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The European directive on Information and Consultation finally made it into law last March. As we reported then (issue 19 page 6) the final text bore the hallmarks of UK government pressure to water it down. However the new legislation could still provide big opportunities for unions. A recent paper prepared for the Trades Union Congress sets out the positive possibilities as well as the potential pitfalls. We examine the report below.
In his introduction to 'The implementation of the EU employee consultation directive' John Monks, the TUC General Secretary writes 'The Information and Consultation Directive is potentially the most significant piece of employment legislation ever to be introduced in the UK'. He backs this up by contrasting the rights to be conferred on workers 'to be informed and consulted systematically, through their elected representatives, on matters affecting their jobs and their future employment prospects' with the current state of affairs in the UK. This was revealed in 1998 by the 'Workplace Employment Relations survey', he says. 30 per cent of workplaces surveyed with formal recognition agreements had no union representatives, and less than 6 per cent of union sides negotiated on issues like staffing levels, redeployment, recruitment and selection. He concludes that, with the right transposition into UK law 'a new system of employment relations can be developed in the UK, which will match the more mature systems in other EU member states'.
The big question which this assessment cannot yet answer is how the government will implement the directive - the transposition. Most of the body of the report concentrates on how this is likely to work and how the TUC should seek to influence the process. One of the main thrusts of the recommendations, apart from the rejection of a 'light-touch' employer-led approach, is to use the directive to extend representation into workplaces which are currently non-union while making sure that unions take the lead in the new arrangements where they are recognised. The best way of achieving this, the report thinks, is to allow unions and employers to agree the new system among themselves, fitting it in to existing practice, while setting up a trigger mechanism for unrepresented employees who have to start from scratch. Where employers refuse to co-operate, the paper goes for a statutory fallback framework to force them. Existing union consultation rights on redundancies and transfers (e.g. TUPE) must be respected, it says, as well as provisions under the Employment Relations Act and the European Works Councils (EWC) legislation.
Whilst the directive stipulates representation of all employees at the 'establishment' (eventual minimum 20 workers) or 'undertaking' (50) the report advocates a possible TUC approach to get this changed to a 'group of undertakings'. In this way the new committees are more likely to be negotiating with management who can take 'strategic decisions' rather than individual companies. On the form that consultation takes, the TUC should press for precise, well-defined guidance on both the timing and the subjects to be discussed which are already set out in the regulations on EWCs. Other issues that the report draws attention to include the confidentiality of documents shown to representatives, the independence and protection of the reps., and the nature of the sanctions to be carried out against non-complying employers. As the government is likely to take advantage of the extra 3 years granted to the UK and Ireland it could be 2008 before the directive is wholly implemented. However the report believes that this could suit unions to organise gradually in smaller and smaller firms.
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'THE IMPLEMENTATION OF THE EU EMPLOYEE CONSULTATION DIRECTIVE' by Mark Hall can be found on the internet at: |
A long running case brought by UNISON recently reached judgement in the European Court of Justice. Female catering staff employed by North Yorkshire County Council had achieved pay parity with male refuse collecting and gardening workers under the UK Equal Pay Act. However their jobs were then contracted out to a number of different private firms. Whilst it was accepted under TUPE that the existing staff must continue on the same pay rate, the question remained of whether new recruits were entitled to compare themselves to the male council workers. Now the court has ruled that they cannot. It says that there is no reason in principle why workers may not compare their pay to those doing similar work for other employers but where the inequality is not caused by a 'single source' there is no one body capable of restoring equal treatment.
A recent judgement by the court has broken new ground by allowing tax relief on pension contribution to cross EU internal boundaries. A Dr. Rolf Danner had moved from Germany to Finland but kept up his payments to two German schemes. He wanted to claim tax exemption on these contributions but Finnish law prevented this as the pension was administered in a foreign country. The ECJ ruled that this ran counter to EU measures designed to ensure freedom to provide cross-border services.
For the first time a case of psychological harassment at work has been referred to a criminal court. A judge in Barcelona felt that an alleged two year campaign of harassment by a manager in Telefónica could amount to 'unlawful coercion' under the Spanish penal code. If the individual is found guilty they could face a fine of two years pay or a prison sentence of up to three years.
Four waiters from London have lost their case against the counting of tips towards the minimum wage. Their employer included any tips payed by cheque or credit card on their wage slips. The Court decided that this did not break article 1 of the convention on the right to private property and it was for the workers to come to a contractual arrangement with the employer.
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