The European Commission has opted definitively for the presentation of a directive aimed at contributing to the establishment of fair wages in the Union, according to a provisional version of the legislative text obtained by EUROPE on Monday 26 October.
If the initiative remains as it currently stands, the Commission will favour the position of trade unions (see EUROPE 12553/22), more than that of employers, who took a position in favour of recommendations (see EUROPE 12555/28).
Thus, based on the provisional text, which dates from the second half of October, the European institution is in fact pursuing a twofold objective: - contribute to the establishment of a fair minimum wage, while respecting national traditions; - and work towards social dialogue and the role of the social partners.
The Commission is aware that its room for manoeuvre is narrow and that its scope for action is reduced as a result of Article 153(1) and (2) TFEU. Consequently, as early as Article 1, the legislative text specifies that the directive in no way interferes with the freedom of States to set statutory minimum wages and does not impose any obligation to introduce a statutory minimum wage in Member States where this does not exist.
The draft directive applies to any worker with a contract or employment relationship within the meaning of either national law, collective agreements in force or the case law of the Court of Justice of the EU (CJEU). In this way, the institution hopes to avoid workers known as “atypical”, such as workers on digital platforms, being excluded from the scope of the directive, provided they meet the criteria set by the CJEU on the definition of workers.
In addition, the legislative project aims to extend the scope of action of the social partners. Member States are to that end required to take measures to promote the capacity of the social partners to engage in collective bargaining on wage setting.
Here, Member States whose collective bargaining coverage is less than 70% of workers are required to provide a regulatory framework for collective bargaining and are required to establish an action plan to promote collective bargaining.
Kaitz index and non-regression clause
An entire chapter is devoted to those Member States which have a statutory minimum wage. Thus, Member States which have legislated in this area must provide for clear national criteria for setting wages and regular updating of the statutory minimum wage with the social partners and the appropriate advisory bodies.
Here, the Commission considers that the national criteria should include at least the purchasing power of minimum wages, the general level of gross wages and their distribution, the growth rate of gross wages and the trends in labour productivity. To this end, the Commission invites Member States to use international indicators to assess the adequacy of statutory minimum wages, for example the Kaitz index, which compares the minimum wage with the median or average wage. The institution further proposes that the decent standard of living as defined by the Council of Europe, which compares the minimum wage to the average net wage, should be taken into account.
The Commission lays down a non-regression clause, i.e. the directive must not constitute a reason to reduce the general level of protection in force for workers at national level, as well as at sectoral level.
The institution shall propose an evaluation of the said directive within 5 years of its transposition, i.e. 2 years after the entry into force of the legislative text. This would lead to a possible review at the end of this decade or the beginning of the next.
The Commission, having envisaged presenting the initiative in mid-December (see EUROPE 12585/33), is expected to present its proposal on Wednesday 28 October. (Original version in French by Pascal Hansens)