Focus: European Works Councils after 20 years: taking stock

Abstract

European Works Councils after 20 years: taking stock the Directive’s entry into force were exempted from any statutory requirements for the lifespan of the agreement, as long as they covered the entire workforce of the group. At the end of this ‘Article 13’ period (22 September 1996), about 480 companies used the possibility to conclude ‘Article 13’ agreements. About 30 MNCs had already had a European transnational information and consultation agreement even before the adoption Directive of 22 September 1994. So many negotiations within a relatively short period between 1994 and 1996 challenged many national trade unions and demanded a huge organisational effort by the European sectoral union organisations now know as the European Trade Union Federations (‘ETUFs’). Since 22 September 1996, negotiations to establish EWCs have been governed by the procedures under Article 6 of the 1994 Directive (and now under the recast Directive 2009/38/EC), which requires the formation of a Special Negotiation Body (‘SNB’). In principle, it is still up to the undertaking’s central management and the SNB to agree on the precise form and function of their EWC. This includes, for example, the signatory parties; coverage, composition, numbers and seat allocation; the terms of office; functions and procedure ; venue, frequency and duration of meetings ; issues for information and consultation; experts; confidentiality; employee-side pre-meetings , resources and facilities for EWCs, etc. Only if management and workers fail to agree, or if they so choose, is the ‘fall back solution’ specified in the Annex to the Directive and providing statutory minimum standards triggered off. The ETUI database (www.ewcdb.eu) identifies currently 1282 EWCs (November 2013) that have ever been created of which 1048 are still active. Some EWCs disappeared due to company mergers, acquisitions and other similar reasons. New beginning for EWCs: the recast Directive of 2009 Due to lack of precedent the 94/45/EC Directive was a kind of experiment. Thus, in Article 15 it foresaw a revision procedure to take place after three years allowing for future adjustments. After many years of delay caused by lack of initiative from the European Commission, discussions between the social partners driven mainly by trade union demands, on 6 May 2009 the European Parliament and the European Council under the so called recast procedure finally adopted an amended version of the EWC Directive. This new recast Directive was a compromise solution: it addressed many, but not all demands and problematic issues identified throughout the 13 years of operation of EWCs. Many European countries have industrial relations systems where works councils play a crucial role at enterprise level INTERNATIONAL union rights Page 20 Volume 20 Issue 4 2013 I n a globalised economy managerial decisions taken at the central level consider companies as transnational organisations in which national borders are of secondary meaning. On the other hand, worker representatives have for a long time acted on a national (or local) basis. Some provisional practical solutions to this mismatch started to emerge in the 1980s in multinational companies (‘MNCs’) headquartered in France, where group works councils begun inviting foreign workers’ representatives to their meetings on an informal and even formal basis. The first pre-Directive agreements were signed in the 1980s, but this became institutionalised in 1994 with the adoption of directive 94/45/EC on ‘Establishment of a European Works Council [‘EWC’] or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees’ (the EWC Directive) The goal of the Directive has been to provide employees with the right to transnational information and consultation in companies acting in the EU and the European Economic Area (EU + Liechtenstein, Norway and Iceland). At the start, the United Kingdom opted out from the Directive, but joined in 1997 (Directive 97/75/EC). As any other European directive, also the EWC legislation had to be transposed into national legal order and the Member States had two years to do so. As a result on 22 September 1996, the EWC Directive became enforceable for workers, employers and trade unions. Today, all companies (including those headquartered outside of Europe, but having Community based operations) with at least 1000 employees within the...