Operating Without an Optional Legal Framework: Can Transnational Collective Agreements produce an added value?

Transcription

1 Operating Without an Optional Legal Framework: Can Transnational Collective Agreements produce an added value? Prof. Edoardo Ales Università di Cassino e del Lazio Meridionale

2 1. Aim of the paper To show that without an optional legal framework established at EU level Transnational Collective Agreements (TCA) are still facing problems related to levels, actors, effects and added value. However it has also to be taken into account that the European Commission has launched a public consultation among stakeholders as far as a non legislative support to TCA is concerned.

3 2. The transnational dimension of labour relations: a working definition. By transnational dimension of labour relations we mean that one created by workers and employers (representatives) who spontaneously agree on (or unilaterally define accepted) rules that go beyond the National dimension (differentiation in positive), without belonging either to the Supranational (EU Social Dialogue) or to the International (ILO Standards) dimension (differentiation in negative).

4 3. The Ales Report 2006: a proposal of an optional legal framework (transnational assisted by supranational EU-TCB) - I EU-TCB must be complementary to national collective bargaining systems. Definition of bargaining agents that can have access to and activate the optional framework. Definition of EU-TCB negotiating bodies. Definition of EU-TCA formal requirements.

5 3. The Ales Report 2006: a proposal of an optional legal framework (transnational assisted by supranational EU- TCB) - II Transposition of the EU-TCA into as many managerial decision (binding according to the national laws or practices) as the companies of the sector adhering to Employers Sectoral or Inter-sectoral Organisations represented within the JNB-SL or as the branch of the Multinational company represented within the JNB-CL. Provision of a voluntary and bipartite collective disputes resolution system on rights within the JNB. Provision of a bipartite compliance and control system through monitoring by the JNB.

6 3. The Ales Report 2006: a proposal of an optional legal framework (transnational assisted by supranational EU-TCB) - III Provision of an adequate enforcement procedure in case of non compliance. Individual and collective rights deriving from the managerial decision transposing the EU-TCA has to be enforced according to the same procedure usually applicable at national level to individual and collective rights deriving from the employment contract.

7 4. Levels - I The Ales Report was focused on the sectoral and inter-sectoral level. The idea was that EU Law has to stimulate and to enhance those dimensions of TCB which seem to be the only ones able to guarantee social and economic cohesion at transnational level as advocated by the Treaty and to extend solidarity beyond national borders in the time of globalised labour markets.

8 4. Levels - II Not surprisingly the proposal gained the support of one of the strongest European Trade Union (the former EMF now IndustriAll) which was well aware of the fact that Multinational Companies have already started to bargain with the EWC thus bypassing the sectoral level. Surprisingly the proposal was rejected by the European Social Partners (BusinessEurope and ETUC) which seemed to underestimate at that time the trend towards the companisation of industrial relations which was developing at national and, above all, at transnational level.

9 4. Levels - III As a matter of fact, reality shows that TCA has grown mostly if not exclusively as a company level tool. Indeed, if we exclude the products of the institutionalised European Sectoral and Intersectoral Social Dialogue, only few exceptions can be found at sectoral or inter-sectoral level: e.g. the Memorandum of Understanding between CIETT Corporate Members and UNI Global Union on Temporary Agency Work (24 October 2008).

10 4. Levels - IV On the other hand one may wonder whether BusinessEurope and ETUC can be regarded as Inter-sectoral transnational organisations or just actors of the European Social Dialogue with no effective link to the European Confederations, where they exist, which is not always the case, above all on the employers side.

11 5. Actors and effects - I Three interesting examples show that in case the TCA has been signed by the management and by a European trade union only its effects on the national level are limited according to the more favourable treatment principle.

12 5. Actors and effects - II Alstom Shanghai Electric European Agreement on social commitment during the transition period of the Joint venture between Alstom and Shanghai Electric on Boilers (16 January 2012). Actors: company management and European Trade Union (EMF) Effects: The agreement cannot replace more favourable national legislations and/or conventions pre-agreed at company level or at local, national or regional level..

13 5. Actors and effects - III IDEA (11 June 2009) and TALK (14 April 2010) at Thales. Actors: company management and European Trade Union (EMF) Effects: Provisions of the European agreement cannot supersede local laws, statutory provisions, agreements or practices in force in the European entities of the Thales group which are more favourable to employees..

14 5. Actors and effects - IV Alstom Schneider Electric Social commitments for the acquisition of the «T and D» activity of the Areva group (5 July 2010) - Actors: company management and European Trade Union (EMF) - Effects: The present agreement cannot be used in lieu of more favourable national legislations and/or conventions agreed at company level, at local, national or regional level..

15 5. Actors and effects - V A fourth example indirectly confirms the above reached conclusion: ThyssenKrupp Elevators: first German based multinational to sign a European Framework Agreement on Health and Safety (14 November 2012). Actors: company management, European Trade Union (IndustriAll), EWC, National Trade Union (IG Metal). Effects: No non-regression and nonsubstitution clause.

16 5. Actors and effects - VI Many companies are also concerned with the possible negative impact of these agreements on the legal structures for national collective bargaining and on issues such as union representation rights. As things stands today, TCAs can potentially place a company in conflict with national law on union recognition, for instance if a non-tca-affiliated union is the longrecognized local partner. (ITC-ILO 2010, 11)

17 6. The added value of transnational collective agreements - I In such a framework, its is very difficult from a legal point of view to assess the added value of TCA concluded outside an optional legal framework. If we stick to the conclusions of the Expert Group on TCA installed by the European Commission in 2009: 1. Legal risks are associated to the conclusion of transnational company agreements, particularly for company management. 2. There is no direct correspondence between the parties intentions as to the effects of the transnational company agreement they conclude and the actual legal effects produced, which remain therefore largely uncontrolled by the parties.

18 6. The added value of transnational collective agreements - II 3. There is no coherence across Member States as to the present legal effects of a given transnational company agreement. 4. Interferences may be created in the legal effects of national, local or company based collective agreements by the absence of links between TCAs and other levels of agreements..

19 6. The added value of transnational collective agreements - III It has to be stressed that as far as Social Partners were concerned in the Group of experts only BusinessEurope and ETUC have had permanent representatives. MC have only be invited on an ad hoc basis to present their experiences. On the contrary, reality shows that Multinational Companies increasingly rely on TCA to regulated also hard issues such as restructuring and health and safety at work (European Commission, SWD(2012) 264 final).

20 6. The added value of transnational collective agreements - IV In such a perspective and without the establishment of an optional legal framework, which should realistically look at the company level instead to the sectoral one, the added value of TCA will depend upon the efforts of Multinational Companies to involve the largest number of workers representatives in order to reach a joint enforceability of the contents of the TCA.

21 7. The non-legislative option The problem of options which are not legislative in nature is that their added value to what can be already be achieved by the parties using their autonomy is difficult to assess. Nevertheless, a non legislative solution could be represented by a Recommendation from the Commission issuing a Toolkit for TCA. Consultations with the parties that have already signed a TCA and which have already been involved in the presentations at the Group of Experts could help in organising and detailing such a toolkit (in most of the cases those TCA were regarded as best practices). In my view the involvement of European Trade Unions Federations would be advisable. On the contrary, the direct involvement of BusinessEurope would be counterproductive.