Thematic feature - works councils and other workplace employee representation and participation structures
This article examines the Italian 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 Italian responses are set out below (along with the questions asked).
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 most important legal bases for workplace employee participation and representation are Article 39 of the Constitution, which recognises the principle of trade union freedom, and Article 19 of law 300 of 1970 (the 'Workers' Statute'), which recognises the right of workers to organise plant-level union structure s (rappresentanze sindacali aziendali, Rsas). However, there are other important forms of company-level workforce representation which are not regulated by law but by collective agreement. Most notably, in 1993, the government signed with the three main trade union confederations - the General Confederation of Italian Workers (Confederazione Generale Italiana del Lavoro, Cgil), Italian Confederation of Workers' Unions (Confederazione Italiana Sindacati Lavoratori, Cisl) and Union of Italian Workers (Unione Italiana del Lavoro, Uil) - an agreement (known as the 'Giugni protocol') on the creation in workplaces of unitary workplace union structure s (rappresentanze sindacali unitarie, Rsus).
There are statutory workforce-size thresholds for establishing neither Rsas nor Rsus, given that such representative bodies can be set up 'in any production unit', including those of 'small' size (ie with fewer than 16 employees). However, such thresholds are established by collective agreements.
Rsas are created by the trade union organisations which have signed collective agreements at national, provincial or even plant level, as long as these agreements are 'applied in the production unit' in question. Law 300/1970 refrains from defining the forms of representation - eg the constitution of Rsas, the designation of their members, their organisational structure and operating rules - giving the unions complete freedom to define these regulations in national sectoral collective agreements. Consequently, Rsas can be set up in a variety of ways: the trade unions may decide to have the members of the representative body selected from the workforce, or may even designate them from outside, without involving the workforce in a formal selection procedure - as happens mainly in small-sized companies. While unions decide in the majority of cases to have these company union representatives elected by the whole workforce (union members or otherwise), this is not compulsory under the law.
Rsus can by set up by the trade unions which signed the 1993 agreement at the time (see above), unions which have signed the relevant national sectoral collective agreement, or other independent union organisations which subsequently signed the 1993 agreement and whose lists of candidates have received 5% of the workforce's votes. These various unions can present lists of candidates in Rsu elections in which all dependent employees on open-ended contracts (unless the agreement states otherwise) employed by the company in question, union members or otherwise, may vote and stand for election (if included on a list of candidates). The election is by secret ballot, and is valid if a quorum of half plus one of the workforce is achieved. Two-thirds of the Rsu seats are assigned in proportion to the votes received by all the various lists, while the remaining one-third of seats are allocated in proportion to the votes obtained by the unions which signed the relevant national sectoral collective agreement, and may be filled by individuals nominated directly by the unions and not included on the lists. Public sector Rsus are an exception to this rule, as all of their members are elected and none designated externally, as established by legislative decree 396 of 1997 (IT9711138N) on trade union representation in the public administration (the private sector is not covered by any such law on representation). Rsus have a term of office of three years, whereafter new elections must be held.
The introduction of Rsus has not led to the formal abolition of Rsas, but the 1993 agreement stipulates that the unions intending to take part in Rsu elections must refrain from the creation and use of RSAs.
Rsas and Rsus enjoy the rights and freedoms stipulated by the Workers’ Statute: the right to convene assemblies (every worker is entitled to 10 paid hours per year to attend assemblies); the right to hold workplace referenda; the right to post notices in the company; paid and unpaid leave for members; the right to collect union subscriptions; and the right to use company premises for union activities. Moreover, as regards the privacy of workers, and therefore that of their representative bodies as well, 'the use of audiovisual devices and other equipment for surveillance is prohibited' (Article 4, law 300/1970). Finally, Article 28 of the Workers’ Statute provides for penalties (imposed by immediate judicial proceedings) for anti-union behaviour, should this be determined by a labour tribunal.
Rsas and Rsus engage in both bargaining and verification of the correct application of laws and collective agreements. They also exercise information and consultation rights. With regard to bargaining, they are responsible for supplementary (or 'second-level') negotiations on matters referred to company-level bargaining by sectoral collective agreements - such as pay increments, working time flexibility, work organisation, job classifications, union rights, the variable part of the wage, restructuring, environment, training, information, and the wages guarantee fund.
Prior information and consultation rights exercised by Rsas and Rsus are established both by bargaining and by law. Those established by agreement oblige the employer to inform and consult these representation bodies on:
- overtime levels;
- contract procurement for outsourcing;
- corporate restructuring, concentrations, break-ups and mergers; and
- employment policy, new hirings and training schemes.
Statutory information and consultation rights relate to:
- use of the wages guarantee fund;
- affirmative action for gender equality;
- company transfers;
- collective redundancies; and
- workplace safety measures.
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 total number of employees in July 2003 was 22,215,000 (according to Istat, 'Rilevazione trimestre sulle forze lavoro. Luglio 2003'). The total number of active enterprises in June 2003 was 4,868,082. This figure is net of agricultural undertakings, which numbered 996,292, making an overall total of 5,864,374 production units in Italy (according to Unione italiana delle Camere di Commercio, Industria, Artigianato e Agricoltura, 'Movimprese, II trimestre 2003').
- 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);
The relevant legislation and agreements between the social partners cover all undertakings and for all production sectors. However, national sectoral collective agreements define the size thresholds above which workforce representation bodies can be created, which vary from sector to sector. Consequently, the number of enterprises where the workforce can elect Rsas and Rsus varies from sector to sector in line with the workforce-size threshold set out in the sectoral agreement concerned.
- 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.
There are no reliable data available in either absolute terms or disaggregated by sector, gender and company size (though see below under 'Practice').
The only available and representative data concern the public sector, where the Agency for the representation of public administrations in collective bargaining (Agenzia per la Rappresentanza Negoziale delle Pubbliche Amministrazioni, Aran), founded in 1993, collects data on Rsu elections in order to ascertain union representativeness ('Le rappresentanze sindacali unitarie nel Pubblico impiego. Dati a confronto, anni 1998 - 2001', 2002). In 2001, the total number of elected Rsus in the public sector was 23,059, of which 10,296 were in schools, 7,932 in local authorities, 3,201 in ministries, 347 in the health service, 234 in universities and research institutes and 1,139 in other public bodies. Again in 2001, those entitled to vote in elections numbered 2,535,009, of whom 1,978,079 actually did so.
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.
Since 1993, when Rsus were introduced, the presence of Rsas has constantly diminished, with the former gradually replacing the latter, which are now only of significance in marginal enterprises. Data collected by Cgil, Cisl and Uil on Rsu elections (although they are not reliable for statistical purposes) show that workforce representation bodies are concentrated mainly in industry, and especially in the metalworking sector; they are relatively rare in the services sector; and almost non-existent in banking and insurance. Moreover, a still uncompleted survey by the Ires Lombardia research institute finds that 70% of a sample of workers in companies with more than 15 employees said that they had a union representation body.
Please summarise the views of trade unions on works councils etc and their operation, and outline relations between works councils and trade unions.
Please summarise the views of employers’ organisations on works councils etc and their operation.
The Cgil, Cisl and Uil union confederations see a need for a law on trade union representation (and thus workplace union structures) which regulates the issue in the private sector (IT9804226F) - to date, a legislative framework has been established only for the public sector, through legislative decree 396/1997. However, there are differences of opinion on the matter, especially between Cgil and Cisl. Cgil, and to some extent Uil, leans towards the introduction of a mechanism for the periodic measurement of the representativeness of each union, and recognition of the right of the majority organisation or coalition to negotiate for an entire workforce. Today, Cgil pursues this end by means of calling for the use of referenda to approve draft agreements reached with employers. Cisl, by contrast. rejects the suggestion that representativeness should be measured with reference to the entire workforce, because this may undermine the relationship between the union and its members.
The Confindustria employers' confederation is opposed to legislation on union representation in the private sector, because it believes that the matter should be left as much as possible to collective bargaining between the social partners. Accordingly, a mechanism to measure representativeness should take second place to the correct functioning of company-level bargaining. Moreover, Confindustria does not think that Rsus' information rights should be extended any further than already provided for by law. Finally, it is against solutions such as referenda to approve agreements, in that they would make the outcome of negotiations and also application of the agreement uncertain.
The almost unanimous view in political and social partner circles that the systematic measurement of unions' workplace representativeness is necessary. The perceived need for reform of this kind derives from the fact that the Workers’ Statute does not provide for a compulsory mechanism with which to measure trade union consensus accurately, with reference to either union members or the large number of non-members. As a consequence, a fundamental principle of trade union democracy - ie that the most representative union or coalition should conduct industry-wide or company-level bargaining - is not observed. Another issue widely regarded as needing attention is the creation of linkages between Rsus and the growing number of 'semi-subordinate' workers (IT0308304F), as well as the extension by legislative means of trade union representation to fixed-term workers, apprentices and workers on training/work contracts (Livio Muratore, Ires Lombardia).