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We reported in the European Review of July last year (issue 15) that the directive ensuring information to and consultation with employees by employers was about to hit the statute books. In the event it took until last February for the Council of Ministers to formally adopt the law. One reason for the delay was the activity of the British government, which, having dropped its outright opposition, sought to water down and qualify the directive's provisions. Here we investigate how successful they were.
An unusual extra document was attached to the minutes of the February meeting. A declaration of the European Parliament, the Council and the Commission recalled judgements of the European Court of Justice in 1994 which condemned the failure of the previous Conservative UK government to implement previous directives on the same subject. These were passed by the EU as far back as 1975 and 1977. The reference to them in the joint declaration is a shot across the bows of the present British government and no doubt thought necessary to remind them that the principle of information and consultation must be upheld whatever concessions have been made in the fine print of the new directive.
Unfortunately these concessions appear to be quite considerable. The timing of the consultation has been made vaguer in the final text compared to the early drafts although the preamble refers to the directive being needed to prevent 'serious decisions affecting employees from being taken and made public without adequate procedures having been implemented beforehand to inform and consult them'. A more serious omission, under pressure from the UK, is the original provision for stringent sanctions and suspension of employer decisions if the law is broken. Now the directive refers to 'sanctions that are effective, dissuasive and proportionate in relation to the seriousness of the offence'.
There are further twists and turns in the text of the directive which bear the marks of UK interference. Article 5 allows management and labour to negotiate 'provisions which are different' from the directive. Articles 1 and 2 entrust the practical arrangements to the 'national law and industrial relations practices in individual Member States' including the definitions of 'employer'. 'employee', 'establishment' and 'employees' representatives'. It is precisely the definition of who is and who is not an 'employee' that has bedevilled previous interpretations of EU directives.
The two other grey areas in which the UK government extracted concessions concerned how big a company must be for it to come under the new measure and how long Member States would have to implement the directive in national law. For countries where there are no existing laws on this subject (effectively the UK and Ireland) an extra three years (making a total of six) was allowed for implementation with the threshold increased from companies with 50 workers to those with 150 until year six. Therefore many British workers will have to wait until 2008 until they are covered by the new directive. However the likely incorporation in 2004 of the EU Charter of Fundamental Rights, which includes the right to information and consultation, into the EU treaty may improve their chances.
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The final version of the text of the directive informing and consulting employees in the European Community can be found on the internet at: |
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi! |
There have been many ECJ cases on the subject of equal pay and they often seem to concern various supplements and extra payments in addition to basic salaries. One such decision was recently reached in litigation between a Ms. Brunnhofer and an Austrian bank. Susanne Brunnhofer claimed that, although she was doing a job which was classified in the same category as a male colleague's, she received a smaller monthly supplement. The bank's defence was that due to personal and professional problems Ms. Brunnhofer's performance had dipped since her appointment and they expected the male worker to be more able and therefore to be given more responsibility when they recruited him.
The court's decision held some comfort for the complainant as it confirmed that monthly supplements were included in equal pay legislation and it rejected the bank's defence. It was only through monitoring their performance of their duties that it could be established who had the most responsibilities and, therefore, there could be no justification for paying the man more from the start of his employment. On the other hand, the court stated that because two jobs were in the same general category it did not follow that the work they entailed was of equal value and it was for the national court to decide this.
TUPE cases are not known for their simplicity and the case of Temco Service Industries was no exception. Volkswagen in Brussels contracted out the cleaning of its vehicle plants to BMV in 1993. BMV sub-contracted the work to another firm GMC. Volkswagen terminated the contract with BMV in 1995 and took on Temco as cleaners. Temco took on some of the workers from GMC, which still existed but effectively had no work, as under Belgian law it had to employ 75% of the old work force. However four employees were left behind. They claimed that the new contract represented a transfer and therefore came under the Acquired Rights Directive, the EU equivalent of TUPE. Temco claimed that there was no contract between itself and GMC, which anyway had continued to exist and formally employ the four workers. The ECJ ruled that the group of workers transferred were doing the same job as before and so came under the directive and that the successive contracts with Volkswagen only confirmed this. Temco thus had to take on all the workers from GMC.
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