Flash Reports on Labour December 2017 Summary and country reports

Written by The European Centre of Expertise (ECE), based on reports submitted by the Network of Experts

December 2017

EUROPEAN COMMISSION Directorate DG Employment, Social Affairs and Inclusion Unit B.2 – Working Conditions Contact: Lucile Castex-Chauve E-mail: lucile.castex-chauve@ec..eu B-1049 Brussels

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Country Labour Law Experts Martin Risak Wilfried Rauws Krassimira Sredkova Ivana Grgurev Nicos Trimikliniotis Nataša Randlová Natalie Videbaek Munkholm Gaabriel Tavits Matleena Engblom Francis Kessler Bernd Waas Costas Papadimitriou Gyorgy Kiss Inga Björg Hjaltadóttir Ireland Anthony Kerr Edoardo Ales Kristine Dupate Wolfgang Portmann Tomas Davulis Luxemburg Jean-Luc Putz Lorna Mifsud Cachia Barend Barentsen Helga Aune Lill Egeland Leszek Mitrus José João Abrantes Rita Canas da Silva Raluca Dimitriu Robert Schronk Polonca Končar Joaquín García-Murcia Iván Antonio Rodríguez Cardo Andreas Inghammar Catherine Barnard

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Table of Contents Summary ...... 1

Austria ...... 1 1 National ...... 1 2 Rulings ...... 1 3 Implications of CJEU Rulings and ECHR ...... 2 4 Other relevant information ...... 3

Belgium ...... 6 1 National Legislation ...... 6 2 National Court Rulings ...... 7 3 Implications of CJEU Rulings and ECHR ...... 7 4 Other relevant information ...... 7

Bulgaria ...... 8 1 National Legislation ...... 8 2 National Court Rulings ...... 10 3 Implications of CJEU Rulings and ECHR ...... 10 4 Other relevant information ...... 10

Croatia ...... 11 1 National Legislation ...... 11 2 Court Rulings ...... 13 3 Implications of CJEU Rulings and EC ...... 13 4 Other relevant information ...... 13

Czech Republic ...... 15 1 National Legislation ...... 15 2 Court Rulings ...... 17 3 Implications of CJEU Rulings and ECHR ...... 17 4 Other relevant information ...... 18

Denmark ...... 19 1 National Legislation ...... 19 2 Court Rulings ...... 19 3 Implications of CJEU Rulings and ECHR ...... 20 4 Other relevant information ...... 20

Estonia ...... 21 1 National Legislation ...... 21 2 Court Rulings ...... 21 3 Implications of CJEU Rulings and ECHR ...... 21 4 Other relevant information ...... 21

Finland ...... 22 1 National Legislation ...... 22 2 Court Rulings ...... 23 3 Implications of CJEU rulings and ECHR ...... 23 4 Other relevant information ...... 23

France ...... 24 1 National Legislation ...... 24 2 Court Rulings ...... 27 3 Implications of CJEU Rulings and ECHR ...... 31 4 Other relevant information ...... 31

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Germany ...... 32 1 National Legislation ...... 32 2 Court Rulings ...... 32 3 Implications of CJEU Rulings and ECHR ...... 33 4 Other relevant information ...... 33

Greece ...... 34 1 National Legislation ...... 34 2 Court Rulings ...... 34 3 Implications of CJEU rulings and ECHR ...... 34 4 Other relevant information ...... 34

Hungary ...... 35 1 National Legislation ...... 35 2 Court Rulings ...... 35 3 Implications of CJEU Rulings and ECHR ...... 37 4 Other relevant information ...... 37

Iceland ...... 38 1 National Legislation ...... 38 2 Court Rulings ...... 38 3 Implications of CJEU Rulings and ECHR ...... 38 4 Other relevant information ...... 38

Ireland ...... 39 1 National Legislation ...... 39 2 Court Rulings ...... 39 3 Implications of CJEU Rulings and ECHR ...... 40 4 Other relevant information ...... 40

Italy ...... 41 1 National Legislation ...... 41 2 Court Rulings ...... 43 3 Implications of CJEU rulings and ECHR ...... 43 4 Other relevant information ...... 44

Latvia ...... 45 1 National Legislation ...... 45 2 Court Rulings ...... 45 3 Implications of CJEU rulings and ECHR ...... 45 4 Other relevant information ...... 46

Liechtenstein ...... 47 1 National Legislation ...... 47 2 Court Rulings ...... 47 3 Implications of CJEU rulings and ECHR ...... 47 4 Other relevant information ...... 47

Lithuania ...... 48 1 National Legislation ...... 48 2 Court Rulings ...... 49 3 Implications of CJEU rulings and ECHR ...... 49 4 Other relevant information ...... 49

Luxembourg ...... 50 1 National Legislation ...... 50 2 Court Rulings ...... 52

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3 Implications of CJEU rulings and ECHR ...... 54 4 Other relevant information ...... 54

Norway ...... 55 1 National Legislation ...... 55 2 Court Rulings ...... 55 3 Implications of CJEU rulings and ECHR ...... 56 4 Other relevant information ...... 56

Poland ...... 57 1 National Legislation ...... 57 2 Court Rulings ...... 57 3 Implications of CJEU rulings and ECHR ...... 57 4 Other relevant information ...... 57

Portugal ...... 58 1 National Legislation ...... 58 2 Court Rulings ...... 58 3 Implications of CJEU rulings and ECHR ...... 58 4 Other relevant information ...... 59

Romania ...... 60 1 National Legislation ...... 60 2 Court Rulings ...... 61 3 Implications of CJEU rulings and ECHR ...... 61 4 Other relevant information ...... 61

Slovakia ...... 62 1 National Legislation ...... 62 2 Court Rulings ...... 63 3 Implications of CJEU Rulings and ECHR ...... 63 4 Other relevant information ...... 63

Slovenia ...... 64 1 National Legislation ...... 64 2 Court Rulings ...... 64 3 Implications of CJEU Rulings and ECHR ...... 64 4 Other relevant information ...... 64

Spain ...... 66 1 National Legislation ...... 66 2 Court Rulings ...... 68 3 Implications of CJEU Rulings and ECHR ...... 69 4 Other relevant information ...... 69

Sweden ...... 70 1 National Legislation ...... 70 2 Court Rulings ...... 70 3 Implications of CJEU rulings and ECHR ...... 71 4 Other relevant information ...... 71

United Kingdom ...... 72 1 National Legislation ...... 72 2 Court Rulings ...... 72 3 Implications of CJEU rulings and ECHR ...... 72 4 Other relevant information ...... 72

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the Employment (Miscellaneous Executive Summary Provisions) Bill 2017. The draft legislation proposes banning ‘zero-hours ’, 1 National level developments except in cases of genuine casual work or where such contracts are essential to allow In December 2017, important developments in labour law took place in employers to provide cover in emergency many Member States and European situations or to cover short-term Economic Area (EEA) countries (see Table absences. It further requires employers to 1). Legislative initiatives and provide workers with specific key terms of focused specifically on the following employment within five days of issues: commencing employment, and contains • Working time provisions on ‘banded hours’ which will • Wages not, however, apply to banded-hours • Transfer of undertakings arrangements established by collective • Dismissal law. bargaining agreements. In Luxembourg,

Article L. 211-2 of the Labour Code states Working time that some categories of workers (domestic In Austria, the newly sworn in coalition services, family enterprises in the government’s Government Programme agricultural sector, etc.) are to be aims to extend the maximum weekly governed by “special , collective working hours regulated by law to up to 60 agreements or ”. The Court of hours per week, and the daily working Appeal now held that these employees, as hours up to 12 hours per day. It further long as no special provisions are in place, contains plans to enhance working time shall be governed by the general rules on flexibility by pushing matters currently working time. In Norway, the Ministry of regulated by sectorial CBAs to be Labour published a proposal for a new regulated by company level CBAs/works legislation on working hours of employees agreements or by agreements with who are on stand-by duty, with the date the individual workers, as well as other for consultation responses being set for 15 changes with the aim of further enhancing October 2018. In Poland, the Law on working time flexibility, including the Limiting Trade Activities on Sundays, introduction of further to the public holidays and some other days was Working Time Directive. In Bulgaria, the subject to legislative work in the Senate, days of religious holidays of religions other which suggested some amendments than Eastern Orthodoxy have been intended to specify the scope of exceptions determined for 2018 by Decision No. 754 provided by the Law. In Slovenia, of 8 December 2017. In Denmark, discussions among the social partners Proposal L 116 and L 117 for a new Holiday on certain aspects related to Act, introducing accrued paid holidays the organisation of working time in shops based on working time, was first debated have taken place. The proposed in Parliament on 6 December 2017, with amendments mostly focus on the opening the second and third readings scheduled to time of shops and the limitations of take place on 23 and 25 January 2018. In Sunday work. The draft act was rejected Finland, the government has submitted a during the first reading, the main proposal to Parliament that aims to argument being that the social partners strengthen the position of employees who signed Annex No. 3 to the branch work alternating working hours, to on trade activity, guarantee that their right to employment which deals with these issues. protection is implemented in practice. In Ireland, the Minister for Employment Affairs and Social Protection has published

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Transfer of undertakings that a transfer of undertaking took place in a case in which the employment In Austria, the Supreme Court has ruled relationship of a personal assistant hired in a case in which an employee terminated to provide user-directed personal the employment relationship following the assistance was terminated when the user transfer of undertaking and claimed changed service providers, being the unit augmented redundancy payments of five assistants that assisted the user included in the transferor’s collective clearly separated from the provider and agreement in favour of the employee, as considered an independent economic unit the ‘after effect’ of a collective agreement and the economic activity remaining only applies to those employment unchanged after the transfer. Therefore, relationships that were governed by it the assistant was entitled to continue his prior to its rescission As the employee was employment with the new provider. not covered by the transferee’s collective agreement, its after effect could not Dismissal law replace the transferee’s obligation pursuant to Article 3 (3) Directive In Bulgaria, a new para. 3 was added to 2001/23. In Bulgaria, an amendment to Article 228 of the Labour Code introducing the Commerce Act provides for a new a guarantee for payment of guarantee of payment of labour compensations due in case of termination remunerations, establishing the rule that of the employment relationship. In employees may only be transferred to a Croatia, the Amendment to the Labour new employer if the transferor has paid all Act re-established the previous provision labour remunerations, compensations and on the replacement of the ’s obligatory social insurance contributions to refusal to give consent to the employer’s employees, including those the employee decision on dismissing protected was entitled to under the employment employees by judicial . Now, as relationship which was terminated three was the case prior to 2014, it is up to the years before the transaction. In Croatia, employer to claim replacement of such a the amendment to the Labour Act of 2014 refusal before the court or has clarified that the rules on transfers of committee. In Denmark, the Supreme undertakings, businesses or parts of an Court dealt with the question of whether undertaking or business apply to the the dismissal protection of shop stewards members of the crew of seagoing vessels within the same or similar field of work in the same way they do for all employees. could be documented, and held that, in the In France, the labour division of the Court present case, the employee had not lifted of Cassation has overturned its the burden of proof, as no collective , applying its case law agreement covering the same or similar relating to the presumption of justification type of work for with the same or of unequal treatment settled by a similar educational background was agreement to the produced. In Hungary, the Kúria conventional transfer of employment confirmed a judgment of the court of contracts. The Court held that the unequal second instance clarifying the treatment the transferred workers might interpretation of Section 66 sub 4 of the suffer is automatically justified when the Labour Code on dismissals of age- transfer of undertaking occurred by protected employees. In Spain, the conventional means. This case law is Supreme Court recalled that the special significant since it provides the first protection granted to pregnant workers example of a situation that is not and to workers who enjoy the right to disconnected from any professional reconcile work and family life applies, even matters: unequal treatment settled by a if the undertaking did not know at the time conventional transfer of employment of dismissal that the worker was pregnant. contracts is not disconnected from any professional matters, and the transferred workers cannot invoke unequal treatment. In Norway, the Supreme Court has ruled

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2 Implications of CJEU and not define the place where weekly rest EFTA Court Rulings periods should be taken. Therefore, the reading of this law must be adapted to Case C-158/16, Vega Gonzalez – match the CJEU ruling in Vaditrans, establishing that in the road transport Fixed-term work sector, drivers cannot take their regular In Croatia, Vega González may have an weekly rest period to which they are impact, since the Act on obligations and entitled in their vehicle while on the other hand, the reduced weekly rest period may rights of state officials of 1998, the right of be taken in the vehicle subject to certain state officials (including employees and conditions, in the sense that the Croatian civil servants elected to a parliamentary law cannot be interpreted as allowing role) to reinstatement to a previous job drivers to take their weekly rest period in only applies when they had an open-ended the vehicles. employment ; there is no such right guaranteed to fixed-term workers. Therefore, there is room for improvement of the above-mentioned provisions of the Act on obligations and rights of state officials. The state officials should be entitled to reinstatement to their previous jobs, even if they were fixed-term workers in situations in which at the end of their terms of office reasons still existed to employ them as fixed-term workers. In Spain, the administrative legislation that regulates the working conditions of public officials recognises certain rights to career civil servants which do not extend to temporary staff, including the possibility to take special leave for the purpose of holding a political office. In Vega González, the CJEU ruled that a fixed-term worker elected to a parliamentary role must be able to benefit, for the purposes of holding political office, from the same special leave granted to a permanent civil servant and, therefore, Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding national legislation that absolutely precludes granting this leave to fixed-term workers when that right is conferred on permanent workers, as is the case in Spanish legislation.

Case C-102/17, Vaditrans - Working time In Croatia, the Act on working time, mandatory rest periods of mobile workers and recording devices in road transport of 2013 (as amended in 2015 and 2017) does

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Table 1. Main developments (excluding implications of CJEU or EFTA-Court rulings)

Topic Countries Working time AT, BG, DK, FI, IE, LU, NO, PL. SI Wages AT, BG, DE, ES, FR, HR, IT, PT, SK Transfer of undertakings AT, BG, FR, HR, NO Dismissal law BG, DK, ES, HR, HU Social security CZ, IT, RO, SE Fixed-term work EL, HR, SK ALMP AT, ES, IT Employers BG, IE, LV Employee representation FI, LU Collective bargaining agreements ES, FR Collective redundancy ES, FR Anti-discrimination SE, IT Third Country Nationals HR, LT Posting of workers LI Free movement of workers AT Training BE Pension schemes BE Public procurement BG Seafarers HR Parental leave LU Special leave LU Undeclared work SI Uber UK UK

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Austria

Summary (I) The new Austrian centre-right coalition government has decided to abolish the Employment Bonus and the ‘Aktion 20 000’, active labour market policies designed to assist the creation of jobs and the hiring of (ageing) unemployed workers in Austria. (II) The Austrian Supreme Court ruled on cases concerning the non- application of free movement provisions to purely internal situations and the application of terminated collective agreements in case of transfer of an undertaking. (III) The new Austrian centre-right coalition government was sworn in on 18 December 2018. The Government Programme proposes numerous changes in the field of labour law, with a focus on enhancing working time flexibility. (IV) The government aims to abolish the remaining distinctions between blue collar and white collar workers. (V) Amendments to the Act Against Wage and Social Dumping are also being planned. ______1 National Legislation The new coalition government was sworn in on 18 December 2018 (see Chapter 4 of the report on the Government Programme). So far, no new legislation in the field of labour law has been passed.

1.1 Active Labour Market Policies Employment Bonus and ‘Aktion 20 000’ The new government has decided on very short notice to cut both the Employment Bonus (Beschäftigungsbonus), BGBl. Nr. 83/2017 and the ‘Aktion 20 000’, BGBl. Nr. 128/2017. These programmes were active labour market policies designed to foster the creation of jobs and the hiring of (ageing) unemployed workers in Austria (see also July 2017 Flash Report). The Employment Bonus ended on 31 January 2018, ‘Aktion 20 000’ ended on 31 December 2017. Sources: Press articles on the topic published in derStandard.de on 01 January 2018 and on 02 January 2018, respectively, can be found here and here. An article on the topic published on 02 January 2018 in Kleine Zeitung can be found here.

2 Court Rulings 2.1 Free Movement of Workers Supreme Court, 8 ObA 8/17 k, 25 October 2017 A hospital doctor, who moved from private to a public employment, did not have all her previous times of service taken into account with regard to biannual pay rises. Only those working periods for other public employers were taken into account in full, whilst other relevant working periods were only considered up to a certain threshold. She

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claimed, among others, that this was in breach of EU law, namely of the principle of the free movement of workers. As in a similar case before (8 ObA 34/17h), the Supreme Court (decision No. 8 ObA 8/17k) rejected the claim, as this concerned a purely internal matter only without any cross-border aspects and therefore, EU law did not apply (see also November 2017 Flash Report, section 2.3).

2.2 Transfer of undertaking and application of collective bargaining agreements Supreme Court, 9 ObA 84/17v, 30 October 2017 The decision of the Supreme Court (Supreme Court 30 October 2017, 9 ObA 84/17v) concerns the transfer of Austrian Airlines, the Austrian national carrier, to Tyrolean Airways. Such a transfer has been the factual basis for the decision of the CJEU case C- 328/13, 11 September 2014 – Österreichischer Gewerkschaftsbund vs. Wirtschaftskammer Österreich. In that decision, the CJEU ruled that the terms and conditions laid down in a collective agreement, which, pursuant to the law of a Member State (in this case Austria), despite the rescission of that agreement, continue to produce effects for the employment relationship which was governed by them before the agreement was terminated (the so called “after effects”), constitute ‘terms and conditions agreed in any collective agreement’ as long as that employment relationship is not subject to a new collective agreement or a new individual agreement is concluded with the employees concerned. In the present case, an employee terminated the employment relationship following the transfer and claimed augmented redundancy payment included in the transferor’s collective agreement. The new employer (the transferee) argued that the collective agreement to which it was a party should have been applied, although it had been terminated prior to the transfer. The Court of Appeal as well as the Supreme Court decided in favour of the employee as the ‘after effect’ of a collective agreement only applies to those employment relationships that were governed by it before its rescission (§ 13 Labour Consitution Act: ‘The legal effects of the collective agreement shall continue to apply after its termination in respect of the employment relationships that were covered by it immediately prior to its termination, unless a new collective agreement takes effect for those employment relationships or a new individual agreement is concluded with the employees concerned.’) As the employee was not covered by the transferee’s collective agreement, its after effect could not replace the transferee’s obligation pursuant to Article 3 (3) Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and § 4 Act on the Adaption of Employment Law (Arbeitsvertragsrechtsanpassungsgesetz) that transposes this Directive in the Austrian legal system.

3 Implications of CJEU Rulings and ECHR Nothing to report.

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4 Other relevant information 4.1 Working time The new Government Programme contains plans to reforming Austrian labour law, the most significant being the enhancement of working time flexibility. This aim is presented in the Government Programme’s chapter on “business location”, and not in the chapter on “labour”, thus inviting criticism that the increased flexibility will primarily serve employers, not workers.

4.1.1 Increase of permissible maximum working hours The current maximum weekly working hours are regulated by law, allowing collective bargaining agreements (CBAs) to deviate both in favour of the employers and the workers. By law, the maximum weekly working time is 50 hours (the normal working time being 40 hours per week) and the maximum daily working time is ten hours (the normal working time being eight hours per day). A number of CBAs already exceed that maximum daily and weekly limit. The Government Programme now aims to extend the maximum weekly working hours regulated by law up to 60 hours per week, and the daily working hours up to 12 hours per day. In line with these changes, the government also plans to increase the maximum normal daily working time for workers on flexitime from ten to 12 hours per day. The average weekly working time may not exceed 48 hours per week, thus respecting the limits of Directive 2003/88/EC concerning certain aspects of the organisation of working time. Despite the modification of the maximum working hours, no changes are planned for the normal working time. This means that for every hour worked beyond the normal working hours, overtime premiums will be due, and there are no plans (yet) to amend the laws on overtime premiums. The current law also provides a limit on overtime, which will remain unchanged. However, the government aims to loosen the restrictions that are currently in place to exceed these limits on overtime (Sonderüberstunden, extra overtime hours) in favour of companies.

4.1.2 Shifting the of working time matters from CBAs to company/individual level In addition to maximising working hours, the Government Programme contains plans to enhance working time flexibility by pushing matters currently regulated by sectorial CBAs to be regulated by company level CBAs/by works council agreements or by agreements with the individual workers (if no works council has been installed). The Government Programme does not name any specific issue to be delegated, but currently, most matters concerning working time flexibility are subject to regulation by sectorial CBAs, e.g. by agreement on extending normal working time or shortening periods of rest.

4.1.3 Enhancing working time flexibility The Government Programme also contains a number of planned changes with the aim of further enhancing working time flexibility, namely: Flexitime: CBAs may regulate that time credits can be transferred not only to the next period to average out working time (which is currently the case), but to several periods thereafter. This results in an increased chance of using up the time credit and evasion of paying overtime bonuses.

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Cutting weekend rest/rest on public holidays: At the company level, it will be permissible for companies to work during weekend rest periods/public holidays four times per year (despite the ban of working during weekend rest periods/public holidays, which applies in most sectors). The premium scheme—working during weekend rest periods/public holidays is generally remunerated with bonuses regulated in CBAs—should remain unchanged. Reducing periods of rest: Daily rest periods in the tourism industry will be cut from 11 to eight hours, in case periods of work are divided across the day (e.g. breakfast and dinner duties), making use of the exception in Article 17 para 4 lit b of Directive 2003/88/EC concerning certain aspects of the organisation of working time. Introduction of further derogations according to Article 17 para 1 of the Working Time Directive 2003/88/EC: The government also aims to broaden the definition of managing executives in accordance with Article 17 para 1 of the Directive 2003/88/EC concerning certain aspects of the organisation of working time, by extending the current legal definition “managing executives” to “managing executives or other persons with autonomous decision-taking powers” and “family workers”. However, it should be noted that the current understanding of “managing executives” in Austrian jurisprudence (based on § 1 (2) 8 Arbeitszeitgesetz – Working Time Act) goes in part beyond the understanding of the CJEU and the recently expressed understanding of the European Commission (Interpretative Communication on Directive 2003/88/EC, 2017/C 165/01). Introduction of time accounts (Zeitwertkonten; Arbeitszeit-Sparbuch): Time value accounts should allow workers to decide on their own whether to forward certain overtime premiums, premiums or other benefits to an account to be paid out at a later stage, e.g. when the worker decides to take a leave of absence.

Sources: A press article on the topic published by derStandard.de on 16 December 2017 can be found here. A press article on the topic published by DiePresse 6 December 2017 can be found here.

4.2 Uniform notion of ‘worker’ The Government Programme aims to abolish the remaining distinctions between blue and white collar workers by introducing a uniform notion of ‘worker’. Currently, the distinction is most relevant in collective labour law – namely when it comes to the creation of works and the conclusion and application of CBAs. The uniform notion of worker should also change these differences: instead of a separate works council for blue collar and white collar workers, a uniform works council for all workers of the company will be introduced (see also October 2017 Flash Report).

4.3 Revising the Act Against Wage and Social Dumping The government plans to review the Act Against Wage and Social Dumping as it is of the opinion that the Act is too harsh on national companies. The Act not only punishes wage dumping for posted workers, but also for national workers and imposes heavy fines if the wages are not paid exactly as regulated in the—often complicated—CBAs. The new government is of the opinion that such a strict standard disadvantages national companies, as fines on foreign companies often cannot be executed. Hence, the current harsh standard should only remain in the construction industry, and be loosened for other sectors. Additionally, clarifications and further exceptions to the Act are planned,

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and efforts should be increased to enforce the Act against companies from other Member States.

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Belgium

Summary (I) The so-called Programme Law has been enacted. (II) The “Feasible and Flexible Work” Law has converted the existing (suspended) intersectoral training objective into an average of five days' training per year as part of a growth path. (III) The Constitutional Court annulled the raising of the minimum age for drawing a survivor's pension. The increase in statutory retirement age and the tightening of conditions for early retirement remain unchanged. ______1 National Legislation 1.1 The Programme Law The Programme Law which includes amendments for the existing legal system of flexi- jobs, provisions on e-commerce, the activation of contributions paid by employers and the system of non-recurring, results-related benefits for employees has been enacted (for more information on the content of the law, see the November 2017 Flash Report).

1.2 Training The Royal of 05 December 2017 implementing the rules on the training obligation imposed by the Law “Feasible and Flexible Work” of 05 March 2017 will retroactively enter into force on 01 February 2017. The legal rules can be summarised as follows (see also March 2017 Flash Report). The Feasible and Flexible Work Law introduced an inter-professional training objective granting an average of 5 training days to each full-time employee. This new obligation will replace private sector employers' obligations that applied in 2017 (to provide for an overall training investment of at least 1.9 percent of the total wage of all companies combined). The "5-day target" does not have to be realised immediately. In 2017, an average of 2 days of training per year and per employee had to be granted. In addition, it is also mandatory to establish a growth path indicating the extent to which the number of training days has been increased to reach an average of 5 training days per year. No deadline has been set for the achievement of this growth path. The training obligation applies to employers and private sector employees. Employers who employ less than 10 employees are excluded from the statutory scheme. The training objective can be implemented in practice in three ways: • by concluding a new sectoral collective agreement, • by extending a sectoral collective agreement covering the periods 2013- 2014 and 2015-2016, • by transferring training days to an individual training account. If no new or extended collective bargaining agreement is concluded at sector level, the training measures can also be concretised by granting a training loan to an individual training account. This training credit may not be less than the equivalent of 2 days for a full-time worker employed all year round. The individual training account should provide a growth path that increases the number of training days to achieve the

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interprofessional training objective of an average of 5 training days per year per full- time employee. The employer must inform the employee of the envisaged growth path. The individual training account must be documented electronically or in hard copy.

2 National Court Rulings 2.1 Pension schemes Constitutional Court, No. 135/2017, 30 November 2017 The trade unions submitted a claim before the Constitutional Court to oppose the Law of 10 August 2015 which increased the statutory retirement age, the conditions for access to early retirement and the minimum age for drawing the survivor's pension and raising the statutory retirement age from 65 to 67 years of age, raising the age for early retirement from 62 years and 40 years of service to 63 years of age and 43 years of service and increasing the minimum age for the survivor's pension from 50 to 55 years of age between 2025 and 2030. Among other things, the trade unions pointed to the social decline and the discrimination between men and women that the contested law would cause. The trade unions did, however, support the increase in the minimum age for drawing the survivor’s pension. The other measures will remain in place. The Constitutional Court acknowledges that this is in the public interest.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Bulgaria

Summary (I) The Act on Employee Claims Guaranteed in the Event of Employer provides an entitlement to guaranteed claims for all employees who have concluded a contract of employment with the employer, regardless of the term of the contract and the length of working hours. (II) A new guarantee for payment of compensation due in case of termination of the employment relationship has been introduced. (III) The General Labour Inspectorate is entitled to initiate bankruptcy proceedings in case of non-payment of labour remunerations. (IV) The employer now has the obligation to officially require the certification of higher education gained abroad. (V) The labour inspectorate may give mandatory prescriptions to employers, user undertakings, the appointing authorities and officials for payment of unpaid labour remunerations and compensations. (VI) The quality standards of occupational health services shall be approved by the Ministers of Health and of Labour and . (VII) Employers who have open obligations to employees are prohibited from participating in public procurement procedures. (VIII) Employees may only be transferred to a new employer if the transferor has paid all labour remunerations, compensations and obligatory social insurance contributions to its employees. (IX) The days of religious holidays for religions other than the Eastern Orthodox faith have been determined by the Council of Ministers for 2018. ______1 National Legislation 1.1 Guaranteed claim of employees in case of employer’s bankruptcy Amendments to the Act on Employee Claims Guaranteed in the Event of Employer Bankruptcy (State Gazette, No. 102 of 27 December 2017) have been introduced. Article 4(1) of the Act on Employee Claims Guaranteed in the Event of Employer Bankruptcy provides an entitlement to guaranteed claims for all employees who have concluded a contract of employment with the employer, regardless of the term of the contract and the length of working hours. This entitlement does not depend on the employer’s procedure of declaring bankruptcy as was the case before the amendments were introduced. The employees’ guaranteed claims shall be in an amount equal to the last six accrued but unpaid labour remunerations and financial indemnifications for the 36 calendar months preceding the month in which the decision referred to in Article 6 of the Act on Employee Claims Guaranteed in the Event of Employer Bankruptcy is registered. Their maximum account shall be determined every year by the State Budget Act, but not less than two and a half minimum wages (Article 22).

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1.2 Compensation in case of termination of the employment relationship A new para. 3 was added to Article 228 of the Labour Code (State Gazette, No. 102 of 27 December 2017), which introduced a guarantee for payment of compensations due in case of termination of the employment relationship. These compensations must be paid no later than the last day of the month following the month of termination. After this term, the compensation remains exigible and shall be paid in addition to the legal .

1.3 Employer bankruptcy Amendments and supplements to labour and commercial legislation (State Gazette, No. 102 of 27 December 2017) have introduced new rules on employer bankruptcy to guarantee payment of labour remuneration. Under the new Article 399 (3) of the Labour Code connected with Article 623 of the Commerce Act, the Main Labour Inspectorate is entitled to initiate bankruptcy proceedings in case of non-payment of labour remunerations.

1.4 Mutual recognition of certificates The Minister of Labour and Social Policy amended Ordinance No. 4 of 1993 on documents necessary to conclude an employment contract (State Gazette, No. 99 of 12 December 2017). The new para. 2 of Article 1 obligates the employer to officially require certification of higher education gained abroad.

1.5 Mandatory prescription of wages A supplement to Article 399(1) of the Labour Code (State Gazette, No. 102 of 27 December 2017) empowers the General Labour Inspectorate to exercise control over unpaid labour remunerations and compensations even after the termination of the employment relationship. In such cases, the labour inspectorate may give mandatory prescriptions to employers, user undertakings, the appointing authorities and officials for payment of unpaid labour remunerations and compensations (the new item 12 of Article 404(1) of the Labour Code). Under this circumstance, the new item 8 of Article 417 of the Code (State Gazette, No. 102 of 27 December 2017) entitles the applicant for an order of payment proceeding to request the issuing of an enforcement order in which the receivable, regardless of the amount, is based upon a mandatory prescription of the labour inspectorate to an employer for payment of financial obligations under an employment relationship that have not been paid for more than two months.

1.6 Occupational health service Amendments and supplements to the Health and Safety at Work Act (State Gazette, No. 97 of 05 December 2017) have established some new rules on occupational health services. The new para. 4 of Article 25a provides that the quality standards for occupational health services shall be approved by the Ministers of Health and of Labour and Social Policy. The amended item 2 of Article 25b(1) requires professionals in the field of technical sciences to be included in occupational health services.

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1.7 Public procurement An amendment to Article 54(1), item 6 of the Public Procurement Act (State Gazette, No. 102 of 27 December 2017) prohibits participation in public procurement procedures of employers who have open obligations to employees.

1.8 Transfer of undertaking Supplements to Article 15 of the Commerce Act (State Gazette, No. 102 of 27 December 2017) provide for a new guarantee of payment of labour remunerations. The new paragraphs 3 and 4 establish the rule that employees may only be transferred to a new employer if the transferor has paid all labour remunerations, compensations and obligatory social insurance contributions to employees, including those the employee was entitled to under the employment relationship was terminated three years before the transaction. In case of mutual agreement between the parties of the transaction, the transferee may take over this obligation.

2 National Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Noting to report.

4 Other relevant information 4.1 Religious holidays Under Article 173 (2—3) of the Labour Code, the employer is required to permit employees who are not Eastern Orthodox Christians to use part of paid or to grant them unpaid leave for the days of their respective religious holidays, but not more than the number of days of leave for Eastern Orthodox Christian holidays. The days of religious holidays of the religions other than Eastern Orthodoxy shall be determined by the Council of Ministers on a motion by the official leadership of the relevant religious denominations. These days for 2018 have been determined in Decision No. 754 of 8 December 2017 (State Gazette, No. 99 of 12 December 2017).

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Croatia

Summary (I) The Amendment to the Labour Act of 2014 transposes Directive 2015/1794 on seafarers into national law by Article 2 of the Labour Act. (II) The Amendment to the Labour Act of 2014 has reintroduced the provision, previously abolished in 2014, on the possibility of the employer to bring a claim before the court to replace the works council’s refusal to give consent to the employer’s decision on dismissing protected employees (such as employees who are members of the works council, disabled employees, older employees, etc.). (III) The Amendment to the Act on European Works Councils of 2014 prescribes the use of new information and communication technologies for members of the negotiating body or of a European Works Council, who are unable to attend the meetings. (IV) The Amendment to the Act of 2013 asserts that the wage raise for overtime work, night work or work on holidays does not amount to the minimum wage. (V) Based on the Act on Entitlement of the Government of the Republic of Croatia to regulate certain issues from the material scope of the Croatian Parliament, the Government of the Republic of Croatia has issued the Regulation on the Amendment to the Act on Scientific Activity and Higher Education which provides for an exception to the rule that successive fixed-term employment contracts are limited to a three- year period. (VI) The Government of the Republic of Croatia has issued the Regulation on the amount of minimum wage as well as the decision on the annual quota of work permits for the employment of aliens in 2018. (VII) The Minister of Labour and Pension System has issued a decision on the minimum daily pay of seasonal workers in agriculture in 2018. ______1 National Legislation 1.1 Amendment to the Labour Act of 2014 The Amendment to the Labour Act of 2014 has been adopted (Official Gazette No. 127/2017).

1.1.1 Seafarers To clarify that the provisions of the Labour Act of 2014 on collective redundancy, transfer of an undertaking, business or part of an undertaking or business apply to the members of the crew of seagoing vessels in the same way they do for all employees and thereby transpose Directive 2015/1794 on seafarers into national law, it has been explicitly stated that Directive 2015/1794 has been transposed by Article 2 of the Labour Act. There is no need to add other provisions in this regard, since neither the Labour Act of 2014 nor any other separate Act provides for different treatment of the members of the crew of a seagoing vessel in terms of protection in case of collective redundancy and transfers of undertaking.

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1.1.2 Dismissal of protected employees The other reason for the adoption of the Amendment to the Labour Act is the need to re-establish the previous provision on the replacement of the works council’s refusal to give consent to the employer’s decision on dismissing protected employees (such as employees who are members of the works council, disabled employees, older employees, etc.) by judicial judgment. Now, as was the case prior to 2014, it is up to the employer to claim replacement of such a refusal before the court or arbitration committee. The Labour Act of 2014 did not give the employer the opportunity to claim this before the court but solely through arbitration. Meanwhile, legal preconditions for arbitration had not been fully realised and as a consequence, based on the transitional provisions of the Labour Act of 2014, the provision of the previous Labour Act applied, i.e. employers continued to make claims before the court on the replacement of the works council’s refusal to give consent to the employer’s decision on dismissing protected employees. Moreover, a minor clarification has been introduced in Article 151(1)(4). Prior to the Amendment, the law stated: “The employer’s decisions that may only be rendered with prior consent of the works council includes the decision on dismissing an employee over 60 years of age.” The new wording of the same provisions introduced in the Amendment to the Labour Act includes the same employer obligation towards employees who have turned 60 years of age.

1.2 Amendment to the Act on European Works Councils for seafarers The Amendment to the Act on European Works Councils of 2014 has been adopted (Official Gazette No. 127/2017) to transpose Directive 2015/1794 on seafarers. Two new paragraphs have been added (in Article 14 and Article 31). Article 14 regulates the work of the negotiating body and Article 31 that of the European Works Council. The paragraphs added in these provisions prescribe the use of new information and communication technologies for those members of the negotiating body or of a European Works Council, who are unable to attend the meetings.

1.3 Amendment to the Minimum Wage Act The Amendment to the Minimum Wage Act of 2013 has been adopted (Official Gazette No. 130/2017). According to the Minimum Wage Act of 2013, minimum wage was solely, without further clarification, defined as the lowest monthly gross wage for full-time work. The Act now clarifies that the wage raise due for overtime work, night work or work on holidays does not amount to the minimum wage. Mandatory social security contributions are 50 percent less for employees who earn minimum wage after 12 months of a qualifying period (Article 2(4) of the Minimum Wage Act). This provision is not applied to minimum wage employees who are simultaneously members of the board of directors or managers of the cooperative. The same provision is not applied to pay raises such as pay for overtime work, night work or work on holidays.

1.4 Fixed-term work Based on the Act on Entitlement of the Government of the Republic of Croatia to regulate certain issues from the material scope of the Croatian Parliament, the Government of the Republic of Croatia has issued the Regulation on the Amendment to the Act on Scientific Activity and Higher Education. Article 42(6) of the Act on Scientific Activity and Higher Education has been amended in a way that provides for an exception to the rule that successive fixed-term contracts are limited to a three-year period. Namely, it

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is possible to conclude successive fixed-term employment contracts for an uninterrupted period of six years with individuals engaged in fixed-term projects if justified reasons exist.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and EC 3.1 Weekly rest period of drivers in the road transport sector CJEU Case C-102/16, 20 December 2017, Vaditrans According to the CJEU case 20 December 2017, C-102/16, Vaditrans BVBA vs. Belgische Staat, in the road transport sector, drivers may not spend the regular weekly rest period to which they are entitled in their vehicle. On the other hand, however, the reduced weekly rest period may be spent in the vehicle subject to certain conditions. In Croatia, the Act on Working Time, Mandatory Rest Periods of Mobile Workers and Recording Devices in Road Transport of 2013 (as amended in 2015 and 2017) does not define the place where weekly rest periods should be spent. Therefore, the provisions on weekly rest periods should be interpreted in line with the case law of the CJEU.

3.2 Fixed-term workers CJEU Case C-158/16, 20 December 2017, Vega González According to the CJEU case 20 December C-158/16, Margarita Isabel Vega Gonzales vs. Consejeria de Hacienda y Sector Publico del Principado de Asturias, a fixed-term worker elected to a parliamentary office must be able to benefit, for the purposes of holding political office, from the same special leave granted to a permanent civil servant. In Croatia, in Article 15d and Article 15e of the Act on Obligations and Rights of State Officials of 1998 (last amended in 2017) regulate the right of state officials (which, among others, includes employees and civil servants elected to a parliamentary office) to reinstatement in their previous job only when they had employment contracts of indefinite duration. No such right is guaranteed for fixed-term workers. Therefore, there is room for improvement of the above-mentioned provisions of the Act on obligations and rights of state officials. State officials should be entitled to reinstatement in their previous jobs, even when if were fixed-term workers when their term of office ends and if the reason for why they were employed as fixed-term workers still exists.

4 Other relevant information 4.1 Minimum wage The Government of the Republic of Croatia has issued the Regulation on minimum wage. It will amount to HRK 3 439.80 (about EUR 456.00) in 2018. In 2017, it amounted to HRK 3 276.00 (EUR 436.80).

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4.2 Annual quota of work permits for the employment of aliens in 2018 Based on the Aliens Act, the Government of the Republic of Croatia has issued the Decision on annual quota of work permits for the employment of aliens in 2018. In total, 31 000 work permits will be provided: 9 000 for extensions of already issued work permits, 21 210 work permits for new employment and 540 work permits for seasonal workers in agriculture.

4.3 Minimum daily pay of seasonal worker in agriculture in 2018 The Minister of Labour and Pension System has issued the Decision on the minimum daily pay of seasonal worker in agriculture in 2018. Seasonal workers in agriculture cannot be paid less than HRK 83.19 (about EUR 11.00) a day. It is a pay raise, as the minimum daily pay of seasonal workers in agriculture in 2017 amounted to HRK 70.25 (about EUR 9.36).

4.4 Basic Collective Agreement for public servants and public employees A fixed-term collective agreement (until 30 November 2021) for public servants and public employees has been concluded.

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Czech Republic

Summary (I) A government regulation on the adjustment of compensation provided for any loss in earnings after the end of a period of temporary incapacity for work attributable to a work accident and/or occupational disease as well as on the adjustment of compensation for survivors pursuant to labour law has been published. (II) A ministerial decree on the adjustment of rates of the basic allowance for the use of motor vehicles and meal allowances, and of determining the average of fuel for the purpose of providing travel expenses has been published. (III) A ministerial decree on the stated basic rates for the foreign catering fee for the year 2018 has been published. (IV) A ministerial decree amending the ministerial decree on implementing certain provisions of the Act on Specific Health Services has been published. ______1 National Legislation 1.1 Annual valorisation of compensation for temporary incapacity for work Governmental Regulation No. 406/2017 Coll., on the adjustment of compensation provided for a loss of earnings after the end of a period of temporary incapacity for work attributable to a work accident and/or occupational disease and on the adjustment of compensation of survivors pursuant to labour law regulations was published on 7 December 2017 and comes into effect on 01 January 2018. The Regulation governs the calculation of the following types of compensation: • compensation for loss of earnings after the end of a period of temporary incapacity for work attributable to a work accident and/or occupational disease; • compensation of survivors (provided to eligible survivors of the employee). The amount of compensation is calculated based on the employee’s average earnings. For the purposes of the calculation, the rate of valorisation of the average earnings is adjusted at the end of each year. The amount of average earnings is now to be increased by 3.5 percent. The above only applies to claims that arose before 31 December 2017.

1.2 Travel allowances Ministerial Decree No. 463/2017 Coll., on the adjustment of rates of the basic allowance for using motor vehicles and meal allowances and on determining the average price of fuel for the purpose of providing travel expenses was published on 22 December 2017 and comes into effect on 01 January 2018. The Decree amends the rates for fuel compensation and the amount of domestic catering fee compensation. The average fuel for the purpose of providing travel allowances to employees in 2018 are now as follows: • Gasoline (95 oct.) – CZK 30.50 per litre;

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• Gasoline (98 oct.) – CZK 32.80 per litre; • Diesel fuel – CZK 29.80 per litre. The basic compensation rates for the use of motor vehicles is now as follows: • for cars - CZK 4 per kilometre; • for one track vehicles and three-wheelers – CZK 1.10 per kilometre. The minimum rates of domestic catering fees provided to employees for every calendar day of a domestic business trip in 2018 slightly increased and are as follows: • business trip lasting from 5 to 12 hours – CZK 78; • business trip lasting from 12 up to 18 hours – CZK 119; • business trip lasting for more than 18 hours – CZK 186.

1.3 Statutory minimums for travel allowances abroad – foreign catering fees Ministerial Decree No. 401/2017 Coll., on stated basic rates for foreign catering fees for the year 2018 was published on 30 November 2017 and comes into effect on 01 January 2018. Due to changes in the exchange rates of foreign currencies and/or prices abroad, the travel abroad allowances—foreign catering fees in case of a business trip abroad—have been amended accordingly. As of 1 January 2018, the amendments are as follows: • Australia and Oceania from USD 50 to USD 55; • Bahamas from USD 50 to USD 55; • Belgium from EUR 45 to EUR 50; • Bolivia from USD 45 to USD 50; • Great Britain from GBP 40 to GBP 45; • Morocco from EUR 35 to EUR 40; • New Zealand from USD 50 to USD 55; • Republic of Korea from EUR 45 to EUR 50. Foreign catering fees for other countries will remain the same.

1.4 Amendments to the Ministerial Decree on Specific Medical Services – Health services and health assessment Ministerial Decree No. 436/2017 Coll. amending Ministerial Decree No. 79/2013 Coll., on implementing certain provisions of Act No. 373/2011, on Specific Health Services, has been published. The Decree has been adopted to amend Ministerial Decree No. 79/2013 Coll., a delegated piece of legislation that regulates workers’ health assessment by health service providers and related issues. a) Entrance medical examinations The entrance medical examination is to be performed upon a change in the type of work performed by the employee or upon a transfer of the employee to alternative work when the work is to be subsequently performed under different conditions.

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The Decree also amends the frequency of so-called periodic examinations – the frequency of these examinations is calculated based on 5 categories of work performed (as specified by related legislation). The frequency is only adjusted for workers of category II – the periodic examinations are now to be conducted every 4 years, or every 2 years for employees over 50 years of age. b) Periodic medical examinations Periodic medical examinations are now to also be conducted when employees perform work outside the employment relationship (depending on the length of employment and category of work), given that the same type of work is repeatedly performed on the basis of these agreements and the total duration exceeds the length of the period for carrying out the periodic medical examinations set forth for employees employed under on employment contract. Moreover, an annual mandatory medical examination for night workers has been deemed unnecessary and the frequency was extended to 2 years. Another isolated change relates to employees who occasionally drive company motor vehicles (driving is not their agreed type of work) – the frequency of periodic medical examinations has been specified as follows: it is to be performed every 6 years (4 years for employees over the age of 50 years) for category I, every 4 years (2 years for employees over the age of 50 years) for categories II through IV. The date of the next periodic medical examination is determined on the basis of the date of issuance of the medical opinion in connection with entrance, extraordinary, or previous periodic medical examination. c) Extraordinary medical examinations Extraordinary medical examinations are to be performed 5 days at the latest after the performance of work was resumed following an interruption. d) Exit medical examinations An exit medical examination is always conducted upon termination of an employment relationship when a) the employee performs high-risk work (as specified by related legislation – categories II (hazardous), II and I.); b) the employee was found to have developed an occupational disease or is at risk of developing one; or c) the employee suffered an injury at work (in specific cases). The exit medical examination is also performed upon the transfer of the employee to another job (from high-risk work) in special cases set forth by law, or on request of the employer (or employee via the employer). The Decree further amends certain other minor related aspects, e.g. requisites for application to carry out medical examinations and health assessments in relation to work and requirements on the requisite contents of medical opinions issued by eligible health services providers and specific requisites for confirmation of the exit medical examination, etc. The Decree was published on 15 December 2017 and came into effect on the same day.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

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4 Other relevant information Nothing to report.

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Denmark

Summary (I) A proposal for a new Holiday Act is under debate in Parliament. (II) Health and safety representatives in the private sector only enjoy special dismissal protection when a collective agreement covering the same type of work provides special dismissal protection for shop stewards. Lack of a shop steward agreement affects the level of dismissal protection for safety representatives. ______1 National Legislation 1.1 Holidays Proposal L 116 and L 117 for a new Holiday Act was first debated in Parliament on 6 December 2017. The second and third debates are scheduled to take place on 23 and 25 January 2018. The proposal builds on a report of the Committee on a New Holiday Act, and introduces accrued paid holidays based on working time. The proposal is intended to bring Danish law in line with EU law.

2 Court Rulings 2.1 Dismissal protection of safety representatives Supreme Court, No. 50/2017, 29 November 2017 A privately employed employee, who was initially trained as a librarian but worked in IT services for years, was dismissed. The employee had been appointed health and safety representative at the company. The employee claimed entitlement to special protection from dismissal as the company’s health and safety representative, since health and safety representatives enjoy the same dismissal protection as shop stewards. Shop stewards enjoy special dismissal protection according to a collective agreement, not by . The Statutory Act on Occupational Health and Safety, section 10 (2), states that a health and safety representative enjoys the same dismissal protection as a shop steward within the same or similar occupational field. If the employer is not covered by a collective agreement, the protection of the health and safety representative depends on the shop stewards’ dismissal protection according to the collective agreement covering the same or similar type of work. The burden of proof is on the health and safety representative. The question in this case was whether the dismissal protection of shop stewards within the same or similar field of work could be documented. The Supreme Court found that the employee had not lifted the burden of proof, as no collective agreement covering the same or similar type of work for persons with the same or similar educational background was produced. The Health and Safety representative was thus not entitled to special dismissal protection.

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Source: The case is available here.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Estonia

Summary According to the research study “The Estonian employment market today and tomorrow 2017”, the number of employees will remain stable if employment of pensioners and other people increases.

______1 National Legislation Nothing to report.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Decrease in number of employees According to the research study The Estonian employment market today and tomorrow 2017, the number of employees will remain stable even if the number of employed pensioners and other employees increases. To guarantee a stable number of employees, it is necessary for all employees to be employed longer as the of non-active persons decreases. According to the research, vocational training, higher education and more practical education is crucial, as is teaching ICT skills for increased specialisation. According to the research, 46 percent of future employees should have higher education and every third employee should have completed special vocational training. It is expected that the need for employees with basic and secondary education will decrease. By the year 2025, there will be a higher need for employees in ICT, the telecommunications industry, wood production, administration, health care and social assistance. The latter jobs relate to the fact that the population will be ageing. The decrease in jobs will be most marked in public administration, education, agriculture and transportation. Those sectors in particular are affected by increased use of technology and the fact that the population will be getting older. There will be fewer young people and taxpayers. It is predicted that by 2025, the number of employees in Estonia will decline by 43 000 employees.

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Finland

Summary (I) The government has published a proposal on employees with alternating working hours. (II) The Supreme Court has issued a remarkable ruling on the application of the Act on Cooperation Within Undertakings. ______1 National Legislation 1.1 Employees with alternating working hours The government has submitted a proposal to Parliament on legislation concerning employees with alternating working hours (Government Proposal Hallituksen esitys Eduskunnalle 188/2017). The legislation package includes minor amendments to the Employment Contracts Act (55/2001), Working Hours Act (605/1996), Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health in Workplaces (44/2006), and Act on Unemployment Benefits (1290/2002). The purpose of the legislation is to improve the position of employees working alternating working hours. The purpose is to guarantee that their right to employment protection is implemented in practise. Alternating working hours refers to a system in which the amount of the employee’s working time changes over a given period, based on how many working hours the employer offers him/her within that period (the number of working hours should lie between the agreed minimum and maximum working hours), or the employee has agreed to work on call, i.e. under a zero-hours contract. According to the proposal, the possibility to agree on alternating working hours would be restricted to jobs characterised by a highly fluctuating amount of work, and consequently a varying need for additional workforce. Moreover, the employer would be required to inform the employee in which situations and to what extent she will be called on to work. The employee’s right to paid sick leave and paid notice period would be guaranteed. When planning the work schedule, the employer shall give employees who work alternating working hours the opportunity to state how much and under what circumstances s/he will be available to work, in case the employer plans to offer the employee more work than the agreed minimum amount. The employee cannot consent to working additional working hours for an unrestricted period. The underlying objective is to achieve a balance between the employer and the employee. The amendments shall enter into force on 01 June 2018.

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2 Court Rulings 2.1 Employee representation Supreme Court, No. KKO 2017:86, 11 December 2017 The case decided by the Supreme Court concerned the question whether the defendant company was required to apply the Act on Cooperation within Undertakings (No. 334/2007). Normally, 16-17 employees worked in the company, which is less than the minimum number of 20 employees needed for the application of the Act on Cooperation Within Undertakings. Every month, 2-7 additional employees (4 employees on average) worked in the undertaking for 20-30 hours a week. These additional employees had been called on to work shifts. They had no duty to appear for work when called upon. The Supreme Court determined that the Act on Cooperation did not apply to the company (vote 4-1). In its judgment, the Supreme Court referred to CJEU case 18 January 2007 C-385/05, Confédération générale du travail ym., sections 33 and 34 and to CJEU case C-176/12 of 15 January 2014, Association de médiation sociale, sections 33 and 34. The Supreme Court argued that the amount of work the additional employees performed was minimal.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Presidential elections The first round of presidential elections will be held on 28 January 2018. The current president, Mr. Sauli Niinistö, is a strong front runner. All major parties have nominated their own candidate. If no candidate wins more than 50 percent of the votes in the first round, a second round of elections will take place on 11 February 2018.

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France

Summary (I) Decree No. 2017-1689 transposes the provisions of Article L. 2261-27-1 of the Labour Code, stipulating the rules for the composition, functioning and activities of the group of experts that estimates the economic and social effects that are likely to result from the extension of a collective bargaining agreement. (II) Decree No. 2017-1703 specifies the public policy provisions on the applicable sanction in case of non-compliance with the obligation to negotiate wages and the content of the negotiations on gender equality. (III) The Council of State held that when the Direccte decides to not approve a redundancy plan, it must only mention the factual and legal elements upon which its decision is based, and that the Direccte can base its refusal to approve the redundancy plan on an element on which it did not make any prior observations. (IV) The , in a case on a transfer of undertaking, overturned its jurisprudence, applying case law relating to the presumption of justification of unequal treatment settled by a collective bargaining agreement to the conventional transfer of employment contracts. (V) The Court of Cassation ruled on two cases on equitable wage. First, it held that the principle of equal treatment does not prevent workers who are hired later to benefit from faster career development. Secondly, it ruled that unequal treatment is justified based on the regulation according to which the most favourable provisions of the employment contract are applicable, if no contrary legal provisions exist.

______1 National Legislation 1.1 Extension of collective bargaining agreements As regards the extension of collective bargaining agreements, Ordinance No. 2017-1388 of 22 September 2017 introduced Article L. 2261-27-1 of the Labour Code. The said Article provides that the Minister of Labour, on her own initiative or following the written and motivated request of an employer or workers’ representative union within the scope of a collective bargaining agreement or its amendments, appoints a group of experts that estimates the economic and social effects likely to result from that extension. It moreover states that a decree determines the implementing provisions of this article, in particular the conditions of appointment of the experts, ensuring their independence. Decree No. 2017-1689 of 14 December 2017 stipulates the rules on the composition, functioning and activities of this group of experts. It was published on 15 December 2017 in the Official Journal (JORF n°0292; text n° 39) and has been in force since 16 December 2017.

1.1.1 Composition of the group of experts The group of experts is composed of five persons chosen in accordance with their competence and experience in the economic and social field. They are appointed by decree of the Minister of Labour. The latter also appoints the president of the group of experts among these members (Article D. 2261-4-1 Labour Code).

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The members' mandate lasts four years. They are not revocable. In case of interruption of a mandate for any reason, the member concerned is replaced under the same conditions as his/her predecessor within a time limit of two months and for the remaining period of the initial member’s mandate (Article D. 2261-4-2 Labour Code).

1.1.2 Consultation of the group of experts The employer and workers’ unions have one month from the publication of the extension of the collective bargaining agreement in the Official Journal to request the Minister of Labour to consult the group of experts. This written and motivated request is filed to the central departments of the Labour Ministry. The Minister of Labour shall consult the president of the group of experts (Article D. 2261-4-3 Labour Code).

1.1.3 The report of the group of experts The group of experts has two months to prepare a report on the economic and social effects likely to result from the extension of the collective bargaining agreement. The report is submitted to the Minister of Labour. The expert group's opinion is communicated to the National Commission of Collective Bargaining before its report on the extension of the collective bargaining agreement is published (Article D. 2261-4-4, para. 1 and 2 Labour Code). In fact, pursuant to Article L. 2271-1 of the Labour Code, this commission must deliver a motivated opinion to the Minister of Labour on the extension of collective bargaining agreements. If the group of experts does not submit its report within the time limit of two months, it is deemed to not have any comments on the extension of the collective bargaining agreement (Article D. 2261-4-4, para. 3 Labour Code).

1.1.4 Independence, confidentiality and conflict of interests The Decree encourages the independence of the members of the group of experts, i.e. they cannot ask for or accept instructions from any authority. They may not, moreover, share any information from the debates in which they participated and information they were given access to in the context of their work. In other words, the members of the group of experts are subject to confidentiality. The Decree further establishes sanctions: should one of the members not respect these obligations, his/her mandate will be suspended by the president of the group of experts (Article D. 2261-4-5 Labour Code). Finally, the Decree addresses conflicts of interests, providing that the members of the group of experts cannot participate in the preparation of the report if they have a personal interest (Article D. 2261-4-6 Labour Code).

1.2 Non-compliance with the obligation to negotiate wages 1.2.1 Sanction in case of non-compliance Decree No. 2017-1703 of 15 December 2017 relating to the application of the provisions of Articles 6 and 7 of Ordinance No. 2017-1385 of 22 September 2017 on the strengthening of collective bargaining (published on 17 December 2017 in the Official Journal (JORF n°0294; text n° 29)) stipulates the public policy provisions on the applicable sanction in case of non-compliance with the obligation to negotiate wages.

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The sanction is capped to the partial removal (or total removal in case of recidivism) of social contributions granted during the period of non-compliance with the obligation to negotiate wages up to 10 per cent within a time limit of three years. These provisions are applicable to cases of non-compliance identified by labour inspectors from 2016 onwards (Article 4 of Decree No. 2017-1703 of 15 December 2017). Nevertheless, the administration will communicate the number of exemptions made between 2016 and 2021. When non-compliance is identified, the labour inspector prepares a report on the absence of negotiations and transmits it to the regional director of companies, competition, , work and employment ("Direccte") (Article D. 2242-12 of the Labour Code). The Direccte informs the employer, within a time limit of four months from the observation of the failure to negotiate, of its intention to impose a fine. The Direccte specifies the maximum amount of the fine and requires the employer to submit comments and explain the reasons for failing to negotiate wages within a time limit of two months (Article D. 2242-13, para. 1 of the Labour Code). The Direccte requests the labour inspectors to specify the number of exceptions from contribution. The labour inspectors then have two months to respond (Article D. 2242- 13, para. 2 of the Labour Code). Two months after the time limit granted to the employer to explain the reasons for failure to negotiate wages, the Direccte informs the employer on the amount of the fine (Article D. 2242-15 of the Labour Code). The real amount of the sanction will take the employer's efforts to negotiate on the actual wage into account, the employer’s good faith and the reasons for non-compliance, such as economic hardship, restructuring or collective proceedings (Article D. 2242-14 of the Labour Code).

1.2.2 The content of negotiations on gender equality Decree No. 2017-1703 of 15 December 2017 also specifies the public policy provisions concerning the content of negotiations on gender equality. The negotiation must take into account the growth targets and measures to achieve these in three or four fields of action, depending on the company’s headcount. If the company has fewer than 300 employees, three fields of action must be achieved. The fields of action are: hiring, training, career development, job qualification, professional classification, working conditions, security and health at work, actual wage and reconciliation between work and family life (Article R. 2242-2 of the Labour Code). In the absence of an agreement or an action plan on gender equality, the fine will remain the same. Pursuant to Article L. 2242-8 of the Labour Code, the fine is capped at 1 percent of the wage during the period of absence of such an agreement or action plan. The Direccte communicates the amount of the fine to the employer within a time limit of two months after a six-month deadline following a formal notice requesting compliance (Article R. 2242-8 of the Labour Code).

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2 Court Rulings 2.1 Collective redundancy Council of State, 4th and 5th Division, No. 389443, 24 November 2017 On 28 April 2014, the regional director of companies, competition, consumption, work and employment, the "Direccte", refused to approve a document that elaborated the content of a redundancy plan presented by a company to lay-off 11 employees who opposed the modification of their employment contracts. The administrative of Orléans and the administrative court of appeal of Nantes refused the company's request for annulment. The company turned to the Council of State, claiming that the refusal was not sufficiently motivated and that there was no assessment of the elements justifying the Direccte's refusal. The Council of State rejected the company’s request for annulment. The Council of State held that the administrative decision must mention the elements that justify the refusal or approval of the redundancy plan. When a company dismisses ten employees within a period of 30 days, it must establish a redundancy plan in the form of a unilateral document or collective bargaining agreement. This redundancy plan must be approved by the Direccte, which assesses its validity against legislative and conventional provisions. Pursuant to Article L. 1233-54-7 of the Labour Code, the Direccte must justify its decision. The Council of State emphasised this obligation of justification. In case the Direccte approves the redundancy plan, it must mention in its decision the elements it evaluated as provided in Article L. 1233-57-3 of the Labour Code, such as compliance with the information and consultation regulations, provision of adequate measures in accordance with the company's means and the workers' reclassification. The Direccte moreover must mention every relevant element on which it based its decision (see Council of State, 4th and 5th Division, No. 391744, 1 December 2017). "Considérant que si le respect de la règle de motivation énoncée au point 2 n'implique ni que l'administration prenne explicitement parti sur tous les éléments qu'il lui incombe de contrôler ainsi qu'il a été dit au point 3, ni qu'elle retrace dans la motivation de sa décision les étapes de la procédure préalable à son édiction, il lui appartient, toutefois, d'y faire apparaître les éléments essentiels de son examen ; que doivent ainsi y figurer ceux relatifs à la régularité de la procédure d'information et de consultation des instances représentatives du personnel, ceux tenant au caractère suffisant des mesures contenues dans le plan au regard des moyens de l'entreprise et, le cas échéant, de l'unité économique et sociale ou du groupe ainsi que, à ce titre, ceux relatifs à la recherche, par l'employeur, des postes de reclassement ; qu'en outre, il appartient, le cas échéant, à l'administration d'indiquer dans la motivation de sa décision tout élément sur lequel elle aurait été, en raison des circonstances propres à l'espèce, spécifiquement amenée à porter une appréciation". (Council of State, 4th and 5th Division, 1 December 2017, No. 391744) In the present case, the plaintiff claimed that the Direccte had to mention the same elements in case it refused to approve the redundancy plan. The Council of State refused this interpretation, considering that when the Direccte decides to reject the redundancy plan, it must only mention the factual and legal elements on which its decision is based. It does not have to mention all elements it evaluated as provided by the Labour Code.

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"Considérant, en premier lieu, qu'aux termes de l'article L. 1233-57-4 du code du travail relatif à la motivation des décisions qui statuent sur une demande d'homologation d'un plan de sauvegarde de l'emploi : " L'autorité administrative notifie à l'employeur la décision de validation dans un délai de quinze jours (...) et la décision d'homologation dans un délai de vingt et un jours (...). / Elle la notifie, dans les mêmes délais, au comité d'entreprise et, si elle porte sur un accord collectif, aux organisations syndicales représentatives signataires. La décision prise par l'autorité administrative est motivée " ; que ces dispositions imposent à l'administration de motiver sa décision d'homologuer comme de refuser d'homologuer un plan de sauvegarde de l'emploi ; que, lorsque l'administration homologue la décision de l'employeur fixant le plan de sauvegarde de l'emploi, il lui appartient, sans prendre nécessairement parti sur le respect de chacune des règles dont il lui revient d'assurer le contrôle, de faire en sorte que les personnes, autres que l'employeur, auxquelles est notifiée cette décision favorable à ce dernier, puissent à sa seule lecture en connaître les motifs ; qu'à ce titre, elle doit faire figurer dans la motivation de sa décision les éléments essentiels de son examen et, notamment, ceux relatifs à la régularité de la procédure d'information et de consultation des instances représentatives du personnel, ceux tenant au caractère suffisant des mesures contenues dans le plan au regard des moyens de l'entreprise et, le cas échéant, de l'unité économique et sociale ou du groupe, ainsi que ceux relatifs à la recherche, par l'employeur, des postes de reclassement ; que lorsque l'administration refuse l'homologation demandée, il lui incombe seulement d'énoncer les éléments de droit et de fait qui constituent le fondement de sa décision;" (Council of State, 4th and 5th Division, No. 389443, 24 November 2017) The Council of State also stated that the Direccte can base its refusal to approve the redundancy plan on an element which it did not make any prior observations on. In fact, during the approval procedure, the Direccte can comment on the procedure’s or the social measures of the redundancy plan (Article L. 1233-57-6 of the Labour Code). These comments can help the employer modify inadequacies or irregularities before the administration's final decision. The Council of State held that the Direccte can invoke an irregularity or inadequacy which it did not comment on before to reject the employer’s redundancy plan. The company claimed that it took the Direccte's observations into account and that the employer’s compliance ought to have guaranteed approval of the redundancy plan. It asserted that the administration could not base its refusal on an element that had not been emphasised during the redundancy plan’s formulation. The Council of State rejected this interpretation, arguing that the administration only has competence to comment on the progress of the redundancy plan. This ability does not prevent the Direccte from basing its refusal on an irregularity or inadequacy, which was not previously communicated to the employer. "Considérant, en deuxième lieu, qu'aux termes de l'article L. 1233-57 du code du travail : " L'autorité administrative peut présenter toute proposition pour compléter ou modifier le plan de sauvegarde de l'emploi, en tenant compte de la situation économique de l'entreprise (...) " ; qu'aux termes de l'article L. 1233- 57-5 du même code : " Toute demande tendant, avant transmission de la demande de validation ou d'homologation, à ce qu'il soit enjoint à l'employeur de fournir les éléments d'information relatifs à la procédure en cours ou de se conformer à une règle de procédure prévue par les textes législatifs, les conventions collectives ou un accord collectif est adressée à l'autorité administrative. Celle-ci se prononce dans un délai de cinq jours " ; qu'enfin, aux termes de l'article L. 1233-57-6 : " L'administration peut, à tout moment en

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cours de procédure, faire toute observation ou proposition à l'employeur concernant le déroulement de la procédure ou les mesures sociales prévues à l'article L. 1233-32. (...) " ; que s'il revient en principe à l'administration, en application de ces dispositions, de présenter toute observation ou proposition ou de formuler des injonctions de nature à éclairer l'employeur en cours de procédure sur la régularité de celle-ci et le caractère suffisant des mesures contenues dans le plan de sauvegarde de l'emploi, cette faculté ne fait pas obstacle à ce que le directeur régional des entreprises, de la concurrence, de la consommation, du travail et de l'emploi compétent se fonde, pour refuser une homologation, sur une irrégularité de la procédure d'information et de consultation, ou sur une insuffisance du plan de sauvegarde de l'emploi, sur laquelle il n'a préalablement adressé à l'employeur aucune proposition, observation ou injonction ;" (Council of State, 4th and 5th Division, No. 389443, 24 November 2017)

2.2 Transfer of undertakings Labour Division (Chambre Sociale) of the Court of Cassation, No. 16-20.532, 30 November 2017 A cleaning company reemployed several workers according to the agreement of 29 March 1990, which organises the conventional transfer of employment contracts in the cleaning sector. The transferred workers of the undertaking did not benefit from the thirteenth month bonus unlike the other workers. They claimed that they were subject to unequal treatment. The court of appeal ordered the employer to pay the thirteenth month bonus to the plaintiffs. It held that the workers performed the same work, for the same employer, on the same site, and that the employer did not demonstrate any objective reasons justifying unequal treatment. The Court of Cassation used to hold that workers transferred by conventional means could invoke unequal treatment compared to workers already employed in the company (see Labour Division (Chambre Sociale) of the Court of Cassation, No. 12-25.402, 15 January 2014). For instance, it granted a night premium to workers transferred by conventional means, who did not benefit from it unlike the workers already working in the company (see Labour Division (Chambre Sociale) of the Court of Cassation, No. 14- 11.913, 16 September 2015). In the present case, the Court of Cassation overturned its jurisprudence, applying its case law relating to the presumption of justification of unequal treatment settled by a collective bargaining agreement to the conventional transfer of employment contracts. The Court held that the unequal treatment the transferred workers were subjected to was automatically justified when the transfer of undertaking occurred by conventional means. In this context, the unequal treatment related to professional matters. The Court of Cassation explicitly refers to the "general development of labour law in the field of collective bargaining and the case law related to the principle of equal treatment", which results in a different assessment of the significance of this principle in case of a conventional transfer of employment contracts. As regards the legislative development, Article L. 1224-3-2 of the Labour Code modified by Ordinance No. 2017-1387 of 22 September 2017 provides that when an extended branch agreement organises the continuation of employment contracts in case of a transfer of undertaking, the new provider's workers cannot invoke a difference in wages compared to those already present in the company.

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The Court of Cassation does not seem to restrict the impossibility to contest unequal treatment compared to workers already present in the company. With the use of the larger wording "unequal treatment", every inequality between workers appears likely to be justified. "Attendu, d'abord, que l'évolution générale de la législation du travail en matière de négociation collective et de la jurisprudence en ce qui concerne le principe d'égalité de traitement à l'égard des accords collectifs conduit à apprécier différemment la portée de ce principe à propos du transfert des contrats de travail organisé par voie conventionnelle ; Attendu, ensuite, que la différence de traitement entre les salariés dont le contrat de travail a été transféré en application d'une garantie d'emploi instituée par voie conventionnelle par les organisations syndicales représentatives investies de la défense des droits et intérêts des salariés et à l'habilitation desquelles ces derniers participent directement par leur vote et les salariés de l'employeur entrant, qui résulte de l'obligation à laquelle est tenu ce dernier de maintenir au bénéfice des salariés transférés les droits qui leur étaient reconnus chez leur ancien employeur au jour du transfert, n'est pas étrangère à toute considération de nature professionnelle et se trouve dès lors justifiée au regard du principe d'égalité de traitement ;" (Labour Division (Chambre sociale) of the Court of Cassation, No. 16-20.532, 30 November 2017)

2.3 Equitable wage Labour Division (Chambre Sociale) of the Court of Cassation, No. 16-14.235 and No. 16-15.109, 7 December 2017 In a first case (), a company implemented a job classification in 1994. A worker with 25 of seniority benefited from the coefficient 460 corresponding to seven years of seniority. This worker retired in 2011 (17 years later) and benefited from the coefficient 511, which corresponds to 20 years of seniority. However, her total seniority actually amounted to 40 years. The plaintiff requested payroll adjustments and due to unequal treatment compared to another worker who had the same job qualification and who had been hired after the implementation of the job classification in 1994. This worker had benefited from the coefficient 406 since his recruitment. After 20 years of seniority, this worker was likely to benefit from the coefficient 511, and 544 after 28 years of seniority. A second case (No. 16-15.109) related to the implementation, by way of a collective bargaining agreement, of a salary grid in a rehabilitation centre. Physiotherapists benefited from the index 390. The employment contract of one of the physiotherapists provided a higher wage and the employee benefited from a "bonus index" of 172 points. The workers hired later requested payroll adjustments. The Court of Cassation was asked to rule on the implementation of a collective bargaining agreement and its consequences for the employees already present in the company and those hired later. In the first case, the court of appeal accepted the plaintiff's request, granted him payroll adjustments and damages. The Court of Cassation overturned that decision, holding that the principle of equal treatment does not prevent the workers hired later to benefit from faster career development.

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"Attendu que le principe d'égalité de traitement ne fait pas obstacle à ce que les salariés embauchés postérieurement à l'entrée en vigueur d'un nouveau barème conventionnel soient appelés dans l'avenir à avoir une évolution de carrière plus rapide dès lors qu'ils ne bénéficient à aucun moment d'une classification ou d'une rémunération plus élevée que celle des salariés embauchés antérieurement à l'entrée en vigueur du nouveau barème et placés dans une situation identique ou similaire;" (Labour Division (Chambre Sociale) of the Court of Cassation, No. 16-14.235, 7 December 2017) In the second case, the Court of Cassation considered that unequal treatment is justified by the rule according to which the most favourable provisions of the employment contract are applicable, if no contrary legal provisions exist. "Attendu que, sauf disposition légale contraire, un accord collectif ne peut modifier le contrat de travail d'un salarié, seules les dispositions plus favorables de cet accord pouvant se substituer aux clauses du contrat ; qu'il en résulte que cette règle constitue un élément objectif pertinent propre à justifier la différence de traitement entre les salariés engagés antérieurement à l'entrée en vigueur d'un accord collectif et ceux engagés postérieurement, et découlant du maintien, pour les premiers, des stipulations de leur contrat de travail;" (Labour Division (Chambre Sociale) of the Court of Cassation, No. 16-15.109, 7 December 2017)

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Germany

Summary (I) According to the Federal Labour Court, the of arts may justify the fixing of the term of an employment contract. (II) According to the State Labour Court Hamm, the employer is not allowed to provide the works council with anonymous lists of gross wages and salaries.

______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Fixed-term work Federal Labour Court, No. 7 AZR 369/16, 13 December 2017 According to the Federal Labour Court, fixing the term of an employment contract of make-up artists is admissible. Under German law, the term of a contract of employment can in principle only be fixed if such fixing is justified on objective grounds. This is laid down in section 14(1) sentence 1 of the Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz). According to section 14 (1) sentence 2, it constitutes an objective ground if the nature of work justifies the fixing of the term (No. 4). In the view of the Federal Labour Court, this provision also applied in the underlying case, as the employee predominantly worked as an artist, the fixing of the term was based on a collective agreement and the employer could rely on the freedom of arts as guaranteed by Article 5(1) of the German . A press release on the judgment is available here.

2.2 Obligation to provide lists of gross wages and salaries State Labour Court Hamm, 7 TaBV 43/17, 19 September 2017 According to section 80(2) sentence 1 of the Works Constitution Act (Betriebsverfassungsgesetz), the employer shall supply comprehensive information to the works council in good time so it can exercise its duties in accordance with this Act; such information shall also refer to the employment of persons who have not entered into a contract of employment with the employer. Moreover, the works council shall, if it so requests, be granted access at any time to any documentation it may require for the exercise of its duties; in this connection, the works committee or a committee set up in pursuance of section 28 shall be entitled to inspect the payroll indicating the employees’ gross wages and salaries (section 80(1) sentence 2). According to the State Labour Court Hamm, under section 80(1) sentence 2 the employer is not permitted to provide information in an anonymous form, data protection law notwithstanding. In this context, the Court also examined provisions of the Transparency of Remuneration Act (Entgelttransparenzgesetz), which entered into force on 6 July 2017. This Act aims to promote gender equality in pay by, among other things, imposing various obligations on companies requiring them to disclose salary information and take other action.

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3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Greece

Summary The Supreme Court has ruled on equal pay between employees on fixed-term and indefinite contracts in the public sector. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Fixed-term contracts Supreme Court, Decision No. 1643/2017 The legal regime of fixed-term contracts in the public sector is regulated in the provisions of Presidential Decree No. 164/2004, which transposed Directive 1999/70/EC in the public sector. Directive 1999/70 provides for equal treatment between employees with fixed-term contracts and those with contracts of indefinite duration. Due to the provisions of Article 103 of the Greek Constitution, it is unlawful to hire public sector employees for an indefinite or for a fixed term without a specific administrative procedure, ‘ASEP’. The case brought before the Supreme Court concerned equal payment between employees with fixed-term contracts, hired without recourse to the specific administrative procedure (‘ASEP’) provided for their particular work positions, and employees with contracts of indefinite duration, hired under ‘ASEP’. The Court stated that in view of clause 4 of Directive 1999/70/EC, as well as in view of the general principle of equal treatment, the time and procedure of recruitment or the duration of the contract may not be considered a reason justifying inequality in pay. Only the work itself, the duties, the conditions and the value of the work may be regarded as such.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Hungary

Summary The Kúria has confirmed the court of second instance’s judgment clarifying the interpretation of Section 66 sub 4 of the Labour Code on dismissals of age-protected employees. ______1 National Legislation Nothing to report.

2 Court Rulings Kúria, Mfv. I.10.139/2016 [EBH2017. M.6.] The plaintiff (employee) was employed by the defendant (employer) as a regional centre manager. The employee was deemed a senior employee under the parties’ agreement. His main tasks were the rental of real , keeping real estate records and the organisation of legal issues related to real estate. The employer terminated the employment relationship with a document entitled ‘dismissal’. This document contained the following sentence: “The employer terminates the employment relationship with notice”. According to the justification for the dismissal, the employee had set the rent at an abnormally low price. A further reason for dismissal was that the employee had overlooked the administration of the lease. Consequently, it was not possible to enforce the employer’s claim. The justification also highlighted that the employee had been employed as a senior manager, and the requirements he had to fulfil were therefore high. Due to his repeated failures, the employer terminated the employment relationship on the basis of Section 65 sub 1 and Section 66 sub 1-2 of the Labour Code (Act I of 2012 on the Labour Code, hereinafter: LC). The relevant provisions of the LC are as follows: Section 65 Sub 1: “An employment relationship may be terminated either by the employee or the employer by notice.” Section 66 Sub 1: “Employers are required to justify their dismissals.” Section 66 Sub 9: “The employer is not required to give reasons for terminating a permanent employment relationship if the employee affected qualifies as a pensioner.” Section 294 Sub 1 g): “(…) ‘retired worker’ shall mean any person: who has reached the retirement age for old-age pension benefits and has accumulated the service time required to receive old-age pension (entitlement to old-age pension benefits), who receives old-age pension benefits before reaching the legal retirement age, (…)”

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Section 66 sub 4: “The employer shall be permitted to terminate the employment relationship of employees, other than pensioners, concluded for an indefinite duration, within a five-year period before the date when the employee reaches the age limit for old- age pension on the grounds of the employees’ behaviour in relation to the employment relationship only for the reason defined in Subsection (1) of Section 78.” Section 66 sub 5: “The employment relationship of the employees referred to in Subsection (4) hereof may be terminated in connection with the employees’ ability or for reasons in connection with the employer’s operations if the employer has no vacant position available at the workplace referred to in Subsection (3) of Section 45 suitable for the employee affected in terms of skills, education, experience required for his/her previous job, or if the employee refuses the offer made for his/her employment in that job.” Section 78 sub 1: “An employer or employee may terminate an employment relationship without notice if the other party: willfully or by gross negligence commits a grave violation of any substantive obligations arising from the employment relationship; or otherwise engages in conduct that would render the employment relationship impossible.” The applicant sought a declaration that the termination was unlawful. In his opinion, his employment relationship could only have been terminated by dismissal without notice, an ordinary dismissal not being possible because of the age protection granted by Section 66 sub 4 and 5 of the LC. The employee further argued that the facts in the statement of reasons for the dismissal were not relevant. The employee had been assigned new tasks a few days before the announcement of the dismissal. For this reason, the dismissal was an abuse of rights. The defendant sought the rejection of the claim. The applicant’s claim was rejected by the court of first instance. The court ruled that the employer had chosen the only way to terminate the employment relationship. The employer had substantiated the employee’s misconduct. The court highlighted that there was no connection between the new tasks a few days before the announcement of the dismissal and the termination of the employment relationship. The court of second instance confirmed the decision of the court of first instance. The court referred to the employee’s job description. The court emphasised that it does not matter on the basis of which paragraph the employment relationship was terminated. The court would have to evaluate the legal declarations on the basis of their content. Section 66 sub 4 shall not be interpreted, in this case, in such a way that the employment relationship of an age-protected employee can only be terminated by dismissal without notice. According to the text of this provision, the reasons stipulated in Section 78 sub 1 must exist. Consequently, the employment relationship can be terminated by dismissal with notice, the employer having to justify the dismissal. The applicant sought a of the judgment. The Kúria stated that the review request was not justified. The Kúria agreed with the arguments of the court of second instance. For this reason, the decision of the court of second instance remained in force.

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3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Iceland

Summary (I) The unemployment rate was 1.7 percent in November and the wage index rose by 0.1 percent. (II) The Aircraft Mechanic Association went on a two-day strike.

______1 National Legislation Nothing to report.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Unemployment and wages In November 2017, the unemployment rate was 1.7 percent and the wage index rose by 0.1 percent compared to the previous month.

4.2 Strike of the Aircraft Mechanic Association On 17 December 2017, the Aircraft Mechanic Association of Iceland went on strike against Icelandair, which ended on 19 December 2017. The collective agreement was agreed by union members on 28 December 2017.

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Ireland

Summary (I) Draft legislation has been introduced to strengthen the rights of workers on insecure contracts and those working variable hours. (II) The Supreme Court has granted leave to appeal against a decision that Ireland has failed to adequately implement Directive 2008/94/EC.

______1 National Legislation 1.1 Working time The Minister for Employment Affairs and Social Protection has now published the Employment (Miscellaneous Provisions) Bill 2017. The legislation, when enacted, seeks to strengthen the rights for workers on ‘insecure contracts’ and for those working ‘variable hours’. The Minister stressed that these measures were “proportionate and balanced by reasonable defences for employers” and recognised “the challenges faced by employers in running their business or providing their service”. The draft legislation proposes to ban ‘zero-hours contracts’ except in cases of genuine casual work or where such contracts are essential to allow employers to provide cover in emergency situations or to cover short-term absences. The legislation will also require employers to provide workers with five key terms of employment within five days of commencing employment. These are: • The full name of the employer and the employee; • The employer’s address; • The expected duration of the contract, where it is temporary or fixed-term; • The rate or method of calculating pay; and • What the employer reasonably expects the normal length of the employee’s working day and week will be. The draft legislation also contains provisions on ‘banded hours’ which are between 1 to 10 hours, 11 to 24, 25 to 34 and 35 and over. Where a worker believes she should be placed in one of these bands, they may request of the employer in writing to be so placed. The appropriate band will depend on the average number of hours worked over the previous 18 months. These provisions, however, will not apply to banded-hours arrangements established by collective bargaining agreements. The employers’ association, Ibec, has criticised the Bill saying that it will have significant adverse consequences in that employers and workers will be deprived of the ability to make their own flexible working arrangements. The Irish Congress of Trade Unions has issued a cautious welcome to the legislation but indicated that it will be looking for improvements as it goes through the legislative process.

2 Court Rulings 2.1 Employer’s insolvency Supreme Court, No. IESC DET 143 OF, 13 December 2017 In Glegola v Minister for Social Protection [2017] IECA 37, the Court of Appeal found that Ireland had failed to adequately transpose Directive 2008/94/EC as regards

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‘informal ’ and awarded the applicant employee Francovich damages. The Supreme Court has now granted leave to appeal that decision on the basis that the case raises matters of ‘general public importance’. The appeal will focus on whether Article 2(1)(b) of the Directive imposes an obligation on Member States to have a mechanism in place for dealing with informal insolvencies and, if so, whether Ireland’s failure in this regard amounts to a ‘manifest breach’ of its obligations such as to give rise to a liability to pay damages.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Italy

Summary Parliament has approved the 2018 Budget Law. The Law contains provisions dealing with the following labour issues: social security contribution relief for young workers, re-allocation agreements, harassment-free workplaces, pregnancy protection for , exchange of information on unemployed persons or individuals at risk of unemployment, exchange of information on income support receivers and wage payment modalities.

______1 National Legislation The Parliament has approved the 2018 Budget Law that contains provisions dealing with a series of issues.

1.1 Young workers and social security contributions To incentivise the employment of young persons, employers who hire a young worker under a contract of indefinite duration may receive, for a maximum period of 36 months and up to a maximum of EUR 3 000 per year, a 50 percent reduction of social security contributions. Occupation injuries and industrial diseases are exempt. The social security contribution relief is granted to employers who hire workers who, at the time of hiring, are under the age of 30 years (paragraph 101). In case such workers are hired before 31 December 2018, the social security relief is also granted for workers who, at the time of hiring, are under the age of 35 years (paragraph 102). The social security contribution relief is granted to employer in case workers who have never been employed under a contract of indefinite duration are hired. In case of hiring a worker for whom the social security contribution relief has already been partially granted to another employer, the social security contribution relief is granted to the new employer for the remaining period of relief, notwithstanding the age of the worker at the time of her second hiring. Apprenticeship periods of work that do not result in an employment contract of indefinite duration are not taken into account when defining a first hiring. The social security contribution relief is granted to employers who have not, within the same productive unit, dismissed a worker on economic grounds or initiated a collective dismissal in the preceding six months (paragraph 104). An individual dismissal on economic grounds of a worker hired and for whom the social security contribution relief has been granted or of a worker already employed in the same productive unit, who performs the same tasks as the worker hired who benefits from the social security contribution relief within the 6 months prior to the hiring, will result in the withdrawal of the relief and its recovery. The withdrawal does not produce any effect on employers who hire that worker for the remaining period of the relief (paragraph 105). The social security contribution relief is granted for a maximum period of 12 months, not exceeding the maximum annual amount of EUR 3 000, also in case of transformation of an apprenticeship work relationship into an employment contract of indefinite duration, under the condition that the worker will be under the age of 30 at the time of the transformation. In such cases, the social security contribution relief is granted from the date it was initially granted for the apprenticeship period (paragraph 106).

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The social security contribution relief is also granted in case of transformation of a fixed- term into an open-ended employment contract, under the condition that the worker is under the age of 30 at the time of the transformation (paragraph 107). In case of a first hiring of workers within 6 months from their completion of education or training with the same employer who hosted the worker within the framework of a work experience scheme for at least 30 percent of the period foreseen by the law, the social security contribution relief is granted for the entire amount of the employers’ social security contribution, excluding occupation injuries and industrial diseases, up to a maximum annual amount of EUR 3 000 (paragraph 108). The social security contribution relief does not apply to domestic work and to apprenticeship contracts (paragraph 114).

1.2 Re-allocation agreements Paragraph 136 of Budget Law 2018 adds Article 24-bis to Legislative Decree No. 148 of 2015, introducing the possibility to conclude Re-allocation Agreements in order to avoid that following the intervention of the Extraordinary Earnings Integration Found, employment will not be guaranteed for the entire workforce of the undertaking. In these cases, the consultation procedure foreseen at the beginning of the Extraordinary Earnings Integration Found process may end up with an agreement between the employer and the workers’ representatives in which a Re-allocation Plan is drawn, indicating professional profiles at potential redundancy risk within the undertaking. Within 30 days from the subscription of the Re-allocation Plan, workers employed within those profiles may ask the National Agency for Active Labour Policies (ANPAL) to benefit from the Re-allocation Grant to be used, by way of exception, during the Extraordinary Earnings Integration period. The Re-allocation Grant can be used to finance an Intensive Job Seeking Support Service for the entire duration of the Extraordinary Earnings Integration period and, in any case, for not less than 6 months. In case the amount of the Re-allocation Grant has not been used within that period, the worker can profit from it for a further period of 12 months. Workers benefiting from the Re-allocation Grant within the framework of a Re-allocation Agreement will not be required to accept a suitable job offer made by public or private employment services. However, if those workers accept a job offer from a company not linked to the current employer, they will be entitled to a tax relief up to an amount corresponding to 9 months of the wage on the sum paid as termination of employment allowance (TFR). Furthermore, those workers will be entitled to payment of a monthly grant corresponding to the 50 percent of the Extraordinary Earnings Integration Grant that they would have received if they had remained with the current employer. Employers who hire a worker benefiting from the Intensive Job Seeking Support Service for a period of 18 or 12 months (open-ended or fixed-term employment) are granted social security contribution relief up to a maximum annual amount of EUR 4 030.

1.3 Sexual harassment and victimisation Paragraph 218 of Budget Law 2018 adds paragraph 3-bis and 3-ter to Article 26 of Legislative Decree No. 198 of 2006 (Code of Equal Opportunities). According to paragraph 3-bis, the employer may not victimise workers who lodge a claim to request ascertainment of discrimination or of sexual harassment because of this. Victimisation refers to the adoption of disciplinary sanctions, changes in job descriptions, dismissals and transfers with direct or indirect negative occupational effects. Such protection shall not be awarded in case the claimant has been convicted,

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even if in first instance, for slander or defamation, or in case the claim is judged to be unfounded. According to paragraph 3-bis, employers are required, under Article 2087 Civil Code, to ensure working conditions that guarantee the physical and emotional integrity and of workers, also by agreeing with trade unions on informative and training initiatives aimed at preventing sexual harassment at work. Undertakings, trade unions and employers commit themselves to ensuring the existence of a work environment in which dignity is respected and interpersonal relationships based on equality and reciprocal fairness are guaranteed.

1.4 Pregnancy protection for lawyers Paragraph 465 of Budget Law 2018 adds a further paragraph to Article 81-bis of Royal Decree No. 1368 of 1941 according to which whenever a announces that she is pregnant, the when fixing or modifying the schedule shall take into account the period subsumed between the two months before the presumed date of birth and the three months following the child’s birth, without prejudice to the hearing of urgent matters. The same applies in case of attested national or international adoptions and fostering of children. An analogous provision has been introduced as Article 420-ter paragraph 5-bis of the Code.

1.5 Exchange of information on unemployed persons or individuals at risk of unemployment To facilitate re-integration in the labour market of unemployed persons or individuals at risk of unemployment, the National Agency for Active Labour Policies (ANPAL) shall communicate the data of such persons to work agencies and to private or public accredited employment services.

1.6 Exchange of information on income support recipients The National Social Security Body (INPS) shall communicate to the National Agency for Active Labour Policies (ANPAL) the data of persons who receive income support in order to facilitate the development of initiatives to re-integrate, educate or train such persons.

1.7 Wage payment modalities As of 01 July 2018, employers and directors shall pay workers, except domestic workers, regardless of relationship type, only by bank transfer, electronic payment instruments, cash withdrawal by the employer’s treasury bank or check personally delivered to the worker or, if prevented from doing so, to a delegate. The signature of the paycheck shall not be regarded as of payment of the wage (paragraphs 910 to 913).

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR Nothing to report.

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4 Other relevant information Nothing to report.

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Latvia

Summary (I) The amendments to the Law on the Protection of Employee in case of Employer Insolvency envisage an increase in the amount of payments provided by the guarantee institution. (II) The decision of the CJEU in case C-158/16 concerning the differential treatment of established and non-established civil servants has no implications for Latvian law.

______1 National Legislation 1.1 Employer’s insolvency and maximum amount of payments On 22 November 2017, Parliament adopted amendments to the Law on Protection of Employees in Case of Employer Insolvency. The amendments envisage an increase in the maximum amount of payments provided by the guarantee institution. Until the economic crisis of 2009, the amount of payment was equivalent to the employee’s actual salary in the reference period. On 2009, due to the economic crisis, the amount of payment was decreased to the statutory minimum monthly pay. The amendments provide that the maximum guarantee payment per month is to be increased to up to 1.5 of the statutory minimum wage. Article 4(3) of Directive 2008/94/EC on employer insolvency provides that a Member State may set ceilings on the payments made by the guarantee institution, however, they may not fall below a level that meets the social objective of the directive. Since 01 January 2018, the minimum statutory pay will be increased to EUR 430. It is still questionable whether EUR 645 (1.5 X 430) meets the Directive’s social objective when the overall standard of living is taken into account. The Explanatory Note to the said amendments does not explain whether the maximum amount of payment provided by the guarantee institution guarantees a decent standard of living, nor does it refer to the obligations under Directive 2008/94/EC.

Sources: The Law on Protection of Employees in Case of Employer Insolvency is available here. The amendments are available here. The Explanatory Note to the amendments is available here.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR 3.1 Civil servants CJEU case C-158/16, 20 December 2017, González vs. Consejería de Hacienda The decision of the CJEU in case C-158/16 González on differential treatment between established and non-established civil servants has no implications for Latvian law, since national legal regulation does not provide for different rights with regard to the working

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conditions, including all types of leaves, for fixed-term and indefinite term employees or civil servants.

Sources: The text of the Latvian Labour Law is available here. The text of the State Civil Service Law is available here.

4 Other relevant information Nothing to report.

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Liechtenstein

Summary The authorities are taking steps to eliminate, or at least reduce, inequalities between Liechtenstein and Swiss companies in the cross-border provision of services. One of the measures is the revision of the Posted Workers Act in view of strengthening controls. ______1 National Legislation 1.1 Posting of workers For some time now, many Liechtenstein companies have been complaining about unequal treatment in relation to Swiss companies in the field of cross-border services. Liechtenstein companies demand comparable conditions for all market participants. Considerable differences did indeed exist in legislation and practice between and Liechtenstein. Therefore, several steps have been taken to eliminate or at least reduce these inequalities through different measures. In May 2017, the government issued a report on the matter. One of the mentioned measures is the revision of the Posted Workers Act (Gesetz über die Entsendung von Arbeitnehmern, Entsendegesetz, LR 823.21). The main objective of the legislative amendment is to strengthen the controls and increase their effectiveness in the domain of posting of workers. To this end, the body that is composed of the social partners (‘Zentrale Paritätische Kommission’) and is competent to control compliance with collective agreements declared generally applicable will gain broader competences. According to existing law, the country court (‘Landgericht’) was competent to sanction infringements against the Posting of Workers legislation. The corresponding enforcement authority (‘Amt für Volkswirtschaft’) only had the possibility to denounce the infringement. To improve enforcement, this administrative authority is now endowed with competence to independently sanction infringements against the Posting of Workers legislation. On 05 October 2017, the Liechtenstein Parliament (‘Landtag’) with the approval of the Prince enacted the amendment of the Posted Workers Act. The amendment entered into force on 01 January 2018. On 12 December 2017, the government enacted an amendment of the correspondent Ordinance (Entsendeverordnung, LR 823.211.1; Liechtenstein Landesgesetzblatt of 15 December 2017, No. 364). The amendment entered into force on 01 January 2018.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Lithuania

Summary (I) Lithuania has liberalised the recruitment procedure of third-country nationals. (II) The legislator has elaborated a definition of the principle of equal treatment of aliens, which includes the possibility of comparing the alien’s wage with the average monthly wage within the given sector. (III) There are no implications of the Uber ruling for Lithuania as the transport sector has already been liberalised, recognising the platform-based transportation services alongside taxi services.

______1 National Legislation 1.1 Third-country nationals 1.1.1 Recruitment The Ministers of Internal Affairs and of Foreign Affairs have jointly adopted a new regulation on the procedure for issuing visas (Decree No. 1V-899/V-330 of 28 December 2017 of the Ministers of Internal and of Foreign Affairs on the Procedure of Issuing Visas. Registry of Legal Acts, 2018, No. 90), which also includes the provisions on issuing work visas for third-country nationals. The new regulation, effective from 03 January 2018, simplifies the procedure to recruit third-country nationals in Lithuania, but only for those Lithuanian enterprises that are included in the so-called ‘white list’. These companies will be subject to fewer formalities in the recruitment process, resulting in a quicker and easier recruitment of those foreigners who are needed for the country's labour market. Companies wishing to enter the ‘white list’ must meet some mandatory criteria (no debts with the State or municipal bodies, no unpaid fines, no misconduct in the area of recruitment of foreigners) and at least 4 out of 10 supplementary criteria (the company was established at least 3 years ago; the company has already ordinarily employed at least 3 foreign workers; the company employees at least 10 workers; the income of the company exceeds 500 000 EUR annually; the average salary of employees is not lower than the nation-wide average wage; the company meets the transparency requirements; the company employs workers for which there is demand in the Lithuanian labour market, etc.) If the company belongs to the recognised employers’ association, it shall submit the recommendation of the association (it is unclear, however, whether this obligation has a restrictive or facilitating effect). The Migration Board will decide on the inclusion of a company in the list within a month from the date of receipt of the application. The company will be added to this list for 3 years. Facilitation measures also include the reduction of deadlines for examining applications for visas, electronic submission of applications, etc. 1.1.2 Equal pay In December 2017, the Law on the Legal Status of Aliens (State Gazette, 2004, No.73- 2539) was amended to include several modifications, including a new important formulation on the principle of equal pay for foreign workers. The principle of equal pay for foreign employees and domestic workers was already included in the new version of the Law on Aliens in 2004, namely in Article 62, paragraph 3, “Recruitment of foreigners”, but in a rather short and ambiguous manner. In September 2016, the law was amended (Law of 14 September 2016, No. XII-2609. Registry of Legal Acts, 2016, No. 23714) to clarify that the salary of a foreigner shall be not lower than that of a Lithuanian employee who performs the same job with the same employer; in the absence of such a comparable employee, the salary of an alien may not be lower than

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the last published annual average gross monthly nation-wide wage in the given economic sector. The new provision clarifies how the annual average gross monthly wage shall be established (Law of 21 December 2017 No. XIII-943. Registry of Legal Acts, 2017, No. 21629). In essence, the Lithuanian legislator has established an autonomous definition of the notion ‘equal pay’ in the context of the free movement of workers and, in particular, for the establishment of the non-discriminatory wage of the third-country national. The possibilities of practical application of the said principle are rather limited - they serve as a restrictive provision to Lithuanian employers who would like to employ visa seekers from third countries. The authorities will evaluate employers’ applications for visa seekers by taking into account the future wage of the foreign national.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR 3.1 Uber case CJEU Case C-434/15, 20 December 2017, Asociación Profesional Elite Taxi The CJEU ruling in the Uber case has no direct impact on the situation in Lithuania, which was among the first countries in the European Union to recognise the special nature of the transport services provided by the platform workers via mobile applications. Moreover, the rules on the provision of transport services were amended (see also September 2016 Flash Report) to create a special type of contractual relationship for those providing the transport of passengers via mobile application. Those rules created a more liberal legal framework compared to that applicable for taxi businesses.

4 Other relevant information Nothing to report.

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Luxembourg

Summary (I) The bill reforming special leaves, particularly maternity and paternity leave, has passed. (II) Two decrees dealing with employee delegates have been issued. (III) The Court of Appeal has dealt with several issues, e.g. working time and minimum wage.

______1 National Legislation 1.1 Maternity leave and special leaves The State Council has published a second advice (Projet de loi n° 7060, Avis complémentaire du Conseil d’Etat, 5.12.2017) on Bill No. 7060, and the parliamentary commission has issued its final report (Projet de loi n° 7060, Rapport de la Commission du travail, de l’emploi et de la sécurité sociale, 7.12.2017), and the bill was voted on on 15 December 2017 (Loi du 15 décembre 2017) and entered into force. The issue of potential discrimination against unmarried persons (see also the November 2017 Flash Report) has been resolved, as in accordance with the State Council’s advice, the concept of “spouse” (“conjoint”) is not being used, and the initial term “father” (père) will be maintained to define the person entitled to paternity leave. Thus, either a future law or case law will have to deal with the situation of same-sex couples adopting a child. Furthermore, the bill has mainly passed as described in former Flash Reports. The main points of the reform, aiming to achieve a better work-life balance, are the following:

1.1.1 Leave for personal reasons (congé pour raisons personnelles) For certain private events, employees are entitled to a special leave of one or more days. These rules have been adapted according to the table below: Event Former New legislation Observations legislation For the father : 2 days 10 days (2 days if The purpose is to give birth of a child the employee does fathers more time to not respect the time care for their child. The limit for application) legislator aims to comply with the future directive on work-life balance. The time limit to apply for such leave is fixed to two months before the estimated date of birth. The first two days are at the employer’s expense, the following days will be reimbursed by the State. Adoption of a 2 days 10 days For the partner or child spouse not using the special adoption leave,

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which lasts several weeks. Move (change of 2 days 2 days, but only once This restriction is residence) every 3 years while introduced to prevent working for the same repeated and abuse of employer, unless the requests for this special move is necessary leave. for professional reasons Marriage 6 days 3 days The legislator considers that three days suffice to prepare and celebrate a marriage. Civil partnership 6 days 1 day Luxembourg has introduced same-sex marriage, so everybody can opt to get married. Marriage of a 2 days 1 day The legislator considers child that one day suffices to attend such an event. Death of a minor 3 days 5 days child Death of the 3 days (no change) spouse or partner, or for a spouse or partner first degree relative Death of a 1 day (no change) second degree relative or her spouse or partner Civil partnership 2 days Abolished of a child Enlistment of a 1 day Abolished Mandatory child to military service was abolished in service 1967.

1.1.2 Maternity leave According to the former legislation, maternity leave after birth was fixed to 8 weeks and could be extended to 12 weeks in case of multiple births or if the mother was nursing. Now, every maternity leave lasts 12 weeks after the birth (in addition to the 8 weeks before the birth of the child). This duration also applies to adoption leave (congé d’accueil).

1.1.3 Leave in case of sickness of a child (congé pour raisons familiales) According to the former legislation, every parent was entitled to a special leave of 2 days per year to take care of a sick child (< 15 years) she is in charge of. This system has become more flexible by fixing a total amount of days for different periods during childhood and by adapting the rules to the age of the child, considering that younger children are more likely to fall ill and that the presence of a parent is more important for them.

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Period of life Number of days 0 – 3 years 12 days 4 – 12 years 18 days 13 – 18 years 5 days; only in case of hospitalisation

The duration is doubled for disabled children. The duration can also be extended on prior authorisation from the Social Security authorities to a maximum duration of 52 weeks, but only in very serious cases. As was the case before the amendments, the illness and required presence of a parent must be justified by a medical certificate; the employee is protected against abusive dismissal during the leave.

1.2 Employee delegates A major reform concerning employee delegates (délégués du personnel; réforme du dialogue social à l’intérieur des entreprises) came into effect in 2016. Two Grand-Ducal Decrees have now been issued to complete this legislation: • A first decree (Règlement grand-ducal du 15 décembre 2017 portant exécution de l’article L. 416-1 du Code du travail) is of purely formal interest and organises the constituting meeting of the employee delegation following social elections. It establishes a mandatory agenda. The main purpose of this provision is to ensure that the labour inspectorate and the employer are informed in writing and in due time of the identity of the president, vice president, the delegate in charge of gender equality (délégué à l’égalité) and the delegate in charge of occupational health and safety (délégué à la sécurité et à la santé). The situation was problematic in the past, as the latter delegate could be chosen among the employees and thus became a protected delegate although she had not been elected by the employees, but only designated by the delegates. It thus happened that the employer terminated his/her contract without knowing about the special protection or, inversely, that the delegate was dismissed and could not duly prove that s/he had been nominated. • A second decree (Règlement grand-ducal du 15 décembre 2017 portant exécution de l’article L. 412-2 du Code du travail) is politically sensitive, as the 2016 reform states that the employee delegates are entitled, at the employer’s charge, to a special budget for experts. The decree now fixes this budget to 0.10 percent of the total annual wage bill (masse salariale totale annuelle).

2 Court Rulings 2.1 Disciplinary measures and sanctions Court of Appeal, 3e, No. 38055, 12 December 2017 Concerning the employer’s disciplinary power, nearly no legal provisions exist in Luxembourg. The Court of Appeal, however, decided that the principle of of sanctions (principe de légalité des peines), which is mainly of importance in , also applies in labour law. This implies that conventional sanctions must be precisely defined. In the present case, a clause stipulating the possibility of a disciplinary

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demotion (rétrogradation disciplinaire) was invalidated because it provided no details concerning the extent of the demotion and the possible loss of salary.

Court of Appeal, 3e, No. 44563, 30 November 2017 In a second case concerning disciplinary demotion, the Court considered that it is up to the employer to appreciate the seriousness of the employee’s misconduct. The can only verify whether the alleged misconduct is factually accurate and if there is no abuse of disciplinary power.

2.2 Qualification of contracts Court of Appeal, 3e, No. 44074, 12 October 2017 In another case, the Court of Appeal decided that the principle of legal qualification of the employment contract and the principle of the primacy of facts is not applicable. According to the judges, if the parties clearly and consciously stipulate that their contract is not governed by labour law, this clause is binding for the Court.

2.3 Pre-employment ability tests Court of Appeal, 3e, No. 44250, 09 November 2017 The Court of Appeal also emphasised that pre-employment ability tests are admissible as long as: (a) their duration is limited, (b) the candidate is not assigned to productive tasks, and (c) the candidate is not working under regular employment conditions.

2.4 Minimum wage Court of Appeal, 3e, No. 44430, 16 November 2017 As regards the legal minimum wage (salaire social minimum), the Labour Code provides that it is 20 percent higher for employees carrying out qualified tasks. To determine whether an employee is “qualified”, the law refers both to his/her certificates/diplomas and to her professional experience. The Court has now decided that for foreign certificates/diplomas, the qualified minimum wage is only due from the day on which the equivalence of the diploma has been officially recognised by the Ministry.

2.5 Working time Court of Appeal 8e, No. 41734, 09 November 2017 Article L. 211-2 of the Labour Code states that some categories of workers (domestic services, family enterprises in the agricultural sector, etc.) are governed by “special laws, collective agreements or decrees”, but such instruments have never been set up. The question before the Court was thus whether these employees are currently subject to no working time restrictions at all. The Court decided that this was not the case and that, as long as no special provisions are set up, these employees are governed by the general rules on working time. Conformity with EU law is therefore no longer problematic. Article L. 211-3 of the Labour Code, however, exempts the following categories from the legislation on working time: family enterprises in which only descendants and siblings and in-laws of first degree of the employer work, fairground enterprises or employees working from home. In the commented decision, the judges confirm that the

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exceptions of Article L. 211-3 are applicable, which means that these employees are covered by no working time legislation at all.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Norway

Summary (I) Different rulings by the Supreme Court and the Court of Appeal on the transfer of undertakings and temporary employment have been issued. (II) A new legal proposal on the working hours of employees on stand-by duty has been issued. ______1 National Legislation 1.1 Working time On 30 November 2017, the Ministry of Labour published a proposal for a new legislation on working hours of employees on stand-by duty. According to the Working Environment Act in section 10-4 second paragraph, at least one-seventh of such stand-by duty shall be included, as a general rule, as part of the ordinary working hours. The Labour Inspection Authority can agree on a different method to calculate the working hours if the general rule of calculation appears unreasonable. In the legal proposal, the decision- making authority is transferred to the committee (Tvisteløsningsnemnda). The criteria for accepting a different calculation are limited to those cases where the general rule of calculation appears evidently unreasonable. The date for consultation responses is set to 15 October 2018.

2 Court Rulings 2.1 Transfer of undertakings Supreme Court, No. 2017/789, 04 December 2017 On 04 December 2017, the Supreme Court ruled in a case concerning a transfer of undertaking. The employment relationship of a personal assistant employed to provide user-directed personal assistance terminated when the user changed service provider; the unit of five assistants that assisted the user was clearly separated from the provider and considered an independent economic unit; the economic activity was further considered unchanged after the transfer to the new provider. The Supreme Court thus concluded that a transfer of undertaking had taken place, and the assistant was thus entitled to continue his employment with the new provided. Court of Appeal, LB-2016-33863, Øyvind Tvilde vs, Nef Kapitalforvaltning AS and Warren AS and Peter Chester Warren vs. Nef Kapitalforvaltning AS and Warren Capital AS, 18 December 2017 On 18 December 2017, the Court of Appeal ruled in a case concerning a transfer of undertaking. An investment company lost its licence, and the customers and assignments were transferred to another company within the same group. The Court ruled that a transfer of undertaking had taken place, and that the General Manager and Investment Director—whose contracts had been terminated—should have been transferred to the acquiring company. The dismissals were considered invalid, and compensation was awarded with an annual salary for both. Compensation for non- financial losses was not awarded on the grounds that the two employees had participated in the decision that led to the loss of the licence.

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Court of Appeal, LB-2016-158595, Employee vs. DNB Næringseiendom AS, 27 November 2017 On 27 November 2017, the Court of Appeal ruled in a case on an employee’s right of election in case of a transfer of undertaking. The employee was 60 years of age, and would, as a consequence of the transfer, lose her entitlements to early retirement pension (AFP) at the age of 62 years. The annual financial loss of NOK 50-70 000 would involve difficulties to finance her debt liabilities. Furthermore, the transfer would imply a risk of change in the employment relationship and future wage developments. The Court found that the employee would be subjected to non-insignificant and radical changes as a consequence of the transfer, and ruled that she was entitled to affirm the employment agreement with the former employer.

2.2 Temporary employment Court of Appeal, No. LB-2016-143816, 06 December 2017 On 06 December 2017, the Court of Appeal ruled in a case concerning an employee's entitlement to continued employment as a medical practitioner. The employee was a medical practitioner specialised in neurosurgery, but temporarily employed to act as a substitute for an employee on maternity leave. The Court did not find sufficient evidence to support the employee’s primary argument that an oral agreement promising continued employment was agreed with the employer. After the temporary employment had expired, the employer replaced the employee with a new substitute for the remaining part of the employee's maternity leave. In the public sector, this is only permitted if there are sufficient grounds to dismiss the temporary employee from his/her position. In the private sector, it is legally unclear to what extent an employer can replace a substitute with another to cover the continued absence of one employee. The Court confirmed that this is legally uncertain, but stated that there were not sufficient legal grounds to argue that the strict requirements for a fair dismissal shall be applied. Based on the circumstances of the case, the Court found that the employer's decision was in any case based on justifiable grounds.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Poland

Summary The Senate has suggested some changes to the draft of the Law on Limiting Trade Activities on Sundays, public holidays and some other days. ______1 National Legislation 1.1 Working time On 15 December 2017, the Law on Limiting Trade Activities on Sundays, public holidays and some other days was subject to legislative work in the Senate (the higher chamber of Parliament). The draft was accepted on 24 November 2017 by the Sejm (the lower chamber of Parliament, see also November 2017 Flash Report). The Senate has suggested some amendments intended to specify the scope of exceptions provided by the Law (in principle, the Law prohibits activities in commercial establishments in certain days). The amendments intend to introduce another exception allowing commercial activities in the fishery sector, in practice selling fresh products. Moreover, it has been specified that commercial activities will be allowed in those bakeries or ice cream parlours where an overwhelming part of their activities would consist of selling bread or confectionery; the supermarkets and shops that offer such products, among other things, will be covered by the ban on Sunday work. It has also been specified that natural persons, acting as entrepreneurs, will be able to carry out commercial activities in shops on Sundays only when these activities are performed personally, on his/her account (in practice, this refers to self-employment). For a draft and discussion on the law, see also October 2017 Flash Report.

Source: The text of the Law and information on the legislative process can be found here.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Portugal

Summary As of 01 January 2018, the national minimum wage will be increased.

______1 National Legislation 1.1 Minimum Monthly Guaranteed Wage for 2018 Under the Economic and Financial Assistance Programme, the Portuguese State was obligated to keep the minimum monthly guaranteed wage ("MMGW") at the same rate unless specifically justified by positive economic developments and the situation on the labour market. This resulted from Measure 4.7 of the Memorandum of Understanding on Specific Economic Policy Conditionality, entered in force in 2011 between Portugal and international partners (the International Monetary Fund, the European Commission and the ). Following the conclusion of the assistance programme, the government approved Decree Law No. 144/2014, of 30 September 2014, increasing, the value of the MMGW from EUR 485 to EUR 505 from 1 October of that year. In 2015, based on Decree Law No. 254-A/2015, of 31 December 2015, which came into force on 1 January 2016, the MMGW was updated to EUR 530, and in 2016 Decree Law No. 86-B/2016, of 29 December 2016 increased the MMGW to EUR 557 in 2017. Finally, Decree Law No. 156/2017, of 28 December 2017 foresees an increase of the MMGW to EUR 580 in 2018. Decree Law No. 156/2017 has entered into force on 01 January 2018 and implements the provisions of the Labour Code, which recognise the right of employees to MMGW, whose value is determined each year by a specific legislation following consultation with the Permanent Commission for Social Dialogue. It should be noted that pursuant to Article 274 of the Labour Code, the following amounts shall be taken into account when determining the MMGW: a) amounts of remuneration in kind, including food or accommodation, due to employees in exchange for her work; b) sales commissions or productivity bonus; and c) rewards that constitute retribution, under point a) of paragraph 3 of Article 260 of the Labour Code. Therefore, from 01 January 2018 onwards, employers shall proceed with the payment of the MMGW. A breach of this obligation qualifies as a very serious misdemeanour (‘contraordenação muito grave’).

Source: More data on the gradual increase of the minimum wage in Portugal is available here.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR Nothing to report.

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4 Other relevant information Nothing to report.

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Romania

Summary (I) Starting from 01 January 2018, the employer is only required to pay the so-called ‘employment insurance contribution’, while all other social contributions linked to salaries will be payable by the employees. This amendment to the Fiscal Code made it necessary to amend many other normative acts in order to achieve legislative compliance. (II) The faced difficulties in applying the legislation on salaries of public employees, as a series of conflicts of competence ensued. ______1 National Legislation 1.1 Registration of employment contracts and notification of changes in salary Government Decision No. 905/2017 (published in the Official Gazette of Romania No. 1005 of 19 December 2017) modified the legal framework for the registration of individual employment contracts in the General Register of Employees. The new Government Decision Government Decision No. 500/2011 (published in the Official Gazette of Romania No. 372 of 27 May 2011) and reinstates a single register for both public and private sector employees. The decision provides that any change in salary must be recorded in the Register of Employees within 20 days of the date on which it took place. The fine in case of non- registration of the change in gross salary within the specified time limit will be increased from LEI 5 000 to LEI 8 000. In December 2017, negotiations for the modification of gross wages took place throughout the country as a result of Government Emergency Ordinance No. 79/2017 (see also November 2017 Flash Report) to apply the transfer of contributions from the employer to the employee. Although employers do not have an actual obligation to increase wages, many companies made the decision to raise wages because employees would otherwise earn a net salary lower than the one they earned in 2017. According to Government Decision No. 905/2017, these salary changes can be recorded in the Register of Employees, by way of exception, until 31 March 2018. Low wages will automatically be modified, even in the absence of a negotiation: from 01 January 2018, with the entry into force of Government Decision No. 846/2017 (published in the Official Gazette of Romania No. 950 of 29 November 2017. See also November Flash Report) the minimum wage will be LEI 1 900 (instead of the previous minimum wage of LEI 1 450).

1.2 Adjustment of legislation on unemployment insurance and the Wage Guarantee Fund By Government Emergency Ordinance No. 95/2017 (published in the Official Gazette of Romania No. 991 of 13 December 2017), Laws No. 76/2002 on the unemployment insurance system and the stimulation of employment and No. 200/2006 on the establishment and use of the Wage Guarantee Fund have been amended. The changes were made as a consequence of the transfer of contributions from the employer to the employee based on Government Emergency Ordinance No. 79/2017, as well as through the introduction of the new contribution due by the employer in the Fiscal Code, called "Insurance contribution for employment" of 2.25 percent.

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The personal scope of the new normative act includes directors and managers who perform mandated contract activities that become compulsorily insured in the unemployment insurance system. The provisions concerning the incentives for employers to hire unemployed persons by reducing the amount of the employer's contribution to the unemployment insurance budget have been abolished since employers no longer pay this contribution anyway.

2 Court Rulings 2.1 Conflict of competence of Cassation and , No. 9/2017, 13 December 2017 The legislation concerning wages in the budgetary sector has been repeatedly altered over the last five years, causing implementation difficulties, some salary bonuses being granted differently from case to case. The number of actions brought before the courts by employees to recalculate wage rights is increasing. One of the issues raised on this occasion is the conflict between the administrative procedure, which involves the prior challenge of the administrative act issued by the competent state authority establishing the salary, and the labour law procedure initiated before the labour courts. Thus, there was a non-uniform jurisprudence at the national level concerning the issue of the competence of labour law courts to rule on the salaries established by public employers—institutions or public authorities—acting in breach of the legal provisions. For instance, in the case of a salary that is set by a public administrative act that the employee does not challenge and, instead, the employee directly addresses the labour law courts with the request to determine the salary according to the wage legislation. It was found that the courts interpreted the legal provisions differently, some giving priority to employees in their position as part of the employment relationships, and others as part of administrative relationships. Thus, some courts have considered that the employee can only apply to the labour law courts when an administrative appeal has been filed with the body of the state that previously established the salary by administrative act and at the same time, other courts have considered that there should be no administrative prior procedure for referral to courts within the labour . The High Court of Cassation and Justice ruled on this issue in its Decision No. 9/2017 (published in the Official Gazette of Romania No. 988 of 13 December 2017), mandatory for all courts in the country. In its ruling, the High Court held that the legal provisions did not establish a prior procedure before addressing labour courts with actions aimed at obliging budgetary employers to pay wage rights. As a result, even if the administrative act of the body of the state has not been challenged, the employee may still address the labour law courts with the request to recalculate the salary in accordance with the wage law.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Slovakia

Summary The Slovak Parliament has discussed three proposals to amend the Labour Code on the legal regulation of employees’ catering, fixed-term work and wage surcharges (public holidays, night work, work on Saturdays and Sundays). The relevant committees have new deadlines to discuss the proposals until 29 January 2018.

______1 National Legislation 1.1 Employee’s catering and fixed-term work In a first reading, the National Council of the Slovak Republic (Parliament) discussed two proposals to amend the Labour Code on the issues of legal regulation of the employees’ catering and fixed-term work. (Employees’ catering is neither covered by nor by the case law of the Court of Justice of the European Union). The first proposed amendment to the Labour Code on the legal regulation of employees’ catering was rejected. On 5 December 2017, Parliament decided to end the negotiations on this proposal. As regards the proposal to amend the legal regulation of fixed-term work in the Labour Code (see also September 2017 Flash Report), Parliament decided to continue the discussion on 5 December 2017 in a second reading. The relevant parliamentary committees have new deadlines to discuss the proposals until 29 January 2018.

1.2 Wages In addition to these two proposals, another proposal to amend the Labour Code has been proposed by three deputies from the ruling coalition party Smer. This proposal consists of the following points: • An increase in the wage surcharge for work at night. At present, according to Article 123 paragraph 1 of the Labour Code, an employee is entitled to a wage surcharge for performance of night work at the level of at least 20 percent of his/her minimum wage in EUR for every hour worked at night. The proposal is to increase the wage surcharge from the current 20 percent rate of the minimum wage to 50 percent of the minimum wage in EUR per hour • An increase to the wage surcharge for work on public holidays from the current 50 percent of the average employee's earnings to 100 percent of his/her average earnings (Article 122 paragraph 1 of the LC), • Introduction of a new special wage surcharge for work on Saturdays and Sundays, for which the employee should—in addition to his/her wage—be paid a wage surcharge of at least 100 percent of the minimum wage in EUR per hour. This proposal is on the agenda of the parliamentary session, but is a rather controversial proposal and was therefore first discussed in the Economic and Social Council of the Slovak Republic on 2 December 2017. The of Trade Unions of the Slovak Republic (KOZ SR) supports the proposed new legislation as does the Association of Towns and Communities of Slovakia (ZMOS). Two employer representatives—the of Employers' Associations of

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the Slovak Republic (AZZZ SR) and the National Union of Employers (RUZ)—have submitted fundamental comments to the proposal. The Federation of Employers' Associations of the Slovak Republic (AZZZ SR) deeply disagrees with it and requests the development of serious impact studies on the business environment as well as on the economic situation of individual sectors and a serious discussion of possible exemptions from the proposed amendment to the Labour Code. As noted in the daily press, the negotiators have stated that they will review it (in the future). "It has been agreed that they will meet again with the aim of arriving at a possible compromise". The proposed amendment of the Labour Code shall be in force as of 01 May 2018. As regards the proposal to amend the Labour Code, Parliament decided on 12 December 2017 to continue the discussion in a second reading. The relevant parliamentary committees have new deadlines for discussing the proposals until 29 January 2018. The subject matter is not covered by European Union law, nor by the case law of the Court of Justice of the European Union.

Sources: More information about these proposals is available on the webpage of the National Council of the Slovak Republic as well as on the webpage of the Government Office of the Slovak Republic.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Slovenia

Summary (I) The report contains information on the proposed amendments to the Prevention of Undeclared Work and Employment Act related to the so-called personal supplementary work performed on the basis of a voucher. (II) Information is provided on the limitations of Sunday work and work on public holidays in the trade sector as stipulated by the respective collective agreement.

______1 National Legislation 1.1 Amendments to the Prevention of Undeclared Work and Employment Act A Draft Act on amendments to the Prevention of Undeclared Work and Employment Act (Official Gazette of the RS, No. 32/14 and 47/15-ZZSDZ) was submitted to the parliamentary procedure on 18 December 2017. The proposed changes relate to paragraphs 1 and 3 of Article 15 of the Act, by which so-called personal supplementary work is regulated. Under the current legislation, personal supplementary work is not considered undeclared work. This includes work carried out by a domestic helper and similar, the personal production of domestic arts and crafts products, the harvesting and sale of forest fruits and herbs and other minor jobs determined by special regulation. Such work may be performed on the basis of a voucher. It is proposed to replace the present unclear text of paragraph 1 of Article 15 with a simple sentence according to which the voucher can be obtained electronically or in person. From a substantive view, the proposal to delete paragraph 3 of Article 15, which determines that all costs related to payment transactions (social insurance contributions) lie with the person liable to pay contributions, is more important. The change is necessary to make payments via e-mail possible in accordance with Directive 2015/2366/EU.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Working time December 2017 has been characterised by discussions among the social partners and Parliament on certain aspects related to the organisation of working time in shops (Sunday work, irregular distribution and temporary redistribution of working time), encouraged by draft amendments to the Trade Act filed into the parliamentarian procedure by one of the deputies. The proposed amendments mostly focused on the opening time of shops and the limitations of Sunday work (with many exceptions). The draft act was rejected during the first reading. The main argument was that the social

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partners signed Annex No. 3 to the branch collective agreement on trade activity in Slovenia (Collective agreement published in Official Gazette of the RS Nos. 24/14, 38/14, 50/14, 79/14, 48/15, 24/16, 49/16, 40/17) at the beginning of December, by which limitations to Sunday work and work on public holidays, with sanctions in case of violation, have been stipulated. For example, according to the new provisions of the collective agreement, workers shall be allowed to work on Sundays twice within one month up to maximum of fifteen Sundays per year (while until now, this was possible for 26 Sundays per year); shops shall be closed on ten public holidays (until now, limited to five days per year), but they may be open on five holidays; the supplement pay for work on public holidays shall increase from 200 percent to 250 percent. The text on the irregular and temporary redistribution of working time has also been improved and/or clarified, and is in line with the legislation. In both cases it has been stipulated that full working time shall be considered an average working obligation during a period that may not exceed 12 months. The pay of the possible surplus of working hours, which results from the irregular or temporary redistribution of working hours within the limit of 12 months, has been increased. Violations of the provisions on Sunday work and on work on public holidays should be prevented by the sanction introduced by Annex No. 3. It has been agreed that in the case of violation, the employer shall be required to pay an amount representing 500 percent of the basic wage for each completed hour of violation.

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Spain

Summary (I) There have been two main developments linked to employment policies in December: the Activation Strategy for 2017-2020 and the Annual Policy Plan 2017. (II) There will be an increase in the minimum wage as a result of the agreement between the government and the social partners. (III) There have been amendments in the regulation of the Labour Inspectorate. (IV) The Supreme Court ruled on collective dismissal, dismissal of a pregnant worker and seniority supplement. (V) The CJEU Case C-158/16 Vega González considers the Spanish regulation on leaves discriminatory against fix-term workers.

______1 National Legislation 1.1 Spanish Activation Strategy for Employment 2017-2020 The Spanish Activation Strategy for Employment 2017-2020 sets out three main types of objectives: key objectives (referring to the performance of public employment services), strategic or priority objectives (for a specific moment), and structural objectives (of a stable nature). Key objectives entail the reduction of unemployment, the activation of unemployed persons to reduce their periods of unemployment and the improvement of the participation of public employment services in the job placement of workers. Strategic objectives are the improvement of the employability of young people, the promotion of employment as a factor of social inclusion and the improvement of training and collaboration with social agents. Structural objectives (six areas of action) refer to guidance for employment, training, promotion of hiring, equal opportunities in access to employment, promotion of entrepreneurship and improvement of the institutional framework. The strategy is based on a description of the situation of Spain’s labour market and its evolution, which shows a progressive increase in the number of employed workers and those contributing to social security in the last three years. The strategy also establishes the main challenges of employment policy in Spain, linked to the demands of the technical and organisational changes required by companies, demographic projections, the situation and the needs of certain groups of the population, and the persistence of an unemployment rate of 16.38 percent, which is significantly higher than the European average and which mainly affects the long-term unemployed and the young. The strategy also identifies economic activities and occupations with better employment prospects, training needs to meet the demands of the labour market and the intermediation rate of public employment services. Finally, it sets some guidelines for annual employment plans, such as the inclusion of indicators to evaluate their results and the identification of the necessary instruments for their proper preparation.

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1.2 Annual Employment Policy Plan for 2017 According to the Spanish Activation Strategy for Employment 2017-2020, the Annual Employment Policy Plan for 2017 considers focusing on long-term unemployed and older workers to be a key challenge, and establishes among its objectives the improvement of employability and insertion of young people under 30, the improvement of the quality of vocational training for employment, and the promotion of entrepreneurship. The Plan specifies the scope of the objectives of the strategy and identifies all the programmes that were launched for this purpose in 2017 (guidance for employment, training, promotion of hiring, equal opportunities, entrepreneurship and institutional improvements). It also includes financing sources and evaluation measures for the developed programmes.

1.3 Minimum wage for 2018 Article 27 of the Labour Code establishes that the amount of minimum wage must be approved each year, with the possibility of a semi-annual review, if necessary. The power to set that minimum wage is held by the government after hearing the most representative trade unions and business organisations. The minimum wage must be set according to various economic and social indicators, specifically the price index, the general economic situation or the national average productivity. For the year 2018, the minimum wage will increase by 4 percent compared to 2017. As a result of this review, the minimum wage shall be set at the following amounts: • EUR 24.53 for wages fixed by day • EUR 735.9 for wages fixed by month • EUR 5.76 per hour actually worked for domestic servants The minimum wage is set at EUR 10 302.6 per year, so that no full-time worker can receive less than that amount annually. As always, the minimum wage must be paid in full in cash (not in kind) and refers to the normal working day in each activity (proportional for part-time workers). Usually, the minimum wage is not the full salary, because the employee is entitled to allowances established by law or agreement, as well as two extra payments.

1.4 Labour Inspectorate Through Royal Decree 1078/2017, the government has, on the one hand, modified the entry conditions in the bodies of public officials that carry out these tasks and, on the other, the powers of the sub-inspectors, an auxiliary body for the inspection activity. This Royal Decree also updates the regulation of the procedures to be followed by the Spanish labour administration to impose sanctions for infractions of labour legislation. Above all, it deals with how to initiate the procedures for the investigation and verification of infractions, which inspectors and sub-inspectors must follow, and regulates the measures that as a result of such actions can be adopted by them, especially when the infractions can generate risks for the safety and health of the workers. The inspection actions may affect companies that post workers to Spain from other countries.

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2 Court Rulings 2.1 Collective dismissal Supreme Court, No. 4425/2017, 14 November 2017 In the present case, the worker representatives requested the nullity of a collective dismissal for three reasons. First, a new collective agreement was being negotiated at the same time, which was considered a diversion organised by the company to harm the efforts of the worker representatives. Secondly, because the company had increased its production before proceeding to the collective dismissal to minimise the consequences of a strike. And thirdly, because the collective dismissal only affected workers under the age of 50 years old. The Supreme Court rejected these three allegations, because it did not find an existence of bad faith by the employer, and although the criteria to select the workers may have incurred discrimination based on age, this circumstance did not render the dismissal null, but only forced the employer to use another criteria to select workers to be dismissed. However, the principle of also plays a role in collective dismissals based on business reasons, because the employer’s decision must be proportional to the aims, so the number of workers affected cannot be excessive. The Supreme Court has stated that a reasonable suitability between the proven cause and the measure adopted must exist, and this ruling found that no such suitability existed in this case, because the economic situation of the undertaking was not poor enough to justify all the dismissals planned by the employer. That is, the dismissals were not null and void, but were qualified as being unfair.

2.2 Seniority supplement Supreme Court, No. 4417/2017, 22 November 2017 The Supreme Court considers that after the conversion of a temporary contract into a permanent one, the seniority supplement must be paid, taking into account previous temporary contracts, even if there were gaps between them. However, those periods of interruption should not be taken into account.

Source: The case is available here.

2.3 Dismissal of a pregnant worker Supreme Court, No. 4405/2017, 28 November 2017 Under Spanish dismissal law, special protection is granted for pregnant workers and for workers who enjoy the right to reconcile work and family life. In these cases, a dismissal cannot be just unfair, because the Labour Code considers these dismissals null and void (and the worker must be reinstated), unless there are valid grounds for dismissal (i.e. if the dismissal is lawful). This extra protection applies even if the undertaking did not know at the time of dismissal that the worker was pregnant, as this ruling reminds.

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Source: The case is available here.

3 Implications of CJEU Rulings and ECHR 3.1 Discrimination between permanent and temporary workers CJUE Case C-158/16, 20 December 2017, Vega González The CJEU Vega González ruling states that Clause 4 of the framework agreement on fixed-term work, annexed to Council Directive 1999/70, must be interpreted as precluding national legislation that fully prohibits the granting of leave to a fixed-term worker in order for him/her to hold a political office during which the employment relationship is suspended until reinstatement of that worker at the end of the term of office, even when that right is conferred on permanent workers.

4 Other relevant information 4.1 Minimum wage The government has signed an agreement with the most representative trade unions and employers' associations to increase the minimum wage. The objective is to raise the minimum wage, which is currently at EUR 735, to EUR 850 by 2020, with an increase in 2018, a 5-percent increase in 2019 and a 10-percent increase in 2020.

4.2 Unemployment The unemployment rate dropped in December 2017 by 61 500 persons. There is a total of 3 412 781 unemployed people in Spain.

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Sweden

Summary (I) The Swedish government is promoting a reform of sick pay legislation, aiming at reducing the differences between employees with flexible working hours and those with more traditional eight-hour working schemes (karensavdrag). (II) The Swedish Labour Court has issued a decision on religious discrimination in a case in which a Muslim female dentist was precluded from using one-time long sleeves, in contrast to the general health and safety of the patients’ regulations, when treating male patients. (III) The CJEU has discussed the definition of “employment conditions” under Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP

______1 National Legislation 1.1 Sick pay The Swedish Social Democrat-Green government has proposed a new form of a qualifying or waiting day for sick pay under the Sick Pay Act and Social Security Act. The current legislation states that the first day of sick leave is a waiting day during which the employee does not receive sick pay from the employer (or, if not from the employer, sickness benefits from the social security system), 6 § 1 p. Sick Pay Act (lagen (1991:1047) om sjuklön). In the following 13 days of incapacitating sick leave, the employee will receive 80 percent sick pay from the employer. After more than 14 days of sick leave, the social security scheme will, in general, reimburse 80 percent of the sick employee’s salary at a specific ceiling (roughly EUR 3 000 per month). Since this legislation does not reflect the variety of different working hours or vertical part- time schemes, employees with flexible working hours might be worse off than employees who work a regular eight-hour day. The reform aims to calculate the sick pay based on the employee’s average working day per week and reduce the differences between flexible working hours and less flexible forms of employment. The new legislation is likely to pass Parliament during 2018 and come into force as of 01 January 2019.

Source: The text of the proposal has been published by the Lagrådsremiss and is available here.

2 Court Rulings 2.1 Non-discrimination on grounds of religion Swedish Labour Court, AD 2017 No. 65 The Swedish Labour Court discussed a case on religious discrimination in which a female Muslim dentist had used one-time long sleeves to cover her lower arms when treating male patients. The dentist argued that her religious belief precluded her from working with uncovered arms, even though this was explicitly regulated by the employer (a public dental care unit) on recommendation from the Swedish National Board of Health and (Socialstyrelsen), due to reasons of safety and risk of infections. The Labour Court concluded the decision to prohibit the use of one-time long sleeves was adequate

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and necessary to meet a relevant objective, namely the safety of the patients, and dismissed the appeal on these grounds.

3 Implications of CJEU rulings and ECHR 3.1 Non-discrimination of fix-term workers CJEU Case C-158/16, 20 December 2017, Vega González In case C-158/16, the CJEU ruled on a dispute on fixed-term contracts and the meaning of employment conditions under Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. The case referred to a situation in which the applicant, a fixed-term employee since 1989 of the respondent, was not granted leave to exercise her political appointment as a member of the regional parliament. The respondent claimed that the right to leave only applied to employees with permanent contracts. The applicant argued that such a narrow application of the provisions violated her rights under the Directive on fixed-term employment contracts. The referring national court asked for a from the CJEU to clarify if: • The term “employment conditions” in the framework agreement (Directive 1999/70/EC) must be interpreted as including a legal situation in which a fixed-term worker, who has been elected to a political office, may be granted leave in the same fashion as a permanent worker would be; • The principle of non-discrimination under the framework agreement (Directive 1999/70/EC) must be interpreted as precluding national legislation which “totally and absolutely” precluded the civil servant with a temporary employment contract from being granted leave to fulfil political appointments, even if permanent staff were allowed to take such leave. The CJEU, by referring to the Court’s previous case law (most prominently, case C- 596/14 de Diego Porras EU:C:2016:683, case C-443/16 Rodrigo Sanz EU:C:2017:109 and case C-38/13 Nierodzik EU:C:2014:152), came to the conclusion that the Spanish provisions constituted a violation of the rights under the Directive, since the term ‘employment conditions’ could be given such an inclusive definition and that the Directive and the framework agreement precludes national legislation which “absolutely” precludes granting fixed-term employees such rights as are provided to permanent employees. The CJEU also found that there were no such justifications as discussed in the framework agreement.

4 Other relevant information Nothing to report.

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United Kingdom

Summary (I) The Employment Tribunal has dismissed the appeal against its decision pertaining to Uber workers. (II) The Employment Tribunal Fees are no longer payable. (III) In the second stage of the negotiations for Brexit, the issues of citizens’ rights and the legal effects of the EU withdrawal bill are addressed.

______1 National Legislation Nothing to report.

2 Court Rulings 2.1 The Uber case on worker status It will be recalled that in an important decision, the Employment Tribunal found that Uber drivers were workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998 (WTR 1998). The Employment Appeal Tribunal (EAT) has now dismissed the appeal against the decision. The EAT rejected Uber's argument that it was simply a technology platform acting as an agent for drivers by putting them in touch with passengers. Uber then asked the Supreme Court for permission to appeal directly to the Supreme Court, leapfrogging the Court of Appeal. This was also rejected.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Fees The case R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 was reported. It will be recalled that in proceedings brought by Unison, the Supreme Court unanimously declared that Employment Tribunal fees were unlawful on the basis that they prevent access to justice. The judgment was implemented immediately and ETs are no longer accepting fees. The number of cases is going back up.

4.2 Brexit and citizens’ rights A joint report was concluded between the UK and the EU on 08 December 2017 and this was deemed to constitute ‘sufficient progress’ for the negotiations to move on to the second stage. Of most interest for the purposes of this flash report is the agreement on citizens’ rights. The UK has followed it up with various emails to EU citizens currently

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living in the UK. For Irish citizens currently living in the UK, they will not need to apply for the new ‘settled status’. Those from the EU-27 (as well as those from EEA states plus Switzerland), the government anticipates will eventually have to apply for settled status. There is also updated guidance for UK nationals living in the EU.

4.3 The effect of the EU (Withdrawal) Bill Clause 7 of the EU (Withdrawal) Bill gives the government power to ‘correct’ UK law retained EU law to ensure it functions after Brexit day. The UK government has published two draft statutory instruments to illustrate the use of powers under the EU (Withdrawal) Bill.

BEIS has issued the following ‘Note on the draft Statutory Instruments: The Employment Rights (Amendment) (EU Exit) Regulations 2018; and The Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018’. The introductory paragraphs provide:

“Context and overview The Government intends to use the powers under clause 7 of the European Union (Withdrawal) Bill (‘the Bill’) to make amendments to employment legislation. The Government’s approach to workers’ rights is clear – the Government has firmly committed to protect workers’ rights, and to seek out opportunities to enhance protections when that is the right choice for UK workers. The Bill itself will ensure that EU-derived employment rights will continue to be available in domestic law after the UK has left the EU. However, in addition, some technical amendments to existing legislation are required to ensure the existing legal framework that provides for employment rights continues to operate effectively, for example removing EU references that are no longer appropriate. The proposed amendments are contained in two statutory instruments (SIs), which the Government has made available in draft form. The policy aim underpinning these amendments is to ensure that the existing statutory framework continues to operate effectively in its current form when the UK withdraws from the EU. To note that the statutory framework that applies to European Works Councils (EWCs) would require a reciprocal agreement from the EU for them to continue to function in their present form within the UK. A placeholder has been included in the draft Regulations. Across the piece, the final set of Regulations may change depending on the outcome of negotiations with the EU. These two draft SIs are being shared as illustrative samples to show how the powers in the Bill may be used to correct retained law relating to employment rights. They should not be taken as the final version”.

Note the commitment to protect workers’ rights (but no express mention is made that EU standards will not be reduced). The draft Sis can be found here and here.

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