The effective management of EWCs

Transnationality

Lessons from a seminar

Frédéric Turlan

31st March 20161

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What is at stake in a legal perspective?

What says the directive?

Article 1 § 3: The competence of the European Works Council and the scope of the information and consultation procedure for employees governed by this Directive shall be limited to transnational issues.

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What is at stake in a legal perspective?

What says the directive?

Article 1 § 4: “Matters shall be considered to be transnational where they concern the Community-scale undertaking or Community-scale group of undertakings as a whole, or at least two undertakings or establishments of the undertaking or group situated in two different Member States”.

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What is at stake in a legal perspective?

What says the directive? Whereas 16 : ‘”the transnational character of a matter

should be determined by taking account of both the scope of its potential effects, and the level of management and representation that it involves. For this purpose, matters which concern the entire undertaking or group or at least two Member States are considered to be transnational. These include matters which, regardless of the number of Member States involved, are of importance for the European workforce in terms of the scope of their potential effects or which involve transfers of activities between Member States.

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What is at stake in a legal perspective?

What says the directive? What does concern means: - Involves employees in 2 different MS? - Involves activities in 2 different MS? - Involves management in 2 different MS? - Produces effects in 2 different MS? - Which effects? Employment, organisational, other? - Does it cover decisions concerning or impacting a

single MS but decided at central level?

31st March 2016 The effective management of EWCs

What is at stake in a legal perspective?

Decision affect … site and employeees in >

1 Member state 2 Member states

Whole group

1 site If importance for EU Workforce

If importance for EU Workforce

2 sites

Several sites

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What is at stake ? Practical problems

Risks / problems on both sides of the industry :

Companies may consider strictly the definition of transnationality

At the same time, employee reps may consider that every event is transnational

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Conflicts about the management of transnationality?

In case of conflicts, both employers and EWC reps may appeal to legal tools which may vary from one member state to another.

When possible, the use of legal ways to solve conflicts is however tricky for both sides

If the EWC agreement has no provision : the judge will take info account the national implementation regulation and if there is no provision, the text of the directive and will interpret it with the whereas => Uncertainly

If the EWC agreement has a provision : the judge will take into account the provision : incite to negotiate such provision but…

=> Uncertainly too

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Managing transnationlity : lessons of case study

Transdev

The EWC criticised the management for failing to consult it following Transdev's decision to ask one of its subsidiaries, the shipping company SNCM, to repay a loan, thus causing SNCM to be put into receivership.

The court underscores that "matters which require the prior consultation of the European works council must (...) incorporate an international or European dimension, by their purpose or by their effect. In the absence of any international element, the consultation of the EWC is not mandatory".

31st March 2016 The effective management of EWCs

Managing transnationlity : lessons of case study

Since the court did not find any international element in this case, it examined whether Transdev's decision had a significant impact on the European workforce. In the eyes of the court, this was not the case. Therefore, the EWC did not need to be consulted. 

BUT as mentioned by Rachid Brihi, lawyer, Brihi & Koskas associates who defended the European works council of Transdev :

The court maintains that the decision taken by the management of Transdev, which led to its subsidiary SNCM being placed in receivership, could have "significant economic and social consequences eventually for the entire group and therefore for the European employees". Therefore, the possible winding-up or sale of this "small" French subsidiary, which represents only 2.5% of the group's workforce, could be a subject for consultation with the European works council.

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Managing transnationlity : lessons of case study

Michelin

1999-2005 : examples of national debates / negotiations / agreements.

Since 2005 : new practices aiming at improving co-operation and exchanges between the EWC Members and HR.

2015 : new dynamic and role of the EWC.

=> Recent announcement:

November 2015: Michelin reorganises its activities in the United Kingdom, Italy, and Germany

January: Michelin adapts the organization of its activities in Clermont-Ferrand

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Going further ?

Level 1 : including a provision within the agreement that has to highlight what is transnational and what is not transnational + add a reference to the importance of the issue.

Level 2 : seminar with the steering committee to discuss the “grey zone” => how to reach an agreement on each issue. Some best practices: building trust to inform the secretary / steering committee at an early stage / setting up a permanent information-consultation process

Level 3 : provision that gives to the steering committee a role of filter to decide whether an issue is matter of information or consultation.

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ALL COMMENTS WELCOME !!!!

THANKS A LOT !!!!!!

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