European Works Council Directive

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The European Works Council Directive 2009/38/EC (or sometimes the "Transnational Works Council Directive") is a European Union Directive on the establishment of works councils, for the purpose of information and consultation, in companies that operate transnationally within the EU.

Background

The present 2009 Directive updated the Works Council Directive 94/45/EC, which in the same pattern as now, applied to every firm with over 1000 employees, and at least 150 employees in a different member state. It stipulated that employees must be informed and consulted on matters closely affecting employment of workers over at least two member states, such as the ‘prospective trend of employment, any substantial change in firms’ organization and production processes and collective redundancies or sales of undertakings.’[1] In 2005, the EU Commission issued a draft proposal to update the 1995 Directive,[2] noting particularly that while 820 European Works Councils existed, that represented merely 36% of the enterprises falling within the scope of the directive and around 60% of employees. It also took the position that works councils as they stood were not ‘up to the task of playing their full role in anticipating and managing change and building up a genuine transnational dialogue between management and labour’.[3] With that in mind, the 2009 Directive was issued.

Provisions

The preamble of the Directive explicitly aims for ‘increasing the proportion of EWCs established’, ‘ensuring the effectiveness of employees’ transnational information and consultation rights’, and ‘remedying the lack of legal certainty resulting from some of its provisions or the absence of certain provisions, and ensuring that Community legislative instruments on information and consultation of employees are better linked’. It also emphasises that information must be provided ‘without slowing down the decision-making process in undertakings’.[4] According to article 1(1) the 'purpose of this Directive is to improve the right to information and to consultation of employees in Community-scale undertakings and Community-scale groups of undertakings.’ Community scale undertakings are defined in article 2(1)(a) as having over 1000 employees in at least two member states. In article 2(1)(g) "consultation" is defined to mean

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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 into account within the Community-scale undertaking or Community-scale group of undertakings

The procedure for establishing works councils follows on under article 5 from either the initiative of management, or the request of over 100 employees. Once this happens, under article 6 both sides are under a duty to negotiated in good faith to reach agreement about the scope of the works' councils' functions, the composition and number of representatives on the works councils. Representatives have the right to perform their functions as part of their job, and so they do not lose pay for time spent on works council matters.

The Directive stipulates that information and consultation in European Works Councils should be integrated with national employee representation bodies.

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National implementation

In the United Kingdom, the relevant regulations are the Transnational Information and Consultation of Employees Regulations 1999. In Germany, the Europäische-Betriebsräte-Gesetz - implementing the 1994 Directive - is currently under revision due to the 2009 Directive.

See also

Notes

  1. ↑ For cases on the Directive, see C-62/99 Bofrost [2001] ECR I-2579, C-440/00 Kuhne and Nagel [2004] ECR I-787, and C-349/01 Anker [2004] ECR I-6803, all on access to information to set up the Special Negotiating Body.
  2. ↑ COM (2005) 33 final
  3. ↑ COM (2005) 33 final, para 5
  4. ↑ Recital 22

References

  • S Laulom, ‘The Flawed revision of the European Works Council Directive’ (2010) 39(2) Industrial Law Journal 202, 204, argued the new revision is still too vague on the exact competences of the Works Councils and the link between national and EU procedures. 206-207, ‘absence of consensus between European social partners made any clarification impossible and the new text contains contradictory statements capable of bearing very different interpretations.’
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