to some mobile and offshore work- in 2012, and the matter remains ers. Further, countries may exempt certain unresolved. workers, such as senior managers, from some of the directive’s rules.

Working conditions directives Separate working time directives apply to seafarers and to mobile workers in civil aviation road transport and cross-border Working time rail services. Specific rules for these groups include: The EU working time directive was yy for seafarers, either a maximum working primarily conceived as a health and safety time of 14 hours per day and 72 hours per measure, because factors such as exces- week, or a minimum rest time of 10 hours sive working hours, inadequate rest and per day and 72 hours per week; unregulated night work have damaging yy in civil aviation, a maximum annual health effects. The directive’s main points working time of 2 000 hours, including are as follows: maximum flying time of 900 hours yy Workers’ average weekly working time (from when the aircraft first moves from (including overtime) must not exceed its parking position until it comes to rest 48 hours. Weekly hours may be aver- in the designated parking position and aged over a period of four to 12 months. engines are stopped); Countries have the option of exempting yy for mobile road transport workers, workers from the 48-hour maximum a maximum average weekly working working week, if workers agree to this time of 48 hours – actual weekly work- individually. ing time may be as high as 60 hours, as yy If their working day is longer than long as the 48-hour average is main- six hours, workers are entitled to tained over a four-month period; and a rest break. yy in cross-border rail services, a maxi- yy Workers must have a minimum daily mum daily driving time of nine hours on rest period of 11 consecutive hours, day shifts and eight hours on night shifts, and a minimum weekly rest period of subject to a maximum of 80 hours’ driv- 35 hours. ing time within two weeks. Labour law and working conditions I 37 © BelgaImage

Most of the sectoral working time direc- negotiated such a sectoral agreement tives are based on agreements between on working time in 2012 and have the EU-level social partners in the indus- requested implementation by directive. tries concerned. The social partners in The Commission is currently assessing the inland waterways transport sector this request.

Box 3.1 Main EU directives on working time

yy Directive 2003/88/EC of the European yy Council Directive 2000/79/EC of Parliament and of the Council of 27 November 2000 concerning 4 November 2003 concerning certain the European Agreement on the aspects of the organisation of working Organisation of Working Time of time. Mobile Workers in Civil Aviation yy Council Directive 1999/63/EC of concluded by the Association of 21 June 1999 concerning the European Airlines (AEA), the European Agreement on the organisation of Transport Workers’ Federation (ETF), working time of seafarers concluded the European Cockpit Association by the European Community (ECA), the European Regions Shipowners’ Association (ECSA) and Airline Association (ERA) and the the Federation of Transport Workers’ International Air Carrier Association Unions in the European Union (FST). (IACA). 38 I Labour law and working conditions

yy Directive 2002/15/EC of the European between the Community of European Parliament and of the Council of 11 Railways (CER) and the European March 2002 on the organisation of the Transport Workers’ Federation (ETF) working time of persons performing on certain aspects of the working mobile road transport activities. conditions of mobile workers engaged yy Council Directive 2005/47/EC of in interoperable cross-border services 18 July 2005 on the Agreement in the railway sector.

Non-standard work yy Fixed-term workers must not be treated, in terms of their employment conditions, Three main Directives deal with ‘non- less favourably than comparable ‘per- standard’ forms of work that do not manent’ workers solely because they conform with the traditional model of have a fixed-term contract or relation- full-time employment on an open- ship, unless different treatment is justi- ended contract, performed for a single fied on objective grounds. employer. The forms of work concerned yy Temporary agency workers’ basic working are part-time work (directive adopted and employment conditions (those relat- in 1997), fixed-term work (1999) and ing to pay, working time and holidays) temporary agency work (2008). The must, during their assignment at a user directives respond to the growth of non- undertaking, be at least those that would standard work, accepting and encourag- apply if they had been recruited directly ing this form of flexibility, but seeking by that undertaking to do the same job. to ensure that it develops in a balanced and high-quality way, taking into Other common features of the directives account the needs of both employers include provisions requiring or promoting: and workers. yy the access of non-standard workers to training and, in the case of temporary The directives prohibit discrimination agency workers to various facilities against workers in non-standard forms of and amenities provided by user employment, in line with the Union’s gen- undertakings; eral non-discrimination principles, as yy information for non-standard workers on follows: full-time or permanent vacancies in the yy Part-time workers must not be treated, undertakings where they work; in terms of their employment conditions, yy information for workers’ representatives less favourably than comparable full- about the use of non-standard work; and time workers solely because they work yy the review of obstacles to, or restrictions part time, unless different treatment is on, part-time work and temporary justified on objective grounds. agency work. Labour law and working conditions I 39

All three directives give an important role requiring that the renewal of such con- to the social partners, in terms of both tracts/relationships is justified by objec- consultations and reaching agreements on tive reasons. specific issues. yy Temporary work agencies may not charge workers any fees in exchange for The directives also contain distinctive pro- arranging for them to be recruited by visions relating to the particular type of a user undertaking, or for concluding an work concerned. For instance: employment contract or relationship yy A worker’s refusal to transfer from full- with a user undertaking after carrying time to part-time work or vice-versa out an assignment there. should not in itself constitute a valid reason for termination of employment. Fixed-term and temporary agency workers As far as possible, employers should are particularly exposed to health and consider requests by full-time workers safety risks. A 1993 directive guaran- to transfer to part-time work and vice tees that they have the same level of versa, and measures to facilitate access health and safety protection as other work- to part-time work at all levels of the ers, and are not treated differently because enterprise, including skilled and mana- of their employment status. It provides gerial positions. that fixed-term/temporary agency workers yy National authorities must take meas- must be informed in advance of the risks ures to prevent abuses arising from the they face and receive sufficient job-spe- use of successive fixed-term employ- cific training. While agency workers are on ment contracts/relationships, such as an assignment, the user company is limiting their maximum total duration or responsible for their health and safety.

Box 3.2 Main EU directives on non-standard work

yy Council Directive 97/81/EC of European Parliament and of the 15 December 1997 concerning the Council of 19 November 2008 on Framework Agreement on part-time temporary agency work. work concluded by UNICE, CEEP and yy Council Directive 91/383/EEC of the ETUC. 25 June 1991 supplementing the yy Council Directive 1999/70/EC of 28 measures to encourage improvements June 1999 concerning the framework in the safety and health at work agreement on fixed-term work of workers with a fixed- duration concluded by ETUC, UNICE and CEEP. employment relationship or yy Directive 2008/104/EC of the a temporary employment relationship. 40 I Labour law and working conditions

Insolvency essential employment conditions, such as the workplace, type of work, remuneration, The insolvency directive requires EU coun- working hours, paid leave and notice peri- tries to have a ‘guarantee institution’ to ods for termination. Extra information must cover the payment of employees’ out- be provided if the employee is to standing claims arising from work abroad. employment contracts or relationships if their employer becomes insolvent. Governments may limit the Young workers institution’s liability and cap the payments it makes to employees. The directive also The directive on the protection of young protects employees if their employer failed people at work is partly a health and to pay social security contributions prior to safety measure, based on the relevant insolvency. The directive, which dates back treaty provisions; and partly a human to 1980, has been amended since. As well rights measure, prohibiting child labour and as the central aim of protecting employees protecting young people’s education and in the event of their employer’s insolvency, development, with reference to the 1989 one of the directive’s objectives is to Social Charter and ILO principles. reduce differences in national rules that affect the Single Market’s operation. The main points of the directive are as follows: yy The minimum working age must not be Information on employment lower than the age when compulsory conditions schooling ends, or 15 years in any event. Exemptions are possible, for example for A directive adopted in 1991 obliges children aged at least 14 on work-expe- employers to inform employees rience schemes, and for those aged at about the conditions applicable to least 13 performing light work. their employment contract or rela- yy Employers must take special measures tionship. It helps to enact a basic right for to protect the safety and health of workers to have their employment condi- young people (those under the age of tions clearly set out in law, a collective 18), in areas such as the physical work agreement or an employment contract. environment, work organisation, training, and health monitoring. The directive aims to protect employees yy Young people must be protected from against infringements of their rights and risks to their safety, health and develop- create greater transparency on the labour ment arising from their lack of experi- market. It requires employers to inform ence, risk-awareness or maturity. They employees in writing, within two months must not do work that is harmful or of starting employment, about certain beyond their capacity. Labour law and working conditions I 41

yy Adolescents aged 15 to 17 must not temporarily to work in an EU country other generally work more than eight hours than the one where they are habitually a day and 40 hours a week. Stricter lim- employed. The directive seeks to ensure its apply to under-15s, where they are that transnational service provision occurs allowed to work. in a fair competitive environment and yy Young people must not generally per- respects workers’ rights. It aims both to form night work. protect businesses’ basic internal market yy Adolescents must have a daily rest freedom to provide services in other period of at least 12 consecutive hours. Member States and to prevent social Where under-15s work, their daily rest dumping (see Chapter 1). Therefore, when period must be at least 14 consecu- companies send their employees tempo- tive hours. rarily to other EU countries to provide yy Young people must generally have services, the directive gives these workers a minimum weekly rest period of two the basic employment rights that apply days, consecutive if possible. in the country to which they are posted. yy Where their daily working time exceeds These relate to: four and a half hours, young people are yy maximum work periods and minimum entitled to a rest break of at least rest periods; 30 minutes. yy minimum paid annual holidays; yy minimum rates of pay – though it should be noted that the Directive does not Posted workers oblige Member States to set minimum wages if they do not already exist in the The 1996 posted workers directive country in question; has a different background than the other yy the conditions for hiring out workers, in working conditions directives; it has its particular by temporary work agencies; legal basis in Articles 53(1) and 62 TFEU, yy health and safety; which deal with the provision of services. yy protection for pregnant women, women The Directive aims to reconcile two objec- who have recently given birth, and tives: the exercise of the freedom to pro- minors; and vide cross-border services on the one yy equal treatment and non-discrimination. hand; and guaranteeing an appropriate level of protection of the rights of workers The European Parliament and Council are temporarily posted abroad for that pur- currently discussing an ‘enforcement direc- pose on the other. The transnational pro- tive’ which the Commission proposed in vision of services means that companies, 2012 to clarify and improve the way in when providing services in another Mem- which the 1996 posted workers directive ber State, may need to post employees is applied. 42 I Labour law and working conditions

Box 3.3 Other EU Directives on working conditions

yy Directive 2008/94/EC of the the contract or employment European Parliament and of the relationship. Council of 22 October 2008 on yy Council Directive 94/33/EC the protection of employees in the of 22 June 1994 on the protection event of the insolvency of their of young people at work. employer (codified version). yy Directive 96/71/EC of the European yy Council Directive 91/533/EEC of Parliament and of the Council of 14 October 1991 on an employer’s 16 December 1996 concerning the obligation to inform employees posting of workers in the framework of the conditions applicable to of the provision of services.

Directives on information, yy over a period of 30 days, at least 10 consultation and participation redundancies in establishments employing 21-99 workers, redundancies affect- ing at least 10 % of the workforce in Employee involvement at establishments employing 100-299 national level workers, and at least 30 redundancies in establishments employing 300 or The earliest EU directives on worker infor- more workers; or mation and consultation (I&C), origi- yy over a period of 90 days, at least 20 nally adopted in the 1970s, guarantee redundancies, whatever the number of minimum prior notice and input for employ- workers employed in the establishment. ees when their jobs are under threat or their employer changes hands. The two directives An employer envisaging collective redun- focus on specific issues – collective redundancies must consult representatives of the dancies and business transfers – and stipu- workers in good time with a view to reaching late a procedure and timetable for employee an agreement. These consultations must, involvement, relying on workers’ representa- at least, cover ways of avoiding or reducing tives (such as trade unions or works coun- the redundancies, and of mitigating the cils) as the primary I&C channels. consequences. The employer must, in good time during the consultations, inform work- Collective redundancies are defined as ers’ representatives about: a certain number of dismissals for reasons yy the reasons for the projected redundancies; not related to the individual workers con- yy the number and categories of workers cerned over a certain period. EU countries to be made redundant; may choose between applying the direc- yy the period over which the planned tive to: redundancies are to be effected; Labour law and working conditions I 43

yy the proposed criteria for selecting work- yy the date of and reasons for the transfer; ers for redundancy; and yy the legal, economic and social implica- yy the method of calculating any additional tions for the employees; and redundancy payments. yy any measures envisaged in relation to the employees. The employer must notify the competent public authority about projected collective Where the transferor or transferee envisages redundancies, which cannot take effect ear- measures in relation to employees, it must lier than 30 days after this notification. consult their representatives in good time with a view to reaching an agreement. While the collective redundancies directive deals with I&C, the transfer of under- The original rationale for the collective redun- takings directive also protects employ- dancies and business transfers directives ees’ rights more generally. The key was to protect workers in the context of the employment-protection provisions are as restructuring that accompanied the develop- follows: ment of the common market, and to reduce yy When an undertaking is transferred to distortions of competition in this market. As another employer, the rights and obliga- the directives were amended and adapted tions arising from employment contracts over the years, they also grew to reflect the or relationships must be transferred fact that employee involvement had in itself from the ‘old’ employer (the transferor) come to be regarded as an important EU to the ‘new’ employer (the transferee). value and an appropriate issue for EU legisla- yy A transfer must not in itself constitute tion. This was expressed very clearly with the grounds for an employee’s dismissal by adoption in 2002 of the directive establish- the transferor or the transferee. How- ing a general framework of principles, ever, this does not prevent dismissals definitions and arrangements for for economic, technical or organisational informing and consulting employees reasons. at national level, primarily through their yy After a transfer, the transferee must representatives. This directive also linked to observe the terms of any collective the European Employment Strategy, promot- agreement that applied to the trans- ing dialogue over the anticipation and man- feror, until the agreement expires or agement of restructuring and change. a new one comes into force. The directive sets out minimum require- On I&C, the directive requires both the ments for employees’ I&C rights that apply transferor and transferee to inform to undertakings with at least 50 employ- in good time representatives of the ees or establishments with at least employees affected (or, in the absence 20 employees. It provides for: of representatives, the employees them- yy information on the recent and prob- selves) about: able development of the undertaking/ 44 I Labour law and working conditions

establishment’s activities and eco- Box 3.4 Main EU Directives on nomic situation; employee involvement at national level yy I&C on the situation, structure and probable development of employment, and yy Directive 2002/14/EC of the on any anticipatory measures envis- European Parliament and of aged, in particular where there is the Council of 11 March 2002 a threat to employment; and establishing a general framework yy I&C, with a view to reaching an agree- for informing and consulting ment, on decisions likely to lead to sub- employees in the European stantial changes in work organisation or Community. in contractual relations. yy Council Directive 98/59/EC of 20 July 1998 on the approximation The timing, manner and content of infor- of the laws of the Member States mation must be such as to enable employ- relating to collective redundancies. ees’ representatives to conduct an yy Council Directive adequate examination and, where neces- 2001/23/EC of 12 March 2001 sary, prepare for consultation. The timing, on the approximation of the laws manner and content of consultation must of the Member States relating to be appropriate, and must enable employ- the safeguarding of employees’ ees’ representatives to meet the employer rights in the event of transfers of and obtain a reasoned response to any undertakings, businesses or parts opinion they might formulate. of undertakings or businesses.

The directive leaves it to the EU countries to determine the practical arrangements Iceland, Liechtenstein and Norway) and at for exercising the above I&C rights, and least 150 employees in each of at least gives them the option of allowing manage- two Member States. I&C are defined in ment and labour to negotiate agreements a similar way to the national framework on these arrangements, which may differ directive, with an emphasis on timeliness from those laid down by the directive. and allowing employee representatives to make assessments and express opinions. Employee involvement at transnational level The directive, adopted in 1994 and amended and recast in 2009, is partly The European Works Councils (EWCs) based on the EU treaty objective of pro- Directive allows for the establishment of moting dialogue between management EWCs or procedures for I&C on transna- and labour. It specifically promotes I&C tional matters in multinational compa- over company restructuring that may arise nies with at least 1 000 employees in from the operation of the Single Market, the European Economic Area (the EU plus given that national provisions in this area Labour law and working conditions I 45

are often not geared to the specific situa- applicable in all Member States, rather tion of multinationals. than national law. Using the SE form, companies can operate throughout the EU on Under the directive, the establishment the basis of a single set of rules, thereby of an EWC may be triggered by a request potentially gaining benefits in terms of from employees or their representatives, reduced administrative costs, a single legal or a management initiative. In such structure and unified management and cases, a special negotiating body (SNB) reporting systems. SEs can be set up by made up of employee representatives two or more EU-based companies by must negotiate with central manage- merger, or by formation of a joint holding ment over the establishment of an EWC company or subsidiary. An individual com- or an I&C procedure. Where the SNB pany can also transform itself into an SE, negotiations lead to agreement, the under certain conditions. EWC’s composition and operation, and the content of I&C are not specified by To ensure that the creation of SEs does not the directive but left to be decided by deprive employees of the involvement management and the SNB in each mul- rights that apply in companies based on tinational. Only in the absence of an national legislation, the regulation is agreement may statutory ‘subsidiary accompanied by a directive that sets out requirements’ for EWCs apply, which pro- rules for employee involvement in SEs. vide for standard form of EWC and for Employee involvement arrangements – I&C, I&C on specified matters, such as: plus board-level employee participation in yy the situation and probable trend of some circumstances – must generally apply employment; in all types of SE, though some aspects dif- yy investments; fer depending on the way the SE was cre- yy substantial organisational changes; ated. These arrangements are, in the first yy the introduction of new working meth- instance, agreed between the companies ods or processes; setting up the SE and an SNB of employee yy transfers of production, mergers, cut- representatives. Such an agreement should backs and closures; and set up an EWC-like ‘representative body’, or yy collective redundancies. an I&C procedure. If the parties decide, and compulsorily in some cases, the agreement In 2001, an EU regulation (No. 2157/2001) may also provide for board-level participa- created a Statute for a European tion. If no agreement is reached, statutory Company. This measure aims to ‘standard rules’ apply, providing for the crea- strengthen the Single Market by giving tion of a standard representative body and, firms the option of creating a European in certain circumstances where this existed Company (known as a Societas Europaea, in the participating companies, for board- or SE) governed by EU law directly level participation. 46 I Labour law and working conditions

The SE is aimed mainly at public limited Box 3.5 Main EU Directives on employee companies. To offer similar opportunities involvement at transnational level of European-scale operation to coopera- tives and similar organisations, a 2003 yy Directive 2009/38/EC of the regulation (No.1435/2003) introduced European Parliament and of the a Statute for a European Coopera- Council of 6 May 2009 on the tive Society (Societas Cooperativa Euro- establishment of a European paea, SCE). As with the SE statute, the Works Council or a procedure in regulation was supplemented by an Community-scale undertakings employee involvement directive. This lays and Community-scale groups of down involvement rules for most types of undertakings for the purposes SCE that are almost identical to those that of informing and consulting apply to SEs. employees (Recast). yy Council Directive 2001/86/EC of In 2012, the Commission proposed a further 8 October 2001 supplementing the Statute, this time for a European Foundation, Statute for a European company which would allow public-benefit founda- with regard to the involvement of tions to operate on a European scale. The employees. draft statute contains EWC-like employee yy Council Directive 2003/72/EC of involvement provisions. The Council is cur- 22 July 2003 supplementing the rently discussing the proposal. Statute for a European Cooperative Society with regard to the A 2005 directive facilitates cross-border involvement of employees. mergers between companies based in yy Directive 2005/56/EC of the different EU countries, thereby helping European Parliament and of the them to benefit from the Single Market. In Council of 26 October 2005 on general, when such a merger occurs, the cross-border mergers of limited directive provides that employees’ rights liability companies. are governed by the relevant provisions of existing national law in the countries where the companies are based (including the Other forms of EU action national provisions implementing the various EU I&C directives). The exception is The focus of this Chapter has so far been that the directive lays down specific rules on directives – EU laws that set binding on board-level employee participation in outcomes that must be achieved by the the merged company, which apply in cer- Member States. We are currently in a quiet tain circumstances. period in terms of the adoption of new Labour law and working conditions I 47

‘hard’ law of this sort. In the past decade, EU Directives on I&C at national level hardly any substantive new labour law (see above under ‘Employee involvement directives have been adopted, and few are at national level’) and in the light of the in the legislative pipeline. ‘REFIT’ exercise of streamlining legislation and reducing regulatory burdens (see There are various reasons for the present Chapter 6), the Commission is currently lack of hard law activity. The economic and considering a possible consolidation of financial crisis, with its accompanying high these Directives. With regard to improv- unemployment, has shifted the focus of ing implementation, examples include the the Union’s employment-related action 2009 amendment and recast of the Euro- towards job maintenance and creation, pean Works Councils directive (though this and to some extent away from improving revision went beyond solely implementa- working conditions. At a time when many tion issues), and the 2012 draft ‘enforce- companies face uncertainty about future ment directive’ on the posting of workers, demand for their products or services, pro- currently under negotiation, that seeks to tection of employment and working condi- ensure a better and more uniform appli- tions often tends to be viewed more as cation and enforcement of the original a ‘cost’ (relevant for short-term competi- 1996 directive. tiveness) than as an investment in workforce productivity and social cohesion Moreover, directives have never been (relevant for longer-term competitiveness). intended as the only way that the EU pur- Moreover, a relatively substantial body of sues its objectives in the field of labour European labour law has already been law and working conditions (see Chap- developed and, where there are gaps in ter 2). Other legal acts at the disposal of this framework, these often relate to the Council and the Commission include issues where consensus is unlikely – not recommendations and opinions. least because the Union now consists of These instruments cannot be enforced in 28 Member States, with different eco- court (though recommendations do have nomic situations and outlooks. some legal effect and may play a role in interpreting EU law) but advocate a par- The current period is therefore largely ticular course of action or express a view marked by consolidating, ‘fitness- on an issue. Their effect is one of ‘soft’ checking’ and ensuring the proper law, influencing the policies and prac- implementation of existing direc- tices of national governments and the tives. For example, following a fitness other parties to which such instruments check (completed in 2013) of the three are addressed. 48 I Labour law and working conditions

In the field of labour law, recommenda- include cross-industry agreements on tel- tions and opinions have a long history, ework (2002), work-related stress (2004) often being used when there is insufficient and harassment and violence at work consensus or a lack of EU competence for (2007). a directive. In practice, they have sometimes in effect laid the groundwork for later binding instruments when political condi- Current action on youth tions have changed or treaty changes have employment and trainees increased the EU’s labour law powers. For example, Council recommendations have A notable recent example of the soft law dealt with issues such as hours of work approach is an April 2013 Council recom- and paid holidays (1975), employee finan- mendation on establishing a Youth Guar- cial participation (1992) childcare (1992) antee, in response to Europe’s worsening and access to continuing vocational train- youth employment situation, and the rising ing (1993). The Commission has issued number of young people not in employ- recommendations or opinions on topics ment, education or training. The core of such as the protection of young workers the initiative is a recommendation that (1967), an equitable wage (1993) and the governments ensure that everyone under ratification of ILO Conventions on home the age of 25 receives a good-quality offer work (1998), seafarers’ working hours of employment, continued education, or (1999) and child labour (2000). an apprenticeship or traineeship within four months of becoming unemployed or As well as formal legal acts, EU soft law on leaving formal education. This should be work-related matters may take the form accompanied by action in areas such as: of policy coordination, exchanges yy increased cooperation and partnership, of good practice, benchmarking, involving the public employment ser- frameworks of action and codes of vices, education and training institutions, conduct, aimed at shaping consensus youth support services, career guidance and creating incentives for national or providers, employers, trade unions and company-level action. The EU-level social young people; partners at both cross-industry and sector yy early intervention and activation, for level may also contribute through agree- example through outreach work, person- ing joint texts of this nature, and through alised guidance and tailor-made indi- agreements that they implement them- vidual support schemes; and selves, rather than asking for them to be yy support for labour market integration, given legal force by a directive. Examples such as measures to enhance skills, Labour law and working conditions I 49

boost recruitment prospects amongst yy include well-defined objectives with young people (for example, through tar- a high-quality learning content and geted subsidies) and promote mobility. supervision; and yy be concluded with a certificate or let- The Youth Guarantee is a structural reform ter of reference issued by the in the field of employment policy, primarily employer, recognising the knowledge, aimed at enabling every young person to skills and competences acquired by get a foothold in the labour market so that the trainee. they can obtain a good-quality job later on. As such, the initiative can help to alleviate not only unemployment and exclusion but also the precarious working conditions currently faced by many young people.

A related measure with clear implications for working conditions is a Council recommendation on a Quality Framework for Traineeships, proposed by the Commission in December 2013. Traineeships are limited periods of work experience with an organisation undertaken by young people who have recently completed their education. The proposed EU-wide Framework would require Member States to adapt their regulatory framework in order to improve the quality of traineeships, by rec- ommending among other things that traineeships should: yy not replace regular jobs or constitute a form of precarious work; yy be based on a written agreement setting out their duration, learning objectives, working hours, social security coverage and information on remuneration; © BelgaImage 50 I Labour law and working conditions

Contribution from the Lithuanian EU presidency Interview with Algimanta Pabedinskienė, Minister of Social Security and Labour

important to ensure that new measures are justified and balanced, and legal certainty and transparency for service providers exist.

The provisions with regard to liability related to subcontracting acknowledge the importance of reliability in case of posting of workers and enable Member States to more flexibly apply the existing means and measures or choose other means and measures in case of non-payment of wages to a posted worker. Moreover, the © Ministry of Social Security and Labour, Lithuania © Ministry of Social Security and Labour, liability of sub-contracting operates as a preventive measure, which ensures protec- In December 2013, after many months tion of workers from deceit and struggles of negotiations, the Council succeeded in against economic profiting of enterprises agreeing a common position on the in chains of subcontracting. enforcement directive on posting of workers. How would you explain the This Enforcement Directive is also aimed at importance of this compromise? drawing up a non-finite list of elements enabling to evaluate whether posting took Provisions of the Enforcement Directive place under 1996 Directive thus providing offered by the Council, first of all, enable enterprises with legal certainty and facilitat- Member States to apply administrative ing activities of responsible institutions requirements and national control meas- dealing with violations, especially with ures, which are necessary while imple- “letter-box” companies. It also aims to menting the 1996 Directive (96/71/EC) on ensure a clear mechanism of efficient the posting of workers and providing Mem- implementation of administrative sanctions ber States with a regulatory options to imposed for non-compliance with provisions apply new measures in the event the list of 1996 Directive and the Enforcement of the existing ones is insufficient. It is Directive in a different Member State, to Labour law and working conditions I 51

improve defence of violated rights of posted including the Internal Market Information workers by assisting trade unions and other System may also take place. organisations, to set principles of measures of control and monitoring, which allow What other aspects of EU law on employ- reducing the administrative burden and ment and working conditions preoccu- unifying the application of measures of pied you during Lithuania’s Presidency of control by adhering to principles of non- the Council? What do you consider to be discrimination and proportionality. the main ‘unfinished work’ in this field?

What were the main areas of disagree- The Lithuanian Presidency made a consid- ment between Member States, and what erable progress in the field of EU law on key issues remain to be discussed with working conditions in terms of the Chemi- the European Parliament? cals Directive. At the trilogue between the Council, the Parliament and the Commis- Provisions of the Enforcement Directive sion the agreement was reached. ensuring more efficient and unified practical implementation of the currently valid The main unfinished work is Community 1996 Directive (96/71/EC) on the posting occupational safety health policy coordina- of workers and contributing to fair compe- tion initiative (Community health and tition and at the same time improving safety strategy for 2013-2020), which was protection of posted workers by preventing to be presented to the European Council violations of rights, are relevant and useful on 2013. On the period of implementation for all 28 EU Member States irrespective Community health and safety strategy for of whether a Member State is the posting 2007-2012, Member States recognized or the accepting state. that the safety and health issues contribute to increasing productivity, growth of We believe that the agreement on arti- economy and employment. Huge costs are cles 9 and 12 of the Enforcement Direc- related with health and safety problems tive reached in the course of negotiations and this causes economic slowdown and with the European Parliament will be affects the competitiveness of EU enter- extremely important. Discussions on Arti- prises. Most of the health and safety prob- cle 3 establishing actual elements of lems, already observed in the previous posting and the relation of 1996 Direc- period, become more and more important. tive and the Enforcement Directive to the Occupational safety health policy coordi- Regulation on the law applicable to con- nation at the EU level should contribute to tractual obligations (the so-called Roma safety and health promotion, would help I Regulation) and Articles 6, 7 and 18 to keep workers longer in the labour market providing for cooperation between Mem- and create conditions for transparent ber States using various mechanisms competitiveness. CHAPTER 4

Health and safety at work

The EU has developed a comprehensive and Performance (REFIT) process, which body of law aimed at providing workers aims to streamline legislation and reduce with protection against a wide range of regulatory burden, taking into account in health and safety risks at work. This is particular the needs of SMEs. In the area based on a 1989 framework directive and of health and safety, the aim is to improve 23 related directives, covering areas as regulation without reducing health diverse as manual handling of loads, use and safety protection. The Commission of computer screens and personal protec- is carrying out a full ex-post evaluation of tive equipment. EU health and safety legislation, which includes specific consultations with social Directives also ensure health and safety in partners. The conclusions of this are specific situations such as on construction expected to be available by the end sites, for those working in extractive indus- of 2015. tries or on fishing vessels, and ensure protection against exposure to physical, The European Union’s overall direction in biological and chemical agents. This body the field of workplace health and safety of law has made a significant contribution and the priority areas of focus are con- to improving the health and safety of tained in its multi-annual health and safety workers in Europe by providing minimum strategies. The most recently completed standards at European level that must strategy relates to the period from 2007 then be transposed into the national leg- to 2012. While aiming to build on the pre- islation of EU Member States. These direc- vious strategy, which ran from 2002 to tives also place a range of obligations on 2006, it set a quantitative target of a 25 % employers, such as the requirement to reduction in the total incidence rate of carry out risk assessments and then to accidents at work by 2012. It has been eliminate or reduce to a minimum the risks difficult to assess whether this target has uncovered, to provide personal protective been met in all countries, due to difficulties equipment and adequate signage to work- in obtaining recent data, but it is clear that ers, to carry out health checks on workers the incidence rate of accidents at work has in some circumstances, to provide appro- demonstrably decreased overall since the priate training, and to inform workers about strategy has been in place. developments connected with health and safety issues at work. The European Agency for Safety and Health at Work (EU-OSHA), based in Bil- This body of legislation is currently under bao, was set up in 1996 with a mission to review at European level, as part of the make Europe a safer, healthier and more European Commission’s Regulatory Fitness productive place to work and to promote 54 I Labour law and working conditions

a culture of risk prevention. The Agency car- aims to improve information and consulta- ries out a wide range of activities, such as tion of workers on health and safety and disseminating information on the impor- promote and improve training on health tance of health and safety, or designing and and safety. developing tools to help enterprises to assess workplace risk and enabling them to The directive places a number of general share knowledge and good practice. It works obligations on employers. For example, it with national governments, social partners, states that employers should ensure the a range of EU bodies and networks and with health and safety of workers in every aspect private companies. It also carries out related to work, including situations related research to identify new and emerging risks to the use of external companies or individu- at work. OSHA runs Healthy Workplaces als. To this end, the employer should carry Campaigns in order to raise awareness out prevention, information and training around Europe of specific health and safety activities to avoid risks or manage unavoid- topics: the most recent Campaign focused able risks, encourage the use of protective on working together for risk prevention. measures, and adapt working conditions, Other prominent EU-OSHA tools and activi- equipment and working methods in order to ties include the Online Interactive Risk ensure health and safety protection. Assessment Project (OiRA), which is a web application for creating online risk assess- In situations where workers from different ment tools, and the ESENER (European organisations are working in the same Survey of Enterprises on New and Emerging place (for example on a construction pro- Risks), which is an EU-wide survey exploring ject), the directive states that the relevant the views of managers and worker repre- employers should cooperate and coordi- sentatives on how health and safety risks nate their health and safety measures. It are managed in their workplace. is the employer’s responsibility to appoint trained workers to ensure that the protective and preventative services that have OSH directives been established are followed, or to call external services if necessary.

The Framework directive Employers must also consult workers and their representatives about all issues The Framework directive on health and related to health and safety at work. These safety at work (89/391/EEC) sets out representatives can make suggestions to the basic principles for the protection of employers on health and safety measures the health and safety of workers. It lays and have the power to contact national down obligations both for employers and health and safety authorities if the workers, aimed at limiting accidents at employer does not fulfil their duty with work and occupational diseases. It also regard to health and safety. Labour law and working conditions I 55

The directive places an obligation on work- safety and health requirements at ers to take care of their own health and temporary or mobile construction safety and that of those affected by their sites (92/57/EEC) aims to prevent risks by actions. Workers are also obliged to use establishing a chain of responsibility link- work-related equipment, tools, substances ing all the parties involved in health and and personal protective equipment cor- safety on such sites. Most specifically, it rectly, refrain from disconnecting, changing states that the client or project supervisor or removing safety devices fitted, and should nominate a person to be responsi- immediately inform the employer of any ble for the coordination of health and work situation which represents a serious safety at sites where several firms are and immediate danger. present, although the project supervisor or client would remain responsible overall for safety and health. The client or project Directives relating to workplaces supervisor must also ensure that a health and safety plan is drawn up before work In addition to the 1989 directive described starts at the site. above, there are a number of specific directives that contain provisions relating Specific duties of those responsible for directly to occupational health and safety coordination on the site include ensuring at the workplace. The main provisions of that employers and self-employed workers these are set out below. apply general prevention principles, organising health and safety cooperation The directive on minimum safety and between employers, checking that the health requirements for the work- working procedures are being implemented place (89/654/EEC) places a number of correctly and ensuring that no unauthor- health and safety obligations on the ised persons enter the site. employer. Specifically, employers must ensure that emergency exits are kept clear The directive on improving the safety and can be used at all times, that the work- and health protection of workers in place and all relevant equipment are the mineral-extracting industries maintained, and that hygiene conditions through drilling (92/91/EEC) and the are adequate. Employer must also ensure directive on improving the safety and that there are regular maintenance and health protection of workers in sur- checks of safety equipment and that work- face and underground mineral- ers are informed of all health and safety extracting industries (92/104/EEC) measures. oblige employers to ensure that workplaces are designed, constructed, equipped, Three directives deal with health and commissioned, operated and maintained safety in specific industries. The directive in such a way as to enable workers to carry on the implementation of minimum out their work without endangering health 56 I Labour law and working conditions

and safety. Employers must also ensure The directive also obliges the employer to that work takes place under the supervi- inform workers of all measures that relate sion of a person in charge and that work to safety and health on board vessels. involving a special risk is undertaken only Workers must also be given suitable train- by competent staff and carried out according on accident prevention, covering fire ing to employer instructions. Further, fighting, the use of life-saving and survival employers must make sure that safety equipment, the use of fishing gear and instructions are comprehensible to all hauling equipment and the use of signs workers, appropriate first-aid facilities are and hand signals. In addition, the directive provided and that relevant safety drills are on safety and health requirements performed regularly. for improved medical treatment on board vessels (92/29/EEC) aims specifi- Further sector-specific health and safety cally to improve medical assistance at sea, rules have recently been negotiated by the on the basis that a vessel represents European social partners in the hair- a workplace involving a wide range of risks. dressing sector, who have asked the Its provisions cover issues such as obliging Commission for the implementation of vessels to carry appropriate medical sup- their agreement by directive. The Commis- plies and equipment and a watertight sion is currently assessing this request, but medical chest. Further, larger vessels with it will not table a proposal before the end 15 or more workers should have a sick bay of the current Commission’s term of office and vessels with 100 or more workers on (end 2014). an international voyage of more than three days must have a doctor on board. The final two directives in this section relate to health and safety at sea. The first is the directive on safety and health Directives relating to work requirements for work on board equipment fishing vessels (93/103/EC), which provides that Member States oblige owners There are a number of directives that set to ensure that their vessels are used without minimum health and safety provisions out endangering the safety and health of relating to work equipment. These cover workers. Any events at sea that affect or issues such as personal protective equip- could affect the safety or health of workers ment, manual handling of loads, computer should be described in a report that is then display screens and health and safety forwarded to the relevant competent signs at work. authorities and must also be recorded in the ship’s log. Vessels should also be On personal protective equipment checked regularly by health and safety (PPE), directive 89/656/EEC sets out mini- authorities. mum requirements for its assessment, Labour law and working conditions I 57

selection and correct use. It states that PPE such a way as to make such handling as must be used when risks cannot be safe as possible, assessing in advance the avoided or sufficiently limited by technical health and safety conditions of the type means of collective protection or work of work involved, and examining the char- organisation. The PPE must take account acteristics of loads, taking into account in of ergonomic requirements and the work- particular the risk of back injury to workers. er’s state of health, and must fit the wearer Employers must also inform workers about correctly after any necessary adjustment. relevant measures they are taking and Employers must provide the equipment make information available on the weight free of charge and ensure that it is in good of a load and on the centre of gravity of working order and a hygienic condition and the heaviest side when a package is that it complies with the requirements of eccentrically loaded. Employers must also the directive. ensure that workers receive training and information on how to handle loads cor- Knowing how to handle loads is an impor- rectly and the risks they might incur if tant part of health and safety at work, and these tasks are not performed correctly. a main contributing factor to avoiding injury. Directive 90/269/EEC on the man- As a significant number of workers use ual handling of loads where there is computer screens for a major part of their a risk particularly of back injury to workers work, minimising the risk that this poses to obliges employers to take appropriate health and safety is a key concern. Direc- measures, including the use of mechanical tive 90/270/EEC on safety and health equipment, to avoid the need for the man- requirements for work with display ual handling of loads by workers. If this screen equipment obliges employers to cannot be avoided, the employer must carry out an analysis of workstations, take appropriate steps to reduce risks. For focusing in particular on possible risks to example by organising workstations in eyesight, physical problems and mental stress. The employer must then take appropriate measures to remedy the risks found and ensure that workstations meet the directive’s minimum requirements. Employers must also plan the worker’s activities in such a way that work on a display screen is periodically interrupted by breaks or changes of activity.

The directive also states that workers should be informed about safety and health as it relates to their workstation and © BelgaImage that they are given training on how to use 58 I Labour law and working conditions

the workstation. Most specifically, it enti- and health at work of workers with tles workers to an eyesight test before a fixed-duration employment rela- starting display screen work and after- tionship or a temporary employment wards at regular intervals, or if they are relationship, which aims to ensure that having visual difficulties. workers with these types of employment relationship are afforded the same level Signage is an important aspect of health of protection, including in the area of and safety at work, and is regulated by health and safety, as that of other workers. directive 92/58EEC on the provision of In particular, Member States may prohibit safety and/or health signs at work. the use of temporary workers to perform This directive obliges employers to provide tasks that are particularly dangerous, or ensure that safety and/or health signs especially work requiring special medical are in place where hazards cannot be surveillance. Where Member States do not avoided or reduced. Employers must also use this option, they must ensure that all inform workers about all measures taken workers who are called on to perform work concerning health and safety signs and requiring special medical surveillance have must offer instruction about these signs. access to this.

Finally, work equipment is regulated by In the case of pregnant workers, direc- directive 2009/104/EC, which obliges tive 92/85/EEC provides for a range of employers to ensure the safety of the work health and safety protection measures. equipment used by workers. Employers These include protection against chemical, must also maintain this equipment and physical and biological agents and indus- provide for its inspection and testing. If trial processes deemed to be dangerous a risk associated with equipment cannot for pregnant employees, and protection be eliminated, the employer must seek to relating to physical movements and pos- minimise it by means such as restricting tures, mental and physical fatigue and access to its use. Employers must also other types of physical and mental stress. provide workers with information on the It also provides that pregnant workers work equipment and ensure that workers should not be obliged to work night shifts. receive adequate training.

Physical agents directives Regulation involving groups of workers There are five directives providing protection against exposure to physical agents: Two directives provide health and safety electro-magnetic fields; explosive atmos- protection for workers on a collective basis. pheres; mechanical vibration; noise; and The first is directive 91/383/EEC on safety artificial optical radiation. Labour law and working conditions I 59

Electromagnetic fields: directive 2013/35/ musculo-skeletal disorders. It defines EU covers all known direct and short-term exposure limit values for hand-arm- biophysical effects and indirect effects vibrations and whole-body-vibrations on caused by electromagnetic fields, obliging the basis of a standardised eight-hour employers to carry out a risk assessment reference period. It obliges employers to of electromagnetic fields at the workplace assess and measure levels of exposure and to eliminate or reduce to a minimum to mechanical vibration. Following this, any risks found. There is also an obliga- action should be taken to reduce risks, or tion on employers to train and inform reduce exposure if this is found to exceed workers adequately about possible risks limits. Workers exposed to risks from and to carry out health surveillance. The vibration at work should be informed and occupations affected by electromagnetic trained appropriately. fields include power line repairers, weld- ers, workers who use radar and healthcare Noise: directive 2003/10/EC seeks to pro- professionals using magnetic resonance tect workers from risks to their health and imaging machines. safety arising or likely to arise from exposure to noise (for example in the case of Explosive atmospheres: directive 1999/92/ those working in mining, quarrying, con- EC obliges employers to carry out a risk struction and transport) and in particular assessment on the likelihood that explo- the risk to hearing. It obliges employers to sive atmospheres will occur in the work- assess and if necessary measure the lev- place (for example if there is coal dust or els of exposure to noise to which workers other types of dust in the air that could are exposed. The employer must then seek be ignited by an electrical short-circuit) to eliminate or minimise these risks, by and the scale of the likely effects of this. means such as using working methods or The directive obliges the employer to equipment that require less exposure to take measures to prevent the formation noise, providing instructions on the correct of explosive atmospheres or avoid the use of equipment, technical measures ignition of explosive atmospheres, and (shields or noise-absorbing coverings) or reduce the effects of an explosion so that organisational measures in order to reduce the health of workers is not at risk. The duration and intensity of exposure. If the employer must also inform workers and risk cannot be eliminated, the employer offer training. must provide hearing protectors.

Mechanical vibration: directive 2002/44/ Artificial optical radiation: directive EC aims to provide timely detection of 2006/25/EC sets out limit values for expo- adverse health effects arising or likely sures of workers to artificial optical radiation to arise from exposure to mechanical to eyes and skin, such as lasers, laser radia- vibration (for example in manufacturing, tion and non-coherent radiation. It does not, mining and construction) and in particular however, cover exposure to natural optical 60 I Labour law and working conditions

radiation (eg sunlight, moonlight or light from The employer should carry out risk assess- volcanic eruptions). Workers in metalworking, ments and if they reveal a risk to workers’ pharmaceuticals, glass manufacture, motor health or safety, employers must, if vehicle repair workers and health workers requested to do so, make appropriate may all be potentially at risk from artificial information available to the competent optical radiation. The Directive obliges authority. The directive also obliges employers to carry out a risk assessment on employers to ensure hygiene and individ- the level, wavelength range and duration of ual protection by prohibiting eating or exposure to artificial sources of optical radia- drinking in working areas, providing protection, special circumstances such as multiple tive clothing and appropriate toilet and sources, indirect effects (blinding, explosion, washing facilities, and maintaining protec- fire), particularly sensitive risk groups of tive equipment properly. Employers should workers and possible effects resulting from give workers appropriate training on work- workplace interactions between optical ing with biological agents and provide writ- radiation and photosensitising chemical sub- ten instructions and display notices of the stances. Employers should then eliminate or procedure to be followed in case of a seri- minimise these risks. ous accident or the handling of biological agents in group 4.

Biological agents directives The second relevant directive (2010/32/EU) provides workers with protection against There are two main directives that relate to sharp injuries in the hospital and biological agents. The first is a general healthcare sector, and gives legal force directive (2000/54/EC), which aims to pro- to an agreement reached by the EU-level tect workers from risks related to social partners in the healthcare sector. It exposure to biological agents at aims to prevent injuries to workers that are work. It classifies biological agents into caused by all medical sharps, including four groups according to their level of risk needlesticks and protect workers at risk of of infection (1). Employers should avoid using these injuries, so as to minimise the risk of a harmful biological agent by replacing it, exposure to blood-borne infections such if possible, with one that is not dangerous as HIV/AIDS. It also aims to encourage an or less dangerous to workers’ health. integrated approach to this issue, based on risk assessment, risk prevention, train- (1) Group 1 is unlikely to cause human disease; group 2 can cause human disease and ing, information, awareness raising and might be a hazard to workers but is unlikely monitoring. to spread and there is usually treatment available; group 3 can cause severe human disease and present a serious hazard to Employers must carry out a thorough risk workers and may spread, but there is usually treatment available; group 4 causes severe assessment when injury, blood or other human disease, is a serious hazard to workers, potentially infectious material is possible may have a high risk of spreading and there is usually no effective treatment available. or present, focusing on how to eliminate Labour law and working conditions I 61

these risks. This includes procedures such workplace. Workers should be informed as safe disposal, eliminating unnecessary about these emergency arrangements, in sharps use, providing safety-engineered addition to the results of risk assessments, medical devices, prohibition of recapping, and the presence of hazardous chemical coherent prevention policy, training and agents at the workplace. Employers should information, personal protective devices also provide appropriate training on deal- and offering vaccination. Workers should ing with hazardous chemical agents. report any accident; the accident should be investigated and the victim treated. Workers at risk from chemical agents must have access to health surveillance and must be informed by a doctor if they are Dangerous substances directives found to have a disease or adverse health effect associated with exposure at work to Workers in some occupations may be a hazardous chemical agent or a binding exposed to risk from substances that could biological limit value is found to have been harm their health. There are therefore exceeded. Four directives implement this a number of directives that provide protec- directive by laying down indicative occu- tion from potentially harmful substances pational exposure limit values: directive such as chemical agents, carcinogens, 91/322/EEC establishes values for a refer- mutagens and asbestos. ence period of eight hours for 10 chemical substances; directive 2000/39/EC estab- Chemical agents: directive 98/24/EC lishes values for a reference period of eight provides for the drawing up of indicative hours time-weighted average and also for and binding occupational exposure a short-term period of 15 minutes for limit values and biological limit val- 61 chemical agents; directive 2006/15/EC ues, which must then be established at adds 33 chemical agents to the list; and national level. The employer is obliged to directive 2009/161/EU a further 19 chemi- determine whether hazardous chemical cal agents to the list. agents (for example toluene, which is used in making paints, paint thinners, fingernail Carcinogens or mutagens: Directive polish, lacquers, adhesives, and rubber and 2004/37/EC provides protection for in some printing and leather tanning pro- workers against exposure to car- cesses) are present at the workplace, and cinogens or mutagens at work. assess their risk to safety and health. If Employers are obliged to assess and man- there is a risk, the employer should try to age risks of exposure to these agents (for eliminate or minimise it, preferably by sub- instance asbestos, although also covered stitution. The employer should also draw by a separate directive – see below – and up action plans to be implemented in the the industrial solvent benzene) eliminating event of emergencies related to the pres- or reducing the risk to a minimum, ideally ence of hazardous chemical agents at the by substitution. Other ways of reducing the 62 I Labour law and working conditions

risk include keeping the number of workers dust must notified by the employer to the exposed as low as possible, designing work responsible national authority. Employers processes to minimise the substance must ensure that exposure to asbestos is release, and using individual protection reduced to a minimum, including: minimis- measures if collective measures are not ing the number of persons exposed, prior- sufficient. Employers must also prohibit itising dust-free work processes, cleaning eating, drinking and smoking in contamina- buildings and ensuring that materials are tion risk areas, provide appropriate protec- properly stored, transported and labelled. tive clothing and separate storage places for work clothes and normal clothes, and The directive sets a single maximum limit appropriate and adequate washing facili- value for airborne concentration of asbes- ties. Employers must offer appropriate tos; if this is exceeded, the employer must training to workers, and inform them and/ identify the reasons and take measures to or their representatives about objects con- remedy the situation. Work may not taining carcinogens or mutagens (and label them clearly) and on abnormal exposures as quickly as possible.

Asbestos was for a long time used for fireproofing and insulation in commercial buildings and homes. Although its use is now banned, it can still be found in older buildings: workers can be exposed during renovation or demolition work. Exposure to asbestos poses one of the most severe long-term threats to workers’ health, caus- ing asbestos-related lung cancer, meso- thelioma (a cancer of the lining of the lungs) and asbestosis (scarring of the lungs), and directive 2009/148/EC contains provisions that aim to offer protection. It applies to activities in which workers are or may be exposed to dust from asbestos or materials containing asbestos. If this is likely, the employer must carry out a risk assessment and activities that involve exposure to asbestos © BelgaImage Labour law and working conditions I 63

continue before measures are taken. If objectives in the health and safety field, limit values cannot be kept by technical and raising public awareness of the impor- measures, following consultation with tance of health and safety at work. It also workers, the employer should ensure pro- saw a significant fall in the rate of acci- tection, such as providing personal protec- dents at work: between 2000 and 2004, tive equipment, putting up warning signs the rate of fatal accidents at work in the and preventing the spread of asbes- EU fell by 17 % and the rate of workplace tos dust. accidents resulting in absences of more than three days fell by 20 %. Employers are obliged to provide appropriate training for workers on topics related The 2007-2012 strategy aimed to build to working with asbestos and inform work- on this progress, centring on the goal of ers on all aspects of working with asbes- reducing the total incidence rate of acci- tos. Employers must also ensure that dents at work by 25 % per 100 000 workers workers’ health is assessed, including in the EU27 by 2012, by means such as a chest examination, prior to exposure to improving health and safety protection. The asbestos, and subsequently at least once strategy hoped to achieve this by encourag- every three years during exposure. ing the following activities: guaranteeing proper implementation of EU legislation; supporting SMEs in implementing legisla- OSH strategies tion; adapting legislation to changes in the workplace and simplifying it where pos- EU policy on occupational safety and sible, particularly with reference to SMEs; health is contained in its Community strat- promoting national strategies; encouraging egies on health and safety at work. The changes in the behaviour of workers and two most recent strategies cover 2002- employers; developing methods for iden- 2006 and 2007-2012. tifying and evaluating new risks; improving progress tracking; and promoting health and The 2002-2006 strategy was based on safety at international level. It called upon an overall approach to wellbeing at work relevant parties at all levels, such as Euro- which took account of changes in the work- pean, national, local and workplace level, to place and the emergence of new risks, in help with implementation. particular those of a psychosocial nature. The formal evaluation of this strategy The strategy also identified a number of noted that it had been successful in re- ongoing challenges to health and safety. launching prevention policies at national These included the fact that, according level, promoting partnership to achieve to the fourth European survey of working 64 I Labour law and working conditions

conditions, published in 2007, almost 28 % the positive effect of having a quantitative of workers in Europe said that they suf- target of a 25 % reduction in the incidence fer from non-accidental health problems of accidents at work, which helped to which are or may be caused or exacer- increase the visibility given to the OSH bated by their current or previous work. policy area. Further, the existence of the Further, 35 % of workers felt that their job quantitative target helped EU countries put their health at risk in some way. with a high incidence of accidents at work to focus more clearly on reduction meas- The strategy also identified a number of ures. However, the downside was that this remaining challenges, such as the fact that target – focused on accidents – may have some categories of workers are still over- diverted attention from the prevention of exposed to risk – in particular young work- occupational diseases. ers, those in insecure employment, older workers and migrant workers. SMEs have Although the economic climate has been fewer resources to put into place complex difficult since the strategy was put into worker protection systems, and certain place, the evaluation shows that it has sectors carry higher occupational risk, such been effective. Action has been taken as construction, civil engineering, agricul- under all areas listed above, and results ture, fishing, transport, health care and have been achieved, particularly in devel- social services. In addition, it stated that oping national strategies and fostering challenges such as the ageing population, a preventive culture. Nevertheless, the an increase in self-employment, outsourc- evaluation has also found that more ing, increasing levels of employment in improvement is needed at the level of SMEs and an increase in flows of migrants individual companies, in particular into Europe, will need to be met in order to among SMEs. protect the health and safety of workers in Europe. In terms of impact, because of a lack of recent data across the EU, it was not The Commission’s evaluation of the possible to establish with any accuracy 2007-2012 strategy was published in whether the strategy’s goal of achiev- May 2013, noting that it had been highly ing a 25 % reduction in the incidence relevant for the EU, its goals had been rate of occupational accidents had been achieved and there was evidence of sig- achieved. However, the evaluation states nificant EU value added. It also highlighted that it is likely that a significant reduction Labour law and working conditions I 65

has been achieved in this area and that Advisory bodies the goal may have been broadly reached. At the same time, available data sug- Three main EU-level advisory bodies are gests that the goal of reducing the inci- helping with the development, monitoring dence of work-related diseases has not and adaptation of workplace health and been achieved. safety policies. The first is the Advisory Committee on Safety and Health at Therefore, despite overall progress, a num- Work (ACSH), a tripartite body that was ber of challenges remain for the future. formed in 2003 out of a merger of two Firstly, there is concern that the incidence previous health and safety bodies (2). Its of occupational diseases has not main task is to help the European Com- decreased. Further, new possible risks mission to prepare, implement and evalu- to health and safety keep emerging, such ate activities in the field of safety and as nano-materials and electromagnetic health at work. In particular, it gives opin- field hazards. ions on EU OSH initiatives, including new legislation, helps identify EU priorities and More broadly, the ageing of the EU’s work- establish policy strategies, and acts as an force will mean that there will be an increas- interface between the national and EU ing need to retain workers and therefore level in terms of facilitating the exchange a greater need for a focus on health and of views and experience. It is made up of safety and a safe working environment. It one representative from each of govern- is also clear that the implementation of the ment, trade unions and employers from legal framework on health and safety in each EU Member State and currently has SMEs and microenterprises remains 84 members. a major challenge, as these companies are faced with the same type of risk as larger The ACSH holds two plenary meetings employers, but often do not have the same a year, has three interest groups and is level and depth of expertise on OSH mat- chaired by a Commission representative. ters. Finally, the accuracy and comparability Its activities are coordinated by a bureau of statistical tools at both EU and national made up of two representatives from the levels in the area of monitoring occupa- Commission and the spokespersons and tional diseases remains a key challenge coordinators designated by the interest for future OSH strategy. groups. The bureau also prepares the

(2) The former Advisory Committee on Safety, Hygiene and Health Protection at Work (established in 1974) and the Mines Safety and Health Commission for safety and health in the coal mining and the other extractive industries (established in 1956). 66 I Labour law and working conditions

Committee’s annual work programme. The Commission (at its request or up its own Committee also currently has 12 working initiative) on all problems that are relevant parties, which deal with specific technical to the enforcement by the Member States issues and organise workshops and semi- of Community law on health and safety at nars on specific topics. work. SLIC’s main activities cover areas such as defining common principles of The second advisory body is the Scien- labour inspection in the field of health and tific Committee on Occupational safety at work and developing methods of Exposure Limit Values (SCOEL), which assessing national systems of inspection. was set up in 1995 in order to advise the It also aims to promote improved knowl- European Commission on occupational edge and mutual understanding of the exposure limits for chemicals in the work- different national systems and practices place. Its main activity is to prepare scien- of labour inspection, and the methods and tific recommendations for the Commission, legal frameworks for action. which are used to underpin regulatory proposals on occupational Exposure Limit Further activities of the Senior Labour Values (OELVs) for chemicals in the work- Inspectors’ Committee include developing place. The Committee comprises up to exchanges of information between national 21 members from the EU Member States, labour inspection services and promoting who are independent experts in the fields a labour inspector exchange programme of chemistry, toxicology, epidemiology, between national governments. It also sets occupational medicine and indus- out to develop a system of rapid informa- trial hygiene. tion exchange between labour inspectorates, establish active cooperation with The third EU-level advisory body is the labour inspectorates in countries outside the Senior Labour Inspectors’ Commit- EU, and study the possible impact of other tee (SLIC), which has been in existence Community policies on labour inspection since 1982, when it met informally in order activities in health and safety. The Commit- to assist the European Commission in tee meets every six months and is made up monitoring the enforcement of EU legisla- of the Commission and one representative tion at national level. In 1995 SLIC was of the labour inspection services of each mandated to submit opinions to the EU country. Labour law and working conditions I 67

Box 4.1 Key health and safety rights

European directives give European Workers on fixed-term and temporary workers a wide range of rights in contracts have a right to the same the area of health and safety. In the health and safety protection as other workplace, employees have the right workers. Pregnant workers enjoy a range to work in surroundings that are safe of enhanced health and safety rights, and hygienic, based on employer mainly related to protection against risk assessments, and to work with exposure to dangerous substances equipment that is safe, regularly or harmful processes, and cannot be maintained and checked. obliged to work at night. Workers also have a right to be supplied Finally, workers have the right to be with personal protective equipment protected against a wide range of when a risk cannot be avoided or agents and substances that could sufficiently limited, and for their be harmful. These include physical employer to minimise risks relating to the agents such as electromagnetic fields, manual handling of loads, particularly explosive atmospheres, mechanical where there is a risk of back injury. They vibration, noise and artificial optical have a right to information and training radiation, biological agents, sharp that is relevant to aspects of their injuries, chemical agents, carcinogens, health and safety at work. Workers are mutagens and asbestos. Workers who entitled to health surveillance in certain are at risk of exposure to asbestos situations, such as those working with have the right to regular chest visual display screens. examinations. 68 I Labour law and working conditions

Contribution from EU-OSHA Christa Sedlatschek, Director of the European Agency for Safety and Health at Work

Currently, two of the most topical and chal- lenging issues in relation to occupational safety and health in Europe are the ageing workforce and work-related stress.

Work-related stress, depression and anxi- ety represent the second most frequently reported health problem by workers in Europe, after musculoskeletal disorders. Effectively managing work-related stress is not only a legal obligation for employers, but essential if they are to be economically successful and retain and motivate a healthy workforce. © European Union

EU-OSHA will launch its Healthy Work- Does the 21th century bring new major places Campaign on ‘Managing Stress’ in risks to workplace health and safety? Or April 2014. The campaign will raise aware- do we tend to underestimate some of the ness about the growing problem with ‘old risks’? stress and psychosocial risks and about the positive effects of reducing them. It The short answer to this question is that will promote the use and development of we have to be mindful of both: there cer- simple practical tools for reducing and tainly are new risks about which we do not managing stress and psychosocial risks at have enough information. An example of work, in particular for micro and small these would be the risks associated with enterprises. Our central message is that nanoparticles. And there are emerging stress and psychosocial risks, while chal- risks, those more traditional risks which we lenging, can be successfully managed just know quite a lot about but which are per- like other occupational safety and sistent or on the rise. Here, we could men- health risk. tion musculoskeletal disorders or illnesses due to exposure to chemicals. All of these Regarding ageing, it is certainly true that are an important focus for our work. we are living longer, but in Europe more Labour law and working conditions I 69

than half of older workers (aged 55–64) true for SMEs because they can least currently leave work before retirement age, afford the costs associated with health- for a variety of reasons (3). Is this trend likely related poor performance, illness, absen- to continue? We need to ensure that it does teeism or accidents. Our own ESENER not: better and longer working lives are study shows that they typically have lower essential in order to finance and support awareness and lack expertise and have the ageing European population. fewer resources to dedicate to health and safety. They are particularly vulnerable. In 2012 the European Parliament set up a pilot project on the health and safety at It is clear therefore that small and micro work of older workers that the European enterprises need support in ensuring that Commission delegated to EU-OSHA. The they meet the requirements. We take that project will examine occupational safety very seriously - that’s why these small and and health in the context of an ageing micro enterprises are a central focus for workforce, with the aim of informing policy our work and our main target. development and providing examples of good strategies and practices for helping Our online interactive risk assessment tool older workers stay healthy. European (OiRA) is developed specifically for small employers need to be encouraged and businesses. OiRA is a free online software supported to adopt smart policies aimed tool that gives micro and small businesses at keeping older workers in employment the means to carry out workplace risk right up their retirement. assessments and efficiently manage risks in a straightforward and cost-effective way. How can the EU and national govern- The project is rolling out across several ments help small companies to know Member States with the support of the what exactly they need to do to comply Social Partners. Our aim is to demystify the with workplace health and safety rules? whole risk assessment process and in doing Can we do something better? so demonstrate to SMEs what the evidence clearly shows: health and safety is a key Small, medium and micro enterprises are dimension of good management and it con- the bedrock of the European economy. At tributes to long-term business success and EU-OSHA, we know that when it comes to to European competitiveness. health and safety, a level playing field is essential and that is why European legisla- For more information about EU-OSHA, visit tion is very important. And it is particularly https://osha.europa.eu

(3) Ilmarinen, J. (2012) Promoting active ageing in the workplace. Available online at: https://osha. europa.eu/en/publications/articles/promoting- active-ageing-in-the-workplace (accessed 17 September 2013). CHAPTER 5

The international dimension

The interplay between the EU, its Mem- Box 5.1 A level playing field across the ber States and international social and global economy employment law and policy takes a number of forms. These range from accession The globalised economy requires both and international conventions to formal a level playing field and a shared and informal relationships with global approach to common challenges. institutions. At the very highest level this Social development is part of interplay includes relationships with gov- sustainable development and needs ernments of countries outside the EU and to be underpinned by rights at work, action in international organisations. including health and safety standards.

On a global level the EU plays a key role in International labour standards coherent encouraging the uptake of its values beyond with European ones are important both its borders and working with international economically and socially. They aim institutions to share best practices and at creating decent work conditions for engage in mutual learning on employment all so that prosperity is fairly shared and social policies. It is a major trading force and a race to the bottom on social but also a union based on values such as and labour standards is avoided. respect for human rights, and therefore it The mutual sharing of experience seeks to ensure that globalisation of the and best practices between the EU economy benefits all workers and citizens and its partners plays an important role and that economic development is socially in this respect. and environmentally sustainable. To this end, the EU promotes international labour standards and the Decent Work Agenda in poverty alleviation or on health and international forums and in its relations with safety at work. Dialogue also takes place partner countries and regions, and shares on an ad hoc basis with other important expertise or provides specific support to global partners such as Canada and them on many aspects of employment and within international organisations, such working conditions. as the United Nations.

The EU notably cooperates with the The external dimension of EU employment United States, China, Japan, India, Brazil, and social policy is being created in a number Chile, and South Africa , in policy dialogue of ways and on multiple levels of intensity. and exchange of good practices – e.g. on For example, countries seeking to join the green jobs, skills and qualifications, social European Union have to transpose the EU protection, labour relations, inclusion and acquis into their own national legal system, 72 I Labour law and working conditions

including in the field of employment, social Bilateral agreements, notably recently nego- affairs and inclusion, by the time of acces- tiated trade agreements, also contain spe- sion. The EU helps them in this process cific chapters on trade and sustainable through policy dialogue and funding. The EU development with provisions on ratification also encourages them to develop employ- and effective implementation of interna- ment and social policy reforms to promote tional core labour standards and on the pro- an inclusive and efficient labour market. motion of the ratification and application of Under the European Neighbourhood Policy, other up to date ILO conventions, as well as the EU works with the partners to develop monitoring mechanism involving social part- democratic, socially equitable and inclusive ners and other civil society representatives. societies, and offers its neighbours economic These agreements promote high levels of integration, improved circulation of people labour protection, Corporate Social Respon- across borders, financial assistance and tech- sibility and cooperation in a number of areas nical cooperation toward approximation with related to trade and labour. This is particularly EU standards (e.g. equal opportunities, important as supply chains increasingly access to social services for all citizens, become global, i.e. products and services observing healthy and safe working condi- include components from increasingly many tions etc.). countries.

Box 5.2 The EU’s active involvement with international organisations and other regional bodies

Beyond bilateral relations with its Member States that are strongly main trading and political partners, affected by the financial, economic the EU also works with the ILO, the and social crisis. Council of Europe, the Organisation The EU also cooperates on employment for Economic Cooperation and and social issues with a number of Development, the United Nations as regional entities such as the Community well as other forums. Consistency of Latin American and Caribbean States between economic and social policies (CELAC) with whom it has a constant is important and the EU is actively dialogue on social cohesion, or through involved in joint meetings with the the Asia-Europe Meeting (ASEM), with International Monetary Fund and the Asian countries very much interested in ILO (the “Oslo process”), and in the the EU’s experience in areas including G-20. The ILO regional meeting for social dialogue and health and safety Europe agreed in April 2013 in Oslo at work. to strengthen activities in those EU Labour law and working conditions I 73

International conventions inspire and inform Many aspects of the working conditions of EU social and employment law and policy seafarers are established by Directive on many levels: the Treaties themselves, 2009/13, which implements an agreement legislation, the 1989 Community Charter of reached between EU sectoral social part- the Fundamental Social Rights of Workers, ners and reflects the provisions of ILO the EU Charter of Fundamental Rights and Maritime Labour Convention of 2006. the case law of the Court of Justice of the Directive 97/81 implementing the Euro- European Union. The instruments most pean social partners’ Framework Agree- commonly referred to as a source of social ment on Part-time Work was influenced by and employment rights are the European ILO Convention No 175 (1988) on Part- Social Charter and numerous Conventions time Work. Both the Race Equality Directive of the International Labour Organization and the Employment Equality Directive (see also Chapter 1). refer, in their respective preambles, to a number of international conventions. The Union is required to have in mind fundamental social rights, such as those set Box 5.3 Interpretation of international out in the Council of Europe’s European conventions Social Charter 1961 and the revised Charter of 1996, when formulating and implement- The Court of Justice of the European ing its social policy. The Community Charter Union regularly uses international of the Fundamental Social Rights of Work- conventions while interpreting ers, 1989, has taken source in the European and applying EU law. In Defrenne Social Charter while many of the provisions v Sabena the Court referred to of the more recent Charter of Fundamental Article 2 of ILO Convention No 100 Rights of the European Union, accorded (1951) on equal pay in concluding that Treaty status by the Treaty of Lisbon, cor- Article 119 EC, now Article 157 TFEU, respond to provisions of the European Con- should be interpreted in the light of vention on Human Rights. The equal pay that provision to include the principle provisions of the original EEC Treaty echo of equal pay for work of equal value. those of Convention No 100 of the Interna- tional Labour Organisation. In Commission v United Kingdom the Court interpreted the concepts of On the legislative front, Directive 94/33 on ‘health’ and ‘safety’ in Article 118a EC, the protection of young people at work, now Article 153 TFEU, in the light of and Directive 2003/38 on the organisation the meaning given to those concepts of working time both state in their pream- in the preamble to the Constitution bles that account should be taken of the of the World Health Organization principles of the ILO regarding the protec- whose members comprise all the tion of young people at work and the Member States. organisation of working time. 74 I Labour law and working conditions

Relationships with discussions and negotiations at ILO meet- international organisations ings in Geneva, notably on the adoption of conventions, recommendations, resolutions The EU has long-standing, strategic rela- and other important texts. It notably con- tionships with certain international organi- tributed to the adoption of the 2008 ILO sations including the ILO and the Council Declaration on Social Justice for Fair Glo- of Europe, the OECD and the WHO. It has balisation, of the 2012 framework for also forged relations more recently with action on fundamental principles and rights other international organisations. at work and the 2013 framework for action on social dialogue. The ILO contributes to The objectives and the results of these internal and external EU issues such as the relationships are set out below. cooperation between the EU and other regions and both develop joint projects together in areas such as safety and health The EU and the ILO at work, migrant domestic workers, measur- ing decent work or the impact of trade on An exchange of letters in 1958 began what employment. has become an ever closer relationship with the International Labour Organisation Cooperation on a regional and country (ILO). This exchange of letters is periodi- level, under the strategic partnership, con- cally renewed, the most recent being in sists of programmes and projects aimed 2001 and high level meetings set annual at promoting core labour standards, cor- priorities for cooperation. porate social responsibility, social dialogue, poverty reduction and employment, migra- 185 countries are member of the ILO tion and development. Gender equality which has a unique, tripartite structure that issues are to be addressed in all the areas brings together workers, employers and in which the partnership is active. governments. Each member country is rep- resented by two government, one employer and one worker representatives. Estab- The Decent Work Agenda lished in 1919, it is the oldest United Nations’ Specialised Agency and it is man- The EU works with the ILO to promote dated to promote social justice. It devel- decent work for all both internally and in its ops, promotes and supervises labour external relations. The Decent Work Agenda standards and provides technical assis- is based on an integrated approach covering tance to its members. productive and freely chosen employment, full respect for rights at work including core The co-operation between the ILO and the labour standards, social dialogue and social EU is growing stronger both within and out- protection which encompasses health and side the EU. The EU actively participates in safety at work. Anti-discrimination and Labour law and working conditions I 75

Box 5.4 ILO and the European Union – a strategic partnership

In 2004 the ILO and the European Development Goals and the Decent Commission further strengthened their Work Agenda. links through the establishment of The EU played a key role in cooperating a strategic partnership in the field of closely with emerging economies, development cooperation. The purpose developing countries and social partners. of this partnership is to work together This is highlighted by its adoption of the towards the shared goal of reducing June 2008 ILO Declaration on Social poverty. This they set out to do by Justice for Fair Globalisation and of the strengthening the social dimension of Global Jobs Pact in 2009. The later was development cooperation through the adopted unanimously at the ILO Summit achievement of the UN’s Millennium on the Global Jobs Crisis of June 2009. gender equality are cross-cutting issues. yy The Chemicals Convention n°170 The EU encourages and supports the world- yy The Domestic Workers Convention n°189 wide ratification and implementation of the ILO fundamental Conventions. By 1 January 2014, 20 EU Member States had ratified the Maritime Labour Conven- The EU itself cannot ratify any ILO Conven- tion. This has contributed, to a significant tion because only States can be a party to extent, to attaining the threshold of 30 such conventions. On the other hand, ratifications needed to bring the Conven- Member States need the green light of the tion into force. EU to ratify ILO Conventions, where parts of these Conventions fall within EU The EU sectoral social partners also con- competence. cluded an agreement on the Maritime Labour Convention, which was implemented The ratification of ILO Conventions by EU as Council Directive 2009/13/EC. The Direc- countries sends an important signal as to tive goes beyond the standards laid down the coherence of the Union’s policy in in the Convention by including more favour- improving labour standards worldwide. able conditions in areas such as health and Over the past decade the Council has safety at work. The enforcement of the authorised member countries to ratify five Convention within the EU is also secured ILO Conventions, parts of which fell within through further EU legislation on flag State EU competence: and port State control, adopted in 2013, to yy The Seafarers’ Identity Documents Con- ensure that the Convention’s provisions are vention No 185 applied and enforced on board all ships call- yy The Maritime Labour Convention, 2006 ing at EU ports, regardless of the nationality yy The Work in Fishing Convention n°188 of the seafarers. 76 I Labour law and working conditions

The social partners have recently reached and other workers as regards compensation an agreement on the transposition into EU and benefits, for example maternity bene- law of the Work in Fishing Convention, 188. fits. The Convention also introduces the They have asked the Commission for an obligation to inform workers of the terms implementation of their agreement by and conditions of their employment. Further directive. The Commission is currently provisions require that domestic workers are assessing this request. protected against discrimination, are offered decent living conditions and have In November 2012 the Commission pub- access to complaint mechanisms. lished a proposal for a Council Decision, adopted by the Council in January 2014, authorising the Member States to ratify ILO The EU and the Council Convention No, 170 concerning Safety in of Europe the use of Chemicals at Work. The purpose of this Convention is to reduce incidents of The Council of Europe is an intergovernmen- chemically induced illnesses and injuries at tal organisation. Founded in 1949, it seeks work, but its effect will be felt beyond the to ensure that fundamental values such as workplace as compliance with its provisions human rights, democracy and the rule of will enhance the protection of the general law are respected throughout Europe. The public and the environment. Council of Europe has 47 member countries and represents 800 million people, thus In March 2013 the European Commission covering almost the entire European conti- presented a proposal for a Council Deci- nent. All 28 EU countries are members. sion, adopted by the Council in January 2014, authorising EU countries to ratify the As with the ILO, the framework for the Convention concerning decent work for relationship between the EU and the Coun- domestic workers (Convention No 189 cil of Europe has been defined by means of 2011), which entered into force in Sep- of several exchanges of letters and is regu- tember 2013. The provisions of the con- larly discussed in high-level meetings. vention are intended to help to curb the abuse and exploitation of people perform- Since 1993, the Council of Europe and the ing work in or for a household within an EU have developed Joint Programmes in employment relationship. pursuit of common aims with regard to the protection of fundamental rights, funda- ILO Member States ratifying the Convention mental freedoms and the rule of law in are required to take measures to ensure fair Europe. The European Commission and the and decent working conditions and to pre- European Committee of Social Rights, the vent abuse, violence and child labour in supervisory system of the European Social domestic employment. They must ensure Charter, have intensified their dialogue on equal treatment between domestic workers social and economic rights. Labour law and working conditions I 77

Box 5.5 Swift response to work place disasters and decent work deficits beyond the EU

In July 2013, in the wake of the the amendment of the Bangladeshi Rana Plaza factory collapse in which labour law in July 2013 and its entry more than a 1 000 workers died, the into force by the end of the year; the EU, the government of Bangladesh recruitment of 200 additional factory and the ILO accompanied by trade inspectors by the end of 2013, and the unions, employers’ organisations and inspection of building and fire safety other relevant stakeholders launched in factories by 2014. In addition, to a “sustainability compact”. This set out date 150 major EU brands and buyers time-bound commitments to improve of ready-made garment signed up to labour rights, working conditions, the “accord on factory and building factory safety and to promote safety” with international trade unions responsible business conduct in the (www.bangladeshaccord.org). This is garment industry in Bangladesh. The a concrete example of a comprehensive US associated itself with the initiative. and partnership approach involving all stakeholders to promote better working Amongst the concrete commitments conditions across global supply chains. to achieve these objectives were

The EU and the OECD Being a quasi-member of the OECD offers many benefits to the EU, and especially to The Organisation for European Economic EU countries which are not members of the Development (OECD) is an international OECD in their own right. Through its surveys organisation of developed countries sharing of community policies and of the eurozone, a system of democratic government and and its regular production of statistical market economy. The OECD has 31 member data and economic comparisons, the OECD countries of which 21 are Member States of provides the material required to analyse the EU. The Organisation regularly publishes and monitor the EU’s economic, employ- studies and statistics in various policy areas ment, social and environmental policies. notably on its Member States. Thus, the EU can draw on the OECD’s unique reservoir of expertise, including Through the additional Protocol n°1, peer reviews, and can access all of the annexed to the Convention of the Organi- research and analysis conducted by the sation for Economic Cooperation and Secretariat of the OECD. Development (1960), signatory countries decided that the European Union, through Cooperation between the Commission’s DG the European Commission, would take part Employment, Social Affairs and Inclusion in the work of the OECD. and the OECD is based on annual High 78 I Labour law and working conditions

Level Meetings and joint management ing Group on Sustainable Development projects on different topics of mutual inter- Goals, including in particular employment est, like quality jobs, skills, tax and benefits, and decent work for all, social protection, social protection and international migra- youth, sustained and inclusive economic tion. DG Employment represents the EU at growth and promoting equality, including the OECD’s Employment, Labour Market social equity. and Social Affairs Committee.

The EU on the global stage The United Nations

Whilst the EU’s has traditionally worked with Trade agreements the ILO, the specialist UN agency, it has increasingly forged contacts with the UN The EU negotiates free trade agreements itself, in particular the Commission for Social with individual countries and regions which Development. In 2012 Commissioner Andor now systematically contain a Chapter on addressed the 50th Session of this UN body trade and sustainable development, i.e. on on ‘youth employment issues’. labour and aspects relating to the environment which are important for, or affected The EU is contributing to the ongoing by, trade relations. debate on the future Post-2015 Devel- opment Agenda.The EU is of the position These chapters include the commitment of that this framework should work towards the Parties to ratify and to effectively imple- sustainable development to eradicate ment the ILO fundamental conventions, as poverty in all its dimensions, including well as to promote the ratification and appli- ending extreme poverty in a single genera- cation of other more recent ILO conventions. tion, and to ensure sustainable prosperity The Parties also commit to strive towards and well-being of all people within plan- high levels of labour protection, to effectively etary boundaries and integrate the three enforce their domestic labour legislation and interrelated dimensions of sustainable to refrain from lowering labour standards in development, (economic, social and envi- order to attract trade or investment. The ronmental) in a balanced way to ensure trade and sustainable development chapters basic living standards, including decent also envisage an overseeing mechanism work and social protection floors for all (4). which – in addition to governments – involves Advocating for these objectives, the EU has social partners and other civil society repre- contributed to the work of the Open Work- sentatives. The chapters also envisage the promotion of Corporate Social Responsibility (4) The Overarching Post 2015 Agenda - Council and cooperation between the Parties in conclusions, 25 June 2013 a number of areas related to trade and http://www.consilium.europa.eu/uedocs/cms_ Data/docs/pressdata/EN/foraff/137606.pdf labour, including the Decent Work Agenda. Labour law and working conditions I 79

Box 5.6 A milestone in EU-UN relations

On 23 December 2010 the EU ratified world of work and beyond, to civil society the United Nations Convention on the is not unlimited: it is subject to the Rights of Persons with Disabilities principle of proportionality. Alterations (CRPD). This was an historic moment as and adaptations are required to be it was the first time that the EU became made only where it is reasonable to a party to an international human rights make them. The CRPD has had a major convention. influence on the content of the European Disability Strategy 2010-2020, which The Convention requires parties to take effectively implements the Convention in all appropriate steps to ensure that the EU and brings consistency between ‘reasonable accommodation’ is provided it and EU disability policy. with respect to the right to liberty and security of the person, the right to The EU and the World Health education and the right to work and Organisation (WHO) employment. The definition of ‘reasonable The WHO regards the EU as an accommodation’ is stronger and wider important partner both in Europe and than that currently used in EU law. beyond. Geographically, more than ‘Accommodation’ means requiring the half of the WHO’s European Region’s necessary and appropriate modifications Member States belong to the EU or are and adjustments to the workplace and actively seeking to join it. The EU has the built environment to be made for a strong voice on health matters both the purpose of ensuring persons with within its borders and on a global level. disabilities the enjoyment or exercise on In March 2010, for example, the Council an equal basis with others of all human adopted a position on the role of the EU rights and fundamental freedoms. in global health to make its contribution more effective, particularly in working Whilst the obligation of towards Millennium Development ‘accommodation’ will generally be Goals. The WHO’s Representation to the applicable to the physical environment, European Union works closely with the the CJEU has recently held that, in the European Commission, the Council, the context of the Framework Employment European Parliament and a number of Directive, it can be extended to the EU agencies working in the health area adaption of working hours to enable such as the European Medicines Agency a disabled person to take up and (EMA), The European Centre for Disease maintain employment. The obligation to Prevention and Control (ECDC) and the accommodate the disabled to ensure European Agency of Health and safety their equal participation both in the at Work (EU-OSHA). 80 I Labour law and working conditions

Agreements containing such provisions have China been concluded with countries such as Republic of Korea, Columbia and Peru, and The EU has strong relations with China, Central America and initialled with Singapore, a country of some 1.3 billion inhabitants Georgia and the Republic of Moldova (5). Many and a major force in the global economy. more of these ‘new generation’ trade agree- On the employment and social front, both ments are being negotiated, notably with face a number of common challenges, for India, Canada, the US, Mercosur, Malaysia, example population ageing and the need Vietnam, Thailand, Japan and Morocco. for adequate and sustainable support of older people. The EU also promotes core labour standards through trade by means of the Gen- Both China and the EU have put in place eralised System of Preferences (GSP) strategies to support the reintegration into which is a unilateral instrument whereby the labour market of vulnerable groups. the EU grants trade preferences in order to Both share a common interest in up-skill- facilitate access to the EU market for prod- ing the workforce as a means to productiv- ucts originating in developing countries. ity growth and sustainable economic Respect for international core labour development. In the long term, China and standards is taken into consideration by the EU both face challenges linked to cli- the EU when granting preferences under mate change. The movement towards GSP+ arrangement for sustainable devel- a low carbon economy is expected to opment and good governance. GSP+ ena- transform jobs and skills demand. The eco- bles the EU to grant additional preferences nomic potential of improvements in to developing countries which are vulner- resource-efficiency is significant but the able and which have ratified and are effec- shortage of ‘green talent’ is a common tively implementing international core problem that needs to be addressed. labour standards and other international conventions in the area of human rights, The European Commission services have environment and good governance. signed a number of Memoranda of Understanding (MoU) in the field of employment and social affairs with the Bilateral cooperation Chinese government, establishing regular dialogues regarding employment policies, Increasingly, the EU is establishing bilateral occupational safety and health or social relations with regions or countries. The EU security. MoUs have notably been signed closely involves EU social partners in this with the Chinese Ministry of Human outreach. Here is a rundown on some of Resources and Social Security (2005), the the key players. Chinese Academy of Social Sciences (2008) and the Chinese State Administration for (5) Negotiations have also been concluded with Ukraine and Armenia. Work Safety (2009), providing for the Labour law and working conditions I 81

organisation of annual meetings between Japanese demographic situation, and the EU representatives and experts and Chinese wide range of public policies put in place in authorities to exchange good practices and response, is instructive for Europe. learn from each other’s experiences.

India Japan A Memorandum of Understanding signed in The European Commission has, since 1991, 2006 set up the EU-India dialogue and coop- established regular dialogue with Japan on eration on employment and social policy. employment and social policies. More than Until end of 2013 six joint seminars have a dozen formal meetings (or Symposia) been held in which both sides exchange have taken place between the EU and experience and good practices. Participants Japan to discuss concerns of mutual inter- included officials, social partners, NGOs, aca- est, such as employability, adaptability and demia and external experts form the EU and improvements in labour market functioning India as well as ILO and OECD. The most as well as policy responses to demographic recent seminar was held in Brussels in June challenges and the related issues of gender 2013. The subjects of the seminars covered: equality, work/life balance and active age- skills development, training and employment; ing. The diversity of EU experience, and social security and social protection, labour a range of best practices to draw upon, relations and resolution of conflict; skills and makes the EU an interesting interlocutor for employment policy in the context of recovery Japanese policy makers. In turn, the from the global jobs crisis; occupational © BelgaImage 82 I Labour law and working conditions

health and safety. The seminars were always externalisation of EU employment and held in a tripartite format. They were also social policy and exchanges of mutual accompanied by tripartite programmes (vis- learning and best practices. its of workers’, employers’ and government representatives from India to Europe and vice versa). EU involvement in the Asia-Europe meeting

Brazil The EU is one of the most important trading partners for Asian countries. In 2012 Social cohesion and employment are also Asian partners accounted for 29.8 % of EU important areas of the EU-Brazil Joint imports and 21.4 % of exports. Four Asian Action Plan 2012-2014. countries are amongst the EU’s top ten trading partners. China 12.5 % takes the In April 2008, the European Commission top spot, followed by Japan (3.4 %), India signed a Memorandum of Understanding (2.2 %) and South Korea (2.2 %). Singapore with the Brazilian Ministry of Social Devel- follows closely (1.5 %). The EU is also opment and Fight against Hunger and a major investor in Asia and is currently Ministry for Social Security. On this basis, finalising its commitment to the region for the EU and Brazil have engaged in sharing the 2014-2020 period. This will see a con- knowledge of legislation, policies and pro- tinuation of the EU’s engagement with grammes in the social sector, exchanging a particular focus on poverty eradication best practice in areas such as: human and through the Development Cooperation social development; poverty reduction; the Instrument. human right to adequate food; social inclusion; inclusive labour markets; extending The Asia-Europe Meeting (ASEM) has pro- social protection coverage; equal opportu- vided a forum for dialogue between Europe nities and corporate social responsibility. and Asia since 1996. Together the mem- In April 2013, an EU-Brazil employment bers represent around 58 % of the world’s dialogue focusing on health and safety at population, half of global GDP and more work (in the construction sector) took place than 60 % of international commerce. in Brussels, Luxembourg and Bilbao. Heads of government meet every two years to set the ASEM agenda. Each year between the summits, over 50 ministerial Multilateral and regional and officials’ meeting take place, main- relations taining dialogue in a wide range of matters including social values, employment and Increasingly, the EU is forming multilat- global governance. Outside the govern- eral relations either at regional or insti- ment-level meetings, ASEM brings together tutional level. This enables the effective lawmakers, businesses and civil society. Labour law and working conditions I 83

Over the last years, the employment and EU involvement with Latin social dimension have been very visible America and Caribbean countries within the Asia-Europe dialogue, highlighted by recent ASEM Summit conclu- The fight against poverty, inequality and sions which reflected key messages exclusion in order to reach or increase from labour ministers. The regular social cohesion is a key policy priority of Labour and Employment Ministers’ the strategic partnership between the EU Meeting (LEMC) provides a platform for and the Community of Latin American and dialogue and commitments in the areas Caribbean States (CELAC). of employment, decent work/labour standards, social protection and health In 2006, at the occasion of the 4th EU-Latin and safety at work. America/Caribbean Summit held in Vienna, the leaders of the two regions agreed to Ministers also review the progress of periodically organise a Forum on Social concrete ASEM employment and social Cohesion. This stimulates policy dialogue cooperation projects (such as symposia and cooperation between the EU, Latin or expert networking), for example in America and the Caribbean on equality, areas of social protection and health and eradication of poverty and social inclusion. safety at work. Each of these projects Now, the EU-CELAC Social Cohesion Forum has been hosted by one EU and one is a bi-regional event, which takes place Asian country, with support by the Euro- every two years in preparation of the EU- pean Commission. CELAC Summit. The most recent one took place in October 2012 in Argentina, focus- Regional dialogue within ASEM LEMC also ing on the coherence between economic helps to shape debates at global level, for growth, employment and social inclusion, example in the framework of the ILO. youth employment, social protection and green jobs. During the 4th ASEM Labour and Employ- ment Ministers’ Meeting in Hanoi in Octo- ber 2012, ASEM partner countries agreed G20 on projects in five areas: Social Protection, co-led by India and the Netherlands; Youth The EU has played a leading role in bring- Employment (China/Poland); Health and ing employment and social policies issues Safety at Work (Malaysia, Korea/France); to the heart of the G20. Since April 2010, Skills Policies (Philippines/Finland) and G20 Labour and Economic Ministers have Social Dialogue on working conditions – met every year. Despite the wide diversity (Indonesia/Belgium). of challenges across the G20 countries, 84 I Labour law and working conditions

(developed countries being concerned pri- labour standards, environment protection marily with job creation and employment and good governance. whilst emerging economies have focused on reducing the size of the informal labour The Commission promotes CSR through market), consensus was reached on com- its external policies and endeavours to mon priorities. disseminate internationally recognised CSR guidelines and principles more The European Commission has contributed widely. It does this though its trade and to the G20 agenda with policies such as development agreements but also pro- the Employment Package and the Youth poses to address CSR issues in estab- Guarantee. lished dialogues with partner countries and regions. The EU also encourages its social partners to develop the social and employment The renewed EU Strategy 2011-2014 for dimension of the G20 by exchanging best Corporate Social Responsibility (CSR) pro- practices on priorities such as promoting motes respect for internationally recognised quality jobs for youth by boosting eco- principles and guidelines on CSR, requiring nomic demand and developing apprentice- EU enterprises to renew their efforts in ship schemes or developing safer respect of these. The Commission intends workplaces. to monitor the commitment made by Euro- pean enterprises with more than 1 000 Another key priority is better coherence employees, to incorporate internationally between macroeconomic, employment recognised CSR principles and guidelines. At and social policies. The first ever joint the same time it invites all European enter- meeting of G20 Finance and Labour Min- prises to make a commitment by 2014, to isters on 19 July 2013 in Moscow was an take account of one of the following sets of important step forward in this regard. principles and guidelines when developing their approach to CSR: the UN Global Com- pact, the OECD Guidelines for Multinational Aligning European and global Enterprises or the ISO 26 000 Guidance approaches to Corporate Social Standard on Social Responsibility. At the Responsibility same time the Commission invites all Euro- pean-based multinational enterprises to Internationally recognised Corporate Social make a commitment by 2014 to respect Responsibility (CSR) guidelines and princi- the ILO Tripartite Declaration of Principles ples cover issues related, among other Concerning Multinational Enterprises and things, to human rights, international core Social Policy. Labour law and working conditions I 85 © BelgaImage

The UN Guiding Principles on Business and necessity. Social security coordination is Human Rights cover three pillars: the duty a system of rules aimed at facilitating of the state to respect human rights; the such mobility. The EU has a system of corporate responsibility to respect human social security coordination dating from rights and the need for access to an effec- 1959. It ensures that people who exer- tive remedy. In 2013, the Commission cise their right of free movement do not published human rights guidance for three loose acquired social security rights, or industrial sectors, as well as guidance for rights in the process of being acquired. small and medium sized enterprises based It guarantees social security benefits on the UN Guiding Principles. can be exported beyond the national territory to wherever the claimant or his family is residing. It is a vital tool The external dimension of EU in achieving free movement. A 2010 social security coordination Regulation extends the co-ordination to third country (non-EU) nationals legally In a globalised economic environ- resident in the EU who move within the ment, labour mobility both within the EU. The family members and survivors EU and between the EU and the rest of such people are also covered if they of the world is a growing reality and are in the EU. 86 I Labour law and working conditions

Whilst the social security rights of EU web of bilateral agreements means for nationals moving within the EU are workers and businesses. coordinated, social security coordination with the rest of the world has hith- The Commission would like to see enhanced erto been organised in two ways: either cooperation between the Member States through association agreements, which and increasing transparency about the govern the co-ordination of social secu- agreements they have entered into. It has rity rules for workers and their families also invited the Member States to explore who move between an EU country and a possibility of EU social security agree- the associated country, or, in the case of ments, in particular with the EU’s strategic countries with which the EU has no asso- partners, with whom there are significant ciation agreement, bilateral agreements movements of labour. Given its long and between Member States and selected unique experience of social security coordi- non-EU countries. nation among Member States, the EU has also been contributing to evolving interna- This fragmented approach is somewhat tional discussions on cross-border social unsatisfactory as it leads to an incom- security matters, whose importance is rising plete network of agreements with vari- as transnational movement of workers and able content. The EU is presently their families grows with globalisation. developing a fresh approach to social security coordination with countries out- The ILO International Labour Conference side the Union, also known as ‘third coun- of 2011 called upon ILO Member States tries’. In March 2012, the Commission to consider concluding agreements to pro- adopted a Communication on the external vide equality of treatment for migrant dimension of EU social security coordina- workers, as well as access to social secu- tion. It recognises the Member States’ rity rights, and their preservation and/or competence in concluding bilateral agree- portability. Discussion on social protection ments on social security but it also high- norms and social security coordination with lights the challenges which a complex other regions of the world is growing. Labour law and working conditions I 87

Contribution from the ILO Guy Ryder, ILO Director-General

competitiveness while also entailing excessive costs to the public purse. This is particularly the case in countries that have been strongly hit by the crisis – Greece, Ireland, Portugal, Spain and a number of Baltic and Eastern European countries. But the challenge goes beyond these countries.

It is therefore crucial to reaffirm the relevance of decent work goals for the EU. Of course social protection and labour market institutions need to be effective © ILO Photo © ILO and reforms are needed in some countries. However such reforms should not mean Is the EU still a leader in promoting dismantlement but strengthen the Euro- decent work across emerging markets pean social model by facilitating its adap- and developing economies? Could it do tation to the new economic environment more for the rest of the world? and ensuring its long term sustainability. A recent ILO report on Portugal, well received Among all regions, the EU still enjoys the by government, employers and workers, most comprehensive institutions for labour provides a case in point. market policies and social protection. It is also a leader in terms of ratification of What changes in labour law and work- international labour standards. Historically, ing conditions in Europe do you expect these policies have served the region well to result from the on-going negotiations in terms of ensuring high living standards, of free trade agreements such as the fair distribution of the gains from economic Transatlantic Trade and Investment Part- growth and stable political systems. This is nership between the EU and the US? why other regions have long regarded the European approach to labour market and Past experience shows that gains expected social policies as a model. from trade agreements do not necessarily translate into improved working condi- However, in recent years, the European tions and higher incomes for the majority social model has been challenged on of people. They often lead to job gains the grounds it would hamper external in some sectors and job losses, as well 88 I Labour law and working conditions

as deteriorated working conditions, in Are EU labour law, workers’ rights and other sectors. Likewise, trade agreements quality of working conditions under may exacerbate income inequalities. It threat because of persistently growing is therefore crucial to devote particular differences between EU countries’ eco- attention to these issues in the context nomic situations? of EU-US negotiations, which are likely to affect job-rich service sectors. So the European Union Labour Law remains one size of employment effects are likely to of the most advanced in the world, with be much larger than in the case of North- more than 80 directives or legislative South agreements, which typically focus instruments covering movement of labour; on manufacturing and, to some extent, workers’ rights; equal opportunities for agricultural products. women and men; and health and safety.

It is therefore essential to put in place However the global economic and jobs policy measures that magnify the posi- crisis has led to a growing North-South tive impacts of trade agreements and divide across European Member States. reduce social costs. Well-designed labour Harsh austerity measures implemented in regulations and social protection as well as Southern Europe have in some countries skills training are of paramount importance led to a continued deterioration of workers’ in this respect. Social dialogue during the rights and working conditions. various phases of the agreement is crucial to help ensure agreements are beneficial The crisis has induced a large-scale dereg- to all concerned. ulation of labour law in Europe; reforms have rendered existing labour law provi- Both the US and the EU have a tradition sions more flexible and loosened mini- of including labour provisions in their bilat- mum standards. Greater flexibility has led eral and regional trade arrangements. The in most countries to an increased share Transatlantic Trade and Investment Part- of non-standard employment, higher job nership (TTIP) negotiations are an oppor- insecurity, and did not lead to an improve- tunity to set an example and enhance ment on the employment front. global coherence on the inclusion of labour considerations in international trade and Basic workers’ rights have been another investment relations. The ILO, which has victim of the crisis, including limitations on recently published a mapping of labour the right to strike in a number of countries. provisions in trade agreements, stands In addition the weakening or dismantling of ready to support that process. national and sector-level bargaining in the Labour law and working conditions I 89

majority of countries in Southern Europe In contrast, countries in Northern Europe has led to the rapid decline in collective have fared better, mainly through the use bargaining coverage. of social dialogue to negotiate short time working schemes as an alternative to lay- A large number of legislative changes offs. In some of these countries, social have been introduced with only limited partners continue to be consulted on social dialogue. labour market and pensions issues.

The result of these changes has been a A joint ILO/EC conference to be held in degradation of working conditions: rising Brussels on 27-28 February will address job insecurity, less choice for workers, wage these issues, precisely with a view to freezes and wage cuts. Increased layoffs strengthening social cohesion across have also led to greater work intensity and Europe and maintaining the overarching increasing stress and depression at work. principles of the European Social Model. CHAPTER 6

The way forward

The future of EU law and policy on employ- intense political negotiations on the ment, working conditions, and safety and issue of posting of workers, where the health at work will likely be shaped by two Council has found a common position main trends. Firstly, existing legislation and on the proposed enforcement directive policy instruments will continue being con- that aims to improve the way the appli- solidated and modernised to increase their cable rules under the original Posting of effectiveness whilst respecting the princi- Workers Directive are enforced in prac- ples of proportionality and subsidiarity. tice. After negotiations with the Euro- Secondly, more ‘soft’ law is likely to be pean Parliament are finalised and the used to respond to new challenges and to directive hopefully adopted, it is then further fairness and social progress in for the Member States to ensure good Europe before new ‘hard legislation’ is implementation of posting rules on the considered. ground. Another big endeavour is the currently on-going impact assessment The ‘soft law’ approach is exemplified by on the future of the Working Time Direc- country-specific recommendations issued tive, which is part of the Commission’s during the European Semester of policy Work Programme for 2014. coordination and quality framework measures where legislative initiative on a Mem- ber State level is more appropriate or Review of the Working Time a wider approach is preferable. Recent Directive examples include the Recommendation on the Youth Guarantee, the Quality Frame- In September 2009, President Barroso work on Traineeships and the Quality announced at the European Parliament that Framework for Anticipation of Change and the Commission would launch a new review Restructuring. All of these require serious of the Working Time Directive. The new follow-up at national level and are accom- review would be based on a two-stage con- panied by monitoring from the European sultation of the social partners at European Commission’s side and peer pressure from level and a detailed impact assessment other Member States. paying attention to both social and economic aspects. Previous efforts to amend However, speaking about ‘consolidation’ the Directive (2004-2009) had ended and and ‘modernisation’ in the field of hard Parliament and Council were ultimately legislation does not necessarily mean unable to reach agreement on a draft that quiet times are ahead. Significant amending proposal, despite long negotia- progress has been achieved through tions and a conciliation procedure. 92 I Labour law and working conditions

The review has been undertaken to address Their negotiations were formally launched fundamental changes in the world of work on 14 November 2011, with meetings over the past twenty years (the first version from December 2011 to December 2012. of the Working Time Directive was adopted However, they announced the blockage of in 1993). These changes include the impact their talks in December 2012 and after of technological change, globalisation, meeting the main negotiators on 19 Febru- a much more diverse workforce, work inten- ary 2013, it was concluded that the nego- sification, increasing variation in individual tiations had definitively ended. working time patterns and greater competitive pressures. Employers, broadly speaking, The Commission had, in view of the nego- wish to see more flexibility in working time tiations between the cross-industry social rules, while workers’ organisations, gener- partners, suspended the preparation of the ally, seek more effective protection of legislative revision for 2 years. It is how- health and safety. Some questions remain ever committed to pursuing the review of unclear, and there are difficulties for some the Working Time Directive, by the Member States in implementing aspects of announcement of the President in 2009 the rules. The Commission’s review aims at and by the conclusions of its communica- finding sustainable solutions to these chal- tion of December 2010. lenges, which would be capable of enjoying broad-based support. The Commission is currently carrying out a thorough impact assessment on the dif- The Commission carried out two stages of ferent options for the future of the Direc- consultation with the social partners at tive, which should be completed by end of European level, adopting consultation summer 2014. papers in the form of Communications in March 2010 and December 2010, as well as undertaking and publishing extensive The posting of workers evaluation studies focusing both on legal in the EU and economic and social aspects. The EU’s single market gives companies In reply to the second consultation, the main the freedom to provide services in other cross-sectoral social partners indicated in Member States, including the possibility to May 2011 their interest in negotiating post workers to other Member States. This between themselves a review of the Direc- enables companies to offer their special- tive, with the aim of reaching an agreement ised services throughout the EU Single which could be implemented by a Council Market, contributing to greater efficiency Directive under Article 155 TFEU. and economic growth. Labour law and working conditions I 93

Posted workers do not enter the host coun- or lower social security contributions. Posted try’s labour market, as they remain workers are often more vulnerable given their employed by their company in the sending situation abroad, and not always aware of Member State. their rights. On the other hand, businesses which do not respect the rights of posted Each year, around 1.2 million workers are workers may achieve illegally low wage costs posted by their employers across EU bor- that, in turn, feeds into low production costs. ders to provide services (0.5 % of the EU This creates unfair competition for legitimate workforce). The biggest “sending” countries businesses that do follow the rules. are Poland, Germany, France, Luxembourg, Belgium and Portugal. Posted workers play Worker protection and fair competition are an important role in filling labour and skill the two sides of the EU single market’s shortages in various sectors and regions coin, yet findings suggest that minimum like construction, agriculture and transport. employment and working conditions are Posting is also important for providing spe- too often not respected. To make the EU cialised, high-skilled services, such as infor- single market work better for workers as mation technology. well as for business, the Commission proposed in 2012 new rules, namely an To facilitate the posting of workers and to ‘Enforcement Directive’ that does not ensure fair competition as well as guaran- change the original 1996 legislation on teeing an appropriate level of protection posting of workers but seeks to improve of posted workers, the Posting of Workers its implementation and enforcement. Directive defines a core set of employment conditions which the service provider has The Enforcement Directive aims to to comply with during the posting in the increase the protection of posted workers host Member State. This includes, among by tackling abuses where workers are others, the applicable minimum rates of prevented from enjoying their full rights, pay, holidays, maximum working hours and for example in terms of pay or holidays minimum rest periods, as well as health (especially in the construction sector). It and safety at work. However, the Directive also foresees better monitoring of how does not oblige Member States to set mini- rules on the posting of workers are mum wages if they do not exist. applied. In particular the proposal contains positive developments for SMEs and In practice, these core employment condi- micro-enterprises, such as risk–based tions are sometimes incorrectly applied or inspections, more readily available legal not enforced in the host Member State. Post- information on Member States’ require- ing can be abused by companies artificially ments and grants legal certainty regard- establishing themselves abroad, just to ben- ing possible control measures introduced efit from a lower level of labour protection by the host Member State. 94 I Labour law and working conditions

Box 6.1 A snapshot of the Enforcement Directive on posting of workers

In brief, the Enforcement Directive that use posting as a way to intends to: circumvent employment rules; yy set more ambitious standards to inform yy define the supervisory scope and workers and companies about their responsibilities of relevant national rights and obligations; authorities, and yy establish clear rules for cooperation yy improve the enforcement of workers’ between national authorities in charge rights, including by better handling of of posting; complaints and introduction of a limited yy clarify the notion of posting and system of joint and several liability for improve monitoring to avoid the the construction sector for the minimum multiplication of “letter-box” companies rates of pay of posted workers.

Seafarers several EU Member States – one of the issues identified during the legislative ‘fit- Although EU labour law generally applies ness check’, carried out under the REFIT to all workers in all sectors, until now certain process discussed later in this chapter. labour Directives allowed Member States to exclude seafarers from their right to infor- Accordingly, in November 2013 the Com- mation and consultation. This has led to mission proposed to include seafarers seafarers being treated differently in within the scope of five EU labour law © BelgaImage Labour law and working conditions I 95

Directives. The proposal would give seafar- the next EU Strategic Framework on health ers, in all 28 EU Member States, the same and safety at work. information and consultation rights as on- shore workers in cases of collective redun- In addition, the Commission is carrying out dancies and transfers of undertakings. They a full ex-post evaluation of EU health and would also have the right to participate in safety legislation, whose results will be avail- European Works Councils. Consequently, the able before the end of 2015. The specific living and working conditions of seafarers conditions of the ex-post evaluation are laid should improve and working in the maritime down in Article 17a of the Framework Direc- sector should become more attractive for tive, which was amended to that effect in young and qualified people. This is impor- 2007. It contains several, significant ele- tant as the number of EU seafarers has ments of a fitness check – covering relevance, been steadily decreasing over the last few effectiveness and coherence of the legisla- years and the sector is threatened with tion as well as administrative burdens. labour shortages. A third important benefit of the proposal is that it would ensure fairer Due to its broader scope and specific regu- competition in the fisheries and shipping latory regime under the Framework Direc- sectors within the EU as operators would tive, the ex-post evaluation covers a broader have the same obligations in all EU Mem- range of issues. It aims at a wider evalua- ber States. The proposal will now go to EU’s tion of the legislation including in terms of Council of Ministers and the European Par- benefits, of research and new scientific liament for adoption. knowledge. It will have a special focus on SMEs. Therefore the results may lead to initiatives to improve the operation of the Health and Safety regulatory framework, including possible simplification of the acquis where unneces- In Chapter Four we discussed the results sary regulatory burden has been identified, of the EU’s 2007-12 Strategy on Health as well as additional measures needed to and Safety at Work. In summer 2013 the protect workers against, for example, chem- Commission undertook a public consulta- ical substances and new and emerging risks. tion on the EU’s new policy framework in this field. Together with other elements The results of the ex-post evaluation can such as opinions of the Advisory Commit- trigger improvements to the legislative tee on Safety and Health at Work and framework or the way it is implemented. Senior Labour Inspectors’ Committee, and As required by the Treaty, any proposal for the results of the evaluation of the previ- legislative changes would of course be pre- ous Strategy, this consultation is a basis ceded by a two-stage consultation of the for the establishment of the priorities of European social partners (see Chapter Two). 96 I Labour law and working conditions

Reducing the amount Box 6.2 What exactly counts of undeclared work as undeclared work?

Undeclared work is a complex phenome- At EU level undeclared work is non which prospers due to different factors defined as, “any paid activities that such as high tax levels and labour costs are lawful as regards their nature but (or the perception of them being high), the not declared to the public authorities, lack of appropriate control measures, lack taking into account the differences of regular jobs on the labour market and in the regulatory systems of the high levels of social exclusion and Member States” (Communication poverty. from the Commission “Stepping up the fight against undeclared work” On a national level, undeclared work has (COM (2007) 628 Final). serious budgetary implications through decreased tax and social security reve- All illegal activities are excluded from nues. On an individual level it has negative this concept of undeclared work. effects on employment, productivity and working standards, skills development and However, Member States do not have to lifelong learning. Undeclared work also do everything alone. EU-level studies have makes it more difficult for the workers led the European Commission to conclude concerned to acquire pension rights and that greater cooperation at EU level would access health care. help Member States to tackle undeclared work in more effectively and efficiently. Preventing and deterring undeclared work are primarily tasks of the Member States. Between July and October 2013 the Com- Member States mostly adopt a deterrent mission consulted EU-level social partners approach with measures such as strict on possible EU action in this field. One pos- sanctions and the reinforcement of labour sible way of enhancing cooperation between inspection activities to discourage unde- enforcement authorities at EU level is the clared work. In addition, Member States establishment of a European Platform are using preventive measures, such as tax against undeclared work which would com- incentives, amnesties and awareness rais- prise the representatives of Member States’ ing, to decrease the incidence of unde- enforcement authorities, such as labour clared work and support compliance with inspectorates, tax and social security authori- the existing rules. ties and other interested parties. Labour law and working conditions I 97

In parallel to the possibility of setting up such Box 6.3 What is the EU doing? a European platform, the European Commis- sion continues, in agreement with the Coun- The EU is determined to tackle cil, monitoring developments and providing low employment levels amongst guidance to the Member States in the con- the young thorough a number of text of the European Semester. Moreover, to initiatives. The potential of job further explore the phenomenon of unde- mobility – moving the youth to where clared work it carried out a joint project with the jobs are – could potentially the ILO in 2012-2013, on labour inspections’ be developed. Out of a workforce strategies for combating undeclared work in of 216.1 millions only 7.5 are Europe. The project covered seven Mem- working in another Member State. ber States: Spain, Italy, France, Ireland, Bel- EU surveys show that youth are gium, Romania and the Netherlands. the most likely population group to move: they have been born into borderless Union. Many have availed Youth Unemployment themselves of EU financed and and the measures to combat organised educational opportunities the problem outside their Member States. Many are multilingual, keen to travel Youth unemployment is a serious problem and unencumbered by family throughout the EU. In some Member States responsibilities. In short, moving is, at such as Spain and Greece it is more acute least theoretically, perfectly feasible. than others. In September 2013 there were But there remain obstacles to free 5.6 million young people unemployed in movement and the EU is committed the EU-28 area. This represents an aver- to tackling these. age unemployment rate amongst the young of 23.5 %. More than one in five young Europeans on the labour market The Youth Guarantee is a commitment on cannot find a job: in Greece, Spain and the part of the Member States and the EU Croatia it is one in two. This situation is to tackling youth unemployment. It seeks serious and unacceptable. A generation is to ensure that Member States offer all about to be lost to the world of work. The young people up to the age of 25 years social and economic consequences of this a quality job, continued education, an are as yet unknown, but they cannot be apprenticeship or traineeship within four negligible and in all probability will prove months of leaving formal education or to have a tangible impact on generations becoming unemployed. The logic of the to come. The EU is acutely aware of the Youth Guarantee is obvious: to ensure need to tackle this problem and is taking young people are actively helped by public steps to do so working in tandem with the employment services either to find a job Member States. corresponding to their level of education 98 I Labour law and working conditions

and training, skills and experience or to Box 6.4 Which areas will qualify acquire the education, skills and experi- for funding? ence that employers need. Although youth unemployment The Youth Guarantee is one of the most is widespread within the EU, the crucial and urgent commitments that the levels are more acute and more EU is supporting Member States to adopt. concentrated in southern countries And the Member States are embracing it. and regions. Youth unemployment is The Youth Guarantee proposed by the at 40 % in Spain and Greece, all of European Commission in April 2013 was southern Italy and southern Portugal, endorsed promptly in June 2013 by the which means that all of these European Council – with 19 Member States countries and areas will qualify for preparing and submitting their plans to the funding for their Youth Guarantees. European Commission to implement the Certain regions and areas of other guarantee. Member States, such as France and the United Kingdom, where youth Young people who happen to be in neither unemployment is running at above education, employment nor training (NEETS) 25 %, will also qualify. will be an investment priority for the Euro- pean Social Fund, in particular the through the proposed Youth Employment Initiative The European social partners have also (YEI). €6 billion has been ring-fenced in the reaffirmed the importance of combat- EU’s budget in order to support youth ing youth unemployment by adopting employment, in particular through the Youth a Framework of Actions on Youth Employ- Employment Guarantee. €3 billion is being ment on 11 June 2013. This Framework, made available overall. At least 90 % of this adopted as part of the autonomous social sum will be available in 2014 and 2015 to dialogue of European social partners, countries or regions where the youth unem- aims at proposing solutions in order to ployment rate exceeded 25 % in 2012. ease the transition to the labour market Further funding from the ESF is envisaged for young people. Proposals cover how in the years up to 2020, bringing the total to improve the education system, foster amount invested in combatting youth entrepreneurship and create employment. unemployment to around €17 billion for the It sets common objectives and guidelines years 2014 – 2020. This represents a seri- for social partner actions and reforms and ous commitment on the part of the EU and will be promoted for implementation at the Member States. national level. Labour law and working conditions I 99

Furthermore, the European social partners elements of the Youth Guarantee. Improved have also expressed their commitment to traineeships can provide young people with apprenticeships in a joint declaration with a valuable stepping stone into the world of the Lithuanian Presidency of the Council work by helping them to acquire skills and of the EU and the European Commission. experience that potential employers are This declaration was signed at the occa- looking for. sion of the launch of the European Alliance for Apprenticeships on 2 July 2013 and A recent survey by the European Commis- emphasises the efforts that will be made sion showed that one in three traineeships by all signatories to promote apprentice- is not of an acceptable standard. The Euro- ship schemes. pean Commission believes that there is an urgent need to improve the quality of traineeships by mobilizing the social partners Quality Framework and by providing guidance to Mem- on Traineeships ber States. It has therefore proposed quality framework for traineeships which will Traineeships are understood to be limited identify a number of principles that char- periods of work practice spent at a busi- acterize good quality traineeships. The ness, public body or non-profit institution proposed Quality Framework is based upon by students or young people having the principle of transparency. Better work- recently completed their education, in ing conditions, more solid learning content order to gain valuable, hands-on work and enhanced transparency will help train- experience ahead of taking up regular ees to get the most out of traineeships and employment. to get a foothold on the labour market.

Despite the fact that traineeships have a number of benefits not only for trainees, Quality Framework but also for employers, and society as on Restructuring a whole, all the EU institutions have voiced concerns about the effectiveness, availabil- Economic adjustment and restructuring ity and quality of traineeships. Low-quality have serious consequences for employ- traineeships that do not boost the trainee’s ment and wider industrial and social impli- employability, that do not offer a minimum cations for cities and regions. A total of level of protection and that are used as 250 restructuring operations were recorded a low-cost replacement for existing jobs can within the EU for the third quarter of 2013, discourage young people from investing in resulting in a net loss of more than 29 000 traineeships and can distort the labour mar- jobs. Companies undergoing restructuring ket. Quality traineeships are one of the key often react to rather than anticipate the 100 I Labour law and working conditions

problems arising out of restructuring. as: training, career counselling and assis- Workers seldom benefit from advance sup- tance to facilitate the transition to other port measures such as training and careers professional activities. The involvement of advice to enable them to adapt to changes external actors such as public authorities, circumstances brought about by the universities and training bodies at an early restructuring. Workers’ representatives are stage so as to maximise their contribution frequently engaged at too late a stage to to alleviating the impact of restructuring is be able to make any meaningful contribu- also covered. Finally the guidelines offer tion to the situation and management advice on how to make full use of EU struc- often fails to involve outside organisations, tural funds. The effective application by all such as regional authorities, which can do the stakeholders concerned will be reviewed much to soften the adverse impact of by the Commission in 2016. restructuring.

Following its January 2012 Green Paper, Related EU-level social policy and the adoption by the European Parlia- guidance ment on 15 January 2013 of the Cercas report, in December 2013 the Commission European level social policy guidance also adopted a Communication establishing exists on providing adequate social protec- a Quality Framework for Anticipation of tion against unemployment and other risks Change and Restructuring (QFR). The that may arise in life, as well as investing Framework offers guidance, based on the in people’s skills and abilities. In Febru- real experiences of companies, to compa- ary 2013, the Commission adopted the nies, workers, trade unions, employers’ Social Investment Package. The package organisations and public administrations. urges Member States to step up invest- This focuses on how to facilitate the process ments in activating and enabling benefits of restructuring both for businesses and and services that help to improve people’s workers, through anticipatory action and situations and broaden their opportunities. better investment, whilst minimising the This includes adequate income support social impact. The guidelines cover both and housing support for those who do not measures to anticipate restructuring and have sufficient resources, job-search the management of specific restructuring assistance, lifelong learning, accessible processes including the strategic long term health services, and helping people to live monitoring of market developments; con- independently in old age. The package also tinuous monitoring of jobs and skills needs. emphasises the importance of removing They also address measures for individual barriers to people’s labour market partici- employees affected by restructuring, such pation, such as tax/benefit disincentives, Labour law and working conditions I 101

and the lack of accessible care services for February 2011 and November 2012, to children or long-term care for elderly discuss and overcome obstacles that still dependents. The Package also contains deter citizens from settling in another EU a Recommendation on Investing in Children country. Recommendations were issued to that emphasises the importance of afford- national and European Institutions, taking able, quality, inclusive early childhood edu- in to account the best practices collected cation and care facilities. by European trade unions.

The Commission has also issued guidance The European Commission, supported by on how to render pension systems more the European Parliament, intends to build adequate and sustainable given demo- on the TESSE project. It sets out a number graphic pressures through its 2013 White of pilot experiences to assess the feasibil- Paper on Pensions. The Portability on Pen- ity of a transnational network of informa- sions Directive also safeguards the sup- tion centres, to exchange information and plementary pension rights of employed experience to support workers as they and self-employed persons moving within relocate around the EU. One pilot action the Union. It sets out certain rights and will help equality bodies, established under obligations for members of supplementary previous EU legislation, to address specific pension schemes in order to safeguard the forms of discrimination against EU mobile entitlements of mobile EU workers and workers, including posted workers, who are helps to ensure the adequacy of their likely to endure discriminatory treatment retirement income. in the host labour market.

The pan-European job search network, Helping workers make the EURES, facilities the free movement of most of jobs opportunities workers by providing information, advice, wherever they are recruitment and placement services. EURES has 850 advisers that are in daily A number of initiatives on an EU level contact with job seekers and employers are aimed at helping workers optimise right across Europe, matching needs and the job opportunities brought about by skills. In January 2014 the Commission the EU-wide labour market. The TESSE published a proposal for a regulation to (Transnational exchanges on social secu- improve EURES by increasing its efficiency, rity in Europe) project brought together making recruitment more transparent and trade unions and security institutions from strengthening co-operation between Mem- the EU Member States. They attended ber States. The new rules would increase a series of four workshops, held between the number of job offers on the EURES web 102 I Labour law and working conditions

portal, carry out automatic matching of job are attached to workers and move with vacancies and candidates, offer candi- them, thereby enabling them to rely upon dates and employers mobility support their full social security record when claim- services to facilitate recruitment, and inte- ing benefits. grate workers in their new posts outside their home countries. The coordination and The export of benefits beyond the Mem- exchange of information on national labour ber States in which entitlement arises is shortages and surpluses between Mem- also guaranteed. The Electronic Exchange ber States will be enhanced, thereby of Social Security Information (EESSI) is an improving the transparency of the EU IT system, hosted centrally by the Euro- labour market. pean Commission, which facilities cross border claiming and payment of benefits. The EU Programme for Employment and It does so by enabling communications Social Innovation (EaSI) is a European level between national bodies on cross border financing instrument managed directly by social security files, by means of structured the European Commission to support electronic documents. These documents employment and labour mobility across are routed through the EESSI to their cor- the EU. It consists of three axes: rect destination. This benefits both claim- yy the modernisation of employment and ants and public administrations alike. social policies with the PROGRESS axis Claims and the calculation and payment (61 % of the total budget); of benefits are speedier and administra- yy job mobility with the EURES axis (18 % tions benefit from standardised flows of of the total budget); and information and better multilingual com- yy access to micro-finance and social munication as a result of structured entrepreneurship with the Microfinance documents. and Social Entrepreneurship axis (21 % of the total budget). Helping the disabled The total budget for 2014-2020 is almost €200 million. 2013 EU Citizenship Report announced that action will be taken in five areas The new modernised system of social including the protection of the most vul- security coordination facilities the move- nerable, by developing an EU disability ment of workers by safeguarding their card which would be mutually recognised social security rights when they move across the EU. Eighty million disabled peo- country to take up employment. Rights ple would be given equal access to spe- acquired or in the process of being acquired cific benefits such as access to transport Labour law and working conditions I 103

(frequently a major cause of unemploy- Communication will be reviewed in 2014. ment amongst the disabled, who sim- In the Agenda for Action 2011-2014, set ply cannot get to work), tourism, culture out in 2011, the Commission commits to and leisure. This will enable the disabled promoting dialogue with enterprises and to integrate into the world of work and other stakeholders on a number of issues civic society. including workplace challenges such as diversity management, gender equality, education and training and employee Corporate Social health and well-being. Responsibility (CSR)

CSR is increasingly important to the com- Europe 2020 and petitiveness of enterprises – through it coordination of enterprises can build consumer and citizen Member States’ policies loyalty. It is relevant to working conditions in so far as it can encourage respect for Besides further developments in ‘hard’ and human rights, including core labour stand- ‘soft’ law, (and EU-level initiatives to ards, both within enterprises committed to improve administrative cooperation among a CSR policy and downstream to their con- Member States and spread good practices), tractor and suppliers. This is important in employment and working conditions across an age of globalization where manufactur- Europe are also shaped by labour market ing and service provision can be outsourced reforms undertaken in individual Mem- to countries whose labour standards may ber States and coordinated through the fall short of internationally accepted ‘European Semester’ (see Chapter One). norms. CSR brings about an awareness of the responsibilities of businesses to ensure The annual strategic guidelines for the respect for such norms, even if indirectly. coordination of economic, employment and social policies in the EU are set out in Through its 2011 Communication, the the Annual Growth Survey. Its 2014 edition, Commission gave itself a cross-cutting presented by the Commission in Novem- agenda of activities to implement a policy ber 2013, reiterates that ‘tackling unem- of encouraging further commitment by ployment and the social consequences of companies to CSR. This has been under- the crisis’ is one of the five key priorities taken in full consultation with stakeholders for European and national policies. Among (companies, trade unions, non-governmen- other actions, this should be done by: tal organisations, academics, investors, yy stepping up active labour market meas- etc.) and with Member States. The ures, notably support and training for the 104 I Labour law and working conditions

unemployed, as well as to improve the workers, and for the economy and society performance of public employment ser- as a whole. When strengthening economic vices, with particular attention to imple- governance, it is critical to involve the social menting a Youth Guarantee; partners in policy debates and decision- yy continuing reform efforts on wage-set- making processes. This is not only to ting systems, employment protection increase the sense of ownership of policies legislation and labour taxation, to sup- and ensure meaningful implementation; it port job creation, competitiveness, is also to enhance the effectiveness of labour mobility, and equal protection policy coordination at euro area level. conditions among workers; yy pursuing the modernisation of education Box 6.5 How can social partners help? and training systems, notably life-long learning and vocation training schemes; Social partners play an important role and at national level in setting labour yy improving the performance of social market rules and wages. They have protection systems with particular a strong influence in other structural attention to the most vulnerable. policies through tripartite consultations, such as in the area of Member States are expected to reflect social security. On wage setting in these priorities in their National Reform particular, there are diverse industrial Programmes, which set out how problems relations in the EU and the such as segmentation of the labour market Member States decide how to or precarious working conditions will be organise wage bargaining. Social tackled. The Commission will analyse the partners are also key players when it situations and reforms planned in the comes to implementing measures respective Member States, and propose such as apprenticeships or effective country-specific recommendation on occa- lifelong learning. sions it considers that more needs to be done in order to move towards the targets set in the Europe 2020 Strategy. There is scope for improving the mechanisms to involve the social partners in the coordination of economic and employment Strengthening social dialogue policies at EU level. The European Com- mission believes that it is possible to EU-level social dialogue plays an essential involve the social partners more in EU and role in advancing the Union’s social market EMU governance while fully respecting economy, producing benefits for employers, their autonomy. Labour law and working conditions I 105

The European Commission is therefore be effective and inclusive. National-level committed to fostering social dialogue on consultations with the social partners play both an EU and a Member State level. This an important role, in particular during the it intends to do without creating new struc- adoption of national reform programmes tures, by better using the existing fora for and implementation of country-specific social dialogue. These include: recommendations. This consultation is cru- yy the tripartite social summit (TSS) for cial to labour market issues, but also to Growth and Employment, which is overall economic and social issues and enshrined in Article 152 TFEU as an inte- policies. gral component of social dialogue at EU level. The task of the tripartite social There is a broad consensus among the EU summit is to ensure the highest social institutions on the need to better involve dialogue between the European Council, social partners in European governance, in the Presidency of the Council (and the particular in the European Semester pro- two subsequent presidencies), the Com- cess. The European Semester is a yearly mission and employers’ and workers’ cycle of economic coordination which representatives. begins when the Annual Growth survey is yy the biannual macroeconomic dialogue published. Following that the European (MED), a high level forum for exchanging Commission undertakes a detailed analy- views between the Council, the Commis- sis of the EU Member States’ programmes sion, the European Central Bank and the of economic and structural reforms and social partner representations at provides country-specific recommenda- EU level. tions for the following 12-18 month period. yy the European (cross-industry) Social The social partners have much to contrib- Dialogue Committee , which is the main ute to this process. bipartite social dialogue structure. In October 2013, the Commission pro- The autonomy of social partners and the posed to improve the current consultation diversity of national practices must be process so as to involve the social partners respected (in line with Articles 152 and from the early stages of the European 153(5) TFEU). Any involvement of social Semester. It met the EU social partners partners in framing and implementing eco- before adopting the 2014 Annual Growth nomic and employment policies needs to Survey, in order to obtain their views on the be commensurate with the developments upcoming priorities and their feedback on in monitoring and coordination mecha- the outcome of the previous European nisms if reinforced EMU governance is to Semester process. 106 I Labour law and working conditions

At the same time it is crucial to strengthen Pilot exercises started in 2010 in four social dialogue at the national level. In areas, one of which was employment and other words, Member States need to social policy. improve, in line with national traditions, the involvement of their social partners in the By the end of 2014, the Commission will discussion, design and implementation of have carried-out or launched 47 evalua- on-going reforms. It is up to national gov- tions, fitness checks or other reports with ernments to define the arrangements for a view to reducing regulatory burden discussing their National Reform Pro- (where identified). Five are in the area of grammes and country-specific recommen- employment (three information and con- dations with social partners, but the sultation instruments, the Agency Workers Commission strongly encourages the Directive and the Occupational Health and Member States to involve social partners Safety Directives). as closely as possible. The Commission’s ‘fitness check’ on EU law in the area of workers’ involvement exam- Better Regulation: REFIT ined three Directives related to worker information and consultation at national Initiatives taken at a European level must level (6) (Directives 98/59/EC on collective demonstrate clear EU added value and be redundancies, 2001/23/EC on transfers of proportionate in their scope and nature. undertakings and 2002/14/EC on a general Before the Commission tables any legisla- framework for information and consultative proposal, it undertakes an impact tion of workers). assessment which analyses (ex-ante) the problem to be addressed and the possi- The evaluation, completed in July 2013, ble options. concluded that this legislative framework is broadly fit for purpose. The three Since 2010, as part of the Commission’s Directives are generally relevant, effec- Better Regulation policy, ex-post evalua- tive, consistent and mutually reinforcing. tion, acting as a ‘fitness check’ of existing The benefits they generate are likely to legislation, has been put in place to ensure outweigh the costs. Moreover, the Direc- that policies form a coherent framework, tives seem to have contributed to cush- delivering effectively on their objectives as ioning the shock of the recession and well as being fit for purpose and propor- mitigating the negative social conse- tionate. This is known as the Regulatory quences of restructuring operations dur- Fitness and Performance (REFIT) process. ing the crisis.

(6) SWD(2013) 293. Labour law and working conditions I 107

Nevertheless, the evaluation brought to improve restructuring at company level light some gaps and shortcomings relat- as well. ing to the scope and operation of the Directives. The exclusion of smaller enter- As far as non-legislative actions are con- prises, public administrations, (in contrast cerned, research has highlighted the impor- to public undertakings, which are cov- tance of establishing a culture of social ered), and seafarers from the scope of dialogue, of making both employees and application of the Directives was ques- employers aware of information and con- tioned by some stakeholders who felt sultation rights and obligations at company they diminished the practical value of the level, and of effectively enforcing these Directives for a significant proportion of rights in the event of non-compliance. the workforce. In terms of a legal framework, the Com- The fitness check also drew attention to mission has undertaken to look into the some factors that may in specific circum- possibility of consolidating the information stances have contributed to reducing the and consultation Directives. This was con- effectiveness of the Directives, including: firmed in the REFIT Communication the (low) incidence of representative bod- adopted by the Commission in October ies; the quality of their involvement (in 2013. The Commission will consult the particular the way they are consulted, social partners at European level in accord- which is often limited or formal); their stra- ance with Article 154 TFEU. tegic influence; insufficient awareness of rights and obligations; compliance and law Further evaluations of regulatory fitness enforcement. As a result, some of the have been scheduled for 2014 and 2015 Directives’ aims, in particular a reduction on the Health and Safety at Work Direc- in the number of collective redundancies, tives and the Agency Workers Directive. improved management and anticipation of change, and better adaptability and The Commission has reviewed, in con- employability of employees, appear not to sultation with the Member States and have been fully achieved. EU social partners, the application of the Agency Workers Directive. This evalua- Finally, the fitness check pointed to pos- tion is a REFIT initiative as it notably sible inconsistencies between the Direc- focuses on simplification and regulatory tive’s manner of informing and consulting burden reduction, but it also has workers, in particular regarding definitions. a broader scope, in line with the require- Addressing these shortcomings would help ments of the legal basis in the Directive. 108 I Labour law and working conditions

The report shows that, in general, the In October 2013 the Commission pub- Directive seems to have been correctly lished a Communication on improving and implemented, although its main objec- updating evaluation techniques used in the tives – to improve the protection of agency REFIT process. Guidelines will be published workers while contributing to the develop- to outline and define what constitutes ment of the agency work sector as a flex- a robust evaluation, as well as what con- ible option for employers and workers – have stitutes a good evaluation report. not been fully achieved. Besides, most Member States have not identified particular costs that the Directive would place The international dimension on companies. The Commission report was published at the beginning of 2014. The EU’s work on an international level has been discussed in the previous chapter. Its The entire body of legislative measures – presence on the global stage has increased some 24 directives – on Occupational in recent years with the EU playing a major Health and Safety is currently going role in international meetings and working through a full evaluation, again as part of with international organisations. It is worth the REFIT fitness check. The conclusion of highlighting that employment and social this evaluation will be available before the policies, including efforts to foster inclusive end of 2015. growth and strengthen the social dialogue, also play an important role in EU enlarge- The Part Time Work and the Fixed-Term ment policy. Work directives are currently being evalu- ated to assess their impact on employers, The interplay between the internal and employees and public administrations. The external dimensions of EU social and evaluation report will focus on whether the employment policy has intensified. This Part-Time Work Directive contributes to has been driven by the globalised economy greater flexibility to employers in the and the implications of the global supply organisation of working time and whether chain on EU business and consumers. The the Fixed-Term Work Directive brings about EU has been, and will remain, active in greater flexibility for employers in the promoting core labour standards and inter- management of human resources. nationally agreed norms, through its free Labour law and working conditions I 109

trade agreements and other bilateral and and unique experience, such as Occupa- multilateral relations. tional Safety and Health or social security coordination, its advice and assistance is Notable also are continuing efforts of the being actively sought by countries such as EU to assist the ratification and enforce- China and India, which are seeking to ment of ILO Conventions by the Mem- increase worker mobility and raise social ber States. In areas where the EU has long standards. 110 I Labour law and working conditions

Voice from the European Parliament Interview with Alejandro Cercas, Member of the European Parliament

Charter of Fundamental Rights, as well as the international commitments sub- scribed by the EU and its Member States have been set aside, due to the urgent macroeconomic imbalances.

However, it is worth stressing that some efforts have been made in order to help those most affected by the crisis, such as the Youth Package with the Youth Guarantee or the European Fund for the Most Deprived, and also to boost investment and job recovery, with the Social © European Union Investment Package or the Employ- ment Package. Have EU Law and policy on employment and working conditions changed too What do you see as the main challenges much or too little during the five years for EU labour law and working conditions of the economic crisis? policies in the rest of this decade?

The paradigm of flexicurity, which orien- Europe needs a radical change to place tated the EU2020 Strategy, has changed the medium and long term policies back during the last five years towards a project in the discussion so as to boost the crea- of pure flexibility. Today, 5 years later, we tion of sustainable quality employment. have less and worse employment, and we We should avoid at all costs the obsession have gone back in time 10 years in terms to have a European labour market with a of integration and social cohesion in many low cost force and low wages, because the parts of Europe. only way we can succeed in globalization is through excellence. The main problem is that the vision that the European Social Model couldn’t Hence, we must promote the agenda of overcome the crisis and address the chal- social dialogue and flexicurity to win in lenges of globalization has won the ideo- productivity, competitiveness and evalu- logical battle. The values and principles ation. This is the only path towards a sus- established in the Treaties and in the tainable future for Europe. Labour law and working conditions I 111

Regarding the reform of our model, we economy and the improvement of intra don’t have to be reluctant, but smart. EU mobility while assuring effective equal We need to transform it into a better, rights for posted workers. more sustainable and efficient model to respond to social and technological Finally, these changes have to be made changes and to the international divi- through a democratic approach, involving sion of labour. And the only way to do citizens, preserving social dialogue, and not it is by facing the two main challenges: through an exercise of enlightened despot- the establishment of a true Social Pillar ism, since all that is achieved with authori- within the Economic and Monetary Union tarian methods increases resistance to so as to create a healthy and sustainable change and deteriorates its outcome. 112 I Labour law and working conditions

Forthcoming guide

yy ESF and other financial instruments (June 2014). HOW TO OBTAIN EU PUBLICATIONS

Free publications:

• one copy: via EU Bookshop (http://bookshop.europa.eu);

• more than one copy or posters/maps: from the European Union’s representations (http://ec.europa.eu/represent_en.htm); from the delegations in non-EU countries (http://eeas.europa.eu/delegations/ index_en.htm); by contacting the Europe Direct service (http://europa.eu/europedirect/index_en.htm) or calling 00 800 6 7 8 9 10 11 (freephone number from anywhere in the EU) (*).

(*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you).

Priced publications:

• via EU Bookshop (http://bookshop.europa.eu).

Priced subscriptions:

• via one of the sales agents of the Public ations Office of the European Union (http://publications.europa.eu/others/agents/index_en.htm). KE-BC-13-002-EN-N

The Social Europe guide is a bi-annual publication aimed at providing an interested but not necessarily specialised audience with a concise overview of specific areas of EU policy in the field of employment, social affairs and inclusion. It illustrates the key issues and challenges, explains policy actions and instruments at EU level and provides examples of best practices from EU Member States. It also presents views on the subject from the Council Presidency and the European Parliament. Volume 6 looks at the origin and purpose of labour market rules across the EU. It highlights the importance of ensuring good and healthy working conditions and a level playing field in the Single Market. It explains the respective roles the EU institutions and Member States play in shaping the legislation on employment and working conditions: in general, EU rules help to set minimum standards and requirements to underpin national laws, aiming to ensure the realization of the values set out in the EU’s founding Treaties. The guide also explains how EU labour law has been influenced by international standards and the role the EU plays in promoting decent work across the world. The guide is available in printed format in German, English and French.

You can download our publications or subscribe for free at http://ec.europa.eu/social/publications If you would like to receive regular updates about the Directorate-General for Employment, Social Affairs and Inclusion sign up to receive the free Social Europe e-newsletter at http://ec.europa.eu/social/e-newsletter

https://www.facebook.com/socialeurope

https://twitter.com/EU_Social