Italy, Greece and Luxembourg have not yet transposed the EWC Directive

The 27 EU countries as well as Norway, Iceland and Liechtenstein had until 5th June 2011 to transpose the new Directive on European works councils into their national legislations. Of these 30 countries only eleven have respected the timing (see report in EWC News 2/2011). In July 2011 the European Commission consequently sent formal reminders to 17 countries and on 24th November 2011 initiated official infringement procedures against four countries.

• European Commission press release

One of these procedures (against the Netherlands) was superfluous, since the legislative procedure had already been concluded and the new EWC legislation came into force on 15th November 2011. Following texts are available only in Dutch:

• Report on the legislative procedure
• Full text of new EWC legislation
  

In Luxembourg the government adopted the draft bill on 11th November 2011, which was submitted to parliament on 29th November 2011. The legislation has not yet been passed. Following texts are available only in French:

• Report on new EWC legislation in Luxembourg
• Full text of draft bill

Transposition is also underway in Greece. On the other hand the situation looks totally different in Italy where there were already problems after the adoption of the old EWC Directive (from the year 1994). The Italian legislator only took action after being summoned by the European Commission and passed the EWC legislation in 2002.

The reason for this is that Italians are accustomed to negotiating agreements between the union confederations CGIL, CISL, UIL and the employers as part of collective bargaining. On 12th April 2011 they consequently concluded a common position on the new EWC Directive, which, unlike for example Belgium, is not universally applicable. Now how do companies without union representation stand? Since an EU-Directive applies however to all Italian employees without exception, the legislator has been invited to fill in this legal loophole.

• Full text of the common position (in Italian)

Legal case against "participation-free sanctuaries"

On 24th November 2011 the European Commission in Brussels decided to bring the Netherlands before the European Court of Justice. The litigation is for incorrect transposition of European Union regulations for participation rights on supervisory boards following transnational mergers.

The complaint arises from a legal claim made by a Dutch trade union dating from the year 2008. The Netherlands is a preferred location for foreign holding companies. Apart from fiscal considerations, the ability to avoid participation rights by these means also plays a role. An employee representation on the supervisory board can be elegantly avoided with just a small office or a "letter box" at Amsterdam airport, providing there are only a few employees within the Netherlands. For example EADS, the parent company of Airbus, or Ikea, the Swedish furniture group have hereby officially declared their company headquarters in the Netherlands.

• European Commission press release

• Full text of Federal Law Gazette publication (in German)

Caution with adaptation clauses according to article 13

One of the most important improvements of the new EWC Directive is the legal right to a renegotiation of the agreement after "changes in structure" of the company (mergers, spin-offs, closures, delocalization of company headquarters). With a view to removing this legal right many companies - above all British and American – are currently trying to persuade their European works councils to sign an adaptation clause to their EWC agreement. What legal rights do employee representatives lose if they thoughtlessly sign such clauses?

The provisions set down by law for changes in structure

Article 13 of the new EWC Directive states the following:

Where the structure of the Community-scale undertaking ... 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 applicable agreements, 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 representatives in at least two undertakings or establishments in at least two different Member States.

Composition of the Special Negotiating Body (SNB)

Article 5 of the new EWC Directive regulates the creation of the SNB for the first establishment of a European works council. When there is however a change in company structure, further members are added to the elected SNB members from each country: hereby each existing European works council sends at least three of its members into the SNB. So where there are changes in company structure there is an opportunity to put the whole EWC agreement to the test, to renegotiate and to substantially improve its’ quality. Even though the process may take up to three years, during this time the existing European works councils remain in office.

This is particularly important in old "voluntary" agreements, which were concluded for the first time before September 1996, or which were modified between June 2009 and June 2011. In these cases the request for renegotiation according to article 13 leads automatically to an improvement in the legal status, even if the actual contents of the EWC agreement remain unchanged (this does not apply however to EWC agreements under British law). The signing therefore, of an adaptation clause, which invalidates article 13, can only be strongly discouraged.

Adapatation clauses undermine employee negotiating power

Even if central management frequently argues that these clauses are merely a way of avoiding a long and bureaucratic procedure, the suggestions however are targeted at the quality of the EWC agreement. When a EWC signs such a clause it is giving up any “means of bargaining” without any compensation in return. N.B.: Often in the text proposed by management no express mention of Article 13 is made, even though it is to be invalidated!

Workshop on renegotiation of EWC agreements

A workshop is being organized from 8th to 10th October 2012 on Rheinfels Castle for European works councils wishing to renegotiate their EWC agreement. There will be a special emphasis put on the legal situation after "changes in structure".

• EWC workshop program (in German)

First German-British EWC conference in London

Around 40 participants predominantly from Germany, the UK, but also from four other countries, came together on 27th and 28th October 2011 in London, for an exchange on working experience within their European works councils and on the rules of the game for employee representation. The conference was organized in co-operation with the London branch of the Friedrich Ebert Foundation. Every fifth EWC is subject to British legislation and nearly all German transnational companies have a location in the UK. This direct exchange will therefore be continued in future. The next German-British EWC conference in London is planned for 25th and 26th October 2012.

• Documentation on London EWC conference
• Intercultural problems in the German-British context (in German)
• Presentation of the British system of employee representation (in German) 

Recent news from British companies

Since there is no legal basis for works councils or participation in the United Kingdom, the collective regulation of working conditions is only possible through trade union committees and on the basis of in-house collective agreements. Trade unions must first fight to be recognized as a party to collective bargaining in each individual company. Even though there has been legislation on the matter since the year 2000, the actual situation varies greatly from company to company. Some recent examples:

• Trade unions were recognized in October 2011 at Kammac. This company in the Midlands is specialized in logistics and storage for the brewery industry. The workforce voted in a secret ballot and without any opposition for the recognition of the trade union, Unite, who, in the future, will negotiate working conditions through in-house collective agreements. Next step is the negotiation of a “recognition agreement” with management, which will cover the basic rules for the establishment of an employee representation body (see report).

• LSG Sky Chefs, the catering company at Manchester airport, is one step further. A “recognition agreement” was signed there in November 2011, which regulates the details of employee representation (see report).

• An opposite example is to be observed at Honda in the South West of England. In their Swindon plant the employer is using legal means to try to derecognize the Unite union. In July 2011, the convenor – which is similar to a German works council chairman – was suspended from his job (see report).

Largest labour dispute since the general strike in 1926

Between two and three million people took part in a nation-wide general strike on 30th November 2011 in the United Kingdom to secure their pension rights. The government wants to use the pension funds to consolidate the national budget. Unlike in Continental Europe, British pensioners are dependent, to a substantial extent, on payments from their employer’s pension funds. The national pension covers only minimum benefits.

Whereas such nation-wide general strikes are quite frequent in Mediterranean countries due to the very extensive strike rights there, a British general strike comes as a real sensation. The many obstacles from the Thatcher legislation do not make it easy for British trade unions to fulfill the formal conditions. There had therefore to be held a strike ballot covering all potential strikers throughout the whole country.

• Report on strike ballot
• Report on general strike (in the German trade union press)

Although the general strike on 30th November 2011 was dominated to a large extent by the public services, there are also problems with pension funds in the private sector. The British Ford subsidiary is now threatened with its first strike ballot since the 70's. Unilever, the world-wide consumer group is one step further, with strikes in several plants throughout England on 9th December 2011 in defense of pension rights. Support came also from their European works council.

• Report on pension negotiations at Ford
• Report on the strikes at Unilever
• Report on the visit of the EWC delegation
  
• Full text of EWC solidarity declaration
  

• Press statement on the signing of the agreement
• Report on resignation from the Economic and Social Council
• Report on the reform of the collective bargaining system
  

• Report on the increase in working time (in German)
• Portuguese government announcement (in Portuguese)
  

Airbus doubles number of meetings

On 27th June 2011, Airbus’s EWC agreement was updated. The number of annual plenary meetings for the 18 EWC members was increased from two to four. One representative each from both suppliers, Aerolia and Premium Aerotec, participate as guests - these are subsidiaries, which were first spun-off but in the end not sold.

The new EWC agreement adopts the definition of information and consultation from the new EU Directive. The European works council of Airbus was created in 2001 under Dutch legislation. Strictly speaking it is only a Divisional European works council within the EADS group, which has itself a European works council of its own at the Holding level. Their EWC agreement was already adapted in October 2008 (see report in EWC News 1/2009).

Supermarket chain strengthens the steering committee

The old Carrefour EWC agreement dating from the year 1996 was updated on 20th October 2011. The EWC is made up of 29 members from eight countries; including eleven from France, seven from Spain, and three each from Belgium and Italy. The five members of the steering committee meet three times annually. Following the French model they are not elected, but appointed by the UNI union federation in Brussels. All EWC members have an annual right to two days training and right of access to all sites in Europe. The first correct information and consultation procedure since the establishment of the EWC in 1996, took place in March 2011 (see report in EWC News 2/2011).

• Report on the signing of the agreement

Financial group updates EWC rules

Groupama, the French insurance and banking group updated its EWC agreement on 2nd December 2011. The working means of the EWC have been improved. Language courses are now expressly provided. Although the company has its headquarters in France, the employee chairperson (= EWC secretary) is located in Italy.

• Report on the signing of the agreement