EU-level developments in 2002

This article reviews 2002's main developments in the European-level social dialogue between trade union and employers' organisations, and outlines the year's most significant EU legislative and other activity of relevance to industrial relations.

Overall social dialogue developments

Looking back at how the European cross-industry (or intersectoral) social dialogue has evolved since 1985, three stages can be distinguished:

• the first began in 1985 when, at the initiative of the President of the European Commission, Jacques Delors, the social partners embarked upon a bipartite dialogue, the first steps towards creating a 'European bargaining area';
• the social policy Protocol and Agreement attached to the Maastricht Treaty (which came into force in 1993) and subsequently incorporated into the Amsterdam Treaty, gave rise to the second stage, in which agreements were reached by the social partners and implemented by means of Council Directives - on parental leave, part-time work (EU9706131F) and fixed-term contracts (EU9901147F); and
• in December 2001, the social partners' joint contribution to the Laeken European Council (EU0201231N) was a crucial step for the social dialogue, opening up a third stage of independent European-level dialogue.

2002 was the first year of follow-up to the Laeken contribution. During the course of the year, the groundwork was laid for the social partners' independence in terms of their social dialogue, culminating in the presentation of their multiannual work programme in November 2002 at a social dialogue summit held at Genval, Belgium (EU0212206F). The Commission, for its part, provided support and assistance for these developments, in accordance with Article 138 of the Treaty establishing the European Community (TEC), and presented a new Communication (COM(2002) 341 final) on 'the European social dialogue, a force for innovation and change', which was adopted in June 2002 (EU0208203F). Table 1 below summarises the main social dialogue developments since 1985.

Below we examine in more detail the key social dialogue developments in 2002, looking at the first instances of the social partners taking a more independent approach to cross-industry dialogue, then at the Commission's initiative to modernise the dialogue through its June Communication, and finally at the culmination of the moves towards greater independence - the cross-industry partners' multiannual work programme for 2003-5.

The first examples of the social partners' independence

The Maastricht social policy Protocol and Agreement gave the social partners the right to be consulted on the Commission's legislative initiatives in the social field and to negotiate agreements, including on the issues covered by such consultations. The social partners have made use of this option on three occasions, requesting the Commission to implement their agreements - on parental leave, part-time work and fixed-term contracts - by means of Directives. In 2002, a 'joint framework of actions for the lifelong development of competencies and qualifications', forwarded by the social partners to the Barcelona European Council on 14 March 2002 (EU0204210F), and an agreement on telework signed in July 2002 (EU0207204F), together with their joint deliberations on restructuring (the Commission consulted the social partners on restructuring in January 2002 and they are currently considering the matter and are working on it at their own pace - EU0201235F) represented the first signs of the partners' desire to seek greater autonomy for their dialogue, a desire which culminated in their joint work programme. This autonomy took different forms: for training, in preparatory work and follow-up; for telework, in monitoring of implementation; and for restructuring, via a longer-term process.

The framework of actions on lifelong learning

The 'framework of actions ' for the lifelong development of competencies and qualifications is arguably the best example of the social partners' independence. The background was that the social partners, in a joint statement issued in June 2000, decided to set up a working group 'to identify ways of promoting access to lifelong learning and developing the skills of all men and women'. Brief details of the framework of actions agreed in March 2002 are set out in the box below. The framework was agreed by: the European Trade Union Confederation (ETUC) - whose delegation included representatives of the liaison committee for managerial and professional staff, which brings together the ETUC-affiliated Council of European Professional and Managerial Staff (EUROCADRES) and the independent European Confederation of Executives and Managerial Staff (CEC); the Union of Industrial and Employers' Confederations of Europe (UNICE), in cooperation with the European Association of Craft and Small and Medium-sized Enterprises (UEAPME); and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP).

For the first time, the social partners decided to implement a 'non-regulatory' agreement by setting in place objectives and guidelines at European level, taking as their basis regular national status reports and regularly and systematically assessing the progress achieved.

The agreement includes a monitoring clause which states that the social partners will draw up each year, from 2003 to 2005 inclusive, an annual report on the national operations carried out on the four priorities set out in the framework for action. After three annual reports, the social partners will assess by 2006 the impact on both companies and workers. The social dialogue working party on education and training will be responsible for the assessment and the four priorities may be updated in consequence.

This follow-up is the first example of the social partners making use of new means for action, ie the 'open method of coordination', as recommended by the High-level Group on Industrial Relations (see table 2 below).

The approach advocated in this framework agreement on training is innovative in several respects. Notably, it aims to go beyond the traditional approach (the right to training and equal access to training) which prevailed during the period of the social partners' joint opinions on this issue from 1985 to 1995. In these joint opinions, the social partners endeavoured to ensure general access to training by focusing on vocational training in the narrow sense.

This time, the partners wanted to make a fresh start, with training taking on a broader dimension: first, by looking at training from the wider angle of learning, both formal and informal; and then by introducing the concept of competencies, which have to be validated and recognised so as to facilitate geographical mobility, by extending the scope to all categories (young people, employees, job-seekers) and all age groups, and by adopting a multi-level approach (national, regional, local and company).

The agreement on telework

The agreement on telework was concluded on 23 May 2002 and signed on 16 July 2002 by ETUC (along with the EUROCADRES/CEC liaison committee), UNICE/UEAPME and CEEP. It was negotiated, like the previous agreements (on parental leave, part-time work and fixed-term contracts), following consultation of the social partners under Article 138(2) of the TEC - on this occasion the consultation concerned modernising and improving employment relations. However, the procedures decided on by the social partners for implementation of the telework agreement constitute a strong political signal. For the first time, the social partners decided to use the first part of Article 139(2), whereby agreements concluded at Community level are to be implemented in accordance with the 'procedures and practices specific to management and labour and the Member States'. The three previous agreements had been implemented by means of Directives.

The agreement includes a monitoring clause which ties in with the open method of coordination: it is to be implemented within three years of signature. Member organisations are to report on its implementation, and a European report will be prepared on the basis of the national reports within four years of the date of signature of the agreement.

As the Commission announced in its June 2002 Communication on the social dialogue, it will closely monitor implementation of the agreement. Structured reporting, as incorporated by the social partners into their agreement, is particularly necessary where an agreement negotiated by the social partners follows on from Commission consultation under Article 138 of the TEC.

The agreement defines telework and its scope and establishes a general European framework for teleworkers' conditions of employment. The framework covers eight areas: employment conditions, data protection, privacy, equipment, health and safety, organisation of work, training and collective rights. It aims to ensure that teleworkers are afforded a general level of protection equivalent to workers employed to work on the employer's premises.

The agreement fits in with the strategy defined at the Lisbon European Council, held in March 2000 (EU0004241F), the fundamental challenge identified being the positive management of change. It is also designed to pave the way for the shift to the 'knowledge economy' and the 'knowledge society', as decided upon in Lisbon.

Deliberations on restructuring

It was also following Commission consultation under Article 138(2) of the TEC that the social partners commenced their deliberations on restructuring. By launching in early January 2002 consultation on 'anticipating and managing change: a dynamic approach to the social aspects of corporate restructuring', the Commission aimed to stimulate dialogue between social partners in order to identify and develop best practice on anticipating and managing restructuring. The contents of the consultation paper are summarised in the box below.

The reactions of management and labour revealed major differences of opinion and approach.

Although UNICE shared the Commission’s view that economic and social renewal is at the heart of the economic and employment strategy set in place in Lisbon, it saw no need for establishing new European principles for restructuring as there was already a sound legal framework at Community level. It considered that an exchange of good practice was more appropriate.

ETUC, in contrast, believed that Community action was urgently needed in view of the growing frequency of restructuring; it took the view that more dialogue between the social partners and legislative instruments at EU level were also required. It proposed to the employers that in-depth discussions should be launched within three months on the social partners’ contribution to the debate on the anticipation of change.

At the Barcelona 'social summit', held on 14 March 2002 on the eve of the European Council (EU0203205F), the social partners decided to start discussions (for a limited period) to explore the potential for social dialogue on restructuring. The Barcelona European Council stated in its conclusions that:

As far as the social front is concerned, this includes increasing the involvement of workers in changes affecting them. In this connection, the European Council invites the social partners to find ways of managing corporate restructuring better through dialogue and a preventive approach; it calls upon them to engage actively in an exchange of good practice in dealing with industrial restructuring.

In a joint letter to the Commission dated 5 July 2002, the social partners asked the Commission to suspend the second stage of consultation pending the outcome of a seminar to be organised in October 2002 'to examine concrete cases in order to identify orientations that could serve as a reference to assist in managing change and its social consequences in situations of restructuring'. The seminar was held from 17 to 19 October in Knokke, Belgium. Six cases of restructuring involving large companies were presented jointly by representatives of management and labour. On that basis, an initial exchange of views took place and the social partners announced that they intended to pursue their deliberations.

The partners decided to include anticipation of change among the subjects listed in their joint multinannual work programme (see below under 'The social partners' work programme: the culmination'), but were unable to reach agreement on the method to be used. At the social dialogue committee meeting held on 7 November 2002, the social partners decided to determine joint approaches by using the methodology of the Knokke seminar.

The Commission's main initiatives in relation to corporate restructuring are summarised in the box below.

Commission support for modernisation of the social dialogue

The purpose of the Communication entitled 'The European social dialogue, a force for modernisation and change' adopted by the Commission on 26 June 2002 was to take stock of the social dialogue four years after the 1998 Communication (COM (1998) 322 final (EU9812140N) which transformed the framework for the social dialogue. It also aimed to incorporate recent developments: the report of the expert group on industrial relations and change in the European Union, delivered to the Commission in February 2002 (see table 2 below); and the social partners’ contribution to the Laeken summit of 13 December 2001 (EU0201231N), which outlined how the partners intended to recast the European social dialogue. An additional goal was to review developments in the social dialogue to see how they meet the EU’s current challenges, make a positive contribution to Community policies and incorporate the factors of the forthcoming enlargement.

The main points of the Communication are outlined below.

Strengthening the role of the social partners in European governance

In its 2001 White Paper on European governance (COM (2001) 428 final), the Commission pointed out that improved governance in an enlarged Union depended on participation by all the 'players' in the decision-making and implementation processes. Among these players, the social partners hold a unique position within civil society, for they are best placed to address issues related to work and can negotiate binding agreements. The provisions of the TEC in this area are very advanced: Articles 138 and 139 of the TEC provide an area for 'horizontal subsidiarity' between agreements negotiated and legislation. The consultation procedures under Article 138 of the TEC have so far been used 13 times since 1993 and, as noted above, have led to the negotiation of four cross-industry agreements (on parental leave, part-time work, fixed-term work and telework).

The Commission believes that the social partners’ role here should be promoted by: keeping the social dialogue to its specific tasks (that is, the ability to negotiate agreements); pursuing the work in hand so as to consolidate the social partners’ legitimacy (work on representativeness); reinforcing the link between the national and European levels; and improving the dissemination of the European social dialogue’s results, particularly in the Member States. As far as representativeness is concerned, in December 2002 the Commission launched a study to report on the situation of the cross-industry social partners in the candidate countries (see below under 'Sectoral social dialogue').

Rationalising tripartite consultation

Tripartite consultation plays a role in two EU processes: on economic questions within a macroeconomic dialogue set up following the Cologne European Council of June 1999 (EU9906180N); and on employment through meetings of the Employment Committee and the Employment and Social Policy Council.

In addition, since 1997 the European Council Presidencies have been inviting the social partners to meet with the troika (the previous, present and next Presidencies) on the eve of European Council meetings. The conclusions of the Nice European Council, held in December 2000 (EU0012288F), provided for an annual meeting with the social partners before each spring European Council. Such meetings have been organised in March 2001 in Stockholm (EU0104208F), in December 2001 in Laeken and in March 2002 in Barcelona.

A proposal for a Council Decision annexed to the June 2002 Communication aims to institutionalise these summits, as requested by the social partners at Laeken and as mentioned in the conclusions of the Laeken and Barcelona European Councils. These summits should enable the social partners to incorporate all the components of the Lisbon strategy into their contribution to the European Council.

Giving impetus to the social dialogue and negotiations

The Communication suggests that efforts to promote the cross-industry and sectoral social dialogues should be concentrated on dialogue and negotiation. The social partners are requested to extend the scope of their dialogue to all the key issues on the European agenda, including: preparations for entry to the knowledge society; including mobility and career pathways in discussions on working conditions; active ageing; equal opportunities; and the quality of work. They are also requested to exploit a wide range of tools, from opinions to the exchange of best practice, from organisation of coordinated operations to the negotiation of agreements.

With more specific reference to negotiation, the Commission stresses that this is the most appropriate means for settling matters connected with the organisation of work and labour relations at both cross-industry and sectoral level.

The Commission also urges the European social partners to adopt multiannual work programmes covering areas for joint action and negotiation.

The Communication also fosters the expansion of the sectoral social dialogue (27 sectors are currently represented in sectoral social dialogue committees) by encouraging cooperation and reorganisation and promoting quality in the dialogue's contributions (see below under 'Sectoral social dialogue').

Improving implementation of the social dialogue’s results

In the past, the texts adopted by the social partners, at both cross-industry and sectoral level, were usually joint opinions. In more recent years, the social partners have increasingly frequently discussed and adopted so-called 'new generation' texts (charters, codes of conduct and agreements) containing commitments to implementation in the longer term. Thus, the question of implementation and monitoring arises at both European (monitoring machinery) and national (transposition of Directives) level.

The Communication calls on the social partners to clarify the terms they use, reserving the term 'agreement' for texts implemented in accordance with the procedures laid down in Article 139(2) of the TEC, and to devote more time to monitoring of implementation, not merely to preparing texts. In the case of European agreements implemented in accordance with the procedures and practices specific to the social partners and to the Member States, the Commission calls on the European social partners to strengthen substantially the procedures for on-the-spot monitoring and to prepare regular reports on implementation of the agreements signed, as in the case of telework.

Preparing for enlargement

European social dialogue forms part of the acquis communautaire (the body of EU law and rules that candidate countries must adopt) and is an area which the candidate countries have undertaken to strengthen. The social partners in the enlargement countries will have to play their part at European level in accordance with Articles 138 and 139 of the TEC. Yet they still do not fulfil this role at national level. The bipartite cross-industry social dialogue is only just seeing the light of day in these countries, while at sectoral and company level it is still in its infancy.

The Commission calls on the EU social partners to step up their operations directed at enlargement and to give assistance henceforth to their member organisations in the candidate countries in preparing to assume an active role at European level.

The social dialogue contribution to the external dimension

The social dialogue, according to the Communication, forms part of the 'European social model' which takes shape in the development of the EU’s policies and governance. It should also be exploited as a factor in relations between the EU and the rest of the world.

The Commission has highlighted several pathways for cooperation involving the social partners, in both bilateral and regional relations (eg Euro-Mediterranean partnership, partnership with Latin America, and relations with the USA, Japan and the African, Caribbean and Pacific countries) and at multilateral level (the World Trade Organisation[WTO] and International Labour Organisation[ILO]).

The social partners' work programme: the culmination

In their joint contribution to the December 2001 Laeken European Council, the social partners expressed the desire to develop a more autonomous social dialogue via a multiannual work programme defined by a social dialogue summit, as follows:

The work programme

The social partners (ETUC, UNICE/UEAPME and CEEP) duly presented this multiannual work programme at a social dialogue summit chaired by Romano Prodi, the President of the Commission, on 28 November in Genval. It was the ninth summit of its kind. The previous one had been held at the Palais d'Egmont in November 1997. The Genval summit was held to be a milestone in the history of the social dialogue: it was the first time that the social partners from the candidate countries took part in a social dialogue summit; in addition, the social partners made what was considered to be a 'quantum leap' by opening up a new stage in the history of their dialogue, marked by autonomy.

President Prodi noted that the social dialogue had entered a new era and that the social partners had turned the page in their dialogue. By presenting their joint work programme, they had given their dialogue fresh momentum to rise to the current challenges of the European Union, making a positive contribution to the Lisbon strategy and integrating the dimension of the forthcoming enlargement of the EU.

Anna Diamantopoulou, the Commissioner responsible for employment and social affairs, declared for her part that she was delighted to see the empowerment of the social dialogue: 'your work programme heralds a new period in a social dialogue which is coming into its own. It brings in genuine European-level industrial relations. The Commission welcomes this step forward.'

The programme is underpinned by the most recent achievements of the cross industry dialogue: the joint framework of actions for the lifelong development of competencies and qualifications transmitted to the March 2002 Barcelona European Council and the July 2002 voluntary agreement on telework (see above under 'The first examples of the social partners' independence'). It also takes up the invitation the Commission extended to the social partners in its June 2002 Communication (see above under 'Commission support for modernisation of the social dialogue') to enhance and extend their dialogue to new areas, to diversify their tools through use of the open method of coordination and to strengthen implementation of agreements, guidelines and frameworks for action.

The programme - summarised in table 3 below - runs from 2003 to 2005 and comprises three parts: employment, enlargement and mobility. It covers a range of actions on different subjects: anticipating change; modernising the organisation of work and improving working conditions; active ageing; mobility; equal opportunities and the fight against discrimination; and youth employment. There is a specific 'tool' for each measure. Both ETUC and UNICE highlighted the connection between the measures and the tools. ETUC stressed the importance of choosing the tool at the same time as the measure since the nature of the measure depended on the nature of the tool. UNICE considered that the social dialogue was changing its practices - no longer deciding to handle issues on a case-by-case basis but combining the decision to tackle issues jointly with the choice of the tool. Thanks to this new approach, the work could be organised better and efforts could be focused on clearly-identified priorities.

The work programme comprises the following tools:

• annual monitoring reports- on the implementation of the European employment strategy, the framework of actions for lifelong learning (including the candidate countries) and the agreement on telework;
• negotiation of voluntary agreements- on stress at work and harassment;
• frameworks for action or guidelines- on equal opportunities and restructuring;
• updating existing declarations- on racism and xenophobia and integrating disabled people in the labour market; and
• studies and forward thinking- on enlargement.

Finding fresh momentum

The social partners' work programme opens up a new era for the social dialogue. For the first time, the social partners have decided to organise their social dialogue with a view to drawing up a programme in the spirit of Article 139 of the TEC, no longer merely responding to consultations launched by the Commission under Article 138.

The social partners' adoption of the work programme does not suspend the Commission's power to take initiatives under Article 138 of the TEC; however, it changes the conditions under which it does so. The Commission will need to fulfil its role in promoting the social dialogue differently.

Efficient interaction should be set in train between the social partners' social agenda and that of the Commission. The social partners have clearly stated that their programme is neither exhaustive (for it could be adjusted in the light of fresh priorities) nor exclusive, for it is to be implemented in conjunction with the Social Policy Agenda which defines the Commission's priorities in the social and employment fields for the period 2000–5 (EU0007266F).

Various situations might arise:

• where questions are not included in their work programme but in the Social Policy Agenda, the social partners will still react as before. This is the case with the second stage of consultation on data protection, forwarded to them in November 2002 (EU0211206F) (see below under 'Consultation of the European social partners');
• however, where subjects are included both in the social partners' work programme and in the Commission's Agenda, the Commission will have to take this into account in its consultations. One example is stress at work- the social partners have decided to negotiate a voluntary agreement, while this matter is also included in the Commission's Community strategy on health and safety at work 2002-6 (EU0204203N);
• the same is true of restructuring, where, at the social partners' request, in 2002 the Commission suspended the second stage of consultation to give leeway to the social partners whose work programme includes preparation of joint guidelines (see above under 'The first examples of the social partners' independence'); and
• a similar situation will occur in relation to supplementary pensions (EU0207201N). According to their joint programme, the social partners plan to organise a seminar to identify fields where they could take common measures to help remove barriers to mobility, including supplementary pensions. The Commission had planned to launch the second stage of consultation on this issue in March 2003. Once again, it will have to deal with this new role-sharing.

In the past, the social partners reacted to the Commission's initiatives, but they have now become genuine partners in establishing European social standards.

Interesting times lie ahead for the social dialogue: the right balance will have to be struck between the Commission's power of initiative in the social field and the social partners' independence.

Sectoral social dialogue

The sectoral social dialogue has expanded considerably since 1998. The Commission's Communication (COM (1998) 322 final) of 20 May 1998 on 'Adapting and promoting the social dialogue at Community level' (EU9806110F) was accompanied by a Decision which established and organised the operation of the sectoral social dialogue committees (EU9902150F). Nearly 30 committees have been set up since then (EU0201236F). This unequivocal success illustrates the enormous potential of the European sectoral social dialogue. Thanks to these arrangements, the specific features of each sector can be taken into consideration and practical solutions can be sought. The sector is, moreover, the proper level for discussion on many issues linked to employment, working conditions, vocational training, enlargement and globalisation.

In its June 2002 Communication on 'the European social dialogue, a force for innovation and change' (see above under 'Commission support for modernisation of the social dialogue'), the Commission stated its intention of encouraging both the establishment of further sectoral committees and the orientation of the social partners' activities towards more negotiation.

Building up the structures of the sectoral social dialogue

In the wake of the Communication, the Commission continued in 2002 with the reorganisation of the sectoral social dialogue, checking on the representativeness requirements for the social partner organisations when new sectors set up their committees. In addition, it endeavoured to diversify and enhance the output of the sectoral social dialogue, improving implementation and monitoring, and thus contributing to the strategy for economic and social modernisation decided upon in Lisbon.

A total of 27 committees have been set up so far (most recently in the mining sector on 3 June 2002). In accordance with the Commission Decision of 20 May 1998, sectoral social dialogue committees are set up in sectors where the social partners make a joint request to take part in European social dialogue and provided that such organisations representing management and labour satisfy certain criteria on representativeness. Committees have been established to date in the following sectors: agriculture, air transport, banking, cleaning, commerce, construction, culture, electricity, footwear, furniture, HORECA/tourism, inland waterways, insurance, mining, personal services (hairdressing), postal services, private security, railways, road transport, sea fishing, sea transport, sugar, tanning/leather, telecommunications, temporary work, textiles/clothing and wood.

The Commission has received further joint requests from the social partners in the gas and audiovisual industries and is currently reviewing them. Other sectors are organising activities on an informal basis and might ultimately apply to set up further committees (eg sport, chemicals and graphics).

Following on from its first study on representativeness in 1998, which covered trade and industry organisations in certain sectors, the Commission launched a second study in December 2002; it will look into representativeness in central public services not yet surveyed and private security. In addition, a monograph is to be drawn up on the situation of the social partners in the candidate countries in the textiles and distributive trades sectors. The study should be available early in 2004.

Liaison forum

The Communication of July 2002 highlighted the role of the liaison forum in providing information and arranging for general consultations. An arena for information and exchange, the social partners' liaison forum meets several times a year at the invitation of the Commission. The cross-industry and sectoral social partners (usually at secretariat level) are informed about developments in social policy and the Commission's main initiatives in the social field. It is also an arena for information, discussion, exchange of experience in the various sectors and consultation on subjects of common interest to all the sectors.

The results of the sectoral social dialogue in 2002

Table 4 below lists some of the key developments in the European sectoral social dialogue in 2002

A panoply of tools

The social partners in the sectors used a whole range of tools in 2002, from a practical handbook to agreements comprising monitoring clauses, thus linking the European and national levels. For example, the construction industry has produced a guide to best practice for health and safety coordination. It is a 'hands-on' tool which ties in with the Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile constructions sites, and should help to reduce the number of accidents at work together with their economic and social costs.

The social partners in commerce negotiated guidelines to support age diversity. These guidelines are inspired by demographic ageing; they are voluntary, but they reflect the employment policies on older workers in the Member States. Similarly, a joint declaration on lifelong learning in the banking sector identifies four key themes as determinants for a lifelong learning culture (see below).

In agriculture, an agreement on vocational training was signed on 5 December 2002 in the presence of Commissioner Diamantopoulou (EU0301203N). The purpose of the text is to propose to national social partner organisations, public authorities and the Commission a number of initiatives relating to vocational training for agricultural workers. It includes a tightly-drawn clause on implementation. The agreement is linked to the Commission's action plan for skills and mobility (COM (2002) 72) (EU0203204F).

A contribution to the Lisbon strategy

In March 2000, at the Lisbon European Council, the EU set itself the new strategic goal of becoming by 2010 the most competitive and dynamic knowledge economy in the world by investing in human resources and putting in place an active welfare state.

The guidelines on age diversity in commerce signed on 11 March 2002 and forwarded to the Barcelona European Council are closely connected with implementation of this strategy. Wishing to update human resource management for experienced workers for the benefit of businesses and employees alike, the social partners in commerce underlined the need to adapt policies and practices to the ageing workforce, precluding any form of discrimination and affording quality employment to such workers.

The banking and farming sectors took steps to prepare for the shift to the knowledge-based society and economy. A joint declaration on lifelong learning was signed in the banking sector on 29 November 2002. The social partners in banking outlined how they intended to enhance employees' competences and skills and banks' competitiveness by determining four key themes linked to the specific features of banking: defining professional, vocational and entry level skills; recognising and validating competences and skills; providing information and support on principles, rights and responsibilities; and employment and retraining through mobilising resources.

Closer monitoring

The sectoral social partners have been increasingly involved in the last few years in the discussion and adoption of so-called 'new generation' texts (such as codes and agreements) comprising long-term commitments for implementation.

Accordingly, the appropriate sectoral social dialogue committees were able in 2002 to monitor various code of conduct. These are: the code of conduct on fundamental rights in textiles and clothing (1997) (EU9709150N); the code on fundamental rights and principles at work in commerce (1999) (EU9911213F); and the extension of the code of conduct on child labour in the footwear sector to all fundamental rights (2000).

Similarly, the agreement on guidelines for teleworking in Europe in the telecommunications sector, signed on 7 February 2001 (EU0102296F), provided that the sectoral social dialogue committee would check regularly on implementation of the guidelines at company level. Some 18 months after signature of the agreement, a questionnaire was sent to all undertakings in the sector; replies were received from 17 major European undertakings, the sector's traditional operators. An initial assessment of the agreement is in preparation and will be finalised in 2003.

The European agreement on vocational training in agriculture, signed in December 2002, includes a monitoring clause. Its implementation in accordance with the procedures and practices proper to the social partners at national level and to the Member States, in accordance with Article 139 of the TEC, will be supervised by a follow-up commission under the auspices of the sectoral social dialogue committee. An assessment will be drawn up within three years of signature of the agreement. As the Commission mentioned in its Communication of June 2002 on the social dialogue, it can provide technical and logistical support to the signatory organisations. The monitoring clauses in the agreement respond to the call the Commission made on the social partners in its Communication to strengthen substantially the procedures for on-the-spot monitoring and to prepare regular reports on implementation of the agreements signed. The Commission will be following closely the progress made.

Conclusion

The above results bear witness to a trend towards more commitments by the social partners in the sectoral social dialogue committees. In the past, the texts adopted reflected in many cases the social partners' joint reaction to a European initiative, a consultation launched by the Commission or extraneous factors (restructuring, liberalisation, and so on). Many sectors have now come of age and enter into joint agreements which include practical commitments for the signatory parties and set goals to be attained.

Legislative developments in 2002

In the field of labour law, 2002 was marked most notably by the formal adoption of the Directive on worker information and consultation and by the Commission's issuing of a proposal for a Directive on temporary agency work. These two texts (the latter is currently under discussion in the Council and Parliament) are seen as giving expression to the need to ensure a proper balance between the flexibility required by firms and the security required by employees. In addition, the social partners were consulted on two crucial topics: anticipating and managing restructuring and data protection.

Legislation proposed, debated and adopted

Worker information and consultation

On 11 March 2002, the Council and the European Parliament adopted Directive 2002/14/EC, which establishes minimum requirements for the right to information and consultation of employees in undertakings and establishments within the Community (EU0204207F). A common position on the Directive had been adopted by the Employment and Social Policy Council on 11 June 2001 (EU0106219F).

The Directive applies, according to the choice made by Member States, to:

• undertakings employing at least 50 employees; or
• establishments employing at least 20 employees.

The right to information and consultation covers:

• information on the recent and probable development of the undertaking's or establishment's activities and economic situation;
• information and consultation on the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular where there is a threat to employment; and
• information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations.

Information is to be given at such time, in such fashion and with such content as are appropriate to enable employees' representatives to conduct an adequate study and, where necessary, prepare for consultation.

Consultation takes place:

• while ensuring that the timing, method and content are appropriate;
• at the relevant level of management and representation;
• on the basis of information supplied by the employer and of the opinion which the employees' representatives are entitled to formulate;
• in such a way as to enable employees' representatives to meet the employer and obtain a response and the reasons for that response to any opinion they might formulate; and
• with a view to reaching an agreement on decisions within the scope of the employer's powers.

The arrangements for informing and consulting employees are to be defined and implemented in accordance with national law and practices. The Member States may, moreover, entrust management and labour with the task of defining freely such arrangements through negotiated agreement.

The Member States are to provide for appropriate measures in the event of non-compliance with the Directive by the employer or the employees' representatives, to ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from the Directive to be enforced. They are also required to provide for adequate sanctions to be applicable in the event of infringement of the Directive. These sanctions must be effective, proportionate and dissuasive.

The deadline for application is 23 March 2005. Member States in which there is no general, permanent and statutory system of informing and consulting employees at the workplace may apply the Directive progressively until 23 March 2008.

European Cooperative Society

On 3 June 2002, the Council reached agreement in principle on two legislative proposals concerning the European Cooperative Society (SCE): a Regulation laying down the rules on the establishment and operation of SCEs and a Directive on worker involvement (EU0206201N).

The texts concerned by the agreement closely follow the model of the Regulation (No. 2157/2001) and Directive (2001/86/EC) on the European Company (SE), adopted by the Council on 8 October 2001 (EU0110203N). The arrangements for involving employees in the SCE must be negotiated, in conjunction with the establishment process, between the managements of the participating entities and representatives of their employees in the different Member States. If the parties fail to arrive at an agreement before the SCE is registered, it will be governed, as regards employee information and consultation and, where appropriate, board-level participation, by a set of subsidiary rules based on those of the SE worker involvement Directive. However, provision has been made for a few adjustments to take account of certain ways of setting up an SCE which have no parallel in the Statute for a European Company, notably where an SCE is set up from scratch without the involvement of 'physical persons'.

The texts on which agreement was reached were sent back to Parliament for fresh opinions, which should be delivered by mid-2003.

Working time

On 24 June 2002, the Commission adopted a proposal for a Directive of the European Parliament and of the Council concerning certain aspects of the organisation of working time (codified version). The purpose of the text is to codify Directives 93/104/EC and 2000/34/EC (EU0005249F); it does not include any substantive amendments to existing law.

Directive 2002/15/EC of the European Parliament and of the Council on the organisation of the working time of persons performing mobile road transport activities was adopted on 11 March 2002 (EU0204208F). The Directive extends some of the protection of Directive 93/104/EC to mobile workers in the road transport sector. It regulates a range of areas, including maximum weekly working time, rest breaks and limits on night work, and excludes self-employed drivers for four years.

Protection of employees in the event of insolvency of their employer

The Employment and Social Policy Council of 3 December 2001 (EU0112245F) reached political agreement on a common position on a proposal to amend Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer. On 18 February 2002, the Council unanimously adopted the common position. In its text, the Council took on all the amendments that the Commission had agreed to in its amended proposal.

On 14 May 2002, Parliament adopted at second reading six amendments which the Commission and the Council took on in full. Directive 2002/74/EC was finally adopted on 23 September 2002.

Temporary agency work

The Commission issued on 20 March 2002 a proposal for a Directive establishing the general principle of non-discrimination for temporary (agency) workers (COM (2002) 149 final) (EU0204205F). The Commission prepared this text following the failure of the social partners' negotiations on temporary agency work in May 2001 (EU0106215N). According to this principle of non-discrimination, a temporary agency worker could not be treated in a worse fashion, in terms of basic working conditions, than a comparable worker, defined as a worker in the user company in an identical or similar job.

The proposal provided for derogations in two cases: first, when temporary agency workers who have a permanent contract of employment with a temporary agency continue to be paid in the time between postings; and second, where the Member States decide to give the social partners the option of providing, by means of collective agreement, for working conditions which depart from this principle.

In response to the EP’s opinion on first reading in November 2002 (EU0212201N), the Commission amended its initial proposal and incorporated a number of amendments tabled by Parliament. The Commission included new provisions in its amended proposal of 28 November 2002 (COM (2002) 701 final) (EU0212205F). Some of the new proposals make the text clearer, while others change the substance and scope of the proposal.

The most important of these amendments introduce new wording for the basic employment and working conditions applicable to temporary agency workers during their assignment with a user undertaking. In the amended proposal, the point of reference is no longer the comparable worker in the user undertaking. Instead, a simpler and more objective notion is used: the basic working and employment conditions of temporary workers for the duration of their posting are to be 'at least those that would apply if they had been recruited directly by the user undertaking to occupy the same job'.

Equal treatment for men and women

A European Parliament and Council Directive (2002/73/EC) amending the 1976 Directive (76/207/EEC) on equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions was adopted on 23 September 2002. A joint Council/Parliament conciliation committee had reached agreement on the text in April (EU0205201N). The new Directive, first proposed by the Commission in June 2000 (EU0006255F), aims to modernise and update the 1976 Directive and, notably, includes the issue of sexual harassment in the text.

Health and safety

The year saw the adoption, following conciliation, of European Parliament and Council Directive 2002/44/EC on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (vibration) on 25 June. European Parliament and Council Directive 2003/10/EC on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) was adopted on 6 February 2003, following a conciliation agreement in late 2002 (EU0212202N). Finally, a draft Directive amending Directive 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at work received its first reading in Parliament in April, with the Commission issuing an amended proposal in May. The Council adopted a common position in September (EU0206201N) and Parliament gave its second-reading opinion in December.

Consultation of the European social partners

The social partners were consulted twice on labour law issues in 2002 - first, in January, on anticipating and managing change (for details, see above under 'The first examples of the social partners' independence') and second, on the protection of workers' personal data.

The Commission consulted the social partners for the first time in late August 2001 on the possible direction of Community action on the protection of workers' personal data. The social partners were requested to answer the following questions:

• do Directives 95/46/EC and 97/66/EC)concerning the processing of personal data and the protection of privacy in the telecommunications sector adequately address the protection of workers' personal data?
• do the national rules implementing these Directives deal with the issue satisfactorily from the standpoint of both the worker and the employer?
• is it advisable to take action in this area? In particular, does the absence of specific provisions in this field have an adverse impact on the work and/or the employer?
• if so, should such action be taken at Community level? and
• what form should the Community action take and what should the main features of such a measure be?

In their answers to the questions put by the Commission, there was broad consensus among the social partners on the importance of personal data processing in the employment context, taking into account the socio-economic and technological developments of recent years. However, as regards the substance of the questions, the views of management and labour differed considerably both on the need for action, the direction of such action, its content and the appropriate level at which the questions should be tackled.

Employers (UNICE, UEAPME and Germany's BDI) did not see any need for Community action. They believed that Directive 95/46/EC was adequate and sufficient to protect workers' personal data. They considered that Community action would be premature and should be preceded by a report on the transposition of Directive 95/46/EC and an up-to-date analysis of the situation in the Member States. UNICE and UEAPME favoured non-binding instruments such as the exchange of best practices and information and codes of conduct.

Trade unions (ETUC, CEC and EUROCADRES), in contrast, stated that the Community Directives and the national laws transposing the Directives were inadequate in the specific employment context. Given the barriers to freedom of movement for workers and the fundamental right to non-discrimination, they believed that Community action would be advisable and should take the form of a Directive leaving room for manoeuvre in the light of national circumstances.

Generally speaking, the social partners drew attention to the complexity of the whole issue of personal data which, in their opinion, required more detailed research; in response, the Commission organised two studies on the current situation regarding protection of workers' personal data in the Member States, notably on sensitive data and surveillance and monitoring of workers. A seminar was also organised on 24 June 2002 and the Commission supplied the social partners with additional information.

In the light of the studies carried out and the analyses of experts and other stakeholders, the Commission believes that it is advisable to establish rules on the protection of workers' personal data, which could take the form of a European framework in the employment context. Accordingly, at the end of October 2002 it forwarded to the social partners a second-stage consultation document (EU0211206F). The Commission requested the social partners to deliver an opinion on the substance and aim of the framework envisaged and to let it know whether they wish to open negotiations in this field. This document covered the following:

• sensitive data, including data on health, drug-testing and genetic testing;
• monitoring and surveillance (including checks on e-mail and the internet); and
• general rules on the processing of workers' personal data including the involvement of workers' representatives.

Implementation of Community labour law

During 2002, Commission departments prepared two reports on the transposition of Directives in the 15 Member States: one on implementation of Council Directive 97/81/EC concerning the framework agreement on part-time work; and the other on implementation of Directive 96/71/EEC on the posting of workers. The social partners were consulted on both reports.

Other developments

2002 saw a number of other EU-level developments outside the strict social dialogue and labour law areas.

The European employment strategy (EES) completed its fifth annual cycle in 2002. The strategy, since its launch in 1997 (EU9711168F), has involved the issuing of annual Employment Guidelines each autumn by the EU institutions to the Member States. These are implemented through the Member States' National Action Programmes (NAPs) on employment, which are forwarded to the Commission for assessment. The Commission and Council then draw up a joint employment report on Member States' implementation of the Guidelines and, if deemed necessary, made recommendations to Member States on how they could improve this implementation.

In 2002, the EES cycle continued as before, with Member States drawing up their NAPs for employment, with varying degrees of social partner input, on the basis of the 2002 Employment Guidelines (EU0109236F). However, a number of changes are now to be made to the strategy, to reflect changing priorities after five years and a perceived need for greater coordination with other aspects of Community policy, as outlined at the March 2002 Barcelona European Council (EU0203205F).

In practical terms, the machinery of the EES is to be altered. In accordance with proposals set out in a Commission Communication issued in September 2002 (EU0210206F), the timing of the EES’s annual cycle will change in order to coordinate it with other Community cycles, notably the Broad Economic Policy Guidelines. Up until now, the annual joint employment report has been issued in the autumn of each year as part of an 'employment package', together with the recommendations to Member States and Employment Guidelines. From now on, the joint employment report will continue to be issued in the autumn, but the recommendations and guidelines will be issued separately in the spring of each year, after the annual spring European Council meeting focusing on economic and social issues. In addition to these practical amendments, the Commission also plans the following changes in the EES's approach (EU0212204F):

• the EES should focus on delivering the Lisbon objectives of more and better jobs and greater social cohesion;
• the EES should be a medium-term strategy with a 2010 horizon and a mid-term review in 2006. There should be no changes in the Employment Guidelines in the intermediary years;
• the Employment Guidelines should cover a broad employment policy agenda, with a focus on key priorities, underpinned by appropriate targets. They should also be more 'results-oriented';
• an annual review of progress towards the agreed objectives should continue to take place, based on the Member States NAPs for employment;
• the different processes contributing to the implementation of the Lisbon agenda should be streamlined – essentially a synchronisation of the employment coordination process with the Broad Economic Policy Guidelines; and
• the EES should be underpinned by improved governance.

Other significant developments in EU social and employment policy in 2002 included the following:

• in February, the Commission issued an action plan designed to increase labour market mobility within the EU (EU0203204F). In the plan, which builds on the December 2001 recommendations of a high-level task force on skills and labour mobility (EU0201234N), the Commission sets out actions in the areas of improving occupational mobility, improving geographical mobility and improving access to information on employment around the EU;
• in December, the Commission issued a Communication (COM (2002) 694 final) on the free movement of workers in the EU (EU0301205F). The Communication examines some of the most important issues for migrants and their families that inhibit their freedom of movement, based partly on a substantial body of case law in this area emanating from the European Court of Justice;
• the Commission launched a new Community strategy on health and safety at work 2002–6 in March, concentrating on matters such as bullying and violence at work and stress-related conditions (EU0204203N). The strategy also aims to establish and consolidate a culture of risk prevention and build on existing achievements;
• connected to the previous point, a new campaign aimed at fighting work-related stress- a problem estimated to affect over 40 million employees in the EU - was launched in July 2002 by the European Agency for Safety and Health at Work (EU0208202N);
• during the year, the European Commission was considering launching consultations with the social partners on the possible establishment of a voluntary conciliation, mediation and arbitration service at European level (EU0206203F). However, no such consultations had taken place by the end of 2002;
• in October, the Commission issued a new draft company law Directive on takeover bids, which would give information and consultation rights to employees and their representatives in the companies involved (EU0211208F). These rights are somewhat stronger in the new proposal than in a previous version of the draft Directive, which was rejected by the European Parliament in July 2001 (EU0107224N);
• also in October, the European Commission launched a new European 'multi-stakeholder forum' on corporate social responsibility (CSR), as part of its new strategy on this issue (see above under 'Restructuring in Commission documents and initiatives'). Made up of 20 representatives from the social partners and interested parties, the forum will examine a range of issues and report to the Commission in 2004 (EU0211205F);
• the Commission issued a Communication (COM (2002) 364 final) on promoting employee financial participation in July (EU0209202N). One of its main action points is the creation of an independent working party to examine the obstacles hindering the development of financial participation;
• in September, the European Parliament adopted a resolution urging the social partners, the European Commission and the EU Member States to take a variety of actions in order to improve the representation of women among the EU social partner organisations (EU0210202N);
• the Commission issued a report in September looking at specialised bodies in EU Member States which have been set up to promote equality and/or to combat discrimination (EU0210201N);
• in December 2002 , the Commission issued its first comprehensive analysis of national pension systems in the Member States (EU0301206F). It assesses the adequacy of national pension systems and their ability to face the challenge of an ageing population
• the Commission and the ILO held a high-level meeting in February to discuss cooperation on a range of social issues. They agreed to cooperate in areas such as the social aspects of globalisation, the alleviation of poverty, employment policy, health and safety, social protection and social dialogue (EU0204204N);