The impact of the information and consultation directive on industrial relations — Greece.

  • Observatory: EurWORK
  • Topic:
  • Published on: 08 March 2009



About
Country:
Greece
Author:
Sofia Lampousaki
Institution:

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Experience shows that the statutory framework governing information and consultation in Greece must be strengthened to be more effective. The social partners should also adopt a more cooperative mentality and culture.

1. National implementation of the Directive

Directive 2002/14/EC was transposed into Greek legislation by Presidential Decree 240/2.12.2006, which supplemented and extended the existing statutory framework.

Information and consultation had already been established:

  • Α) By Law 1387/1983 on “control of collective dismissals and other provisions”, as amended by Law 2736/1999, which transposed Directive 98/59/EC into Greek legislation,
  • Β) By Law 1568/1985 on workers’ health and safety, which provides for the establishment of Health and Safety Committees,
  • C) By Law 1767/1988 on Works Councils,
  • D) By Presidential Decree (PD) 40/1997 on Workers’ right to information and consultation in Community-wide undertakings and groups of undertakings in compliance with Directive 94/45/EC/22.9.94; and
  • Ε) By PD 178/2002, Measures on the protection of workers’ rights in the event of transfer of undertakings, businesses or parts of businesses in compliance with Council Directive 98/50/EC.

The Presidential Decree does not affect the special procedures established by the above laws/presidential decrees, but lays down a general framework for information and consultation and supplements and extends the previous legislative regime, since:

Α) it broadens the concept of information and consultation. Specifically, Article 4 of PD 240/2006 transposes Article 4 of Directive 2002/14/EC. Thus, Law 1767/1988 on Works Councils stipulates that information should include a) changes in an undertaking’s rules, b) the total transfer, expansion or downsizing of its business, c) changes in staff structure, d) general trends in the undertaking in the financial sector and planning of production, e) the undertaking’s balance sheet and statement of account, f) the undertaking’s profit and loss accounts. In Article 4 of PD 240/2006 a) information is broad in scope, as it includes information on the recent and projected evolution of the undertaking’s or business’s activities and financial situation. b) there is a right to information but in also to consultation on the situation, the structure and the prospective evolution of employment in the undertaking and business, as well as any preventive measures for which provision is made, particularly in the event that employment is threatened, and information and consultation on decisions that may bring about substantial changes in the organisation of work or employment contracts, and

Β) it provides that the social partners are able, on the appropriate level, including the level of the undertaking or business, to freely determine at any time, by means of an agreement, the practical details of workers’ information and consultation.

In addition, we would add that PD 240/2006 is applicable to undertakings with at least 50 employees and enterprises with at least 20 employees. The right to information and consultation under PD 240/2006 is not direct, but is dependent on an employee initiative.

2. Infringement proceedings

The Commission initially sent a warning letter to the Greek authorities on 31 May 2005 (EC document 202378). The Greek authorities (Ministry of Employment) answered the letter on 3 August 2005, pointing out that a draft Presidential Decree was being prepared incorporating the Directive in the section referring to that Ministry.

Subsequently, having no tangible proof that the P.D. had been issued, the Commission sent a reasoned opinion on 23 February 2006 in which it gave the Greek authorities two months to comply with Directive 2002/14. The Greek authorities answered the reasoned opinion on 23 February 2006, pointing out that the Ministry of Employment had completed the P.D. and that the Ministry of Mercantile Marine (YEN) had worked out a similar P.D. for ships’ crews.

Because the two months passed and the PD had still not been published in the Government Gazette, the Commission brought an action against the Greek authorities for failure to incorporate Directive 2002/14 into national legislation within the time limit. The case, numbered C-381/06, was communicated by the Court of Justice of the European Communities (ECJ) to Greece on 26 September 2006 and a deadline of one month set for submission of a statement of defence by the Hellenic Republic to the ECJ, i.e. before 26 October2006. In the statement of defence (12 October 2006) the Hellenic Republic pointed out to the ECJ that Directive 2002/14 would be incorporated in Greek legislation in two ways:

  • by P.D. from the Ministry of Employment and Social Protection, regarding the adoption of a general framework for setting minimum requirements with regard the right to information and consultation for employees in enterprises within Greek territory, and
  • by P.D. from YEN, regarding the adoption of a general framework for information and consultation for ships’ crews.

On 16 November 2006, PD 240 was issued and published in Government Gazette No. 252/A/16.11.2006. It incorporated the Directive in the part regarding the Ministry of Employment. YEN took no action. On 4 December 2006, the Ministry of Foreign Affairs sent the above-mentioned issue of the Government Gazette to the ECJ and to the legal department of the Commission, pointing out that the Directive regarding crews of vessels plying the high seas within the competency of YEN was expected to be incorporated in the near future.

On 1 June and 11 June 2007 the Ministry of Foreign Affairs sent to the bodies concerned documents from the ECJ informing the Hellenic Republic that its decision on the above-mentioned case would be issued without a viva voce hearing, and that the decision would be published on 13 September 2007.

3. Views of the social partners

We received no answer to the question we addressed to the Hellenic Federation of Enterprises (formerly Federation of Greek Industries – SEV).

The position of the Greek General Confederation of Labour (GSEE) is that although one of GSEE’s standing demands is that Directives be transposed into domestic legal order by laws, so that the legislative measures are submitted to Parliament for examination in each case, once again the presidential decree was the form chosen.

As regards the individual regulations of PD 240/2006, the GSEE’s position is as follows:

Art. 1 para. 4 stipulates that the provisions of PD 240/2006 are not applicable to crews of vessels plying the high seas. This regulation comes into direct contradiction with the wording of Directive 2002/14/EC, which in Art. 3 para. 3 states that Member States may derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas.

Despite a proposal by GSEE, no regulation was ultimately included within the scope of PD 240/2006, as set out in Art. 3, according to which branches or installations of the same enterprise in a location other than that of the main installation would be considered independent enterprises, in harmony with a similar provision in Art. 1 of Law 1767/1987.

The PD adopts the meaning of information, precisely as defined in the Directive. In GSEE’s view, the content of information should be specified somewhat better, so that it can effectively meet the objective set for it in the Directive.

When Art. 6 of PD 240/2006 on confidential information was being written, GSEE proposed that reference be made to the statute governing special cases, as expressly required by the Art. 6 para. 2 of the Directive, according to which employers are not obliged to divulge information or enter into consultation. This would avoid wrongful behaviour on the part of employers, who could cite confidentiality of information or obstruction of the operation of the company to justify a refusal to meet their obligations.

The law transposing the Directive is also deficient with regard to sanctions. The Greek legislator decided to apply administrative sanctions only, which experience of Greek reality has proved to be ineffective.

4. Impact of the Directive on industrial relations practice

Since such a short time has elapsed since the introduction of the PD in December 2006, we have not been able to collect and evaluate data on its implementation. No new representative bodies on the enterprise or undertaking level will be set up, since this is not provided for in the PD. As regards the response of the employer side to the new regulations, our experience from the operation of the information and consultation schemes, where the employer side tries to avoid meeting its obligations – particularly on matters of collective dismissals and transfer of undertakings – is fully usable in this connection. To date there have not been any court rulings using provisions of PD 240/2006 as a legal basis.

5. Interface with other national information and consultation provisions

For the answer to this question, see Q1. In answer to the individual points:

Α) All the Directives were transposed into the Greek legal order by PDs, except for 98/59/EC which was implemented by a law. As stated above, one of GSEE’s standing demands is for Directives to be transposed into the domestic legal order by laws, so that in each case the legislative measures are submitted to Parliament for examination. Nevertheless, the presidential decree is most often the form chosen.

Β) As regards the meaning of workers’ representatives:

According to PD 240/2006, Article 2 stipulates that by workers’ representatives are meant the persons having that capacity in accordance with current legislation and practice. This means that the works council exercises the right first of all, and in the absence of a union.

According to Law 1387/1983 on collective dismissals, representatives of workers are deemed to be the legal representatives of the trade union in the enterprise or undertaking of which at least 70% of all workers and the majority of the redundant workers are members. Where there are a number of unions, and none meets the conditions described above, representatives are deemed to be the people designated by the union executives in a joint statement to the employer. Such representatives are designated according to proportional representation, provided that 70% of all workers and the majority of the workers affected by the dismissals are union members. Where there are no unions that meet the conditions described above, the workers are represented by a committee whose members are elected by secret ballot taken at an assembly of workers in the enterprise or undertaking.

According to PD 178/2002 on transfer of undertakings, representatives of workers means those provided for in Arts. 1 and 2 of Law 1767/88 on Works Councils, as applicable at any given time. Therefore representative of workers means the works council. Where there is no works council, the workers are represented by a three-member committee elected by them.

According to PD 40/1997 on European Works Councils (EWCs), representatives of workers means the workers’ representatives provided for in national legislation. This means that the works council exercises the right first of all, and in the absence of a union.

C) As regards the meaning of information and consultation:

PD 240/2006: see Directive 2002/14/EC, Arts. 4 and 5.

Law 1387/1983: According to Art. 3 para. 1: Before proceeding to make collective dismissals, the employer must enter into consultation with the representatives of the workers for the purpose of investigating the possibility of avoiding or reducing the number of dismissals and their adverse consequences. According to Art. 3 para. 2: see Art. 2 para. 3 of Directive 98/59/EC

PD 178/2002: see Art. 7 of Directive 2001/23/EC.

PD 40/1997: see Directive 94/45/EC

D) As regards the issue of which rule has precedence, the more specialised statute has precedence over the more general statute.

Ε) PD 240/2006: Article 2 para. 2 of PD 240/2006 stipulates that failure to comply with the obligations emanating from that PD will incur, by reasoned act of the Labour Inspector: a) a fine for each violation of between EUR1,000 and EUR30,000, b) temporary interruption of the operation of parts or the whole undertaking of up to three days, and by decision of the Minister of Labour and Social Security a temporary interruption for a period of more than three days or a permanent termination of the operation of parts or the whole undertaking may be imposed.

Law 1387/1983: Collective dismissals made without following the procedure are invalid.

PD 178/2002: Failure to comply with the provisions of the PD may entail administrative sanctions (a fine of EUR1000-3000 for each violation).

Commentary

Most European countries have long experience in the area of participatory processes within enterprises, the main features of whcih are the variety of regulations and mechanisms provided for. In Greece this practice appears to be in need of support. Let us take as an example the unions’ experience to date on the question of company restructuring: The restructuring that has taken place in Greece up to now has not been the subject of collective bargaining. Although there is a statutory framework for the involvement of workers’ representatives (unions, works councils) in matters regarding economic restructuring, to date all the procedures have remained at the level of consultation and have not been the subject of collective bargaining or of collective labour agreements. Further, works councils must also be strengthened. According to the current legislative framework, works council may be set up in an enterprise employing at least 50 employees, or at least 20 employees when there is no enterprise-level union. However, only 3% of Greek enterprises employ over 20 employees, and the rest are small and medium-sized enterprises. Further, in addition to reinforcing the statutory framework, a change in mentality and cooperation is required from the social partners. Enterprises must realise that labour is a driving force of economic and social development and must be truly willing to cooperate. Workers must continue to claim that role and try to reinforce public social dialogue in every aspect of labour relations.

Sofia Lampousaki, INE GSEE / ADEDY

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