european works councils the legal framework

EUROPEAN WORKS COUNCILS the legal framework

the revision process

the new directive

3


the legal framework : the Maastricht Treaty 1992 (see also Amsterdam Treaty 1997)

● article 136 : the Community and the Member States aim to promote employment, improve working and living conditions, establish suitable social security provisions, ensure social dialogue and develop human resources to enable a high, sustainable level of employment and to fight exclusion

● article 137 : action in the following areas

● improvement of working environment, protection of health and safety● working conditions● social security and social welfare for workers● protection in the case of termination of the employment contract● information and consultation of workers● representation and collective defence of the interests of workers and

employers, including co-management● employment conditions for nationals of third countries● integration of people excluded from the labour market● gender equality● the fight against social exclusion● modernisation of the system of social protection

4


● article 138 : the Commission has the task of promoting consultation of social partners at Community level, facilitating their dialogue, consulting them before presenting proposals in the field of social policy and asking their opinion on the content of planned proposals

● article 139 : dialogue between the social partners at Community level may lead to contractual relations, including agreements, ratified by a Council decision

option of negotiating binding European framework agreements, officialised in the form of directives or autonomously implemented by the social partners

5


interprofessional social partners● Business Europe : 40 private employers federations of 34 countries

CEEP : European Centre of Employers and Enterprises providing Public ServicesUEAPME : European Association of Craft, Small and Medium-Sized Enterprises

● ETUC : 82 national confederations + 12 industry federations of 36 countriesEUROCADRES : European Council of Professional and Managerial StaffCEC : European Managers ConfederationFERPA : European Federation of Retired and Older People

6


European Commission

Social partners

Negotiation

Agreement No agreement

Directive

Negotiation in Member States

European Council

Back to the co-decision process Parliament +

Council of the EU

7


● 22.09.1999 : deadline for revision of EWC directive

article 15 :

“Not later than 22 September 1999 the Commission shall , in consultation with the Member States and with management and labour at European level, review its operation and, in particular examine whether the workforce size thresholds are appropriate with a view to proposing suitable amendments to the Council, where necessary.”

8


● December 1999 : ETUC resolution on the review of the directive● strengthening the right to information and consultation

○ information must be comprehensive, provided in good time, in writing○ consultation must be timely, employees’ opinion must be taken into

account in the planning phase of decisions○ when information and consultation not respected, decisions are null

and void● better working facilities for employees’ representatives

○ the right to meet local representatives○ the right to have preparatory and follow-up meetings○ the right to training○ the right to have union experts

● recognition of the role of European Industry Federations○ the right to participate in negotiations and meetings

● simpler and more efficient negotiations○ negotiating period reduced to 1 year

● lowering threshold to 500 employees● procedure for re-negotiation of agreements

9


● April 2000 : report from the Commission on transposition

● September 2001 : resolution of the European Parliament

● November 2002 : the Commission asks the European Economic and Social Committee to draw up an opinion on the directive and says it will initiate the review process in Autumn 2003

● September 2003 : divided opinion of the EESC● mentions a number of open questions

● December 2003 : ETUC strategy - the directive must be revised !● detailed list of suggestions for revision

10


● April 2004 : Commission starts 1st stage consultation on thereview of the directive

● ETUC :revision is essential and must bespeeded up

● UNICE (Business Europe) :strongly opposed to a revision, no needfor a second consultation

● November 2004 : new Commission is installed

● January 2005 : ETUC calls for relaunch of the revision

● February 2005 : Commission issues social agenda 2005-2010revision of the directive is one of the targets

EuropeanCommission

socialpartners

11


● September 2006 : divided EESC position● first integrate new member states● employers : no need to revise a well functioning directive

● May 2007 : European Parliament resolution : request for revision

● October 2007 : Commission work programme 2008● legislative proposal for revision is one of the prioritary initiatives

● December 2007 : ETUC declaration● if Business Europe has no mandate for negotiation, the Commission must

accelerate the procedure

● objective is adoption of revision before end 2008

● 5 priorities : information & consultation rights, elimination of barriers, better working tools, recognition of trade unions, resolution of uncertainties

12


● February 2008 : official start 2nd consultation letter to the social partners with a number of initiatives considered by the Commission to revise the directive

before 3.04.2008● ETUC :

ready to negotiate, but only within tight timetable and with guarantees for substantial changes

● Business Europe, UEAPME and CEEP : looking forward to open negotiations according to standard procedures

end of April 2008● ETUC : not possible to agree with

Business Europe on a closing date for the negotiations or on substantial changes, the Commission should present a revised directive early June + detailed opinion

● Business Europe : still prepared to conduct negotiations, no opinion

EuropeanCommission

socialpartners

negotiation

13


● May – June 2008● ETUC campaign

○ conference○ info-sheets○ political contacts○ trade union press○ letters sent by the EWCs

● inter-DG consultation

● 02.07.08 : the Commission publishes its proposal

negotiation

EuropeanCommission

socialpartners

no agreement

back to the co-decision process Parliament +

Council of the EU

14


● August 2008 : common advice ETUC / employers+ employers agree, definition information/consultation “proposed measures”,

trade union representatives and other experts for the SNB- without prejudice to the responsibilities of management, no simultaneity of

European and local level, 2 year transition period

● September – November 2008Employment and Social Affairs Commission of the EP(reporter Philip Bushill-Matthews)

● 16 December 2008adoption of the report by the Parliament

● 23 April 2009adoption of the recast directive by the Council of the EU

● 16 May 2009publication of the new directive

the new directive

16

the legal framework

● EWC regulations : three legal documents

● the directives 1994/45 and 2009/38

● transposition into national legislation

● your agreement

17

the legal framework THE DIRECTIVES

● 94/45 or 2009/38 ?

● agreements concluded before 22.09.1996 “article 13”

no obligatory renegotiationnot submitted to the obligations of any directivecan be renewed or revised

● agreements concluded between 22.09.1996 and 4.06.2009 “article 6”

no general obligation to renegotiatesubmitted to directive 2009/38

● agreements concluded between 5.06.2009 and 5.06.2011

submitted to directive 94/45not submitted to the obligations of directive 2009/38can be renewed or revised

● agreements concluded from 6.06.2011

submitted to directive 2009/38

18


● existing agreements

art. 13 art. 6

at the expiration dateand no agreement to

renew or revise

significant changes of the structure (merger, acquisition, division) andno provisions or conflict of provisionsin the existing agreements

application2009/38

100 (+)

or adaptation

+ min.of each existing EWCSNB

existing EWCs continue to operate during negotiations

19


● undertakings concerned

150150

(+)(+)

150150

(+)(+)

10001000(+)(+)

20


● “controlling undertaking”

21


● start of the negotiations

and

obligation to obtain and transmit to the parties concerned theinformation required for commencing negotiations

100 100 (+)

or

SNB

22


● the special negotiating body

2009/38

1994/45

12%

5%

28%

55%

5%

12%

28%

55%

2/3

NO ! expertstrade unionfederations before and after

23

● content of the agreement

● or ... a procedure for information and consultation

+ balanced representation for activities, category and gender


companies involved

x2

venue, frequence and duration of meetings

financial and material resources

composition

procedure for information and consultation

+ arrangements for linking the European and the national level

activities ofthe select committee

duration and procedure for renegotiation

+ arrangements for amending or terminating and when to

renegotiate

24


● transnational

+ ?

preamble : the employees must be properly informed and consulted when decisions which affect them are taken in a member state other than that in which they are employed

matters that concern the group as a whole orat least two establishments situated in two different member states

preamble : matters which, regardless of the number of countries involved, are of importance for the workforce in terms of the scope of their potential

effects or which involve transfers of activities between member states

25

● definitions● information

● consultationthe exchange of views and establishment of dialogue


at such timein such fashionwith such content as to enableto express an opinion about the proposed measureswhich may be taken into account

transmission of data at such time in such fashion with such content as are appropriatethat allow to get acquainted with the subject matter and examine it undertake an in-depth assessment of the possible impact prepare for consultations

26


● role of the representatives

inform local representatives or the whole workforce

to have the means required to apply the rights stemming

from this directive

to collectively represent the interests of the employees

provided with trainingwithout loss of wages

27


● link EWC / national bodies

● subsidiary requirements : application

arrangements established by agreement

without prejudice to national practice

if no such arrangements : information and consultation on both levels

preamble : EWC informed earlier or at the same time

SNB

6 months3 years

28


● subsidiary requirements : competence of the EWC

structure of the group

situation and trend of employment

mergers, cut-backs or closure of undertakings

economic and financial situation

new working methods

changes in the organisation investments

€€€€

collective redundancies

€development of activities,

production and sales

transfers of production

informationinformation + consultation

meeting with management, obtain a motivated response to any opinion

29


● subsidiary requirements : practical arrangements

EWC

1/country 3 – 30

1 per 10% / countryor fraction thereof

(min. 10)

select committee max. 3, where size so warrants

max. 5, where size

1 meeting / year

internal preparatory meeting

1 expert paid

extraordinary meetings

financial and material resources

to inform the workforce

art. 10

30

● which transposition ?

● country of central management for organisation of SNB/EWC● other countries for the appointment/election of members●

● Germany : Law 28.10.1996

● management must inform trade unions of establishment and composition of SNB

● 1/country +1 >25% +2 >50% +3 >75%

● appointed by the central works council or combine works councils or the works council

● men and women appointed in proportion

● 1/country +1 >20% +2 >30% +3 >40% +4 >50% +5 >60% +6 >70% +7 >80%>10.000 +1 >20% +3 >30% +5 >40% +7 >50% +9 >60% +11 >70% +13 >80%

the legal framework NATIONAL LAW

sanctions that are effective, proportionate and dissuasive

SNB

31

the legal framework● decisions taken by majority of votes of members present

conduct of business incorporated in rules of procedure

● EWC elects chairperson and deputythey represent the EWC within terms of decisions taken

● select committee when ≥ 9 members3 members from 3 Member States

● experts may be trade union representatives

● confidential information may be shared with other members of EWC, local representatives, employee representatives on supervisory board, interpreters and experts

● imprisonment up to two years or fine for breach of confidentialityimprisonment up to one year or fine for other infringementsa fine up to DEM 30.000 for administrative offences


32


● some other examples● Netherlands

environmental careone expert per item on the agenda

● Belgiumtrade unions can file a complaintthe necessary time to inform all employees

● Sweden1 extra internal meeting/yearright to pursue claims before courts

● Spain60 hours/year for all memberslist of serious/very serious infringements

● Portugal25 hours/monthminor/serious/very serious infringements for every article

33

the legal framework YOUR AGREEMENT

see activity “analysing the quality of your agreement”

34

want to find out more ?

www.etuc.org

www.etui.org

www.worker-participation.eu

www.ewcdb.eu

www.sda-asbl.org

www.europa.eu

european works councils the legal framework

Documents