Council reaches common positions on equal treatment, information and consultation and noise Directives

The EU Employment and Social Policy Council held on 11 June 2001 reached political agreement on common positions in the case of three legislative proposals: a text amending and updating the 1976 equal treatment Directive; a proposed Directive on national-level information and consultation of workers; and a draft health and safety Directive protecting workers from risks related to noise.

The final Employment and Social Policy Council of Ministers to be held under the Swedish EU Presidency (which hands over to the Belgian government on 1 July) was held on 11 June 2001.

Equal treatment proposals

The Council reached unanimous political agreement on a common position regarding the text of a proposal amending the 1976 Directive (76/207/EEC) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. This proposal was issued by the European Commission in June 2000 (EU0006255F). Its intention is to overhaul and modernise the 1976 Directive in the light of the case law of the European Court of Justice in this area over the past 25 years, in addition to other events such as the coming into force in 1999 of the Amsterdam Treaty (EU9707135F). The Treaty introduced a new legal base (Article 13) relating to non-discrimination, on the basis of which two anti-discrimination Directives were adopted in 2000: Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F); and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (EU0102295F).

The proposed amendments introduce a number of new elements to the Directive as follows:

• "gender mainstreaming" - Member States must take account of the objective of equality between men and women when formulating and implementing laws and policies;

• the inclusion of definitions of direct and indirect discrimination, in accordance with the definitions contained in the two new anti-discrimination Directives (see above);

• the inclusion of harassment, including sexual harassment, as a form of discrimination. The Commission had originally consulted the European social partners on this issue in 1996, but there was no decision to open negotiations for a European-level agreement on the matter;

• defining discrimination also as an instruction to discriminate against people on grounds of sex;

• clarifying Member States' right to provide for derogations, which will oblige Member States to justify bans on women performing specific jobs;

• reinforcing the protection of women returning to work after maternity leave;

• introducing protection for men on paternity leave if a right to this leave exists in Member States; and

• providing for the adoption of positive measures to promote equality between men and women, including "single-sex organisations".

Once the text has been formally adopted, it will be transmitted to the European Parliament (EP) for a second reading in accordance with the co-decision procedure.

Information and consultation

A significant step forward in the progression of the proposed Directive establishing a general framework for informing and consulting employees in the European Community (EU9812135F) was made when ministers reached political agreement on a common position regarding an amended text put forward by the Swedish Presidency. This proposal was originally issued by the Commission in 1998, but had previously been opposed by a "blocking minority" of countries, notably the UK, Germany, Denmark and Ireland. However, a revised text gained the support of most of these delegations, although the UK and Italian ministers stated that they would have to report back to their newly-established governments before giving their final assent. The main change to the Presidency text is a longer implementation period in countries where there is no "general, permanent and statutory" system of information and consultation of employees or employee representation at the workplace.

Accordingly, in these countries: undertakings with at least 150 employees (or establishments with at least 100 employees) would be covered as from the normal three-year implementation deadline; undertakings with at least 100 employees (or establishments with at least 50 employees) would be covered two years later; and full application of the Directive (ie to undertakings with at least 50 employees or establishments with at least 20 employees) would become obligatory four years after the normal implementation deadline. Member States may choose whether to apply the Directive to undertakings or establishments

Further, the new text omits a previous reference to the fact that if an employer has not complied with the Directive, any company decisions relating to employees affected will not take legal effect. Instead, the common position leaves it to Member States to devise sanctions which are "effective, proportionate and dissuasive". For a full overview of the provisions of this new text and its implications, see EU0106219F.

The common position text will, once formally adopted by the Council, be forwarded to the EP for a second reading under the co-decision procedure.

Following the agreement on the worker involvement provisions of the proposed European Company Statute (ECS), reached on 20 December 2000 (EU0101290N), the Commission has issued a revised text regarding the involvement of workers in a proposed Statute for a European Cooperative Society. This proposal, dating from 1992, seeks to provide cooperatives with the same opportunities for European-level operation as provided by the ECS for private limited companies, but it had reached the same deadlock as affected the ECS for many years. The June Council heard that a first detailed reading of the revised text had taken place in the preparatory bodies of the Council and that, after a further reading, the dossier would be handed over to the Belgian Presidency.

Protection of workers from noise

The Council also reached political agreement on a common position relating to a proposed Directive setting out minimum requirements for the protection of workers from risks to their health and safety arising from exposure to noise. This is the second individual draft Directive to be considered, following the splitting up of an original 1993 "physical agents" proposal. The first draft Directive deals with mechanical vibration and the Council reached a political agreement on a common position in November 2000 (EU0012287F). The proposed noise Directive sets out exposure action values, based on ambient noise levels, in addition to exposure limit values, which take account of the wearing of individual hearing protectors. It also places certain obligations on employers, as follows:

• to determine and assess risks;

• to avoid or reduce exposure;

• to ensure personal protection;

• to limit exposure to the ear;

• to provide for worker information and training in this area; and

• to provide for the consultation and participation of workers in this area.

Social protection, social security and social exclusion

The Council also heard a report by the Social Protection Committee on the sustainability of pension systems (EU0104204N), to be submitted to the Gothenburg European Council on 15-16 June 2001 (EU0106221F). The Commission stated that it would adopt, in mid-June, a communication on appropriate working methods for future cooperation in the area of social protection.

The Commission also gave a report on the work of the Social Protection Committee in the fight against poverty and social exclusion, stating that 12 out of 15 Member States had now submitted their National Action Plans in this area. The drawing up of such Plans was agreed in December 2000 at the Nice European Council (EU0012288F)

Finally, the Council heard about the progress of the Commission's proposal to revise Regulation 1408/71 on the coordination of the social security systems of Member States regarding migrant workers.

Commentary

The June 2001 Employment and Social Policy Council achieved much in terms of the progression of important social policy legislative proposals. In particular, the speed at which political agreement was reached on a common position relating to the proposal for national-level information and consultation of workers has surprised many, given that the opposition of a blocking minority of Member States was well known. The political agreement on a common position relating to the proposal to modernise and amend the 1976 equal treatment Directive is also an important milestone. In particular, the inclusion of sexual harassment as a form of discrimination is an important step for all those who have been trying to establish a legal basis for regulation of this issue at European level. This process began in 1996 when the Commission first consulted the social partners on this topic. Trade unions and employers at European level could not agree to open talks and so the issue was referred back to the Commission, which has chose to incorporate this matter into the review of the 1976 Directive.

However, although significant progress has been made by the political agreement of common positions, the proposals under discussion still have a long way to go before they can be adopted and enter into force. As most of the provisions of the Treaty establishing the European Community on which social policy instruments are based are now subject to the co-decision procedure, under which the EP has a substantial degree of power, the decision-making process is in most cases relatively long and complicated. Once a common position has been reached in the Council, a text must go back to the EP for a second reading. If the EP makes amendments to the text at this stage before returning it to the Council, these must either be taken on board in their totality by the Council or, if the Council cannot accept all the amendments, a conciliation committee must be convened to broker an agreement between the Council and the EP. (Andrea Broughton, IRS).