Sinaia

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EWC Legislation Update Dr Werner
Altmeyer Sinaia, 14.09.2009
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• Agenda
• Some figures Multinationals with EWC
• Intercultural Experiences
• EWC in Practice the problems so far
• Information and Consultation provision to EWCs
  was it timely and genuine?
• Legislation update New EWC Directive

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Multinationals with EWC

• EWC Directive
• 1994 EU Directive
• 1996 national laws
• 1999 Art. 15 ? Revision
• 2004 initiative
• 2009 new EU Directive
• 2011 new national laws

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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

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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 oneday meetings a year
• 3 out of 10 EWCs have mixed working groups on
  specific issues
• Source Evelyne Pichot, European Commission

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EWC Intercultural Experiences
Betriebsrat Works council Comité dentreprise
Gewerkschaften Trade unions Syndicats
Betriebsrat Gewerkschaften Works council
trade unions Comité dentreprise syndicats
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Anglo-Saxon model
Germanic model
Mediterranean model
Transformation model
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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

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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

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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

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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.

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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

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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

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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

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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 PO 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

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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

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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

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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

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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")

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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

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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)

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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)