Information and consultation
In this context, information refers to the transmission by the employer to the employee representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it. Consultation is a process of exchange of views and establishment of dialogue between the employee representatives and the employer.
A requirement for the provision of information in the enterprise and consultation in the enterprise with employee representatives was introduced by Council Directive 2002/14 establishing a framework for informing employees and consulting with them in the European Community. It applies to all undertakings employing at least 50 employees or EU establishments employing at least 20 employees. The directive is estimated to cover fewer than 3% of all companies, yet these represent about half of all employees in the EU. Member States were obliged to implement the directive into national law by 23 March 2005.
The practical arrangements for information and consultation are to be determined by Member States, which can entrust management and labour to make voluntary agreements, including different arrangements, ‘while respecting the principles set out in Article 1.’ For example, Article 1(3) requires that:
When defining or implementing practical arrangements for information and consultation, the employer and the employees’ representatives shall work in a spirit of cooperation and with due regard for their reciprocal rights and obligations, taking into account the interests both of the undertaking or establishment and of the employees.
The practical arrangements which Member States are required to determine for information and consultation incorporates a process of nine sequential stages:
- transmission of information/data (Article 2(f));
- acquaintance with and examination of data (Article 2(f));
- conduct of an adequate study (Article 4(3));
- preparation for consultation (Article 4(3));
- formulation of an opinion (Article 4(4)(c));
- meeting (Article 4(4)(d));
- employer’s reasoned response to opinion (Article 4(4)(d))
- exchange of views and establishment of dialogue (Article 2(g));
- discussion (Article 4(4)(b)) ‘with a view to reaching an agreement on decisions’ (Article 4(4)(e)).
Previous EC law has provided for the information and consultation of employees in specific circumstances, such as collective redundancy or transfer of an undertaking, or over issues like health and safety. The 1994 Directive on European Works Councils provided for information and consultation on certain matters in multinational companies and groups. Directive 2002/14 is highly significant since it is the first EC law stipulating a general obligation to inform and consult employees. Arguably, it establishes a European social model of mandatory employee representation and mandatory information and consultation of employee representatives.
The extent of the changes required by the directive to existing systems of information and consultation and workplace representation has varied considerably between countries. According to a report published by the European Foundation for the Improvement of Living and Working Conditions (Eurofound) it is possible to distinguish three broad groups among the EU Member States. In the first group of countries, characterised by ‘continental’ statutory works council systems, existing arrangements were considered as meeting the directive’s requirements, following only minor amendments. In the second group, mostly new Member States and Nordic countries, some changes to the respective countries’ information and consultation systems were required to conform to the directive, but not radical change. The third group consists of countries characterised by a voluntarist industrial relations tradition, the primacy of trade unions as a representation channel or the relatively recent adaptation of industrial relations systems to Community law. These countries have had to make major changes in response to the directive.
In the resolution of 19 February 2009 on the implementation of the directive, the European Parliament acknowledges that there is a need for a more effective transposition of the directive. Given that in the past some Member States have failed to take account of certain groups – young workers, women working part-time or workers employed for short periods on fixed-term contracts – the European Parliament urged the Member States to ensure that the calculation of thresholds is always based on the actual number of workers. Furthermore, the Parliament calls on the Member States to define precisely the term ‘information’, leaving no scope for alternative interpretations. Finally, the Parliament emphasises the importance of effective, proportional and dissuasive sanctions against employers who fail to comply with the obligations laid down in the directive.