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European Works Councils: a Trade Union Guide to Directive 2009/38/EC — Séverine Picard

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European Works Councils: a Trade Union Guide to Directive 2009/38/EC — Séverine Picard European Trade Union Institute Bd du Roi Albert II, 5 1210 Brussels Belgium Tel.: +32 (0)2 224 04 70 Fax: +32 (0)2 224 05 02 [email protected] www.etui.org ..................................................................................................................................... European Works Councils: a trade union guide to Directive 2009/38/EC — Séverine Picard ..................................................................................................................................... Report 114 D/2010/10.574/14 € 17 ISBN: 978-2-87452-180-5 9 782874 521805 European Works Councils: a trade union guide to Directive 2009/38/EC Séverine Picard Report 114 european trade union institute Séverine Picard is ETUC Legal Adviser. Brussels, 2010 ©Publisher: ETUI aisbl, Brussels All rights reserved Print: ETUI Printshop, Brussels D/2010/10.574/14 ISBN: 978-2-87452-180-5 (print version) ISBN: 978-2-87452-181-2 (pdf version) The ETUI is financially supported by the European Community. The European Community is not responsible for any use made of the information contained in this publication. Contents Foreword .........................................................................................................................................................7 How to use the guide .................................................................................................................................9 Part I Objectives and principles ................................................................................................ 11 Chapter 1 The objectives of the European Works Council Directive ....................................13 1.1 Genesis ........................................................................................................................................ 15 1.2 The objectives of the Recast Directive............................................................................. 17 Chapter 2 Principles of interpretation .............................................................................................19 2.1 The notion of ‘recast’ .............................................................................................................20 2.2 Contractual freedom with limits – the relationship between the Directive and the subsidiary requirements .......................................................................................20 2.3 Principles for national transposition laws ......................................................................22 Recitals as interpretative guidance .................................................................................. 23 A minimum standard Directive .......................................................................................... 23 Principle of non-regression .................................................................................................. 25 2.4 Private international law principles ..................................................................................25 The general rule: the law of the central management .............................................. 25 Specific rules ............................................................................................................................. 26 Chapter 3 The impact of the Directive on existing and future agreements ....................... 29 3.1 Impact on future agreements .............................................................................................30 3.2 Impact on existing agreements: no obligation to renegotiate but no immunity from the new rules ............................................................................................. 30 No obligation to renegotiate existing agreements .....................................................30 A tailored application of the new rules to existing agreements ............................31 Summary table: application of the new Directive ....................................................... 36 Part II Parties affected by the application of the Directive .....................................39 Chapter 1 The European Works Council: role and competence ............................................. 41 1.1 Definitions of information and consultation ................................................................. 43 Information ............................................................................................................................... 43 Consultation.............................................................................................................................. 45 1.2 When is the European Works Council competent? ......................................................47 Material competence of the EWC: the notion of transnationality .........................48 Geographical competence of the EWC ............................................................................ 51 Report 114 3 Séverine Picard 1.3 Linking the different levels of information and consultation ..................................51 Co-existence with national bodies .................................................................................... 52 Co-existence with the European level ............................................................................. 54 Chapter 2 Undertakings affected by the application of the Directive .................................57 2.1 In which companies should an EWC or information and consultation procedure be established? ...................................................................................................57 Definition of ‘undertaking’ .................................................................................................. 58 Thresholds .................................................................................................................................. 58 2.2 Who is responsible for establishing an EWC? The notion of ‘controlling undertaking’ ..............................................................................................................................60 What is a controlling undertaking? .................................................................................. 61 Are there exceptions to the definition of controlling undertaking? .....................63 What happens when several undertakings can be considered controlling undertakings? ........................................................................................................................... 64 2.3 At what level should the EWC be established? ............................................................ 64 2.4 An exception for merchant navy crews ...........................................................................65 Chapter 3 The negotiation parties: central management and the special negotiating body ................................................................................................................67 3.1 Who to negotiate with whom? Identifying ‘central management’ ........................67 Step 1: Central management is situated in the EU .................................................... 68 Step 2: Central management is situated outside the EU .......................................... 69 Step 3: Central management is situated outside the EU and has no representative agent in the EU .......................................................................................... 69 3.2 Responsibilities of central management: facilitating the start of negotiations ..............................................................................................................................69 Providing information necessary for commencing negotiations ............................70 Creating the conditions and means necessary for establishing an EWC ............ 70 Notifying the social partners of the beginning of new negotiations ...................71 3.3 Composition of the Special Negotiating Body (Art. 5.2) ..........................................72 3.4 The role of trade unions .......................................................................................................73 Part III Establishment of a European Works Council or an information and consultation procedure ........................................................................................75 Chapter 1 Conduct of the negotiations ............................................................................................77 1.1 When should the negotiations start? ...............................................................................79 1.2 What is the task of the SNB? ..............................................................................................79 1.3 What are the practical arrangements for the functioning of the SNB? ..............80 The meetings ............................................................................................................................ 80 Experts ........................................................................................................................................ 80 Expenses ..................................................................................................................................... 80 Chapter 2 Negotiated agreements (‘Article 6 agreements’) ..................................................... 83 2.1 Content of the agreement ...................................................................................................85 2.2 One or more EWC? ..................................................................................................................85
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