2/09/1997

The European Commission has formalized procedures of installation of European Works Councils and C.E.C., which is part of the European social dialogue, is implied in several axes of action:

- to attend to existent agreements

- to attend to national transposition laws

- to participate in installation (and/or for negotiation)

- to animate functioning of what exists, with an adequate organization:

- an expert by country

- an expert by Federation

- a coordinator by Group of undertakings where an agreement exists

The Directive 94/45 of 26 September 1994 focuses on installation of European Works Councils.

C.E.C. paid attention to voluntary agreements put in place up to 26 September 1996, without giving directives. C.E.C.-adherent Organizations were free to participate or not to participate and results have been varied according to countries and sectors. It appears now that managers of C.E.C. have succeeded in taking their place in the European Works Councils, thanks to actions by National Organizations and Professional Federations, and that this dynamics has to be pursued and amplified in the framework of a voluntary policy of C.E.C. and the development of European social dialogue.

Indeed, C.E.C. can make itself known outside experts’ circles relating to European questions and especially beside Managers of Undertakings having an European Works Council.

C.E.C. strengthens thus its role of leading opinion beside Managers.

The Directive 94/45 on European Works Councils creation does not mention role of unions, but simply the rights for representatives of employees to negotiate an agreement. It mentions also the fact that the totality of employees has to be concerned. Therefore managers are concerned, and thus by the C.E.C., which represents managers at European level.

As soon as a group of social Partners negotiates the creation of an European Works Council, members of the union organization (national organization, confederation or federation), present in the State where the head office is located, are advised first of opening of negotiations.

If a national organization is advised directly or indirectly of opening of negotiations, it has to advise C.E.C. and/or the Professional Federation concerned.

If a Union organization is representative at the head office level, it is usually consulted.

Otherwise, that depends on national legislations. In some countries, for example Germany, Unions do not participate in negotiations. In this case, the role of the Unions and of the C.E.C. is to coordinate, inform and consult the managers concerned.

C.E.C. constitutes a coordination body to organize preliminary meetings before installation of European Works Councils.

It has to provide tools for negotiation, in form of documents, training and telephonic advice.

The C.E.C. and Professional Federation role is to attend directly negotiations and to provide experts in EWC meetings.

C.E.C. members attending negotiations or EWC meetings have to demonstrate a solidarity between themselves in common objectives, as to C.E.C. recognition of and the specificity of managers by the other social partners. They have to consider themselves as C.E.C. representatives as distinct from E.T.U.C., or managers as distinct from the other employees, without seeking divergent positions.

This disposition of meaning is all the more important in that representatives of managers of subsidaries may not know representatives of managers of the head office and can make acquaintance in preparatory meetings.

This capacity passes in the first place to National Organizations and it is variable according to national legislations (annex 2).

Representatives of Managers are defined by laws and national practices (annex 3) and especially by the Directive transposition law in each Member State (annex 1).

E.T.U.C. asks often to open negotiations before an Enterprise decides it, and our representativeness allows us sometimes to do the same thing.

In some countries, an agreement can be improved compared to the law, or even to the national level, if the initial agreement is a framework agreement (case of a EWC put in place by an agreement in another Member State and that anticipates the designation and means of members of the EWC by national authorities).

The Directive specifies some points allowing the constitution of a special negotiating body able to negotiate EWC installation.

*Composition: the number of its members is between 3 and 17, with one member of each country of E.U. where an Undertaking is present, then with a proportional distribution to staff of employees in each Member State.

*Mode of designation, according to the principle of subsidiarity: each delegation is defined according to legislations and customs within each Member State (eventually with preliminary agreements as in the case of Solvay).

The special negotiating body may decide, by at least two-thirds of the votes, not to open negotiations. Such a decision shall stop the procedure to conclude an EWC agreement.

The agreement is concluded if the majority of participants is favorable to the conclusion. In practice, negotiations continue until quasi unanimous agreement.

Concerned Undertakings are Groups of undertakings employing at least 1000 employees in E.U. and at least 150 employees in two Member States of E.U..

The Directive provides right to information and consultation of employees that completes existent dispositions without substituting to them and right to negotiation on the detailled arrangements for implementing the information and consultation of employees, with a schedule and subsidary requirements after 26 September 1999.

E.U., E.E.A., Geographical Europe or any other including E.U.

Definition of the Group:

- Head office and possibly the controlling undertaking in European Union (it is important, since that is going to determine the applicable law and since all countries of E.U. have a applicable law except Great Britain).

- List of subsidaries by country with the capital (or attached votes) controlled directly or indirectly and concerned staffs (composed in managers and other employees).

A subsidiary where the controlling undertaking can appoint leaders (half of members of the board of directors or the supervisory Board) is included in the perimeter of the Group, even if the controlled capital is inferior to 50%.

Processed subjects have to concern at least two countries of the E.U. and not to substitute to questions to process to the level national.

Consultation means the exchange of views and establishement of dialogue between employees’ representatives and central management. It does not constitute an obligatory procedure of consultation, with an advice of the European Works Council. That withdraws much interest to process on-the-spot news and transforms meetings in great declarations without practical results.

Composition of the European Works Council:

It is composed of employees of the Group of undertakings in each European country with a minimum of one per country in which there are more than 150 employees and a maximum of 30 members.

The agreement has to mention:

the duration of the mandate (two to four years in practice)

The Central Management of the Group of undertakings is responsible for the good organization, the location of the meeting, and the convocation with agenda, but it may delegate them.

It attends the meeting (in general the C.E.O. and the executive officers or national managers or its representative).

A select committee may be constituted with a President and/or a Secretary and members of several nationalities to improve the functioning of the EWC, to prepare the agenda, to write the minutes of the meeting and in general to circulate information.

In the EWC of large groups, the President or Secretaries’ position is strategic and is generally occupied by a representative of E.T.U.C. , except L’Oréal.

The European Works Council can be endowed itself with an internal regulation.

Communicated information may be of confidential nature and members of the European Works Council are submitted to the obligation of confidentiality with regard to third party.

The frequency of meetings is annual, but exceptional meetings may occur if circumstances demand it or if the majority of members asks it.

The duration of meetings is a day, preceded by a preparatory meeting of one day and sometimes followed by a meeting of conclusion of half a day.

The agreement defines the plug-in cost of the operating expenses, location of meeting room, duration of vacation, transportation and stay expenses of members, hours of delegation, interpretation and translation, training of the delegates, etc.

The assistance to meetings necessitates a training to transnational or European questions. Otherwise, each comes with its national questions.

The EWC representatives enjoy the same protection and guarantees provided for employees’ representatives by the national legislation and/or practice in force in their country of employment.

The agreement may last undefinitely, but it is necessary to provide procedures of revision, with a period of notice and new negotiation. There can also be a procedure of transfer of revision from the special negotiating body to the European Works Council which negotiates the revision of its own functioning.

The Directive provides that the European Works Council has to be informed of activities of the Group affecting interests of employees, without prejudice to employees’ existing rights to information and consultation under national law.

The European Works Council has to be able to express an opinion at the end of the meeting.

Are concerned the important next themes:

List of countries where the Directive is directly applicable:

1. Germany

10. Italy

11. Luxemburg

12.Netherlands

13. Portugal

14. Sweden

The role of the Unions in each country can be summarized in the following:

In Belgium, CNC cannot conclude national agreements, but concludes sectorial or Undertakings agreements. Some Undertakings recognized the specific character of Managers by introducing a college "Cadres" in voluntary agreements.

Some associations of managers are very active, but are not always recognized to designate candidates to election of employees’ representatives.

In Denmark, LH represents Managers and negotiates their amendment to collective agreements in major sectors, especially by undertaking.

In France, the CFE-CGC (and its adherent organizations) can negotiate agreements with the Central Management of Undertakings. The C.E.C. and the professional Federations could negotiate several voluntary agreements. This possibility fails for obligatory agreements.

In Germany, ULA (and its adherent organizations) does not want to conclude collective agreements except in the sector of chemistry, where the VAA concludes framework conventions on conditions of work.

Some voluntary agreements (Art. 13 of the directive) were concluded with the Central Management and with Works Councils. They give the status of guest to a senior manager.

ULA gives orders to its members to apply the law.

In Italy, FNDAI, federation of CIDA, concluded an agreement on RSA (representation of senior managers in Undertakings).

Unionquadri concluded agreements in the public service .

In Luxemburg, FEP - FIT represents Managers and Employees of the private sector and concludes collective agreements at the level of sector or undertaking.

In Netherlands, MHP is a representative on the national level and VHP negotiates collective agreements concerning managers. MHP has representatives in Works Councils, but not necessarily managers of VHP.

The practice has much importance for deciding if a collective agreement has to be made obligatory or not (principle of the contractual liberty). An agreement concerns a sector or an undertaking, but there are rarely two separate agreements.

In Spain, the C.C. is not signatory to national collective agreements, but its constituted organizations can conclude undertaking agreements (case of Martorell Solvay).

In U.K., MPA negotiates collective agreements in undertakings, when it is recognized as representative.

However there is no legal definition of a Works Council.

Note: In the case of the installation of the European Works Council of Unilever, the Central Management refused the participation of representatives of European Confederations for the negotiation by deciding to accept only national representatives (according to the Directive). The result is that a member of E.T.U.C. leaded the meetings after a failure of the first one.

FECCIA/C.E.C. or EMCEF/E.T.U.C. were not able to be recognized as representative by the Central Management of Unilever.

That shows that there is something missing at the European level.

The "collection of principles and good practices concerning conditions of jobs and work of the intellectual employees" adopted in 1978 by the board of directors of the I.L.O. led to a definition of intellectual employee (or manager):

everyone who:

a) ended a learned and a professional training at superior level or who possesses a recognized equal experience in a scientific, technical or administrative area

and

b) exerts, in quality of employee, functions of predominant by intellectual character, comprising the application of a high degree of abilities of judgement and of initiative and implying a relatively high level of responsibility.

This notion includes equally all persons responding to characteristics a) and b) above who holds, by delegation of the employer and under its authority, the responsibility to anticipate, direct, control and coordinate activities of a part of undertaking or of an organization, with power of commandment corresponding, except executives having a large delegation of the employer.

The Gil-Roblès resolution of the European Parliament of 25 June 1993 adopts a voluntarist position on the "right of managers to information, to consultation and to an autonomous representation, in existent dialogue organs (according to voluntary agreement in some multinational undertakings) or to establish" (paragraph H),

The Gil-Roblès resolution asks also that the Commission takes, if necessary, appropriate initiatives to guarantee, in undertakings and Community-scale groups, right of managers to information and consultation, as well as to representation allowing them to sit and to act in an effective manner inside existent dialogue organs or to establish for all the employees, notably in the framework of the status of European-incorporated Company. Already existent models do not affect the position of European Works Councils expected by the current directive proposition on information and consultation and do not prejudg the position of managers in organs of direction of the company.

Category of " Cadres " is sometimes defined by law or by collective agreement and it does not insure a homogeneity of the definition in all Member States.

Belgium: law of 1985 and elections of 1987

Denmark: the law n°681 of 23 December 1975 defines manager as "that who, exclusively or essentially, directs or controls, for its employer, work in undertaking or a part of this one".

France: the law provides a first college " workers " and a second college "Supervisors, Technicians and Cadres’’

Germany: the law of 23/12/1988 defines senior manager as "this one who, according to its work contract, or its position in undertaking or establishment is able to hire or to dismiss, with its own authority, employees occupied by undertaking or who have a general power or a proxy without authorities whose it is invested being unduly limited, or who is regularly in charge of important functions for the maintenance and the development of the undertaking whose realization supposes an experience and particular knowledge due to the fact that decisions are taken without directives or without others ones intervening to influence them of significant manner".

The category of middle management includes employees accomplishing tasks and assuming responsibilities at level immediately inferior to that of responsibility tasks of senior management .

Italy: the article n°2195 of the Civil Code distinguishes four employee categories, whose senior managers (dirigenti) and the other managers (quadri)

Luxemburg: the law according to the work contract establishes distinctions to the attention of the group of managers

Netherlands: managers are defined in collective agreements

Portugal: the practice identifies managers (quadros) according to their responsibility

Spain: royal decree - law of 1st August 1985

Sweden: the classification of tasks identifies the level "Managers"

U.K.: classification of employees by profession: group of managers

Austria: there are Works Councils, but without specific representation of managers

Belgium: specific college of " Cadres " (law of 1987) when the number of managers is more than fifteen

Denmark: managers can elect representatives.

France: second college: technicians, supervisors and managers if there is no third college

Germany: The transposition law provides that a representative of the Committee of Spokesperson participates as member in the plenary session of the European Works Council under next conditions:

1. There is a committee of spokesperson. (At least ten managers, according to the law)

2. The majority of employees of the group of undertakings works in Germany (the EWC includes therefore five German members with a senior manager as participant)

no college for middle management who belongs the Works Council

Italy: specific representation (RSA) for dirigenti

Luxemburg: managers and employees elect delegates of the personnel that sit on the mixed Works Council.

Netherlands: it does not seem that there is a specific representation of managers

Spain: second college: managers and supervisors, therefore no college of managers

U.K.: Works Councils do not yet generally exist.