Recast of the EWC Directive

Transcription

1 EXECUTIVE COMMITTEE Brussels, October 2008 EC. 181 Item 7 on the agenda Recast of the EWC Directive The Executive Committee is asked: To take note of this document ETUC/EC181/RH/bbd en 1

2 The Recast EWC Directive Summary of recent developments ETUC background paper 2 July 2008: Commission issued a proposal for a European Parliament and Council Directive on EWC (recast) July 2008: ETUC assessment of the proposal for a revised Directive 11 July 2008: informal Employment and Social Affairs Council in Chantilly: President urged social partners to give joint advice on key issues of the draft revised Directive, the president of the social affairs and employment committee supported the idea of a joint advice 28 July 2008: joint meeting of social partners with the EPSOC President, followed by several meetings of social partners 6 August 2008: draft of the joint advice 29 August 2008: final joint advice 9 September 2008: joint partners presented the joint advice to the Councils working group 16 September 2008: Discussion at the intergroup of the EP 17 September 2008: proposal by the Presidency for a new drafting on Article September 2008: discussion on recent developments at the steering committee in London 10 October 2008: Social partners agreed with modifications the new drafting of Article 13 2

3 1. In April the ETUC rejected the option to negotiate a revised EWC directive through the European social dialogue. On 2 July the European Commission presented a proposed recast directive to the European Parliament as part of a larger social package. The Commission s proposal included: new information and consultation definitions, a new transnationality rule, a right to an explanatory response in consultation, rules for linking national and European levels of consultation, a right to select committees and follow-up meetings, recognition of the need for gender balance to be taken into account, a new formula for the composition of SNBs and EWCs in the subsidiary requirements, an entitlement to attend training, a recognition of trade union experts for SNBs, the right of EWC members to collectively represent the interests of the employees and have the means to apply their rights, social partner notification of new negotiations, an obligation on EWC members to communicate with other levels of representation, a right to interpretation covered by subsidiary requirements and procedures for safeguarding and renegotiating EWCs in the event of structural change. 2. A number of ETUC demands were not addressed by the Commission but the proposals were recognized as modest progress. Our main complaints were that the information and consultation definitions were too weak, the right to training was not good enough and the new definition of transnational went against one of the founding principles of the directive: that employees are properly informed and consulted when decisions which affect them are taken in a Member State other than that in which they are employed. 3. In July the French Presidency asked the European Social Partners to give joint advice on a restricted number of issues for the revision of the EWC Directive in order to make political agreement possible before the end of A text was agreed between all the European Social Partners and sent to the French Minister of Employment, on 29 August. The advice deals with the definitions of information and consultation, the recognition of trade union experts, representing the interests of the employees, training, linking national and European levels of information and consultation and a new Article 13 period. No agreement was possible on the definition of transnationality 4. The new Article 13 period has also caused controversy partly because the drafting in the advice is unclear. However, Business Europe have confirmed that the intention is simply for a new two year period in which the new directive will not apply to EWC agreements but the laws stemming from the current directive will still be in place and will apply. On this basis ETUC and BusinessEurope are now bound to actively support this advice and not to lobby on other issues, in order to get the changes agreed by the end of the year. 5. Social partners have been invited by the French Presidency to present their joint advice to the Council s working group. A number of Member States asked for clarification on Article 13 and Social Partners confirmed a new window of opportunity for Article 13 agreements on the basis of the 3

4 94/45/EC Directive. The French Presidency asked the Commission to propose a new wording on the article in order to avoid any legal uncertainties. Finally the social Partners agreed with modifications to the proposal (see annex 3). The compromise on recital 22 will not change the content of Article 2 (f), it qualifies the obligation of management to present information in good time to avoid decision making processes in the undertaking. Article 13.1 also confirms that old Article 13 agreements have to apply to the Directive in cases of restructuring in case management and workers representatives of the EWC can t agree on a reviewed or revised agreement. There will be no window for new agreements outside the scope of the Directive. 6. Although it does not address a number of important demands, ETUC is asking for the speedy adoption of the Commission s proposal as modified by the joint advice. Agreement with the employers inevitably involved making a number of compromises but the advice does improve key aspects of the Commission s draft, especially on the definitions of information and consultation and on training. Furthermore, the biggest threat to the revision right now is timing if we want to get this ready for the Council of Ministers on December 15, to be sure that we don t end up back at square one with a new European Parliament and Commission after the elections next year. The fact that Business Europe supports the advice will help to prevent delays and the rapporteur, a British Conservative MEP who would not normally be expected to cooperate with unions on this issue, has said that he will respect the advice and the timetable providing there are no other radical amendments. 7. Although this advice should ease the legislative process, it does not give us any guarantees. Obstacles are still possible in Parliament and the Council. Some, who want to avoid more progressive legislation, are still undoubtedly hoping to kill or weaken the revision. Others want to demand much stronger measures, even if that destroys the chances for revision by causing unworkable delays. We believe that the Commission s proposal, modified by the joint advice, offers some real and worthwhile improvements to the legislation. 8. The ETUC Executive Committee is asked to take note of the recent developments. 4

5 Overview of Commission s Proposal New transnationality rule (1.4.) New information and consultation definitions (2(f) and 2(g)) All management boards shall be responsible to transmit information required for commencing negotiations (4.4.) New formula for the composition of SNBs and EWCs in subsidiary requirements (5.2. (b) and subsidiary requirements) Social partner notification of new negotiations (5.2. (c)) Meetings without management before and after SNB meetings(5.4.) Recognition of trade union experts for SNBs (5.4.) Recognition of the need for gender balance to be taken into account (6.2. (b)) Rules for linking national and European levels of consultation (6.2. (c)) Duration of agreements (6.2. (g)) EWC members to collectively represent the interests of the employees (10.1.) Means to apply rights (10.1.) Obligation on members to communicate with other levels of representation (10.2.) Entitlement to attend training without loss of wages (10.4.) Right to interpretation covered by subsidiary requirements Procedures for safeguarding and renegotiating EWCs in the event of structural change (13.3.) Review clause (after 5 years) (15) A right to an explanatory response in consultation (SR 1.(a)) 5

6 The ETUC Business Europe Joint Advice 1. Art 2 (f): 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; information shall be given 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 consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings; 2. Art 2 (g): Consultation means the establishment of dialogue and exchange of views between employees representatives and central management or any more appropriate level of management, 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 about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which may be taken in to account within the Community-scale undertaking or Community-scale group of undertakings. 3. Art 5.4 3: For the purpose of the negotiations, the special negotiating body may request assistance with its work from experts of its choice which can include representatives of competent recognised Community-level trade union organisations. Such experts and such trade union representatives may be present at negotiation meetings in an advisory capacity at the request of the special negotiating body. 4. Art 10.1: Without prejudice to the competence of other bodies or organisations in this respect, the members of the European Works Council shall have the means required to apply the rights stemming from this Directive, to collectively represent the interests of the employees of the Community-scale undertaking or Communityscale group of undertakings. 5. Art 10.4: In so far as this is necessary for the exercise of their representative duties in an international environment, the members of the special negotiating body and of the European Works Council shall be provided with training without loss of wages. 6. Art 12.3: Where no such arrangements have been defined by agreement, the Member States shall ensure that the processes of informing and consulting are conducted in the European Works Council as well as in the national bodies in cases where decisions likely to lead to substantial changes in work organisation or contractual relations are envisaged. 6

7 7. Art 13.1 Without prejudice to paragraph 3, the obligations arising from this Directive shall not apply to Community-scale undertakings or Community-scale groups of undertakings in which there was already an agreement on 22 September 1996, or in which an agreement is signed or an existing agreement is revised during the two years following the adoption of the present text, or in undertakings in which such agreements exist and which are due to negotiate under paragraph 3, covering the entire workforce providing for the transnational information and consultation of employees when these agreements expire, the parties to those agreements may decide jointly to renew them. Where this is not the case, the provisions of the Directive shall apply". 8. Art 13.3 last paragraph to be deleted Demands for the revision which are not covered Thresholds (500/100) Sanctions (effective, proportionate and dissuasive) Definition of controlling of undertaking (joint ventures) Definition transnational New threshold (fifty) for SNB and EWC composition Renegotiation of article 13 agreements on request Number of meetings Follow-up meetings of the EWC Negotiation period 12 plus 6 month Content of agreements (in subsidiary requirements) The right of EWC to meet without management after joint meetings Confidentiality (not foreseen in all member states) Deletion of reference to merchant navy crews, ideological guidance Experts (limitation to one expert) Proposed New Drafting Article Article 13 Adaptation Where the structure of the Community-scale undertaking or Community-scale group of undertakings changes significantly, and either in the absence of provisions established by the agreements in force [..] or in the event of conflicts between the relevant provisions of two or more agreements applicable, the central management shall initiate the negotiations referred to in Article 5 on its own initiative or at the written request of at least 100 employees or their 7

8 representatives in at least two undertakings or establishments in at least two different Member States. At least three members of the existing European Works Council or of each of the existing European Works Councils shall be members of the special negotiating body, in addition to the members elected or appointed pursuant to Article 5(2). During the negotiations, the existing European Works Council(s) shall continue to operate in accordance with any arrangements agreed between the members of the European Works Council(s) and the central management. Article 13 bis Agreements in force 1 Without prejudice to Article 13, the obligations arising from this Directive shall not apply to Community-scale undertakings or Community-scale groups of undertakings in which i) an agreement or agreements covering the entire workforce providing for the transnational information and consultation of employees has been concluded pursuant to article 13(1) of Directive 94/45/EC or article 3(1) of Directive 97/74/EC[..], or where such agreements are adjusted because of changes in the structure of undertakings or group of undertakings; ii) an agreement concluded pursuant to article 6 of Directive 94/45/EC is signed or revised between the entry into force and the date provided for under Article 15 of this Directive (two years after). The national law applicable when the agreement is signed or revised shall continue to apply to the undertakings or groups of undertakings referred to in point ii). 2 When the agreements referred to in paragraph 1 expire, the parties to those agreements may decide jointly to renew or revise them. Where this is not the case, the provisions of the Directive shall apply. [..] Recital 40) Unless this adaptation clause is applied, the agreements in force should be allowed to continue in order to avoid their obligatory renegotiation when this would be pointless. Provision should be made that as long as agreements concluded prior to 22 September 1996 under Article 13(1) of Directive 94/45/EC or under 3(1) of Directive 97/74/EC remain in force, they should continue not to be subject to this Directive [..] Furthermore, this Directive does not establish a general obligation to renegotiate the agreements concluded pursuant to Article 6 of Directive 8

9 94/45/EC between 22 September 1996 and the date provided for under Article 15 of this Directive.[ex 13.2] Recital 22: The definition of information needs to take into account of the goal of allowing employees representatives to undertake an in-depht assessment of the possible impact and where appropriate prepare consultations, which implies that the information be provided at such time, in such fashion and with such content as are appropriate without slowing down the decissionmaking process in companies. 9