In March 2001, the Union of Industrial and Employers' Confederations of Europe (UNICE) announced that it was prepared to enter into European-level social partner negotiations with the aim of concluding a non-legally binding agreement on the issue of telework. The European Trade Union Confederation (ETUC) has expressed its surprise that UNICE would like to negotiate a non-binding accord.
The possibility of European-level regulation of teleworking was expressly alluded to by the European Commission when it launched first-stage consultations with the European-level social partners on the modernisation of work organisation in June 2000 (EU0007259N). In the first stage of such consultations, the Commission consults management and labour on the possible direction of Community action in a particular area. If, after this consultation, the Commission considers that Community-level action is advisable, it launches a second stage of consultations as to the content of any envisaged proposal. It is at this stage that management and labour may, if they wish, decide to try to negotiate a European-level agreement on the issue in question. This process of negotiation, provided for by Article 139 of the Treaty establishing the European Community (TEC), has so far been successfully used to negotiate agreements on parental leave (EU9706131F), part-time work and fixed-term work (EU9903162N), which were subsequently enacted by Council Directives, at the request of the social partners. Under the provisions of Article 139 (2), the social partners may either ask the Council to enact their agreements, on a proposal from the Commission, or implement them "in accordance with the procedures and practices specific to management and labour and the Member States". Negotiations in the area of temporary agency work are currently underway (EU0005245N).
Negotiations on teleworking?
In its June 2000 consultation document on the modernisation of work, the Commission invited the social partners to give their views on the possible future direction of Community action with regard to: the principles to be followed in order to modernise and improve employment relations; and the establishment of a mechanism to review existing legislative and contractual rules governing employment relations. It highlighted two specific areas in which it wished the social partners to consider early action: teleworking was one of these areas, with the Commission stating that the time was right for framework provisions at Community level to be developed in this area. It did not make a recommendation as to the form such provisions might take. It did, however, suggest that the social partners might arrange for these provisions to be implemented in the Member States in accordance with the procedures and practices specific to management and labour, as provided for by Article 139(2) of the TEC (see above).
In response to the Commission's first stage of consultations, the European Trade Union Confederation (ETUC) stated that it would like to see regulation of teleworking at EU level. The Union of Industrial and Employers' Confederations of Europe (UNICE), meanwhile, expressed its preference for a non-regulatory approach.
After some months of silence, UNICE wrote to ETUC on 8 March 2001 stating that it would be willing to open negotiations on a non-legally binding agreement on teleworking. Justifying its view that a non-legally binding accord is the most appropriate, the UNICE president, Georges Jacobs, stated that "telework is a way of working, not a legal status. It is not a theme for regulation at EU level but we think that voluntary negotiations could help develop telework in Europe." Having reached this decision, UNICE stated that, rather than waiting for the Commission's second consultation on the modernisation of work, it would like to open negotiations straight away.
In response to UNICE's offer, ETUC's general secretary, Emilio Gabaglio, expressed a number of reservations. He stated that ETUC is astonished that UNICE sees teleworking as a way of working rather than a legal status. ETUC believes that, due to the fact that an agreement on the issue would regulate employment and working conditions, it would need to have legal status. ETUC is also surprised that UNICE has made its offer at this point, without waiting for the Commission's second stage of social partner consultations.
Further, ETUC states that it would need to be assured that any voluntary framework could be effectively put into practice at national level. Although UNICE suggests that any such agreement would contain a commitment by the members of the signatory parties to ensure its follow-up "according to national traditions", ETUC believes that this would not be strong enough, stating that it "would not accept as a 'national tradition' the attitude of even one member of UNICE which considers as its tradition to refuse to put jointly into practice a European framework agreement".
Mr Gabaglio suggested that the secretariats of ETUC and UNICE should meet into order to clarify the position, noting that a preliminary agreement would, in all likelihood, need to be agreed between UNICE, ETUC and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) in order to "define this voluntary negotiation, the nature of the European framework agreement which could result from it, and the responsibilities concerning the obligations for the application by the member organisations of our organisations".
More generally, ETUC states that it would like to establish an independent work programme for the European-level social partners, as outlined by ETUC in a paper in March 1999 (EU0001224F).
Meanwhile, to complicate matters further, on 19 March the Commission launched the second stage of consultations on teleworking, providing the social partners with a list of general principles that it believes should serve as a framework for practical implementation.
Commentary
This latest offer by UNICE is a new development in social dialogue at European level. The previous three agreements reached using this process of dialogue – in the areas of parental leave, part-time work and fixed-term contracts – have all provided a European-level framework for regulation of the issue in question. All three of these agreements were subsequently given legal force by means of a Directive adopted by the Council of Ministers. In all of these cases, it was clear from the outset that the social partners were negotiating a framework which would have binding legal effect at European level. If UNICE succeeds in convincing ETUC that any future agreement on telework will be of a voluntary nature, this will be a first in terms of the social dialogue at this level. As things stand, it would appear that UNICE and ETUC have irreconcilable views on the very nature of telework. UNICE sees this as a way of working which, as such, does not require binding regulation. Conversely, ETUC believes that if issues such as working conditions and rights of teleworkers are to be included in any agreement, then it needs to be given legal force, or at the very least, that safeguards need to be put into place to ensure that the agreement is implemented in all EU Member States. (Andrea Broughton, IRS)