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EUROPEAN WORKS COUNCILS the legal framework

EUROPEAN WORKS COUNCILS the legal framework. the revision process the new directive. the revision process. the revision process. the legal framework : the Maastricht Treaty 1992 (see also Amsterdam Treaty 1997)

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EUROPEAN WORKS COUNCILS the legal framework

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  1. EUROPEAN WORKS COUNCILSthe legal framework the revision processthe new directive

  2. the revision process

  3. the revision process 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. the revision process • 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. the revision process interprofessional social partners • Business Europe : 40 private employers federations of 34 countriesCEEP : 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. the revision process European Council European Commission Back to the co-decision process Parliament + Council of the EU Social partners Negotiation Agreement No agreement Directive Negotiation in Member States

  7. the revision process • 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. the revision process • 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. the revision process • 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. the revision process • 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. the revision process • 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. the revision process • February 2008 : official start 2nd consultationletter 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. EuropeanCommission socialpartners negotiation the revision process • 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 back to the co-decision process Parliament + Council of the EU no agreement

  14. the revision process • 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

  15. 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 5.06.2011submitted to directive 94/45not submitted to the obligations of directive 2009/38can be renewed or revised • agreements concluded from 6.06.2011submitted to directive 2009/38

  18. art. 13 art. 6 application2009/38 or 100 (+) adaptation   SNB the legal framework THE DIRECTIVES • existing agreements 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 existing EWCs continue to operate during negotiations + min.of each existing EWC

  19.  150(+) 1000(+)  150(+) the legal framework THE DIRECTIVES • undertakings concerned

  20. the legal framework THE DIRECTIVES • “controlling undertaking”      

  21.   andobligation to obtain and transmit to the parties concerned theinformation required for commencing negotiations 100 (+) or   SNB the legal framework THE DIRECTIVES • start of the negotiations

  22. trade unionfederations NO ! experts before and after 2/3 the legal framework THE DIRECTIVES  55% 12% 55% 12% 1994 /45 2009 /38 • the special negotiating body 28% 5% 28% 5%

  23.      companies involved composition + arrangements for linking the European and the national level x2 venue, frequence and duration of meetings procedure for information and consultation activities ofthe select committee financial and material resources duration and procedure for renegotiation the legal framework THE DIRECTIVES + balanced representation for activities, category and gender • content of the agreement • or ... a procedure for information and consultation + arrangements for amending or terminating and when to renegotiate

  24. the legal framework THE DIRECTIVES • 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 potentialeffects or which involve transfers of activities between member states

  25. transmission of data at such time in such fashion with such content as are appropriate that allow to get acquainted with the subject matter and examine it undertake an in-depth assessment of the possible impact prepare for consultations at such time in such fashionwith such content as to enableto express an opinion about the proposed measureswhich may be taken into account the legal framework THE DIRECTIVES • definitions • information • consultationthe exchange of views and establishment of dialogue

  26. 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 the legal framework THE DIRECTIVES • role of the representatives

  27. SNB 3 years 6 months the legal framework THE DIRECTIVES 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 • link EWC / national bodies • subsidiary requirements : application

  28. € structure of the group changes in the organisation transfers of production investments economic and financial situation € situation and trend of employment collective redundancies development of activities, production and sales mergers, cut-backs or closure of undertakings new working methods the legal framework THE DIRECTIVES • subsidiary requirements : competence of the EWC information + consultationmeeting with management, obtain a motivated response to any opinion information

  29. EWC 1/country 3 – 30 financial and material resources 1 meeting / year to inform the workforce internal preparatory meeting max. 5, where size 1 expert paid the legal framework THE DIRECTIVES • subsidiary requirements : practical arrangements 1 per 10% / countryor fraction thereof (min. 10) art. 10 select committee max. 3, where size so warrants extraordinary meetings

  30. the legal framework NATIONAL LAW • 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% sanctions that are effective, proportionate and dissuasive SNB

  31. the legal framework the legal framework NATIONAL LAW • decisions taken by majority of votes of members presentconduct 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. the legal framework NATIONAL LAW • some other examples • Netherlandsenvironmental 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

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