Recent data show that the world of work has become more digital rapidly in the very recent past. During the Covid-19 containment measures, almost 4 in 10 employees started teleworking. In 2021, 41.7 million employees teleworked across the EU, i.e. a doubling of employees teleworking since 2019. Although there was a small decline in 2022, Eurofound expected that this upward trend is set to resume. Technological developments are increasing the number of teleworkable jobs and employee’s and employer’s preferences are leaning more towards remote working. Telework is not a strictly national phenomenon, though. In practice, employees ‘sit and work’, thus are located in different Member States, but nevertheless work together by using digital tools and modern ways to communicate. Other teleworkers do not necessarily cooperate in this traditional way, but perform crowdwork via platforms. In both scenarios, one could speak of a ‘digital workplace’. The Framework Agreement on the application of Article 16 (1) of Regulation (EC) No. 883/2004 in cases of habitual cross-border telework reflects these developments and addresses the legal consequences as regards the applicable social security law.

Yet, when it comes to workplace representation in a digital world of work, many questions are still unsolved. According to the Commission’s Work Programme, a more digital EU should cater for the respective rights at the digital workplace, too. However, workplace representation is still rather shattered in the 27 MS. Furthermore, workplace representation exists on average in only 3 out of 10 private sector undertakings with more than ten employees. Digitalisation of industrial relations is therefore not only a means by itself, it could also enhance and strengthen workplace representation as such, simply by attracting more workers than ‘analogue’ representation rights. Who would not rather take part in works council elections if it can be easily done by one click on the computer rather than by assisting at in-person elections, in particular if the workers wanting to vote would first need to travel several hundred kilometres? Would more persons engage in employee representation if meetings could also be held digitally? Would industrial relations be fostered if more people were covered by the benefits it generates? In other words, digitalisation of industrial relations, and in particular paving the way for sound solutions by carrying out comparative legal analysis in this field, could contribute to develop and reinforce industrial relations structures in Europe.

Yet, digitalisation must not be understood as promise only, it also brings along potential perils. Certain of these perils to workers’ rights have already been addressed at various levels. The consequences are recognition of a right to disconnect at national level and promotion of such a right at social partner level (European Social Partner Framework Agreement on Digitalisation 2021). Other potential perils are less apparent and less easy to captivate. As the numbers of telework have been growing over the past years, so has the employers’ need of digital surveillance. Yet, digital telework also has implications for other fields of law and thus for other fields of potential EU action. What about securing working conditions which respect the worker’s health, safety and dignity (Article 31 EU-CFR; EU Pillar of Social Rights No 10)? Could it – or should it – be that the employee is monitored at the place of teleworking in such a way that inspection can be carried out at the employee’s premises – the place of living?

DIGILARE (101126503) addresses a magnitude of legal questions arising from (cross-border) telework. Four ‘coordinates’ are essential to be dealt with in this regard if Social Dialogue, and more particular industrial relations not only at sectoral, but also at company and undertaking level, shall actually contribute to ensuring that an increasingly digital world works for people. The four coordinates of our research are:

1. A) Personal scope of application – who is covered by workplace representation? (WHO)
2. B) Applicable law – which national Member State’s rules apply in a cross-border context? (WHERE)
3. C) Implementation – how are employee participation rights more generally speaking guaranteed in a digital world of work? (HOW)
4. D) Material scope of application– what needs to be regulated to provide for quality working conditions? (WHAT)

Up until now, there has been hardly any research carried out, in particular not from a comparative point of view, neither on the who, nor on the where, on the how and on the what. Thus, DIGILARE (101126503) aims at identifying convergences and differences in the industrial relations systems in place. Yet, it does not only do so from a theoretical dogmatic point of view, by drafting reports and eventually by writing a scientific book, but it also involves various stakeholders – social partners at different levels, including workers’ representatives at workplace level, employers. Their active participation in the project’s transnational seminars as well as in its final conference is crucial for promoting exchange of information and experience among the parties actively involved in industrial relations.

Methodology and goals

Methodology

Methodologically, DIGILARE (101126503) is based on a comparative legal approach, incorporating legal as well as practical perspectives. By applying standard legal methods, the proposed project encompasses, above all, a qualitative assessment of European and national legislation, of existing company agreements concluded within the scope of the legal framework, as well as of company practices that might exist ‘beyond’, of European and national court cases, as well as of (the few existing) legal literature on the topic. We are committed to a truly comparative research approach: As far as possible, all different systems/models of industrial relations are included in the qualitative analysis, as displayed by the selected participating countries. In the qualitative assessments we have also been cognizant to include a representative range of Member States from the various geographical regions.

The most suitable tools to compare the legal and the practical situation in several Member States are several questionnaires and two case studies to be elaborated and to be filled in by the project partners, taking into account that as regards the four coordinates (A – D) on which this project is based, up until now no comparative research exists. Those questionnaires will enable practitioners as well as academics to actually find solutions to the legal questions behind, in particular with a view to the ever-growing trans-nationality of telework. Further tools to generate this comparative perspective are the organization of one final conference, two transnational seminars and four steering committees.

The two synthesis reports to be published on the project’s website and the final report and the book to be published are going to serve legislators and the judiciary at national as well as at European level if they engage in adapting or interpreting existing rules. The scheduled first theoretical report, forming part of the first synthesis report will be particularly useful when interpreting EU-law, more concretely Article 27 EU-CFR, and consequently also national law implementing Directive 2002/14/EC. The final report is not only going to summarize the outcomes of the research carried out, but also to synthesize and to suggest actions to be taken not only by social partners but also by policy-makers at national and EU-level.

At all stages of the proposed project the incorporation of stakeholder knowledge is ensured, among other instruments through roundtable discussions and workshops during the two transnational seminars. Furthermore, their opinion is invaluable as regards the case studies carried out within the project as well as regarding the questionnaires. Consequently, the project partners in charge of carrying out the case studies and answering the questionnaires constantly seek interaction and discussion with social partners and practitioners at national level throughout the project. This seems of utmost importance with a view to promoting exchange of experience of stakeholders, in particular because employers often seem rather reluctant as regards going public with their internal company rules. This is particularly true as regards participation in studies. The project partners hope that by giving the floor to the parties in industrial relations in the described formats, a low-key opportunity in mutual learning is created. Past projects revealed that this is most likely to actually happen, as within the Commission-funded COGENS-project (VS/2019/0084).

Our analysis will, in a short-term perspective, contribute to the promotion of analysis and research in industrial relations as regards information and consultation rights. Furthermore, it will raise awareness of stakeholders such as employers and social partners, employee representatives in particular, to crucial legal questions such as the scope of application of information and consultation rights.

The comparative legal research which takes into account existing best practices in the Member States, and identifies convergences and differences in the industrial relations systems in place, is going to serve as preparatory work for one of the envisaged medium-term effects. De lege lata, our research on the first and the second coordinate in particular will be a guidance for interpreting EU as well as national law. Thus, we provide crucial knowledge for the judiciary, in particular with a view to adapting the legislative framework de lege lata to new forms of work and with a view to guaranteeing the application of the fundamental right to information and consultation also in a cross-border context. Another medium-term effect the project has it that we create incentive for research on OSH-law as well as on the impact of digitized workplace representation rules on gender equality and accommodating needs of disabled persons.

In the long-term, de lege ferenda-perspective, the knowledge created by DIGILARE (101126503) could function as an essential basis for adapting Directive 2002/14/EC to new forms of work and the digitized world of work, and thus for future upward convergence. Best practices from the different Member States as regards introduction of AI systems could also pave the way for implementation of future Directive on improving working conditions in platform work, once it is approved. Another long-term effect the project aims to create is reinforcement of industrial relations, in particular by the envisaged widening of the scope of application of information and consultation rights, as well as by the envisaged promotion of digitized workplace representation rules (e.g. digital voting rights), which could in the end lead to higher representation rates. Consequently, in the long-term perspective, the project contributes to the implementation of the European Pillar of Social Rights (No. 8). Finally, we will achieve impact through the collaboration, networking and mobility of researchers, the involvement of stakeholders in our research, and through our dissemination strategy, with a view to contributing to adapting the social rulebook de lege lata and de lege ferenda to an ever-increasing digital and transnational world of work.

A first target group of our research is composed by social partners, both national and European. They will be associated to the different actions of the project (both in the preparation and in the implementation of the seminars and the final conference). The main goal will be to incorporate their experience in actual practices of information, consultation and co-determination, in order to identify problems and to check the proposed theoretical approaches. A second group is made of lawyers with a specialization in labour law, coming from universities and legal practice. The target, indeed, will have a wider range, pointing to the field of Industrial Relations, including thus economists and sociologists also. Legal practitioners, such as judges and barristers, could also be interested in the results, as far as the interpretation of existing rules on information and consultation can lead to litigations or disputes, in a cross-border context in particular. Another target group are legislators at EU and national level, not least with regard to potential amendments to Directive 2002/14/EC with a view to adapting it to new forms of work. Yet, even if such amendments are rather unrealistic in the short-term perspective, the proposed project’s de lege lata outcomes are going to serve practicing lawyer, including judges at national and EU-level, as guidance to interpret national as well as EU-law.

Goals

Our project will contribute to a better understanding of industrial relations at workplace level in the Member States, in particular with a view to cross-border telework and cross-border crowdwork. We will provide a nuanced comparative legal analysis for the future debates on how to adapt social dialogue in order to respond to new forms of work, to digitalisation and to a transition to a climate neutral economy. Based on the rich research findings, we will be able to identify protections gaps, map the field for possible future legislation, in particular potential adaptations to Directive 2002/14/EC, as well as for potential future litigation in front national courts as well as in front of the Court of Justice.

Thereby, we will go beyond the current state of the art in relation to information and consultation rights, as most research

• is limited to standard workers,
• does not deal with cross-border situations from a comparative point of view,
• has not yet engaged in the rather recent development of digitizing participation rights (in the sense of digital voting rights, e.g.) and
• does not focus on protecting human dignity when introducing digital workplace solutions, including surveillance tools or AI systems, from a comparative view, albeit this might be crucial for transnationally acting undertaking implementing the same system in all companies in all Member States (see, in detail, also with a view to the call’s objectives, section 1.2.).

With a view to workplace democracy as an important basis for creating a more democratic society, and thus with a view to actually reinforcing industrial relations, and therefore triggering change, the stakes are high. We show how de lege lata and/or de lege ferenda more persons could actually be involved in workplace democracy, because one of the expected outcomes of our research is that economically-dependent self-employed have been widely excluded from information and consultation practices up until now. Furthermore, we expect from the comparative research carried out under coordinate B that loopholes exist because no Member State’s legislation seems applicable in case of cross-border tele- or crowdwork.

Regarding the transition to a climate neutral economy, we actually aim at triggering innovation not only at social partner, but also at legislative level. By showing in the comparative analysis what some Member States and social partner organisations have actually already achieved in this respect, we aim at triggering stakeholders in other Member States to follow these best practice examples.

Furthermore, the proposed project will promote mutual learning and exchange of social partners, in particular employee representatives, as well as employers at company/undertaking level. Our ambitious goal is that after participating in the project, stakeholders will actually take the floor and engage in better regulating of employers’ and employees’ interests with regard to digital surveillance and AI systems, in particular in those countries where worker participation at company level has played a minor role only up until now (e.g. Ireland, Poland). Our aspirations as regards triggering change with a view to better accommodating the needs of certain societal groups are even higher:

Since women in particular are still underrepresented in employee representative bodies, measures need to be taken in order to promote gender equality. Our legal analysis serves as starting point: Perhaps, by introducing digital representation rights, it could be made easier for women – and for caretakers generally speaking – as well as for disabled persons to engage in employee representation. We hope to trigger further research, in particular from a social sciences point of view, e.g. on whether any impact could be or actually is created by digitalized representation rights in the Member States.

Third countries, such as Turkey, would benefit from the proposed research insofar as traditional trade unionism puts forward wage issues on the bargaining table and veil potential risks accommodating digitalisation. The need for cultural change and legislative reform is apparent. Initial comparative analysis shows that the decent work agenda and digitalisation could provide an opportunity to reform the existing model, establish representation rights and extend bargaining rights through legislative action, which meets the challenges of digital and sustainable work life. With respect to algorithmic decision-making, in Turkey employers have managerial prerogatives to implement such tools in the workplace, and their impacts on workers have not found a place on the agenda of unions yet. Any protective mechanisms have, up until now, been shaped by courts upon individual complaints. Therefore, there is a clear need to have legislative principles as well as mechanisms in place, which involve workers and unions in the implementation of digital workplace solutions, and in particular AI systems at work.

Schedule

The project is structured around four meetings

The first of the meetings is a steering committee, which will take place in Madrid three months after the start of the action, in the facilities of the UC3M.

The second event of the project is a Transnational Seminar, that will take place in Vienna at the UVienna premises for two days, nine months after the start of the project.

The third event of the project is a Transnational Seminar, that will take place in Budapest, at the premises of the Pázmány Peter Catholic University, for two days, fifteen months after the start of the project.

The fourth and final event will be the final Conference in Santiago de Compostela, in the facilities of the USC, in the twenty-first month of the project. Here, over two days, the results of the research carried out during the project will be presented, as a general synthesis and discussed with stakeholders, including social partners, representatives of Ministries of Labour and academics from all project member states.

Precise dates and modalities of participation will be announced.