Information and Consultation of Employees
Information and Consultation of Employees : General framework. Directive 2002/14/EC of 11 March 2002 established a general framework for informing and consulting employees in the European Community, pursuant to the Commission Communication of 14 November 1995, in order to fill the gaps and counter the shortcomings in the provisions in force at national and Community levels. The Directive defines the terms "undertakings", "employer", "employees' representatives", "information" and "consultation". Particular provisions applicable to undertakings that pursue directly and essentially political, professional organization, religious, charitable, educational, scientific or artistic aims, as well as aims involving information and the expression of opinions, may be adopted on condition that, at the date of adoption of the Directive, such particular provisions already exist in national legislation. European Union (EU) Member States may authorize the social partners to define freely, through agreement, the procedures for implementing the employee information and consultation requirements referred to in the Directive. Employee information and consultation covers three areas in relation to undertakings: (1) economic, financial and strategic developments; (2) structure and foreseeable development of employment and related measures; (3) decisions likely to lead to substantial changes in work organization or contractual relations. EU Member States must establish the procedures for applying the principles set out in the Directive, with a view to ensuring the effective application of employee information and consultation. They also have the option of limiting the information and consultation obligations of undertakings with fewer than 50 or 20 employees according to the Member State's discretion. Confidentiality arrangements are included: experts and employees' representatives must not disclose any information that has expressly been provided to them in confidence, even after expiry of their term of office; within conditions laid down by national legislation, the employer may be exempted from his/her information and consultation obligation where complying with it would seriously harm the functioning of the undertaking or would be prejudicial to it. When carrying out their functions, employees' representatives must enjoy adequate protection and guarantees to enable them to perform their duties. The Directive makes the EU Member States responsible for ensuring compliance with its provisions (through adequate administrative or judicial procedures at national level). The following are regarded as serious breaches of the obligations laid down in the Directive: (1) total absence of information and/or consultation of the employees' representatives prior to a decision being taken or the public announcement of such decision; (2) withholding of important information or provision of inaccurate information rendering ineffective the exercise of the right to information and consultation. In the event of a serious breach with direct and immediate consequences in terms of substantial change or termination of employment contracts or relationships, the decisions taken have no legal effect. This situation continues until such time as the employer has fulfilled the information and consultation obligations. If this is no longer possible, the employer must establish adequate redress in accordance with the arrangements and procedures in place in the Member States. The provisions of the Directive do not prejudice Directive 94/45/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees. Transfer of undertaking. According to EU legislation, in case of the transfer of an undertaking, business or part of business, the transferor and the transferee are required to inform the representatives of their respective workers affected by the transfer on the following: the reasons for the transfer; the legal, economic and social implications for the workers of the transfer; and measures envisaged in relation to the workers. The transferor must give such information to the representatives of his/her workers in good time before the transfer is carried out. The transferee must give such information to the representatives of his/her workers in good time, and in any event before the workers are directly affected by the transfer as regards their conditions of work and employment. If the transferor or the transferee envisages measures in relation to his/her workers, he/she shall consult the representatives of the workers in good time on such measures with a view to seeking agreement. EU Member States whose laws, regulations or administrative provisions provide that representatives of the workers may have recourse to an arbitration board to obtain a decision on the measures to be taken in relation to workers may limit the obligations mentioned above to cases where the transfer gives rise to a change in business likely to entail serious disadvantages for a considerable number of workers. The information and consultations shall cover at least the measures envisaged in relation to the workers. The information must be provided and consultations must take place in good time before the change in the business is effected. There is also a possibility that where there are no representatives of the workers in an undertaking or business, the workers concerned must be informed in advance when a transfer is about to take place. See: Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. See: Transferor's rights; Transfer of undertaking (safeguarding of employees' rights). Information and consultation in Community-scale undertakings See: European Works Council
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