The recast EWC directive

Transcription

1 The recast EWC directive Directive 2009/38/EC (+) (+) 150 (+)

2 Companies affected by the directive New agreements June 2011 Volontary agreements...22/9/1996 Agreements dir 94/45 5/6/2009 5/6/ (+) (+) 150 (+) June 2011 in cases of restructuring

3 Controlling undertakings Criteria determining a controlling undertaking

4 Constitution of a special negotiating body Central management 5% 12% Special negotiating body 100 (+) Written request for negotiations 55% 28 %

5 Trade unions - Syndicats - Gewerkschaften? Special negotiatin g body EIF Coordinator

6 Negotiations EIF Coordinator Expert s Special negotiatin g body /3 2 No!

7 Information Avis Opinion Stellungnahme Consultation Impact? Time Temps Zeit Content Contenu Inhalt Fashion Manière Weise EWC - CEE

8 Items to be agreed in the agreement Undertakings affected Composition of the EWC Special negotiating body 2x Venue, frequency and duration of meetings Financial and material resources &Training EWC to represent collectively Local the interests of the Linkage EWC & local employees representation bodies representation bodies Information and consultation Validity of the agreement

9 Transnational?

10 A new agreement or the Subsidiary requirements? NO! Central management 6 months 100 (+) Subsidiary requirements

11 Application of subsidiary requirements EIF Coordinator Expert s Special negotiatin g body 3 years Subsidiary requirements

12 Subsidiary requirements EWC extra Compostion of EWC One meeting per year Extraordinary meetings Internal preparatory meeting Information and consultation Financial and material resources & Training Undetakings covered Experts Select committee (5!)

13 Information Avis Opinion Stellungnahme Consultation Impact? Time Temps Zeit Content Contenu Inhalt Fashion Manière Weise EWC - CEE

14 Avis Opinion Stellungnahme Information Consultation Impact? RESPONSE EWC - CEE

15 Information and consultation rights (subsidiary requirements) Company structure Economic and financial situation and trends Changes in activities, production and sales Employment trends Investment plans Transfer of production Organisational changes Mergers, downsizing, closures New working methods Collective redundancies

16 Directive 2009/38/EC Art 13 agreements...22/9/1996 Art 6 agreements 5/6/2009 5/6/2011 New agreements June 2011 Art 13 agreements when expiring Mergers, downsizing, closures Art 6 agreements Restructuring

17 Existing EWCs and Restructuring? Merger - Fusion EWC - CEE 1 EWC - CEE 2 Special negotiating body

18 The recast EWC directive Directive 2009/38/EC (+) (+) 150 (+) After 10 years of attempts to amend the EWC directive (94/45/EC) on 16 May 2009 the European Commission announced a revised recast directive 2009/38/EC. The most important changes in the recast directive 2009/38/EC relate to: Inclusion of a definition of information Improvement of the definition of consultation Inclusion of a definition of transnationality and clarification of the transnational competence of EWCs Link between various levels of employee information and consultation Employers' obligation to provide EWC members with training Facilities provided to the SNB, such as pre and post meetings, the presence of experts including trade union members- in the negotiation meetings Obligation to inform the European social partners of negotiations (= recognition of the role of the European social partners) Mandate for the employee reps in the EWC to collectively represent the employees and obligation for the management to provide the EWC with means necessary to perform this function 1

19 Companies affected by the directive New agreements June 2011 Volontary agreements...22/9/1996 Agreements dir 94/45 5/6/2009 5/6/ (+) (+) 150 (+) June 2011 in cases of restructuring A Community- scale undertaking means any undertaking with at least 1000 employees within the member states and at least 150 employees in each of at least two member states. For the purposes of this calculation, the 150 employees may be working in more than one plant or location in the country in question. The prescribed thresholds for the size of the workforce are based on the average number of employees during the previous two years. Part- time employees are included, often on a pro rata basis. 2:1 The obligations arising from this directive may not apply to: an agreement or agreements covering the entire workforce, providing for the transnational information and consultation of employees have 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 the undertakings or groups of undertakings; or (b) an agreement concluded pursuant to Article 6 of Directive 94/45/EC is signed or revised between 5 June 2009 and 5 June 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 applicable agreements 13: But the definitions in art 2-3 yes 2

20 Controlling undertakings Criteria determining a controlling undertaking Individual establishments and subsidiaries are regarded as belonging to an undertaking if the parent company is a controlling undertaking. Article 3 of the EWC Directive defines a controlling undertaking as an undertaking that exercises a dominant influence over another by virtue of, for example, financial participation or the rules which govern it. A dominant influence is presumed to exist in cases of direct or indirect possession of a majority of the undertaking s capital, votes or executive positions. The central management is the management of the controlling undertaking. The central management is the counterpart of the employees representatives in talks regarding the establishment of an EWC and is required to provide the requisite conditions and resources for the negotiations designed to lead to the creation of an EWC. If the central management is located outside the EU, its representative within the EU is responsible for taking the requisite measures. Should there be no such representative, the management of the establishment with the largest number of employees in one member state is responsible for these arrangements. The management of every undertaking belonging to the Community-scale group of undertakings and the central management or the deemed central management within the meaning of the second subparagraph of paragraph 2 of the Community-scale undertaking or group of undertakings shall be responsible for obtaining and transmitting to the parties concerned by the application of this Directive the information required Article 4 3

21 Constitution of a special negotiating body Central management 5% 12% Special negotiating body 100 (+) Written request for negotiations 55% 28 % Negotiations can start on the initiative of management or at the written request of at least 100 employees or their representatives from two countries. For this purpose, a Special negotiating body (SNB) has to be created. The members of the special negotiating body shall be elected or appointed in proportion to the number of employees employed in each Member State by the Community-scale undertaking or Community-scale group of undertakings, by allocating in respect of each Member State one seat per portion of employees employed in that Member State amounting to 10 %, or a fraction thereof, of the number of employees employed in all the Member States taken together; The national transpositions of this directive must stipulate the method to be used for the election or appointment of the members of the special negotiating body who are to be elected or appointed in their territories. For the purpose of the negotiations, the special negotiating body may request assistance from experts of its choice which can include representatives of competent recognised Community-level trade union organisations. The SNB has three years to reach agreement on setting up an EWC. Any expenses relating to the negotiations are to be borne by the central management, so as to enable the special negotiating body to carry out its task in an appropriate manner. The special negotiating body may decide, by at least two thirds of the votes, not to open negotiations in accordance with paragraph 4, or to terminate the negotiations already opened. Such a decision brings to a halt the procedure to conclude the agreement Where such a decision has been taken, the provisions in the Annex do not apply. A new request to convene the special negotiating body may be made, at the earliest, two years after the abovementioned decision, unless the parties concerned lay down a shorter period. No situation of this type has yet arisen in practice. Article 5 4

22 Trade unions - Syndicats - Gewerkschaften? Special negotiatin g body EIF Coordinator The recognition of the role of the European social partners opens opportunities to step up trade union co-ordination around EWCs. competent recognised Community-level trade union organisations = trade union co-ordination. Article 5 Recognition must be given to the role that recognised trade union organisations can play in negotiating and renegotiating the constituent agreements of European Works Councils (Preamble 27) 5

23 Negotiations EIF Coordinator Expert s Special negotiatin g body /3 2 No! 6

24 Information Avis Opinion Stellungnahme Consultation Impact? Time Temps Zeit Content Contenu Inhalt EWC - CEE Fashion Manière Weise (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 for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings; (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 into account within the Community-scale undertaking or Community-scale group of undertakings; Article 2 7

25 Items to be agreed in the agreement Undertakings affected Composition of the EWC Special negotiating body 2x Venue, frequency and duration of meetings Financial and material resources &Training EWC to represent collectively Local the interests of the Linkage EWC & local employees representation bodies Information and consultation Validity of the agreement representation bodies 1. The central management and the special negotiating body must negotiate in a spirit of cooperation with a view to reaching an agreement on the detailed arrangements for implementing the information and consultation of employees 2the agreement shall determine: (a) the undertakings of the Community-scale group of undertakings or the establishments of the Community-scale undertaking which are covered by the agreement; (b) the composition of the European Works Council, the number of members, the allocation of seats, taking into account where possible the need for balanced representation of employees with regard to their activities, category and gender, and the term of office; (c) the functions and the procedure for information and consultation of the European Works Council and the arrangements for linking information and consultation of the European Works Council and national employee representation bodies, (d) the venue, frequency and duration of meetings of the European Works Council; (e)where necessary, the composition, the appointment procedure, the functions and the procedural rules of the select committee set up within the European Works Council; (f) the financial and material resources to be allocated to the European Works Council; (g) the date of entry into force of the agreement and its duration, the arrangements for amending or terminating the agreement and the cases in which the agreement shall be renegotiated and the procedure for its renegotiation, including, where necessary, where the structure of the Community-scale undertaking or Community-scale group of undertakings changes. Article 6 8

26 Transnational? transnational matters Matters that concern the group as a whole or at least two establishments situated in two different member states (Article 1:4) : the employees must be properly informed and consulted when decisions which affect them are taken in a member state other than that in which they are employed Preamble (12) matters which, regardless of the number of countries involved, are of importance for the workforce in terms of the scope of their potential effects or which involve transfers of activities between member states Preamble (16) : 9

27 A new agreement or the Subsidiary requirements? NO! Central management 6 months 100 Subsidiary requirements (+) The EWC Directive encourages the social partners to set up EWCs on the basis of company agreements. In cases where negotiations break down, or if the company refuses to open negotiations, the subsidiary requirements laid down in the annex take effect. Article 7 Subsidiary requirements 1. In order to achieve the objective set out in Article 1(1), the subsidiary requirements laid down by the legislation of the Member State in which the central management is situated shall apply: where the central management and the special negotiating body so decide, where the central management refuses to commence negotiations within six months of the request referred to in Article 5(1), 10

28 Application of subsidiary requirements EIF Coordinator Expert s Special negotiatin g body 3 years Subsidiary requirements where, after three years have elapsed since the submission of the written request, no agreement has been able to be concluded on setting up an EWC. Article 7 11

29 Subsidiary requirements EWC extra Compostion of EWC One meeting per year Extraordinary meetings Internal preparatory meeting Information and consultation Financial and material resources & Training Undetakings covered Experts Select committee (5!) (5!) The subsidiary requirements are minimum standards for the establishment of EWCs constituting guaranteed rights in companies which are unwilling to negotiate or in which no agreement has been reached. The subsidiary requirements do not apply where company agreements are in force. In other words, once an EWC agreement has been concluded, recourse to the subsidiary requirements is no longer possible. These subsidiary requirements, however, offer the special negotiating body an advantage in its attempts to obtain additional or better tailored provisions in the agreement to establish the EWC. The essence of the subsidiary requirements can be summarised under two headings. Firstly, they lay down important rules for the organisation and structure of the EWC. Secondly, they enumerate the issues about which the company must as a minimum requirement inform and consult the EWC.. 12

30 Information Avis Opinion Stellungnahme Consultation Impact? Time Temps Zeit Content Contenu Inhalt EWC - CEE Fashion Manière Weise (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 for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings; (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 into account within the Community-scale undertaking or Community-scale group of undertakings; Article 2 13

31 Avis Opinion Stellungnahme Information Consultation Impact? RESPONSE EWC - CEE (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 for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings; (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 into account within the Community-scale undertaking or Community-scale group of undertakings; Article 2 14

32 Information and consultation rights (subsidiary requirements) Company structure Economic and financial situation and trends Changes in activities, production and sales Employment trends Investment plans Transfer of production Organisational changes Mergers, downsizing, closures New working methods Collective redundancies If no company agreement is reached, subsidiary requirements provide for information and consultation on matters that affect the whole company or group, or establishments in at least two member states. At the annual EWC meeting, the central management must report on at least the following issues: the structure of the undertaking its economic and financial situation and trends the probable development of the business and of production and sales the situation and probable trend of employment investment plans substantial organisational changes the introduction of new working methods or production processes production transfers cut- backs or closures of undertakings, production sites or important parts of these units collective redundancies. 15

33 Directive 2009/38/EC Art 13 agreements...22/9/1996 Art 6 agreements 5/6/2009 5/6/2011 New agreements June 2011 Art 13 agreements when expiring Mergers, downsizing, closures Art 6 agreements Restructuring 16

34 Existing EWCs and Restructuring? Merger - Fusion EWC - CEE 1 EWC - CEE 2 Special negotiating body 17