EUROPEAN WORKS COUNCILS the legal framework the revision process the new directive

the revision process

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 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 countries CEEP : European Centre of Employers and Enterprises providing Public Services UEAPME : European Association of Craft, Small and Medium-Sized Enterprises ● ETUC : 82 national confederations + 12 industry federations of 36 countries EUROCADRES : European Council of Professional and Managerial Staff CEC : European Managers Confederation FERPA : European Federation of Retired and Older People

6 the revision process European Commission Social partners Negotiation AgreementNo agreement Directive Negotiation in Member States European Council Back to the co-decision process Parliament + Council of the EU

7 the revision process ● : 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 the review of the directive ● ETUC : revision is essential and must be speeded up ● UNICE (Business Europe) : strongly opposed to a revision, no need for a second consultation ● November 2004 : new Commission is installed ● January 2005 : ETUC calls for relaunch of the revision ● February 2005 : Commission issues social agenda revision of the directive is one of the targets European Commission social partners

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 consultation letter to the social partners with a number of initiatives considered by the Commission to revise the directive before ● 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 European Commission social partners negotiation

13 the revision process ● May – June 2008 ● ETUC campaign ○ conference ○ info-sheets ○ political contacts ○ trade union press ○ letters sent by the EWCs ● inter-DG consultation ● : the Commission publishes its proposal negotiation European Commission social partners no agreement back to the co-decision process Parliament + Council of the EU

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 2008 Employment and Social Affairs Commission of the EP (reporter Philip Bushill-Matthews) ● 16 December 2008 adoption of the report by the Parliament ● 23 April 2009 adoption of the recast directive by the Council of the EU ● 16 May 2009 publication 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 “article 13” no obligatory renegotiation not submitted to the obligations of any directive can be renewed or revised ● agreements concluded between and “article 6” no general obligation to renegotiate submitted to directive 2009/38 ● agreements concluded between and submitted to directive 94/45 not submitted to the obligations of directive 2009/38 can be renewed or revised ● agreements concluded from submitted to directive 2009/38

18 the legal framework THE DIRECTIVES ● existing agreements art. 13art. 6 at the expiration date and no agreement to renew or revise significant changes of the structure (merger, acquisition, division) and no provisions or conflict of provisions in the existing agreements application 2009/ (+)  or adaptation + min. of each existing EWC SNB existing EWCs continue to operate during negotiations

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

20 the legal framework THE DIRECTIVES ● “controlling undertaking”      

21 the legal framework THE DIRECTIVES ● start of the negotiations and obligation to obtain and transmit to the parties concerned the information required for commencing negotiations   (+)  or SNB

22 the legal framework THE DIRECTIVES ● the special negotiating body 2009 / /45  12%  5%  28%  55%  5%  12%  28%  55% 2/3 NO !experts trade union federations before and after

23 ● content of the agreement ● or... a procedure for information and consultation + balanced representation for activities, category and gender the legal framework THE DIRECTIVES          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 of the select committee duration and procedure for renegotiation + 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 or at 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 ● consultation the exchange of views and establishment of dialogue the legal framework THE DIRECTIVES at such time in such fashion with such content as to enable to express an opinion about the proposed measures which may be taken into account 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

26 the legal framework THE DIRECTIVES ● 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 training without loss of wages

27 the legal framework THE DIRECTIVES ● 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 months 3 years

28 the legal framework THE DIRECTIVES ● 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 information information + consultation meeting with management, obtain a motivated response to any opinion

29 the legal framework THE DIRECTIVES ● subsidiary requirements : practical arrangements EWC 1/country 3 – 30 1 per 10% / country or fraction thereof (min. 10) select committee max. 3, where size so warrants max. 5, where size 1 meeting / year internal preparatory meeting1 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 ● 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% > >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 deputy they represent the EWC within terms of decisions taken ● select committee when ≥ 9 members 3 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 confidentiality imprisonment up to one year or fine for other infringements a fine up to DEM for administrative offences the legal framework NATIONAL LAW

32 the legal framework NATIONAL LAW ● some other examples ● Netherlands environmental care one expert per item on the agenda ● Belgium trade unions can file a complaint the necessary time to inform all employees ● Sweden 1 extra internal meeting/year right to pursue claims before courts ● Spain 60 hours/year for all members list of serious/very serious infringements ● Portugal 25 hours/month minor/serious/very serious infringements for every article

33 the legal framework YOUR AGREEMENT see activity “analysing the quality of your agreement”

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