Works councils: defence or defencelessness

Any law or regulation should be constituted to include, in addition to the precise and concrete functioning of that which it seeks to legislate, the guidelines that allow the preservation of the fundamental rights and obligations established in the rest of the laws that govern us. That is, a law cannot force us to break another.

Any law or regulation should be constituted in order to include, in addition to the precise and concrete functioning of that which it seeks to legislate, the guidelines that allow the preservation of the fundamental rights and obligations established in the rest of the laws that govern us. That is to say; a rule cannot force us to break another.

For example, the Workers’ Statute Law (Spain) establishes the right of workers to participate in their company through certain representative bodies, mainly staff delegates and works councils.  It also establishes their competences, the way they are elected, the amount of their participation, etc.

However, without entering into the details, and as everyone knows, workers’ representatives are elected every four years, by voting on the lists of candidates proposed by the unions.

Once elected, and this is a very important factor, these representatives have the power to sign and negotiate with the company whatever they want, without the need or formal obligation to consult the workers, since their election implies a delegation of the workers’ representation to them.

It should also be noted that both the electors and the elected representatives must be employees of the company and must only meet minimum requirements regarding age and seniority in the company.

Usually, in a company, nobody pays much attention to their representatives or their works council if everything goes well. This is like what happens with insurance: better to spend the premium money, but never have to use it, than to lack it. A strange contradiction perhaps, but indisputable in its practical essence. But as with insurance, when you have to use it, there are usually problems and surprises.

Being a member of the works council has its drawbacks because of its obligations, but also advantages because of its rights, or as the law says, because of the guarantees required to protect the development of its activity in defence of workers’ interests.

On the one hand, they cannot be dismissed during four years of their mandate or the following one. They cannot be included in any redundancy procedure.  They also have the right to reply, unlike other workers, to any labour sanction imposed on them. They have a certain number of hours per month released without justification in their work activity and preference in the company’s training programme.

For the company, their existence also has advantages, and the first and reciprocal to that of the workers is to have a specific and defined body for dialogue and decision making with the workers. But it is much easier to “hijack” the will of 10 members of a works council than that of its 8,000 representatives, to give just one example. And that may be the problem.

Power corrupts, and there is no need to devote dozens of lines here to corroborate this. Unfortunately, it is a circumstance almost inherent to human beings that tends to appear as a temptation when we add one to the solitude of the individual. And trade union activity is not exempt from these temptations. Trade unions in this country (Spain) move a lot of money, both directly and indirectly. In 2011 alone, they received 18.3 million euros in direct subsidies from the Ministry of Labour, in addition to other income, mainly from training courses and social and labour integration programmes (175 million euros in 2010).

And within a company? Well, everyone should take advantage of their memory and experience and value the type of temptations, favours and benefits that their trade union representatives are subject to and draw conclusions from them. How many have rejected them and how many have not.

The worst thing is that at this point, workers in practice can do nothing to demand the highest quality of union representation from their union representatives, just as nothing can be done, following the example of insurance, to change the conditions of our inadequate insurance when the accident has already happened.

We conclude that the system is perverse, and while pursuing healthy and equitable preservation of justice and workers’ rights, again, human “idiosyncrasy” has taken care to make the most of it for its benefit and that of a few.

The delegation of workers’ rights, for specific causes and processes of labour conflict, should be able to fall to professionals, we insist, to competent and independent professionals in that defence and, above all, completely unaware of any possibility of acquiring outstanding debts and favours from the company. People without a “baggage” who, among other things, in the negotiation of a redundancy procedure are not going to take your job, but neither are they going to keep it.

In the same way that when a worker or the company itself faces a relevant process that affects its rights, it hires the best quality legal services that it can afford, outside the scope of its company the second and those that can be accessed in the first case.

Taking the example of CX’s redundancy procedure, have they not hired a prestigious law firm as advisors, instead of their legal advisors? Doesn’t the FROB hire external consultants and advisors for its reports, instead of its technicians, who have them and of unquestionable quality?

It is not possible to leave the lives of 2,453 people in the hands of 13 people without the latter having the necessary mechanisms to be able to moderate and express their participation and agreement in the decisions of those few, not even enjoying the right to be able to approve the representativeness of those who will sit at the negotiating table, with the excuse of a simple question of union discipline or due obedience for four years.

In civil society, one person can grant powers to another, but with the same freedom and voluntariness with which they are given, they can revoke them and leave them without effect.

The problem is not new, but is just another variant, with the same effects and the same implications and causes, as the often controversial and disputed Spanish electoral system and its closed lists.

We know that the solution is not simple and that the purpose of raising it should not be considered as a proposal for a strange discussion about what we think is the privatization of the trade union function. Nothing could be further from the truth. But there are certain situations, frequent and in everyone’s memory, which, due to their critical nature in the labour and personal future of the workers, the role of the trade union representatives is not commensurate in terms of credibility or prestige, nor does it respond to the real needs or the will of the workers.

Source: http://dimesecretillos.blogspot.com/2013/09/comites-de-empresadefensa-o-indefension.html