11 April 2016

By Stan De Spiegelaere & Romuald Jagodzinski, Researchers at the European Trade Union Institute

On 26 June 2013, the members of the Amcor European Works Council (EWC) received a court ruling stating that they could not use the company intranet to share a report of an EWC meeting directly with the workforce. About a year later, the same European Works Council select committee members were prohibited, by court ruling, from travelling to the UK to talk directly to the employee representatives on the site.

Informing the local workforce is not a given

Evidently, the right of EWC employee representatives to inform the workforce about the proceedings on the European level is not guaranteed. Although it seems absolutely obvious that representatives should inform the employees they represent, the reality is different. In various ways, this right and duty to inform the workforce is limited and sometimes even obstructed.

Informing and reporting back to workers is one of the central rights and obligations for all employee representatives in general, but it is of special importance for representatives in EWCs. The EWC deals with important but technical matters such as financial reports. Without any structural link between the EWC, the local representatives and the workforce at large, the EWC risks working in a vacuum. It needs constant input from the rank-and-file to completely fulfil its potential. And the process should be a two-way street. The representatives need to inform the workforce, and the workers need to give input to the representatives.

For this reason the 2009 EWC Recast Directive included a clear reference to the right and obligation of EWC members to inform the local workforce about ‘the content and outcome’ of information and consultation at European level. This necessity had already been identified and found its way as a right and obligation into many EWC agreements. In 2016 about three out of four EWCs had an agreement mentioning this reporting back.

Good and bad examples

Good news! And yet to be effective this right should be flanked by concrete provisions on who is responsible, what to communicate, how frequently and to whom. A review of the EWC agreements on this issue provides a mixed picture. In the large majority of agreements, the clauses on reporting back are very vague and do not specify in any detail who can do what. This lack of clarity and procedures is likely to hamper the liberty of employee representatives.

In about 32% of EWCs, the responsibility to report back is shared between management and employees; in 33% it is an employee-only responsibility; and in 7% the management alone is responsible for informing the workforce.

This role of the management can be limited or extended. In some cases the management merely requires to be notified of meetings with local works councils; but in other cases it adopts a more pronounced and active role. Frequently, a joint communication is issued to the workforce, in which case both parties agree on the message. In yet other cases, the agreement clearly prohibits employee representatives from using company infrastructure (e.g. intranet, black boards, etc.) to report back to employees.

Good examples too were identified as some agreements have provision for the organisation of at least two annual meetings in which EWC representatives can exchange directly with the local representatives and employees.

Limits and extensions

Yet even when the right and duty to report back is well established, the scope of the right can still be limited by provisions of confidentiality. As the EWCs often deal with sensitive company information, the representatives might be prevented from informing the employees on the basis of the confidentiality clause, which may cripple even the best, most dedicated and efficient EWCs and deny their raison d’être. Clear rules and procedures on how to treat confidential information are therefore fundamental: the EWC representatives should require the management to specify what information is confidential, for what reasons, to whom it applies and until when.

Additionally, the EWC representatives should have the unequivocal right to visit the company premises to meet and talk to the local representatives and employees. In only 18% of the EWCs is such a right clearly included in the agreements.

Conclusion

While a constant link between the different levels of employee participation should be an obvious given, frequently it is not. There is, in other words, still a huge challenge for EWCs to negotiate concrete and extensive rights in their EWC agreements enabling them to effectively liaise with their rank-and-file. Only subject to these preconditions can the EWC become an actor of relevance and the idea of transnational solidarity and articulation between the European and national levels take on concrete shape.