Informing and consulting employees

1. Informing and consulting employees E.Pichot, European Commission Seminar « A boost for workplace democracy in Europe ? » Leuven, November 2006

2. Origin of the framework Directive on information and consultation • Process of restructuring and reorganisation • Need for anticipating and managing change • Importance of employee involvement • Differences between National systems • Experience of the European works councils • Legal base: Article 137 EC Treaty (minimum requirements - information and consultation)

3. Towards an on-going and general process of information and consultation • Complementing Directives covering information and consultation • in special circumstances or on certain issues • Collective redundancies 98/59/EC (first directive in 1975) • Transfers of undertakings 2001/23/EC (first directive in 1977) • Health & Safety 89/391/EC

4. Towards substantial local processes of information and consultation • Complementing Directives covering transnational information, consultation and participation • European Works Councils 94/45/EC, extended to the UK by Directive 97/74/EC • Involvement in the European Company 2001/86/EC, in the European Cooperative Society 2003/72/EC and in cross border mergers Art.16 of (10th) Directive 2005/56/EC

5. In accordance with a fundamental right to information and consultation "Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices" Charter of fundamental rights of the European Union, Art.27

6. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community

7. Basic principles • Framework directive: sets out general principles and objectives to be achieved • Member States enjoy flexibility re themethod, provided they ensure that the principles are respected and the objectives are effectively achieved • No regression (existing levels of protection for social dialogue may not be reduced)

8. Basic principles and interpretation • Information and consultation of workers = an economic and social imperative (Recitals) • A [collective] 'right to information and consultation of employees', Article 1.1 • Exercised through employee representatives (see below) • When defining or implementing practical arrangements, employer and employees' representatives 'shall work in a spirit of cooperation, and with due regard for reciprocal rights and obligations, taking into account the interests both of the …[organisation] and of the employees' (Art. 1)

9. A right… • A right to information and consultation of employees in undertakings or establishments (Art.1) • At the "relevant" levels (Art.4) • Without prejudice to obligation to inform and consult employees in cases of collective redundancies and transfers and on Health & Safety issues (Art.9) • To link with existing employee representation mechanisms

10. What does Directive 2002/14 apply to? • The Directive applies, according to the choice made by Member States to (Art.3 & Art.2) • Undertakings employing at least 50 employees; "Undertaking": a public or private undertaking carrying out an economic activity, whether or not operating for gain • Establishments employing at least 20 employees; "Establishment": a unit of business where an economic activity is carried out on an on-going basis with human and material resources • Calculation of number of employees: to be defined by national laws [probably within some limits: pending CGT Case C-385/06]

11. The definitions (Art.2) • "Information": transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it • "Consultation": exchange of views and establishment of dialogue between the employees' representatives and the employer • "Employee": any person protected as an employee under national law and in accordance with national practice • "Employees' representatives": employees' representatives provided for by national law and/or practices

12. Which employees' representatives ? • "Employees' representatives" are the ones provided for by national law and/or practice; no harmonisation of national forms of employees' representation. • But consistent with the principles of the Directive, workers' representatives would need to be determined by Member States in a way that ensures that: • they hold office on a reasonably continuous basis (as many of the issues provided for in the Directive require regular information and consultation) • they represent all the workers covered by the Directive, regardless of their category and whether or not they are affiliated to a trade union; • they are independent from the employer.

13. Information (Art.2&4) • Transmission by the employer to the employees’ representatives of data (activities, economic situation, employment, decisions) • Ensuring that the timing, means of communication and content of the information are such as to ensure its effectiveness • Enabling them to acquaint themselves with the subject matter,toexamine it and to conduct an adequate study • Enabling, where appropriate, to prepare for consultation

14. Consultation (Art.2&4) • The exchange of views and establishment of dialogue between the employees’ representatives and the employer • Ensuring that timing, method and content is effective • Done at the relevant level of management and representation • On the basis of the information supplied and of the opinion which the employees’ representatives are entitled to formulate • Enabling representatives to meetthe employer and obtain aresponse and the reasons of that response to their opinion • With a view to reach an agreement on decisions likely to lead to subtantial changes in organisation or contracts • Information and consultation must be effective (Art 1.2)

15. Issues (Art.4) • Article 4 lays down the subjects to be covered as far as social partners have not entered into an agreement. There are three types of subjects: • 1) economic or strategic matters (information), • 2) employment trends (information and consultation), • 3) specific decisions which may lead to substantial changes in work organisation or in the contractual relationship (information and consultation).

16. Confidentiality (Art.6) • Confidentiality of the information and right to withhold certain informations • Provisions indispensable as the Directive creates information and/or consultation obligations on economic matters and on management decisions which may address sensitive issues. • Duty of employees' representatives to respect, in a responsible way, their confidential nature as asserted by the employer. • Right to appeal: MS to provide for administrative or judicial review

17. Free agreements (Art.5) • Member States are authorised to allow social partners to determine the procedures for implementing the objectives and principles laid down therein. • The Directive authorises social partners, under conditions and within limits to be determined by the Member States, to derogate from certain provisions (Article 4), without prejudice to the respect of the general principles provided for in the Directive.

18. Protection of rights (Art.1, 7 & 8) • A duty to ensure effectiveness of practical arrangements for information and consultation • The protection and guarantees to employees' representatives enabling them to perform properly their duties • Providing for dispute resolution • Providing for adequate, effective, proportionate and dissuasive sanctions

19. Implementing the Directive:A major step in some countries • For UK and Ireland having "voluntarist" systems of industrial relations • For countries like Poland having a pure single channel of employees' representation through unions and a low union membership

20. Dialogue : base >2005 ISL Sur une base volontaire On a voluntary basis SE FIN Sur une base conventionnelle générale On the basis of a general agreement NO EST LTV IRL DK LIT NL UK Sur une base légale On a legal basis DE POL B CZ SLK AT FR H SLVN ROU PT IT ES BUL TR GR MLT CE-Pichot 2006 CY

21. syndicats/ unions Representation >2005 syndicats avec base légale / unions with legal basis ISL syndicats pivots + organes ou élection unions in the center + organs or elections SE FIN double rep. mais en pratique: syndicats two-tier representatin but in practice: unions NO EST LTV IRL DK LIT NL UK double représentation two-tier representation DE POL B double représentation avec conseil mixte two-tier representation, with joint council CZ SLVK AT FR H SLVN ROU PT IT ES BUL TR GR MLT CE-Pichot 2006 CY

22. Codétermination par obligation d’accord Codetermination with compulsory agreement Dialogue >2005 Autres formes de codétermination Other codetermination’s forms ISL Information consultation Développée + négociation Extensive information and consultation+ negotiation SE FIN NO EST Information consultation variable + négociation Irregular nformation and consultation + negotiation LTV DK IRL LIT NL UK Droit de négociationRight to negotiate DE POL CZ Négociation Negotiation SLVK AT FR H SLVN ROU PT IT ES BUL TR GR MLT CE-Pichot 2006 CY

23. Implementing the Directive:The situation in November 2006 • Directive had to be transposed no later than 23 March 2005 • 19 Member States have notified implementing provisions • Cases are pending in the Court for 6 Member States still having to transpose the Directive : • Belgium C-320/06, Luxemburg C321/06 • Greece C-381/06, Spain C-317/06 • ItalyC-327/06 • Estonia C-397/06