3. EWCs – procedures
Composition
The number of EWC members and the allocation of seats must be negotiated (see article 6b of the EWC directive). However, a mere list of countries with number of seats is not good enough. The agreement must contain a key for the allocation of seats per country.
This key should be balanced (respect for the size of the countries in terms of employment figures) but there should be no dominance by one country (as a possible solution, you may want to fix an upper limit of seats available per country). Other criteria may be considered, such as the number of sites and divisions or the number and representativity of national trade unions represented.
Election/ Appointment of EWC Members and Term of Office
Election/appointment must take place in accordance with national law/practice.
The question is often raised whether the provisions negotiated in EWC agreements have precedence over national laws. The EWC directive defines in article 2d) that the employees’ representatives are those “provided for by national law and/or practice”. Moreover, article 6 of the EWC directive gives no room for negotiation on this issue.
Hence, even if the parties have negotiated arrangements for the election/nomination of EWC members, national laws will always take precedence. Any provision in EWC agreements which is outside the scope of national laws must necessarily take the form of a recommendation.
In the event of lack of or insufficient provisions in the national transposition law allowing the election or appointment of EWC members, the procedure for the election or appointment of SNB members may make up for this lack. As a last resort, if this also proves insufficient, a democratic election by the whole workforce should be foreseen in the agreement.
Representatives of Management
The EWC directive considers the EWC as a collective body of employee representation. However, quite some agreements describe it as a mixed body that also includes representatives of Management.
In this situation, it must be secured that employee representatives on the EWC enjoy all the rights and tools as described in the EWC directive (right to hold preparatory and debriefing meetings, a duty to communicate with the workforce they represent without the Management being present, etc.).
Select Committee
The EWC must be entitled to elect a Select Committee composed of employee representatives only. N.B.: the “Select Committee” is often given different names: “Secretariat”, “Administrative Committee”, “Steering group”, etc.
Should the Select Committee be a mixed body, it is necessary to secure that the employee representatives may elect among them a small group that enjoys the same rights and means as any Select Committee composed of employee representatives only (meetings without the Management, etc.).
Ordinary EWC meetings – Frequency of meetings, venue and timing
The EWC must have a right to meet with central menagement at least once a year
The place and venue should be agreed between the Management and the Select Committee.
As a rule, EWC and Select Committee meetings are to take place in person. The use of technical/virtual means for meetings should remain exceptional and only if both parties agree. Teleconferences with many users are not feasible and other technical/virtual means should be preferred.
It is recommended to negotiate the right for at least two EWC meetings a year to ensure more continuity in the work of the EWC.
If the Management is not keen to accept two plenary EWC meetings a year, it is worth considering the possibility to request a second meeting outside the plenary meeting which would be for EWC members only (as foreseen in the Swedish transposition law) and with some time devoted to a training session.
The place should be varied as much as possible to give EWC members the opportunity to get to know the different locations of the group.
According to employers’ organizations since the COVID-19 pandemic in 2020, digital meetings have become a well-established and well-tested work method that has proven its value.
Agenda setting and working documents
The agenda must be jointly defined by the Management and the Select Committee.
However, the process must be democratic and include also the possibility for EWC members to transmit to the Select Committee requests/proposals for issues to be put on the agenda.
A delay must be fixed for sending the invitation and the agenda to all EWC members.
It is essential for a good preparation of EWC members that they also receive the working documents well in advance of the meeting. A time limit should be mentioned in the agreement.
Minutes of meetings
The agreement must specify who is tasked with drafting the minutes
Central Management and the Select Committee must have the possibility to read, transmit amendments/comments and to approve the final version.
A clear timeframe must be provided to secure that all EWC members receive the minutes within a reasonable delay.
The minutes must be made available in all necessary languages. Here too, a timeframe must be determined.
Exceptional circumstances – procedure for information and consultation
The EWC directive of 2009 introduced new definitions of information and consultation which present them as two linked but distinct phases in one process. Conducting them in one single meeting, at which the Management would simply disclose its final decision and vaguely discuss it with the EWC, is no longer acceptable.
This new reality must be reflected in EWC agreements:
- It is not enough to state that in exceptional circumstances the EWC or the Select Committee shall meet with the Management to be informed and consulted.
- Consultation can only be conducted after the information phase has been properly completed.
The information phase:
- The preliminary information may be conveyed to the employee representatives in ways other than telephone or video conferences.
- However, mere oral communication by the Management is not enough. After this preliminary information the Management must make the information available in writing. This information must be accurate and complete and include especially an analysis of the possible impact. Indeed, it is not the role of the EWC to make additional enquiries.
- It is not acceptable to state in the agreement that in some cases the Management may need to take quick decisions: although the employee representatives may not intentionally slow down the process and obstruct the decision-making process, the Management has the clear responsibility to provide the appropriate information as early as possible to allow for a meaningful information and consultation procedure.
According to the employers’ organization – This is a rather unbalanced view. The company’s board of directors also has its fiduciary duties to the owners and shareholders. So the agreement is a legitimate place for such a clause and should not be prohibited as such. Safeguards against abuse are of course necessary.
The employee representatives must have the time and the resources necessary. They must especially have the right to be assisted by subject-matter experts of their choice to be able to develop an in-depth understanding and, where appropriate, alternative proposals. The expert should assist them from the beginning and through the whole process.
The consultation phase:
- At this stage meetings between the Management and the employee representatives are essential. Discussions and exchanges of views on issues potentially impacting the future of employees should not take place in telephone conferences. Face-to-face meetings are the only option here.
- Employee representatives must be entitled to a preparatory meeting without the Management before the plenary meeting and a subsequent debriefing meeting.
- The employees’ point of view must be discussed and considered in the Central Management’s decision-making, e.g. before the final decision is taken.
- Before the process is completed, the Management must give an answer and the reasons for that answer to any opinion expressed by the EWC/Select Committee.
Who must be involved in the information and consultation procedure?
The whole EWC or, where the agreement stipulates that the procedure takes place at the level of the Select Committee, it must be expanded to include the EWC members of the countries concerned. Representatives of sites directly concerned by the circumstances or envisaged measures who are not members of the EWC must be involved in the whole procedure.
Available Means and Costs – The general approach to available means and costs
Financial and material resources are to be allocated to the EWC (see article 6.f), the EWC agreement must detail these means and include at least provisions on costs met by the company, languages, experts, time off, and communication means.
All necessary costs in connection with the work of the EWC must be met by the Management and not just the costs involved in attending meetings. The agreement could include a general statement by which the EWC members shall have at their disposal all means required for them to exercise their rights and duties under the agreement.
Working language, interpretation and translation
Simultaneous interpretation must be provided in all necessary languages for all meetings. It is not acceptable to restrict the number of necessary languages for cost reasons. All EWC members must be able to understand and participate actively at meetings.
Language training may not be used as an excuse to cancel interpretation. Still, this training is necessary to enable EWC members to gain sufficient knowledge of a language common to them for their communications outside of meetings.
Interpreters must be qualified professionals. The Management may not designate people to act as interpreters.
All documents must be translated in the necessary languages by professional translators to guarantee the quality of the texts.
According to employers’ organizations, these demands on translation are too extensive. It is not inappropriate to demand knowledge of a sufficient level of English or other languages widely used in the company.
Expertise
- o one external expert who is a trade union Coordinator and who assists the EWC as permanent adviser. The Coordinator must have the right to attend all meetings, including EWC plenary meetings and Select Committee meetings.
Travel time and time spent by EWC and Select Committee members in plenary, preparatory and debriefing meetings as well as training must count as working hours and be paid accordingly.
In addition, EWC members must be given the necessary time off to deal with the tasks and responsibilities the mandate entails. This time-off must also count as working hours.
Reporting back at the national/ local level
As part of their assignments, EWC members have a duty to report to the employee representatives, or in the absence of appropriate structures, to the whole workforce, about the work of the EWC. (See EWC directive, item 10.2).
It is not good enough to limit the duty of reporting back to a general statement issued jointly by the Management and the EWC, after EWC meetings. The EWC members should not be deprived of the possibility to communicate personally with the employees whom they represent, without any interference from the Management.
Employee representatives will generally use established national bodies of employee representation for reporting back to those they represent.
Training
The EWC directive stipulates that EWC members must be provided with training without loss of wages (see article 10.4). Training is indeed essential to enable EWC members to properly carry out their duties. Training courses must be considered an integral part of their mandate and remunerated as working hours.
All training related costs including travel and accommodation costs must be covered by the Management.
Whereas training needs can be identified in discussions with the Management, the EWC is best placed to evaluate what kind of training it needs. Consequently, EWC members “must be able to receive the training they require” (EWC directive, recital 33).
It is important to distinguish between individual training and collective training directed at the whole EWC. Both possibilities must be provided for in the agreement.
Confidentiality
The EWC directive is not very helpful in defining which information is confidential and how to deal with it. Its article 8 leaves Member States to deal with this issue. IndustriAll Europe has therefore developed some basic principles which should be integrated in any EWC agreement.
The dialogue which takes place within the EWC must be open and transparent. Confidentiality must only cover such information as has been explicitly and reasonably designated as such. Treating every information as confidential is not acceptable as it would prevent EWC members from fulfilling their duties, especially in their communication with the national employees or bodies of employee representation.
To avoid abusive classification of information as confidential, Central Management must provide an explanation why such information must remain confidential and how long the confidentiality applies.
This obligation (also for external experts) must continue to apply even after the expiration of the term of office of EWC members but only as long as the information remains confidential.
Duration of the Agreement, Amendments and Termination Clause
The EWC directive (see artile 6g) stipulate that EWC agreement must include the date of its entry into force and its duration, the arrangements for amending or terminating it and the cases in which the agreement shall be renegotiated and the procedure for its renegotiation, including, where necessary, where the structure of the company changes.
An agreement can be of unlimited duration or for a fixed term, but it must always include a provision ensuring that the EWC members may terminate it if they consider it no longer meets their expectations. So, stating that an agreement shall continue to be valid until the signing of a new agreement means that the delegates can be stuck indefinitely with that agreement. This must be avoided, unless the agreement is exceptionally good.
Provisions for amending the EWC agreement must be clearly distinguished from provisions for its termination. Indeed, EWC members must be given the opportunity to evaluate their agreement from time to time, e.g. before the end of a mandate period, and to propose amendments in order to correct stated dysfunctionalities or adapt the agreement to the improved practice. In any case, when there would be a change in the EWC directive, the agreement would have to be adapted to the changed law.
Example
What sanctions for infridgement EWC rights?
EWC Academy News – 4/2021
‘In recent years there has been an increase in litigation concerning the European Works Council. Most of the cases have concerned Anglo-Saxon groups, mostly from the USA, and companies in the packaging industry. One focus was Great Britain, where half a dozen EWC lawsuits were filed every year before Brexit. The European Works Councils were able to win many of these cases. So far, however, only in France and Belgium have they succeeded in obtaining injunctions to provisionally stop the implementation of measures. Several attempts in Germany and the Netherlands have failed.
The EU Directive on the establishment of a European Works Council states in recital 35: “The Member States must take appropriate measures in the event of failure to comply with the obligations laid down in this Directive” Recital 36 speaks of “sanctions which are effective, dissuasive and proportionate to the seriousness of the offence”. But what is an effective and dissuasive sanction? In France the highest fine ever imposed was €15,000 and in the UK it was £40,000. No fine has ever been imposed in Germany. There is also no European Court of Justice case law on the matter.
The EU General Data Protection Regulation provides guidance. Ithas been in force since May 2018 Article 83 provides for fines that must be “effective, proportionate and dissuasive” and can amount to up to 4 % of the total worldwide annual turnover of the preceding financial year. On this legal basis, the Hamburg Commissioner for Data Protection and Freedom of Information imposed a fine of €35.3 million on Hennes & Mauritz Online Shop in October 2020 for keeping files with confidential personnel information As the wording “effective, proportionate and dissuasive” is similar in both legal acts, this order of magnitude could also be considered for violations of EWC law. Shortly before the end of 2021, there are three EWC lawsuits currently underway which have the potential to bring this issue all the way up to the European Court of Justice: one in Austria, one in Germany and one in Ireland.’
https://www.ewc-news.com/en042021.htm#5
In the opinion of emeploer organisation this is too extensive analogy, especially because the potential damage caused by the abuse of personal data is much more harmful.