Article

Thematic feature - works councils and other workplace employee representation and participation structures

Published: 21 October 2003

Robin M. White Rhodes

The issue of works councils and similar workplace employee representation and participation structures is topical at present, with the EU Member States required to implement the recent Directive (2002/14/EC) [1] establishing a general framework for informing and consulting employees in the European Community (EU0204207F [2]) by March 2005 (though countries which currently have no 'general, permanent and statutory' system of information and consultation or employee representation may phase in the Directive's application to smaller firms up until 2008). The Directive applies to undertakings with at least 50 employees or establishments with at least 20 employees (the choice is left to the Member States). It provides employees with the following rights to information and consultation:[1] http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32002L0014&model=guichett[2] www.eurofound.europa.eu/ef/observatories/eurwork/articles/undefined/final-approval-given-to-consultation-directive

This article examines the Spanish situation, as of September 2003, with regard to works councils and similar workplace employee representation and participation structures. It looks at the regulatory framework, statistical data, evidence on practice and the views of the social partners.

The issue of works councils and similar workplace employee representation and participation structures is topical at present, with the EU Member States required to implement the recent Directive (2002/14/EC) establishing a general framework for informing and consulting employees in the European Community (EU0204207F) by March 2005 (though countries which currently have no 'general, permanent and statutory' system of information and consultation or employee representation may phase in the Directive's application to smaller firms up until 2008). The Directive applies to undertakings with at least 50 employees or establishments with at least 20 employees (the choice is left to the Member States). It provides employees with the following rights to information and consultation:

  • information on the recent and probable development of the undertaking's or the establishment's activities and economic situation;

  • information and consultation on the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular where there is a threat to employment; and

  • information and consultation, with a view to reaching an agreement, on decisions likely to lead to substantial changes in work organisation or in contractual relations.

Information and consultation arrangements set out in agreements between management and labour, including at undertaking or establishment level, may differ from those laid down in the Directive.

While the Directive does not stipulate that information and consultation must be provided through any particular channel or structure, it defines such information and consultation as taking place between the employer and the employee representatives provided for by national laws and/or practices. It is these representatives, who in most EU Member States sit on standing 'works council'-type structures (and in many countries already enjoy all or most of the information and consultation rights laid down in the Directive) that are the focus of this article. The existence of workplace employee representation and participation structures, based on law or widespread collective agreements, is seen in some quarters as a distinctive and important feature of the (mainland) European industrial relations model. Indeed, the idea has been raised of using the coverage of such worker involvement arrangements as an indicator of 'quality' in industrial relations (as suggested, for example, by the European Commission’s June 2001 Communication on Employment and social policies: a framework for investing in quality).

In this context, in September 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to provide information about the current situation with regard to national (rather than European level) works councils and similar bodies – the regulatory framework, statistical data (or estimates where not available), evidence on practice and the views of the social partners. The Spanish responses are set out below (along with the questions asked).

Regulation

What is the legislative framework in your country concerning works councils and/or other workplace employee representation and participation structures? Please include here: definition; workforce-size threshold for establishment; composition/election; subjects for information, consultation and co-determination; conditions under which information, consultation and co-determination should take place (ie timing, methods, contents, level of representation, type of response by employees, form of interaction etc); meetings; confidentiality; protection of employees’ representatives. If there is no legislation on this issue in your country, please refer to widespread systems of works councils etc based on collective agreements.

The legislative framework for workplace employee participation and representation is provided by the Workers’ Statute (Law No.1/1995 of 24 March 1995). Workers in enterprises with six or more employees have a right to representation as specified by the Statute. In enterprises with up to 49 workers, this is provided by workers' delegates (delegados de personal), with one delegate where there are from six to 30 workers, and three delegates where there are 31 to 49 workers. Where there are 50 or more employees, there is a right to set up a workers' committee (comité de empresa). The committee is made up of elected workers' representatives and its size depends on the number of employees, as set out in table 1 below.

Table 1. Size of workers' committee
No. of employees No. of workers' committee members
From 50 to 100 5
From 101 to 250 9
From 251 to 500 13
From 501 to 750 17
From 751 to 1,000 21
Over 1,000 2 more for every 1,000 employees or fraction thereof, up to a maximum of 75

Workers' committee members have a statutory right to time off to carry out their duties ('facility time'), which again depends on the number of workers represented by the committee - see table 2 below.

Table 2. Facility time for workers' committee members
No. of employees Facility time per month
Up to 100 15 hours
From 101 to 250 20 hours
From 251 to 500 30 hours
From 501 to 700 35 hours
Over 700 40 hours

A workers' committee must be formed in a company which has two or more workplaces with fewer than 50 workers in the same province, but which taken together add up to 50 or more. Likewise, when a company has one or more workplaces in the same province with more than 50 workers, and other workplaces with fewer than 50, each of the first is entitled to its own workers' committee while the others have one between them.

The Workers' Statute mentions the possibility of a multi-plant workers' committee (comité intercentros) covering all the different workplaces of an enterprise throughout the country. It specifies that such a multi-plant or 'group' committee shall have a maximum of 13 members designated from among members of the various workplace workers' committees, and that the composition must respect the proportion of votes received by different trade unions throughout the group (see below). However, the Statute does not give an automatic right to have such a multi-plant committee, leaving it as a matter of negotiation between the social partners. The result of this has been many multi-workplace companies in Spain do not have a multi-plant committee (though it is interesting to note that the existence of European Works Councils is stimulating in many cases the creation of such bodies).

A workers' committee has a term of office of four years and is elected by the whole of the workforce (ES9902298F). The system of election is one of closed lists, with those eligible to present a list of candidates being either the various trade unions or groups of workers which are at least three times larger than the number of members on the workers' committee. Those elected are determined by the proportion of votes received by each list. The electoral process begins at least one month after the election has been called - elections can be called by trade unions which are representative at national or regional (autonomous community) level, trade unions with at least 10% of the members on the existing workers' committee, or the workers of the company by a majority decision - and the vote has to take place not more than 10 days later.

Workers' committees have clearly defined information and consultation rights, but no rights to co-determination. According to the Statute, the rights of workers' committee members and workers' delegates include:

  • quarterly-based information on the progress of the company, including employment issues, and developments within the sector.

  • copies of works contracts, balance sheets and other financial information (the same as received by shareholders);

  • information about disciplinary measures, absence from work, health and safety and workplace-related environmental studies;

  • consultation in advance, with a right to issue an opinion, on decisions relating to restructuring, job losses, closures and cutbacks, training plans, introduction or revision of systems of work organisation or control, introduction of bonus or incentive payment systems and grading; and

  • the right to issue an opinion on mergers, takeovers or changes in the company's status likely to affect the level of employment.

The duties of the workers' committee according to the Statute are to:

  • monitor the implementation of labour law, social security, employment and health and safety regulations, and conditions of work established by agreement or custom and practice, to see that they are applied correctly;

  • take the appropriate steps – legal or otherwise – in cases where it is deemed necessary;

  • participate, as laid down by the relevant collective agreement, in welfare measures for workers and their families organised by the company;

  • work together with the company management, in the ways laid down by the relevant collective agreement, to ensure the fulfilment of productivity targets; and

  • inform the workforce where changes or developments might affect them.

Workers' committees also have the right to conclude company or workplace agreements - a widespread practice in Spain - and to call a strike in the establishment they cover. They therefore have a substantially different character compared with similar bodies in most other EU countries.

Workers' committee members and workers' delegates have legal guarantees against dismissal for carrying out their representation duties, and they have priority to remain in employment in the company in any situation involving a reduction of the workforce. The Workers' Statute clarifies the confidential nature of company information given to workers' committees and asserts the duty of members to respect it (this could clash with the committee’s duty to inform the workforce, but in practice it is rarely problematic).

In the public sector, at establishment level non-civil service staff elect staff committees (comités de personal), similar to a private sector workers' committee. Civil service staff elect staff councils (juntas de personal) (ES0102232F).

Statistics

Please provide the most recent available statistics (in absence of statistics please provide estimates referring to sources) on the following (referring to other workplace employee representation and participation structures where works councils are not present and to widespread collective agreements on the issue where there is no legislation):

  • the total number of employees and undertakings/establishments in your country;

The latest figures for 2003 indicate that there are 10,977,300 people– 6,696,900 men and 4,280,300 women - employed in Spain, working in a total of 1,229,391 undertakings. The division between different sectors is 2,394,100 in industry, 1,363,800 in construction and 7,219,400 in services (according to the official Boletín de Estadísticas Laborales).

  • the total number of undertakings/establishments covered by the works councils legislation in your country and their total employment (data should be as much as possible disaggregated by gender, company size and sector);

There are a total of 306,778 undertakings covered by the legislation on workplace employee participation and representation (workers' committee or workers' delegates) - ie companies with six or more workers. The total number of workplaces entitled to a workers' committee or workers' delegate is in excess of this figure as companies may have various workplaces which may each be entitled to its own workers' committee (see above under 'Regulation'). The overall figure is broken down in table 3 below.

Table 3. Number of undertakings by workforce size.
Workforce size No. of undertakings
6-49 278,995
50-249 23,749
over 249 4,034

Source: Boletin de Estadísticas Laborales

There are thus around 279,000 undertakings covered by the rules on workers' delegates and 28,000 by those on workers' committees.

The number of workers in the undertakings covered by the representation legislation is somewhat in excess of 7,978,000 - this figure represents the number of employees in companies with more than 10 workers, whereas the right to representation exists in companies with six or more. The breakdown for these figures is set out in table 4 below. Around 4,850,000 workers are employed in companies falling broadly within the scope of the provisions on workers' committees.

Table 4. Employment by company size
Workforce size Total no. of employees
11-50 3,123,900
51-250 2,270,900
Over 250 2,583,200

Source: Boletin de Estadísticas Laborales

  • the total number of undertakings/establishments in your country which have established works councils and their total employment (data should be as much as possible disaggregated by gender, company size and sector).

Please provide any other national data indicating the number/diffusion of works councils.

No exact data are available on this point, The total number of workers' representatives in Spain, including workers' committee members and workers' delegates, stood at 261,942 on 31 March 2003 (according to CC.OO figures). Of these: 102,087 represented the Trade Union Confederation of Workers’ Commissions (Comisiones Obreras, CC.OO); 95,806 the General Workers’ Confederation (Unión General de Trabajadores, UGT); and 64,049 other trade unions or lists presented by workers themselves.

Another indicative figure is the number of company agreements which, by definition, will have been negotiated by workers' committees. This stood at 3,137 in 2002, according to the Economic and Social Council (Consejo Económico y Social, CES).

Practice

If there are any other statistical sources or recent research on the current practice of works councils or other workplace representation/participation bodies, please give details of the results paying attention to the issues covered by Question 1 (Regulation). Please provide as much quantitative data as possible - eg how many meetings and how often, chair, agenda, composition (eg how many representatives of management, if any, workers, proportion of women members, proportion of women as head of works councils etc) and identify factors of success. Please indicate how the works councils (or works council-type bodies) institution has evolved over the years.

The Worker's Statute provides that workers' committees must meet at least once every two months, or whenever a third or more of its members (or a third or more of the workers represented) so request. However, active workers' committee will often meet more frequently, especially in larger companies. Once the workers' committee is established a president and a secretary are elected from among the members, generally from the majority trade union or unions. Workers' committees are bodies which are solely made up of workers from the company, and not joint bodies which include member of company management.

The composition of the workers' committee depends on the election results (see above under 'Regulation'). In small and medium-sized companies, lists of candidates are sometimes presented by a group of workers, but in larger companies, it is almost always trade unions that present the lists.

Figures for Catalonia from the CC.OO trade union confederation indicate that 8.65% of workers' committee members on its lists are under the age of 30, and about 30% of them are women. It can be assumed that the figures for Spain as a whole, including all the different unions and non-union lists, will be roughly similar.

Social partners

Please summarise the views of trade unions on works councils etc and their operation, and outline relations between works councils and trade unions.

In the majority of cases at least, workers' committees are seen as part of the general trade union movement and have a very close link with the trade union organisations themselves. The Spanish trade union model is based more on representation through the workers' committee structure than on membership (the overall membership density of all the Spanish trade unions is probably under 20%). As noted above, the large number of company-level agreements negotiated by workers' committees plus their legal right to call strike action (very unusual in the wider European context) has effectively unionised workers' committees and led them to be seen very much as part of the normal trade union 'world'.

However, the other side of this coin is that trade unions in Spain are very much anchored to workers' committees, depending on them for their strength and legitimacy. Workers' committees negotiate company-level agreements, so the number of elected members a trade union has on a committee is crucial to its ability to control these negotiations. Furthermore, a union’s participation in higher-level negotiations – in an industrial sector or a particular region or territory – depends on the number of workers' committee members it has in that particular sector or area. Finally the legal status of representative trade union – which confers important rights and privileges – is achieved when the union in question has 10% of workers' committee members at national level, or 15% at regional level.

In terms of mobilising power, Spanish unions clearly have to be able to reach out beyond their own low membership to workers who are not affiliated, and their legitimacy to do this depends in part on the workers' committees. Although many workers do not join unions, they vote for their candidates in elections of workers' committees and workers' delegates. Even in terms of the unions’ resources, workers' committees play a crucial part: the majority of full-time union officers are not employed and paid directly by the trade unions, and their release from their employer to work for the union is achieved via the accumulation and swapping of legally guaranteed facility time, mostly from the workers' committees.

While trade unionists are happy with the unionisation of workers' committees, many are not so happy with unions' dependence on the committees and voices are often raised in favour of changing the model. In sectors with high union membership – for example the automobile or chemical industries – the workers' committees, though remaining unionised, lose much of their 'protagonism' and become in effect inter-union committees for the purpose of hammering out a common front (or not as the case may be) for negotiations with management. In these cases, the protagonists in terms of trade union activity and organising within the companies are the workplace branches (secciones sindicales) of the different unions, organising their own members. This is the model that many within the Spanish trade union movement would like to follow.

UGT, one of the two main Spanish union confederations, has long had a policy of favouring the workplace branches, and of changing the legal framework in order to do so. The other main confederation, CC.OO, has until recently had a more ambiguous attitude, with some wanting to change and others defending the model based on unitary representation via the works councils. In part, this can be explained by CC.OO's history - the semi-clandestine CC.OO units under the Franco dictatorship were much more akin to an embryonic workers' committee than to an embryonic trade union. However, at its last congress in 2000 (ES0005286F), CC.OO clearly declared its support for the predominance of the trade union workplace branch at the workplace.

Nevertheless, despite their proclaimed aims and policies, while their membership remains low and the system is based predominantly on representation, commentators believe that CC.OO, UGT and other trade unions will have no option but to put their resources into trying to win as many seats on workers' committees as possible, as they will continue to depend on these bodies for their strength and legitimacy. There are some signs of change, however, perhaps the main one being a slow but steady rise in trade union membership. However, the increase is slow and a long way from changing the trade union model to a membership-based one. Furthermore, while trade unions have to attend to non-members almost as much as to their own members – their legitimacy via winning workers' committee elections comes from non-members as much as it does from members, and they depend equally on this group for the success of any strike – then the incentive to join and become a member will not be very high.

Please summarise the views of employers’ organisations on works councils etc and their operation.

Employers’ organisations do not have an agreed opinion on workers' committees and have made no clear proposals for changing the current model. However, they do agree on the fact that they would like to see a reduction in the right to facility time for workers' committee members. (Robin M White Rhodes, UAB)

Eurofound recommends citing this publication in the following way.

Eurofound (2003), Thematic feature - works councils and other workplace employee representation and participation structures, article.

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