Considering the process of information and consultation as a serious matter
There is a set tradition, mainly in South European countries, that the main actions of trade unions are collective bargaining, strikes and manifestations.
In the recent years, though, changes in the labour Law have restrained the right to free negotiations between employers and employees and collective bargaining has been cut down at all levels.
On the other hand, information and consultation remains a serious and legally established way of sitting together with the employer and trying to find a mutually satisfactory solution to each problem.
Although finding a solution is not guaranteed, it is necessary to come to information and consultation with a serious attitude if you wish to reach a solution.
In several cases examined in the survey, undertaken in the framework of the INVOLVE project, we have met employers trying to jeopardize information and consultation process or employee representatives addressing it in a suspicious and derogatory way, both minimizing their chances to gain from their participation to it.
Information and consultation culture
Information and consultation should be a consensual procedure. Both sides will benefit if they achieve to conclude a commonly accepted Agreement that safeguards both the employer’s and employees’ interests.
In countries like Germany, France, the Netherlands or the Scandinavian ones there is a long tradition of information and consultation, from which has derived a deeply rooted culture of information and consultation.
This gives employee representatives in these countries the opportunity to claim for information for any item even if it seems not being important, which creates a good in-company social climate to both sides (employer-employee). This may prove crucial in periods of economic and financial crisis, when issues to be discussed are infinitely more important.
In countries like Greece, Bulgaria, Cyprus, Malta, Romania, Spain and Italy, where there is no established information and consultation culture you have to start engaging in the process, when the company gains profits, to learn how to sit around a table and discuss and how not to step back with the first objections of the management.
Apart from the culture of I&C in the country, perhaps more important is the maturity and culture that exists in the specific company in terms of information and consultation of the management with employees’ representatives.
Good attitude towards communication and dialogue and positive intentions is the best way for sitting together to prevent negative impact of changes the management envisages and to find solutions.
Features of good information
It is true that both sides have to put an effort to understand the positions of each other. On the other hand the main responsibility for achieving good quality of information and consultation is of the management.
Management has to provide employees’ representatives with correct, valid, timely and analytical information in written (practical written notes). Information should be clear, true and to cover all issues. You should always verify that information is true, not fake.
You should collect necessary data and information also yourselves independently. National Business Registries, in which all changes of management, basic decisions and economic statements (balance sheet- profit and loss accounts) are published, constitute a very useful source of information.
Good information is the basis for consultation. You have to insist on getting good quality information because this opens the way to good consultation.
Procedure of information and consultation
Consultation has to be conducted in an appropriate way, time and content. Dialogue has to be direct and honest from both sides. You have to define well the subject of information and consultation to understand it better. Topics of consultation should be communicated to employees’ representatives before the common meeting. Management should provide employees’ representatives with information quite some time ahead of consultation. Employee representatives have first to study and to know well the issues under discussion in order to be able to effectively raise and sustain arguments.
You, as employees’ representatives, should build fast a trustful relationship with the counterpart (management) and keep open communication channels with it. To this end, it would be most useful if you establish a joint Committee, which will discuss regularly on Labour Issues.
Management representative has to be at the appropriate position level.
Terms of information and consultation, including the time schedule (when consultation will start and when it will finish) should be agreed with the management in the beginning.
You have to express opinions consistent with information received.
Before and during consultation you should investigate and think about what are the motives and interests of the two parties at all levels. The effort to enter in the shoes of the other side will help you recognize why the management sustains its positions and how you can bring it closer to yours.
During consultation, though, you should keep in mind that there may be some traps.
You should pay attention to Group dynamics.
The interested parties (those affected by changes) should be consulted. You should collect sufficient data on what the impact of changes, the management wishes to introduce is, to examine whom these changes will affect and how. Useful is to think about the impact for both sides.
Employees’ representatives should analyse what they have done in the past and learn from it.
You should keep written records of discussion.
In the case the employer has no intention of compromising, then consultation has to be backed with industrial action.
Detailed arrangements for implementing information and consultation of employees are usually established following a negotiation between the two parties and written down on an Agreement between the employer and employee representatives. Agreements for information and negotiation are more common in the case of EWCs. You should pay attention especially to two points:
- First, you should always have in mind that what is written in the Agreement prevails (it is stronger) than what is previewed in the Directive. For example if the special negotiating body and the employer have reached an agreement for the operation of the EWC not previewing the employer pays the cost of an expert assigned by the employee representatives to assist them or no cost for training of EWC members is previewed, then this is so (despite that minimum clauses previewed in the subsidiary requirements of Directive 2009/38 say the contrary). In the case you don’t reach an agreement, which is better than the provisions of the subsidiary requirements, you should better reach no agreement at all, because in this case enter into force the subsidiary requirements.
- Second, concerning the timing of negotiation for the Agreement, it is always better to negotiate, when the company faces no economic or market problems and the trade union is more powerful. Remember that you will use the provisions and modalities of the agreement as well when problems may arise.
Virtues of a good employee representative
During information and consultation employees express themselves through their representatives. Solutions reached or failures to find a solution depend to a great extent on the virtues and skills of representatives.
Trade unionists from all countries participating in the survey have underlined as most important that as employees’ representatives you have to:
- Be trained on information & consultation.
- Believe in unity, responsibility and solidarity.
- Communicate to workers information you have received and inform them about your involvement in the search for all possible solutions.
- Never give illusions or false hopes to the workers; inform them properly.
One should have in mind that you, as employees’ representatives have individual & collective responsibility.
The limit of information and consultation is not to lose job positions, or, in the case this proves to be impossible, to minimise the impact on employees affected.
In a company there may be more than one trade unions, belonging to trade union federations with different ideologies. Unity and coordination of action between trade unions is necessary if you wish to improve your positions.
On the opposite, the company management often uses conflict or failed coordination between trade unions to neutralize trade union pressure (e.g. trade union is on strike in one factory and another trade union in another factory of the same company doesn’t take any action, so workers in the second factory work overtime to counterbalance the loss of the employer from the first one).
Communication of Information to employees
You must inform your colleagues on the situation, your positions and the course of consultation (when there is no confidentiality obstacle).
Unions must be creative (including the use of social media) to pass information to employees.
As an employees’ representative, a trade unionist or a works council member, you base your power exactly on the fact that you represent employees and you are elected to this aim. This link is not exhausted by the act of participating in the elections, it is a living bond and it has to be kept as such. It is most of all an act of confidence in you. To this end, you have to pass to your colleagues information you receive from the management of the company and to keep them updated about what is going on and what are the results (if any) of consultation. Frequent communication establishes transparency. To be transparent and true to your colleagues is the main virtue they ask from you.
To do this many employees’ representatives use the General Assembly, some use the announcements board or the company newspaper. Whichever way you choose to use (you may also use e-mails or other new technology applications), the whole exercise of reporting to your colleagues, may give you the opportunity to listen to ideas, information, documentation that may be extremely useful to you and, anyway, you will keep your colleagues ready for any industrial action you may need to take (e.g. stoppage, strike, manifestation etc.).
Even in the case of closure of a plant of a multinational company, which is a very difficult to tackle problem, as when multinationals decide to close it is very difficult to stop the decision from being implemented, there should be maximum transparency for the workers in order that they make their own decisions based on facts not on rumours and you should make an effort to find alternative solutions.
Setting –up an effective internal information system
Effective communication demands to set-up and use an effective internal information system. This system may be used in a double-way. First, you may use it to diffuse information to your colleagues and second, you may use it to collect primary information or to check information provided by the employer.
If you use e-mails it is preferable to use personal e-mails of your colleagues and not the company mails or the company intranet, in order to keep communication between employees out of the reach and the control of the company.
Solidarity is closely related to unity but has a broader sense. Solidarity may be interpreted as a common action with colleagues working in the same company but in another plant or another country and facing a serious problem.
Solidarity may seem natural and self-understood, but is not always so. Think for example that the company management wants to close a factory. If not the one they propose, would it be yours? Experience has shown that if there is no solidarity the most likely result is that both factories will close in the mid-term.
Things are even more complicated in the case of multinational companies, where supporting employees of a plant of a specific country, which is in risk to be closed, may have negative consequences on employees of several other countries.
In practice, you may confront dilemma such as: will you envisage supporting colleagues of another plant with local conflicts? If you are a member of a EWC, how would you face a problem of closure of a plant in a non-EU country (which is not represented in the EWC)?
Last but not least, impulsive solidarity is not enough. You should look for coordination with other trade unions demonstrating solidarity to you, in order to tune and maximize impact.
Coordination with other trade unions and trade unions structures (Federations, country organisations)
Solidarity may also be expressed between workers or trade unions from different companies. This includes trade unions at all levels (including the Confederation level).
Organizing a strong trade- union action demands to communicate your problems, decisions and actions to other trade unions and trade union structures, ask for their solidarity and co-ordinate with them. Coordination with national and (in the case of EWCs) European confederations is therefore essential, as well as continuous training and strengthening the network of European workers’ representatives.
Social action, solidarity, support of social institutions
The management has to know that the trade union will not hesitate to use all legal means available.
To maximize pressure on your employer you require the support of social institutions, and institutions at all levels (local government, local authorities, ministry and ministry departments). This may contribute to the general climate towards your case but it may also have practical application (tripartite meetings etc.). Another important component of solidarity is mobilisation of the local community and employees of other sectors. To do this, you have to use communication and publicity measures to make your problem known and gain support. Use of social media may also prove to be useful to achieve penetration of your message to big numbers of persons.
For example, in the case of VIOME, a bankrupt chemical industry in Thessaloniki, Greece, the company-based trade union took over the operation of the factory. A huge solidarity movement has been built and products of the company are promoted and sold through movements (not only the labour movement but also ecologists, movements for combatting poverty, cooperatives etc.) all through Greece and abroad.
Written minutes, written documentation
Information should be given in written and not be limited to ppt presentations of general interest or publicity spots.
In many cases reported, employers deny to keep written minutes of information and consultation meetings. The reason for this is in order that they are easily able to reformulate or even deny what they have said in the meeting in the future.
You have to insist to keep minutes or record the meetings. In case this proves to be not feasible, a suggestion proposed by a trade unionist is to keep minutes with your own initiative and then ask the company to protocol the document.
Your employer in general disposes of more resources and technical expertise than you do. Companies participating in information and consultation (taking into consideration that, following the findings of the survey they are at least medium sized) have a technical department, a financial and an accounting department, a lawyer etc., which contribute to formulate the position of the company and to support the management before, during and after the I&C meetings.
Information includes pieces of information of technical nature (e.g. analysis of financial data and balance sheets, production data etc.), which you are not obliged as a trade unionist to master. You should pay attention to structure and organize well information, so you may have to recur to people who know how to do it best (experts).
In order to understand technical information, make the proper questions and prepare your position in view of participating in consultation, you need the assistance of an expert. The expert may not be the same all the times. In fact, it depends on the nature of the information to look for the expert having the most appropriate knowledge, experience and skills.
It is of great help to you to be supported by lawyers and experts.
Directive 2009/38 and most EWC Agreements preview at least one expert, assigned by employees’ representatives the cost of which is paid by the company. In case though, the agreement on information and consultation either at national or at European level has not any provisions for an expert then he/she has to be paid by the employees (trade union). In most cases experts are provided by trade unions or trade union federations.
Experts most likely are lawyers but it is very common that they have to be accountants or economists or engineers.
Before starting providing services as experts, they have to sign a statement that they are bound under the same confidentiality obligations as the employees’ representatives.
To know well the provisions of legislation concerning information and consultation
As trade unionists or employees’ representatives, you have to be properly trained and informed about the subject of the consultation and to study well the legislation, in order to know your rights and your obligations. You should be informed about all labour laws and regulations (this would enhance your skills and your ability to undertake consultation and even negotiation). You should also be trained on negotiations techniques.
You have also to know well the provisions of Directives concerning information and consultation and the respective national laws applied. For example, if the management of your company intends to make mass redundancies you have to know the provisions of Directive 98/59 and of the law transposing it into your national legislation.
Of course, nobody expects from you to have the knowledge even lawyers, if not specialised on the topic, do not have. You must know the basic provisions. Participating in training sessions organized by trade unions, or in meetings for exchange of experience with other employees’ representatives or asking the Inspectorate of Labour or, of course, having the support of a lawyer may prove beneficial and save you a lot of trouble.
To study legislation
The same applies to other pieces of legislation (e.g. about bankruptcy law). Spanish trade unionists have especially mentioned that employee representatives have to know the provisions and concrete proceedings of the special dismissal procedure called ERE (Expediente de Regulacion de Empleo). Trade unionists have to have the basic knowledge on this kind of legislation as well as on fiscal and marketing issues (as proposed by Italian trade unionists) in order to be in a position to effectively participate in information and consultation.
This kind of knowledge may also be gained through training, exchange of expertise and support by experts. Many agreements on information and consultation (mainly for EWCs as there is such a provision in Directive 2009/38) preview training sessions paid by the company for employee representatives participating in information and consultation.
To use all legal means available
You should always have in mind that if you have your own positions and propositions for solution to put on the table, then it will be easier to bring the management to discuss on the basis of your positions. It will be even better, if you are ready to present not just a solution but several alternative solutions as well, because this widens the range of options and may provide answers to objections from the part of the management. Even in the case it seems there is an impasse and the company will be closed, employees may find another solution, such as to form a cooperative taking over the activity, as Italian trade unionists suggest.