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With EU contribution

“CONCILIATION AND ARBITRATION: two ways to manage the effects of disputes on information and consultation rights in the context of Banking mergers, acquisition and restructuring” (VS/2010/0668). With EU contribution. EWC Directive 2009/38/CE: a retrospective of trade union policy.

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With EU contribution

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  1. “CONCILIATION AND ARBITRATION: two ways to manage the effects of disputes on information and consultation rights in the context of Banking mergers, acquisition and restructuring” (VS/2010/0668) With EU contribution EWC Directive 2009/38/CE:a retrospectiveoftradeunion policy Domenico Iodice – APF ResearchDepartment 1

  2. - The philosophy plant reshapes the operation of EWCs as promoters "broad sense" of flexibility and security agreements or stakeholders involved in the preparation and monitoring of codes of conduct / ethics: the force of social pacification. - The idea is the Corporate Social Responsibility, and thus assumes a broader role in negotiating (multi-stakeholder), did not properly contract (in the technical sense). - The one subject of contract is the DSN The EWCs, new social actors of change 2 EWC: the enigma of the role

  3. - Understand the "ratio legis", the regulatory environment and policy of the Directive, the issues in the field of mediation and reached or not reached allows to evaluate the effectiveness of current or expected achievements with the transposition into national legislation. - It also allows you to refine the possible corrective instruments designed to recover full efficiency and maximum application of the participation rights of workers. (The rooms of Conciliation and Arbitration at the supranational and national levels along these desired) Objectives analysis 3 3 The newDirective: Macro-goals

  4. While the Directive has its roots in the '94 'Protocol on Social Policy "introduced by the Maastricht Treaty (" the single market as the seat of social rights "), the recast Directive calls instead of art. 27 of the Charter of Fundamental Rights: the head "solidarity", "workers' rights to information and consultation in the enterprise." Moreover, in the Social Agenda is treated in the section on "full employment" and not in the "new dynamic for industrial relations". • What does this mean? The context of the recasting The oldDirectivewasmoving in the traditional industrial relations, and wasintendedto "excludedifferent treatment ofworkers are affectedbydecisions": not so muchintroducing a notionoftrans-nationality, as a newcategoryofcross-borderworkers, definedasnewsubjectsofindividualrights. The recastDirectiveistoovercome the conceptofcross-border industrial relations. It's connectedto the EuropeanEmploymentStrategy, the discourse on' "anticipating and managingchange": notonlyredesigned the EWC as a subjectofnegotiation, butas social actors "broadsense". 4 The newDirective: Macro-goals

  5. - The philosophy plant reshapes the operation of EWCs as promoters "broad sense" of flexibility and security agreements or stakeholders involved in the preparation and monitoring of codes of conduct / ethics: the force of social pacification. - The idea is the Corporate Social Responsibility, and thus assumes a broader role in negotiating (multi-stakeholder), did not properly contract (in the technical sense). - The one subject of contract is the DSN The EWCs, new social actors of change 5 EWC: the enigma of the role

  6. - Rather than negotiating body representative, is a forum for dialogue between the parties. - In France they have legal personality and are chaired by management in Belgium take the contracts of work (although without legal personality). - They are social actors are constituted and represent only the workers, and not a common institutional interest in the company. - For this reason (Article 10) must provide them with the central management "means (financial) enough" even to allow the initiation of litigation. EWCs nature 6 EWC: the enigma of the role

  7. - The involvement of the EWCs does not imply a contractual power, but the guarantee (through the timing, methods and appropriate content of the information) to participate effectively in the process of formation of the enterprise will, through an "opinion" on the "proposed action", stop the "management responsibility". In the accompanying measures is even enshrined a right to "obtain a reasoned response to opinion as any." -The assumption is therefore the possibility of a preemptive "thorough evaluation" -The outcome of the procedure is always a unilateral decision of business! Overcome the conflict of competence with the national unions "Consultation" means, therefore, in the EWC Directive, noveltyof the procedure withrespectto the measure "proposal". In the Directive on collectiveredundancies, however, followingconsultationwith the measure "covered" in decision-making. Therefore, the Directive on the SE stillanticipates, comparedto the EWC Directive, the moment of engagement. Conclusions: inconsistencies and worryingriskof bypass EWC delegation . 7 EWC: the enigma of the role

  8. - The identification of representatives of workers EWC is a matter of Member States (appointed by trade unions and elected by the workers). - Any limitation of sovereignty in danger of being challenged before the CGE. Was likely to be also a European standard only to legitimize the trade unions! - In practice, Member States may decide how to integrate the national unions of National Trade Union Delegation, even if those representatives were not included in the labor force affected by the EWC. - In line with the SE Directive, in addition, the National Trade Union Delegation may appoint an expert with the function of assistants, with costs borne by the Central Directorate (we are still in the preparatory phase to the establishment of the EWC). EWC “versus” Trade Union? But the rules do notsayanythingabout the nextstepto the establishment ofEWCs 8 EWC: the enigma of the role

  9. - In the proliferation of Directives on worker involvement (SE 2001, SCE 2003), the EWC Directive from 1994 until the recast was unchanged on this point. It, saying the coexistence of levels of involvement (national and supranational levels, without indicating any time-hierarchy), represents some synthesis, but no bold solutions to the problem of coordination between levels - Or the Agreement establishes the hierarchy or the rules set incidental coexistence - Some guidelines are from thece European Court of Justice, which is building a body of legislation of address (Rechtsfortbildung). Compared to the "necessary information" to determine if the companies fall in the EWC Directive (which are the subjects which the workers' representatives to reach, what information they are entitled to get), the Court has provided answers: If Bofrost (no need to identify the direction central); case Kuhne & Nagel (all subsidiaries are required to cooperate with the central management); ADS Anker case (the central management must provide information to each subsidiary). The harmonization of levels 9 EWC: the enigma of the role

  10. - While the identification of persons responsible for the information is clarified, the quality / quantity of information needed is left to the evaluation, case by case basis, the national courts. In practice, they are essential to determine whether it is structured to reveal how the representation of employees - We return to the objective of the Project: to identify new subjects, such as commissions of conciliation and arbitration supra, for the solution of these problems of interpretation -The problem is that if the EWC has not yet made​​, the source of regulatory commissions can not be the EWC agreement. And what then? What does this mean? 10 EWC: the enigma of the role

  11. Improving the right to information and consultation regulations through guarantees of effectiveness, solve practical problems, overcome regulatory uncertainty The objectives of effectiveness of the Recast The "ancillaryprovisions" and "reserveclause" assume a contractualgovernance: the Directiveestablishes a coreofcompulsoryquestionswhichshouldleadto the conclusionofan EWC agreement. Butfailingthat, the toolsinvolvedsubsidiarity. Allquestionsthat are notdefinedby the Agreement are affectedby the reserveclause: truedefenceofeffectiveness, beyond the bargainingstrengthof the Parties. The problemisthatestablishingnationallaws! 11 The open questionsfrom the Recast

  12. - The Directive of 1994 had highlighted the risk of unequal treatment between European workers and the priority indicated: broaden the base of participation rights. The rules were an “minimum minimorum” can be improved through the freedom of contract - The recast Directive expands the audience in the "recital", but, in articles and even the circumscribed limits the competence of the EWC to transnational issues concerning the company or group located in at least two Member States. The rules represent a "weak point" contractual autonomy, because it precludes (or rather: do not provide legally) the creation of new EWCs in firms interested otherwise. The question of "transnational" 12 The open questionsfrom the Recast

  13. -The Recital says that, regardless of the number of Member States involved, are worth the potential effects expected in the community -The articulated legislation restricts the protection to the effects actually achieved or expected between Member States “potential impact" The questionisperhapssurmountable. As a matterofinterpretation, the damageto the interestsofworkerspresent in at leasttwoMemberStates do notnecessarilyrelateto the “hicetnunc", butalso the effectsoveranextendedperiodoftime. Anyplantorestructure the company haslong-termeffectsofreverbcapableoftwo or more MemberStates! The recital thereforeisrecoverableby the courts. BritishAirways case, CGE December 6 2006 (outsourcing) 13 The open questionsfrom the Recast

  14. Under Article. 12 of the Directive of 2009, the relationship between EWCs and national bodies representing the employees must be defined by the Agreement (instituting source) between National Trade Union Delegation and Head Office. The risk is that the scope of transnationality is further restricted “in pejus”. The agreement with respect to representation: legitimacy But the agreement "withoutprejudiceto the provisionsof the law and / or practice": whatprevents a European forum ofrepresentation (the NTUD toexceed the numberofrepresentativesfromeachMember State accordingto the rules in forcethere. 14 The open questionsfrom the Recast

  15. There's a problem of “concordantiaseuconsecutiotemporum”, solved by law. - In France, the local representatives of the EWC had sought to postpone a meeting of the Comitéd'entreprise, asking earlier: they were right (TGI Nanterre, August 1, 2003, Alstom-Power). In the case of Marks & Spencer, it was the company management to support the existence of a cross-border were to block a request from the Comitéd'entreprise: the Tribunal de Grande Istance of Paris (April 9, 2001) gave it wrong. - The contradiction is only apparent: the guiding principle is that only the workers representatives at national level have the "legal option" to exercise or not to exercise the right at constant cross-border procedure Hierarchy between transnational and national agreements The problem can besolvedonlyby the national case lawfromtimetotime . No interventionofsourcesabove. 15 The open questionsfrom the Recast

  16. It does not establish a clear concordantiatemporum. It refers instead to the Agreement between NTUD and central management to scale the articulation between the levels. Without prejudice, however, the national legislation and practices (Article 6 par.2, Lett. There art. 12, paragraph 2): source hierarchy prevailing. In the absence of agreement, the safeguard clause: the simultaneous procedures What does the EWC Directive say? Yet in Recital 37 itisexpectedthatnationallegislationmaybe "appropriate" toensurethat the appropriate EWC willalsobeinformed "before." As is the case? Who can standardizeas a source higherthan the nationallaw? Not the Agreement, butonly the Directive (and itdidnottranslate the recital in anarticle). So in a way, the Recital has no forcehere or preceptive or guidance. 16 The open questionsfrom the Recast

  17. - The right of assembly "before" and "after" every meeting is about the NTUD. For members of EWC, only "first" (without the presence of management) - The obligation of the EWC members to transfer information to employee representatives on the results of the procedure. - No explicit provision of the right of the EWC members to have contact with local representatives "first" meeting of the EWC, the doctrine (Dorssement) establishes a right of access to facilities. - The right to paid training is the hard core of rights expressly set out, to the extent necessary to discharge its functions: to how the charges and says nothing of the training program. “Facilitating the NTUD and EWC” Feespayableby the company: is a part of the obligationtodeliver the "necessarymeans". Financial aspects: the company has a say. Educational content: no. 17 The open questionsfrom the Recast

  18. 1. Can not start any negotiation. 2. The expiration of the Agreement may result in a "vacuum juris." 3. In the absence of regulatory constraints, the Agreement may waive in pejus the rules 4. The agreement binds only the existing work force at the time of subscription, not its subsequent amendments. Contractualisation involvement: the risks and problems The choiceof the Directivetoentrust the social partners the implementationofrightsto information and consultationis positive. Butitalsohides some pitfalls: 18 The open questionsfrom the Recast

  19. - Formally, it is not enacted a real obligation to bargain (“Nemo ad factum precise cogipotest”), but a mere imputation of responsibility. In such a reading art. 7, the subsidiary requirements would not apply if no agreement follows the act of impulse of the Head Office, and instead would apply if the negotiations start on the initiative of representatives of workers. - However, Recital 32 speaks of taking requirements which in any case no agreement is reached. 1) "Can not start any negotiation”. 19 The open questionsfrom the Recast

  20. The Directive avoids to confirm the permanent effect after the expiry of the Agreement. In the Equant pronunciation (District Court of Amsterdam, 01.23.2003) the court ruled that the EWC finsh to exist until the conclusion of a new agreement. -The Directive covers only ad hoc solutions for specific cases of termination, such as the obligation to negotiate and the continued operation of EWCs in negotiating agreements for adaptation to changes in the structure of EU companies (Article 13). - Do not formalized, however, a principle of continuity of the EWC is therefore legitimate resolution of the old agreement after after the signing of the new. 2) The expiration of the Agreement and the “vacuum juris”. 20 The open questionsfrom the Recast

  21. - Formally, the Parties may, in the Agreement, the subsidiary requirements differ “in pejus” (covering only the case of non-conclusion). - However, Recital 44 states that the acts of subsidiary rules in each case by "reference to the negotiations" introduces a general fairness clause, that is valid in the interpretation and integration of the agreements. - Is The Agreement "contra considerandum" objectionable in court? 3)The Accord and a derogation 'in pejus "of subsidiary rules 21 The open questionsfrom the Recast

  22. - The modification of the agreements to change the structure of companies is needed to ensure global coverage contract. - Normally, it is the agreement that should include an adjustment clause. - Failing that, the art. 13 provides a safeguard clause is a requirement for central management to begin negotiations on its own initiative or at the request of at least 100 workers "in at least two Member States". - The only element of continuity is that at least 3 existing members of the EWC must enter in the new National Trade Union Delegation. 4)The agreement binds only the existing work force at the time of signing 22 The open questionsfrom the Recast

  23. In a nutshell ... RecastDirectiveprovideseffectivelegalinstrumentstoimprove the effectivenessofexisting information and consultationprocedures. Itwillbeusefultoworkerswhoalreadyreceive benefit fromEWCs, butdoesnot solve the chronicproblemsofthosewhohave none. 23

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