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Board-Level Employee Representation [BLER] IN E UROPE AND D ENMARK Aline Conchon Researcher European Trade Union Institute Konference.

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Presentation on theme: "Board-Level Employee Representation [BLER] IN E UROPE AND D ENMARK Aline Conchon Researcher European Trade Union Institute Konference."— Presentation transcript:

1 Board-Level Employee Representation [BLER] IN E UROPE AND D ENMARK Aline Conchon Researcher European Trade Union Institute Konference for medarbejdervalgte bestyrelsesmedlemmer November 6, 2012

2 Structure of the presentation A.European perspectives on BLER 1. Current situation in Europe: overview of national rights 2. Trends in Europe : evolution of national rights 3. Current situation at EU level: BLER in EU company law 4. Trends at EU level: BLER rights under pressure B.BLER in Denmark: Preliminary findings of a survey 1. Who are the respondents? 2. What influence on boardrooms decisions? 3. What interests do BLEReps defend? alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 2

3 Board-level employee representation E UROPEAN PERSPECTIVES

4 alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 4 1. Current situation in Europe: overview of national rights Widespread participation rights comprising private (and privatised) as well as state-owned companies (14 countries) Limited participation rights Only found in state-owned companies (4 countries) No (or very limited) participations rights (12 countries) ● BLER rights in the European Economic Area = At least 17,442 BLEReps and another 5,733 companies with BLEReps (FI, NL, CZ, SK, DE Drittel)

5 2. Trends in Europe: evolution of national rights ●The impact of privatisation in countries where BLER is to be found only in state-owned companies  BLER disappeared in MT  BLER might soon disappeared in GR and ES savings banks  Dramatic decrease of the number of SOEs in IE and PL (+ bill in PL to eliminate BLER, but stalled since March 2011) ●Weakening of BLER rights on the occasion of the introduction of the one-tier system (HU, SI), and even elimination (CZ), though not in DK nor NL ●Initiatives from political actors  In FR, by the end of 2012, a bill for employee reps on remuneration committee and a national debate to extend BLER in the entire private sector  In IT : a government decree by spring 2013 for facultative BLER in companies with a two-tier board and >300 employees ●Some trade unions’ demands for extending the coverage of BLER rights (in NO, DE, LU, FR, NL, IE ), and creating some kind of BLER ( UK ) C HALLENGES O PPORTUNITIES

6 3. Current situation at EU level: BLER in EU company law alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 6 ● BLER is a European fundamental right! ● BLER is anchored in 3 pieces of European Company law:  The 2001 European Company statute (SE – Societas Europaea)  The 2003 European Cooperative Society statute (SCE – Societas Cooperativa Europaea)  The 2005 Cross-border Merger [CBM] Directive Information, consultation and participation of workers must be developed along appropriate lines ‘The Union shall support and complement the activities of the Member States in the following fields: […] - Representation and collective defence of the interests of workers and employers, including codetermination’ 1989 Community Charter for fundamental social rights for workers Art. 153 (f) Treaty on the functioning of the EU No harmonisation but flexibility based on two key principles:  Negotiation on BLER arrangements  ‘before and after’ principle for safeguarding pre-existing BLER rights

7 4. Trends at EU level: BLER rights under pressure ● Companies can restrict or even circumvent national BLER rights because of: alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 7 Loopholes in the current EU legislation  The Cross-Border Merger Directive is less protective than the SE Directive (e.g. merged companies with a one-tier structure could restrict BLER to 1/3 of the board)  In theory (but rare in practice), the SE statute could be used to avoid or “freeze” BLER, as negotiations on employee involvement take place before the setting up of the SE, and there is a legal uncertainty as to the possibility of reopening negotiation (even in the case of a significant increase of the workforce) The emergence of a European “Delaware effect”  It is legal for companies to shop amongst the different national regulatory regimes and opt for the one with the least stringent rules (esp. on BLER)  Rulings of the European Court of Justice indeed allow companies to register in one Member States (and be subject to its company law) while having all its business activities in another Member States (without applying its legal provision on BLER). => 43 large German companies do not have BLER as they registered abroad (e.g. as British Plc.)

8 4. Trends at EU level: BLER rights under pressure ● Counter-actions and proposals from  The European Parliament: multiple calls for a 14 th Directive on cross- border transfer of seat  The ETUC: demand for European minimum standards for employee involvement in Europe alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 8 All the legal forms of company entity at the EU level SE, SCE and pending SPE) must be subject to binding regulations on worker participation in company boards and on information and consultation with worker representatives regarding cross-border issues. Companies that have operations in several countries should be covered by the regulations that entail the best available model for worker participation. ● Paradox of a worker right not attached to workers but to companies as the applicable legal framework:  Is not that of the country where workers habitually carry out their work  But that of the country where the company is registered

9 BLER in Denmark P RELIMINARY FINDINGS OF A SURVEY

10 Who are the respondents? alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 10 Gender 13% 87% Characteristics of individuals Characteristics of the companies in which they sit Age Min. 30 Max. 66 Average: 51 ½ EducationPosition 1V OCATIONAL TRAINING (50%) 2Elementary education (31%) 1B LUE COLLAR (47%) 2Technician (24%) 3Professional (23%) 4White collar (5,5%) 5Manager (0,5%) Medium Large Small Micro 1-9 Extra large >5 000 Size Non-listed Don’t know Listed Listed on the stock exchange

11 What influence on boardrooms decisions? alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 11 Explanation: the running of the board! The majority (53,6%) considers that the main decisions are made outside the board meetings, without employee representatives. The Influence/Power Continuum (inspired by Heller 1971) Information Consultation Influence 30% 22% 52% Joint-decision Control/Co-Management Power 29%19% 48%

12 What interests do BLEReps defend? I NTERESTS % Employees81,8 The company61,4 Shareholders24,2 Trade unions14,1 Local labour market5,6 Wider society4,2 Environment2,8 Other1,4 alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 12 Note: total >100% as figures present the sum of the items placed in ranking position #1 and #2 I NTERESTS % Employees78,5 LT economic return77,5 Environment71 Shareholders56,5 Local community45,5 Trade unions37,5 ETUI survey (2009) Rose/Kvist (2003) Ranking With the exception of “Environment” findings are similar BLEReps defend a stakeholder approach, but not to the detriment of the company (ranked #2) nor of the shareholders (ranked #3 &4)!

13 alineconchon © etui (2012) Board-level employee representation in Europe and Denmark 13 Thank you for your attention! More information to be found at:


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