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We assessed in Issue 20 the changes that had to be made to the law in the UK when the EU directives banning racial discrimination and promoting equality at work come into force this year. However the laws will also apply to the other fourteen Member States as well as the ten acceding countries when they join next Spring. With wide differences in their traditions, histories and existing legislation it has not proved easy for all of them to meet the deadlines to implement the new directives. Will they make it and what form will the national laws take ?
By July 19 2003 only three countries had passed national laws implementing, as required by that date, the first plank in the EU's anti-discrimination package, the race equality directive. By December many of the provisions of the associated employment equality directive must be put into effect with others on disability and age due by 2006. The EU Commission is also planning further directives in this area such as that on gender discrimination which is currently being drafted (see page 2). It is interesting to note that the three 'good guys' were Belgium, Sweden and the UK all of whom have had a multicultural society for some time and anti-discrimination legislation in some form. Countries like Spain, Ireland and Greece have traditionally been places to emigrate from and have relied, in the past, on general pronouncements against inequality, often as part of the constitution, rather than pass specific anti-racism laws. Even Germany, with a large immigrant workforce since the 1950s, has no specific legislation covering the workplace or the wider world.
Given the problems in starting from scratch it is not altogether surprising that several Member States such as Germany, Austria, Greece and Spain had not got as far as submitting draft bills to their legislatures when the July deadline came around. Some governments aim to transpose both of 'this year's' directives together by the end of December as in Austria. In others it is not clear what further action will be taken; Germany has already seen an attempt to implement both at once collapse and has extra problems due to the federal nature of its constitution. On the other hand there are moves in countries such as Belgium to go further in national laws than the provisions of the EU directives. References to race were changed to 'alleged race' in the Belgian law to take into account more modern ideas on the subject while discrimination on the grounds of age and disability was banned from this year rather than 2006 as in the EU legislation. This has led to problems where companies have seniority and retirement structures where age is taken into account while previous laws designed, for instance. to encourage the speaking of Flemish or French in certain jobs could be seen as discriminatory.
Whatever the outcome of individual states' legislation it will be the employers and trade unions who are left to pick up the pieces and make the laws work on the ground. As well as anti-racism training such as that undertaken by some UK unions, collective agreements address discrimination issues in multinational companies such as Ford and others like the German Railways. In the Flanders region of Belgium the social partners have agreed a target of achieving an employment rate among ethnic minorities which matches that of society as a whole by 2010. The EU Employment Commissioner wants the social partners to take a hand in publicising the new rights which she feels are insufficiently known by the public, 'If they are to be effective, these new rules must be known, understood and properly enforced. Otherwise, they will be a dead letter'.
The latest in a series of decisions in which the court has sought to define 'working time' as set out in the EU directive was made in September. Dr. Norbert Jaeger, who worked at a hospital in Kiel, Germany, had to be on call at his workplace, even when he was not actually carrying out his duties. These periods were known as 'rest time' and did not count for the purposes of the Working Time Directive and its maximum limit on hours of work. Dr. Jaeger wanted to know if this arrangement was allowed under the directive.The court decided, amplifying its judgement in the SIMAP case (see issue 13 page 6), that even if provision was made for the doctor to rest, even if he was asleep, 'periods of time when an employee is at the employer's disposal constitute working time even if the employee is not carrying out his duties', in the words of Advocate General Ruiz-Jarabo Colomer.
The German government reacted by stating that about 20,000 additional doctors costing €2 billion would now be required to keep the German health service within the law. There are also expected to be implications for firefighters and teachers. The judge replied that the directive's aim was the 'improvement of workers' safety, hygiene and health at work...an objective which should not be subordinated to purely economic considerations'. It is believed that several EU Member States will now reconsider their position on the working time opt-out review (see our last issue) to see if they can obtain a UK-style exception in certain areas.
British firefighters' union the FBU has secured an improvement in health and safety law in the UK by pursuing its case before the European Commission. Previously legal action against employers on health and safety grounds could be taken by the Health and Safety Executive but not trade unions. This often resulted in cases 'picking up the pieces after an accident has happened' rather than enforcing the compliance of employers with the law. Under the threat of a referral to the European Court of Justice the UK government has changed the regulations so that injunctions may be sought directly by unions to, for instance, get employers to carry out risk assessments. If the injunction was then broken unlimited fines or terms of imprisonment could be imposed. FBU General Secretary Andy Gilchrist hailed the new law as a 'massive change'. 'Now that we have these powers we will use them. We will target these rogue employers and these dangerous practices and bring them to an end once and for all'.
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