In a working paper issued in December 1998, ETUC calls for the review of the European Works Council Directive to lead to a clarification of information and consultation rights, so as to ensure that information is given in a manner which gives employee representatives sufficient time to prepare a response. It would also like to see workforce-size thresholds lowered and sanctions strengthened. The Directive is to be reviewed by September 1999.
In December 1998, the European Trade Union Confederation (ETUC) issued a working paper, detailing its position on a number of issues in respect of the review of the 1994 European Works Council (EWC) Directive (94/45/EC). Article 15 of the Directive specifies that "not later than 22 September 1999, the Commission shall, in consultation with the Member States and with management and labour at European level, review its operation and, in particular examine whether the workforce-size thresholds are appropriate with a view to proposing suitable amendments to the Council, where necessary."
The purpose of the Directive, says ETUC, is essentially to improve workers rights to information and consultation with the aim of allowing workers' representatives the opportunity to contribute towards shaping a decision. According to ETUC, this opportunity has been limited in a number of cases, as EWCs are often still not consulted about decisions, and have in some cases been used to legitimise decisions already been taken. This explicitly refers to cases such as the Renault Vilvoorde affair (EU9703108F), and an instance where KLM, the Dutch-owned airline, allegedly announced that its Spanish and Portuguese subsidiaries were to be combined with the French subsidiary a week after an EWC meeting.
To correct this situation, ETUC recommends that a provision should be attached to Article 1.2 of the Directive, specifying that "workers shall be informed and consulted in good time during planning before a decision is taken." In addition, ETUC suggests a reworking of the definitions of information and consultation to encompass a broader commitment. Information should be given at a time, and in a manner which permits employee representatives to undertake an assessment in order to prepare a detailed response. Similarly, with regard to defining consultation, ETUC wants to specify the necessity of consultation taking place in good time before decision-making takes place.
ETUC also suggests an addition to point 3 of the subsidiary requirements in the Annex to the Directive, which outlines the procedures to deal with exceptional circumstances such as relocations or closures of establishments or undertakings. It suggests that provision should be made for the EWC to be given an appropriate period to examine the information received and express an opinion.
Another important issue relates to the workforce-size thresholds used to assess whether undertakings or groups are covered by the Directive. In the debate before the original adoption of the Directive, ETUC had proposed an EU-wide threshold of 500 employees. However the Directive ultimately contained a threshold of at least 1,000 employees across the Member States, and at least 150 employees in each of at least two Member States. ETUC is dissatisfied with this 1,000-employee threshold and wants it lowered, arguing that smaller transnational companies have become more important since the completion of the single market.
In its working paper, ETUC proposes the amendment of Article 2.1, which defines groups of undertakings operating throughout the Community differently from undertakings operating throughout the Community: the undertaking must have at least 150 employees in at least two Member States, whereas the group must have at least one undertaking with 150 employees in each of the two Member States. This distinction is viewed as irrelevant and ETUC argues that the definition of a group of undertakings should be brought in line with the definition of an undertaking. In addition, it states that the threshold of 150 workers in at least two different Member States should be lowered to 100 employees.
According to the working paper, research has found that in over three-quarters of all voluntary negotiations of EWC agreements, European industry federations have played a coordinating role. ETUC therefore believes that the Directive should recognise, with Article 5.2d being amended as follows: "central management and local management, as well as the appropriate European industry federation shall be informed of the composition of the SNB [special negotiating body]. A representative of the appropriate European industry federation is entitled to participate in the negotiations."
Regarding the use of experts by the SNB, the ETUC would like Article 5.4 to be amended to ensure that there is clarity regarding the presence of experts in negotiations, as the current provision has, it is claimed, been manipulated in certain instances.
In respect of the duration of negotiations over EWC agreements under the Directive, ETUC feel that the three-year period granted for an agreement to be concluded, before the subsidiary requirements to apply, is "extraordinarily long" and is open to abuse by management. It instead suggests that the provision in Article 7.1 should be changed to one year.
The option for Member States to exclude merchant navy crews from the provisions of the Directive is viewed by the ETUC as incomprehensible, particularly considering the number of mergers occurring in the transport sector. ETUC feels that this provision should be deleted without replacement. ETUC also believes that a number of key rights for worker representatives need to be specified under Article 10, including the right to training in languages, the right to be able to meet and communicate with one another, and the means and opportunity to meet local worker representatives to keep them up to date with the information and consultation of the EWC.
Regarding sanctions, ETUC believes that Article 11 should be supplemented in a way which excludes companies contravening the principles of the EWC Directive from the procedures for the awarding of public contracts.