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What to expect from the Information and Consultation?
This has been one of the issues that has generated, not only the national but also at European level, some polemics and called the attention for this new reality.
The information and consultation have been, through the years, subject of several studies and legal consecration.
The present work is based on the Directive 2002/14/CE that establishes a general framework for the information and consultation of the employees within the European Union.
The scope and the potentialities of the Directive are not, in our understanding, completely explored. This Directive has been a little bit undervalued or neglected which, in our understanding constitutes an error, therefore we defend that this instrument should be target of a reinforced effort, of work and accompaniment.
The argument pointed out for this lack of attention is based on the fact that some legislations already foresee the existence of Information and Consultation (see the attached comparative charter of the information and consultation powers within several European countries). From that charter it is evident that such affirmation also sins for being general and for analyzing the question in very superficial way, this if we consider the concepts that this Directive introduce regarding these two circumstances, whose content does not exist, in several legislations, with the precision and the clarity consecrated by the Directive 2002/14.
That is the reason for the understanding that this Directive brings nothing of new to the panorama of the social dialogue, the national level and in some countries. Argument that we refute, immediately.
Due to the fact of the foreseen situations, in the several national legislations, are extremely unequal (please note: there are countries where, in fact, information and consultation are foreseen in these terms), the European reality could be drawn in the following model:
As it is evidenced from what has been already presented the mere statement that this Directive represents nothing new is quite sufficiently general. We have just can understand and accept such statement from a national and casuist point of view, sporadic cases, therefore they are not so common as if it wants to make believe.
We come across, ourselves, with the fact of this work has the merit of being the first one, the pioneer one, by leaning over specifically on the Directive. Moreover, and taking in attention the results achieved, we conclude that the social actors do not dominate, in its totality, the potential of the present Directive.
The capacity of the comprised situations, the speed of intervention mechanisms, when foreseen, and the development place, in our opinion, this Directive in an unique position.
Often confused, others neglected towards the Directive of the European Works Councils, also named EWCs, it becomes indispensable to make, in advance, the clear distinction between both the instruments, not to repeat what already has been expressed regarding the scope of application of each one.
We will just point out that in what concerns the potential of both the instruments, we understand that, from a theoretical point of view, it will be the Directive on Information and Consultation the most generic and clearly more comprehensive one, comparing it with the remain Directives on information and consultation, these had been presented and created to regulate very specific situations, i.e., while the EWCs' Directive presents as specificity the transnationality of the issues and when such not to happen it will be applied the Directive on Information and Consultation; in what concerns the Directive on the Employees' Involvement it is applied to very concrete situations, in the event of an European Company is instituted - SE.
What causes us some perplexity is the fact of those who sustain the EWC's Directive in detriment of the Directive on Information and Consultation are the same ones, in many cases, that already made use of these mechanisms in their national legislations. For such fact, we do not understand such agreement, because from of a theoretical point of view, already many of them consecrated information and consultation for certain issues such as transference, mergers, etc. If for these cases the EWCs' Directive brought nothing new how can it be considered in detriment of the Directive 2002/14. Such leads us to believe that something is wrong in the internal legislations and/or practices.
We do not want, by that, to say that the EWCs' Directive is not important or that it is deprived of value, but yes, that it is a specificity and that it is provided with mechanisms that strengthen the cases in analysis, allowing a higher involvement.
It exists a point that, without a doubt, will be able to harm the Directive on Information and Consultation and that consists in the non definition, or constitution, of mechanisms better defined in a way to develop or to follow up the information and consultation, i.e., the Directive only outlines a procedure.
This could seem linear in a first approach, but it raises, however, some doubts when analyzed, with bigger precision, the viability of such mechanism.
For the functioning of the present Directive we put some we place some reserves on if such mechanism will be beneficial, though it could be possible from a theoretical point of view.
We are facing a Directive that requires a greater proximity between the involved parts. On the other hand, during all the process a big speed of action is longed, which could make difficult the nimbleness of the process, as well as in the case of formalisation of another mechanism, bringing new ones, and possibly, a larger number of incumbencies.
In this in case we are pleased to, despite all the criticize presented regarding the Portuguese transposition of the Directive, to congratulate it by the fact of consecrating the resource to a a direct and easier structural of employees' representation element, this to allow its functioning. The figure that we are referring is the shop steward.
By stipulating the shop steward as the element with active legitimacy, allows this Directive to be more easily applicable, enlarging its field of application (small, medium and large companies). The resource to any another one of the possible employees' representation structures such as the Trade Union leader at the company, the trade union or multi trade union commission, or even the Workers' Council would, having in mind their way of functioning and requirements, make more difficult the process (while the trade union commission assumes the presence of more than a shop steward; the multi trade union commission assumes the association of representatives from different union structures; the trade union leader has to belong to the board of the trade union structure or appealing to the workers' council when there is not, for historical reasons, application in great number, in Portugal). This could lead to a weakness of the position, or relevance, of this Directive.
This Directive, wanted or not, matters an uniformisation of the matters on what there is a large discrepancy at legislative level within the European Union's countries, and brings, in fact and in our opinion, something of new to the majority of the legislations of the member states, with the necessary differences regarding its impact.
No doubt of the biggest importance, and that have, since the very beginning, a very excellent effect in all the countries, we detach the fact that this Directive consecrate information and consultation, in a more or less equal way and cover three substances or three essential circumstances which relevance assumes special note facing the current scenery.
Unlikely to what can be imagined or associated, namely when it is analyzed the impact of the Directive, immediately we would be attempted to suggest that this Directive would be, due to its object, target of a larger impact, a larger incidence in the countries of the south of Europe, but if it is carried through a more detailed analysis it could be noticed that such situation is extended to other regions of Europe.
One very special note for the countries candidates and the countries that in a very short term will integrate the European Union where, without a doubt, the information and consultation, in many of them, finds itself in an embryonic phase and for which the consecration of these rights has a huge importance. With the aggravating association that, in certain legislations, happens when there is an interconnection of this procedure of information and consultation with the instruments of collective bargaining that not always exist or the structures of representation of the different social partners present some deficiencies.
However, this reality is still strengthened by the content of the Directive, namely by the concepts of "Information" and "Consultation", general definitions, very developed, specially if comparing them with the ones included in the Directive of the European Works Councils. The definitions comprehended in the Directive 2002/14 are clearly improved in relation to some national legislations, being, also, in some of them, the only ones. Such situation leads us to another question connected with the scope of this work and that concerns the problem of deficient transpositions of communitarian instruments, as happens, in our opinion, with the Portuguese transposition that could, no doubt, cause serious damages to the expectations of the Directive. This situation is clearly an issue of communitarian litigation strongly connected to the indirect effect of the Directives, and for that reason it should be analyzed in that field.
This Directive 2002/14 still adds another set of circumstances, that represent, an added value. This scenery assumes a greater meaning before the fact of, in certain realities, already exists information and consultation, and for certain matters, to what the Directive 2002/14 introduces information and consultation at a prior moment to these same circumstances. It is the case of the information and consultation within a collective redundancy process, where due to this provision, prior to this process, it is developed an autonomous process of information and consultation. It exists, thus, and in certain cases a double intervention at information and consultation level. In this example both the procedures do not collide nor annul each other.
Such situation has been, of certain way, criticized for the uselessness of the coexistence of the Information and Consultation. This analysis is too simplistic and, except a better opinion, incorrect.
Effectively there are systems where a duplicity of intervention of the same actors with active legitimacy exists, though not in the totality of the cases. Even so we would like to refer that the moment and the analysis are different. On one side, we have information and consultation that appear in a previous way that is applied within the scope of the Directive 2002/14, i.e., before the decision is taken, trying to determinate the ways to prevent or to follow it; in a second moment appear the information and consultation inserted in a process whose objective differs from the first one: in this case it is argued the dimension and effect of the measures to apply and the application of other measures to reduce their effect. We have, therefore, two well distinct moments.
Another issue is connected with the fact that this situation goes through some changes from country for country, originating distinct situations: or the entities with the right of information and consultation, in the scope of the Directive 2002/14, are distinct from the entities with access to the same rights in accordance with the national legislation and practice, or there is a coincidence of those same entities. In this in case we are facing a widening of the active legitimacy.
Once this procedure establishes, in our understanding, a mitigated distribution of the competencies in what concerns the development of the information and consultation, we are facing the fact that the employees' representative organisations, that vary from state to state, are able to carry through an accompaniment and continuity process in what concerns the evolution of the company.
- PROBLEMS OF APPLICATION -
The problems resulting from the particle application are, without a doubt, determinative for the future of this Directive and perhaps this is the biggest difficulty that this Directive has to come across and in this direction converge the opinions of the intervenors in this project.
The first difficulty reside in the fact of the existing differences of Culture and Tradition in each country, whose differences had lead to the inexistence of these mechanisms.
It exists, still, the difficulty of the holders of the legal capacity in this process, to confirm what it is presented to them, or even to be satisfied with the fact of having just a single meeting and of which does not exist neither the minutes nor any documentation.
Before these difficulties and in what concerns to the processes of information and consultation, the intervenors will have to be supported by the trade union structures, or structures of support, strong ones, capable to support the whole process including the analysis of the processes and its intervention.
In view of the displayed we have to refer that, and having in mind the problem that appeared, and that is not from the exclusive application of the Directive 2002/14, the existence, in certain countries of the European Union, of very low rates of syndicalization, with direct effect in the lack of trade union structures or trade unions present at the companies or, and still the non existence of such structures, entities with legal capacity to intervene in the process do not exist or even the lack of structures of support to assist such organisms, in the development of their activities.
The procedural part is, without a doubt, essential for the percussion of the objectives of the Directive 2002/14 and such should be more detailed.
The issue of the lack of information and consultation should be associated to an autonomous procedure allowing a quick analysis on the validity of the acts. One thing is sure, such procedure has to have celerity characteristics, therefore this is a necessity for both the parts facing the nature of the matters in stake.
Not intending to enter in a legal analysis, excessively detailed and by the experience that exists in this subject, we understand that the Directives on information and consultation will have to be endowed with quick information and consultation mechanisms. The adequate mechanism to such cases, in the system Roman-German, is the preventive proceeding, non specified one, in case of not existing specific proceeding for such cases.
Such mechanism is accepted, with some reluctance, on the part of many magistrates and also important is the fact of the preventive proceeding be connected a main legal action, with some difficulty in determining which should be the main legal action and the join between the substantive and the adjective part.
Inherent to all this problematic is the issue of the sanctions to apply in case of non compliance of the information mechanisms and consultation. Will the punishment measure pass by the application of a fine Vs pecuniary sanction or for the non validation of the acts carried through and where such lack is verified.
It is our understanding that the application of sanctions, with a pecuniary character, must only be focussed as an accessory aspect. The essential question for a full fulfillment of the information and consultation will have to pass, essentially, for the non validation of the acts.
It is our understanding that the healding of the actions can only be admitted in the event of lack of information under the possibility of non viability of the process, and not in the case of lack of consultation under the possibility of destroying the useful effect of the mechanisms instituted.
Additionally and case by case it could be applied a fine.
Following we present the bases for our understanding:
The execution of acts without, and depending on the concrete cases, information and consultation shall not be considered as valid ones. Only like this it can be protected the execution, the spirit and the content of the Directive 2002/14. Otherwise, if the measures have only pecuniary expression, acts of major relevance can be developed without taking place information and consultation.
It is our understanding that for the acts to which the Directive foresees information and consultation has been found a new criterion for their development.
Against this understanding several opinions have emerged in the sense that such would be applied to generic situations, while that remaining foreseen situations would be applied to special cases, leading us to the understanding that we would be facing a case where special law excludes a general law.
Notes to hold back:
For such reason, the statement that we are facing a case where special law excludes general law we would have to have two situations where one of them consists in a specification of the general one; such situation does not happen, effectively, in this in case that, therefore the Directive on information and consultation happens on a previous decision to the beginning of the act.
To such situation has to be added the fact of, and in concrete cases, being our opinion that such understanding must be, immediately, excluded by the fact that laws come from the same source and as such the situations cannot be ordered hierarchically or even particularized: note the concrete case of the collective redundancy that foresees an information and consultation process like the information and consultation foreseen in this disposition, transposed into the national legislation creating mechanisms that cannot be hierarchied.
This leads us to another situation, even more complex, and that concerns giving false information during the information process and the eventual consequences that such situation might have to the one who gave them.
It is evident that such situation passes, inevitably, for a proof situation that, we do have to admit, not always is easy in what concerns the fact of a company, in certain moment, presenting a certain situation and afterwards it presents a different conjuncture. We always think to be necessary the balance whenever it is evident the responsibility of who carried through such acts and eventually not excluding an analysis on the validity of them.
The question of the non existence, in a formal way, of a follow up mechanism or structure for this process of information and consultation, as happened in the EWCs. Such could be advantageous, but in fact it already proved that the constant creation of restrict groups created difficulties in replying, in due time, if such entities are not created.
It was intention of this project to develop or to outline a set of specific guidelines on this matter that were accepted by all the involved parts in this initiative: employers and employees representative organisations. It has been noticed that, however, such possibility, on the contrary to what has been obtained on other matters or initiatives developed by SIMA, could not be reached.
Even so, and facing the development of the project, we think that there are some conclusions or points emerging from the work carried through, that still did not receive, in an express way, the acceptance of the partners.
There is not at any organization or structure level, that has participated in this project, a set of orienting lines on this matter. Even EMF - European Metalworkers' Federation that has and has developed several guidelines on several issues, does not possess on this question any document. At this moment such is not glimpsed as a having in mind what has been already presented.
By all, unanimously, was considered that this Directive involves a need for training all levels. It urges to strengthen this training, being necessary a base training, as well of accompaniment / development.
Unlike what might be expected in a first moment, there is not an immediate or express opposition, at least on the part of one of the elements of the labour relation, to what is consecrated in this Directive. The Directive seems as something that is necessary to work towards a joint development.
In addition, it is necessary a whole work, together, of making aware to the information and consultations. Something has already been initiated with this work, which resulted in a success.
This despite de fact of not have been reached an agreement in what concerns the ways to overcome the difficulties originated with the application of the Directive, this regarding the environment where weak units of employees' representation exist or if there is not any representative structure.
However, the unanimity regarding the expectation that this Directive could bring something new has been stressed out. The challenge, the investment in its real capabilities and in its functioning has been also stressed out.
The initiative was the starting point for a future work that is expected to be beneficial and arduous in the implementation of the information and consultation, essential rights of the workers.
By all the intervenors (direct or not) has been underlined the need to develop more work as the one carried through presently.
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