The future of the European social dialogue

Some 16 years after the social dialogue was first launched by Jacques Delors, the social partners themselves acknowledge that the process is moving into a new phase. Based on interviews with social partner representatives, we examine their views on the achievements so far, review the latest developments and look at their recent joint declaration on how to shape the dialogue in the years to come.

Achievements of the dialogue

The social dialogue process has been in place since the Val Duchesse talks in 1985, which set out a framework for its shape. Sixteen years later, all agree that much has been achieved, in terms of three Directives and a plethora of joint declarations, positions and other texts. However, with the recent failure of negotiations on the issue of temporary work and the launch of talks for a voluntary accord on teleworking, there is a definite feeling that the process is now entering into a new phase. EIRR talked to representatives of three major European social partner organisations - UNICE (which represents private-sector employers), CEEP (which represents public sector employers) and the ETUC (which represents trade unions) - and asked them about the current state of affairs as well as what the future holds.

Thérèse de Liedekerke, UNICE's social affairs director, told EIRR that the social dialogue between the European social partners at interprofessional level has been very active over the past few years and has dealt with a range of subjects. It has, of course, resulted in three accords - on parental leave (1995), part-time work (1997) and fixed-term contracts (1999) - although it has not always been successful, notably in the case of the talks on temporary work, which broke down in May 2001. Jean Lapeyre, deputy general-secretary of the ETUC, prefers to see the social dialogue process in terms of phases - the first phase of the Val Duchesse dialogue, which was launched in 1985, served as an apprenticeship for the social partners. The second phase, starting in 1989, became more concrete following the conclusion of the European social charter. From 1991, the social partners were, under the terms of the protocol and agreement on social policy, annexed to the Maastricht Treaty, given powers to negotiate agreements, at the initiative of the European Commission. Mr Lapeyre stressed that although this phase resulted in three social partner agreements, which represent a significant step forward in terms of workers' rights, employers always participated in the negotiations under threat of legislation - if negotiations failed, the European Commission would subsequently issue a legislative proposal. He argued that the whole process is now moving into a different phase, within which employers will be less passive and less reactive.

Nuncia Gava, social affairs director of CEEP, pointed out that the very fact that the social dialogue process has successfully been put into place is a cause for celebration, particularly as this is a very European process which does not exist in this form elsewhere. She noted that the negotiation process of nine months was a swift way of formulating legislation, compared with the time it takes the Council to adopt a proposal.

Talks on temporary work - a short-lived setback?

The failure of the social partner talks on temporary work in May 2001 was something of a blow to the social dialogue process. Negotiations had been ongoing for some months and there were hopes that an accord could be reached, despite a range of difficulties. Ms de Liedekerke noted that UNICE was disappointed with the failure of these talks, but stressed that this should not be interpreted as the sign of any problems with the actual process of the social dialogue. The main focus of disagreement between employer and union representatives in these talks was the definition of a comparable worker for the purposes of equal treatment. UNICE wanted the agreement to allow member states to choose to permit comparisons to be made either with agency workers or user company workers, with comparisons in some, defined, areas to be made with the user company. Thus, with regard to health and safety, maximum working time and minimum rest breaks, UNICE was prepared to allow for the agreement to stipulate that a comparison had to be made with the user company.

However, UNICE wanted member states to be able to choose either agency workers or user company workers in all other cases. She stressed that practice in the area of temporary work differs widely between EU member states and sometimes within individual member states - in manufacturing, the comparator is generally with the user company, while in services, it is usually with agency workers. There is therefore no "one size fits all" solution, and UNICE believed that the above proposition would be a good way of solving this.

The ETUC, however, felt that it was vital to address the issue of the comparator in order to ensure equal treatment, and was not happy with the proposal to allow member states to choose between using the agency or the user company as comparators on most issues. Mr Lapeyre pointed out that the ETUC's prepared text on this issue permitted derogations to the principle of the user firm as comparator, as long as the derogations were endorsed by a collective agreement. He said this would have been acceptable to many agencies, but noted that UNICE appeared to shy away from any negotiated element in the implementation of the final agreement.

Ms Gava noted that CEEP regrets the collapse of the talks as they very nearly arrived at a conclusion: "It is a shame that it is not possible to produce a text containing all the points on which there was agreement between the parties - as the talks have failed, there is no text at all to show for all that work." In general, CEEP's position tends to fall onto the same side as that of UNICE, although in the case of temporary workers, CEEP did not hold such a strong position as did UNICE, as the whole issue of temporary work is at present less relevant for the public sector.

As the talks have now failed, the Commission is committed to issuing a proposal on this subject, since it represents the final tranche of the original 1995 consultation of the social partners on atypical work. This consultation has so far resulted in social partner agreements and subsequent Directives on part-time work and fixed-term contracts. Mr Lapeyre told EIRR that the ETUC was busy lobbying the Commission on the content of the proposal, "which is all we can do at this point". It may well be that this Commission initiative, when it comes, will draw much from the recent joint declaration on temporary work in the service sector, although all parties interviewed by EIRR pointed out that this text had side-stepped the crucial issue of agency and user company comparators.

Telework - a new departure

Teleworking is an area which has been expanding over the past few years, and the European Commission has decided to look into whether regulation of this form of work at European level is necessary. It therefore issued a first social partner consultation, on the general subject of the modernisation of work, in June 2000. This consultation dealt specifically with teleworking and economically dependent workers, and was followed by a second consultation, in March 2001, which focused solely on teleworking.

Initially, there was a lack of clarity concerning the legal status of any accord which might be negotiated by the social partners. Just before the Commission's second social partner consultation, UNICE issued a statement to the effect that it was ready to enter into talks for a non-legally-binding agreement. UNICE argued that teleworking was "a way of working, not a legal status" and therefore should not be governed by a statutory instrument. At the time, the ETUC reacted with caution, countering that teleworking is governed by a number of employment and working conditions which are subject to a statutory framework. CEEP's view was that it was not particularly opposed to the idea of a statutory instrument in this area, but above all realised that there had to be consensus on the issue of the legal status of any resulting agreement prior to any proper talks.

Before the negotiations opened, an exchange of letters took place between Georges Jacobs, president of UNICE, and Emilio Gabaglio, general-secretary of the ETUC. Although the idea of a voluntary accord on teleworking was far from alien to the ETUC - it had in fact in March 1999 suggested to UNICE that negotiations to conclude a voluntary accord on this subject should be opened - it wanted reassurance that, if it agreed to proceed with negotiations for a voluntary agreement, there would be effective implementation at national level. Although UNICE gave reassurance that the signatory parties were committed to following up the agreement in member states in accordance with national traditions, the ETUC argued that it would not be able to accept a situation whereby a national UNICE member did not implement the agreement, on grounds of national tradition. The ETUC stressed that any resulting agreement should be implemented in all member states, and if necessary through "innovative procedures and practices within the framework of national cultures". The ETUC maintained that there was a need to reach a prior procedural agreement in order to ensure correct implementation at national level. UNICE replied that any resulting agreement would constitute a "solemn declaration on the part of the signatory parties", but that it would not be a binding statutory instrument. In this way, it would be implemented, not by Council decision, as in the case of the previous three such accords, but by the signatory parties. UNICE argued that the signatory parties would, by dint of signing the document, be motivated to ensure that it was implemented at national level. It noted further that it was difficult to separate the basis from the form, in that it was almost impossible to determine how an agreement was to be implemented without knowing its content. Mr Lapeyre told EIRR that the ETUC's basic position was that it wished to avoid a situation in which any negotiated agreement is not implemented in all member states, as this would be a waste of everybody's time and efforts.

Nevertheless, the ETUC was sufficiently satisfied by these overtures to enter into formal negotiations with UNICE and CEEP. Talks therefore began on 12 October and a second round was held on 12 November. However, it is obviously early days - Ms de Liedekerke told EIRR that since there had as yet been only two negotiating meetings between the social partners on the issue of teleworking, it was at this stage too early to predict the outcome. Nevertheless, she stated that UNICE was glad that there appears to be understanding between the negotiating parties on the status of any resulting agreement, as it would have been fatal to have opened talks on the basis of a misunderstanding. She said, further, that UNICE was hopeful that the negotiations could "give practical meaning to a concept" and that the talks could be concluded by June 2002. Mr Lapeyre admitted that the negotiations were "progressing slowly", although he was hopeful that an agreement could be reached either by May or June 2002.

The challenges of enlargement

All parties agreed that enlargement was the main challenge facing the social dialogue process in the future. The first enlarged social dialogue meeting is scheduled to take place at the end of January 2002, and will be attended by representatives from all 13 accession candidates. This follows a decision taken at the Bratislava meeting, held in March 2001, that regular social dialogue meetings should take place with the participation of representatives from the candidate countries. All concerned are uncertain how this will develop and this is one of the factors which is contributing to the difficulty in forecasting the future content of the social dialogue. As things currently stand, the process is somewhat limited by financial constraints; the European Commission will fund the travel expenses of the representatives from candidate countries, but this is a limited budget. A further difficulty is the fact that the social dialogue process in candidate countries is still relatively weak, in part due to low trade union density. There is also a lack of technical support and assistance programmes which, in reality, means that there is no structured approach to making progress on issues between meetings.

Ms Gava stressed that it will be difficult to support meaningful social dialogue in candidate countries if adequate funding from the Commission is not there. She maintains that it is important to allow representatives to go to Brussels in order for them to feel they are a part of the new Europe that is being built and to take the message back home.

The future of the social dialogue

A number of initiatives are either being discussed already or are being prepared for discussion within the framework of the social dialogue process. For the past year, the social partners have been engaged in discussions on lifelong learning and are meeting at the end of January to discuss progress. They are aiming to have a text ready for submission to the Barcelona Council which will be held in the spring of 2002. This will not be an agreement, but will take the form of a joint text. These negotiations are linked to the implementation of the Lisbon strategy, which aims, among other things, to improve the education and skills levels of the European workforce.

The ETUC, UNICE and CEEP have, over the past few weeks, been working on a joint contribution, for submission to the Laeken Council, held on 14-15 December under the outgoing Belgian Presidency of the Council (EU Council: Laeken Council prepares ground for IGC), on the future of the social dialogue, in which they make a number of commitments and requests. Mr Lapeyre stated that the ETUC was keen to make a clear division between civil and social dialogue so that the two processes can work together better. This was backed up by Ms Gava, who stated that there needs to be more clarity in terms of how the two processes work, although there is unavoidable overlap in some cases, such as social exclusion, which has an industrial relations impact in terms of unemployment. For details of this joint contribution, see the box below.

In general, Ms de Liedekerke told EIRR that, when the social dialogue is discussed, there is too much emphasis on the conclusion of joint agreements which then go on to form the basis of Directives. She noted that there has, as yet, only been three such agreements, but there is a wealth of other forms of cooperation and activity: "The conclusion of legally binding agreements has been a relatively small proportion of social dialogue activity and will remain so in the future - there are many other ways of dealing with issues than through the drawing up of legislation." She cited a number of important, non-legally binding texts which have been concluded by the social partners over the past few years, including a joint declaration on the prevention of racism, dating from October 1995, which, according to Ms de Liedekerke, has been used as a basis for joint work in member states. A further example is a joint opinion on women and training, including case studies of best practice, dating from December 1993. This was, she stressed, something which trade unions and managers were all keen to put into place and so the social dialogue in this case was responding to a demand on the ground. She also maintained that negotiations was not really the right word to describe the process of social dialogue, which would, in her view, be better described as "discussions". Ms Gava agreed with this, predicting that there would in the future be a range of joint texts - of which agreements of statutory status would be a minority - concluded between the social partners.

Finally, it would seem that, in general, the cooperation accord between UNICE and the European-level federation representing small firms, UEAPME, concluded in December 1998, is working well. Ms de Liedekerke said that UNICE was happy with the arrangement, under which a joint UNICE/ UEAPME delegation participates in social dialogue meetings. She stressed that there was a good working relationship between the two organisations, which benefits both parties. She said that UEAPME has been a loyal partner in the negotiations that have taken place since the conclusion of the cooperation agreement.

Main points of the social partners' joint contribution to the Laeken Council on the future of the social dialogue

This document was formulated by UNICE/UEAPME, CEEP and the ETUC, which state that they would like to "reposition the role of the social partners" in the light of a number of fresh challenges, including the debate on Europe's future and governance, enlargement, and completion of economic and monetary union. The document is broken down into four main areas as follows: