‘Fitness check’ for information and consultation directives

The European Commission has published the results of its ‘fitness check’ of three directives that deal with information and consultation of workers. The Commission found the directives were generally ‘relevant, effective, coherent and mutually reinforcing’. However, it also identified a number of gaps and shortcomings. One possible outcome is a consultation or simplification of the directives. Social partners would be consulted on any planned changes.

Background

The European Commission (EC) issued the results of a so-called ‘fitness check (348KB PDF)’ of EU law on the provision of information to and consultation of workers on 26 July 2013.

This fitness check is essentially an evaluation of three EU directives on information and consultation. The aim was to identify ‘excessive burdens, overlaps, gaps or inconsistencies’ that may have appeared since the adoption of the directives. The three directives concern collective redundancies, the transfers of undertakings, and information and consultation.

The fitness check focuses on four main criteria – relevance, effectiveness, efficiency and coherence. It is based on evidence from studies, reports and surveys and on the views of stakeholders. The studies cited include a wide range of research carried out by Eurofound in the area of information and consultation and workplace practices. The most recent piece of work is the 2013 study on National Practices of Information and Consultation in Europe.

Relevance of the directives

The Commission found that the three directives are relevant. It says they do ensure the fundamental social right of workers to be informed and consulted at the workplace, and they can also increase trust between management and labour. They are also relevant in ensuring a more level playing field for businesses across the EU.

However, the Commission also notes that it has been argued that the fundamental right to information and consultation cannot be ensured. This is because a large number of small and medium sized enterprises (SMEs) in several countries do not have to comply with the directives, and because they do not apply to public administration.

Levels of effectiveness

The Commission notes that the directives’ objectives have been met in practice, although to what extent varies across the directives themselves. Most notably, the objectives of avoiding or considerably reducing the number of collective redundancies and improving the employability of workers seem to have been achieved to a lesser degree than other objectives.

Organisations representing workers appear to have access to the resources they need to enable them to function effectively, although their involvement in strategic decision-making appears to be relatively limited.

The Commission also notes that there is a lack of awareness of rights and obligations in some countries. It says there are shortcomings in relation enforcing to the transposition of legislation at national level and the implementation of regulations.

It concludes that effectiveness of the directives could be improved, particularly in countries with ‘less-developed information and consultation traditions’.

Efficiency and coherence

The Commission notes that there are many significant economic benefits that can be derived from information and consultation at the workplace. Among these are better communication in the workplace, improved problem-solving and the promotion of employee engagement. Overall, the Commission concludes that the benefits of information and consultation are likely to outweigh the costs incurred.

The Commission says that the three directives appear to be ‘coherent and mutually reinforcing’, and there was no evidence of duplication or contradiction.

It says that there are, however, differences in ‘thresholds, scope of application, provision of information and consultation, regulation of the content of information and consultation and the role of the social partners’. Consulted stakeholders tended to hold the view that some simplification and consolidation of the three directives might be justified.

To address gaps in the directives, the Commission concluded that the exclusion of public administration from their scope required further research, and there should also be particular focus on SMEs.

Conclusions and shortcomings

The Commission concludes that the directives are broadly fit for purpose. It says they have cushioned the negative impact on employment of the current economic crisis and contributed to the promotion of a cooperative climate in the workplace.

Nevertheless, it points to a number of gaps and shortcomings, such as:

  • the exclusion of smaller enterprises and public administration from the scope of the directives;
  • the exclusion of seafarers from the scope of the directives;
  • certain shortcomings regarding the effectiveness of the directives, as a large number of establishments covered by them do not have information and consultation bodies;
  • issues about the strategic involvement of information and consultation bodies, and about the enforcement of national transposition legislation;
  • shortcomings in the coherence of the directives, particularly in defining what constitutes information and consultation.

As a general conclusion, the Commission notes that ‘while the overall impact of the Directives is positive, the potential of the Directives has not yet been fully exploited in all Member States’.

Commentary

This fitness check has been a high-profile exercise on the issue of information and consultation and its results have been eagerly awaited.

The Commission has now put forward a number of options that could help address the gaps and shortcomings identified. It says further research is needed into the exclusion of groups such as public administration and seafarers. The Commission will also promote agreements and joint actions between management and labour to improve the effectiveness of the directives, and offer Commission-supported training and dissemination of good practice and studies.

To address gaps in coherence, the Commission suggests possible consolidation or simplification of the three directives. If this were to happen, the social partners would be consulted in accordance with Treaty provisions.

Andrea Broughton, Institute for Employment Studies

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