Information in the enterprise
Access to information in the process of decision-making is an important right of employee representatives. EC law stipulates that employees must be informed and consulted in specific circumstances, such as collective redundancy ( Directive 98/59/EC ) or transfer of an undertaking ( Directive 2001/23/EC ), or over issues such as health and safety . The 1994 Directive on European Works Councils (as revised in 2009 ) provides for information and consultation on certain matters in multinational companies and groups. However, a general obligation for the information and consultation of employees was first established under Council Directive 2002/14 establishing a framework for informing employees and consulting with them in the European Community.
‘Information’ is defined in the 2002 Directive as the ‘transmission by the employer to the employees’ representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it’ (Article 2(f)). Article 4(2) specifies the subject matter of information (and consultation in the enterprise ): (a) information on the recent and probable development of the undertaking’s or the establishment’s activities and economic situation; (b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment; c) information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations.
Information relating to the activities of the enterprise is often sensitive, and Article 6 specifies the conditions under which information may not be supplied or where it may be made confidential. Article 6(2) states, ‘in specific cases and within the conditions and limits laid down by national legislation, that the employer is not obliged to communicate information or undertake consultation when the nature of that information or consultation is such that, according to objective criteria, it would seriously harm the functioning of the undertaking or establishment or would be prejudicial to it.’
The European Commission recently undertook a REFIT exercise in relation to the provisions of EU Directives that relate to the information and consultation of employees.
A fitness check exercise in relation to information and consultation provisions in EU law was carried out as part of the Commission’s 2010 work programme and the results were published in 2013. The Commission then stated that it was considering possible consolidation or recasting of the three Directives in this area: Directive 2002/14/EC on information and consultation of employees; Directive 98/59/EC on collective redundancies; and Directive 2001/23/EC on transfers of undertakings.
The Commission issued a first phase consultation to the EU-level social partners on this issue in April 2015. In response to the consultation, the main employers’ stakeholders firmly opposed a revision or recasting of the directives, arguing that the existing directives work well for both employers and workers. They also stated that each directive deals with different issues, a fact that conflicts with the stated goal of harmonising the concept of information and consultation across all directives.
Trade union stakeholders tend to favour including the public sector in the scope of the directives, with a preference for a framework agreement under the sectoral dialogue. Only in the absence of such an agreement are they in favour of extending the scope of application of the three directives to the public sector – not through a recasting, however, but by means of a separate revision of the directives.
There has been no progress on this since then.