Employers may re-evaluate decision not to negotiate on national information and consultation

In July 1998, as a leaked Commission proposal for a draft Directive on national information and consultation circulated in Brussels, the European employers' organisation, UNICE, hinted at a willingness to go back to its member federations to see if a mandate for negotiations on the issue, on the basis of the Maastricht social policy Agreement, could be achieved.

The new president of the Union of Industrial and Employers' Confederations of Europe (UNICE), Georges Jacobs of Belgium, has indicated a willingness on the part of European employers to reconsider their decision not to negotiate on workers' rights to information and consultation at the national level. In November 1997, the European Commission had opened a second round of consultations with the EU-level social partners on the content of possible EU legislation on this issue, on the basis of the social policy Agreement and Protocol annexed to the Maastricht Treaty (EU9711160N). The social partners had an opportunity to seek an agreement on the subject at this stage, thus forestalling a Directive, but UNICE decided in March 1998 not to open talks (EU9803192N).

Mr Jacobs' comments were reported in July 1998, at a time when a leaked text of the Commission's proposal for a draft Directive on national information and consultation was circulating in Brussels. As a result of UNICE's apparent last-minute change of heart, Commissioner Pádraig Flynn postponed the publication of the draft Directive "establishing a general framework for employee information and consultation in the European Community" until September, after the EU institutions' summer recess.

Mr Jacobs is reported to have told Commissioner Flynn that he would take soundings from UNICE's member federations to see if they are ready to overturn their decision not to negotiate. Objections to negotiations between the European Trade Union Confederation (ETUC), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) and UNICE were primarily raised by UNICE's member federations in Germany, Greece, Portugal and the UK.

If UNICE should agree to negotiate, it appears likely that ETUC will use the leaked text as the "bottom line" for negotiations. According to the leaked draft, employers with at least 20 employees would be obliged to consult employee representatives over issues like production and marketing plans, as well as the company's economic and financial situation. In addition, employers would be compelled to consult employee representatives in relation to changes in the employment situation, with the aim of warding off any negative consequences. Should employers fail to honour their information and consultation obligations, the legal effects of decisions they take on the employment relationships of the employees affected would be set aside.

The leaked draft Directive would leave it up to Member States to determine how employers and employees would meet these information and consultation requirements, with a strong preference given to voluntary agreements. Nevertheless, Member States would be obliged to set down the rules governing the negotiation, conclusion and implementation of such agreements.