10.6092/issn.1561-8048/13357
Digital transformation of work is an unstoppable phenomenon, and a “multifaceted topic”. Platform and remote work and data manipulation are only aspects of the whole picture, creating new challenges for public stakeholders. The more the world of work changes, the more industrial relations are stimulated to cope with it. With this aim, European social partners have responded to the impact of digitalization on the labour market, with the adoption of the “European framework agreement on digitalization” (EFAD). Although the EFAD is fully in line with the European involvement in granting rights to workers involved in the digital transformation of the labour market, many questions are still on the table. There are many concerns about the integration of the EFAD within the mosaic of actions at EU level with regards to the digitalisation and automation at the workplace. A difficult integration that raises doubts about the effective implementation of the EFAD at national level and even about the role and the maneuvering space granted to European Social Partners in this field.
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Leonardo Battista
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Italian Labour Law e-Journal
Artificial Intelligence Act
The European Framework Agreement on Digitalisation: a tough coexistence within the EU mosaic of actions
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Leonardo Battista
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The European Framework Agreement on Digitalisation: a tough coexistence within the EU mosaic of actions
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The European Framework Agreement on Digitalisation: a tough                          Italian Labour Law e-Journal
coexistence within the EU mosaic of actions                                                 Issue 1, Vol. 14 (2021)
Leonardo Battista                                                                                 ISSN 1561-8048
Leonardo.battista2@unibo.it                                        https://doi.org/10.6092/issn.1561-8048/13357




          The European Framework Agreement on
       Digitalisation: a tough coexistence within the EU
                        mosaic of actions
                                          Leonardo Battista



 1. Preliminary remarks. 2. The autonomous nature of the agreement. 3. Reading the four
 challenges in terms of disruptiveness. 4. 4. The EFAD and the EU mosaic of action. 4.1. The
 EFAD and the European Parliament Resolution of 21 January 2021 with recommendations
 to the Commission on the right to disconnect: an own goal? 4.2. 4.2 The EFAD and the
 Artificial Intelligence Act: no space for social dialogue? 5. Final remarks.



                                                    Abstract

     Digital transformation of work is an unstoppable phenomenon, and a “multifaceted topic”.
     Platform and remote work and data manipulation are only aspects of the whole picture, creating
     new challenges for public stakeholders. The more the world of work changes, the more industrial
     relations are stimulated to cope with it. With this aim, European social partners have responded
     to the impact of Digitalisation on the labour market, with the adoption of the “European
     framework agreement on Digitalisation” (EFAD). Although the EFAD is fully in line with the
     European involvement in granting rights to workers involved in the digital transformation of
     the labour market, many questions are still on the table. There are many concerns about the
     integration of the EFAD within the mosaic of actions at EU level with regards to the
     digitalisation and automation at the workplace. A difficult integration that raises doubts about
     the effective implementation of the EFAD at national level and even about the role and the
     maneuvering space granted to European Social Partners in this field.

     Keywords: European Social Partners; Social Dialogue; Digitalisation; Artificial Intelligence;
     Right to Disconnect; Skills; Artificial Intelligence Act.



 1. Preliminary remarks.
     The technological evolution is an unstoppable phenomenon capable of generating
 irreversible changes on several aspects of people’s life. While new technologies and devices
 influence our routine and daily behaviors, this digitalisation has an increasing impact in the


 
  Post-doc researcher at the University of Bologna. This article has been submitted to a double-blind peer review
 process. This essay has been written in the context of PRIN 2017 EC9CPX «Dis/Connection: Lavoro e Diritti nella
 Rivoluzione di Internet».
 Leonardo Battista                                                      Italian Labour Law e-Journal
                                                                               Issue 1, Vol. 14 (2021)
                                                                               Section: Miscellaneous




world of work. The development of mobile communications, the possibility of performing
work anywhere and anytime and the expansion of the gig economy brought some benefits
for employers, workers and jobseekers in terms of job opportunities; being crucial in
softening the impact of Covid-19 pandemic.
    At the same time, this “digital transition” also comes with risks and challenges for
workers, enterprises, and stakeholders. Pitfalls such as the obsolescence of specific jobs, the
implications on worker’s dignity and privacy related to the use of technology in the
employment relationship, the data manipulation, and the impact on work-life balance for
remote workers are some of the worrying facets related to the digitalisation.
    The more the world of work changes, the more industrial relations are stimulated to cope
with it. The intervention of social partners in this mutable context could be beneficial for
workers and employers to positively support this digital transition, enhancing the successful
integration of digital technologies and softening its consequences.
    With this aim, the European social partners have responded to the challenges deriving
from this ongoing transformation of work through the adoption of the “European Framework
agreement on Digitalisation” ((hereinafter referred as EFAD), addressing an issue that have been
on their agenda for decades, both on employers and employees’ sides. According to them,
the EFAD should become the basis for joint activities to adapt to the fast-paced evolution
brought by digitalisation and automatisation of work.
    The EFAD is an autonomous cross-industry agreement concluded under art. 155 of the
Treaty on the Functioning of the European Union (TFEU), not stemming from a legislative
initiative by the European Commission nor requiring any implementation by the Council. It
has the purpose of being an agenda to guide national social partners in the field of digital
transformation of work.
    Alongside this aim, it has the merit of highlighting two urgent needs. Firstly, the EFAD
stated the need to intercept the challenges arose from the digital transformation of work and,
secondly, to “lift the regulatory floor” thanks to the involvement of worker’s representatives
directly in the phases of design and before the implementation of digital technologies in the
work context.
    The essay will briefly contextualize the adoption of the EFAD, looking at its legal nature
and its guiding principles. Then, the relationship between industrial relations and
digitalisation will be analyzed from the challenges’ side, evaluating the issues brought by this
digital evolution in the world of work and the measures proposed in the EFAD by the
European social partners to intercept this evolution. The analysis will then focus on the
integration of the EFAD within the recent mosaic of actions at EU level in the field of
digitalisation and automation at the workplace, evaluating the contrasts among the
Framework Agreement and the recent initiatives in the field of right to disconnect and
Artificial Intelligence, trying to assess whether the EFAD is on the pace of the institutional
debate on the digital transition.




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2. The autonomous nature of the agreement: context and purposes.

    Digitalisation has become one of the most important catchwords in the debate about the
evolution and modernization of the world of work. For enterprises and workers this
“megatrend”1 can be both an opportunity and a threat.
    From one side, it creates new possibilities in terms of economic advantages for employers
related to the innovation in organizational processes and production. The more the job is
digital, the more the work can be performed anywhere, granting savings for employers in
term of utilities and providing higher degree of autonomy and flexibility for individual
workers. From a digitalized labour market can also emerge new jobs opportunities, with
innovative tasks or with re-engineered ones. A clear reference is the phenomenon of
platform workers, where the traditional activities performed in the past by the “pony-express”
is now offered by the rider through an algorithm that even sets the route and the timing for
the delivery.
    On the other side, new technologies also mean new issues for workers and trade unions.
Digital devices can have a pervasive control over the worker, granting access to his position2
and to his activity during the entire working time and even beyond. Work-life boundaries are
more and more blurred due to the constant availability of the worker at the phone or via e-
mail. In fact, it has become harder to disconnect from the job, to avoid that the work could
bleed into the employee’s personal time3: a situation that was even exacerbated due to the
pandemic. Similarly, the employer has access to a huge amount of data collected by digital
devices, such as computers, internal mail providers, electronic badges, wearables4 or deriving
from the smartphone’s gps.5 These data should be manipulated and processed in a
transparent way, according to rules and procedures stated by the General Data Protection
Regulation (GDRP), avoiding any misuse or discrimination based on them. Moreover, these
data should not be used in a manner incompatible with the original purpose or in breach of
the dignity and privacy of the worker. The misuse of data becomes quite worrying also in
terms of automated decision on hiring procedures. Peculiar is the Amazon’s case, where the
company decided to abandon the algorithmic hiring tool built to ensure the application of
artificial intelligence to the recruiting procedures due to a discriminatory effect on female
recruitment. The recruiting algorithm, fed with 10 years data on Amazon’s recruitment
procedures, was basing its discriminatory decision on previous human discriminating actions,

1 Potocka-Sionek N., Aloisi A., ‘Festina Lente’: The ILO and EU agendas on the digital transformation of work, in
International Journal of Comparative Labour Law and Industrial Relations, 1, vol. 37, 2021, 5.
2 Aloisi A., Gramano E., Artificial Intelligence is Watching You at Work: Digital Surveillance, Employee Monitoring, and

Regulatory Issues in the EU Context, in Comparative Labour Law & Policy Journal, 2019, 1, 41, 95.
3 Secunda P. M., The employee right to disconnect, in Notre Dame Journal of International & Comparative Law, 1, vol. 19,

1-39.
4 Ingrao A., Il braccialetto elettronico tra privacy e sicurezza del lavoratore, in Diritto delle Relazioni Industriali, 3, 2019, 895-

927.
5 Thanks to these wearables’ devices, the employer could even know the speed of the workers in its premises,

the name of the people with whom they interact, could track their actions and break during the job. All these
data are automatically processed and could pave the way for an undesirable and pervasive monitoring at the
workplace. Moreover, the employer could manage their workers and base some decisions on these data, for
dismissals, promotions, retentions or for supervising them and evaluate their performances. See, De Stefano V.,
Taes S., Algorithmic management and collective bargaining, in Etui Foresight Brief, 2021, 1-16.

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where in the IT sector most of the female application were rejected. Due to this bias, the
machine-learning procedure discriminated female applications and proposed to the following
hiring step only males. A scenario that is truly worrying if we consider that the phenomenon
of algorithmic management, namely the management based on data or on automatized
decision, is constantly growing in many aspects of our life, especially with reference to the
labour market.
    In this scenario, the European Social Partners, after years of slogans and initiatives,6
started to discuss about the digitalisation and artificial intelligence issue. They were convinced
that the rapid development of artificial intelligence and its impact on workers’ life should be
governed and anticipated through social partners initiatives, from the European to the
national company level, alongside with the legislative intervention.
    In this light should be understood the adoption of the European Framework Agreement
on Digitalisation (hereinafter referred as EFAD) concluded on the 22 of June 2020 by the
European cross-sectoral social partners and applied to the whole of the EU/EEA. It has
been concluded by the European Trade Union Confederation (ETUC) on behalf of workers
and BusinessEurope, CEEP (now SGI Europe) and SMEunited for employers7.
    The EFAD is an autonomous cross-industry agreement8 concluded under article 155
TFEU9 and due to its pure collective nature - without any statutory intervention nor
institutional consultation - could be classified as a “Self-Initiated and Self-Implemented
Collective Agreement” (Sisica)10. This classification is supported by the fact that the contents
of this autonomous agreement are more procedural and operational rather than normative,
so a statutory proclamation was not foregone since the beginning. The operational nature,
instead, could be derived from the expected implementation of the EFAD at national level.
In the last part of the document, namely “Implementation and Follow-up”, it is clearly stated that
this agreement “should encourage the adoption of measures that are sustainable and that their effectiveness
is valuated by the social partners at the appropriate level”. Thus, the purpose of this agreement is
guiding national social partners towards this aim rather than setting common rules of general
application. The reason for this strategy lays in the shareable evaluation that although the


6  ETUC, The key to fair digitalisation, available at the following link: https://www.etuc.org/en/key-fair-
digitalisation
7 See Senatori I., The European Framework Agreement on Digitalisation: a Whiter Shade of Pale, in Italian Labour Law e-

Journal, 2, vol. 13, 2021, 159-175; Rota A., Sull’Accordo Quadro europeo in tema di digitalizzazione del lavoro, in Labour
& Law Issues, 2, vol. 6, C.23-C.48; Peruzzi M., Il dialogo sociale europeo di fronte alle sfide della digitalizzazione, in Diritto
delle Relazioni Industriali, 4, 2020, 1213-1219.
8 Similarly, to previous European Framework Agreements, such as the ones on Telework (2002), Work-related

stress (2004) and Inclusive Labour Market (2010), the EFAD should be implemented at national level according
to the domestic normative procedures and/or industrial relations praxis. For an in-depth analysis of soft-law
tools within the social dialogue, see Peruzzi M., L’autonomia nel dialogo sociale europeo, Il Mulino, Bologna, 2011.
9 Lo Faro A., Art. 154, 155 TFEU, in Ales E, Bell M., Deinert O., Robin-Oliver S. (eds.), International and

European Labour Law. Article-by-Article Commentary, Nomos Verlagsgesellschaft, Baden Baden, 2018, 165-176.
10 See, Senatori I, nt. (5), 160. The Sisica acronym derives from the Smismans’ studies about the different social

dialogue’s outputs, with or without the institutional intervention. The four possible combinations proposed by
Smismans could be classified as follows: Cococa (Commission-initiated and Council-implemented collective
agreements), Sicoca (Self-initiated and Council-implemented collective agreements), Cosica (Commission-
initiated and Self-implemented collective agreements), Sisica (self-initiated and self-Implemented collective
agreements). See Smismans S., The European Social Dialogue in the Shadow of Hierarchy, in Journal of Public Policy, 28,
2008, 161.

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challenges deriving from the digital transformation and the measures proposed in the
document are identical for every Country, the process of implementation should be adjusted
and adapted to the different industrial relations systems. There are many factors that could
affect the success or the failure of measures and procedures, from the different collective
bargaining coverage, the divergent propension to innovation and digitalisation among
enterprises and within sectors or the theme of national technological infrastructure that could
impact on the adoption of appropriate actions. Thus, this “tailoring” strategy, as has been
called in the EFAD in reference to the adaptability of technologies at the workplace, is easier
to achieve through the “soft methodological guidance”11 without any strict regulation that
could hinder its success.
    About its scope of application, the EFAD covers all employers and workers in the public
and private sectors, including also those performing an activity using online platform and
only in presence of an existing employment relationship, as defined nationally. However, this
scope of application raises some concerns. Firstly, it seems quite peculiar that in an agreement
dedicated to digitalisation and AI there is a limited attention paid to the well-known and
debated platform economy. In fact, in the entire document there is only a single reference to
platforms. It is true that the EFAD aims to have a transversal impact in the different issues
raised by the ongoing digital transformation of work, but this limited attention screeches
with the several initiatives supported by ETUC to protect platform workers. Secondly, it is
not clear if the concept of “worker” used in this agreement takes into consideration or not
the relevant elaboration of the CJEU, because in the EFAD there’s much more interest in
defining the “enterprises” concept, namely all the organizations from private to public sector,
rather than defining the notion of employee. As said by other authors, this strategy adopted
by the European Social Partners seems at odds with the recent EU provisions that make a
clear reference to the CJEU’s cases when dealing with the concept of “worker”.12
    For what concerns the contents of the EFAD, the agreement is intended to achieve a
positive integration of digital technologies at the workplace preventing and minimizing the
risks for workers and employers. To reach these twofold and interconnected objectives, the
European Social Partners prescribed a methodological approach, based on the partnership
between workers and enterprises, to assess the effects of digitalisation on the work
organization and on its four implicit facets: work content skills, working conditions related
to the employment contract and work-life balance, work relations and environmental
working conditions with a clear reference to health and safety at the workplace.
    Starting from these different facets of the work organization, the EFAD introduces a
circular process in which the worker’s representatives could engage the management and,
thanks to proper trainings and information, influence the decision-making process related to
the digital transition. This first stage of the process concerns a joint study of the issues related
to the digitalisation with the aim of increasing the trust regarding its potential. Secondly, there
will be a mapping activity of risks driven by the digitalisation alongside with the potential


11Senatori I, nt. (5), 160.
12Senatori I, nt. (5), 166; Menegatti E., The Evolving Concept of “worker” in EU Law, in Italian Labour Law e-Journal,
2019, 1, vol. 12, 71-83; Battista L., L’evoluzione del concetto di lavoratore nel diritto dell’Unione Europea, in Argomenti di
Diritto del Lavoro, 3, 2021, 624-642.

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benefits, and thirdly the adoption of strategies based on the previous evaluations. The last
stage is the most impacting one with the adoption of concrete measures and actions, taking
into consideration the possibility of a prior steered and controlled test, the timing, the
implementation procedures, the resources to finance them and the responsibilities for the
possible positive or negative consequences (shared among worker’s representatives and
management). All of these stages are, obviously, accompanied by a regular monitoring, from
both parties, that could grant a possible intervention to modify some adopted measures or,
or as a follow-up, to test the effectiveness of the actions and improve/remove them.
   Alongside with the circular implementation process, the innovative part of the EFAD is
the concrete indication of four issues or challenges raised by digitalisation that, according to
European Social Partners, deserve to be rapidly intercepted. The four challenges are deeply
connected to the evaluation made by the European Social Partners that the digital
transformation of work is a “multifaceted topic”, with different effects in several facets of the
work. The four challenges, that are the nucleus of the EFAD, deal with several topics related
to the digital transformation of work, namely “Digital skills and securing employment”,
“Modalities of connecting and disconnecting”, “Artificial intelligence (AI) and guaranteeing
the human in control principle” and “Respect of human dignity and surveillance”.


3. Reading the four challenges in terms of disruptiveness.

   The four challenges highlighted by the signatories have a horizontal reading key that could
help in understanding the necessity to manage the digitalisation and the disruptive effect that
this ongoing phenomenon can have on different perspective of the world of work. Analysing
the issues brought by the digitalisation in term of “disruptiveness” could have the beneficial
effect of never undermining or underestimating the risks, trying to introduce industrial
relations measures, strategies and actions addressed to convert them into opportunities.
   The first challenge is named “Digital skills and securing employment” and deals with the
disruptive effect of the digitalisation with reference to the ongoing obsolescence of some
traditional jobs, processes or skills. It is obvious that the digital conversion of tasks and
process within enterprises, even in SMEs, could bring to the disappearance of some tasks
and jobs, or could decrease the need for some competencies that in the past were pivotal in
the company.
   To counteract it, the EFAD shares the same path suggested by EU’s initiatives towards a
“Just transition”13 to Digitalisation and Artificial Intelligence, such as the White Paper on
Artificial Intelligence - A European approach to excellence and trust.14 The EFAD strongly promotes
the need to invest in re-skilling and up-skilling workers to intercept and anticipate the digital
transformation in the world of work and to secure a long-term employment, filling



13 Available link: https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal/finance-and-
green-deal/just-transition-mechanism_en
14 European Commission, White Paper on Artificial Intelligence - A European approach to excellence and trust,

COM(2020) 65 final.

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competence shortages15. In doing so, the EFAD stresses the commitment and sharing of
interests between employers and workers. From the employer’ side there should be a
commitment to “use digital technology positively, seeking to improve innovation and productivity, for the
long-term health of enterprises, and for the employment security of the workforce and for better working
conditions”; while workers should commit themselves to support the growth and success of
enterprises, recognizing the potential role of digital technology, in terms of competitiveness
in the market and opportunity to grant longer employment security. However, both
commitments are strictly bond to the introduction of new skills (digital, technological or
specialised) and new automated processes at the workplace, with the consequent
organization of adequate training measures, at every level (national, sectorial and company
one).
    The adequate training should contribute to upskill and reskill workers, combining
technical and sector specific skills alongside with transversal soft-skills or problem-solving
capacity, seen both as key elements in approaching to a more automated workplace. A prior
evaluation of the workers’ existing skills made by the employer with the support of trade
unions is relevant to understand the appropriate training schemes and to foster ad hoc
investments to address specific lacks in terms of skills.
    The EFAD considers the different normative and industrial relations praxis, among
Countries and sectors, with reference to the access and arrangement of training and the
possible and divergent way of financing it through sectorial/national/company funds. At the
same time, the EFAD leaves the possibility for in-house or external training, but it’s precise
when stresses the arrangement of an appropriate compensation if the trainings take place
outside the working time.
    All the different measures proposed in the EFAD seems to be fully in line with most of
the actions already in force in many European Countries, both at normative and collective
level. At the same time, the expected results are shareable. The signatories are truly convinced
that retraining and upskilling could be translated into a major adaptation of these workers to
new or redesigned jobs within the enterprise. This adaptation has a positive effect in securing
employment and allows workers to remain within the enterprise in a new role or modifying
his/her tasks, while employers could innovate their enterprises and being competitive.
Referring to the circular process at the basis of the EFAD, this adaptation brought by
appropriate training measures impacts on the work organization, granting a twofold
consequence, seen in the avoidance/reduction of job losses and the improvement of
competencies and skills among the workforce.
    The second issue refers to the modalities of connecting and disconnecting of workers
during their working activity. The possibility of performing work anywhere and anytime
obviously created many opportunities for workers; a major flexibility is just part of the
benefits carried by the new technologies and digital devices. At the same time, European

15 A  strong focus on skills is one of the principles enshrined in the White Paper on Artificial Intelligence - A
European approach to excellence and trust. In fact, “developing the skills necessary to work in AI and upskilling
the workforce to become fit for AI-led transformation” will be a priority for European Institutions in the
following years. A target that could not be reached without the involvement of social partners as a crucial factor
in ensuring a “human centred approach to AI at work”. See, European Commission, White Paper on Artificial
Intelligence - A European approach to excellence and trust, COM(2020) 65 final, 7-8.

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Social Partners are aware of the risks and challenges that derive from an uncontrolled
flexibilization of work, that brought to a more and more blurred line between working and
personal time.
    The phenomenon of “always connected and available” workers is highly disruptive in
respect to their health and safety. Employers, through smartphones, e-mail and company
devices, can easily reach their employees requiring them to complete assignments, projects
and tasks even outside the working time. These behaviors are sometimes “in the language of
compulsion, while other times these messages may casually pose the question of whether the employee is available
to complete a task”16. In both cases, however, these after-work requests negatively affect the
work-life balance, impacting on workers’ health, both physically and mentally. Moreover, if
we consider the normative context, the Directive no. 88/2003 about working time has
neither an explicit reference to the possibility for employers to contact their workers beyond
the working time nor introduce any right of disconnection for them. In this blurred scenario,
we observed only a recent and quite problematic legislative initiative by the European
Parliament for the introduction of a directive on the right to disconnect17, but still the
Commission has not included any ad hoc act on its legislative agenda as will be addressed in
the paragraph 4.1.
    To decrease the disruptive impact of these modalities of connecting and disconnecting
and with the aim of anticipating future legislative interventions, the EFAD signatories
highlighted the employers’ duty “to ensure the safety and health of workers in every aspect related to the
work”, including the respect of working time. This employer’s priority should respect the
principle of prevention, with the commitment of the management for the introduction of
appropriate measures and actions to limit the “out of hours contact”. Measures that can refer
to a revision of work organization and workload, the redistribution of tasks among workers
and a regular collaboration between managers and workers’ representative on the work
processes. Moreover, the EFAD stresses the need for an appropriate monetary or break
compensation for any extra time worked18, granting the recognition of worker’s decision to
dedicate personal time to enterprises’ issues.
    However, the topic of disconnection treated in the EFAD can be criticized from many
perspectives. Firstly, there is no linkages between the ongoing initiatives at European level,
mainly from the Parliament19, and the EFAD. Moreover, there is no definition of the concept
of disconnection. This absence could be an issue for the national implementation and
adoption of tailored measures, with reference to the different meaning that this notion can
have in several sectors or with reference to the emerging and fluid phenomenon of remote

16 Secunda   P., nt. (2), 3.
17 European Parliament Resolution of 21 January 2021 with recommendations to the Commission on the
right to disconnect (2019/2181(INL), point H.
18 Peculiar is the Volkswagen case in Germany, where the employer and workers’ representatives signed a

company agreement on the use of smartphones and internal app during rest periods to protect the separation
between working and private life. See, Krause R., “Always-on”: The collapse of the Work-life separation in recent
developments, deficits and counter-strategies, in Ales E., Curzi Y, Fabbri T., Rymkevich O., Senatori I., Solinas G.,
Working in digital and smart organizations. Legal, economic and organizational perspectives on the digitalization of labour
relations, Springer, Berlin, 2018, 240.
19 On the contrary there is a clear reference in the proposal https://www.etuc.org/en/document/right-

disconnect-joint-etucetufs-letter-members-european-parliament.

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work (smart or agile work) where the boundaries between working and personal time are less
visible. Secondly, the measures proposed seem to be too general and abstract, asking for a
major commitment of the management for the reduction of workloads with respect to
workers’ representatives. We should recall the fact that not in every EU Countries there is a
trade unions’ coverage high enough to be relevant and capable of negotiating disconnecting
measures. There are Countries with a low level of coverage where instead could be easier to
reach agreements at company level rather than at the sectorial one, so a more precise
description of actions could have been beneficial for them. Thirdly, while the EFAD is very
innovative in highlighting the need for the introduction of procedures aimed at avoiding the
blaming culture for those workers refusing to be contacted outside their working time, this
principle could deserve a major attention. As briefly anticipated, the employers could
“oblige” the worker to perform tasks outside his/her working time, with the acceptance of
the latter scared for detrimental actions in case of refusal. Due to that, we observe a minor
attention paid by the EFAD, about the possible negative consequences with regard to career
advancement. At the same time, there is no reference to the high degree of gender
discrimination when the refusal come from a female worker, normally more involved in
caring responsibilities; an issue that, on the contrary, is deeply highlighted in the European
Parliament resolution of 21 January 2021 with recommendations to the Commission of the
right to disconnect.
    The third challenge refers to Artificial Intelligence (AI) and the need to guarantee and
safeguard the “human in control principle”, namely the human choice on how and whether
delegating decisions to an automated system. This challenge is the most liquid and futuristic
one. As noted by the EFAD, “most enterprises in Europe are still in the early stages of using new AI-
based possibilities to optimize work processes or create new business”. However, due to the possibility
of anticipating the disruptive impact of AI on the world of work, the European Social
Partners are convinced that it is essential to explore the options/facets/effects of using AI
and Machine Learning systems. They do not neglect that in the future the AI will optimize
labour processes or create new economic sectors, but at the same time, there is the
willingness to set some guidelines and coordinates to drive the introduction of AI.
    The collaboration between management and workers’ representatives should increase the
control of humans over machines, limiting the possible risks carried out by an uncontrolled
use of AI at the workplace. This jointly collaboration should consider different potential
risks, from the opaque assessment of responsibilities related to automated decisions over
workers, such as the case of dismissals linked to an automated performance evaluation, or
any other kinds of discrimination, already experienced in Human Resources Management20.
    The last challenge faced by the EFAD is strictly connected with the previous one. It
concerns the need to guarantee the respect of human dignity, minimizing risks for a non-
transparent use of data. The exponential increase of control mechanisms and technological
devices capable of collecting data, even in absence of a clear consent by the worker, have a
disruptive effect on his/her personal sphere. Workers could distrust the employer if they
notice a misuse of data that could impact on their work or some managerial decisions, such

20 Kullmann M., Discriminating Job Applicants Through Algorithmic Decision-Making, in SSRN at the following link:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373533, 2019.

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as timesheets or directives, driven by data collected without the workers’ consents. The
EFAD aims at stressing the need for the introduction of precise and transparent rule for data
management, recalling the art. 88 of the General Data Protection Regulation (GDPR) no.
679/2016. This provision gives the possibility for collective agreements to set specific and
more stringent rules to assure data protection in the workplace and even outside. The GDPR
focuses also on data minimization limiting the risk of intrusive monitoring by the employer;
a situation that could deteriorate working conditions and well-being of workers.
    In the same vein, the EFAD provides some guidelines or measures to be considered by
national social partners and implemented at the appropriate level, such as their control over
the purpose for the collection of data that should be concrete, transparent, ethical and non-
exceeding. The fourth principle could be seen as the poorest in terms of contents and
proposed measures. In fact, the presence of the GDPR with its national implementation
already created a normative scheme capable of dealing with the impact of digitalisation in the
field of data management. However, another reason lays in the abstractness of the data itself
that should be added to the difficulty for workers’ representatives to control the use made
by the employer; a problem that could be counteracted only with specific and tailored training
on data management.


4. The EFAD and the EU mosaic of action.

    All the issues proposed by the EFAD are strictly connected with the mosaic of
interventions that the European Union launched recently. However, while some proposals
included in the EFAD are in clear continuity with EU actions, there are some concerns about
the relationship with two recent initiatives at supranational level, namely the European
Parliament Resolution of 21 January 2021 with recommendations to the Commission on the right to
disconnect21 and the Proposal for a Regulation of the European Parliament and of the Council laying down
harmonised rules on Artificial intelligence and amending certain Union legislative acts (hereinafter
Artificial Intelligence Act).22
    Starting from the conjunction points with the EU actions, it is possible to highlight that
the aim of improving digital skills among workers is deeply bond within the framework of
actions enshrined in the initiatives towards a “Just Transition” to a greener and digitalized
economy. Initiatives like the “Digital Skills and Jobs Coalition” or the “European Skills Agenda
for Sustainable Competitiveness, Social Fairness and Resilience” have already paved the way for the
implementation of measures devoted to support reskilling of workers or vocational training
programs to intercept new jobs and competencies, with the final aim of reducing
obsolescence and securing employment in the long run.
    Being specifically dedicated to digitalisation, the EFAD has the merit of highlighting the
positive effect driven by the intervention of the national social partners, as support to

21 European Parliament Resolution of 21 January 2021 with recommendations to the Commission on the right
to disconnect (2019/2181(INL).
22 Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on

Artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts (COM/2021/206
final).

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institutional programs or as main actors, in governing the upskilling and reskilling process
towards a more digital labour market. In the same vein, it is possible to recall the “Pact for
Skills” and the relative Charter where the social dialogue was seen as an important contributor
for the success of training programs.23 So even if it not so innovative in terms of measures
proposed for skills improvement, the EFAD shares the same path indicated by EU
institution for a more skilled and reactive labour market, ready to positively respond to future
challenges. Moreover, the possibility to introduce tailored actions at the workplace could be
a key for more structured projects, based on real workers’ needs and adapted to the relevant
technologies applied in the company. In this way, exploiting social partners guidance at the
appropriate level, it should be possible to reach workers that could be negatively affected by
digital transition and to intercept specific needs for specific sectors, adapting the upskilling
and reskilling directly to the competencies involved.
   A similar conjunction point comes from the linkages, expressed in the fourth issues about
respect of human dignity and surveillance, between EFAD and the GDPR. As said before,
the presence of GDPR could hinder some new actions taken at company level by trade
unions and employers, however, relaunching the topic of data management and privacy at
the workplace, after four years from the adoption of the Regulation, could be beneficial. In
fact, the EFAD stresses the principles proclaimed by the GDPR, such as the minimization
of data collection or the transparency and, recalling the art. 88 GDPR, reiterated the
possibility to set more stringent rules in this context through collective agreements. Due to
that, it is straightforward to recognize a pivotal role for workers’ representatives in setting
and adopting national or industrial policies with regards to privacy and data management.
   Another convergent point it’s the measure regarding the possibility for trade unions to
access to data, addressing issues to their use and requesting information about the different
stages of manipulation. A measure that has been introduced and suggested to national social
partners after a controversial situation related to the misuse of GDPR, specifically with
regards to art. 6 point 1, that ETUC strongly contested in recent years24. As stressed in 2020,
the “GDPR laws were put in place to protect people from the power of corporations but
now corporations are misusing them to protect themselves from people power”25 and from
the intervention of trade unions. As reported by several ETUC affiliates, some companies
and even public administrations hindered information and documentation to workers’
representative due to the GDPR and the wrong conception that it was not allowing the
sharing of information to trade unions; an action that seems to be in breach of the European
legislator’s willingness to grant a transparent access to data. A situation that could be avoided
adopting measures at national level as those reported in the bullet points regarding the fourth
issue, granting the access for trade unionist and digital tools to “fulfil their duties in a digital era”.
   For what concerns other issues, such as modalities of disconnection or the Artificial
Intelligence, the EFAD has less conjunction points with the recent initiatives at EU level. As
reported at the beginning of the paragraph, many concerns regard the relationship of the
EFAD with the European Parliament Resolution on the right to disconnect and the Proposal

23 https://ec.europa.eu/social/main.jsp?catId=1517&langId=en
24 https://www.etuc.org/en/pressrelease/gdpr-being-misused-employers-hinder-trade-unions
25 Ibid.



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for an Artificial Intelligence Act. Even if have they have a different legal nature and are
referred to two separate topics, both initiatives raise doubts about the EFAD, creating some
loopholes in its implementation or in the possibility to achieve some effective results.


4.1. The EFAD and the European Parliament Resolution of 21 January 2021 with
recommendations to the Commission on the right to disconnect: an own goal?

    Adopted by the European Parliament (EP) at the beginning of 2021 - exactly 6 months
after the EFAD - the Resolution regarding recommendations to the Commission on the
right to disconnect seems to create more problems in this context than solutions. In fact,
looking at the Preamble there is a clear connection between the aims of the EP Resolution
and the EFAD, with the latter recalled by the former several times. Both consider the
digitalisation and the use of technological devices as a possible threat for workers with
reference to the working time regulation. They share the conviction that the “always online
and always connected” culture can have a detrimental effect on worker’s fundamental rights
and fair working conditions, with an impact on workers’ health and safety and limitation to
the work-life balance. As stressed in the Resolution’s Preamble, working beyond working
time has a disproportionate impact on workers with caring responsibilities, who tend to be
women, even leading to their exclusion from the labour market. Moreover, both acts are
aware that the current working time directive 2003/88/CE does not consider the
disconnection issue, and, except the rest period rules (quite flexible), there are no provisions
limiting any employer’s call on duty beyond working time.
    To cope with this phenomenon and recognizing that the “right to disconnect is a fundamental
right which is an inseparable part of the new working patterns in the digital area”,26 the European
Parliament, through the Resolution, recommended the European Commission’s intervention
to submit “a proposal for a Union directive on minimum standards and conditions to ensure that workers
are able to exercise effectively their right to disconnect and to regulate the use of existing and new digital tools
for work purposes, whilst taking into consideration the European Social Partners Framework Agreement on
Digitalisation, which includes arrangements for connecting and disconnecting”.27 A directive that could
be adopted on the basis of point (b) of art. 152 (1) 2 TFEU and in conjunction with art. 153
(1), (a), (b), (c) TFEU, as proposed by the European Parliament.
    As expected, there is coherency between the two acts, however, the European Parliament
Resolution imposed a three-years stoppage for the European Commission to take any
legislative action in the field of disconnection. This three-year delay has been introduced by
the European Parliament in the 13th point of the Resolution recalling that “the Framework
Agreement [on Digitalisation] provides for the social partners to take implementation measures within the
next three years and that a legislative proposal before the end of that implementation period would disregard
the role of social partners laid down in the TFEU”.28

26 European Parliament Resolution of 21 January 2021 with recommendations to the Commission on the right
to disconnect (2019/2181(INL), point H.
27 European Parliament Resolution of 21 January 2021 with recommendations to the Commission on the right

to disconnect (2019/2181(INL), point 13.
28 Ibid.



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    This provision seems to be problematic for several legal and political reasons.
    Firstly, it has been highly contested by ETUC because this delay from any intervention
has no linkages with the art. 155 TFEU, being, instead an “erroneous interpretation of the
Treaty provisions linked to social dialogue”29. In fact, according to the 13th point of the
Preamble, the European Commission should restrain from proposing any legislation on this
issue in early course, leaving the floor to the EFAD for the implementation at national level
of measures on the right to disconnect. This amendment, added to the first draft of the
Resolution, could be considered exaggerated because, as seen in the previous paragraphs, the
EFAD is only a “blueprint for negotiation”30 at national, industry or company level about
the possible measures that could be introduced to grant disconnection rights to workers. The
EFAD has no normative role neither prescriptive but should be intended only as a guiding
tool for national social partners. Thus, proposing a limitation to EC to regulate the right to
disconnect at EU level based on the presence of the EFAD is detrimental for workers that
are experiencing problems in the field of working time and need prescriptive and binding
solutions. Moreover, the idea that the any EC intervention in this field could limit the results
of the EFAD and social dialogue is only a false problem because the Framework agreement
aimed at improving the understanding of the different players involved of the opportunities
and challenges resulting from the digital transformation and relieving its impact over
workers; an aim that is coherent with any future legislative action in the field of the right to
disconnect or in other issues treated in the EFAD.
    Secondly, the 13th point of the Preamble of the EP Resolution is in contrast with a prior
European Commission’s Communication on the relationship between the Commission and
the European social partners. In the 2004 Communication “Partnership for change in an enlarged
Europe – Enhancing the contribution of European social Dialogue”, the European Commission fully
recognized the negotiating autonomy of the social partners on the topics falling within their
competences, however, if the Commission decides that any Framework agreement “does not
succeed in meeting the Community’s objectives, it will consider the possibility of putting forward, if necessary,
a proposal for a legislative act”.31 The European Commission may also exercise its right of
initiative at any point, even during the implementation period, if there are fundamental rights
or important political option at the stake; a situation that suits with the one regarding the
right to disconnect.
    Thirdly, the European Parliament went beyond its competencies based on art. 225 TFEU
requesting a three-year stoppage. According to art. 225 TFEU, the European Parliament can
request “the Commission to submit any appropriate proposal on matters on which it considers that a Union
act is required for the purpose of implementing the Treaties”, but there is no provision that gives the
possibility for requesting a delay from any legislative intervention, even in presence of
Framework Agreement. In fact, as stated by Commissioner Schmit during the debate for the
adoption of the European Parliament Resolution, the Commission is “ready to accompany and

29  ETUC, Right to disconnect - Joint ETUC/ETUFs Letter to the Members of the European Parliament,
https://www.etuc.org/en/document/right-disconnect-joint-etucetufs-letter-members-european-parliament
30 Ibid.
31 European Commission, Partnership for change in an enlarged Europe – Enhancing the contribution of European social

Dialogue, COM(2004) 557 final, 10:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52004DC0557&from=EN.

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support” social partners in their endeavor of introducing rules on the right of disconnection
through collective agreements but, at the same time, it is also ready to activate the legislative
procedure provided by art. 225 TFEU;32 so, even before the three-years delay disposed by
the Resolution.
   Even if the European Parliament Resolution has no binding power neither could hinder
the Commission from proposing any legislative procedure in the field of disconnection, it is
undoubtable that this act could create some political pressure related to the presence of this
three-years delay, that is to detriment of European workers. It also creates a “dangerous
precedent” that could “undermine the European Social Partners’ capacity to negotiate and
conclude a European autonomous agreement in the future, if the existence and
implementation of that autonomous agreement means no legislative action can be taken by
the Commission for a period of three years”33. A situation prompted by the European
Parliament Resolution adoption that, due to the several concerns raised, seems more an own
goal than a proposal for evaluating the introduction of a right to disconnect at EU level.


4.2 The EFAD and the Artificial Intelligence Act: no space for social dialogue?

    The problems of coexistence seen in the previous paragraph between the EFAD and the
European Parliament Resolution could be noticed also in the relationship with the Artificial
Intelligence Act, namely the Proposal for a Regulation on artificial intelligence.
    Released in April 2021, the Proposed Regulation aims at harmonizing rules for the use of
Artificial Intelligence systems (AI systems) in the European Union and prohibiting certain
AI practices. At the same time, it focuses on the introduction of specific requirements for
high-risk AI systems and rules for monitoring and surveillance (art. 1). All those aims apply
to several players (providers, users and distributors) and issues related to the use of AI
systems, from the controlled use of innovative services based on algorithms, the safeguards
of fundamental rights and safety and the counterbalanced mechanisms to manage the risks
through monitoring evaluation systems and human supervision over the process, as stated
by the combination of art. 22 GDPR and art. 14 of the proposed Regulation.
    This pioneering proposal, even tackling the AI from different perspectives, pays attention
to the use of Artificial Intelligence and algorithms at work or in work-related contractual
relationship, classifying this practice as a high-risk one. The Recital 36 of the Proposed
regulation stated that “AI systems used in employment, workers management and access to self-
employment, notably for the recruitment and selection of persons, for making decisions on promotion and
termination and for task allocation, monitoring or evaluation of persons in work-related contractual
relationships, should also be classified as high-risk, since those systems may appreciably impact future career
prospects and livelihoods of these persons”. This Recital is coherent with the third issue of the
EFAD, where the European Social Partners stressed the fact that the deployment of AI
systems could introduce risks for workers impacting on their lives. Due to that, both

32https://www.europarl.europa.eu/doceo/document/CRE-9-2021-01-20-ITM-015_EN.html
33ETUC, Right to disconnect - Joint ETUC/ETUFs Letter to the Members of the European Parliament,
https://www.etuc.org/en/document/right-disconnect-joint-etucetufs-letter-members-european-parliament

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highlighted the need for a risk assessment to prevent harm related to decisions based on
algorithm.
    However, the risk assessment disposed by the Proposed Regulation is questionable. In
fact, this specific safeguard, that should assess the conformity of AI systems used for
“recruitment or selection of natural persons, notably for advertising vacancies, screening or filtering
applications, evaluating candidates in the course of interviews or tests”34 or “for making decisions on
promotion and termination of work-related contractual relationships, for task allocation and for monitoring
and evaluating performance and behavior of persons in such relationships”35, will only be subject to the
self-assessment by the provider. Looking at the different experiences in majority of European
Countries, this self-assessment is highly disappointing and worrisome. We observed for
decades a specific and stringent set of norms for limiting the introduction of technological
systems at the workplace, such as video surveillance ones, with the request for the employer
to satisfy specific requirements, to respect workers’ fundamental rights and being subjected
to agreements with trade unions or national authorities. In the proposed Regulation, on the
contrary, there is no obligation for the provider (the employer) to overcome any evaluation
by worker’s representatives, leading to a possible uncontrolled use in case of an unfair
behavior or a non-transparent use of collected data. This could be detrimental for workers
that will have no safeguards against the use of AI systems at their workplace or during
important phases of their working career: recruitment, performance of the working activity
and termination of work. Three phases were normally trade unions, at different level, could
be beneficial in supporting workers and relieving them from their vulnerable position
compared to the employer. The use of AI systems without any external control will not grant
“the neutrality required for a sound evaluation of the potential implication of AI systems”36
as stated by ETUC, convinced that only a third-party evaluation would guarantee the respect
of workers’ prerogatives, limiting the adverse impact on working and personal life. Thus, this
proposed Regulation on AI risks to function more a “as a ‘ceiling’ rather than a ‘floor’ for
labour protection”37, relegating the experiences in terms of use of technologies at the
workplace and the social partners to a minor role. Moreover, the proposed Regulation and
the several Annexes do not mention neither the role of social partners in managing the
Artificial intelligence nor the EFAD, that, as seen in the previous paragraphs, dedicated
attention to this challenge and proposed measures to positively face it. An absence that could
have the effect of minimizing the role of social partners, at every level, in managing the
transition towards a more automated world of work. Instead, as stated by ETUC, the
involvement of social dialogue, through collective bargaining and participation of trade
unions and workers’ representatives, is a “key to providing the necessary support for workers


34 Annex III, point 4 (a) of the the Proposal for a Regulation of the European Parliament and of the Council
laying down harmonised rules on Artificial intelligence and amending certain Union legislative acts.
35 Ibid., point 4 (b).
36 ETUC, Commission’s proposal for a regulation on Artificial Intelligence fails to address the workplace dimension, at the

following link: https://www.etuc.org/en/document/commissions-proposal-regulation-artificial-intelligence-
fails-address-workplace-dimension
37 De Stefano V., The EU Proposed Regulation on AI: a threat to labour protection, in Regulating for Globalization, 16

April 2021, at the following link: http://regulatingforglobalization.com/2021/04/16/the-eu-proposed-
regulation-on-ai-a-threat-to-labour-protection/

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to better build and be part of the uptake and monitoring of AI used at the workplace”.38 A
support that EFAD highlighted in the third challenge on AI, suggesting proper trainings on
AI for workers’ representative and the collaboration among the different parties involved a
soft and positive introduction of automation at work.
   Thus, the absence of any reference to the EFAD leads to the idea that this Framework
Agreement is already overcame by the EU debate, limiting the space for its national
implementation and suggesting that the role for European social partners in this context is
very limited.


5. Final remarks

    The path towards the implementation of the European Framework Agreement on
Digitalisation is still on the road, even if stained by some legal and political issues. Many
national social partners are already involved in actions directly driven by the EFAD or share
with it similar objectives, trying to positively respond to digitalisation and automation
challenges. At the same time, the EFAD proposed some measures that are coherent with the
ongoing debate at EU level, like those regarding upskilling and reskilling of workers, where
the collaboration among national authorities, workers’ representatives and employers could
lead to positive results.
    However, this first year from the adoption showed the difficulty of the EFAD to perfectly
fit into two EU initiatives, such as the EP Resolution on the right to disconnect and the
proposed Regulation on Artificial Intelligence. In this mosaic, the EFAD has some
unmatched edges that could impact on its effective implementation. From one side, the EP
Resolution on the right to disconnect is posing more responsibilities on the EFAD asking
for an erroneous three-years delay to the European Commission from any legislative action
in this field. On the other side, the proposed Regulation on Artificial Intelligence is totally
disavowing the role of European Social Partners – and their Framework Agreement – in
managing the introduction at the workplace of AI systems.
    Both situations, even if different, could be tremendously dangerous for the European
Social Partners, minimizing the positive effect and results achievable through the social
dialogue at EU level and leading to a possible collapse of negotiation in the future.




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38   Ibid.

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Copyright © 2021 Leonardo Battista. This article is released under a Creative Commons
Attribution 4.0 International License




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