Explanatory Memorandum to COM(2023)38 - Strengthening social dialogue in the EU - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)38 - Strengthening social dialogue in the EU. |
|---|---|
| source | COM(2023)38  |
| date | 25-01-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The promotion of social dialogue is a common objective of the EU and its Member States. Social dialogue is a key driver for economic and social resilience, competitiveness, fairness and sustainable growth. It is crucial in finding balanced solutions in response to new needs, to changes in the world of work as well as to unexpected crises, by allowing an adjustment of working conditions and work organisation. Social dialogue can also contribute to new or existing labour protection, such as the right to disconnect from work or protection against violence and harassment at work. The financial crisis and the pandemic have shown that countries with robust frameworks for social dialogue and a high coverage of collective bargaining tend to have more competitive and resilient economies.
The Treaties recognise the unique role of social partners, also underlined by Principle 8 of the European Pillar of Social Rights. The European Pillar of Social Rights Action Plan 1 launched in March 2021 underlined the need to reinforce social dialogue at national and EU level and called for strengthened efforts to support collective bargaining coverage and prevent social partners’ membership and organisational density from decreasing. The www.2021portugal.eu/en/porto-social-summit">Porto Social Commitment 2 further called on all relevant actors to promote autonomous social dialogue as a structuring component of the European Social Model and strengthen it at the European, national, regional, sectorial and company levels, with particular emphasis on ensuring an enabling framework for collective bargaining within the various models that exist in the Member States. The Conference on the Future of Europe in its final report underlines that ‘We must promote social dialogue and collective bargaining’ (Proposal 13 on Inclusive labour markets). 3
Social dialogue arrangements and processes vary across Member States, reflecting the countries' different histories and economic and political situations. There is a large diversity in collective labour relations, in terms of capacity and membership of the organisations, the role of collective bargaining in setting working conditions, as well as the formal structures for social partners` involvement in policymaking, and their influence.
Albeit with large variations amongst the Member States, the share of workers covered by collective agreements has declined significantly over the past 30 years. It decreased from an estimated EU average of about 66% in 2000 to about 56% in 2018 with particularly great declines in Central and Eastern Europe. While employer density has remained relatively stable, trade union density has diminished (on average) across all EU Member States. 4
The changing world of work, with a more individualised way of living and working including the emergence of new forms of employment, makes it difficult for trade unions to recruit new members. Most of the newer forms of employment, including the rising number of solo self-employed, suffer from a lack of representation. The same applies to workers under fixed terms contracts who are less likely to unionise. The flexibility in terms of time and place of work makes it difficult for worker representatives to organise this rather fragmented workforce. In recent years, social partners’ organisations have taken initiatives to attract new members or strengthen the voice of certain underrepresented groups (notably, youth and platform workers) through targeted strategies and recruitment efforts and creating specific structures within the organisations. However, challenges remain and more could be done, including in order to take advantage of the opportunities raised by digitalisation.
The need to involve of social partners in the design and implementation of policies and reforms and its benefits have been acknowledged and further developed in the Employment Guidelines.
According to the 2022 Joint Employment Report, analysing how social partners were involved in the design of the national Recovery and Resilience Plans and other crisis measures, more than half of all measures in the domains of active labour market policies and income protection enacted since the pandemic outbreak were either agreed by or negotiated with the social partners.
There are important variations between Member States regarding the framework, structures, processes and quality of social dialogue, including collective bargaining. Statutory regulations remain important as a condition to introduce new topics in collective agreements, especially in those countries with a strong regulation of employment relations. 5 A majority of Member States have a formal national social dialogue institution in place where representatives of employers, trade unions and the government can discuss general economic and social matters. The role and powers of these bodies varies widely, but they usually have an advisory and consultative role on draft legislation and policies, especially in employment-related areas, and can provide a forum for the negotiation of agreements. In addition, many countries also have tripartite bodies that deal with specific issues, such as social security, employment, training, and health and safety.
Moreover, in a number of Member States, social partners lack organisational capacity. This hinders their involvement in relevant reforms and policy-making and their ability to conclude collective agreements. In turn, this affects the balancing of interests of both sides of industry and affects their efforts to find well-adjusted solutions and to negotiate wage.
Conditions for a well-functioning social dialogue include the existence of strong, independent workers' and employers' organisations with the technical capacity and the access to relevant information to participate in social dialogue; the political will and commitment from authorities to invest in tripartism and to support social dialogue; respect for the fundamental rights of freedom of association and collective bargaining and appropriate institutional support. 6
Europe’s companies and workers are currently facing major challenges stemming from the impact of the pandemic, the transitions to a digital and climate-neutral economy, and also from the Russian aggression against Ukraine.
The present proposal for a Council Recommendation aims to support Member States in promoting social dialogue and collective bargaining at national level, by addressing three main elements: consultation of social partners on the design and implementation of economic, employment and social policies; encouraging social partners to negotiate and conclude collective agreements, while respecting their autonomy and the right to collective action; and fostering support for increased capacity of social partners.
The Recommendation builds on essential elements of a well-functioning social dialogue in the European Union: the contractual freedom and autonomy of the social partners, respect for the national traditions, rules and practices, as well as social partners’ autonomy. The initiative will complement the Directive on adequate minimum wages in the EU.
• Consistency with existing policy provisions in the policy area
The Commission proposal for a Council Recommendation is part of the 2023 Social Dialogue initiative and therefore has a direct link with the 2023 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Strengthening social dialogue in the European Union: harnessing its full potential for managing fair transitions.
The Recommendation will complement and be without prejudice to already existing instruments at EU level. It will support the implementation of Principle 8 of the European Pillar of Social Rights as detailed in its Action Plan.
The EU has several instruments at its disposal to support national social dialogue or issue related policy guidance such as funding instruments (e.g. ESF+), the European Semester or the Quality Framework on Restructuring.
A comprehensive framework of Directives on the information and consultation of workers 7 , at both national and transnational levels, establishes rules to protect the rights of workers at company level. The EU quality framework for restructuring also helps companies anticipate change and mitigate the employment and social effects of restructuring. 8 There are also other Commission initiatives of relevance to national social dialogue such as the Directive on adequate minimum wages in the EU 9 , the Proposal for a Directive on improving working conditions in platform work. 10 and the Commission Communication on “Better Working Conditions for a Stronger Social Europe: harnessing the full benefits of digitalisation for the future of work”. 11
• Consistency with other Union policies
This Recommendation links with the Commission Communication on “Guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons” 12 which aim at ensuring that the EU competition rules do not stand in the way of collective bargaining for those solo self-employed who need it.
The recently adopted Commission Communication on “Harnessing talent in Europe’s regions” 13 acknowledges the need of enhancing the involvement of social partners in the regions who face a talent development trap, as it is particularly valuable in creating better working conditions, adequate wages, and in tackling skills and labour shortages.
The Council, on the proposal of the Commission, recently adopted a Recommendation on affordable high-quality long-term care 14 that calls on Member States to support quality employment and fair working conditions in long-term care by promoting national social dialogue and collective bargaining in long-term care.
The promotion of social dialogue and collective bargaining at national level is also important in the context of the ongoing enlargement negotiations as candidate countries need to strengthen their social dialogue structures and processes to meet the challenges in the changing world of work.
This initiative is also linked to the EU’s international relations in the field of social policy, being in line with the international labour standards of the International Labour Organisation and the European Social Charter. The value added of the EU action consists in building on those standards and making them more operational as well as more targeted to EU labour markets.
Directive 2014/24/EU 15 on public procurement, Directive 2014/25/EU 16 on procurement by entities operating in the water, energy, transport and postal services sectors and Directive 2014/23/EU 17 on the award of concession contracts are also relevant to this initiative as they require Member States to respect the right to organise and collective bargaining following the ILO Convention 87 on Freedom of Association and the Protection of the Right to Organise and ILO Convention 98 on the Right to Organise and Collective Bargaining.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
This proposal for a Council Recommendation is based on Article 292 in conjunction with Article 153 (1) (f) of the Treaty, the latter enabling the Union to support and complement the activities of the Member States in the field of representation and collective defence of the interests of workers and employers, including co-determination. This legal basis requires unanimity voting.
In line with Article 153 (5), the Recommendation must not and does not include provisions related to the right of association, the right to strike or the right to impose lock-outs, which fall outside EU competence.
• Subsidiarity
Member States will design and select the measures and investments. The Union has the competence to support and complement the actions in the Member States in this field, in line with Article 153 (1) (f) TFEU. The Proposal ensures the added value of action at EU level, which resides in supporting Member States by guidance learnt from the wide variety of social dialogue models across the EU (while respecting the diversity of national systems). It will uphold the political commitment set out under Principle 8 of the European Pillar of Social Rights.
• Proportionality
The proposal supports and complements Member States’ efforts. It respects the diversity of social dialogue systems existing in the Union and recognises that specific conditions at national, sector or regional level could lead to differences in how the recommendation is implemented. It does not propose any extension of EU regulatory power or binding commitments on Member States. Member States will decide, according to their national circumstances, how they can make best use of the Council recommendation.
• Choice of the instrument
The instrument is a proposal for a Council recommendation, which abides by the principles of subsidiarity and proportionality. It signals the commitment of Member States to the measures laid down in this Recommendation and provides a strong political basis for cooperation at Union level in social dialogue, while fully respecting the remit of Member States and the autonomy of the social partners.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Not applicable.
• Stakeholder consultations
The Commission organised multiple consultation activities, aiming to ensure balance across the various concerned parties in the EU. Targeted consultations included exploratory seminars and a dedicated hearing with social partners at Union level (31 May 2022), dedicated meetings at Commissioner level with the leaders of the European cross-industry social partner organisations, discussions in the Social Dialogue Committee meetings (8 February, 14 June and 27 September 2022) and exchanges with Member State representatives in the Employment Committee (19 May 2022).
The call for evidence on the Social Dialogue Initiative, including on the Draft Council Recommendation, was published on the “Have your say” web page and was open for public feedback from 22 September to 20 October 2022. The Commission received 61 contributions, more than half of them coming from social partner organisations.
The main recurrent topics raised during the above-mentioned consultations were the need to create sufficient space for the social partners to negotiate freely, fostering an atmosphere of trust and engagement in social dialogue, better communicating the results and benefits of social dialogue, the need to distinguish between recognised social partner organisations and civil society organisations or other type of representation, boosting capacity of social partners, better involving social partners in policy making, ensuring strong cooperation between the national and EU levels as well more institutional support for social dialogue. The current proposal addresses all these views.
The Commission held exchanges of views with the European Parliament (as part of the structured dialogue with the EMPL Committee on 14 June 2022), the European Economic and Social Committee (EESC, 17 June 2022) and the Committee of the Regions (CoR, 21 June 2022).
• Collection and use of expertise
While the proposal builds on various already existing sources of research (e.g. Eurofound, ILO, OECD reports) and exchanges of information during specific events, no external experts were used for this proposal.
• Impact assessment
This type of act does not require an impact assessment.
• Regulatory fitness and simplification
This proposal is not linked to REFIT.
• Fundamental rights
This recommendation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, this recommendation respects the right of association (Article 12 of the Charter) and contributes to the upholding the right of collective bargaining and action (Article 28 of the Charter).
4. BUDGETARY IMPLICATIONS
This proposal has no financial implications for the Union budget and can be undertaken with the already existing human resources.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Paragraph (13) proposes that the Commission develops indicators within 12 months from the publication of the Recommendation, to monitor its implementation jointly with the Employment Committee and with relevant social partners as well as to improve the scope and relevance of data collection at Union and national level on social dialogue, including on collective bargaining.
According to Paragraph (14) the Commission will monitor regularly the implementation of this Recommendation at national and EU level, jointly with Member States and relevant social partners, through regular tripartite meetings or at least once a year, in the context of the multilateral surveillance tools under the guidance of the Employment Committee, including within the European Semester and in the context of the European Social Dialogue Committee.
Finally, the Commission will evaluate the Recommendation, in cooperation with the Member States, social partners, and after consulting other relevant stakeholders, the actions taken in response to this Recommendation, and report to the Council by four years from the publication of the Recommendation. On the basis of the results of the evaluation, the Commission may consider making further proposals.
• Explanatory documents (for directives)
Not applicable.
• Detailed explanation of the specific provisions of the proposal
The recommendations addressed to the Member States are meant to be implemented in accordance to national law and/or practice, after consultation and in close cooperation with social partners, while respecting their autonomy.
Paragraph (1) sets out the main areas of action. It underlines that social dialogue has two sides, bipartite and tripartite, which both require an enabling environment. Collective bargaining is part of bipartite social dialogue and can take place in the public and private sectors, at all levels including cross-industry, sectoral, company, or regional level.
The enabling environment for bipartite and tripartite social dialogue should respect the fundamental rights of freedom of association and collective bargaining, promote strong, independent trade unions and employers' organisations, include measures to strengthen their capacity, ensure the access to relevant information, promote engagement in social dialogue on the part of all the parties, build upon the digital revolution be fit for the new world of work and ensure appropriate institutional support.
Paragraph (2) focuses on the tripartite dimension of social dialogue and the timely, systemic and meaningful involvement of social partners in the design and implementation of employment and social policies and, where relevant, economic and other public policies.
Paragraph (3) refers to access to relevant information for the social partners on the overall economic and social situation of the country and the relevant situation and policies for the respective sectors of activity to participate in social dialogue and in collective bargaining.
Paragraph i and its sub points addresses the issue of recognition and representativeness. It recommends to the Member States to make sure that relevant procedures are open and transparent, based on pre-established and objective criteria with regard to the organisations’ representative character and that such criteria and procedures are established in consultation with trade unions and employers’ organisations. It also reminds that where both trade union representatives and elected representatives are present in the same undertaking, appropriate measures should be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives. Finally, it refers to the demarcation between social partner organisations and civil society organisations.
Paragraph (5) focuses on protection of social partners against any harmful of unlawful measure related to the exercising their right(s) to collective bargaining.
Paragraph (6) puts forward the need to foster trust in and among social partners and promote the conclusion of collective agreements. It calls for alternative dispute resolution to support enforcement of rights and obligations stemming from law or collective agreements, such as conciliation, mediation and arbitration, all with the aim to facilitate negotiations and improving the application of collective bargaining agreements.
Paragraph (7) approaches the level of collective bargaining, as the latter needs to be possible at all existing levels as well encourage the coordination among these levels.
Paragraph (8) includes several ways to promote collective bargaining coverage and enable effective collective bargaining.
Paragraph (9) refers to communication activities to actively promote the benefits and the added value of social dialogue and collective bargaining.
Paragraph (10) contains several ways to boost capacity of national social partners in order to support them to participate successfully in social dialogue, including in collective bargaining and in the implementation EU level Autonomous Social Partner Agreements.
Paragraphs (11) and (12) refer, respectively, to the implementation of the Recommendation and reporting to the Commission and, to the possibility to entrust the social partners with the implementation of the relevant parts of this Recommendation, where applicable in accordance with national law or practice.
The last three paragraphs refer to measures that the Commission intends to take in order to support the Member States in the implementation of the Recommendation, as well as its monitoring.