Slides used to introduce the discussions of our results (Carnaxide meeting 31st March 2016)

1. The effective management of EWCs
Transnationality
Lessons from a seminar
Frédéric Turlan
31st March 20161

2. 2
What is at stake in a legal perspective?
 What says the directive?
 Article 1 § 3: The competence of the European Works
Council and the scope of the information and
consultation procedure for employees governed by this
Directive shall be limited to transnational issues.
31st March 2016 The effective management of EWCs

3. 3
What is at stake in a legal perspective?
 What says the directive?
 Article 1 § 4: “Matters shall be considered to be
transnational where they concern the Community-
scale undertaking or Community-scale group of
undertakings as a whole, or at least two
undertakings or establishments of the undertaking or
group situated in two different Member States”.
31st March 2016 The effective management of EWCs

4. 4
What is at stake in a legal perspective?
 What says the directive?
Whereas 16 : ‘”the transnational character of a matter
should be determined by taking account of both the scope
of its potential effects, and the level of management
and representation that it involves. For this purpose,
matters which concern the entire undertaking or group
or at least two Member States are considered to be
transnational. These include matters which, regardless
of the number of Member States involved, are of
importance for the European workforce in terms of the
scope of their potential effects or which involve transfers
of activities between Member States.
31st March 2016 The effective management of EWCs

5. 5
What is at stake in a legal perspective?
 What says the directive?
What does concern means:
- Involves employees in 2 different MS?
- Involves activities in 2 different MS?
- Involves management in 2 different MS?
- Produces effects in 2 different MS?
- Which effects? Employment, organisational, other?
- Does it cover decisions concerning or impacting a
single MS but decided at central level?
31st March 2016 The effective management of EWCs

6. What is at stake in a legal perspective?
Decision affect …
site and
employeees in >
1 Member state 2 Member
states
Whole group
1 site If importance for
EU Workforce
If importance for
EU Workforce
2 sites
Several sites
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7. 7
What is at stake ? Practical problems
Risks / problems on both sides of the industry :
Companies may consider strictly the definition of
transnationality
At the same time, employee reps may consider that
every event is transnational
31st March 2016 The effective management of EWCs

8. 8
Conflicts about the management
of transnationality?
In case of conflicts, both employers and EWC reps may appeal to legal
tools which may vary from one member state to another.
When possible, the use of legal ways to solve conflicts is however
tricky for both sides
If the EWC agreement has no provision : the judge will take info
account the national implementation regulation and if there is no
provision, the text of the directive and will interpret it with the whereas
=> Uncertainly
If the EWC agreement has a provision : the judge will take into
account the provision : incite to negotiate such provision but…
=> Uncertainly too
31st March 2016 The effective management of EWCs

9. 9
Managing transnationlity :
lessons of case study
Transdev
The EWC criticised the management for failing to consult it following
Transdev's decision to ask one of its subsidiaries, the shipping
company SNCM, to repay a loan, thus causing SNCM to be put into
receivership.
The court underscores that "matters which require the prior
consultation of the European works council must (...) incorporate an
international or European dimension, by their purpose or by their
effect. In the absence of any international element, the consultation
of the EWC is not mandatory".
31st March 2016 The effective management of EWCs

10. Managing transnationlity :
lessons of case study
Since the court did not find any international element in this case, it
examined whether Transdev's decision had a significant impact on the
European workforce. In the eyes of the court, this was not the case.
Therefore, the EWC did not need to be consulted.
BUT as mentioned by Rachid Brihi, lawyer, Brihi & Koskas associates who
defended the European works council of Transdev :
The court maintains that the decision taken by the management of
Transdev, which led to its subsidiary SNCM being placed in receivership,
could have "significant economic and social consequences eventually for the
entire group and therefore for the European employees". Therefore, the
possible winding-up or sale of this "small" French subsidiary, which
represents only 2.5% of the group's workforce, could be a subject for
consultation with the European works council.
31st March 2016 The effective management of EWCs10

11. Managing transnationlity :
lessons of case study
Michelin
1999-2005 : examples of national debates / negotiations /
agreements.
Since 2005 : new practices aiming at improving co-operation
and exchanges between the EWC Members and HR.
2015 : new dynamic and role of the EWC.
=> Recent announcement:
November 2015: Michelin reorganises its activities in the
United Kingdom, Italy, and Germany
January: Michelin adapts the organization of its activities in
Clermont-Ferrand
31st March 2016 The effective management of EWCs11

12. Going further ?
Level 1 : including a provision within the agreement that has
to highlight what is transnational and what is not transnational
+ add a reference to the importance of the issue.
Level 2 : seminar with the steering committee to discuss the
“grey zone” => how to reach an agreement on each issue.
Some best practices: building trust to inform the secretary /
steering committee at an early stage / setting up a permanent
information-consultation process
Level 3 : provision that gives to the steering committee a role
of filter to decide whether an issue is matter of information or
consultation.
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13. ALL COMMENTS WELCOME !!!!
THANKS A LOT !!!!!!
13 31st March 2016 The effective management of EWCs