13 proposals for the revision of the Directives to improve employee involvement by Prof. Filip Dorssemont* – University of Louvain – legal expert for our European Project (*coordinated with the Fisac Staff of the Project)

1) Generalizing the wording “with a view to reaching an agreement” to the EWC Directive 2002/38 in case of information and consultation concerning proposed decisions which affect the employees’ interests under exceptional circumstances

from:

art.4.4.e) of Directive 2002/14 on the information and consultation of employees

art.7.2 of Directive 2001/23 on the transfer of undertakings art. 2.1 of Directive 98/59 on collective redundancies

2) Generalizing the wording “The consultation shall be conducted in such a way that the employees’ representatives can meet with the central management and obtain a response, and the reasons for that response, to any opinion they might express (Directive 2009/38 on information and consultation) to the other Directives on employee involvement.

3) In case of restructuring, the Directives on employee involvement must include an obligation to information and consultation, instead of a simple “right” for workers to be informed and consulted.

4) The EU Directives on employee involvement should include corporate strategies and economic policies in the right to information and consultation, and not only their implementation.

5) The wording “information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provisions referred to in Article 9(1) (Art.4.2.c of Directive 2002/14 establishing a general framework for informing and consulting employees) is preferable to the wording “Where there are exceptional circumstances or decisions affecting the employees’ interests to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or collective redundancies, the select committee or, where no such committee exists, the European Works Council shall have the right to be informed” (subsidiary requirements of Recast Directive 2009/38).

   6) We need to have information and consultation procedures at all levels: -establishment -undertaking -group of undertakings -Community- scale group of undertakings

7) Representatives of Community-level trade unions can serve as experts for the special negotiating body. This provision should be extended to their role as experts in EWCs as well.

8) Granting the right to training for workers’ representatives not only at the EWC level, but also at the establishment or undertaking level.

9) Stating clearly that the costs of this training should be borne by the local and central management. Workers’ representatives should also be left free to choose their training path, provided that they communicate the summary of training activities to the local and central management.

10) Generalizing the role of experts at the local as well as central level.

11) Ensuring that, if there are no workers’ representatives, there is a default scenario not only in the case of transfer of undertaking, but also in the case of collective redundancies. Furthermore, making sure that, if there are no workers’ representatives, a generic system for employee involvement is put in place.

12) In case of collective redundancies, Member States can choose between two different definitions. Ensuring that there is information and consultation in both scenarios or definitions of collective redundancies. Extending the definition of collective redundancies over a period of 90 days to 6 months.

Article 1 – Directive 98/59

1. For the purposes of this Directive:

a) ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is:

• either, over a period of 30 days:
• at least 10 in establishments normally employing more than 20 and less than 100 workers,
• at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers,
• at least 30 in establishments normally employing 300 workers or more, or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question;

 13) Establishing an explicit sanction in case of violation of information and consultation procedures, such as the suspension of the restructuring process