1. EWC Legislation Update
Dr Werner Altmeyer
Sinaia,

2. Agenda
Some figures: Multinationals with EWC
Intercultural Experiences
EWC in Practice – the problems so far
Information and Consultation provision to EWC’s – was it timely and genuine?
Legislation update: New EWC Directive

3. Multinationals with EWC
[1.089]
908
431 49
Art.13
Art.6
1994
2009
1996
~ 2.300
EWC Directive
1994 EU Directive
1996 national laws
1999 Art. 15  Revision
2004 initiative
2009 new EU Directive
2011 new national laws

4. Delegates from new Member states
908 EWC bodies currently active, more than 20,000 delegates
210 EWC bodies including one or more representatives from a new EU member state (2004)
41 EWC bodies including one or more representatives from a new EU member state (2007) - Bulgaria and Romania
24 EWC bodies including one or more representatives from EU applicant countries (Croatia, Macedonia, Turkey)
Data source: European Trade Union Institute, EWC database, July 2009

5. A “ typical “ EWC today 23 members, increasing number
from 9 countries, one third from host country
5 management representatives involved
Select committee of 5 members
2 plenary meetings a year (ordinary + extraordinary) over two days
3 select committee one–day meetings a year
3 out of 10 EWCs have mixed working groups on specific issues
Source: Evelyne Pichot, European Commission

6. EWC Intercultural Experiences
Gewerkschaften
Trade unions
Syndicats
Betriebsrat
Works council
Comité d´entreprise
Betriebsrat + Gewerkschaften
Works council + trade unions
Comité d´entreprise + syndicats

7. Scandinavian model
Anglo-Saxon model
„Germanic“ model
Mediterranean model
Transformation model

8. The Problems so far
50% of all European works councils not consulted before a transnational restructuring decision is made public
Legal uncertainties, e. g.:
Mergers
What means „consultation“ ?
Link between national and European works councils

9. Information and Consultation provision to EWC -- what it timely and genuine?
Financial reporting to the EWC: Alcatel-Lucent
Social guarantees after merger: Gaz de France
Negotiations about site selection: General Motors
Legal proceedings in the UK: P & O

10. Alcatel-Lucent
December 2006: merger Alcatel (F) and Lucent Technologies (USA)
Consequence: 12,500 jobs are on the list of cuts
March 2007: European protest day
April 2007: French jugdes draw up criterias

11. Alcatel-Lucent The employer must present to the EWC the following:
a precise, figured report on the reasons for closure, shift and merger of business activities
a precise, figured exposition of the calculation method and the elements which were used for the calculation of the alleged staff overhang
the number of planned job cuts, and to be more precise for every division and for every country, separated into employee categories
exact and figured grounds for this distribution and the time schedule for the planned downsizing
This information must be „complete and precise enough, to explain the development of the employment on an European level to the EWC and to allow for an exchange of views and dialog with the management in view of full knowledge of the facts“.

12. Gaz de France November 2006:
EWC stops the merger with the Suez group by interim injunction
January 2008: the highest French court confirms the decision
→ Supervisory and administrative boards of multinational companies can not decide to merge with other companies until the consultation of the EWC has taken place in due form and wasn't completed correctly in all details. A financial analysis is also part of the procedure by consultancy firms which the EWC selects itself. The judges give an independent participation right to the EWC, independently of participation rights in individual countries.
Highlight of a number of verdicts in France which strengthen the meaning of transnational employee representations

13. Manufacturing of the new Astra
General Motors
Manufacturing of the new Astra
and Zafira models
Five locations should compete against each other („beauty contest“)
20,000 workers concerned
Central management: „only three plants can survive“
Central management spread rumours about concessions to local plants
Rumours about new industrial capacities in Russia

15. General Motors
December 2005 „European solidarity promise“ with an accompanying scientific project supported by EU funding
April 2008 Europe-wide framework agreement: Location guarantees for Ellesmere Port (UK), Bochum (Germany), Trollhättan (Sweden) and Gliwice (Poland) until 2016, Antwerp is protected by another product line
Exclusion of dismissals for operational reasons
Participation at outsourcing in all European locations
Social protection at staff transfer (5 years)
Local works agreements become part of this agreement

16. P & O
2002
No proper EWC information and consultation over the plan to close the ferry routes into Zeebrugge
Complaint to the Employment Appeal Tribunal in London in April 2002
Has the employee side, as opposed to the full EWC, the legal standing to be able to pursue a complaint?
Due to the fact that management is also part of the EWC an enforcement is not possible because “you can not take a legal act against yourself”
Employee side of the P&O EWC had no resources of its own and it proved impossible to raise the necessary funding
Complaint was withdrawn by the TUC in June 2002 without judgement

17. Main demands of trade unions for the new EWC Directive
Better information and consultation rights
Better working conditions for EWC bodies and delegates
More meetings
Clear legal standing for EWC bodies
Recognition of trade unions
Training of EWC delegates
Link between national delegates and the European level

18. Result: the new EWC Directive
Consolidation of definitions for information and consultation
EWC Members be entitled “to time off for training without loss of wages” (costs of training?)
Obligation to inform the workers’ represented about EWC activities
No right to visit local plants, no more meetings
No extension of the scope (thresholds, abolition of exemptions, issue of joint ventures, relation vis-à-vis subcontractors etc)
No broadening of the competences towards co-decision and bargaining
No improvement of the enforcement issues

19. What means “information”?
The Directive 1994 doesn't define information at all
The Directive 2009 describes as follows:
Information means transmission of data by the employer to the employees’ representatives in order to enable them to acquaint themselves with the subject matter and to examine it
at such time, in such fashion and with such content as are appropriate
to enable employees’ representatives to undertake an in-depth assessment of the possible impact
and, where appropriate, prepare for consultations with the competent organ of the group

20. The following questions must be answered:
Examination: How fast can EWC members check financial data thoroughly?
Time: When is the adequate moment?
Method: What is adequate to the purpose?
Assessment: How can EWC members judge the possible consequences thoroughly?
Preparation for consultations: How does one prepare for it? Which tools and framework conditions to be fulfilled?
When will a measure have significant consequences? (Example Wabco, October 2008: "if by an alteration at least 50 jobs are concerned in two countries")

21. What means “consultation”?
The Directive 1994 defines as “exchange of views and dialogue”
The Directive 2009 defines consultation more exactly:
at such time, in such fashion and with such content as enables employees’ representatives to express an opinion on the basis of the information provided
within a reasonable time, which may be taken into account within the group

22. The following questions must be answered:
At which moment does a statement still have influence on the decision making of the central management?
Adequate period: How fast can EWC members work out a statement which takes into account all relevant financial data?
What does “statement” mean at all? (in France this is an alternative restructuring plan, worked out with the assistance of consultancy firms)
A missing statement leads automatically to a prohibitory injunction against central management (see example of Gaz de France)

23. Customization of old EWC agreements
Renegotiation is necessary, otherwise the existing EWC agreement will remain valid
New legal provision: right to terminate article 13 agreements in case of extensive structural changes of the company
Contestation of article 13 agreements in France already legally confirmed (Bouygues case, October 2006)
Current lawsuit in Germany (Valora case)