Definition

Employee representation can be defined as an employee’s right to seek a union or individual to represent them for the purpose of negotiating with management on issues such as wages, hours, benefits and working conditions. In the workplace, workers may be represented by a trade union or other representatives in the following cases:

• on disciplinary and grievance matters
• on works councils or other consultative bodies
• for the collective bargaining of terms and conditions
• when making workforce agreements
• on joint working groups

Historical development

Together with the principle of improving living and working conditions, the issue of labour in the enterprise was originally envisaged in terms of the free movement of workers as a key asset to be gained through the benefits of the common market. Arguably, employee representation in all its diversity – at both EU and Member State levels in the form of macro-level national dialogue, collective bargaining at intersectoral and sectoral levels, and collective participation in decision-making at the workplace – has since emerged as a cornerstone of the European social model in terms of employment and industrial relations in the EU.

Background and status

Employee representation is rooted in the Member States’ labour laws on trade unions and the representation of workers at workplace and enterprise levels. It may encompass a range of issues concerning, for example, working practices, conduct at work, and health and safety. Employee representation is most closely associated with trade unions, both at the macro level of consultation or dialogue (which influences major issues of social and economic policy) and in collective bargaining (which determines pay and other terms and conditions of employment). It can also be seen in various forms of participation by workers, including works councils and enterprise committees.

Collective employee representation was first made mandatory by two EU directives related to restructuring processes at the company level, and only under certain conditions: Council Directive 75/129 on collective redundancies and Council Directive 77/187 relating to the safeguarding of employees’ rights in the event of transfers of undertakings. However, over time, the requirement of employee representation has broadened and deepened to become an important principle of the European social model.

• Council of the European Communities: Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies
• Council of the European Communities: Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses

Regulatory aspects

Directives concerning employee information and consultation have further developed the principle of mandatory employee representation. First, in Community-scale undertakings and Community-scale groups of undertakings, Council Directive 2009/38/EC requires the establishment of a European works council or a procedure for the purposes of informing employees and consulting with them, if requested by employees or their representatives. Second, Council Directive 2001/86/EC stipulates employee involvement in European companies in the form of the information and consultation of employees and, in some cases, board-level participation.

• European Parliament and the Council of the European Union: Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees
• Council of the European Union: Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees

Furthermore, Council Directive 2002/14 establishes a framework for informing employees and consulting with them in the European Community, while Council Directive 2003/72/EC provides information, consultation and participation rights to workers in European cooperative companies.

• European Parliament and the Council of the European Union: Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation
• Council of the European Union: Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees

In addition, the Charter of Fundamental Rights of the European Union, which was adopted in 2000 and included in the Treaty of Lisbon in 2007, includes a worker’s right to information and consultation within the undertaking (Article 27). The article states that workers or their representatives must be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.

• European Commission: EU Charter of Fundamental Rights
• Legislation: Treaty of Lisbon

In 2012, the European Commission launched a fitness check on the information and consultation of workers included in three EU directives: Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community; the information and consultation provisions contained in Directive 98/59/EC on collective redundancies; and Directive 2001/23/EC on the transfers of undertakings.

The results of this fitness check, which were published in July 2013 in a staff working document, showed that the three directives were generally relevant, effective, coherent and mutually reinforcing, and that the benefits they generated were likely to outweigh the costs. Two shortcomings that were noted were that a significant share of the workforce was not covered by the provisions (due to the exclusion of small businesses, public administration and seafarers) and that there was room for improvement in their application, particularly in countries with less well-developed information and consultation traditions. However, as of 2019, the European Commission has not taken any initiative to update or consolidate these three directives.

• Council of the European Union: Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies
• Council of the European Union: Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses
• European Commission: Commission staff working document: ‘Fitness check’ on EU law in the area of information and consultation of workers

Commentary

In 2016, the European Trade Union Confederation (ETUC) published a position paper calling for a new directive to reinforce the information and consultation rights and the participation of employees’ representatives at board level. ^[1] This demand featured again in its resolution entitled ‘Strategy for more democracy at work’, adopted at its congress in 2018. ^[2]

Related dictionary terms

Charter of Fundamental Rights of the European Union ; collective bargaining ; collective industrial relations ; collective organisation of the social partners ; ETUC ; European company ; European social model ; European works councils ; information and consultation ; management and labour ; participation ; representativeness ; right to constitute and freedom to join trade unions ; trade unions.