Time for the introduction of a new EWC directive

FNV Formaat organises an EWC platform three times a year where about a hundred Dutch EWC members exchange experiences. Last summer, they could hear at first hand how the revision of the EWC directive has proceeded and what this means for the near future. The Member States have two years in which to adapt their own legislation.

Jan Cremers, as a Member of the European Parliament (he belongs to the Social Democratic fraction), was very actively involved in the revision of the EWC directive. He said that improvement is being sought in three areas: improvement of compliance, the formulation of rights and powers, and the facilities that the EWCs need to function properly.

In the first place, the intention was to review the entire directive but, for various political reasons, a “recasting” was decided upon. This was a serious blow because “recasting” is a procedure whereby fewer things come into consideration for change. One tried to deal with the most serious bottlenecks by means of amendments, and this yielded results in all three of the areas cited.

Improvements
First, the accompanying memorandum for the new directive provides more clarity regarding the sanctions for non-compliance. Cremers considers that the most important perhaps is that the existing jurisprudence (48 cases) remains in force.

Very much improved is the description of information and advisory rights. Information has to be provided in a timely manner so that the employees actually can make an analysis. Consultation means the commencement of dialogue in such a way that preparation of a recommendation is possible and also can still have an effect on the ultimate decision. The new text also gives a clearer definition of the concept of “transnationality” (issues are transnational if they, irrespective of the number of Member States, are of importance for European employees). The new directive also requires that employees receive more facilities. It concerns the support in negotiations, training, and the right of the EWC to preparation without management being present.
The proposal to increase the number of EWC meetings to at least twice a year, unfortunately, was not taken on board.

Worrisome
Differences will certainly arise in the implementation of the Directive in national legislation. Cremers considers the situation in the United Kingdom to be a particular cause for concern. Labour legislation is differently structured, and it is not customary to take over “considerations” from European directives in the national legislation. Even more worrying since some of the crucial matters are only mentioned in the ‘considerations’ such as the sanctions for non-compliance. If they are not implemented in national EWC legislation, such improvements are lost. Petra Molenaar of FNV Formaat also added that that management today is strikingly eager to negotiate under English law.

The right to training, which appears in general terms in the Directive, can also be given very different content in each country.

More possibilities
The attendees spontaneously cited a number of improvements that lend themselves to negotiation in companies, even though they may not be regulated by law.
- Companies that have more establishments than there are EWC headquarters can agree that employees’ representatives can come together a number of times per year to prepare EWC sessions and to receive information from the EWC (insofar as that is not already specified by, for example, a central works council).
- Permanent working groups for, for example, safety and health or training policy.
- Working with temporary working groups. Jan Cremers, himself, gave the example of an EWC that set up a working group in order to study the central employment contracts in Europe. Participants were EWC members, union representatives, and HR managers.
- The right to meetings on the level of a business unit, perhaps in the form of working groups.
- Meetings of the Select Committee.
- An extra meeting when the Managing Board’s decision deviates from the opinion of the EWC.
- Adoption of the advisory right after the Dutch model: the EWC receives a formal “request for opinion”, structured as a request for advice and replies in the way customary for the Netherlands.

Cremers expects that the conversion of the Directive to Dutch law will take a full two years. Political parties, the labour unions, and employers’ organisations will certainly try to exercise influence. European employees’ councils can, of course, also take the opportunity. According to Jan Cremers, minds are ready for adaptation.

Private equity
Towards the end of the meeting, the discussion switched to the ownership relations within companies that are fully in the hands of private-equity firms. According to Article 3 of the EWC Directive, they must be approachable as owners for the EWC. The experience of the platform members is otherwise. Private equity holders very certainly engage in the policy of the company but are in realitynot visibly present. Only in the takeover phase do they talk with the EWC and make promises. However, it also happens that such an owner is involved less actively with the strategy as long as the instalments are paid.

Jan Cremers would like to see it established that such owners would be involved in the discussion with the employees also after the takeover. In the European Parliament, he could find few supporters for this.

Finally, Cremers pointed to the excellent Directive for takeovers and mergers: transfer of undertaking. When an EWC is involved with a merger, it is important to link the rights from this Directive to the EWC agreement.