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DGEMPL Social Europe Guide Vol6 EN Accessible v4.0
DGEMPL Social Europe Guide Vol6 EN Accessible v4.0
DGEMPL Social Europe Guide Vol6 EN Accessible v4.0
Social Europe
Labour law and
working conditions
Social Europe guide
Volume 6
European Commission
For any use or reproduction of photos which are not under European Union copyright,
permission must be sought directly from the copyright holder(s).
Printed in Belgium
Foreword
standards. I mean fairness for those in
and out of work, proper responsibilities for
employers, education and training reforms
and removing barriers to employment.
right to work in workplaces that are safe has made the European labour market in
and healthy and to work with safe equip- general a better place to work while at the
ment, regularly maintained and checked; the same time contributing to a higher pro-
right to information and training that is rel- ductivity and competitiveness of the EU
evant to aspects of their health and safety economy. For anyone who wants to have a
at work... to name but a few. Of course, deeper understanding of the history, purpose
Member States can adopt more protective and current evolution of EU law and policy
requirements than those laid down in the on employment and working conditions,
EU rules, but by setting these EU minimum this Social Europe Guide can be an easy
requirements I am convinced that the EU but comprehensive source of information.
6 I Labour law and w o r k i n g c o n di ti o n s
Table of Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CHAPTER 1
CHAPTER 2
CHAPTER 3
CHAPTER 4
CHAPTER 5
CHAPTER 6
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La bo u r law an d w o r k i n g c o n d i t i o n s I 9
yy ensure economic and social progress by they implement EU law). The Charter draws
common action to eliminate barriers on the constitutional traditions of the
that divide Europe (Preamble to the Member States and on international instru-
Treaty on the Functioning of the Euro- ments such as the Council of Europe’s
pean Union, TFEU); and European Convention for the Protection of
yy have an essential objective of con- Human Rights and Fundamental Freedoms
stantly improving people’s living and and European Social Charter (see below
working conditions (Preamble TFEU). under ‘The EU and international law’).
The rights, freedoms and principles recog- The Charter’s rights cover human dignity,
nised by the EU are set out in the Charter basic freedoms, equality, solidarity, citi-
of Fundamental Rights of the European zens’ rights and justice. A number of these
Union, which has the same legal value as rights are of direct relevance to labour law
the EU Treaties (the Charter applies to EU and working conditions – see box 1.1 – and
institutions and to Member States when inform the EU’s action in this field.
Box 1.1 Key workplace rights guaranteed by the Charter of Fundamental Rights of the EU
yy Every worker has the right to working yy No one shall be required to perform
conditions that respect his or her forced or compulsory labour, or held in
health, safety and dignity (Article 31). slavery or servitude (Article 5).
yy Every worker has the right to limitation yy Everyone has the right to engage in
of maximum working hours, to daily work and to pursue a freely chosen or
and weekly rest periods and to an accepted occupation (Article 15).
annual period of paid leave (Article 31). yy Every EU citizen has the freedom to
yy Every worker has the right to protection seek employment, to work, to exercise
against unjustified dismissal (including the right of establishment and to
dismissal for a reason connected with provide services in any Member State
maternity) (Articles 30 and 33). (Article 15).
yy The employment of children is yy Nationals of non-EU countries who
prohibited. The minimum age of are authorised to work in the EU
admission to employment may not are entitled to working conditions
generally be lower than the minimum equivalent to those of citizens of the
school-leaving age. Young people Union (Article 15).
admitted to work must have working yy Any discrimination based on any
conditions appropriate to their age ground such as sex, race, colour,
and be protected against economic ethnic or social origin, genetic
exploitation and harmful work features, language, religion
(Article 32). or belief, political or any other
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 1
involved. To ensure this level playing field, The EU can play a role in preventing such
the EU’s role, as the market’s ‘referee’, is a race to the bottom, by establishing
to remove distortions of competition, such a level playing field in the form of common
as unfair or artificial advantages given by labour standards applicable to all busi-
national law or practice to businesses in nesses operating in the Single Market. The
a particular country. extent to which the EU should play this
role, harmonising aspects of labour law
Labour law is one of the areas where there and thus preventing distortions of compe-
are considerable differences among the tition or providing minimum labour stand-
EU countries, with higher levels of protec- ards, has been debated since the early
tion of workers in some Member States years of the European Economic Commu-
than in others. At the same time, busi- nity (EEC). Since the late 1980s, there has
nesses from the various EU countries com- also been a widespread view that the Sin-
pete freely in the Single Market for goods gle Market should be accompanied by
and services, regardless of these different a platform of minimum EU-wide social
labour standards. Consequently, as higher rights. In practice, the approach taken has
labour protection might entail higher costs been to adopt EU legislation that sets
for businesses, companies in Mem- minimum standards in a number of impor-
ber States with high levels of worker pro- tant areas, while promoting an overall
tection could find themselves at improvement in working conditions (see
a competitive disadvantage vis-à-vis busi- below under ‘The specific objectives of EU
nesses from EU countries with lower labour labour law’).
law standards. As such, companies and
national authorities may be tempted to The various practices whereby companies
compete on the basis of a lowering of their and governments may seek to exploit dif-
labour standards, rather than on factors ferences between countries in labour
such as productivity and efficiency, or the costs, and in the stringency of labour
quality and innovation of their goods and
services. If this occurs, other firms and
countries in the Single Market may be
prompted to follow suit, triggering a down-
ward spiral in standards that is often
referred to as a ‘race to the bottom’. If
price competition in the Single Market for
goods and services provides an incentive
to lower labour standards, this would not
be compatible with the EU’s mission to
have a social market economy (see above
under ‘The EU’s objectives’).
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La bo u r law an d w o r k i n g c o n d i t i o n s I 1 3
legislation, in order to obtain an unfair basic principles and aims, as set out
competitive advantage are often referred in its Charter, include the promotion of
to as ‘social dumping’. An example universal respect for human rights and
might be where a company based in fundamental freedoms, higher standards
a country with a comparatively low level of living, full employment, and economic
of labour protection and costs exercises and social progress. Respect for the prin-
its freedom to provide services in other ciples of the UN Charter is built into the
EU countries, for instance by winning EU Treaties.
a contract to build a road in a country with
higher protection and costs. If the com- All EU Member States are also members
pany then sends its own workforce to of the International Labour Organiza-
carry out the work in the other country, tion (ILO), a specialised UN agency with
but continues to provide them with the a tripartite constituency, established in
(lower) pay and conditions that apply in 1919 to pursue a vision based on the
their home country, thereby undercutting premise that universal, lasting peace can
standards in the destination country and be established only if it is based on social
enjoying a competitive advantage not justice. The EU is committed to promoting
available to local companies, social the ILO’s ‘decent work’ agenda to promote
dumping would be considered to occur. rights at work, encourage decent employ-
ment opportunities, enhance social protec-
In addition to adopting labour legislation tion and strengthen social dialogue on
that sets minimum EU-wide standards work-related issues.
in various areas, the Union has responded
specifically to this threat of social dump- A key aspect of the ILO’s work is to adopt
ing, notably through a directive that sets and promote international minimum labour
a floor of basic employment rights for standards, notably in the form of Conven-
workers posted temporarily by their tions, which are legally binding interna-
employer to work in another EU country tional treaties that may be ratified by the
(see Chapter 3). ILO’s member countries. ILO Conventions
cover a wide range of work-related issues,
including:
The EU and international law yy freedom of association and collective
bargaining;
The EU does not exist in isolation. Its yy equality and non-discrimination;
law and values, and those of its Mem- yy child labour and forced labour;
ber States, are influenced by wider inter- yy the employment relationship;
national standards which Europe has also yy employment security;
helped formulate. At the global level, all yy wages;
EU countries are, of course, members of yy working time; and
the United Nations (UN). The UN’s yy occupational health and safety.
14 I Labour law and w o r k i n g c o n di ti o n s
All EU countries have ratified the core addition, the CoE’s European Social
labour standards – that is, the fundamen- Charter deals in detail with employment-
tal ILO Conventions on freedom of asso- related rights, such as workers’ rights to:
ciation, collective bargaining, forced and yy just conditions of work (eg, in terms of
child labour, equal remuneration and the working hours, annual leave, rest
elimination of discrimination. EU countries periods);
have also ratified the ILO ‘governance Con- yy safe and healthy working conditions;
ventions’ on labour inspection, employ- yy fair remuneration;
ment policy and tripartite consultations, as yy special protection, in the case of children
well as a considerable number of other ILO and young people;
Conventions. yy equal opportunities and treatment;
yy be informed and consulted, including on
While ILO standards cover a wider range collective redundancies;
of areas than those in which the EU is com- yy take part in the determination and
petent to legislate (see Chapter 2), and EU improvement of working conditions and
law often goes beyond the minimum provi- the working environment; and
sions of ILO Conventions, the principles yy protection of their claims in the event of
that underlie the action of both organisa- their employer’s insolvency.
tions are similar. There is much common
ground in the content of EU directives and There is an interplay between EU labour
ILO Conventions, with EU law reinforcing law, the European Social Charter and ILO
ILO standards. Directives on issues such as Conventions: EU law, in particular the Char-
working time and young workers (see ter of Fundamental Rights, takes into
Chapter 3) explicitly seek to take into account the European Social Charter and
account relevant ILO standards. ILO Conventions and in turn influences the
evolving content and monitoring of the lat-
The Council of Europe (CoE) predates, and ter instruments.
is separate from, the EU, though all EU
countries are among the Council’s More details on the relationship between
47 members. The CoE’s European Conven- the EU and the ILO and Council of Europe,
tion for the Protection of Human Rights and on the international law issues
and Fundamental Freedoms, commonly touched on here, are provided in
referred to as European Convention Chapter 5.
on Human rights, is arguably Europe’s
most important human rights treaty and
its fundamental rights constitute general The specific objectives of EU
principles of EU law. The Convention has labour law
some relevance to the area of labour law,
notably in guaranteeing freedom of asso- In the context outlined above, the EU has,
ciation and prohibiting discrimination. In since its inception as the EEC in 1957, had
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 5
explicit objectives in the field of labour law while the means of achieving them have
and working conditions. These objectives, become more concrete, with greater scope
and the means of achieving them, are set for legislative action in some areas. Fur-
out in a specific ‘social policy’ title of the ther, the role of the social partners and
Treaties (currently the Treaty on the Func- social dialogue in this field have been
tioning of the European Union, TFEU). The given explicit recognition (see Chapter 2).
objectives and means have changed over
the years, notably in the light of the full The EU’s social policy objectives are now
implementation of the Single Market and set out in Article 151 TFEU, which is repro-
the move from an economic Community duced in box 1.2. Competence for social
to a Union. The objectives have expanded policy in these areas is shared by the Union
to take in new areas and considerations, and the Member States.
The Union and the Member States, having To this end the Union and the
in mind fundamental social rights such Member States shall implement
as those set out in the European Social measures which take account of the
Charter signed at Turin on 18 October diverse forms of national practices, in
1961 and in the 1989 Community particular in the field of contractual
Charter of the Fundamental Social Rights relations, and the need to maintain the
of Workers, shall have as their objectives competitiveness of the Union’s economy.
the promotion of employment, improved
They believe that such a development
living and working conditions, so as to
will ensue not only from the functioning
make possible their harmonisation while
of the internal market, which will favour
the improvement is being maintained,
the harmonisation of social systems, but
proper social protection, dialogue
also from the procedures provided for in
between management and labour, the
the Treaties and from the approximation
development of human resources with
of provisions laid down by law,
a view to lasting high employment and
regulation or administrative action.
the combating of exclusion.
The Treaty thus sets an objective of differences and the need to keep the EU
upward development of living and as a whole competitive. This objective is
working conditions, to be achieved in part underpinned by the workers’ rights set out
by harmonisation linked to the functioning in international and EU law (see above).
of the internal market itself, and in part
by the approximation of national provi- Article 153 TFEU sets out in detail the
sions, while taking account of national fields in which the Union may act with
16 I Labour law and w o r k i n g c o n di ti o n s
a view to achieving its social policy objec- employment protection and high labour
tives. These fields, and the type of action standards all the more important in turbu-
that the EU may take, are examined in lent economic times, when workers face
Chapter 2. increased insecurity and downward pres-
sure on their living and working
Since the 1970s, to achieve its social and standards?
economic policy objectives, and to avoid
a ‘race to the bottom’, the EU has adopted The EU’s response to these questions has
a series of directives on health and safety, been to advocate the modernisation
working conditions, and the information, and adaptation of labour law, in the
consultation and participation of workers, light of the changing conditions. This does
which are explored in detail in Chapters 3 not mean dismantling the body of EU rules,
and 4. These directives form part of the which is widely appreciated for providing
accumulated body of EU law (the acquis a basic floor of guarantees for workers
communautaire) that countries must across Europe. The rules retain their key
adopt when they join the Union. role of preventing social dumping and
a race to the bottom, putting into practice
recognised fundamental rights, and bal-
Europe 2020 and the current ancing the concerns of workers and
context employers.
EU labour law today finds itself in a new Since 2010, the EU has been focusing
environment, facing new challenges. In many of its efforts on its 10-year growth
particular, the economic and financial crisis strategy, Europe 2020, which aims both
and its continuing repercussions pose to tackle the short-term challenges of the
questions for labour law. With high unem- economic crisis and to make structural
ployment, greater insecurity for those in reforms that will create the conditions for
employment, massive company restructur- long-term, sustainable and inclusive eco-
ing and increased global competition, is nomic growth.
deregulation of the labour market needed
in order to enable job creation and improve Key to the implementation of Europe 2020
flexibility and competitiveness? Or are is the European Semester, whereby EU
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 7
countries each year coordinate their budg- In short, the existing body of EU labour law
etary, economic and employment policies. is acknowledged as ensuring minimum
Through an Annual Growth Survey, the standards across the Union (for instance
Commission and the Council agree on the in terms of working conditions, health and
strategic objectives to be pursued, and safety, and employee involvement), and
provide overall policy guidance for the underpinning fairer competition, high levels
drafting by Member States of their own of productivity and the creation of good-
National Reform Programmes. The Com- quality jobs. However, the law and effects
mission evaluates these programmes and of its implementation must be regularly
proposes country-specific recommenda- analysed and, where necessary, the EU
tions that are endorsed by the European acquis must be adapted to make sure that
Council. In the labour law field, the Annual it remains effective, relevant and easily
Growth Survey and country-specific recom- applicable, and that, more generally, it
mendations focus mainly on: reforms of addresses new emerging issues and needs,
employment-protection legislation aimed such as those related to new working pat-
at reducing the segmentation of labour terns and technologies. A process of
market; the improvement of flexible work- reviewing existing labour law and assess-
ing-time arrangements to enable greater ing its fitness for purpose is therefore
labour market participation; and adapta- under way, without questioning the need
tions in the functioning of wage-setting for decent labour standards.
systems. The Commission also promotes
‘internal flexibility’ through collectively bar- We will return to the most recent and
gained arrangements such as hour banking expected future developments in more
and short-time working arrangements. detail in Chapter 6.
CHAPTER 2
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In addition to binding legislation, the EU has action is subject to the basic principles of
a legal basis to take ‘softer’ initiatives (see ‘subsidiarity’ and ‘proportionality’.
Chapter 3 for more details). In all the social
policy fields listed above where the EU is Subsidiarity means that decisions should
empowered to support and complement be taken at the lowest appropriate level.
Member States’ activities, the Parliament and In most areas, the Union can act only if
Council may adopt measures aimed not at and in so far as the proposed action’s
harmonising national laws and regulations, objectives cannot be sufficiently achieved
but at encouraging cross-border coop- by its Member States but can rather, by
eration. Such initiatives may aim to improve reason of the proposed action’s scale or
knowledge, develop exchanges of informa- effects, be better achieved at EU level. For
tion and best practices, promote innovative example, minimum labour standards nec-
approaches and evaluate experiences. essary for ensuring fair competition in the
Single Market (see Chapter 1) need to be
Further, the Commission is required by the legislated at the level of the EU.
TFEU to encourage cooperation and coor-
dination by making studies, delivering In the field of social policy, a related con-
opinions, arranging consultations, estab- cept of ‘social subsidiarity’ is closely linked
lishing guidelines and indicators, organis- to the role of the social partners at EU level
ing exchanges of best practice, and (see below under ‘The role of the social
conducting monitoring and evaluation. partners’). Social subsidiarity refers to the
Specific areas include: principle that the social partners should
yy labour law and working conditions; make the first move to arrive at appropri-
yy basic and advanced vocational training; ate solutions within their area of respon-
yy prevention of occupational accidents sibility, since employers and trade unions
and diseases; are closer to the realities of the workplace
yy occupational hygiene; and than political bodies. The EU institutions
yy the right of association and collective intervene at the Commission’s initiative
bargaining. only where negotiations fail.
national authorities free to choose the form protective measures for workers, as long
and methods of achieving this result. Each as these are compatible with the Trea-
directive sets a deadline by which all Mem- ties. Indeed, directives typically state that
ber States must comply with its require- they do not rule out legislative, regulatory
ments, but national authorities can comply or administrative provisions, or collective
in a way that fits with their own legal sys- agreements, that are more favourable to
tem and practice. Directives therefore give workers, and that a directive’s implemen-
national authorities considerable flexibility tation cannot justify a reduction in the
over how to ‘transpose’ EU standards into general level of protection for workers in
national law, but not as regards the specific the fields that the directive covers.
results to be achieved. If a Member State
fails to comply properly by the deadline, it This means that directives do not impose
may be subject to legal proceedings which a uniform labour law across the EU in the
the Commission can initiate at the European areas that they cover. They lay down
Court of Justice. In certain circumstances, a safety net of minimum requirements
directives can also have ‘direct effect’, in that EU countries have to comply with, in
that individuals can enforce their rights a way that suits their particular national legal
under a directive against the Member State and industrial relations structures. They are
concerned in court without the directive free to exceed these basic requirements if
having been transposed into national law. they wish. In practice, directives may require
no changes at all to national labour law, as
National authorities are obliged to provide countries’ existing provisions may be more
for appropriate measures in the event of favourable than the directive’s minimum
non-compliance with directives (for exam- standards. To take the example of the 2001
ple, by employers), with adequate adminis- framework directive on employee informa-
trative or judicial procedures that enable the tion and consultation (see Chapter 3), this
obligations deriving from directives to be required no, or virtually no, change to existing
enforced (for example, by workers and/or provisions in around a quarter of EU coun-
their representatives). National authorities tries, minor changes in around half of the
must also ensure that there are effective, countries, and major change in only the
proportionate and dissuasive penalties in remaining quarter.
the event of infringements of national pro-
visions implementing EU directives. The second distinctive feature of labour law
directives is that national authorities may
Labour law directives are subject to entrust ‘management and labour’– that
several special conditions set out in is, workers, employers and their representa-
Article 153 TFEU. First, they may set only tives at various levels – at their joint
minimum requirements for gradual imple- request, with the implementation of these
mentation. They do not prevent countries directives. In such cases, collective agree-
from maintaining or introducing more ments between trade unions and employers
La bo u r law an d w o r k i n g c o n d i t i o n s I 2 3
would contain the provisions required by the creation and development of small and
directives. Governments must always be medium-sized enterprises (SMEs). Again
able to guarantee the results required by taking the framework information and con-
the directive. sultation directive as an example of the
practical effects of this rule, this directive
This provision reflects the fact that in some seeks to avoid placing constraints on SMEs
EU countries the social partners play a pri- by applying its requirements only to under-
mary or significant role in regulating work- takings with at least 50 employees or
place matters, with legislation taking establishments with at least 20 employ-
a secondary place. In practice, the option ees (the choice is left to individual
of leaving the implementation of directives countries).
wholly to collective agreements is not
often used in such countries, not least
because it is rare for such agreements to The role of the social
cover 100 % of the workers and employers partners
to which a directive’s requirements apply.
However, agreements have, for example, The social partners – organisations repre-
played the leading role in implementing senting employers and workers at Euro-
various information and consultation direc- pean level, either on a cross-industry basis
tives in countries such as Belgium, Den- or in a specific sector (see text box 2.1) –
mark and Italy. have a key part to play in drawing up EU
labour law. The provisions of the TFEU
Third, all directives on labour and working stipulating this form of social dialogue are
conditions issues must avoid imposing based almost word-for-word on an agree-
administrative, financial and legal con- ment reached by the cross-industry social
straints in a way that would hold back the partners themselves in 1991.
Box 2.1 The EU-level social partners consulted in the social policy field
Under the TFEU, the Union recognises and Where the social partners reach an EU-level
promotes the role of the EU-level social agreement, they can decide that the agree-
partners and facilitates dialogue between ment will be implemented by their national
them, respecting their autonomy, while the member organisations, in ways consistent
Commission has the task of promoting with the industrial relations systems in each
their consultation. Specifically, under Arti- EU country. Alternatively, if the agreement
cle 154 TFEU the Commission, before sub- deals with the social policy matters that fall
mitting proposals in the social policy field, within the EU’s competence under Arti-
must consult the social partners on cle 153 TFEU, the social partners have the
the possible direction of Union action. This option of asking the Commission to propose
consultation is in two stages. a directive, to be adopted by the Council,
giving the agreement EU-wide legal force.
In the initial consultation, the Commission
seeks the social partners’ views on both If the social partners ask the Commission to
the substantive issue in question and propose a directive to implement an agree-
whether Union action is required, and asks ment reached following treaty-based con-
if they might consider initiating a dialogue. sultations, the Commission checks the
If, after this first consultation, the Commis- representative status of the signatory organi-
sion considers EU action advisable, it con- sations, their mandate and the legality of the
sults the social partners again, this time agreement’s content in relation to EU law, as
on the envisaged proposal’s content. The well as the provisions regarding SMEs (in line
second-stage consultation sets out more with the Treaty requirements in this area).
concrete options for EU action. It asks the (Under Article 155 TFEU, social partners also
partners for their views on the options and have the possibility to negotiate agreements
whether they want to negotiate on all or outside a formal consultation procedure initi-
some of the issues raised. ated by the Commission - when social part-
ners request legislation to implement such
In response to either a first- or second- agreements, the Commission also assesses
stage consultation, under Article 155 TFEU the appropriateness of EU action in the field.)
the social partners can decide jointly to If it is satisfied, the Commission drafts
launch EU-level negotiations on the issue a directive, which would make the agreement
in question. If the social partners decide to legally binding across the EU. The Council
negotiate, they must inform the Commis- then decides whether or not to adopt the
sion, which then temporarily suspends directive (it cannot amend the agreement’s
work on the proposal. The partners then provisions). The directive’s adoption means
have nine months to reach an agreement, that the Commission halts work on its pro-
unless they agree with the Commission to posal in the specific areas covered by the
extend this period. agreement.
La bo u r law an d w o r k i n g c o n d i t i o n s I 2 5
Using the procedure described above, the EU legislation that defines the workplace
social partners at both cross-industry and rights and obligations of workers and
sector levels have reached a number of Euro- employers in respect of working conditions,
pean agreements since the mid-1990s that information and consultation, and health
have been implemented by EU directives. and safety. Labour law is closely related
The value of this approach is illustrated by to and overlaps with many other EU policy
that fact that in some cases, social partner areas, and action in the various areas is
negotiations have broken the dead- often complementary.
lock on issues on which national govern-
ments could not agree. In the areas covered EU action on working conditions and EU
by this guide, cross-industry agreements on action on equal opportunities and
part-time work (1997) and fixed-term work non-discrimination overlap so exten-
(1999) have been implemented by directives sively that any clear distinction between
and become part of EU labour law. At sector them is often artificial. Significant work-
level, this has applied to agreements on place rights and obligations arise from
working time in seafaring (1998), civil avia- directives such as those on:
tion (2000) and cross-border rail services yy implementation of the principle of equal
(2005), implementation of the ILO maritime opportunities and equal treatment of men
labour Convention in seafaring (2008) and and women in matters of employment
preventing sharp injuries in hospitals and and occupation (Directive 2006/54/EC);
healthcare (2009). yy a general framework for equal treat-
ment in employment and occupation,
These examples all show the practical prohibiting discrimination on grounds of
application of the principle of social sub- religion or belief, disability, age or sexual
sidiarity (see above under ‘The form and orientation (2000/78/EC);
extent of EU action’). Social dialogue is yy implementing the principle of equal treat-
a pioneering example of improved consul- ment between persons irrespective of
tation and the application of subsidiarity racial or ethnic origin (2000/43/EC); and
in practice and is widely recognised as yy parental leave (2010/18/EU – this direc-
making an essential contribution to better tive implements a European agreement
governance, due to the proximity of the between the social partners).
social partners to the world of work.
Notably, workers are protected from dis-
crimination on the above grounds in areas
Labour law’s interaction with such as working conditions (including pay)
other EU policy areas access to employment, including promo-
tion, and access to vocational training.
The focus of this guide is on labour Further, working parents have a right to at
law, defined broadly as the body of least four months’ parental leave.
26 I Labour law and w o r k i n g c o n di ti o n s
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At the same time, labour law directives taken into consideration in other EU poli-
contribute to the EU’s equality and non- cies, including labour law. The Union has
discrimination objectives. For example, the a coordinated European Employment
directives on part-time, fixed-term and Strategy that promotes a skilled, trained
temporary agency work have a basic aim and adaptable workforce and labour mar-
of preventing discrimination. Further, it is kets responsive to economic change. This
worth noting that, in the case of part-time strategy is currently closely linked to the
work, discrimination against the workers wider Europe 2020 Strategy, which frames
concerned is often also discrimination the introduction of any new labour law and
against women. Across the EU, around the current review of some existing direc-
a third of women work part time, compared tives (see Chapter 1). Labour law directives
with under a 10th of men, while nearly 80 % also make a specific contribution to the
of all part-time employees are women. The European Employment Strategy. For exam-
part-time work directive can therefore also ple, the directives on part-time, fixed-term
be seen as partly a gender equality and temporary agency work meet the
measure. strategy’s objectives of promoting employ-
ment that is both flexible and secure, with
The EU’s social policy, which includes strong investment in human capital and
labour law, is obviously closely linked to its reduced labour market segmentation. They
employment policy, which is aimed at support a greater diversity of contractual
achieving a high level of employment arrangements, while protecting working
across the Union. This objective must be conditions.
La bo u r law an d w o r k i n g c o n d i t i o n s I 2 7
As we have seen in Chapter 1, labour law such as working conditions, including pay
plays a vital part in ensuring a level play- and dismissal, and health and safety.
ing field and preventing distortions of
competition in the Single Market. The Such equal treatment is also guaranteed
two policy areas also have specific over- for holders of an ‘EU blue card’ – a com-
laps. For example, the free movement of bined residence and work permit for highly-
services within the Single Market raises qualified non-EU migrants introduced by
questions about the situation of workers a directive in 2009 (2009/50/EC) – and will
sent to other countries to provide these be in future for non-EU seasonal workers
services, giving rise to the 1996 directive under a draft directive soon to be adopted
on the employment conditions of such by the European Parliament and Council.
‘posted workers’ (see Chapter 3). Further, A further proposal awaiting adoption
the free movement of workers within the would entitle non-EU intra-corporate trans-
Single Market is guaranteed by rules that ferees (workers transferred temporarily
have an impact on the workplace, such between subsidiaries in different countries
as non-discrimination in employment on by multinational companies) to the terms
grounds of nationality, and a system of and conditions of employment applicable
mutual recognition of professional to posted workers in a similar situation in
qualifications. the EU country where they work.
The Union has a policy on the labour The protection, realisation and enforce-
migration into the EU of nationals of non- ment of core labour standards as well as
EU countries. This has resulted in several the promotion of the ratification and effec-
directives that, among other matters, regu- tive application of other up-to-date ILO
late the working conditions of such migrant Conventions underpinning the Decent Work
workers. Notably, a 2011 directive Agenda, are part of a growing number of
(2011/98/EU) on a single EU-wide applica- bilateral agreements between EU and third
tion procedure and permit for non-EU countries, such as the new generation
migrants wanting to work and live in the of EU free trade agreements (see
Union also establishes a common set of Chapter 5). The follow-up mechanisms of
rights for permit-holders. This includes these agreements include monitoring
equal treatment with EU nationals in areas mechanisms involving social partners.
28 I Labour law and w o r k i n g c o n di ti o n s
But the economic crisis has not only had In some countries, new contractual arrange-
a severe impact on the overall number of ments and employment relations have
La bo u r law an d w o r k i n g c o n d i t i o n s I 2 9
emerged: for example, the UK has adopted With regard to working time, we can distin-
zero-hours contracts, whereby workers guish two periods of the crisis. From 2007
remain ‘on standby’ and in Poland there is a to 2009, the implementation of short-time
growing number of workers whose employ- working schemes or partial retirement in
ment is fixed by terms other than labour law several countries and the reduction of
contracts, as well as new forms of employ- activity in some economic sectors led to a
ment such as ‘employers’ groups’ (a form general reduction in average weekly work-
of labour pooling) and ‘crowd employment’. ing hours. A more diverse trend emerged
between 2010 and 2012. In countries
While, on average, working conditions have such as Hungary, Portugal and Romania,
not changed dramatically, there have been some reforms were implemented to facili-
significant changes for particular groups of tate longer working hours. In other coun-
workers over the past few years. tries, the provisions introduced in a bid to
improve productivity include the introduc-
There have been positive changes regard- tion of staffing pools and the temporary
ing some indicators. Small increases can transfer of employees between signatory
be seen in levels of job satisfaction, even firms. While overtime has decreased,
in countries adversely affected by the crisis. unpaid overtime has increased in sev-
In most European countries, accident rates eral countries.
have declined, especially between 2008 and
2009 – possibly linked to both a reduced Pay cuts and pay freezes, particularly
overall volume of work and changes in the in the public sector due to cuts in public
composition of employment. budgets, have resulted in a marked down-
ward pressure on pay. Pay and other condi-
In other areas, developments in work- tions of work are increasingly negotiated
ing conditions have been more nega- at a more decentralised level – shifting
tive. Intensity of work has gone up in a either from national to industry-level and
number of countries. In some cases, this company bargaining, or from industry-level
is due to reorganisation and restructur- to company bargaining. Other impacts of
ing, undertaken with a view to improved the crisis on industrial relations include a
organisational performance. In general, drop in the overall volume of bargaining,
this can provide opportunities for learn- and shorter agreements.
ing, on the one hand, and higher levels of
psychosocial risk on the other, particularly Our research indicates that there are some
if not accompanied by increased autonomy 20 % of ‘low-quality’ jobs in Europe, which
and participation. combine several detrimental features
30 I Labour law and w o r k i n g c o n di ti o n s
likely to impact both on the sustainabil- But policy makers also want to know what
ity of work during the life cycle and on factors produce positive change – they
people’s health in the future. This issue want to know ‘what works’. Eurofound’s
requires policy attention and follow-up research helps to identify innovative
by company actors if we are to tackle the practices and policies that have resulted
sustainability of work in the context of a in good outcomes. Eurofound’s online
shrinking workforce. databases outline, for example, labour
law requirements and legal instruments
Beyond analytical work, what other applied in the event of restructuring. They
specific efforts does Eurofound under- also provide an overview of support meas-
take to improve the working conditions ures that governments and social partners
in Europe? have put in place to anticipate and cushion
the effects of restructuring.
Eurofound’s mission is to provide knowl-
edge to assist in the development of Other research aims to identify success-
social and work-related policies. This ful approaches to overcoming the crisis –
knowledge, when used for the develop- looking at job creation in SMEs and youth
ment of effective policies, can lead to entrepreneurship, as well as exploring the
the improvement of working conditions in conditions for ‘win-win’ arrangements
Europe. In addition to analysis, Eurofound which benefit companies and employ-
provides easy access to comparative data ees alike.
from its surveys, including the European
Working Conditions Survey and the Euro- Eurofound provides specific information to
pean Company Survey. The Survey Map- support policy debates, particularly in the
ping Tool on Eurofound’s website allows EU Institutions and the European Social
policy makers to compare the situation Dialogue, but also to national governments
in their own country with the other EU and social partners.
Member States and a number of reports
analyse in depth these data. Results from To further exchange and mutual learning,
other Eurofound monitoring activities, Eurofound organises small-scale seminars
such as the annual review of collectively and networking initiatives. The tripartite
agreed pay, are also presented in online, nature of the Agency constitutes a distinct
searchable databases. added-value in this respect, for example
La bo u r law an d w o r k i n g c o n d i t i o n s I 3 1
© BelgaImage
La bo u r law an d w o r k i n g c o n d i t i o n s I 3 3
of the working time directive, in the light yy Workers have a right to paid annual
of ECJ case law and various other develop- leave of at least four weeks.
ments, but the Parliament and Council yy Night workers must not generally work
were unable to agree on the changes, and for more than eight hours per shift on
the initiative ended in failure in 2009. The average, and must be subject to special
Commission then consulted the social health and safety protection.
partners on the matter, and the partners
decided to negotiate over a review of the Special working time rules in the directive
directive. However, these talks also failed apply to some mobile and offshore work-
in 2012, and the matter remains ers. Further, countries may exempt certain
unresolved. workers, such as senior managers, from
some of the directive’s rules.
© BelgaImage
Most of the sectoral working time direc- negotiated such a sectoral agreement
tives are based on agreements between on working time in 2012 and have
the EU-level social partners in the indus- requested implementation by directive.
tries concerned. The social partners in The Commission is currently assessing
the inland waterways transport sector this request.
All three directives give an important role requiring that the renewal of such con-
to the social partners, in terms of both tracts/relationships is justified by objec-
consultations and reaching agreements on tive reasons.
specific issues. yy Temporary work agencies may not
charge workers any fees in exchange for
The directives also contain distinctive pro- arranging for them to be recruited by
visions relating to the particular type of a user undertaking, or for concluding an
work concerned. For instance: employment contract or relationship
yy A worker’s refusal to transfer from full- with a user undertaking after carrying
time to part-time work or vice-versa out an assignment there.
should not in itself constitute a valid
reason for termination of employment. Fixed-term and temporary agency workers
As far as possible, employers should are particularly exposed to health and
consider requests by full-time workers safety risks. A 1993 directive guaran-
to transfer to part-time work and vice tees that they have the same level of
versa, and measures to facilitate access health and safety protection as other work-
to part-time work at all levels of the ers, and are not treated differently because
enterprise, including skilled and mana- of their employment status. It provides
gerial positions. that fixed-term/temporary agency workers
yy National authorities must take meas- must be informed in advance of the risks
ures to prevent abuses arising from the they face and receive sufficient job-spe-
use of successive fixed-term employ- cific training. While agency workers are on
ment contracts/relationships, such as an assignment, the user company is
limiting their maximum total duration or responsible for their health and safety.
yy the proposed criteria for selecting work- yy the date of and reasons for the transfer;
ers for redundancy; and yy the legal, economic and social implica-
yy the method of calculating any additional tions for the employees; and
redundancy payments. yy any measures envisaged in relation to
the employees.
The employer must notify the competent
public authority about projected collective Where the transferor or transferee envisages
redundancies, which cannot take effect ear- measures in relation to employees, it must
lier than 30 days after this notification. consult their representatives in good time
with a view to reaching an agreement.
While the collective redundancies directive
deals with I&C, the transfer of under- The original rationale for the collective redun-
takings directive also protects employ- dancies and business transfers directives
ees’ rights more generally. The key was to protect workers in the context of the
employment-protection provisions are as restructuring that accompanied the develop-
follows: ment of the common market, and to reduce
yy When an undertaking is transferred to distortions of competition in this market. As
another employer, the rights and obliga- the directives were amended and adapted
tions arising from employment contracts over the years, they also grew to reflect the
or relationships must be transferred fact that employee involvement had in itself
from the ‘old’ employer (the transferor) come to be regarded as an important EU
to the ‘new’ employer (the transferee). value and an appropriate issue for EU legisla-
yy A transfer must not in itself constitute tion. This was expressed very clearly with the
grounds for an employee’s dismissal by adoption in 2002 of the directive establish-
the transferor or the transferee. How- ing a general framework of principles,
ever, this does not prevent dismissals definitions and arrangements for
for economic, technical or organisational informing and consulting employees
reasons. at national level, primarily through their
yy After a transfer, the transferee must representatives. This directive also linked to
observe the terms of any collective the European Employment Strategy, promot-
agreement that applied to the trans- ing dialogue over the anticipation and man-
feror, until the agreement expires or agement of restructuring and change.
a new one comes into force.
The directive sets out minimum require-
On I&C, the directive requires both the ments for employees’ I&C rights that apply
transferor and transferee to inform to undertakings with at least 50 employ-
in good time representatives of the ees or establishments with at least
employees affected (or, in the absence 20 employees. It provides for:
of representatives, the employees them- yy information on the recent and prob-
selves) about: able development of the undertaking/
44 I Labour law and w o r k i n g c o n di ti o n s
are often not geared to the specific situa- applicable in all Member States, rather
tion of multinationals. than national law. Using the SE form, com-
panies can operate throughout the EU on
Under the directive, the establishment the basis of a single set of rules, thereby
of an EWC may be triggered by a request potentially gaining benefits in terms of
from employees or their representatives, reduced administrative costs, a single legal
or a management initiative. In such structure and unified management and
cases, a special negotiating body (SNB) reporting systems. SEs can be set up by
made up of employee representatives two or more EU-based companies by
must negotiate with central manage- merger, or by formation of a joint holding
ment over the establishment of an EWC company or subsidiary. An individual com-
or an I&C procedure. Where the SNB pany can also transform itself into an SE,
negotiations lead to agreement, the under certain conditions.
EWC’s composition and operation, and
the content of I&C are not specified by To ensure that the creation of SEs does not
the directive but left to be decided by deprive employees of the involvement
management and the SNB in each mul- rights that apply in companies based on
tinational. Only in the absence of an national legislation, the regulation is
agreement may statutory ‘subsidiary accompanied by a directive that sets out
requirements’ for EWCs apply, which pro- rules for employee involvement in SEs.
vide for standard form of EWC and for Employee involvement arrangements – I&C,
I&C on specified matters, such as: plus board-level employee participation in
yy the situation and probable trend of some circumstances – must generally apply
employment; in all types of SE, though some aspects dif-
yy investments; fer depending on the way the SE was cre-
yy substantial organisational changes; ated. These arrangements are, in the first
yy the introduction of new working meth- instance, agreed between the companies
ods or processes; setting up the SE and an SNB of employee
yy transfers of production, mergers, cut- representatives. Such an agreement should
backs and closures; and set up an EWC-like ‘representative body’, or
yy collective redundancies. an I&C procedure. If the parties decide, and
compulsorily in some cases, the agreement
In 2001, an EU regulation (No. 2157/2001) may also provide for board-level participa-
created a Statute for a European tion. If no agreement is reached, statutory
Company. This measure aims to ‘standard rules’ apply, providing for the crea-
strengthen the Single Market by giving tion of a standard representative body and,
firms the option of creating a European in certain circumstances where this existed
Company (known as a Societas Europaea, in the participating companies, for board-
or SE) governed by EU law directly level participation.
46 I Labour law and w o r k i n g c o n di ti o n s
The SE is aimed mainly at public limited Box 3.5 Main EU Directives on employee
companies. To offer similar opportunities involvement at transnational level
of European-scale operation to coopera-
tives and similar organisations, a 2003 yy Directive 2009/38/EC of the
regulation (No.1435/2003) introduced European Parliament and of the
a Statute for a European Coopera- Council of 6 May 2009 on the
tive Society (Societas Cooperativa Euro- establishment of a European
paea, SCE). As with the SE statute, the Works Council or a procedure in
regulation was supplemented by an Community-scale undertakings
employee involvement directive. This lays and Community-scale groups of
down involvement rules for most types of undertakings for the purposes
SCE that are almost identical to those that of informing and consulting
apply to SEs. employees (Recast).
yy Council Directive 2001/86/EC of
In 2012, the Commission proposed a further 8 October 2001 supplementing the
Statute, this time for a European Foundation, Statute for a European company
which would allow public-benefit founda- with regard to the involvement of
tions to operate on a European scale. The employees.
draft statute contains EWC-like employee yy Council Directive 2003/72/EC of
involvement provisions. The Council is cur- 22 July 2003 supplementing the
rently discussing the proposal. Statute for a European Cooperative
Society with regard to the
A 2005 directive facilitates cross-border involvement of employees.
mergers between companies based in yy Directive 2005/56/EC of the
different EU countries, thereby helping European Parliament and of the
them to benefit from the Single Market. In Council of 26 October 2005 on
general, when such a merger occurs, the cross-border mergers of limited
directive provides that employees’ rights liability companies.
are governed by the relevant provisions of
existing national law in the countries where
the companies are based (including the Other forms of EU action
national provisions implementing the vari-
ous EU I&C directives). The exception is The focus of this Chapter has so far been
that the directive lays down specific rules on directives – EU laws that set binding
on board-level employee participation in outcomes that must be achieved by the
the merged company, which apply in cer- Member States. We are currently in a quiet
tain circumstances. period in terms of the adoption of new
La bo u r law an d w o r k i n g c o n d i t i o n s I 4 7
‘hard’ law of this sort. In the past decade, EU Directives on I&C at national level
hardly any substantive new labour law (see above under ‘Employee involvement
directives have been adopted, and few are at national level’) and in the light of the
in the legislative pipeline. ‘REFIT’ exercise of streamlining legisla-
tion and reducing regulatory burdens (see
There are various reasons for the present Chapter 6), the Commission is currently
lack of hard law activity. The economic and considering a possible consolidation of
financial crisis, with its accompanying high these Directives. With regard to improv-
unemployment, has shifted the focus of ing implementation, examples include the
the Union’s employment-related action 2009 amendment and recast of the Euro-
towards job maintenance and creation, pean Works Councils directive (though this
and to some extent away from improving revision went beyond solely implementa-
working conditions. At a time when many tion issues), and the 2012 draft ‘enforce-
companies face uncertainty about future ment directive’ on the posting of workers,
demand for their products or services, pro- currently under negotiation, that seeks to
tection of employment and working condi- ensure a better and more uniform appli-
tions often tends to be viewed more as cation and enforcement of the original
a ‘cost’ (relevant for short-term competi- 1996 directive.
tiveness) than as an investment in work-
force productivity and social cohesion Moreover, directives have never been
(relevant for longer-term competitiveness). intended as the only way that the EU pur-
Moreover, a relatively substantial body of sues its objectives in the field of labour
European labour law has already been law and working conditions (see Chap-
developed and, where there are gaps in ter 2). Other legal acts at the disposal of
this framework, these often relate to the Council and the Commission include
issues where consensus is unlikely – not recommendations and opinions.
least because the Union now consists of These instruments cannot be enforced in
28 Member States, with different eco- court (though recommendations do have
nomic situations and outlooks. some legal effect and may play a role in
interpreting EU law) but advocate a par-
The current period is therefore largely ticular course of action or express a view
marked by consolidating, ‘fitness- on an issue. Their effect is one of ‘soft’
checking’ and ensuring the proper law, influencing the policies and prac-
implementation of existing direc- tices of national governments and the
tives. For example, following a fitness other parties to which such instruments
check (completed in 2013) of the three are addressed.
48 I Labour law and w o r k i n g c o n di ti o n s
improve defence of violated rights of posted including the Internal Market Information
workers by assisting trade unions and other System may also take place.
organisations, to set principles of measures
of control and monitoring, which allow What other aspects of EU law on employ-
reducing the administrative burden and ment and working conditions preoccu-
unifying the application of measures of pied you during Lithuania’s Presidency of
control by adhering to principles of non- the Council? What do you consider to be
discrimination and proportionality. the main ‘unfinished work’ in this field?
What were the main areas of disagree- The Lithuanian Presidency made a consid-
ment between Member States, and what erable progress in the field of EU law on
key issues remain to be discussed with working conditions in terms of the Chemi-
the European Parliament? cals Directive. At the trilogue between the
Council, the Parliament and the Commis-
Provisions of the Enforcement Directive sion the agreement was reached.
ensuring more efficient and unified practi-
cal implementation of the currently valid The main unfinished work is Community
1996 Directive (96/71/EC) on the posting occupational safety health policy coordina-
of workers and contributing to fair compe- tion initiative (Community health and
tition and at the same time improving safety strategy for 2013-2020), which was
protection of posted workers by preventing to be presented to the European Council
violations of rights, are relevant and useful on 2013. On the period of implementation
for all 28 EU Member States irrespective Community health and safety strategy for
of whether a Member State is the posting 2007-2012, Member States recognized
or the accepting state. that the safety and health issues contrib-
ute to increasing productivity, growth of
We believe that the agreement on arti- economy and employment. Huge costs are
cles 9 and 12 of the Enforcement Direc- related with health and safety problems
tive reached in the course of negotiations and this causes economic slowdown and
with the European Parliament will be affects the competitiveness of EU enter-
extremely important. Discussions on Arti- prises. Most of the health and safety prob-
cle 3 establishing actual elements of lems, already observed in the previous
posting and the relation of 1996 Direc- period, become more and more important.
tive and the Enforcement Directive to the Occupational safety health policy coordi-
Regulation on the law applicable to con- nation at the EU level should contribute to
tractual obligations (the so-called Roma safety and health promotion, would help
I Regulation) and Articles 6, 7 and 18 to keep workers longer in the labour market
providing for cooperation between Mem- and create conditions for transparent
ber States using various mechanisms competitiveness.
CHAPTER 4
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La bo u r law an d w o r k i n g c o n d i t i o n s I 5 3
a culture of risk prevention. The Agency car- aims to improve information and consulta-
ries out a wide range of activities, such as tion of workers on health and safety and
disseminating information on the impor- promote and improve training on health
tance of health and safety, or designing and and safety.
developing tools to help enterprises to
assess workplace risk and enabling them to The directive places a number of general
share knowledge and good practice. It works obligations on employers. For example, it
with national governments, social partners, states that employers should ensure the
a range of EU bodies and networks and with health and safety of workers in every aspect
private companies. It also carries out related to work, including situations related
research to identify new and emerging risks to the use of external companies or individu-
at work. OSHA runs Healthy Workplaces als. To this end, the employer should carry
Campaigns in order to raise awareness out prevention, information and training
around Europe of specific health and safety activities to avoid risks or manage unavoid-
topics: the most recent Campaign focused able risks, encourage the use of protective
on working together for risk prevention. measures, and adapt working conditions,
Other prominent EU-OSHA tools and activi- equipment and working methods in order to
ties include the Online Interactive Risk ensure health and safety protection.
Assessment Project (OiRA), which is a web
application for creating online risk assess- In situations where workers from different
ment tools, and the ESENER (European organisations are working in the same
Survey of Enterprises on New and Emerging place (for example on a construction pro-
Risks), which is an EU-wide survey exploring ject), the directive states that the relevant
the views of managers and worker repre- employers should cooperate and coordi-
sentatives on how health and safety risks nate their health and safety measures. It
are managed in their workplace. is the employer’s responsibility to appoint
trained workers to ensure that the protec-
tive and preventative services that have
OSH directives been established are followed, or to call
external services if necessary.
and safety. Employers must also ensure The directive also obliges the employer to
that work takes place under the supervi- inform workers of all measures that relate
sion of a person in charge and that work to safety and health on board vessels.
involving a special risk is undertaken only Workers must also be given suitable train-
by competent staff and carried out accord- ing on accident prevention, covering fire
ing to employer instructions. Further, fighting, the use of life-saving and survival
employers must make sure that safety equipment, the use of fishing gear and
instructions are comprehensible to all hauling equipment and the use of signs
workers, appropriate first-aid facilities are and hand signals. In addition, the directive
provided and that relevant safety drills are on safety and health requirements
performed regularly. for improved medical treatment on
board vessels (92/29/EEC) aims specifi-
Further sector-specific health and safety cally to improve medical assistance at sea,
rules have recently been negotiated by the on the basis that a vessel represents
European social partners in the hair- a workplace involving a wide range of risks.
dressing sector, who have asked the Its provisions cover issues such as obliging
Commission for the implementation of vessels to carry appropriate medical sup-
their agreement by directive. The Commis- plies and equipment and a watertight
sion is currently assessing this request, but medical chest. Further, larger vessels with
it will not table a proposal before the end 15 or more workers should have a sick bay
of the current Commission’s term of office and vessels with 100 or more workers on
(end 2014). an international voyage of more than three
days must have a doctor on board.
The final two directives in this section
relate to health and safety at sea. The first
is the directive on safety and health Directives relating to work
requirements for work on board equipment
fishing vessels (93/103/EC), which pro-
vides that Member States oblige owners There are a number of directives that set
to ensure that their vessels are used with- out minimum health and safety provisions
out endangering the safety and health of relating to work equipment. These cover
workers. Any events at sea that affect or issues such as personal protective equip-
could affect the safety or health of workers ment, manual handling of loads, computer
should be described in a report that is then display screens and health and safety
forwarded to the relevant competent signs at work.
authorities and must also be recorded in
the ship’s log. Vessels should also be On personal protective equipment
checked regularly by health and safety (PPE), directive 89/656/EEC sets out mini-
authorities. mum requirements for its assessment,
La bo u r law an d w o r k i n g c o n d i t i o n s I 5 7
selection and correct use. It states that PPE such a way as to make such handling as
must be used when risks cannot be safe as possible, assessing in advance the
avoided or sufficiently limited by technical health and safety conditions of the type
means of collective protection or work of work involved, and examining the char-
organisation. The PPE must take account acteristics of loads, taking into account in
of ergonomic requirements and the work- particular the risk of back injury to workers.
er’s state of health, and must fit the wearer Employers must also inform workers about
correctly after any necessary adjustment. relevant measures they are taking and
Employers must provide the equipment make information available on the weight
free of charge and ensure that it is in good of a load and on the centre of gravity of
working order and a hygienic condition and the heaviest side when a package is
that it complies with the requirements of eccentrically loaded. Employers must also
the directive. ensure that workers receive training and
information on how to handle loads cor-
Knowing how to handle loads is an impor- rectly and the risks they might incur if
tant part of health and safety at work, and these tasks are not performed correctly.
a main contributing factor to avoiding
injury. Directive 90/269/EEC on the man- As a significant number of workers use
ual handling of loads where there is computer screens for a major part of their
a risk particularly of back injury to workers work, minimising the risk that this poses to
obliges employers to take appropriate health and safety is a key concern. Direc-
measures, including the use of mechanical tive 90/270/EEC on safety and health
equipment, to avoid the need for the man- requirements for work with display
ual handling of loads by workers. If this screen equipment obliges employers to
cannot be avoided, the employer must carry out an analysis of workstations,
take appropriate steps to reduce risks. For focusing in particular on possible risks to
example by organising workstations in eyesight, physical problems and mental
stress. The employer must then take
appropriate measures to remedy the risks
found and ensure that workstations meet
the directive’s minimum requirements.
Employers must also plan the worker’s
activities in such a way that work on a dis-
play screen is periodically interrupted by
breaks or changes of activity.
the workstation. Most specifically, it enti- and health at work of workers with
tles workers to an eyesight test before a fixed-duration employment rela-
starting display screen work and after- tionship or a temporary employment
wards at regular intervals, or if they are relationship, which aims to ensure that
having visual difficulties. workers with these types of employment
relationship are afforded the same level
Signage is an important aspect of health of protection, including in the area of
and safety at work, and is regulated by health and safety, as that of other workers.
directive 92/58EEC on the provision of In particular, Member States may prohibit
safety and/or health signs at work. the use of temporary workers to perform
This directive obliges employers to provide tasks that are particularly dangerous,
or ensure that safety and/or health signs especially work requiring special medical
are in place where hazards cannot be surveillance. Where Member States do not
avoided or reduced. Employers must also use this option, they must ensure that all
inform workers about all measures taken workers who are called on to perform work
concerning health and safety signs and requiring special medical surveillance have
must offer instruction about these signs. access to this.
radiation (eg sunlight, moonlight or light from The employer should carry out risk assess-
volcanic eruptions). Workers in metalworking, ments and if they reveal a risk to workers’
pharmaceuticals, glass manufacture, motor health or safety, employers must, if
vehicle repair workers and health workers requested to do so, make appropriate
may all be potentially at risk from artificial information available to the competent
optical radiation. The Directive obliges authority. The directive also obliges
employers to carry out a risk assessment on employers to ensure hygiene and individ-
the level, wavelength range and duration of ual protection by prohibiting eating or
exposure to artificial sources of optical radia- drinking in working areas, providing protec-
tion, special circumstances such as multiple tive clothing and appropriate toilet and
sources, indirect effects (blinding, explosion, washing facilities, and maintaining protec-
fire), particularly sensitive risk groups of tive equipment properly. Employers should
workers and possible effects resulting from give workers appropriate training on work-
workplace interactions between optical ing with biological agents and provide writ-
radiation and photosensitising chemical sub- ten instructions and display notices of the
stances. Employers should then eliminate or procedure to be followed in case of a seri-
minimise these risks. ous accident or the handling of biological
agents in group 4.
these risks. This includes procedures such workplace. Workers should be informed
as safe disposal, eliminating unnecessary about these emergency arrangements, in
sharps use, providing safety-engineered addition to the results of risk assessments,
medical devices, prohibition of recapping, and the presence of hazardous chemical
coherent prevention policy, training and agents at the workplace. Employers should
information, personal protective devices also provide appropriate training on deal-
and offering vaccination. Workers should ing with hazardous chemical agents.
report any accident; the accident should
be investigated and the victim treated. Workers at risk from chemical agents must
have access to health surveillance and
must be informed by a doctor if they are
Dangerous substances directives found to have a disease or adverse health
effect associated with exposure at work to
Workers in some occupations may be a hazardous chemical agent or a binding
exposed to risk from substances that could biological limit value is found to have been
harm their health. There are therefore exceeded. Four directives implement this
a number of directives that provide protec- directive by laying down indicative occu-
tion from potentially harmful substances pational exposure limit values: directive
such as chemical agents, carcinogens, 91/322/EEC establishes values for a refer-
mutagens and asbestos. ence period of eight hours for 10 chemical
substances; directive 2000/39/EC estab-
Chemical agents: directive 98/24/EC lishes values for a reference period of eight
provides for the drawing up of indicative hours time-weighted average and also for
and binding occupational exposure a short-term period of 15 minutes for
limit values and biological limit val- 61 chemical agents; directive 2006/15/EC
ues, which must then be established at adds 33 chemical agents to the list; and
national level. The employer is obliged to directive 2009/161/EU a further 19 chemi-
determine whether hazardous chemical cal agents to the list.
agents (for example toluene, which is used
in making paints, paint thinners, fingernail Carcinogens or mutagens: Directive
polish, lacquers, adhesives, and rubber and 2004/37/EC provides protection for
in some printing and leather tanning pro- workers against exposure to car-
cesses) are present at the workplace, and cinogens or mutagens at work.
assess their risk to safety and health. If Employers are obliged to assess and man-
there is a risk, the employer should try to age risks of exposure to these agents (for
eliminate or minimise it, preferably by sub- instance asbestos, although also covered
stitution. The employer should also draw by a separate directive – see below – and
up action plans to be implemented in the the industrial solvent benzene) eliminating
event of emergencies related to the pres- or reducing the risk to a minimum, ideally
ence of hazardous chemical agents at the by substitution. Other ways of reducing the
62 I Labour law and w o r k i n g c o n di ti o n s
risk include keeping the number of workers dust must notified by the employer to the
exposed as low as possible, designing work responsible national authority. Employers
processes to minimise the substance must ensure that exposure to asbestos is
release, and using individual protection reduced to a minimum, including: minimis-
measures if collective measures are not ing the number of persons exposed, prior-
sufficient. Employers must also prohibit itising dust-free work processes, cleaning
eating, drinking and smoking in contamina- buildings and ensuring that materials are
tion risk areas, provide appropriate protec- properly stored, transported and labelled.
tive clothing and separate storage places
for work clothes and normal clothes, and The directive sets a single maximum limit
appropriate and adequate washing facili- value for airborne concentration of asbes-
ties. Employers must offer appropriate tos; if this is exceeded, the employer must
training to workers, and inform them and/ identify the reasons and take measures to
or their representatives about objects con- remedy the situation. Work may not
taining carcinogens or mutagens (and label
them clearly) and on abnormal exposures
as quickly as possible.
continue before measures are taken. If objectives in the health and safety field,
limit values cannot be kept by technical and raising public awareness of the impor-
measures, following consultation with tance of health and safety at work. It also
workers, the employer should ensure pro- saw a significant fall in the rate of acci-
tection, such as providing personal protec- dents at work: between 2000 and 2004,
tive equipment, putting up warning signs the rate of fatal accidents at work in the
and preventing the spread of asbes- EU fell by 17 % and the rate of workplace
tos dust. accidents resulting in absences of more
than three days fell by 20 %.
Employers are obliged to provide appropri-
ate training for workers on topics related The 2007-2012 strategy aimed to build
to working with asbestos and inform work- on this progress, centring on the goal of
ers on all aspects of working with asbes- reducing the total incidence rate of acci-
tos. Employers must also ensure that dents at work by 25 % per 100 000 workers
workers’ health is assessed, including in the EU27 by 2012, by means such as
a chest examination, prior to exposure to improving health and safety protection. The
asbestos, and subsequently at least once strategy hoped to achieve this by encourag-
every three years during exposure. ing the following activities: guaranteeing
proper implementation of EU legislation;
supporting SMEs in implementing legisla-
OSH strategies tion; adapting legislation to changes in the
workplace and simplifying it where pos-
EU policy on occupational safety and sible, particularly with reference to SMEs;
health is contained in its Community strat- promoting national strategies; encouraging
egies on health and safety at work. The changes in the behaviour of workers and
two most recent strategies cover 2002- employers; developing methods for iden-
2006 and 2007-2012. tifying and evaluating new risks; improving
progress tracking; and promoting health and
The 2002-2006 strategy was based on safety at international level. It called upon
an overall approach to wellbeing at work relevant parties at all levels, such as Euro-
which took account of changes in the work- pean, national, local and workplace level, to
place and the emergence of new risks, in help with implementation.
particular those of a psychosocial nature.
The formal evaluation of this strategy The strategy also identified a number of
noted that it had been successful in re- ongoing challenges to health and safety.
launching prevention policies at national These included the fact that, according
level, promoting partnership to achieve to the fourth European survey of working
64 I Labour law and w o r k i n g c o n di ti o n s
conditions, published in 2007, almost 28 % the positive effect of having a quantitative
of workers in Europe said that they suf- target of a 25 % reduction in the incidence
fer from non-accidental health problems of accidents at work, which helped to
which are or may be caused or exacer- increase the visibility given to the OSH
bated by their current or previous work. policy area. Further, the existence of the
Further, 35 % of workers felt that their job quantitative target helped EU countries
put their health at risk in some way. with a high incidence of accidents at work
to focus more clearly on reduction meas-
The strategy also identified a number of ures. However, the downside was that this
remaining challenges, such as the fact that target – focused on accidents – may have
some categories of workers are still over- diverted attention from the prevention of
exposed to risk – in particular young work- occupational diseases.
ers, those in insecure employment, older
workers and migrant workers. SMEs have Although the economic climate has been
fewer resources to put into place complex difficult since the strategy was put into
worker protection systems, and certain place, the evaluation shows that it has
sectors carry higher occupational risk, such been effective. Action has been taken
as construction, civil engineering, agricul- under all areas listed above, and results
ture, fishing, transport, health care and have been achieved, particularly in devel-
social services. In addition, it stated that oping national strategies and fostering
challenges such as the ageing population, a preventive culture. Nevertheless, the
an increase in self-employment, outsourc- evaluation has also found that more
ing, increasing levels of employment in improvement is needed at the level of
SMEs and an increase in flows of migrants individual companies, in particular
into Europe, will need to be met in order to among SMEs.
protect the health and safety of workers
in Europe. In terms of impact, because of a lack
of recent data across the EU, it was not
The Commission’s evaluation of the possible to establish with any accuracy
2007-2012 strategy was published in whether the strategy’s goal of achiev-
May 2013, noting that it had been highly ing a 25 % reduction in the incidence
relevant for the EU, its goals had been rate of occupational accidents had been
achieved and there was evidence of sig- achieved. However, the evaluation states
nificant EU value added. It also highlighted that it is likely that a significant reduction
La bo u r law an d w o r k i n g c o n d i t i o n s I 6 5
Committee’s annual work programme. The Commission (at its request or up its own
Committee also currently has 12 working initiative) on all problems that are relevant
parties, which deal with specific technical to the enforcement by the Member States
issues and organise workshops and semi- of Community law on health and safety at
nars on specific topics. work. SLIC’s main activities cover areas
such as defining common principles of
The second advisory body is the Scien- labour inspection in the field of health and
tific Committee on Occupational safety at work and developing methods of
Exposure Limit Values (SCOEL), which assessing national systems of inspection.
was set up in 1995 in order to advise the It also aims to promote improved knowl-
European Commission on occupational edge and mutual understanding of the
exposure limits for chemicals in the work- different national systems and practices
place. Its main activity is to prepare scien- of labour inspection, and the methods and
tific recommendations for the Commission, legal frameworks for action.
which are used to underpin regulatory
proposals on occupational Exposure Limit Further activities of the Senior Labour
Values (OELVs) for chemicals in the work- Inspectors’ Committee include developing
place. The Committee comprises up to exchanges of information between national
21 members from the EU Member States, labour inspection services and promoting
who are independent experts in the fields a labour inspector exchange programme
of chemistry, toxicology, epidemiology, between national governments. It also sets
occupational medicine and indus- out to develop a system of rapid informa-
trial hygiene. tion exchange between labour inspector-
ates, establish active cooperation with
The third EU-level advisory body is the labour inspectorates in countries outside the
Senior Labour Inspectors’ Commit- EU, and study the possible impact of other
tee (SLIC), which has been in existence Community policies on labour inspection
since 1982, when it met informally in order activities in health and safety. The Commit-
to assist the European Commission in tee meets every six months and is made up
monitoring the enforcement of EU legisla- of the Commission and one representative
tion at national level. In 1995 SLIC was of the labour inspection services of each
mandated to submit opinions to the EU country.
La bo u r law an d w o r k i n g c o n d i t i o n s I 6 7
than half of older workers (aged 55–64) true for SMEs because they can least
currently leave work before retirement age, afford the costs associated with health-
for a variety of reasons (3). Is this trend likely related poor performance, illness, absen-
to continue? We need to ensure that it does teeism or accidents. Our own ESENER
not: better and longer working lives are study shows that they typically have lower
essential in order to finance and support awareness and lack expertise and have
the ageing European population. fewer resources to dedicate to health and
safety. They are particularly vulnerable.
In 2012 the European Parliament set up a
pilot project on the health and safety at It is clear therefore that small and micro
work of older workers that the European enterprises need support in ensuring that
Commission delegated to EU-OSHA. The they meet the requirements. We take that
project will examine occupational safety very seriously - that’s why these small and
and health in the context of an ageing micro enterprises are a central focus for
workforce, with the aim of informing policy our work and our main target.
development and providing examples of
good strategies and practices for helping Our online interactive risk assessment tool
older workers stay healthy. European (OiRA) is developed specifically for small
employers need to be encouraged and businesses. OiRA is a free online software
supported to adopt smart policies aimed tool that gives micro and small businesses
at keeping older workers in employment the means to carry out workplace risk
right up their retirement. assessments and efficiently manage risks
in a straightforward and cost-effective way.
How can the EU and national govern- The project is rolling out across several
ments help small companies to know Member States with the support of the
what exactly they need to do to comply Social Partners. Our aim is to demystify the
with workplace health and safety rules? whole risk assessment process and in doing
Can we do something better? so demonstrate to SMEs what the evidence
clearly shows: health and safety is a key
Small, medium and micro enterprises are dimension of good management and it con-
the bedrock of the European economy. At tributes to long-term business success and
EU-OSHA, we know that when it comes to to European competitiveness.
health and safety, a level playing field is
essential and that is why European legisla- For more information about EU-OSHA, visit
tion is very important. And it is particularly https://osha.europa.eu
© BelgaImage
La bo u r law an d w o r k i n g c o n d i t i o n s I 7 1
On a global level the EU plays a key role in International labour standards coherent
encouraging the uptake of its values beyond with European ones are important both
its borders and working with international economically and socially. They aim
institutions to share best practices and at creating decent work conditions for
engage in mutual learning on employment all so that prosperity is fairly shared
and social policies. It is a major trading force and a race to the bottom on social
but also a union based on values such as and labour standards is avoided.
respect for human rights, and therefore it The mutual sharing of experience
seeks to ensure that globalisation of the and best practices between the EU
economy benefits all workers and citizens and its partners plays an important role
and that economic development is socially in this respect.
and environmentally sustainable. To this
end, the EU promotes international labour
standards and the Decent Work Agenda in poverty alleviation or on health and
international forums and in its relations with safety at work. Dialogue also takes place
partner countries and regions, and shares on an ad hoc basis with other important
expertise or provides specific support to global partners such as Canada and
them on many aspects of employment and within international organisations, such
working conditions. as the United Nations.
including in the field of employment, social Bilateral agreements, notably recently nego-
affairs and inclusion, by the time of acces- tiated trade agreements, also contain spe-
sion. The EU helps them in this process cific chapters on trade and sustainable
through policy dialogue and funding. The EU development with provisions on ratification
also encourages them to develop employ- and effective implementation of interna-
ment and social policy reforms to promote tional core labour standards and on the pro-
an inclusive and efficient labour market. motion of the ratification and application of
Under the European Neighbourhood Policy, other up to date ILO conventions, as well as
the EU works with the partners to develop monitoring mechanism involving social part-
democratic, socially equitable and inclusive ners and other civil society representatives.
societies, and offers its neighbours economic These agreements promote high levels of
integration, improved circulation of people labour protection, Corporate Social Respon-
across borders, financial assistance and tech- sibility and cooperation in a number of areas
nical cooperation toward approximation with related to trade and labour. This is particularly
EU standards (e.g. equal opportunities, important as supply chains increasingly
access to social services for all citizens, become global, i.e. products and services
observing healthy and safe working condi- include components from increasingly many
tions etc.). countries.
International conventions inspire and inform Many aspects of the working conditions of
EU social and employment law and policy seafarers are established by Directive
on many levels: the Treaties themselves, 2009/13, which implements an agreement
legislation, the 1989 Community Charter of reached between EU sectoral social part-
the Fundamental Social Rights of Workers, ners and reflects the provisions of ILO
the EU Charter of Fundamental Rights and Maritime Labour Convention of 2006.
the case law of the Court of Justice of the Directive 97/81 implementing the Euro-
European Union. The instruments most pean social partners’ Framework Agree-
commonly referred to as a source of social ment on Part-time Work was influenced by
and employment rights are the European ILO Convention No 175 (1988) on Part-
Social Charter and numerous Conventions time Work. Both the Race Equality Directive
of the International Labour Organization and the Employment Equality Directive
(see also Chapter 1). refer, in their respective preambles, to
a number of international conventions.
The Union is required to have in mind fun-
damental social rights, such as those set Box 5.3 Interpretation of international
out in the Council of Europe’s European conventions
Social Charter 1961 and the revised Charter
of 1996, when formulating and implement-
The Court of Justice of the European
ing its social policy. The Community Charter
Union regularly uses international
of the Fundamental Social Rights of Work-
conventions while interpreting
ers, 1989, has taken source in the European
and applying EU law. In Defrenne
Social Charter while many of the provisions
v Sabena the Court referred to
of the more recent Charter of Fundamental
Article 2 of ILO Convention No 100
Rights of the European Union, accorded
(1951) on equal pay in concluding that
Treaty status by the Treaty of Lisbon, cor-
Article 119 EC, now Article 157 TFEU,
respond to provisions of the European Con-
should be interpreted in the light of
vention on Human Rights. The equal pay
that provision to include the principle
provisions of the original EEC Treaty echo
of equal pay for work of equal value.
those of Convention No 100 of the Interna-
tional Labour Organisation. In Commission v United Kingdom
the Court interpreted the concepts of
On the legislative front, Directive 94/33 on ‘health’ and ‘safety’ in Article 118a EC,
the protection of young people at work, now Article 153 TFEU, in the light of
and Directive 2003/38 on the organisation the meaning given to those concepts
of working time both state in their pream- in the preamble to the Constitution
bles that account should be taken of the of the World Health Organization
principles of the ILO regarding the protec- whose members comprise all the
tion of young people at work and the Member States.
organisation of working time.
74 I Labour law and w o r k i n g c o n di ti o n s
In 2004 the ILO and the European Development Goals and the Decent
Commission further strengthened their Work Agenda.
links through the establishment of The EU played a key role in cooperating
a strategic partnership in the field of closely with emerging economies,
development cooperation. The purpose developing countries and social partners.
of this partnership is to work together This is highlighted by its adoption of the
towards the shared goal of reducing June 2008 ILO Declaration on Social
poverty. This they set out to do by Justice for Fair Globalisation and of the
strengthening the social dimension of Global Jobs Pact in 2009. The later was
development cooperation through the adopted unanimously at the ILO Summit
achievement of the UN’s Millennium on the Global Jobs Crisis of June 2009.
The social partners have recently reached and other workers as regards compensation
an agreement on the transposition into EU and benefits, for example maternity bene-
law of the Work in Fishing Convention, 188. fits. The Convention also introduces the
They have asked the Commission for an obligation to inform workers of the terms
implementation of their agreement by and conditions of their employment. Further
directive. The Commission is currently provisions require that domestic workers are
assessing this request. protected against discrimination, are
offered decent living conditions and have
In November 2012 the Commission pub- access to complaint mechanisms.
lished a proposal for a Council Decision,
adopted by the Council in January 2014,
authorising the Member States to ratify ILO The EU and the Council
Convention No, 170 concerning Safety in of Europe
the use of Chemicals at Work. The purpose
of this Convention is to reduce incidents of The Council of Europe is an intergovernmen-
chemically induced illnesses and injuries at tal organisation. Founded in 1949, it seeks
work, but its effect will be felt beyond the to ensure that fundamental values such as
workplace as compliance with its provisions human rights, democracy and the rule of
will enhance the protection of the general law are respected throughout Europe. The
public and the environment. Council of Europe has 47 member countries
and represents 800 million people, thus
In March 2013 the European Commission covering almost the entire European conti-
presented a proposal for a Council Deci- nent. All 28 EU countries are members.
sion, adopted by the Council in January
2014, authorising EU countries to ratify the As with the ILO, the framework for the
Convention concerning decent work for relationship between the EU and the Coun-
domestic workers (Convention No 189 cil of Europe has been defined by means
of 2011), which entered into force in Sep- of several exchanges of letters and is regu-
tember 2013. The provisions of the con- larly discussed in high-level meetings.
vention are intended to help to curb the
abuse and exploitation of people perform- Since 1993, the Council of Europe and the
ing work in or for a household within an EU have developed Joint Programmes in
employment relationship. pursuit of common aims with regard to the
protection of fundamental rights, funda-
ILO Member States ratifying the Convention mental freedoms and the rule of law in
are required to take measures to ensure fair Europe. The European Commission and the
and decent working conditions and to pre- European Committee of Social Rights, the
vent abuse, violence and child labour in supervisory system of the European Social
domestic employment. They must ensure Charter, have intensified their dialogue on
equal treatment between domestic workers social and economic rights.
La bo u r law an d w o r k i n g c o n d i t i o n s I 7 7
Box 5.5 Swift response to work place disasters and decent work deficits beyond the EU
On 23 December 2010 the EU ratified world of work and beyond, to civil society
the United Nations Convention on the is not unlimited: it is subject to the
Rights of Persons with Disabilities principle of proportionality. Alterations
(CRPD). This was an historic moment as and adaptations are required to be
it was the first time that the EU became made only where it is reasonable to
a party to an international human rights make them. The CRPD has had a major
convention. influence on the content of the European
Disability Strategy 2010-2020, which
The Convention requires parties to take
effectively implements the Convention in
all appropriate steps to ensure that
the EU and brings consistency between
‘reasonable accommodation’ is provided
it and EU disability policy.
with respect to the right to liberty and
security of the person, the right to The EU and the World Health
education and the right to work and Organisation (WHO)
employment. The definition of ‘reasonable
The WHO regards the EU as an
accommodation’ is stronger and wider
important partner both in Europe and
than that currently used in EU law.
beyond. Geographically, more than
‘Accommodation’ means requiring the half of the WHO’s European Region’s
necessary and appropriate modifications Member States belong to the EU or are
and adjustments to the workplace and actively seeking to join it. The EU has
the built environment to be made for a strong voice on health matters both
the purpose of ensuring persons with within its borders and on a global level.
disabilities the enjoyment or exercise on In March 2010, for example, the Council
an equal basis with others of all human adopted a position on the role of the EU
rights and fundamental freedoms. in global health to make its contribution
more effective, particularly in working
Whilst the obligation of
towards Millennium Development
‘accommodation’ will generally be
Goals. The WHO’s Representation to the
applicable to the physical environment,
European Union works closely with the
the CJEU has recently held that, in the
European Commission, the Council, the
context of the Framework Employment
European Parliament and a number of
Directive, it can be extended to the
EU agencies working in the health area
adaption of working hours to enable
such as the European Medicines Agency
a disabled person to take up and
(EMA), The European Centre for Disease
maintain employment. The obligation to
Prevention and Control (ECDC) and the
accommodate the disabled to ensure
European Agency of Health and safety
their equal participation both in the
at Work (EU-OSHA).
80 I Labour law and w o r k i n g c o n di ti o n s
India
Japan
A Memorandum of Understanding signed in
The European Commission has, since 1991, 2006 set up the EU-India dialogue and coop-
established regular dialogue with Japan on eration on employment and social policy.
employment and social policies. More than Until end of 2013 six joint seminars have
a dozen formal meetings (or Symposia) been held in which both sides exchange
have taken place between the EU and experience and good practices. Participants
Japan to discuss concerns of mutual inter- included officials, social partners, NGOs, aca-
est, such as employability, adaptability and demia and external experts form the EU and
improvements in labour market functioning India as well as ILO and OECD. The most
as well as policy responses to demographic recent seminar was held in Brussels in June
challenges and the related issues of gender 2013. The subjects of the seminars covered:
equality, work/life balance and active age- skills development, training and employment;
ing. The diversity of EU experience, and social security and social protection, labour
a range of best practices to draw upon, relations and resolution of conflict; skills and
makes the EU an interesting interlocutor for employment policy in the context of recovery
Japanese policy makers. In turn, the from the global jobs crisis; occupational
© BelgaImage
82 I Labour law and w o r k i n g c o n di ti o n s
health and safety. The seminars were always externalisation of EU employment and
held in a tripartite format. They were also social policy and exchanges of mutual
accompanied by tripartite programmes (vis- learning and best practices.
its of workers’, employers’ and government
representatives from India to Europe and
vice versa). EU involvement
in the Asia-Europe meeting
Over the last years, the employment and EU involvement with Latin
social dimension have been very visible America and Caribbean countries
within the Asia-Europe dialogue, high-
lighted by recent ASEM Summit conclu- The fight against poverty, inequality and
sions which reflected key messages exclusion in order to reach or increase
from labour ministers. The regular social cohesion is a key policy priority of
Labour and Employment Ministers’ the strategic partnership between the EU
Meeting (LEMC) provides a platform for and the Community of Latin American and
dialogue and commitments in the areas Caribbean States (CELAC).
of employment, decent work/labour
standards, social protection and health In 2006, at the occasion of the 4th EU-Latin
and safety at work. America/Caribbean Summit held in Vienna,
the leaders of the two regions agreed to
Ministers also review the progress of periodically organise a Forum on Social
concrete ASEM employment and social Cohesion. This stimulates policy dialogue
cooperation projects (such as symposia and cooperation between the EU, Latin
or expert networking), for example in America and the Caribbean on equality,
areas of social protection and health and eradication of poverty and social inclusion.
safety at work. Each of these projects Now, the EU-CELAC Social Cohesion Forum
has been hosted by one EU and one is a bi-regional event, which takes place
Asian country, with support by the Euro- every two years in preparation of the EU-
pean Commission. CELAC Summit. The most recent one took
place in October 2012 in Argentina, focus-
Regional dialogue within ASEM LEMC also ing on the coherence between economic
helps to shape debates at global level, for growth, employment and social inclusion,
example in the framework of the ILO. youth employment, social protection and
green jobs.
During the 4th ASEM Labour and Employ-
ment Ministers’ Meeting in Hanoi in Octo-
ber 2012, ASEM partner countries agreed G20
on projects in five areas: Social Protection,
co-led by India and the Netherlands; Youth The EU has played a leading role in bring-
Employment (China/Poland); Health and ing employment and social policies issues
Safety at Work (Malaysia, Korea/France); to the heart of the G20. Since April 2010,
Skills Policies (Philippines/Finland) and G20 Labour and Economic Ministers have
Social Dialogue on working conditions – met every year. Despite the wide diversity
(Indonesia/Belgium). of challenges across the G20 countries,
84 I Labour law and w o r k i n g c o n di ti o n s
© BelgaImage
The UN Guiding Principles on Business and necessity. Social security coordination is
Human Rights cover three pillars: the duty a system of rules aimed at facilitating
of the state to respect human rights; the such mobility. The EU has a system of
corporate responsibility to respect human social security coordination dating from
rights and the need for access to an effec- 1959. It ensures that people who exer-
tive remedy. In 2013, the Commission cise their right of free movement do not
published human rights guidance for three loose acquired social security rights, or
industrial sectors, as well as guidance for rights in the process of being acquired.
small and medium sized enterprises based It guarantees social security benefits
on the UN Guiding Principles. can be exported beyond the national
territory to wherever the claimant or
his family is residing. It is a vital tool
The external dimension of EU in achieving free movement. A 2010
social security coordination Regulation extends the co-ordination to
third country (non-EU) nationals legally
In a globalised economic environ- resident in the EU who move within the
ment, labour mobility both within the EU. The family members and survivors
EU and between the EU and the rest of such people are also covered if they
of the world is a growing reality and are in the EU.
86 I Labour law and w o r k i n g c o n di ti o n s
Whilst the social security rights of EU web of bilateral agreements means for
nationals moving within the EU are workers and businesses.
coordinated, social security coordina-
tion with the rest of the world has hith- The Commission would like to see enhanced
erto been organised in two ways: either cooperation between the Member States
through association agreements, which and increasing transparency about the
govern the co-ordination of social secu- agreements they have entered into. It has
rity rules for workers and their families also invited the Member States to explore
who move between an EU country and a possibility of EU social security agree-
the associated country, or, in the case of ments, in particular with the EU’s strategic
countries with which the EU has no asso- partners, with whom there are significant
ciation agreement, bilateral agreements movements of labour. Given its long and
between Member States and selected unique experience of social security coordi-
non-EU countries. nation among Member States, the EU has
also been contributing to evolving interna-
This fragmented approach is somewhat tional discussions on cross-border social
unsatisfactory as it leads to an incom- security matters, whose importance is rising
plete network of agreements with vari- as transnational movement of workers and
able content. The EU is presently their families grows with globalisation.
developing a fresh approach to social
security coordination with countries out- The ILO International Labour Conference
side the Union, also known as ‘third coun- of 2011 called upon ILO Member States
tries’. In March 2012, the Commission to consider concluding agreements to pro-
adopted a Communication on the external vide equality of treatment for migrant
dimension of EU social security coordina- workers, as well as access to social secu-
tion. It recognises the Member States’ rity rights, and their preservation and/or
competence in concluding bilateral agree- portability. Discussion on social protection
ments on social security but it also high- norms and social security coordination with
lights the challenges which a complex other regions of the world is growing.
La bo u r law an d w o r k i n g c o n d i t i o n s I 8 7
It is therefore essential to put in place However the global economic and jobs
policy measures that magnify the posi- crisis has led to a growing North-South
tive impacts of trade agreements and divide across European Member States.
reduce social costs. Well-designed labour Harsh austerity measures implemented in
regulations and social protection as well as Southern Europe have in some countries
skills training are of paramount importance led to a continued deterioration of workers’
in this respect. Social dialogue during the rights and working conditions.
various phases of the agreement is crucial
to help ensure agreements are beneficial The crisis has induced a large-scale dereg-
to all concerned. ulation of labour law in Europe; reforms
have rendered existing labour law provi-
Both the US and the EU have a tradition sions more flexible and loosened mini-
of including labour provisions in their bilat- mum standards. Greater flexibility has led
eral and regional trade arrangements. The in most countries to an increased share
Transatlantic Trade and Investment Part- of non-standard employment, higher job
nership (TTIP) negotiations are an oppor- insecurity, and did not lead to an improve-
tunity to set an example and enhance ment on the employment front.
global coherence on the inclusion of labour
considerations in international trade and Basic workers’ rights have been another
investment relations. The ILO, which has victim of the crisis, including limitations on
recently published a mapping of labour the right to strike in a number of countries.
provisions in trade agreements, stands In addition the weakening or dismantling of
ready to support that process. national and sector-level bargaining in the
La bo u r law an d w o r k i n g c o n d i t i o n s I 8 9
The result of these changes has been a A joint ILO/EC conference to be held in
degradation of working conditions: rising Brussels on 27-28 February will address
job insecurity, less choice for workers, wage these issues, precisely with a view to
freezes and wage cuts. Increased layoffs strengthening social cohesion across
have also led to greater work intensity and Europe and maintaining the overarching
increasing stress and depression at work. principles of the European Social Model.
CHAPTER 6
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La bo u r law an d w o r k i n g c o n d i t i o n s I 9 1
The review has been undertaken to address Their negotiations were formally launched
fundamental changes in the world of work on 14 November 2011, with meetings
over the past twenty years (the first version from December 2011 to December 2012.
of the Working Time Directive was adopted However, they announced the blockage of
in 1993). These changes include the impact their talks in December 2012 and after
of technological change, globalisation, meeting the main negotiators on 19 Febru-
a much more diverse workforce, work inten- ary 2013, it was concluded that the nego-
sification, increasing variation in individual tiations had definitively ended.
working time patterns and greater competi-
tive pressures. Employers, broadly speaking, The Commission had, in view of the nego-
wish to see more flexibility in working time tiations between the cross-industry social
rules, while workers’ organisations, gener- partners, suspended the preparation of the
ally, seek more effective protection of legislative revision for 2 years. It is how-
health and safety. Some questions remain ever committed to pursuing the review of
unclear, and there are difficulties for some the Working Time Directive, by the
Member States in implementing aspects of announcement of the President in 2009
the rules. The Commission’s review aims at and by the conclusions of its communica-
finding sustainable solutions to these chal- tion of December 2010.
lenges, which would be capable of enjoying
broad-based support. The Commission is currently carrying out
a thorough impact assessment on the dif-
The Commission carried out two stages of ferent options for the future of the Direc-
consultation with the social partners at tive, which should be completed by end of
European level, adopting consultation summer 2014.
papers in the form of Communications in
March 2010 and December 2010, as well
as undertaking and publishing extensive The posting of workers
evaluation studies focusing both on legal in the EU
and economic and social aspects.
The EU’s single market gives companies
In reply to the second consultation, the main the freedom to provide services in other
cross-sectoral social partners indicated in Member States, including the possibility to
May 2011 their interest in negotiating post workers to other Member States. This
between themselves a review of the Direc- enables companies to offer their special-
tive, with the aim of reaching an agreement ised services throughout the EU Single
which could be implemented by a Council Market, contributing to greater efficiency
Directive under Article 155 TFEU. and economic growth.
La bo u r law an d w o r k i n g c o n d i t i o n s I 9 3
Posted workers do not enter the host coun- or lower social security contributions. Posted
try’s labour market, as they remain workers are often more vulnerable given their
employed by their company in the sending situation abroad, and not always aware of
Member State. their rights. On the other hand, businesses
which do not respect the rights of posted
Each year, around 1.2 million workers are workers may achieve illegally low wage costs
posted by their employers across EU bor- that, in turn, feeds into low production costs.
ders to provide services (0.5 % of the EU This creates unfair competition for legitimate
workforce). The biggest “sending” countries businesses that do follow the rules.
are Poland, Germany, France, Luxembourg,
Belgium and Portugal. Posted workers play Worker protection and fair competition are
an important role in filling labour and skill the two sides of the EU single market’s
shortages in various sectors and regions coin, yet findings suggest that minimum
like construction, agriculture and transport. employment and working conditions are
Posting is also important for providing spe- too often not respected. To make the EU
cialised, high-skilled services, such as infor- single market work better for workers as
mation technology. well as for business, the Commission pro-
posed in 2012 new rules, namely an
To facilitate the posting of workers and to ‘Enforcement Directive’ that does not
ensure fair competition as well as guaran- change the original 1996 legislation on
teeing an appropriate level of protection posting of workers but seeks to improve
of posted workers, the Posting of Workers its implementation and enforcement.
Directive defines a core set of employment
conditions which the service provider has The Enforcement Directive aims to
to comply with during the posting in the increase the protection of posted workers
host Member State. This includes, among by tackling abuses where workers are
others, the applicable minimum rates of prevented from enjoying their full rights,
pay, holidays, maximum working hours and for example in terms of pay or holidays
minimum rest periods, as well as health (especially in the construction sector). It
and safety at work. However, the Directive also foresees better monitoring of how
does not oblige Member States to set mini- rules on the posting of workers are
mum wages if they do not exist. applied. In particular the proposal con-
tains positive developments for SMEs and
In practice, these core employment condi- micro-enterprises, such as risk–based
tions are sometimes incorrectly applied or inspections, more readily available legal
not enforced in the host Member State. Post- information on Member States’ require-
ing can be abused by companies artificially ments and grants legal certainty regard-
establishing themselves abroad, just to ben- ing possible control measures introduced
efit from a lower level of labour protection by the host Member State.
94 I Labour law and w o r k i n g c o n di ti o n s
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La bo u r law an d w o r k i n g c o n d i t i o n s I 9 5
Directives. The proposal would give seafar- the next EU Strategic Framework on health
ers, in all 28 EU Member States, the same and safety at work.
information and consultation rights as on-
shore workers in cases of collective redun- In addition, the Commission is carrying out
dancies and transfers of undertakings. They a full ex-post evaluation of EU health and
would also have the right to participate in safety legislation, whose results will be avail-
European Works Councils. Consequently, the able before the end of 2015. The specific
living and working conditions of seafarers conditions of the ex-post evaluation are laid
should improve and working in the maritime down in Article 17a of the Framework Direc-
sector should become more attractive for tive, which was amended to that effect in
young and qualified people. This is impor- 2007. It contains several, significant ele-
tant as the number of EU seafarers has ments of a fitness check – covering relevance,
been steadily decreasing over the last few effectiveness and coherence of the legisla-
years and the sector is threatened with tion as well as administrative burdens.
labour shortages. A third important benefit
of the proposal is that it would ensure fairer Due to its broader scope and specific regu-
competition in the fisheries and shipping latory regime under the Framework Direc-
sectors within the EU as operators would tive, the ex-post evaluation covers a broader
have the same obligations in all EU Mem- range of issues. It aims at a wider evalua-
ber States. The proposal will now go to EU’s tion of the legislation including in terms of
Council of Ministers and the European Par- benefits, of research and new scientific
liament for adoption. knowledge. It will have a special focus on
SMEs. Therefore the results may lead to
initiatives to improve the operation of the
Health and Safety regulatory framework, including possible
simplification of the acquis where unneces-
In Chapter Four we discussed the results sary regulatory burden has been identified,
of the EU’s 2007-12 Strategy on Health as well as additional measures needed to
and Safety at Work. In summer 2013 the protect workers against, for example, chem-
Commission undertook a public consulta- ical substances and new and emerging risks.
tion on the EU’s new policy framework in
this field. Together with other elements The results of the ex-post evaluation can
such as opinions of the Advisory Commit- trigger improvements to the legislative
tee on Safety and Health at Work and framework or the way it is implemented.
Senior Labour Inspectors’ Committee, and As required by the Treaty, any proposal for
the results of the evaluation of the previ- legislative changes would of course be pre-
ous Strategy, this consultation is a basis ceded by a two-stage consultation of the
for the establishment of the priorities of European social partners (see Chapter Two).
96 I Labour law and w o r k i n g c o n di ti o n s
In parallel to the possibility of setting up such Box 6.3 What is the EU doing?
a European platform, the European Commis-
sion continues, in agreement with the Coun- The EU is determined to tackle
cil, monitoring developments and providing low employment levels amongst
guidance to the Member States in the con- the young thorough a number of
text of the European Semester. Moreover, to initiatives. The potential of job
further explore the phenomenon of unde- mobility – moving the youth to where
clared work it carried out a joint project with the jobs are – could potentially
the ILO in 2012-2013, on labour inspections’ be developed. Out of a workforce
strategies for combating undeclared work in of 216.1 millions only 7.5 are
Europe. The project covered seven Mem- working in another Member State.
ber States: Spain, Italy, France, Ireland, Bel- EU surveys show that youth are
gium, Romania and the Netherlands. the most likely population group
to move: they have been born into
borderless Union. Many have availed
Youth Unemployment themselves of EU financed and
and the measures to combat organised educational opportunities
the problem outside their Member States. Many
are multilingual, keen to travel
Youth unemployment is a serious problem and unencumbered by family
throughout the EU. In some Member States responsibilities. In short, moving is, at
such as Spain and Greece it is more acute least theoretically, perfectly feasible.
than others. In September 2013 there were But there remain obstacles to free
5.6 million young people unemployed in movement and the EU is committed
the EU-28 area. This represents an aver- to tackling these.
age unemployment rate amongst the
young of 23.5 %. More than one in five
young Europeans on the labour market The Youth Guarantee is a commitment on
cannot find a job: in Greece, Spain and the part of the Member States and the EU
Croatia it is one in two. This situation is to tackling youth unemployment. It seeks
serious and unacceptable. A generation is to ensure that Member States offer all
about to be lost to the world of work. The young people up to the age of 25 years
social and economic consequences of this a quality job, continued education, an
are as yet unknown, but they cannot be apprenticeship or traineeship within four
negligible and in all probability will prove months of leaving formal education or
to have a tangible impact on generations becoming unemployed. The logic of the
to come. The EU is acutely aware of the Youth Guarantee is obvious: to ensure
need to tackle this problem and is taking young people are actively helped by public
steps to do so working in tandem with the employment services either to find a job
Member States. corresponding to their level of education
98 I Labour law and w o r k i n g c o n di ti o n s
and training, skills and experience or to Box 6.4 Which areas will qualify
acquire the education, skills and experi- for funding?
ence that employers need.
Although youth unemployment
The Youth Guarantee is one of the most is widespread within the EU, the
crucial and urgent commitments that the levels are more acute and more
EU is supporting Member States to adopt. concentrated in southern countries
And the Member States are embracing it. and regions. Youth unemployment is
The Youth Guarantee proposed by the at 40 % in Spain and Greece, all of
European Commission in April 2013 was southern Italy and southern Portugal,
endorsed promptly in June 2013 by the which means that all of these
European Council – with 19 Member States countries and areas will qualify for
preparing and submitting their plans to the funding for their Youth Guarantees.
European Commission to implement the Certain regions and areas of other
guarantee. Member States, such as France and
the United Kingdom, where youth
Young people who happen to be in neither unemployment is running at above
education, employment nor training (NEETS) 25 %, will also qualify.
will be an investment priority for the Euro-
pean Social Fund, in particular the through
the proposed Youth Employment Initiative The European social partners have also
(YEI). €6 billion has been ring-fenced in the reaffirmed the importance of combat-
EU’s budget in order to support youth ing youth unemployment by adopting
employment, in particular through the Youth a Framework of Actions on Youth Employ-
Employment Guarantee. €3 billion is being ment on 11 June 2013. This Framework,
made available overall. At least 90 % of this adopted as part of the autonomous social
sum will be available in 2014 and 2015 to dialogue of European social partners,
countries or regions where the youth unem- aims at proposing solutions in order to
ployment rate exceeded 25 % in 2012. ease the transition to the labour market
Further funding from the ESF is envisaged for young people. Proposals cover how
in the years up to 2020, bringing the total to improve the education system, foster
amount invested in combatting youth entrepreneurship and create employment.
unemployment to around €17 billion for the It sets common objectives and guidelines
years 2014 – 2020. This represents a seri- for social partner actions and reforms and
ous commitment on the part of the EU and will be promoted for implementation at
the Member States. national level.
La bo u r law an d w o r k i n g c o n d i t i o n s I 9 9
Furthermore, the European social partners elements of the Youth Guarantee. Improved
have also expressed their commitment to traineeships can provide young people with
apprenticeships in a joint declaration with a valuable stepping stone into the world of
the Lithuanian Presidency of the Council work by helping them to acquire skills and
of the EU and the European Commission. experience that potential employers are
This declaration was signed at the occa- looking for.
sion of the launch of the European Alliance
for Apprenticeships on 2 July 2013 and A recent survey by the European Commis-
emphasises the efforts that will be made sion showed that one in three traineeships
by all signatories to promote apprentice- is not of an acceptable standard. The Euro-
ship schemes. pean Commission believes that there is an
urgent need to improve the quality of train-
eeships by mobilizing the social partners
Quality Framework and by providing guidance to Mem-
on Traineeships ber States. It has therefore proposed qual-
ity framework for traineeships which will
Traineeships are understood to be limited identify a number of principles that char-
periods of work practice spent at a busi- acterize good quality traineeships. The
ness, public body or non-profit institution proposed Quality Framework is based upon
by students or young people having the principle of transparency. Better work-
recently completed their education, in ing conditions, more solid learning content
order to gain valuable, hands-on work and enhanced transparency will help train-
experience ahead of taking up regular ees to get the most out of traineeships and
employment. to get a foothold on the labour market.
problems arising out of restructuring. as: training, career counselling and assis-
Workers seldom benefit from advance sup- tance to facilitate the transition to other
port measures such as training and careers professional activities. The involvement of
advice to enable them to adapt to changes external actors such as public authorities,
circumstances brought about by the universities and training bodies at an early
restructuring. Workers’ representatives are stage so as to maximise their contribution
frequently engaged at too late a stage to to alleviating the impact of restructuring is
be able to make any meaningful contribu- also covered. Finally the guidelines offer
tion to the situation and management advice on how to make full use of EU struc-
often fails to involve outside organisations, tural funds. The effective application by all
such as regional authorities, which can do the stakeholders concerned will be reviewed
much to soften the adverse impact of by the Commission in 2016.
restructuring.
Following its January 2012 Green Paper, Related EU-level social policy
and the adoption by the European Parlia- guidance
ment on 15 January 2013 of the Cercas
report, in December 2013 the Commission European level social policy guidance also
adopted a Communication establishing exists on providing adequate social protec-
a Quality Framework for Anticipation of tion against unemployment and other risks
Change and Restructuring (QFR). The that may arise in life, as well as investing
Framework offers guidance, based on the in people’s skills and abilities. In Febru-
real experiences of companies, to compa- ary 2013, the Commission adopted the
nies, workers, trade unions, employers’ Social Investment Package. The package
organisations and public administrations. urges Member States to step up invest-
This focuses on how to facilitate the process ments in activating and enabling benefits
of restructuring both for businesses and and services that help to improve people’s
workers, through anticipatory action and situations and broaden their opportunities.
better investment, whilst minimising the This includes adequate income support
social impact. The guidelines cover both and housing support for those who do not
measures to anticipate restructuring and have sufficient resources, job-search
the management of specific restructuring assistance, lifelong learning, accessible
processes including the strategic long term health services, and helping people to live
monitoring of market developments; con- independently in old age. The package also
tinuous monitoring of jobs and skills needs. emphasises the importance of removing
They also address measures for individual barriers to people’s labour market partici-
employees affected by restructuring, such pation, such as tax/benefit disincentives,
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 0 1
and the lack of accessible care services for February 2011 and November 2012, to
children or long-term care for elderly discuss and overcome obstacles that still
dependents. The Package also contains deter citizens from settling in another EU
a Recommendation on Investing in Children country. Recommendations were issued to
that emphasises the importance of afford- national and European Institutions, taking
able, quality, inclusive early childhood edu- in to account the best practices collected
cation and care facilities. by European trade unions.
The Commission has also issued guidance The European Commission, supported by
on how to render pension systems more the European Parliament, intends to build
adequate and sustainable given demo- on the TESSE project. It sets out a number
graphic pressures through its 2013 White of pilot experiences to assess the feasibil-
Paper on Pensions. The Portability on Pen- ity of a transnational network of informa-
sions Directive also safeguards the sup- tion centres, to exchange information and
plementary pension rights of employed experience to support workers as they
and self-employed persons moving within relocate around the EU. One pilot action
the Union. It sets out certain rights and will help equality bodies, established under
obligations for members of supplementary previous EU legislation, to address specific
pension schemes in order to safeguard the forms of discrimination against EU mobile
entitlements of mobile EU workers and workers, including posted workers, who are
helps to ensure the adequacy of their likely to endure discriminatory treatment
retirement income. in the host labour market.
portal, carry out automatic matching of job are attached to workers and move with
vacancies and candidates, offer candi- them, thereby enabling them to rely upon
dates and employers mobility support their full social security record when claim-
services to facilitate recruitment, and inte- ing benefits.
grate workers in their new posts outside
their home countries. The coordination and The export of benefits beyond the Mem-
exchange of information on national labour ber States in which entitlement arises is
shortages and surpluses between Mem- also guaranteed. The Electronic Exchange
ber States will be enhanced, thereby of Social Security Information (EESSI) is an
improving the transparency of the EU IT system, hosted centrally by the Euro-
labour market. pean Commission, which facilities cross
border claiming and payment of benefits.
The EU Programme for Employment and It does so by enabling communications
Social Innovation (EaSI) is a European level between national bodies on cross border
financing instrument managed directly by social security files, by means of structured
the European Commission to support electronic documents. These documents
employment and labour mobility across are routed through the EESSI to their cor-
the EU. It consists of three axes: rect destination. This benefits both claim-
yy the modernisation of employment and ants and public administrations alike.
social policies with the PROGRESS axis Claims and the calculation and payment
(61 % of the total budget); of benefits are speedier and administra-
yy job mobility with the EURES axis (18 % tions benefit from standardised flows of
of the total budget); and information and better multilingual com-
yy access to micro-finance and social munication as a result of structured
entrepreneurship with the Microfinance documents.
and Social Entrepreneurship axis (21 %
of the total budget).
Helping the disabled
The total budget for 2014-2020 is almost
€200 million. 2013 EU Citizenship Report announced
that action will be taken in five areas
The new modernised system of social including the protection of the most vul-
security coordination facilities the move- nerable, by developing an EU disability
ment of workers by safeguarding their card which would be mutually recognised
social security rights when they move across the EU. Eighty million disabled peo-
country to take up employment. Rights ple would be given equal access to spe-
acquired or in the process of being acquired cific benefits such as access to transport
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 0 3
unemployed, as well as to improve the workers, and for the economy and society
performance of public employment ser- as a whole. When strengthening economic
vices, with particular attention to imple- governance, it is critical to involve the social
menting a Youth Guarantee; partners in policy debates and decision-
yy continuing reform efforts on wage-set- making processes. This is not only to
ting systems, employment protection increase the sense of ownership of policies
legislation and labour taxation, to sup- and ensure meaningful implementation; it
port job creation, competitiveness, is also to enhance the effectiveness of
labour mobility, and equal protection policy coordination at euro area level.
conditions among workers;
yy pursuing the modernisation of education Box 6.5 How can social partners help?
and training systems, notably life-long
learning and vocation training schemes; Social partners play an important role
and at national level in setting labour
yy improving the performance of social market rules and wages. They have
protection systems with particular a strong influence in other structural
attention to the most vulnerable. policies through tripartite
consultations, such as in the area of
Member States are expected to reflect social security. On wage setting in
these priorities in their National Reform particular, there are diverse industrial
Programmes, which set out how problems relations in the EU and the
such as segmentation of the labour market Member States decide how to
or precarious working conditions will be organise wage bargaining. Social
tackled. The Commission will analyse the partners are also key players when it
situations and reforms planned in the comes to implementing measures
respective Member States, and propose such as apprenticeships or effective
country-specific recommendation on occa- lifelong learning.
sions it considers that more needs to be
done in order to move towards the targets
set in the Europe 2020 Strategy. There is scope for improving the mecha-
nisms to involve the social partners in the
coordination of economic and employment
Strengthening social dialogue policies at EU level. The European Com-
mission believes that it is possible to
EU-level social dialogue plays an essential involve the social partners more in EU and
role in advancing the Union’s social market EMU governance while fully respecting
economy, producing benefits for employers, their autonomy.
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 0 5
At the same time it is crucial to strengthen Pilot exercises started in 2010 in four
social dialogue at the national level. In areas, one of which was employment and
other words, Member States need to social policy.
improve, in line with national traditions, the
involvement of their social partners in the By the end of 2014, the Commission will
discussion, design and implementation of have carried-out or launched 47 evalua-
on-going reforms. It is up to national gov- tions, fitness checks or other reports with
ernments to define the arrangements for a view to reducing regulatory burden
discussing their National Reform Pro- (where identified). Five are in the area of
grammes and country-specific recommen- employment (three information and con-
dations with social partners, but the sultation instruments, the Agency Workers
Commission strongly encourages the Directive and the Occupational Health and
Member States to involve social partners Safety Directives).
as closely as possible.
The Commission’s ‘fitness check’ on EU law
in the area of workers’ involvement exam-
Better Regulation: REFIT ined three Directives related to worker
information and consultation at national
Initiatives taken at a European level must level (6) (Directives 98/59/EC on collective
demonstrate clear EU added value and be redundancies, 2001/23/EC on transfers of
proportionate in their scope and nature. undertakings and 2002/14/EC on a general
Before the Commission tables any legisla- framework for information and consulta-
tive proposal, it undertakes an impact tion of workers).
assessment which analyses (ex-ante) the
problem to be addressed and the possi- The evaluation, completed in July 2013,
ble options. concluded that this legislative frame-
work is broadly fit for purpose. The three
Since 2010, as part of the Commission’s Directives are generally relevant, effec-
Better Regulation policy, ex-post evalua- tive, consistent and mutually reinforcing.
tion, acting as a ‘fitness check’ of existing The benefits they generate are likely to
legislation, has been put in place to ensure outweigh the costs. Moreover, the Direc-
that policies form a coherent framework, tives seem to have contributed to cush-
delivering effectively on their objectives as ioning the shock of the recession and
well as being fit for purpose and propor- mitigating the negative social conse-
tionate. This is known as the Regulatory quences of restructuring operations dur-
Fitness and Performance (REFIT) process. ing the crisis.
The report shows that, in general, the In October 2013 the Commission pub-
Directive seems to have been correctly lished a Communication on improving and
implemented, although its main objec- updating evaluation techniques used in the
tives – to improve the protection of agency REFIT process. Guidelines will be published
workers while contributing to the develop- to outline and define what constitutes
ment of the agency work sector as a flex- a robust evaluation, as well as what con-
ible option for employers and workers – have stitutes a good evaluation report.
not been fully achieved. Besides, most
Member States have not identified par-
ticular costs that the Directive would place The international dimension
on companies. The Commission report was
published at the beginning of 2014. The EU’s work on an international level has
been discussed in the previous chapter. Its
The entire body of legislative measures – presence on the global stage has increased
some 24 directives – on Occupational in recent years with the EU playing a major
Health and Safety is currently going role in international meetings and working
through a full evaluation, again as part of with international organisations. It is worth
the REFIT fitness check. The conclusion of highlighting that employment and social
this evaluation will be available before the policies, including efforts to foster inclusive
end of 2015. growth and strengthen the social dialogue,
also play an important role in EU enlarge-
The Part Time Work and the Fixed-Term ment policy.
Work directives are currently being evalu-
ated to assess their impact on employers, The interplay between the internal and
employees and public administrations. The external dimensions of EU social and
evaluation report will focus on whether the employment policy has intensified. This
Part-Time Work Directive contributes to has been driven by the globalised economy
greater flexibility to employers in the and the implications of the global supply
organisation of working time and whether chain on EU business and consumers. The
the Fixed-Term Work Directive brings about EU has been, and will remain, active in
greater flexibility for employers in the promoting core labour standards and inter-
management of human resources. nationally agreed norms, through its free
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 0 9
trade agreements and other bilateral and and unique experience, such as Occupa-
multilateral relations. tional Safety and Health or social security
coordination, its advice and assistance is
Notable also are continuing efforts of the being actively sought by countries such as
EU to assist the ratification and enforce- China and India, which are seeking to
ment of ILO Conventions by the Mem- increase worker mobility and raise social
ber States. In areas where the EU has long standards.
110 I Labour law and w o r k i n g c o n di ti o n s
The paradigm of flexicurity, which orien- Europe needs a radical change to place
tated the EU2020 Strategy, has changed the medium and long term policies back
during the last five years towards a project in the discussion so as to boost the crea-
of pure flexibility. Today, 5 years later, we tion of sustainable quality employment.
have less and worse employment, and we We should avoid at all costs the obsession
have gone back in time 10 years in terms to have a European labour market with a
of integration and social cohesion in many low cost force and low wages, because the
parts of Europe. only way we can succeed in globalization
is through excellence.
The main problem is that the vision
that the European Social Model couldn’t Hence, we must promote the agenda of
overcome the crisis and address the chal- social dialogue and flexicurity to win in
lenges of globalization has won the ideo- productivity, competitiveness and evalu-
logical battle. The values and principles ation. This is the only path towards a sus-
established in the Treaties and in the tainable future for Europe.
La bo u r law an d w o r k i n g c o n d i t i o n s I 1 1 1
Regarding the reform of our model, we economy and the improvement of intra
don’t have to be reluctant, but smart. EU mobility while assuring effective equal
We need to transform it into a better, rights for posted workers.
more sustainable and efficient model
to respond to social and technological Finally, these changes have to be made
changes and to the international divi- through a democratic approach, involving
sion of labour. And the only way to do citizens, preserving social dialogue, and not
it is by facing the two main challenges: through an exercise of enlightened despot-
the establishment of a true Social Pillar ism, since all that is achieved with authori-
within the Economic and Monetary Union tarian methods increases resistance to
so as to create a healthy and sustainable change and deteriorates its outcome.
112 I Labour law and w o r k i n g c o n di ti o n s
Forthcoming guide
yy ESF and other financial instruments (June 2014).
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The Social Europe guide is a bi-annual publication aimed at providing an interested but not necessarily
specialised audience with a concise overview of specific areas of EU policy in the field of employment,
social affairs and inclusion. It illustrates the key issues and challenges, explains policy actions and instru-
ments at EU level and provides examples of best practices from EU Member States. It also presents
views on the subject from the Council Presidency and the European Parliament.
Volume 6 looks at the origin and purpose of labour market rules across the EU. It highlights the importance
of ensuring good and healthy working conditions and a level playing field in the Single Market. It explains
the respective roles the EU institutions and Member States play in shaping the legislation on employment
and working conditions: in general, EU rules help to set minimum standards and requirements to underpin
national laws, aiming to ensure the realization of the values set out in the EU’s founding Treaties. The
guide also explains how EU labour law has been influenced by international standards and the role the
EU plays in promoting decent work across the world.
The guide is available in printed format in German, English and French.
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