Work Life 2000
Supplementary Volume
Edited by Richard Ennals
Centre for Working Life Research
Kingston University
Copyright Swedish National Institute for Working Life 2000
Contents
Legal Dimensions of the European Employment Strategy
3
The workshop was led by Niklas Bruun and Brian Bercusson, and held at the Office of
the Swedish Trade Unions in Brussels on 9th-10th October 2000.
Balanced IT in a Fast Changing Industrial Environment: 14
A New Approach to Learning at Work
The workshop was led by Toni Ivergård, and held at the Army Technical College in
Östersund on 16th-17th October 2000.
Discrimination and Affirmative Action in the Labour
Market: Legal Perspectives
15
The workshop was led by Niklas Bruun and Brian Bercusson, and held at the Office of
the Swedish Trade Unions in Brussels, 6th-7th November 2000.
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Work Life 2000 Supplementary Volume
Legal Dimensions of the European Employment Strategy
The workshop was led by Niklas Bruun and Brian Bercusson, and held at the Office of
the Swedish Trade Unions in Brussels on 9th-10th October 2000.
The European Employment Strategy and the EC Institutional
Structure of Social and Labour Law
Brian Bercusson noted that the Lisbon European Council emphasised modernisation, with
open co-ordination. A European social model is developing from national frameworks,
with two current models: the Maastricht social dialogue and the Amsterdam social policy
framework. He considered the Luxembourg process, national action plans (NAPs) and the
role of social partners. The Inter-Governmental Conference has not considered social
dialogue and the role of social partners. He discussed regulatory competition between
frameworks, with social partners at EU level marginalised but engaged. National
employment pacts give rise to competition, in the search for competitive advantage. Is
there a prospect of co-operative corporatism? The social partners since Maastricht have
been principal actors, initiating proposals. The EES largely ignores them, though they
appear in the political rhetoric. The Swedish contribution to EU policy has lacked the
social partnership model that applies in Sweden, where guidelines are seen as a matter of
tax and social security, under national control. The Social Dialogue has been limp by
comparison with the EES. Guidelines and targets are getting softer, with diminishing roles
for the social partners. The two institutional structures might become complementary.
Social partners should be consulted over the employment guidelines, not ignored. NAPs
could be used to promote social or employment pacts: the two could be merged, inviting
the social partners to negotiate, to modernise the organisation of work.
The Negotiations over the Employment Title of the EC Treaty: EU and
Member State Competences and Objectives
Kerstin Ahlberg considered the 1996 Inter-Governmental Conference. The Essen Council
accepted the Swedish idea of an employment title in principle, balancing EMU with an
Employment Union. General principles included national responsibility for employment
policy; no change to EMU; inclusion of the Maastricht Protocol and Agreement on Social
Policy in the Treaty, and made binding (opposed by UK, Germany and France). The Italian
Presidency took a neutral position. The Irish started with draft texts on employment, as a
chapter within social policy, and enabled negotiations to develop. Election results in the
UK and France in 1997 helped, but Germany and France argued over a stability and
employment pact. Compromise was reached in Amsterdam in June 1997, linking
employment and economic policy, dividing competence between member states and the
EU, and dealing with enforcement. The EMU timetable was not to be changed. Provisions
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on economic policy were unchanged, employment policies were to be consistent with
economic policies; there was commitment to high employment. Division of roles between
member states and the EU were based on respect for competences of member states.
Complementary activity by the EU is suggested in article 127, without details. Examples
can be seen in social policy, article 137, concerning integration of persons excluded from
the labour market. The IGC did not want to give the EU power to harmonise labour market
laws or regulations. Incentive measures were controversial, concerned with improving
knowledge, developing exchanges, and evaluating experiences. Measures were further
restricted in grounds, duration and scale; declarations do not have the force of law.
Enforcement procedures were softened; the agreement was not legally binding, and
national competences were left intact; member states are required to contribute to the
furtherance of the objectives.
Legal and Institutional Dimensions of National Employment Pacts:
Lessons for the EU and EU Social Partners
The Commission's View
Rudi Delarue noted increased scope of social legislation, going from health and safety to
framework agreements on working conditions, and the employment strategy. In most
member states these have been matters for government, or possibly social partners. The
scope is wider than labour market and labour conditions. It is not enough to rely on
Directives as the basis for the four pillars: a Directive on Work Organisation would not
work. New procedures are needed: softer, covering more items, and used properly. The
University of Louvain have studied links between employment and social policies, and see
bargaining systems in member states as important: in the UK there is no integration
between the systems; there were levels of integration in Belgium, Ireland and Ireland. As to
reference to European policy objectives: practice varies. Convergence of economic
activities is relevant, such as metalworkers, affected by globalisation, and cross-border
economic activities. Convergence between members of unions affects employers, making
access to information vital. Social pacts, bipartite or tripartite, can cover broader issues
than pay and holidays, including flexibility and sustainability of social security systems, tax
reforms and EMU. Numerous summits have opened and broadened the agenda; UNICE
wanted an employment chapter, influenced by EMU. The employment chapter could enrich
the social dialogue agenda, not end it. The EES is addressed to member states, but covers
the role of social partners. National reports say little about adaptability. Commission
Guidelines for 2001 highlight the social partners; they launched consultation on
modernising and improving employment relations, in teleworking and self-employment,
and mechanisms for reflection on changing the labour market. The social partners
contributed to the Feira Summit, on macroeconomic dialogue, actions to improve the
labour market, social protection and enlargement. European level positions should then
influence the national level. The role of social partners is part of a dynamic process;
nobody knows the results of future treaty negotiations.
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Work Life 2000 Supplementary Volume
Germany
Ulrich Mückenberger emphasised diversity in Germany. Over the same period as the
Amsterdam Treaty, the government changed to Social Democrat. The Schröder
government's views coincide with some European developments; they emphasised tax
reforms, old age pensions and health reform, and unemployment. An employment strategy
has developed, close to that of the employment chapter. The emphasis is on benchmarking,
not regulation, and involves the social partners in the alliance for employment. The alliance
has met 6 times at a summit level, with government, employers and trade unions, covering
fiscal, budget and training policies, collective agreements and social policy. The success
has been surprising. The method of dealing with policy has been important; there had been
an approach under Brandt in 1969, led by Schiller, concerted action. The Kohl government
never favoured social dialogue and negotiation of social and economic affairs, and cut
sickness pay and employment protection for trade union members; they left the dialogue.
The alliance for employment includes a steering committee, a benchmarking group of
expert scientists (drawing on international experience), and a set of working groups,
working on issues such as tax, unemployment, pension reform; a new development is
expert groups on issues such as biotechnologies. The NAP refers to Europe, and the Essen
pillars and guidelines, then identifies the key problems in each case, the evaluation of the
previous guidelines, aims and measures for the coming year, and the actors for the coming
year. This is modern programme management: each subject has a working group:
vocational and further training, working time policy, tax policy, lifetime working time
arrangements, old age pensions, help for the new Lande, redundancy payment changes,
benchmarking social dialogues. The European agenda is handled separately, such as
Parental Leave. One deficiency has been the absence of civil society, NGOs and groups
other than social partners. Top priority employment is incomplete without considering
societal needs which create employment. The modern approach involves restructuring and
enhancing services, impacting on employment.
France
Jean-Jacques Paris noted that elaborating a guideline is like transposing a Directive.
Guidelines increase provisions; he highlighted the outcomes of Lisbon. Social exclusion
was dealt with, and new fields of competence for the Commission. The new organisation of
work, and new types of adaptable contracts, touch the work of member states. There is less
discussion of social dumping. The Commission can take a more ambitious approach, and
have asked for national reports from social partners on the modernisation of the
organisation of work: it is not clear how this can be implemented. He discussed equal pay
for equal work, part of French law, but not cited in European guidelines. The way forward
is not harmonisation by law and co-ordination by regulation; the key is the right of
initiative by the Commission, with new competency in areas of human rights, at a
constitutional level. The Commission does not want to cause too much disturbance at
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national level. The Commission report on France notes the involvement of the social
partners, but the government try to underline the role of social partners, adapting to the
guidelines. There is discussion of patterns of regional agglomeration, facilitating family
and work life balance. The first guideline in 1999 asked France to strengthen social
partnership to modernise work organisation. The response concerned the reduction of
working time: the Aubry Law stimulated collective negotiation in France, with signature by
a majority of trade unions. Employees have approved agreements for shorter working
hours. New patterns of consultation and agreement have resulted, with state subsidy.
Human Resources directors have read the guidelines, and taken up the vocabulary.
Changing the organisation of working time means changing approaches to the client, with
the opportunity to address the whole range of work organisation issues. He noted the
spread of agreements by mandated trade union officials, but with problems for acquired
rights, presenting challenges for lawyers. People had been happy with early retirement on
65% of salary, 80% from the state. Government wants to cut expenditure, with new
arrangements. The role of the judge is important in determining the outcome of social
plans, and a new role for social dialogue in the context of collective dismissal.
The EES and the Acquis Communautaire of Labour Law
Niklas Bruun argued that the EES represents a shift in employment policy and EU labour
law. European labour law has been based on minimum standards, with a lack of
consistency. There are labour law implications of the single market, resulting in specific
legislation. Subsidiarity and scepticism militate against the extension of law. The EES
gives a new framework for labour law, with justification and legitimation. The relationship
between hard and soft law is complex; the development of the EES spills over into
harmonisation and hard law. The objectives of the EU include employment policy aims,
central to the EES. Promotion of employment and improvement of living and working
conditions are explicit objectives. Employment considerations arise in many court cases,
such as Beentjes Case 31/87, where long term unemployed were involved, and French
Republic v the Commission C-241/194, dealing with major redundancies and state subsidy,
regarded as state aid or as part of a social plan. The British Seymour-Smith and Perez case
167/97 raised issues of discrimination against women, more likely to be in jobs with less
employment protection. The court endorsed encouragement of recruitment, indicating that
member states have discretion, but not at the expense of breaking principles of equal pay
for equal work. Other cases concern competition law and collective agreements. The next
step will be tests, by the Court, of EES guidelines and criteria. New legislation is framed in
the context of EES, such as the part-time agreement by the social partners. The fixed-term
work agreement recognises the role of the social partners in EES. This includes hard
provisions, in support of employability. There has been a paradigm shift, with labour law
seen as part of the EES; these procedures could take over the social dialogue. If the social
partners seize the agenda, their role can be increased; social dialogue can be enhanced, not
just bargaining in the shadow of the law. The social partners will respond if there are
incentives, as proposed by the French Presidency.
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The EES in the Context of Social Protection Law at EU and Member
State Level
Alessandra Bosco considered a 1999 Commission Communication, recognising impacts of
EMU and the internal market on individuals. The EES has meant pressure to make social
protection more employment friendly. The outcome is reinforced co-operation. In the area
of social exclusion, open co-operation is used. In 1992 there was agreement on a strategy
of convergence of social protection systems. The social protection committee will have
contacts with the social partners and the European Parliament. One clear objective is a
committee discussing and analysing such issues, affecting national agendas. The second is
to address the imbalance between social protection arrangements. The Swedish Presidency
has an important role. The social protection committee needs attention, dependent on
economic and employment arguments, while methods used have come from both
traditions. There is pressure to balance economic and social dimensions and the autonomy
of social policy, and a shift towards autonomy and social citizenship.
The Four Pillars of the EES and New Legal Forms of Employment
Marco Biagi considered the impact of the EES, started in Luxembourg. The first
employability pillar has been successful, with quantified targets, placing pressure on
domestic goals and political processes. Converging on a preventive approach has been
welcomed. Sanctions for non-compliance were used with limited effectiveness.
Management by objectives is on the way, helpful for the enlargement process. The third
generation of guidelines is now available. The third pillar, adaptability, has been less
satisfactory, not taken seriously by the social partners. Revised guidelines for 2001 reflect
the Lisbon factor combined with the Luxembourg initiative: more and better jobs. Social
partners are invited to report annually on the organisation of work (if confirmed by the
Council). Reporting imposes certain psychological and political burdens, with mandatory
or quasi-mandatory topics for negotiation: an obligation, not an invitation.
The EES influences labour law at Community level: not just Framework Directives, but
also hard law, with consequences of repeated fixed term contracts. Fixed term work is a
means of creating jobs. Adaptability needs to encompass employment strategy and hard
law, facilitating development of part-time work on a voluntary basis. There are first signs
of a gradual change of labour law inspired by, and induced by, the EES. Member states
have taken a piecemeal or incremental approach to labour law changes. The Joint
Employment Report is now feared by member states, and argues for the effectiveness of
the EES. Consultation and involvement of social partners is under way, with conclusions
imminent on new forms of work organisation. Action is needed, using the third pillar to
negotiate on temporary work and telework, avoiding mandatory rules, allowing derogation
at lower levels, leaving room for flexibility. He considered quality of work. Indicators or
criteria for good, fair, convenient jobs would help in identifying a new generation of legal
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Work Life 2000 Supplementary Volume
norms. Jobs should be safe; governments should reduce work accidents. IT Literacy is
being pushed in the same way. If we consider enlargement, this approach will help achieve
a larger social Europe.
The EES and Equal Opportunities
Noreen Burrows saw Scotland as a new democracy, transforming the extent of discussion
of health policy, with multi-level government, and the 2000 NAP is the first taking this
approach. Most areas of employment policy are devolved, with co-ordination at national
level, affecting discussion of past and future activity. Gender mainstreaming is delegated to
Scotland. Social inclusion is affected by budgetary considerations at national level. There
are questions of legitimacy of employment policy. The UK opposes harmonisation of tax
policies; it is under way, with impacts for devolved government, infringing subsidiarity at
national and regional level. The EES must be limited, rather than constantly expanding.
She favours the scrapping of the employment chapter, as the guidelines lack practical
context. In the West of Scotland there is high unemployment and low wages, and problems
of change from heavy industry to call centres, education and whisky. The NAP reflects UK
policy, but is written in European language, lacking authenticity and coherence of aims.
There is confusion over partnership, based on lack of analysis of the actors involved. Social
partners lack capacity at UK level to trade off in policy areas, but negotiate separate issues.
There is now a post-devolution partnership joint ministerial model in Scotland, akin to the
European Commission, excluding Parliamentary control, without minutes, meeting in
secret. As an area of mixed responsibility, it is outside accountability. There may be
parallels with the German Lande. In Scotland there is a STUC, but not a Scottish CBI.
There are pacts and plans, but no tripartite structure. There are regional partnerships, such
as in Strathclyde, spending European Objective 3 money: the partnership does not
negotiate, but delivers particular policies. "Partnership" is widely used in the delivering
government policies, but means nothing; used to secure European funding. Reports restate
government policy. Within the UK the acquis communautaire is being eroded, as many of
the objectives of new initiatives are in place, for example entrepreneurship. There has been
little change in the approach to deregulation between Thatcher and Blair. Minimalist rights
are given in response to Directives; there is no sense of trust that the acquis will be
translated meaningfully. There are particular impacts for women, including lone parents.
Employability is the term used to move people from welfare to work, based on reform of
the welfare system. In Scotland, jobs are poorly paid and low skill; there is a demand for
high quality goods and products. Disparity of wealth in the UK is widening. Moving people
off benefits and into employment does not necessarily help much. There is no fair wages
policy, no equity underlying guidelines. Skill shortages are discussed in terms of opening
up to immigration. Adaptability is problematic: rather than flexibility, she favours hard
laws on the rights of workers. All workers have individual contracts; including short-term,
part-time or open-ended. Most part-time work is by women. There is a right to equal
treatment; in practice treatment is unequal. Only 40% of employers provide training, of
them only 5% train part-time workers, so workers are not adaptable. The effects of short-
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term contracts on men is increasing suicides, linked to changes in the structure of work.
Women may have been accustomed to flexibility, but men find it difficult. A holistic view
of employment is needed. EES calls for social partner involvement in developing new
forms of work organisation. The UK economy is flexible and adaptable, and workers are
vulnerable. She cited Rover, adapting to UK, Japanese and German working practices, then
sacked. Which direction is the EES taking? Is it Anglo-Saxon or Scandinavian? The
Scandinavian model is being overlaid on to an Anglo-Saxon system which is not working.
She addressed equal opportunities, as seen in the EES. The basis was social justice, now
the needs of the labour market. UK activation policy has targeted single parents, moving
them from benefits to the minimum wage, leaving the children not cared for. If there is
pressure for women to work, there needs to be a balance. The EU acquis presents limits,
such as the need to break the gender divide; the law remains confused. Job segregation can
be good for women. In Finland public services are provided by women for women, at a
good level. We need to clarify the aims of the EES with respect to the acquis. There are
conflicting and competing objectives. There needs to be a bottom-up approach, linked at
regional level with democratic participation.
Social Benchmarking as a Tool of Soft Law
Reiner Hoffmann reported discussions at the ETUC on social convergence criteria. He
identified six areas: employment, income distribution, working time, social protection and
social infrastructure, occupational health and safety, education and continuing training.
There are huge differences across Europe, in employment and unemployment rates, and in
employment of women. Criteria could include lowering unemployment by half, raising
employment rate to 70%, offering young people employability measures before 6 months,
offering older workers employability measures before 12 months, eliminating precarious
jobs, shaping new forms of labour based on decent income and social protection. The
working poor are increasing in Europe, where the poorest 10% earn 2.6% of the income,
and the richest 10% earn 24%. Income distribution before and after social transfers shows
the difference public policy can make, changing from 26% to 18% below 60% of the
average wage. Women earn 72% of male salaries. Further criteria could be linked to the
best performing member states, with a goal of removing child poverty. Working time needs
to be reduced to a 35 hour week, with overtime cut by half, and annual working time
reduced to 1750 hours. Benchmarking is harder for social protection: guaranteed income,
minimum pension, guaranteed social security rights, health care for all, income
replacement for parental leave, access to child care, elderly care facilities. In health and
safety, the situation varies across states and sectors, but targets could be to reduce accidents
and days lost. In education and training, expenditure levels could be followed, but quality
is vital, with detail on types of expenditure. Reduction of illiteracy and school drop-outs,
and training opportunities in general, with IT in particular.
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Implementation of the EES: a Role for the Social Partners at EU and
National Levels?
Juhani Lönnroth described the origins and evolution of the process, and roles of the social
partners. The process uses open co-ordination, with soft law, and the legal base of the
employment title. There is division of labour between EU, member states, legislation and
social partners. Member states retain responsibilities to their citizens, and to the
Community. Unemployment must not be exported. EES is an organic part of broader
community strategies. The Community is interested in outcomes, while member states are
concerned with means. Benchmarking helps develop quality. The principles are based on
convergence, management by objectives, country surveillance and an integrated approach.
It is a young process, and goals remain to be achieved. It is too soon to judge success, but it
seems to be working. He traced the history from the Delors White Paper in 1993, with
Amsterdam in 1997 as a milestone, building on the 1994 Essen Strategy. The 1997
Luxembourg Jobs Summit was followed by the first National Action Plans for Employment
in 1998. Council meetings in Vienna, Cologne, Helsinki and Lisbon have taken the process
forward. The Amsterdam Treaty brought equal relevance of employment with economic
and monetary objectives, a title rather than a chapter, employment as a matter of common
concern, mainstreaming of employment, country surveillance, incentive measures,
institutional structures, qualified majority voting and the role of the social partners. He
emphasised the policy mix in the EES: employability, entrepreneurship, adaptability and
equal opportunities.
The role of the social partners is central in principle, and from Council decisions on
employment guidelines. Several guidelines require involvement from social partners, such
as lifelong learning, job creation at local level, and training. Adaptability is directly a
matter for the social partners, with a legal framework. If this is not effective, the policy is
unbalanced; this means an element of shadow boxing. Article 138 calls for cross industry
social dialogue and sectoral social dialogue. Social partners have contributed to the
conditions for sustainable growth, through moderate wage agreements. They should
contribute to NAPs at national level, which presents problems in some member states. With
adaptability, much is happening that we do not know about. In the 2001 guidelines, a new
process within a process is called for, with an enhanced role for social partners. Social
partners could establish criteria for benchmarking, and report on best practice. They could
monitor contributions to the NAPs. Incorporating this in the reporting of NAPs will be
difficult, but worthwhile. Issues such as work organisation are of common interest to the
social partners. There are different approaches, and the Commission retains the power of
initiative. Outcomes are related to the working of the labour market, binding in the social
partners. On quality of jobs, he discussed health and safety, and discrimination. He kept
within the employment strategy. Social partners should report to the NAP. At European
level, social partners should report to the Council. The Commission should be a recipient,
as responsible for the social dialogue. We have to start defining what is a good job. Wages
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and working time are relative, not absolute. Illegality is absolute. The Commission is
developing accounts of flexibility to include skill and mobility, not just hiring and firing.
The EES: Strength and Weakness of an Open Method of Co-ordination
Janine Goetschy recalled the context of the building of the social Europe, the search for
legitimacy and efficiency. EES is related to EMU, as a counterbalance. Problems of
member states are of critical importance. The process is iterative, with a pluri-annual
perspective, and an effective method in itself. Unemployment is made less sensitive to
national electoral constraints. She considered 10 weaknesses. There is a lack of real
sanctions; a fear of subordination to monetary and economic policies; scarcity of EU funds
for active employment policies; bewildering complexity of multi-level government
process; risk of quantitative approaches damaging to qualitative performance. Job quality is
still being considered by the Commission, for development of a future indicator. There are
problems of legitimacy; uncertainty about long term incentives as employment improves;
economic improvements may be attributed to growth policies, not EES structural reforms;
open co-ordination may be seen as a risky alternative rather than a complementary tool.
EES has had an educative effect on other policy areas. Interdependency of policy areas has
increased; the added value is hard to quantify at member state level. It is a means of coordination, and of enhancing competitive behaviour. It has brought a new balance of power
between the Commission and member states on employment and social matters, with new
practical functions including rolling agendas between Presidencies.
Leonello Tronti is uncomfortable with social benchmarks: the firm is a set of routines that
can be transferred; social institutions are harder to treat in this way. Benchmarking by firms
is helped by the assumption of the search for profit. The political environment is more
complex. Transfer is harder, and political wills can be tangled. Management by objectives
is not the same as social benchmarking, by analogy with benchmarking in firms.
Benchmarking is bottom-up emulation, and does not fit with a top down strategy. It is not
adequate to offer a wish list. The benchmarks will only work if they are derived from a
bottom-up process. Numerous people need to get together in order for the process to work,
by comparison with the Maastricht process. The absence of sanctions has opened
discussion of co-ordinated approaches. It is soft law.
For the Social Partners
Peter Coldrick reported that the document on structural indicators is a key document for
the March 2001 Summit. There are worries about the overall economic situation; current
guidelines and processes will help with continued recovery. The Commission have taken
account of social partner comments, such as on health and safety, and quality of work.
More money is needed. Governments may find that revenues may be diverted to new roads,
not to active labour market policies. Expenditure on training has not really increased. Skill
shortages are used to justify increasing immigration, not using older workers or women.
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There are problems with the social partner role. Extra pressure from the Commission is
welcome: ETUC want to negotiate; UNICE are less keen. They have agreed to some extent
on work organisation, but do not see this as a European level issue; more so with education
and training. ETUC are ready, and need a partner. The new area of IT literacy is
interesting, with a suggestion that public authorities have to be active to deliver in 2003.
Reporting back involves a resource problem, as few staff are engaged in the work at ETUC
or national level. Trade unions are not organised at European level; UK unions often are
unaware of what is going on. ETUC recognises the need for labour market partners to
undertake the role, and the need to increase competence.
Olof Allgårdh is a former Swedish diplomat, working with employers and Swedish
industry. He welcomed new obligations given to social partners. There has been continuous
participation in social dialogue; balanced guidelines could be useful. The employment
chapter added no new competence to the Commission. Intentions have been good; the
alternative could have been worse. Labour market flexibility has been a constant objective.
Information and consultation were turned down; there is already a system in most
countries, covering big companies. It does not need negotiation unless there is a
transnational dimension. The issue will continue under the Swedish Presidency.
Negotiation should bring added value. Work organisation was seen as an issue for the
enterprise. Some factories need to be closed down if development is to continue. Changes
should not be too rough; more work should be created. There is interest in lifelong
learning, education and training. Negotiation is not always appropriate, especially if outside
EU competence. Recommendations and open co-ordination work well. UNICE are actively
following up the Lisbon Summit.
For the Swedish Presidency
Christer Eriksson reported that Sweden is supportive of the 2001 guidelines, with lifelong
learning and gender mainstreaming. The plan is to develop adaptability and quality of
work, with indicators. There is support for diversity in working life, and combating social
exclusion. The French and Swedish have been working on the report, dealing with the
follow-on from Lisbon, due in February, for the March Summit. There should be
appropriate opportunities for influence. Employment, environment and enlargement are
central to policy development. The current dossier of business will spill over into the
Swedish Presidency, including information and consultation. The October Council meeting
will deal with current problems, and the need for rights in European law. There will be
work on equal treatment and sexual harassment, and on safety and health (for example
safety of scaffolding, and on asbestos). Quality of work, and work organisation, will be
addressed, with social partners. Responsibility for labour market matters remains with
member states, but open co-ordination is developing in the area of social exclusion, using a
process modelled on the employment procedures; a similar process is beginning in
pensions. Conclusions from Lisbon will be followed at the March Council in Stockholm.
There will be issues of e-Europe, IT and employment creation. "Work Life 2000: Quality
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in Work" in Malmo will deal with work life issues. He referred to the Communication on
Structural Indicators. Meetings on social protection and new technology will build on good
practice. The proposed Information and Consultation Directive is linked to making social
partnership flexible and effective. The preference is for a Framework Directive,
implemented with social partners.
Workshop Participants
Kerstin Ahlberg, NIWL, Sweden
Olof Allgardh, SAF Brussels Office, Sweden
Brian Bercusson, King's College, London University, UK
Marco Biagi, University of Modena, Italy
Alessandro Bosco, Notre Europe, France
Niklas Bruun, NIWL, Sweden
Noreen Burrows, University of Glasgow, UK
Peter Coldrick, ETUC, Brussels
Renaud Dehousse, European Centre for Political Science and Notre Europe, France
Rudi Delarue, DG Employment and Social Affairs, Brussels
Richard Ennals, Kingston University, UK
Christer Eriksson, Swedish Representative at the EU, Brussels
Maurizio Ferrera, University of Pavia, Milan, Italy
Janine Goetschy, University of Nanterre, Paris, France, and University of Brussels
Reiner Hoffmann, European Trade Union Institute, Brussels
Kerstin Jacobsson, Stockholm University, Sweden
Juhani Lönnroth, DG Employment and Social Affairs, Brussels
Lars Magnusson, NIWL and University of Uppsala, Sweden
Ulrich Mückenberger, Hamburg University, Germany
Jean-Jacques Paris, Groupe Alpha, France
Philippe Pochet, European Social Observatory, Brussels
Lena Skiöld, NIWL, Sweden
Torbjörn Strandberg, SALTSA, Sweden
Sven Svensson, SALTSA, Brussels
Leonello Tronti, ISTAT, Italy
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Balanced IT in a Fast Changing Industrial Environment: A
New Approach to Learning at Work
The workshop was led by Toni Ivergård, and held at the Army Technical College in
Östersund on 16th-17th October 2000
This workshop is reported in the separate popular summary by Lena Skiöld and the
scientific report by Toni Ivergård, provided as part of the conference documentation for
"Work Life 2000: Quality in Work".
Workshop Participants
Tomas Berns, Sweden
Gunilla Bradley, Mid Sweden University, Sweden
Liz Burge, Sweden
Leela Damodaran, HUSAT, Loughborough University, UK
Christina Hagglund, NIWL, Sweden
Toni Ivergård, PASS AB, Sweden
Prasad Kaipa, Mithya Institute, USA
Stuart Kirk, UK
Bodil Landstad, NIWL, Sweden
Sacha Lategan, NIWL, Sweden
Birgitta Lundin, NIWL, Sweden
Paul Mulholland, Knowledge Media Institute, Open University, UK
Katarina Paulsson, NIWL, Sweden
Gunilla Rojdalen, NIWL, Sweden
Eva Sandberg, Sweden
Bjorn Sergel, Sweden
Lena Skiöld, NIWL, Sweden
Ulf Soderberg, Sweden
Robert Stammers, Leicester University, UK
Yngve Sundblad, Royal Institute of Technology, Stockholm, Sweden
Stig Vinberg, NIWL, Sweden
Stefan Winsnes, Sweden
Maciej Wisniewski, IBM, USA
Zdenek Zdrahal, Open University, UK
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Discrimination and Affirmative Action in the Labour
Market: Legal Perspectives
The workshop was led by Niklas Bruun and Brian Bercusson, and held at the Office of
the Swedish Trade Unions in Brussels, 6th-7th November 2000.
The Ban on Discrimination: An Historical Perspective on
Developments in the US and Europe
Lynn Roseberry considered American civil rights legislation in historical context,
considering changes with respect to racial discrimination in the aftermath of the Civil War,
and court cases and legislation in the twentieth century. The battle against sex
discrimination was inspired by, and paralleled, that experience. Black women campaigned
within the Republican Party, while white women focussed on female suffrage. Equal Pay
legislation, introduced during the Kennedy administration, coincided with increased
feminist activity. Sex was not taken seriously by all as a prohibited basis for discrimination.
Feminists learned from the success of black campaigners, and argued that civil rights
legislation should be used, leading to a series of Supreme Court judgements. Although the
black activist movement then declined, the women's movement continued to gain
momentum. The last major law concerned Pregnancy Discrimination.
In the EU the history has been of banning sex discrimination, influenced by the growth of
feminist movements, but not simply their product. Legal concern for social policy was
stimulated by a test case on equal pay, and in 1972 EU Heads of State committed
themselves to vigorous action in the social field, with the objective of increasing the
involvement of labour and management in the economic and social decisions of the
Community. The first social action programme was initiated in 1974, leading to Directives
on Equal Pay, Equal Treatment, and State Social Security. Feminists sought to repeal or
amend national laws which defined or entrenched women's role as dependent wife and
mother. After relative inactivity in the 1980s, the pace accelerated with the Treaty of
Amsterdam, agreed in 1997 and in force from 1999, which addressed gender equality and
discrimination. Directives on part-time work, parental leave, and pregnant workers have a
gender dimension. The increased emphasis on anti-discrimination can be linked to the work
of EU bureaucrats, litigators, popular outcry, and decisions of the court. The legislation
tends to come top-down, from male-dominated institutions. Agreement of an EU Directive
can bypass national governments and parliaments. Framework Directives can override
national resistance in areas such as disability; such advances should be seen as a result of
successful background pressure and lobbying, the result of networking. There can be
surface level advances, but the lack of a concerted feminist movement behind it may leave
it weak.
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The Legal Construction of the Concept of, and Various Grounds for,
Discrimination
A General Outline
Sandra Fredman analysed main concepts of equality, including formal equality, equality
of results and equality of results. Formal equality as consistency has a number of
drawbacks, with the relative basis, the need for comparators, and the treatment of
differences. Equality of results at individual level is problematic; applying the principle to
groups tends to be diagnostic, rather than prescribing outcomes. Under-representation can
be regarded as discrimination; it is hard to define which results should be considered. Equal
opportunities approaches emphasise the starting point; there are distinctions between
procedural and substantive equal opportunities: the latter requires measures.
Within a value driven approach, substantive bases for equality are dignity (typically
defined in human rather than legal terms), restitution (compensating rather than
restructuring), redistribution (in terms of representation rather than material goods), and
participative democracy. Liberty and market concerns are competitors with equality.
Markets can be seen as restricting or justifying equality. In the EU, discussion of
convergence concerns equality and efficiency. There is no uniform approach to the
definition of discrimination: legal approaches include direct discrimination (where the
comparator is problematic), indirect discrimination, equality of opportunity, equality of
substantive rights, proportionality and a positive duty to promote equality, for example
through mainstreaming. This moves beyond a fault-based approach, seeking remedies for
imbalances, and taking a more proactive approach.
Sex Discrimination
Karin Lundström outlined arguments on sex discrimination, and reviewed current
legislative proposals. Discrimination on the grounds of sex is prevalent. She analysed the
gendered logic of western languages, the European Court of Justice's interpretation of
direct and indirect discrimination, and the hierarchical order of the principles of legality
and equality. The courts have inherited the gendered structures that need to be changed.
Derrida argued that western philosophy is based on binary opposition; gender theory has
added to this. The EU ban on sex discrimination covers direct and indirect discrimination,
but does not define the distinction. The courts can translate this into organised dichotemies.
Direct discrimination is hard to prove when the language is sexually neutral, so the appeal
has to be against indirect discrimination. The burden of proof is on the defendant. Often
courts exclude indirect discrimination if it conflicts with formal equality. If there is
statistical evidence, then there is a possibility of proof. Social policy is usually seen as a
matter for the member states. All grounds of discrimination have a dimension of sex,
making the law complicated. New EU Directives do not include sex discrimination, leading
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to inconsistencies. There is debate about regarding sexual harassment as discrimination,
and related to the organisation of work.
Disability
Richard Whittle examined the key issues surrounding the legal construction of the
concept of disability based on disability, in the context of the Framework Directive on
equal treatment in employment and occupation. He challenged assumptions regarding
difficulty and expense. Compliance with the new duties involves reasonable
accommodation, and not major expense. American studies showed minimal costs:
companies making the accommodation made much greater savings as a result. The duty is
to provide no more than is provided to non-disabled people. We take normal provision as
given, whereas we need to design for disabled people from the outset.
The aim is to give equality of opportunity for the disabled, nothing more, nothing less.
Defining disability in terms of impairment is not appropriate in the case of nondiscrimination law. This focus on impairment ignores the social dimension, and betrays the
original purpose. There are physical and attitudinal barriers which prevent participation,
producing discrimination. The tendency is to ignore the social dimension, thus excluding
those who should be protected. He referred to the Americans with Disabilities Act, 1990,
and highlighted how it had been interpreted by the courts. The disabled are obliged to
prove major impairment while claiming they can do the job. This legislation has been seen
as the most advanced in the world, recognising attitudinal problems. Contrary to legislative
intentions and Supreme Court rulings, the evidentiary burden has become extreme,
contradicting the original intention. Disability needs to be defined so as not to exclude the
social dimension; those implementing the statute need to understand what is meant. The
Framework Directive handles comparators appropriately, but there can be complex
problems. He argued the importance of the duty to accommodate in both direct and indirect
forms of discrimination. It is not clear that this approach solves problems in sex
discrimination. There is a lack of statistical data available in the disability field.
Ethnicity
Robert Wintemute explored the idea of treating racial and ethnic origin in line with other
forms of discrimination. It could be included in the Equal Treatment Directive. Instead,
there is a four tier treatment of race, sex and religion (and Employment Directives), with
age and disability at the lowest level. He would prefer a single piece of legislation, an
approach used in Canada, Australia, New Zealand, USA, but not Sweden.
Defining racial or ethnic origin is more complex than defining sex, and there is case law.
He presented definitions of deafness and gay groups, but argued that common ancestry is
critical. Jews and Sikhs tend to be protected as non-proselytising established religious
groups. He favours comparators in equality and discrimination arguments. He sees
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discrimination claims as unhelpful in harassment cases, while they are appropriate in
employment contexts. His background was in constitutional law, and he argued that
exceptional cases can be produced in discrimination cases. UK legislation on Race
Relations has more exceptions, though they may be challenged by the European Court. He
saw political differences in positive discrimination, and highlighted differences between
the EU and North America, where he noted responsibility for conquest of native peoples
and slavery. He saw positive discrimination in the EU as unlikely.
Religion
Chris McCrudden noted the absence of definition of belief in the Directive, which covers
"religion or belief". He noted that the salience of religion and belief varies. How are
obscure and incomprehensible views to be handled? What about peculiar individuals?
What about political belief? Beliefs can be salient to employment, especially public
employment. What about religious objections to joining trade unions? He argued that the
preamble to the Directive is important, and will lead to debate. He noted occupational
exemptions, and raised difficult cases, such as acceptablity to foreign clients. How far is
the approach exportable? He considered churches and other belief organisations, and
provisions concerning the Catholic Church, and church education systems. This is delicate
territory. He considered Northern Ireland as stimulus for a key point about discrimination
between communities, and innovative approaches to dealing with the split. These are
catered for in Article 18 of the Directive approved on 17th October, covering police and
schools in particular. Democratic participative approaches to equality cover this approach.
No reasonable accommodations have been built in: what is the implication for
interpretation of those grounds? He argued that it made no difference. What is the impact
on the Charter of Fundamental Rights?
Sexual Orientation
Hans Ytterberg started from human rights, and the importance of respect for differences
and individuality. Swedish employers indicated that knowledge of sexual orientation would
or could influence employment decisions. The scale of discrimination and harassment is
considerable. Gays and lesbians experience their work differently. Random samples cannot
be assembled, but it is clear that important numbers are reporting discrimination. Exposure
is important. There can be collective harassment, even if it is not personally directed. There
has been increased homophobic violence and harassment as more have come out. The real
problem is the tyranny of silence. Sexual orientation cuts across the other areas of
discrimination. Often gays and lesbians pretend to be otherwise. The norm of
heterosexuality is not taken as a sexual orientation. The same story of a weekend country
walk sounds different when coming from gays and heterosexuals. The culture of silence
needs to be broken, through anti-discriminatory measures and proactive measures. Swedish
legislation has not included affirmative action. Approaches are not necessarily transferable
across areas of discrimination, but it does not follow that nothing can be done. Qualitative
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measures should have considerable impact. Indirect discrimination is covered under
Swedish legislation, but without examples or analysis, which are needed. He noted that
there might be cases that are objectively justifiable, but these must be defined, avoiding
hierarchisation. Human rights underpin this area, not politicians giving concessions. In the
European Council's negotiations on the Framework Directive, there had been debate on the
extent to which rights should be protected by law: member states obviously fear that they
might be obliged to implement human rights also on religiously based employers. There is
clearly still a long way to go before the rights to non-discrimination regardless also of
sexual orientation is viewed as rights.
The European Commission's Proposals for New Anti-Discrimination
Directives
Dagmar Schiek outlined the new set of plans. The Racial Equality Directive has been
enacted, a General Framework Directive is nearly enacted, and there are proposals for a
Gender Equality Directive. The hope had been to elicit a comment from the Commission.
She outlined similarities. The purpose is to put into effect equal treatment. This means
equality in law and in fact, a difficult combination. The definition refers to discrimination,
both direct and indirect. It is an attempt to alter social reality through legal concepts. It
includes positive action, with individual enforcement eased by reversing the burden of
proof. Group action is to be instituted for enforcement. Implementation through social
dialogue is to be provided. There are also key differences, in their references to human
rights instruments, and areas of implementation. Mainstreaming is only addressed in
gender equality. Discrimination is defined differently, with different use of comparators,
accounts of differences, use of statistics, exceptions, and approaches to incitement.
Enforcement through agencies is not provided under the General Directive. Dialogue with
NGOs is not covered in the Gender Equality Directive, for no apparently logical reason.
She reflected on dualities regarding definitions and approaches to equality. Addressing
indirect discrimination corresponds to the group dimension of discrimination. There is an
asymmetrical dimension, as discrimination needs to be accompanied by disadvantage in
order to be relevant. The disadvantaging effects of discrimination are not spread evenly,
thus requiring disparate responses and language, for example in the case of gender, where
women are most disadvantaged. Asymmetry also applies in all other areas, e.g. race and
sexual orientation. This means invoking a combination of accounts of equality in order to
identify where the law is to apply, and where positive action is required to provide
protection. In some respects more explicit formulation of wording of Directives would be
helpful, for example regarding gender.
She saw the rationale for distinct forms of enforcement in the different areas; this could be
contradicted by regarding the forms of discrimination as equivalent. She highlighted
detailed areas of application of racial discrimination, compared with the account of gender
discrimination. Equal treatment provisions have been regarded as equivalent; they have in
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common ascribed otherness, but the categories are different, for example in the area of
race, where there is no scientific justification for racial classifications; race is ascribed on
the basis of appearance and culture. Disability is also a social construction. Gender is an
ascription. Differentiation can be on a biological basis, covering gender, age and some
forms of disability. Another basis can be choice of lifestyle or professed identity. These
different categories can be linked with different forms of discrimination, and duties to
accommodate. In the case of age, definitions are often linked to labour market
considerations. She considered cross relations between forms of discrimination. Race,
ethnicity and belief are often the basis for discrimination against minorities, described
variously. It is hard to remove the religious component. Age discrimination can be linked
with racial discrimination. Religion, politics and gender can be hard to separate, for
example in cases with Muslim female clothing. Legal precedents are confusing, and often
contradictory, with discrimination on religion and age allowed in some cases.
There are differences, which may not be justifiable, between the Directives. Some are easy
to fix. In the case of indirect discrimination and harassment, there may be a need for
upwards harmonisation. She favours a single legal framework, because of cross relations.
Asymmetry needs to be addressed. A merger of institutional arrangements and social
dialogue would be helpful. The hierarchy of discrimination and rights needs to be corrected
to conform with UN law.
Age
Clare McGlynn considered age discrimination in the labour market, and as an aspect of
fundamental rights. Changing demography means a reduction in the future working
population. Policies are geared to participation. Similar arguments are cited for
immigration: grey power or black power (perhaps rather than women power). Age
discrimination can help address the problem, but early departures from the labour market
have continued. Arguments tend to be economic, persuading governments that the future
need is to reduce early exits and increase older workers, making best use of human
resources. This is not necessarily a good approach to disadvantage. Arguments on
efficiency can be used to remove older workers. The approach is dangerous, equivocal, and
narrow; it does not consider the broader impact on workers. Older workers and women
tend to be regarded as a reserve army of labour.
The human rights approach in European measures sets a floor, respecting diversity and
detailed requirements. Age needs to be included within this framework, but with little
practical difference for those facing discrimination based on age. The Preamble to the
Framework Directive has no impact on national retirement ages, and a list of excluded
professions and areas. Justifications given for age discrimination are broad, with exceptions
for occupational social security schemes. Minimum conditions and maximum ages can
have cross-over effects. The present Directives enshrine current arrangements. Member
states have until 2006 to implement provisions: it is seen as costly and controversial, and
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involves the attempt to reduce social security and pension payments. Age is a general
criterion used in the provision of goods and services, and removal of all discrimination is
hard to envisage. In the USA the benefit has been felt most by white middle-class men.
This suggests that poverty, class, race and sex are not being addressed. The inclusion of age
is a way of addressing labour market participation. The business case dominates.
Enforcement and Surveillance, Remedies and Sanctions
Ruth Nielsen discussed enforcement related to the new Directive. There is an assurance of
access to courts in sex discrimination cases. In the case of Race, judicial and/or
administrative procedures are cited. The difference is important; enforcement tends to be
the missing link in sex discrimination. If there is no judicial body involved at national
level, there is an absence of questions raised for the European Court. If no access to judicial
protection is provided at national level, could individuals claim such access, under the
European Convention on Human Rights? If so, there should be access to judicial
protection. She considered independent complaints and investigation bodies, covered in the
area of sexual discrimination. Support is not enough, but was seen as sufficient with respect
to race. Denmark is in compliance with respect to sex discrimination, with a new
complaints body. There is no parallel requirement in the case of race. Merging the different
Directives should mean comparable enforcement measures. Merger would not be
straightforward, in light of the different legal foundations used in the current Treaty.
Attention would need to be given to enforcement, and rights of trade unions to represent
members. There are differences on remedies, such as restrictions on upper limits. Member
states need to review relevant employment law. Provisions on sex discrimination are more
far-reaching than in the case of race. Other Directives using upper limits may be seen as
contrary to the principle of effectiveness. Comparability arguments across areas of
legislation can be controversial, such as in the case of equal pay; claims may be affected by
the effectiveness of enforcement. All of the Directives apply to actions of the state, but
there is less direct effect for employers and trade unions
On Equal Treatment, Positive Action and the Significance of a Person's
Sex
Ann Numhauser Henning noted that the equal treatment regulation assumes that sex is
irrelevant. Normative patterns and practices have developed, with marginalisation of
certain groups. Substantial equality needs support from equal treatment and affirmative
action, balancing concepts of equality through a proportionality assessment. Equal
treatment is a general principle underlying Community law. Full equality in practice
involves substantial equality. Positive actions are specifically allowed, within the bounds
set by Article 141.4 EC and case law. She analysed cases dealing with promotion and
hiring. In the Kalanke case, automatic priority for women in selection was seen as
discriminatory. The Marschall case raised similar issues, but the priority was seen as nonbinding, and acceptable. Once a woman has been given priority on grounds of sex,
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affirmative action has been accepted. A proportionality assessment is needed to balance
approaches to equality. Compensatory affirmative action is involved. The Badeck case was
based on flexible result quotas, and objective assessments of the personal situation of all
candidates is required. The regulation, as reflected in the judgement, is more far-reaching
than in earlier cases. The Abrahamsson case involved a special reform package to promote
equality in higher education; operating alongside Swedish constitutional restrictions. The
European Court ruled against the package, and required the chosen candidate to have
qualifications equal to those set aside. Criteria to give substantive equality need to be
transparent. The ruling was critical of Swedish selection procedures. It is not sufficient to
belong to the under-represented sex, and not acceptable to have selection procedures which
automatically favour the under-represented sex, but it is acceptable to use positive action to
modify standard criteria. This opens new areas for affirmative action. The 1993 regulation
was regarded by the European Court as absolute and inflexible, which caused surprise in
Sweden. The regulation allows for procedures such as flexible quotas, but there are
questions as to the flexibility of what is permitted, "substantially equivalent" qualifications,
and qualifications gaps. There is a contradiction, between individual rights and
identification of discrimination at group level. She argued for administrative measures of
affirmative action, building on Court decisions. The regulations are aimed at the same
overall concept of equality of opportunities.
Collective Agreements and Affirmative Action
Brian Bercusson included industrial relations in the consideration of equality. The General
Framework Directive includes roles for the social partners in social dialogue. Collective
bargaining and equal opportunities are mutually reinforcing. Recruitment issues fall within
equal opportunities, and can extend the scope of collective bargaining. Institutional
frameworks at European level appear confused and inconsistent. Sectoral attributes can be
exploited, and lessons transplanted. Multi-national corporations have equal opportunities in
some subsidiaries. European Works Councils have helped enhance agendas. Directives
tend to refer to member states but not EU level institutions and activities. Equal
opportunities policy has a role to play; positive action is an effective tool. Employment is
seen as the key priority of the EU; the Employment Strategy is the outcome, with the
Luxembourg process of guidelines and national action plans, reviewed and subject to nonbinding recommendations. There is disequilibrium between the absence of formal role for
social partners in the preparation of action plans, and their role in implementation. One of
the 4 pillars of the EES is equal opportunities. The EES and active labour market policy
has meant open co-ordination as a form of soft law, with an attack on discriminatory
practices. There are good practices in national action plans, and processes leading to active
dissemination and mainstreaming. Examples go beyond the Luxembourg process: bilateral
seminars between the Commission and member states discuss EES and action plans,
involving social partners and regional authorities. There is peer review, with seminar and
site visits, hosted by other countries, with the objective of dissemination. Benchmarking is
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developing, targeting member states who fall below specified standards, in gender pay gaps
and participation rates. There is a gap between the EES, which ignores the social partners,
and the Social Chapter, which gives them a focal role.
Workshop Participants
Brian Bercusson, King's College, London, UK
Niklas Bruun, NIWL, Sweden
Richard Ennals, Kingston University, UK
Sandra Fredman, Oxford University, UK
Anders Karlsson, NIWL, Sweden
Karin Lundström, Institute of Law, Lund, Sweden
Jonas Malmberg, NIWL, Sweden
Christopher McCrudden, Oxford University, UK
Clare McGlynn, University of Durham, UK
Ruth Nielsen, Copenhagen Business School, Denmark
Ann Numhauser Henning, Institute of Law, Lund, Sweden
Lynn Roseberry, Copenhagen Business School, Denmark
Dagmar Schiek, University of Oldenberg, Germany
Lena Skiöld, NIWL, Sweden
Maritta Soininen, Stockholm University, Sweden
Hans Ytterberg, Ombudsman, Stockholm, Sweden
Richard Whittle, Middlesex University, UK
Robert Wintemute, Kings College, London, UK
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