Social dialogue: still a fuzzy conversation

The European Commission remains ambivalent on involvement of the social partners in political decision-making.

What role should the ‘social partners’ (organisations representing workers and employers at national and at European Union level) play in the economy’s digital and environmental transitions? As it becomes increasingly clear that these transitions will otherwise be anything but smooth—in terms of restructuring and unemployment—the social partners’ capacity to anticipate, prepare for and buffer the shocks is of utmost importance.

The European Commission attempted to define this role with a communication late last month on strengthening social dialogue. It is, however, a mixed bag.

Between 1993 and 2004, the commission published five communications on European social dialogue, the role that economic and social actors were meant to play in ‘European construction’ and how this could be made a force for change in central and eastern Europe. For the next decade, under José Manuel Barroso as commission president, there was however silence and what little progress had been made appeared indefinitely stalled.

Discussions were ‘relaunched’ during the five-year presidential term of Jean-Claude Juncker, albeit ambivalently: the commission’s 2015 Better Regulation package included provisions on social dialogue characterised by ‘mistrust and suspicion’ of the social partners’ involvement in the legislative process, according to a former commission official. They have continued under the current presidency of Ursula von der Leyen.

Years of conflict

The publication of the communication is a relief to all those who feared that the European executive had abandoned the values it had so cherished. These date back to the launch of social dialogue at Val Duchesse in 1985 at the initiative of the incoming commission president, Jacques Delors, and embodied in the Maastricht treaty of 1991, where key articles on work and welfare were adopted following social-partner agreement.

The European trade union organisations in particular welcomed the communication after years of conflict over the commission’s refusal to transform two sectoral social-dialogue agreements into directives, as provided for in the Treaty on the Functioning of the European Union and as eight sectoral agreements had previously been executed. These were on hairdressing salons (2012) and information and consultation procedures for civil servants (2015). The unions were hoping that the communication would offer answers and assurances on the future of social dialogue.

The title itself is telling. It refers to ‘social dialogue in the European Union’—not, as in previous communications, to ‘European social dialogue’. This implies a recognition that social dialogue must operate at the European and at the national level to be most effective. At several points in the text, the commission stresses the importance of European organisations supporting their national affiliates and integrating them in the national implementation of texts adopted at EU level.

Indeed, we know that commitments made by the European social partners are not always followed up at national level. We also know that the quality of social dialogue varies greatly from one state to another, because of the diversity of structures, the variety of ways in which national actors are involved, the (declining) coverage of collective agreements and so on. How can these different levels be better harmonised, to make of them the germ of an integrated European system of industrial relations?

Ambition tempered

The commission accompanied its communication with a proposal for a recommendation on strengthening social dialogue from the Council of the EU. This would require the unanimous support of the 27 member-state governments. The recommendation would commit them to consulting the national social partners when designing and implementing economic, employment and social policies, as well as to developing a European industrial-relations system. Recall that the minimum-wages directive, adopted in October, requires each member state to aim to achieve 80 per cent collective-bargaining coverage.

Of course these ambitious objectives are tempered by the nature of the proposed text—a recommendation, which is not legally binding as with the directive. If the recommendation were however to be adopted, the commission would put in place indicators to monitor its implementation. Social dialogue, including national dialogue, would thus be evaluated and monitored at European level, which could put some political pressure on governments.

The quality of implementation could though have been strengthened by political means, by reaffirming the co-legislative function of European social dialogue under the TFEU. The commission could have remedied, directly at European level, the shortcomings associated with national implementation by ensuring that social-partner agreements were binding, via consequent directives, on all member states.

Yet where the European partners, particularly the unions, were undoubtedly expecting political backing, the commission offered only administrative support and legal advice during the negotiation of such agreements. The most sceptical could be forgiven for concluding that the promised (and welcome) increase in connectivity between EU and national levels conceals a lack of desire to strengthen the specific role of European social dialogue in its co-legislative function. The commission is essentially passing the buck to the member states.

Invidious position

The commission’s failure to specify the conditions under European agreements will be transformed into directives puts those who would negotiate them in an invidious position. The commission says it will consider the legality of the agreement, the representativeness of the signatories and the relevance of implementation by way of directive. But beyond these obvious points, it does not provide strategic keys to interpretation, merely saying that it ‘will take a final decision depending on the complexity of the assessment of the proposed agreement taking into account the requirements of the recent jurisprudence of the Court of Justice’. Negotiators are to be informed of the commission’s decision within three months.

The Court of Justice of the EU has ruled that the commission is by no means legally obliged to follow up on requests from the social partners to implement by directive agreements they conclude. The underlying political issue, however, is the extent to which the commission wishes to involve the social partners in political decision-making and integrate social dialogue into EU legislative proposals.

Without a clear political answer to this question—particularly within the context of the transitions to come—the social partners may be reluctant to enter into negotiations, as they will have no guarantee that agreements they reach will be made legally binding. The commission is thus missing an opportunity to provide the social partners with the predictability and security they were seeking.

The commission says it may conduct impact analyses of the agreements. It did so for the first and only time on the hairdressing agreement, even though until 2009 it believed that propositions for the legislative implementation of European social-partner agreements should not be included in the impact analysis. Given such analyses have been described as ‘a system that operates to order, depending on the wishes of the Commission and other discreet influences’—a degree of caution is called for.

The communication also contains proposals that could best be described as institutional fine-tuning. They include tripartite exchanges with the Employment and Social Protection Committees advising the council, revising the 1998 decision on ‘sectoral social dialogue committees’ and establishing a social-dialogue co-ordinator in each commission directorate-general.

All these institutional adjustments have been welcomed by many actors and could well facilitate European social dialogue. But precedent—in particular gender ‘mainstreaming’ in the various directorates-general—indicates such efforts at institutional co-ordination have not always succeeded, due to officials’ lack of training in social issues, the absence of synergies among policy-makers and so on.

Certainty lacking

The communication is ultimately promising in many regards: its preliminary analysis is relevant, its findings on strengths and weaknesses are shared by many actors in European social dialogue and the commission’s political commitment is reaffirmed in terms not seen in a long time. The recommendation to the member states is welcome, as the implementation of European agreements and frameworks of action in some leaves much to be desired. The commission’s commitment to monitor the implementation of this recommendation within the framework of the European Semester is also noteworthy.

The commission has however missed an important opportunity to clarify the political processes it will use to interpret social-partner agreements. It affirms its willingness to carry out impact assessments, thus confirming a break with its previous attitude towards negotiated agreements. Ultimately, though, the commission does not provide the European social partners with any assurance as to the role they will play in future environmental and digital transitions or any certainty on the methods, instruments and outcomes of social dialogue.