Employee representation and information, consultation and co-determination rights in Europe
This article considers employee representative organisations in the EU, including an analysis of trade unions, works councils, and the relative importance of these organisations in the 27 member states; participation rights in the EU member states, summarising information, consultation and co-determination rights; and employee representation and co-determination rights in selected states (including Belgium, France, Germany, Hungary, Italy, The Netherlands, Poland, Switzerland and the United Kingdom).
This article is part of the Global Guide to Employment and Employee Benefits law. For a full list of contents visit www.practicallaw.com/employment-guide.
In the EU, collective labour law covers:
Collective bargaining law.
Industrial action law.
The law concerning the right to form employee representative bodies.
At EU level, collective labour law is undeveloped compared to individual employment law. In addition to the historical differences between the member states, there is a lack of legal basis on which collective labour law can be developed further at EU level (for example, the law regarding collective bargaining agreements (CBAs), unions and strikes). However, there are certain common factors within the laws of most of the member states, particularly in comparison to the US. This chapter considers the following:
Employee representative organisations in the EU, including a summary of:
the relative importance of these organisations in the 27 member states.
Participation rights in the EU member states, summarising information, consultation and co-determination rights.
Employee representation and co-determination rights in selected states (Austria, Belgium, the Czech Republic, France, Germany, Hungary, Italy, Poland, Portugal, Spain, Switzerland, The Netherlands and Turkey).
Employee representative organisations
In all EU member states, there are structures in place for employee representation at establishment and company level.
The traditional form of employee representation, arising from the 19th century, is the trade union. However, trade unions vary greatly between member states.
In most member states, trade unions are organised on an industry-wide basis. There is generally no requirement to obtain specific recognition as only one trade union is usually active per industry sector. Trade unions generally conclude CBAs on the main working conditions with industry-wide employers' associations.
EU employee trade union membership figures have declined and EU-wide trade union membership is currently under 24%. However, in continental Europe 62% on average of the employed population is covered by CBAs. This is because:
CBAs cover employees if the employer:
belongs to an association that has concluded CBAs; or
operates within a particular industry.
This applies, for example, in Belgium, France, Spain, Hungary, Poland and Austria (see below, Case studies in selected member states).
In many member states, for example in Belgium, Germany, The Netherlands or France, the government can declare a CBA to be generally binding on an industry sector.
In some member states (for example, the UK and Ireland) CBAs generally apply at an individual company level and often only regulate salaries and working hours. In these member states, trade union membership is particularly low.
In all EU countries, there is employee representation at company or establishment level. In certain countries, the trade union provides this representation, in others it is provided by the works council.
The distinctions between trade unions and works councils are the following:
Trade unions are voluntary affiliations that exclusively represent the interests of their members. Works councils represent all employees in the company and are constituted by statute.
Trade unions conclude CBAs which deal with remuneration and the main working conditions. Works councils generally have participation rights regarding operational issues at a company level.
In practice, this dividing line is frequently difficult to draw, with trade unions often exerting a strong influence over works councils.
European works councils can be formed in companies with a transnational, European presence. The German and the French models of works councils formed the inspiration for European legislation.
Relative importance and responsibilities of trade unions and works councils
The relative importance and responsibilities of trade unions and works councils varies between member states. Generally, the member states can be divided into four categories for this purpose:
Category one (Croatia, Germany, Luxembourg, Switzerland and Austria). Trade unions and works councils have separate duties and are not linked at an organisational level. Switzerland differs from the other countries in category one as there are no mandatory works councils or employee representative bodies.
Category two (Denmark, Finland, Cyprus, Italy, Czech Republic, Latvia, Lithuania, Malta, Romania, Sweden and Turkey). Employee representation in the company takes place primarily through trade unions.
Category three (Belgium, Bulgaria, Estonia, France, The Netherlands, Greece, Poland, Portugal, Slovakia, Slovenia, Hungary and Spain). Both trade unions and works councils have representation rights under relevant laws or binding CBAs. In some of these countries (for example, Greece), works councils exist only in theory. In Spain, the works councils conduct collective bargaining negotiations and are closely linked to the trade unions. In Belgium and France, the trade union predominates, negotiating and signing collective bargaining agreements. In The Netherlands, trade unions usually conduct collective bargaining negotiations, and works councils can have an important role in decisions which influence working conditions or which can lead to redundancies.
Category four (UK, Ireland). Trade unions are the only national employee representative bodies. However, it is possible to establish information and consultation arrangements with employee representatives at company level in those jurisdictions. These bodies are commonly referred to as staff councils or staff forums. The term works council is not used in the UK, except in the context of European works councils.
Trade unions and works councils are considered in greater detail in Austria, Belgium, France, Germany, Hungary, Italy, Poland, Portugal, Spain, Switzerland, The Netherlands and Turkey (see below, Case studies in selected member states). As Turkish law does not recognise the works council, only trade unions are considered in the Turkey case study.
Participation rights in the EU member states
Employee participation rights are structured differently in the individual member states. EU law provides a basic core of rights that apply in all countries, even in member states that do not have works councils or analogous structures, for example, the UK and Ireland (see box, EU legal minimums).
However, the member states (except for the UK and Ireland) also have their own, more extensive rights. Generally, participation rights can be divided into the following categories:
Information. This concerns the employer's transmitting data to employee representatives. In many member states, works councils or similar employee representative institutions have rights to information, for example:
updates on significant financial and business events (for example, the yearly balance sheet, mergers and takeovers);
regular information sessions on the progress of the company.
Consultation. These are rights to be informed of planned measures in advance and to have an opportunity to express an opinion before their implementation. The requirements are structured differently depending on the member state. There are often consultation rights relating to the following:
changes to the company's legal status;
the removal, expansion or downsizing of areas of the company or business;
the introduction of new technologies.
Co-determination. Co-determination rights apply where the consent of the works council is a mandatory requirement for undertaking particular measures. In Germany, enforceable co-determination has developed to a very wide degree. However, in most member states (including Spain and Italy), it does not exist.
It should be noted that, in member states where enforceable co-determination rights do not exist, there are other ways of exerting influence (for example strikes, collective bargaining policy or considerably lengthy negotiations with employers, an option which is favoured in Belgium and France). In addition, information and consultation rights can be structured in a very formal way so that the process leading up to the employer's implementing a measure can take as long as a co-determination right.
Case studies in selected member states
To further explore the issues raised in this chapter, employee representation organisations and participation rights are considered in the following jurisdictions:
For an overview of works councils and trade unions in these member states, see box, Works councils and trade unions in selected member states.
Employees in Austria can be represented in the following ways:
Trade unions on a sector level (the key body is the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund) (ÖGB)).
Works councils on a company level (Betriebsrat).
In general, the Austrian and German employee representation models are closely related.
Trade union. About 33.6% of Austrian employees belong to trade unions. Given the unique legislation on the application of collective bargaining agreements (CBAs), about 98% of the Austrian labour market is governed by CBAs. Collective action is rare, as the tradition of social partnership is strong. This tradition includes trade unions, both in the legislative process and in the conclusion of CBAs. Statutory provisions determine which issues are governed by CBAs, operational agreements or employment contracts.
Works council. At company level, representation by at least one works council member is mandatory once five or more employees are on the payroll. The number of works council representatives is proportional to the size of the workforce, hence increases with the number of employees. Certain employment issues are then subject to the conclusion of, or may be regulated only by, an operating agreement between the employer and the works council. The works council is granted influence ranging from notification requirements to veto power.
The works council can limit an employer's actions by exercising its participation rights. These participation rights fall into the following four categories (which are listed in order of the strength of each right, with the weakest first):
Information. This includes both notification requirements (for example, in instances of intended significant operational changes) and rights of access to information relating to economic, social, health-related or cultural staff interests (for example, the level of employee data acquisition).
Supervision. This includes the right to supervise the employer's compliance with applicable CBAs or statutory remuneration, social insurance and company pension scheme requirements.
Consultation. This participation right is asserted at least four times a year on general issues, and prior to every intended dismissal or demotion.
Co-determination. With regard to the conclusion of operational agreements depending on the relevant subject, some measures may be introduced only with the consent of the works council. Additionally, one-third of all supervisory board members must be staff representatives.
Employees in Belgium are represented by three types of bodies:
Works councils (Comité d' Enterprise/ Ondernemingsraad) (CE/OR).
Committee for prevention and protection at work (Comité pour la prévention et protection au travail/Comité voor preventie en bescherming op het werk) (CPPT/CPBW).
Trade unions (Délégué syndical/Syndicale Delegatie) (DS/SD).
Employees are not represented at board level in companies.
Works council. The main body for employee representation at company level is the works council, which must be established in companies with more than 100 employees. However, for companies employing more than 50 employees, a committee for prevention and protection at work must also be established. Both bodies are jointly made up of employee and employer representatives. Employee representatives are elected every four years by all the employees.
The council is entitled to economic, financial and social information on a yearly, quarterly or occasional basis. It has the right to be consulted on matters which can have an impact on the company, the employment policy and the labour organisation or all three. Additionally, it has the right to decide on a small number of matters, for example the drafting and modification of work regulations and holiday planning.
Committee for prevention and protection at work. The committee is entitled to be informed and consulted on all issues related to welfare, health and safety at work. For certain issues, the committee also has the right to give a decision. For example, the committee must agree to the appointment or dismissal of the prevention advisor.
Trade unions. Belgium has three representative trade unions:
The Confederation of Christian Trade Unions (Algemeen Christelijk Vakverbond/ Confédération des Syndicats Chrétiens) (ACV/CSC).
The General Federation of Belgian Labour (Algemeen Belgisch Vakverbond/Fédération Générale du Travail de Belgique) (ABVV/FGTB).
The General Confederation of Liberal Trade Unions of Belgium (Algemene Centrale der Liberale Vakbonden van België/Centrale Générale des Syndicats Libéraux de Belgique) (ACLVB/CGSLB).
Only the above trade unions can submit candidates for these elections and, as a result, the works council and the committee for prevention and protection at work are strongly dominated by the trade unions. Due to the dominant role played by the trade unions, the works council and the committee for prevention and protection at work are more "union bodies" than "employee bodies", although they represent all (and not only unionised) employees.
Union delegations can be set up provided that sectoral collective bargaining agreements permit their establishment at company level. Unlike the works council and the committee for prevention and protection at work, a union delegation does not represent all employees.
The union delegation represents only the unionised employees and deals with the following issues:
Collective labour relations.
The negotiation of collective bargaining agreements.
The representation of unionised employees.
The implementation of social legislation.
Individual and collective labour disputes.
However, a union delegation can be entitled to take over the duties of a works council, for example in companies where no works council is established. In this case, the union delegation represents all employees, both unionised and non-unionised.
In the Czech Republic, the following employee representation bodies exist:
Trade union (odborová organizace).
Works council (rada zaměstnanců).
Representatives of employees for safety and protection of health at work (zástupci pro oblast bezpečnosti a ochrany zdraví při práci).
European works councils.
The trade unions are the most common form of employee representation and also the most powerful, as only trade unions have the right to conclude collective bargaining agreements. Works councils are also common in the Czech Republic.
Notwithstanding the above, the number of companies with no employee representation bodies in the Czech Republic is growing. As the Labour Code provides for an employee's right to information and consultation, the employer is then required to provide each individual employee with the information and consultation that would otherwise have been provided to the employee representatives.
Trade unions. In the Czech Republic, trade unions play a central role in employee representation, both at company level and at sectoral level. Establishing a trade union is based on the right to associate freely under the Czech Charter of Fundamental Rights and Freedoms.
Fundamentally, a trade union is a civil association that can be established by at least three employees. As a matter of law, the union represents both member and non-member employees. In the Czech Republic, there is a developed trade union structure with the lowest unit of the basic trade unions that operate directly within an individual employer's business. Such trade union units can then be voluntarily organised into trade union associations (odborové svazy). Some of the trade union associations are further grouped into trade union confederations (odborové konfederace).
The main entitlements of trade unions include the following:
Information. The right to be informed regarding the economic and financial situation of the company, prospects, basic questions of working conditions and the development of wages and salaries and other matters.
Consultation. The right to be consulted on important facts and decisions concerning:
the economic situation;
the amount of work and pace of work;
matters regarding the organisation of work;
measures affecting employment and termination by notice or immediate cancellation of the employment and other matters.
In practice, the employer is obliged to consult with the trade union on these matters before the decision is made. The opinion of the trade union is not binding on the employer, but a failure to consult with the trade unions can result in a fine by the relevant authorities.
Co-determination right. Co-determination rights have not developed to a large degree in the Czech Republic. There are only a few statutory examples where the union's consent is compulsory: for example, issuing a work order or determining the written schedule of holidays. Moreover, trade union members enjoy special protection during their term of office and for one year after the end of their term. Without the trade union's consent, the company cannot terminate their employment contract, unless it provides serious reasons. There is always a high likelihood of a court dispute in the event of such a termination.
Collective bargaining. Trade unions are entitled to negotiate collective bargaining agreements (see below, Collective bargaining agreements).
Works council. Works councils operate as a connecting link between the employees and the employer, and help to realise the right of employees to information and consultation. Work councils have a weak position compared to the competency of trade unions. For this reason, employees often lack the desire to set up a works council and, as a result, these are often formed by the employer to ensure employer-employee communication. Works councils have at least three, and at most 15, members. The members are elected in direct and equal elections that are announced by the employer on the basis of a written proposal signed by at least one-third of the employees in an employment relationship.
In comparison to trade unions, the works council does not have the right to bargain collectively or to conclude collective agreements. Since the purpose of forming a works council is to facilitate employer-employee communication, the works council is entitled to be informed and consulted in a number of matters (for example economic matters and the likely outcome and basic questions of working conditions) before a decision is made. However, the opinions of the works council on these matters are not binding and the employer then decides regardless of their opinions. Nevertheless, the range of matters that the employer has to consult on and inform the works council of is smaller than in the case of trade unions.
Collective bargaining agreements (CBAs). The trade unions play an important role in CBAs, as only trade unions are entitled to bargain collectively and to conclude these agreements (if authorised by union statutes). CBAs mainly regulate wages and other working conditions applicable to the employees that are not covered by law or are minimally regulated. Collective agreements are concluded at company level, while higher-level collective agreements can be concluded between a group of employers and the major trade unions.
Employee representatives for safety and protection of health at work. Health and safety representatives' roles in the field of safety and health protection at work are only to ensure the employees' right to information and consultation. The number of members results from the total number of employees and the labour risk. However, no more than one representative per ten employees can be designated.
Employee representation in France at company level can come in one or more of the following forms:
Trade union (Délégué syndical) (DS).
Employees' delegates (Délégués du personnel) (DP).
Works council (Comité d' Entreprise) (CE).
Health and safety committee (Comité d' Hygiène, de Sécurité, et des conditions de Travail) (CHSCT).
Collective bargaining agreements (CBAs).
Trade union. Each trade union can establish its own trade union section in the company or the establishment if it has at least two members. This section can represent its members' interests and promote the trade union. A recognised trade union can designate union representatives. An unrecognised trade union designates representatives of trade union sections (Représentant de Section Syndicale), who are not entitled to conclude CBAs.
Currently, the employees of many medium-sized and smaller companies are not organised in trade unions. In the private sector, trade union membership is at 8%. Therefore, works councils and employee delegates often represent the interests of the entire workforce.
Employees' delegates. Employee delegates are implemented in companies or establishments with 11 or more employees. In companies or establishments with fewer than 50 employees, most of the works council's and the health and safety committee's powers and duties are devolved to the employee delegates. Employee delegates also have their own powers and duties.
Works council. Unlike other member states, the employer or employer representative chairs the works council.
The works council has only limited enforceability and veto rights and an employer is only required to obtain works council consent in a few areas (for example, the appointment of a company doctor). In most cases, the works council must be informed and consulted about a large number of matters (for example, social issues; economic and HR matters; company strategy) before a final decision is made. However, a negative opinion from the works council on these matters is not binding on the employer. These participation rights of the works council go far beyond those provided by EU law.
The works council has an operating budget (0.2% of the gross salaries paid to employees) at its disposal.
Within the works council, the trade unions often have a dominant role. In particular, trade unions have sole authority to propose candidates for election in the works council in the first ballot.
Both the works council and employee delegates are elected by the employees.
The law on protection of employment (La loi relative à la sécurisation de l' emploi, Law No 2013-504, 14 June 2013) allows the employer and the works council to agree a timeframe for the works council to express its opinion and also introduces time limits in works council consultations.
Health and safety committee. The purpose of health and safety committees is to involve employees in preventing professional risk and improving working conditions. Their importance is growing as the health and safety committees must be informed and consulted on several issues, in particular, company restructuring plans.
The law on labour relations and employment (La loi relative au dialogue social et à l’emploi, 17 August 2015) was passed and has resulted in changes to the way in which labour relations are to be conducted. In particular, the law extends the possibilities to group employee representative bodies within a common body called the sole employee delegation (Délégation unique du personnel (DUP)).
Collective bargaining agreements (CBAs). Unlike other member states, CBAs are of great significance in France. The trade unions play an important role in these agreements, as in principle only recognised trade unions are entitled to bargain and sign CBAs.
CBAs bind employers if they belong to the trade union that concluded the CBA (unlike in Germany, Portugal and Greece). Additionally, the government can declare CBAs to be generally binding.
CBAs can take effect at three levels:
Employees in Germany can be represented in the following ways:
Works councils (Betriebsrat).
Trade unions (the key body is the Confederation of German Trade Unions (Deutscher Gewerkschaftsbund) (DGB).
Collective bargaining agreements (CBAs).
Works council. At company level, if there are more than five regular employees, they are mainly represented by the works council. The works council represents all employees in a particular company, except for executive employees. There are different forms of works councils in larger companies (central works council, group work council or European works council). Individual works council members are protected from dismissal by law. Unlike other EU member states, works council representation in Germany is not dominated by trade unions. Members of the works council do not have to be either:
Nominated for election by a trade union.
Members of a trade union.
However, in practice, especially in large companies working in old industries (such as the metal and chemical industries) works council members are often closely associated with their trade unions.
Works councils have more power in Germany than in any other member state. In large companies (more than 200 employees), some works council members are exempted from their regular work. In certain circumstances, temporary workers are also entitled to vote in works council elections. Additionally, works councils have far-reaching co-determination rights in:
Social matters (such as general conduct of employees, allocation of working hours, certain salary issues, issues regarding technology capable of monitoring employees, and health and safety regulations)
Personnel matters (such as recruitment, transfer of individual employees to a particular office or a particular role, vacation planning and personnel questionnaires)
Economic matters (such as substantive changes to the company, partial closure, relocation and amalgamation)
The works councils have a general right to be kept informed in detail and without delay to fulfil their duties under the Works Constitution Act. The employer is obligated to hear the works council before reaching a decision on certain matters and to take the works council's arguments into account. However, management is not bound to accept these arguments. The most important right is the right to be heard before every dismissal and informed of all the reasons for the dismissal. Works councils also have to be informed on staff planning, provisional or urgent personnel actions, changes in workflows, or accident prevention.
The works council has the right to be consulted on matters such as workplace design and equipment, personnel planning, and vocational training. The employer is not obligated to implement the works council's proposals.
If the works council vetoes a co-determination issue, either a court or a conciliation board must make a binding decision on the matter. This decision replaces the consensus of the parties (the works council and the employer). In every co-determination issue, the works council has an enforceable right.
However, the works council has a general right of initiative. It can ask the employer to take actions concerning social or personnel issues (such as actions to prevent racism, to support apprentices, to enhance environmental protection or to organise employee training). The employer is required to consider the works council's suggestion, but there is no obligation to take action.
Trade unions. Trade unions are not represented at company level. In Germany, about 20% of employees are members of trade unions, typically in old industry areas, and this proportion is falling. The most important task of unions is to negotiate collective bargaining agreements on salaries, hours, and other major terms and conditions of employment. The agreements negotiated by the union leaders are binding on their members and on the employer (if the employer is a member of the competent employers' association).
However, collective bargaining agreements must be implemented regardless of the employees' union membership or the employer's participation if they have been declared to be generally binding by the Federal Ministry of Labour and Social Affairs.
Collective bargaining agreements (CBAs). CBAs have less importance in Germany, although 70% of employment contracts refer to them. Many companies working in the new industry sector do not have CBAs. Collective bargaining negotiations are principally conducted at the sector level. CBAs regulate a wide area of issues, such as:
Remuneration for work.
Conditions for part-time employees.
Unlike France, Spain and Austria, in Germany the employer and employee must be specifically bound to CBAs for the employment relationship to fall under a CBA (principle of bilateral commitment). Employers can decide whether to join the CBA or not (freedom of collective bargaining (Tariffreiheit)).
A special feature exists in Germany if more than one CBA is applicable within the same establishment (not within the company): only the CBA of the trade union with the most members within that establishment comes into force. Members of minority trade unions only have a right to sign up for the contents of the majority trade union's CBA.
Employees in Hungary can be represented in the following ways:
Representative trade unions.
Health and safety committee.
Collective bargaining agreements (CBAs).
On 13 December 2011, the Hungarian Parliament passed a new, comprehensive code on employment conditions and labour relations, announced as Act I of 2012 on the Labour Code (New Labour Code), effective from 1 July 2012. The new rules differ significantly from earlier practice, introducing new rules concerning trade unions and works councils, among others. The Parliament passed another Act in June 2012 (Act LXXXVI of 2012 Temporary Regulations) on the issue of when the provisions of the New Labour Code will come into force and how the provisions will affect existing employment relationships and agreements (for example, CBAs).
The regulations for trade unions and works councils in the New Labour Code are discussed below.
Trade unions. Trade unions once played an important role, particularly in Hungary's socialist period. However, after the political change of the late 1980s and early 1990s they lost their practical importance. A trade union can be established as a social organisation (association) registered with the court with a minimum number of ten people. The social organisation then accepts the deed of foundation, elects the management and operational bodies and approves its statutes.
A trade union unit can also be established based on associations of sectoral trade union units, which form an umbrella organisation for the trade unions in the relevant sector.
The primary purpose of a trade union is to promote and protect employee interests.
Representative trade union. This is a special form of trade union authorised to exercise certain rights. Under the New Labour Code, a trade union attains this representative status if, based on its deed of foundation, it either operates a representative body of the trade union at the employer or if any of that employer's employees are entitled to represent the trade union.
The representative trade union is entitled to:
Inform employees about their rights and obligations.
Represent them regarding the employer and public authorities.
A representative trade union also benefits from the following rights:
The right to express its opinion in connection with employer measures or planned measures and to initiate a consultation.
The right to request information on issues that affect the economic and social interests of the employees in connection with their employment.
The right to negotiate and conclude CBAs (if the number of the trade union members reaches 10% of the employees, or where a CBA is concluded with an employer's representative body, the number of trade union members reaches 10% of the employees falling under the scope of the CBA).
The right to nominate candidates for election to the works council.
Under the New Labour Code, elected employees holding position in a trade union receive special protection during their appointment and for six months afterwards, if they have been in the relevant position for more than 12 months. For example, the trade union's prior consent is required for termination of the relevant employee's employment relationship, where that termination has been caused by the employer's giving the employee notice of the termination. The employer must also seek the trade union's prior consent if the employee is ordered to work temporarily in a different position, workplace or at a different employer's from the one described in the employee's employment agreement.
Works council. The works council (or the shop steward) is the primary body for exercising the employees' joint participation rights. The employees are entitled to elect a works council or a shop steward in compliance with a detailed statutory procedure, if the employee headcount is over 15.
The works council has the right to conclude a company agreement with the employer. In addition, the works council is entitled to request information or initiate negotiations with the employer in order to fulfil its obligations, which cannot be rejected by the employer. It has several information rights, including in the following areas:
The employer's economic situation.
Numbers and positions of hired workers and the headcount and the terms and conditions of hiring temporary agency workers.
The employer must request the works council's opinion at least 15 days prior to its decision on measures and policies affecting a large group of employees, particularly in connection with:
The reorganisation of the employer.
The introduction of new technology.
The handling and protection of employees' personal data.
The use of technical devices in order to monitor the employees.
Measures to prevent damage to health and increase safety at work.
The introduction of a new work organisation, or new performance requirements.
Training and support plans.
The rehabilitation of relevant employees.
Determination of the work order.
Harmonisation of family life and work.
Determination of the principles of remuneration.
Other measures described by employment-related regulations.
The president of the works council enjoys the same protection (for example, in the case of termination by the employer) as elected trade union officers (see above).
Health and safety committee. Additionally, a health and safety committee (or health and safety representative) elected by the employees represents the employees' rights and obligations concerning safe working conditions. However, in practice, in comparison with the trade union or works council, it is of lesser importance.
Collective bargaining agreements (CBAs). Trade unions have an exclusive right to bargain and sign CBAs, which can take place at two levels:
CBAs are generally concluded at company level, covering about 25% of all employees. CBAs at a sectoral level account for only about 6.1% of all employees and have only taken place in the following sectors:
The electricity industry.
The bakery industry (the relevant CBA was terminated, therefore, currently there is no sectoral level CBA).
The construction industry.
The hotel and tourism industries.
Smaller or medium-sized companies where no trade unions or works councils exist are less likely to implement sectoral CBAs.
The data set out above and in the table (see box, Works councils and trade unions in selected member states) are approximate, as there has yet to be a comprehensive study concerning the coverage of works councils, trade unions or CBAs.
Changing employment laws. As the regulations of the New Labour Code are more flexible, it was likely that CBAs and company agreements with a works council would play a larger role in the future, but there has been no such trend in recent years. The New Labour Code specifically stipulates that a CBA or company agreement (in special cases even a contract of employment) can deviate from certain regulations of the New Labour Code, even if such deviation is unfavourable for the employees (under the condition that the deviation complies with the law). For example, a CBA can deviate from the statutory provisions regarding working time (for example, allowing a longer working timeframe) and in return there are more financial benefits (for example, more allowances) provided to the employees.
Under the temporary regulations, the number of employees on 1 January 2012 had to be considered when deciding whether a trade union is entitled to conclude a CBA, as the number of trade union members must reach 10% of employees of the relevant employer. If a trade union was not entitled to conclude a CBA under the New Labour Code (because the 10% threshold was not reached), the CBA which that trade union concluded with the employer before 1 July 2012 became ineffective on 1 January 2013.
In addition to the New Labour Code, a special provision under Hungarian corporate law concerns employees' representation rights. Under this provision, if the annual headcount of full-time employees is over 200, employees are entitled to participate in the supervision of the employer company, as there is a requirement that one-third of the company's supervisory board must be made up of employees (Section 3:124 of Act V of 2013, Hungarian Civil Code).
Employees in Italy can be represented in the following ways:
Trade unions (Rappresentanza Sindacale Unitaria) (RSU).
Collective bargaining agreements (CBAs).
Trade unions. In Italy, trade unions play a central role in employee representation at company level. The most important employee representation body is the unitary trade union delegation (Rappresentanza Sindacale Unitaria) (RSU). The RSU represents all trade unions operating in the company and the company's entire workforce. The RSU can be established in all public bodies and in all active private organisations with more than 15 employees (part-time employees, in proportion to the working time, and time-limited employees must be taken into account as far as the company's size is concerned). The RSU performs the usual tasks of a works council. Its main task is negotiating with the employer at company level. It is authorised as a collective bargaining party to negotiate binding agreements concerning the company.
In addition, notification and consultation rights exist in:
Certain areas required by statute, for example:
health and safety at work;
the use of public funds for restructuring; and
mass dismissals and transfers of business.
More specific industry and company-wide agreements, covering issues such as:
the economic and financial situation of the company;
the introduction of new technologies; and
The CBAs can provide for specific information and consultation obligations towards trade unions. Such obligations include, for example, demergers and corporate mergers that can have an impact on employment, the use of overtime and the externalisation of ancillary or instrumental processing stages of the production cycle.
The RSU is formed by election between competing lists, with personal and secret votes and the possibility to indicate a single preference. The term of office is three years. At the end of the three-year term, the RSU lapses automatically and new elections are required. In case of resignation or a change in union membership, the component of the RSU is replaced by the first non-elected individual from the same list. All employees on fixed-term employment contracts are entitled to vote.
The number of RSU members varies according to the number of employees in each production unit (the production unit is each single autonomous office, factory or plant to which reference is made both in Law 300/70 and in the Inter Union Agreement for Unitary Trade Union Delegation signed on 20 December 1993); in particular it is equal to:
Three members in case of production units which employ up to 200 employees.
Three members for every 300 (or a fraction of 300) employees in production units which employ up to 300 employees.
Three members for every 500 (or fraction of 500) employees in production units which employ more than 300 employees.
The RSUs provide an important communication right for employees to post publications, texts and press releases concerning trade union and work matters in specific spaces, which the employer is obliged to provide.
RSU members also enjoy special protection against transfers (from one productive unit to another one) and against dismissal. This protection is aimed at ensuring the continuity of the exercise of trade union activities and relations with workers.
No genuine co-determination right exists in Italy. Participation rights do not grant as much power to the employees as in France and Germany. The trade union and the RSU are the only means of employee representation in Italy.
Collective bargaining agreements (CBAs). As in France, CBAs are very important. CBAs cover 80% of employees. They are mainly conducted at sector level. It is sufficient for the employer to be a member of the association concluding the CBA for employees to receive its benefits. Under the Italian Constitution (Art.39) registered trade unions can declare a CBA to be generally binding.
Employees in Poland are represented by three types of bodies:
Ad hoc representatives.
On certain occasions, when no permanent representative body operates at the given company, employees must nominate ad hoc representatives.
Trade unions. Although Poland has a strong trade union tradition, as demonstrated by the Solidarity social movement of the 1980s, only 11% of employees admit to being trade union members.
Unions are mainly established in former state-owned companies, in the energy, mining and retail sectors.
Currently, the three largest trade union organisations in Poland are:
The All-Poland Alliance of Trade Unions (Ogólnopolskie Porozumienie Związków Zawodowych) (OPZZ), headquartered in Warsaw.
The Independent and Self-Governing Trade Union "Solidarity" (Niezależny Samorządny Związek Zawodowy " Solidarność") (NSZZ), with its national committee in Gdańsk.
Trade Unions Forum (Forum Związków Zawodowych) (FZZ), headquartered in Warsaw.
A trade union organisation can be formed by ten or more members. If the founding members are employed in the same company, they can establish a company trade union organisation. If they are employed in two or more companies, they can establish an intra-company trade union. There is no statutory limit to the number of trade union organisations that can operate within one company.
The company cannot block or delay the formation of a trade union. The main entitlements of trade unions include:
Consultation and co-operation with regard to:
individual and group dismissals;
the introduction of internal bye-laws;
transfers of undertakings;
health and safety issues.
Initiating and conducting collective negotiations and entering into CBAs with the company.
Representing employees' rights and interests in collective disputes with the company, which also includes a right to initiate a strike.
A collective dispute between employees and the company can only concern conditions of work, wages or social benefits, as well as union rights and freedoms of employees or other groups of people who have the right to found trade unions.
Co-determination rights have not developed to a large degree in Poland. There are only a few statutory examples of situations where a union's consent is mandatory, for example:
Temporary suspension of the application of some labour law provisions, including CBAs.
The introduction of a flexible working time system.
The setting up of remuneration bye-laws and social fund regulations.
The extension of a working time settlement period to 12 months.
The introduction of an interrupted working time system.
Trade unions and their members enjoy certain privileges. Trade union officers and other nominated members enjoy special protection due to their union activities. Special protection means that an employer cannot terminate an employment contract without first obtaining the trade union's prior consent. Additionally, it cannot detrimentally modify work and pay conditions (except in a redundancy scenario).
The number of trade union officers protected against dismissal depends on the total number of union members in the company. Protection against dismissal expires a year after the protection period specified by the union in the resolution.
Members of a trade union elected to its board have the right to full or partial time off depending on either the total number of members of a given trade union or the number of management staff. In addition, each company has to provide its trade union with premises and technical facilities necessary for conducting union activities in the workplace. This is based on an agreement executed with the trade union which can be obliged to pay fees for those premises and facilities.
Works councils. A national works council is a permanent consultative body made up of employee representatives. Works councils can be formed in companies with 50 or more employees. Once a company reaches this headcount, it must inform its employees of their right to elect a works council. The term "national works council" must be distinguished from a European Works Council (EWC), which is a pan-European consultative body in a company operating in different countries in the EU.
A valid request must be made by at least 10% of employees to establish a national works council in the company. Once a valid request has been received, this automatically triggers the election process for council members. A works council is elected for a four-year term of office. The number of works council members depends on the total number of employees in the company and amounts to three, five or seven members.
The costs related to the election of works councils' members as well as their activities are borne by the company.
The main rights of a works council include the following:
Information. The right to be informed of:
the company's business and financial standing;
any planned decisions, situation, structure and expected development of employment within the company;
any measures envisaged to maintain the level of employment; and
any measures likely to lead to substantial changes in work organisation or in contractual relations. Individual terms of employment, including individual dismissals of employees, do not have to be announced to the works council.
Consultation. The right to be consulted on important facts and decisions concerning the employment structure and staffing levels in the company (for example, changes in business activities or business transfers resulting in a reduction of the workforce) and any other anticipated decisions that might lead to material changes in work organisation or pay conditions.
Consultation means the exchange of views and the establishment of dialogue between the company and the works council with the aim of achieving agreement. In practice, a works council cannot stop any company decisions, but it may postpone them by a consultation process. The company does not have to notify or consult the works council about individual terms of employment.
Polish law does not specify in detail the time and format for providing information to the works council. Unless otherwise stipulated in an agreement concluded by the company with the works council, the information must be provided:
When the anticipated changes or planned measures are identified, or upon the works council's written request.
In a way that allows the works council members to familiarise themselves with it, analyse the issue and prepare for consultation (if relevant).
The works council can present its opinion on the matters which are within the scope of the information duty. The members of the works council are also authorised to obtain the company's confidential information. At the same time, they are subject to the confidentiality obligation in terms of the information received from the company.
The consultations must be carried out:
Reasonably in advance of the anticipated changes or planned measures (although there is no specific deadline).
In a form and in a scope that allow the company to take actions on the subject matter of the consultation.
At an appropriate managerial level, depending on the subject matter.
So that the works council members can meet the company's representatives to:
understand the company's position;
reach an agreement, if possible; and
present the works council's opinion.
In good faith, that is, with the aim to reach an agreement (although it does not have to be reached at the end).
The company's managers are subject to a fine or restriction of liberty (a prison sentence) if they fail to properly inform and consult the works council.
Works council members enjoy special protection during their term of office. Without the works council's consent, the company cannot terminate their employment contract. It also cannot detrimentally modify the employment conditions (except in a redundancy scenario). Works council members are entitled to paid time off to fulfil their duties that cannot be performed during working hours.
State-owned enterprises (przedsiębiorswo państwowe) acting in the public sector must have a works council as one of its governing bodies. In many aspects, its rights are similar to a private-sector works council (for example, information and consultation entitlements and special protection for its members). However, it also has co-determination rights, which, in particular, include appointing the company's managing director, passing resolutions on changes to the company's business activities or on a merger or a division of enterprises.
Ad hoc representatives. If no trade unions operate at the company, some issues must still be consulted on with employee representatives who are elected by employees on an ad hoc basis. These situations include, in particular:
Extension of a working time settlement period to 12 months.
The introduction of a flexible working time system.
The introduction of an interrupted working time system.
Temporary suspension of the application of some labour law provisions.
Health and safety issues.
Social fund regulations.
These ad hoc representatives are not eligible for the statutory privileges enjoyed by trade union officers (for example, protection against dismissal).
There are no specific rules for electing ad hoc employee representatives. They should be elected in a customary way for the specific employer and in practice, the election process is usually set out by the company. There are no specific procedures for the consultation or obtaining the consent of any ad hoc employee representatives either.
Employees in Portugal can be represented in the following ways:
Trade unions (which include trade union delegates, trade union committees, inter-union committees, union sections, confederations, regional unions and federations).
Works councils and sub-councils.
Health and safety representatives.
Any other type of structures provided for by law, such as European works councils.
Trade unions. Depending on the bye-laws, trade unions are formed by employees who have the same profession or who work in the same industry, which means they are constituted at sector or company level, as the case may be. Additionally, trade unions can be constituted at regional level.
At company level, trade unions can represent the interests of their affiliated members through trade union delegates (delegados sindicais), trade union committees (comissões sindicais) and/or inter-union committees (comissões intersindicais).
The actual number of trade union delegates in each company or site depends on the number of affiliated employees and is subject to the following statutory thresholds (which can be increased in collective bargaining agreements):
For companies with fewer than 50 affiliated employees: one delegate.
For companies with 50 to 99 affiliated employees: two delegates.
For companies with 100 to 199 affiliated employees: three delegates.
For companies with 200 to 499 affiliated employees: six delegates.
For companies with 500 or more affiliated employees, the total number of delegates is calculated as follows: 6 + (number of affiliated employees – 500) / 200.
Where there are two or more trade union delegates representing the same union within the company or workplace, they are referred to as the trade union committee and, if there are two or more trade unions represented within the company or workplace an inter-union committee can be constituted.
In addition, at company level, inter-union committees are organised to represent either:
A group of at least five trade union delegates representing trade union committees associated in the same confederation.
All of the union committees within the company.
Trade unions acquire legal personality by registering their statutes before the competent service of the Ministry of Labour.
According to the Portuguese Constitution (PC), trade unions are entitled to:
Participate in the drafting of labour and employment statutes.
Participate in the management of social security institutions and other organisations involved in protecting the interests of employees.
Provide their opinion on economic and social compensation plans and monitor their implementation.
Have a seat on social consultation bodies.
Participate in corporate restructuring processes.
Negotiate collective bargaining agreements, a source of employment law (see below, Collective bargaining agreements).
Trade union delegates in companies with at least 50 employees must be notified and consulted on the following matters:
Recent and probable future development of company or workplace’s activity and of the economic situation.
The state, structure and probable future development of employment within the company and eventual measures to prevent downsizing of the workforce.
Decisions that can trigger substantial changes in the organisation of work or in employment contracts.
According to the Portuguese Labour Code (PLC), trade union delegates are entitled to:
Meet in the workplace.
Have at their disposal appropriate premises in the workplace to perform their duties.
Publish and distribute relevant trade union information in the company's facilities.
A time credit regime.
Works councils. At company level, employees who work in the company, regardless of the trade union with which they are affiliated, and even if they are not affiliated in any trade union, can establish a works council (comissão de trabalhadores) to ensure the protection of their interests and the democratic participation in the company's operations in accordance with the PC and relevant bye-laws.
Works councils acquire legal personality by registering their statutes at the competent service of the Ministry of Labour.
The number of members of each works council depends on the size of the workforce they represent and is subject to the following thresholds:
For companies with less than 50 employees: two members.
For companies with 50 or more and less than 200 employees: three members.
For companies with 201 to 500 employees: three to five members.
For companies with 501 to 1000 employees: five to seven members.
For companies with more than 1000 employees: seven to 11 members.
The PC establishes the works council's right to, among other things:
Receive all the information deemed necessary for the performance of the activities.
Perform management control in the companies.
Participate in corporate restructurings, namely in training sessions or when changes in the working conditions occur.
Participate in the drafting of employment legislation through non-binding opinions, and social compensation and economic plans related to their work sector.
In addition, the works councils are entitled to convene at least once a month with the company's management to discuss matters related to the exercise of their rights.
According to the PLC, the works councils have the right to be provided with relevant company information, including:
The company's accounting situation.
Organisation of production and its implications for the degree of use of workers and equipment.
Sales forecast, volume and management.
Human resources (HR) management, disciplinary actions, total amount of wages, allocation to professional groups, social benefits, productivity and absenteeism.
Accounting situation, including the balance sheet, income statement and balance sheets.
Tax and fiscal charges.
Plans to change the objects, the capital stock or the company's activity.
The PLC also grants works councils the right to exercise control over the company's management, so that works councils can:
Analyse and express an opinion on the company budget before its approval.
Make suggestions, recommendations or envisage improvements to the working conditions in the company.
Moreover, the PLC grants works councils the right to participate in restructuring processes. To be able to make recommendations in this context, the works council has the right to be informed and consulted in advance about any future restructuring measures.
Works councils must be consulted and can consequently issue formal non-binding opinions on any company decisions concerning:
Changes in the criteria for establishing the employees' professional classifications and promotion.
Changes in the company's place(s) of business.
Measures that potentially or actually imply a substantial decrease in the number of employees in the company or workplace; the deterioration of employees' working conditions or changes in the work organisation.
The dissolution of the company or its application for insolvency.
Furthermore, companies must inform works councils when they plan collective dismissals or individual job cuts, suspensions of employment contracts, or work time reductions. In such cases, the works councils are entitled to participate in the negotiation process and must be notified of the final decision.
Finally, there are some protection measures for employee representatives, such as:
The prohibition of discrimination.
Protection from transferring their workplace without agreement.
A time credit regime.
Health and safety representatives. Employees are entitled to appoint representatives for health and safety matters.
Unless otherwise provided for in the CBA, the number of employee representatives is subject to the following thresholds:
For companies with less than 61 employees: one representative.
For companies with 61 to 150 employees: two representatives.
For companies with 151 to 300 employees: three representatives.
For companies with 301 to 500 employees: four representatives.
For companies with 501 to 1000 employees: five representatives.
For companies with 1001 to 1500 employees: six representatives.
For companies with more than 1500 employees: seven representatives.
If provided for in the CBA, health and safety committees (Comissões de Segurança e Saúde no Trabalho) can be formed.
The employer must inform the employee representatives on all relevant health and safety matters.
The main goals of health and safety activities are, among other things, to:
Ensure working conditions which safeguard the safety, and the physical and mental health of employees.
Develop the technical conditions to ensure the implementation of preventive measures.
Inform and train workers on safety and health at work.
Inform and consult employee representatives on safety and health at work or when there are no representatives, the employees themselves.
In order to obtain the employee representatives' opinion, the employer must consult with them in writing, at least once a year or in a timely manner, on the following issues, among others:
The assessment of occupational health and safety risks (including those concerning employees exposed to specific risks).
Projected health and safety measures (if implementation is urgent, the consultation can take place after the implementation, but as soon as possible).
Occupational health and safety training planning and organisation.
The appointment of employees responsible for first aid, fire-fighting and evacuation.
The use of external health and safety services.
Required protective equipment.
The annual list of fatal and serious accidents (meaning accidents resulting in an absence of three or more working days), as well as any reports in relation to them.
European works councils. According to Article 404(d) of the PLC, there are other structures provided for by law for the protection and exercise of employees' collective rights and interests. These are European works councils. European works councils are to be established in every Community-scale undertaking and every Community-scale group of undertakings.
Law 96/2009 of 3 September 2009 transposed Directive 2009/38/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 into Portuguese national law.
According to this legislation, companies which employ at least 1,000 employees throughout the EU, with a minimum of 150 employees in each of at least two member states, must establish one of the following:
A European works council.
An alternative employee information and consultation procedure, agreed to by the central management of a Community-scale undertaking and a special negotiation body by the employees.
The European works council has no right of co-determination. Instead, it has the right to be informed and consulted on any transnational company matters.
Other types of structures for collective representation of employees. Apart from the European works councils there are other structures for collective representation of employees established in separate legislation.
Directive 2001/86/EC supplementing the statute for a European company (European Company Statute Directive) provides the rules for constituting a European Company (Societas Europaea (SE)) and was implemented in the Portuguese legal system by Law Decree 215/2005 of 13 December 2005. The incorporation of an SE can take place in different forms. However, an agreement on employee participation is required before the SE can be entered into the register and validly come into force.
To enter into the referred agreement, a special negotiating body of employees must be formed to negotiate measures with the employer for a permanent representation body of employees and to structure its participation rights. The European Company Statute Directive does not provide a uniform European model for this. The parties can make their own arrangements concerning employee involvement.
Collective bargaining agreements (CBAs). CBAs are an important source of employment law negotiated between employers or employers and employee representatives.
CBAs can be negotiated at two levels:
Contradict mandatory statutory provisions.
Regulate economic activities (for example, aspects regarding company operating hours, fiscal regimes and price fixing).
Grant retroactive effects to any of their provisions, except those of a pecuniary nature (for example, provisions implementing a retroactive increase in the applicable salary table).
CBAs typically regulate:
The relations between contracting parties (in particular regarding CBA compliance and dispute resolution mechanisms resulting from its application and revision).
Professional training (in particular considering the needs of the employee and the employer).
Occupational health and safety conditions.
Measures for ensuring effective compliance with equality and non-discrimination principles.
Other employee rights and duties (including basic remuneration for all professions and professional categories).
Mechanisms for employment-related dispute resolution.
Necessary services for workplace and equipment safety and maintenance, as well as minimum services in the event of a strike.
CBAs cannot contain mandatory rules and employment contracts can derogate from their provisions provided those dispositions are more favourable to employees.
In certain cases, the applicability of CBAs can also be extended by a governmental decision (Portaria de Extensão) to employees and employers who are not affiliated with the contracting parties, but operating in the relevant sector.
Employees in Slovakia can be represented by the following employee representative bodies:
Trade unions (odborové organizácie). These are civil organisations established at the initiative of employees.
Works councils or employee representatives (zamestnanecké rady alebo zamestnaneckí dôverníci). The establishment of works councils or employee representatives is mandatory for the employer only if the employees have already taken the initiative.
European works councils (európske zamestnanecké rady).
Trade unions. Trade unions are the most common form of employee representation in Slovakia. A trade union is a civil organisation. If established at the premises of the employer, the trade union must inform the employer when it was first established and the list of its members. The trade union can enter into collective bargaining agreements that specify conditions of employment more favourably than the law. Any part of the employment contract is invalid if it sets out less favourable conditions than the collective bargaining agreement. Unlike the works council or the employee representatives that represent the interests of all employees at an employer, the trade union represents the interests of the employees that enter into it voluntarily. The trade unions can join the confederation of the trade unions in Slovakia, which is a Slovakian organisation aimed at strengthening the position of trade unions in Slovakia.
Works councils. A works council is a body that represents all employees at an employer with more than 50 employees. The works council can participate by way of agreement or by giving a prior approval if the conditions of employment requiring the co-determination of a works council are not specified in the collective bargaining agreement.
In terms of the establishment of a works council, the employer must allow the election of members to the works council if at least 10% of employees request it in writing. If an employer has:
More than 50 but fewer than 100 employees, the works council must have at least three members.
More than 101 but less than 500 employees, the works council must have at least one more member for each group of 100 employees.
More than 501 but fewer than 1000 employees, the works council must have at least one more member.
More than 1001 employees, the works council must have one more member for each group of 1000 employees.
The members of the works council are elected for a term of four years.
Employees that have worked for an employer more than three months can vote in works council elections. Employees are eligible to be elected as members of the works council if they:
Have worked for their employer for more than three months.
Are older than 18 years old.
Are not close relatives of the employer.
Do not have a criminal record.
Employee representatives. Employee representative bodies can be established at an employer that has at least three employees but less than 50. The rights of an employee representative body are the same as those of the works council.
Rights of employee representative bodies:
Negotiation. Negotiation is defined by law as an exchange of opinions and dialogue between employee representatives and the employer. The employer can negotiate with the representatives with the goal of achieving an agreement on matters such as:
Decisions influencing the organisation of employees in advance.
Information. The employer must inform the representatives about its financial situation and about the expected development of the business. The employer can refuse to provide confidential information.
Monitoring. Monitoring relates to complying with the labour regulations on wages and the fulfilment of obligations under collective bargaining agreements.
Collective bargaining. Employees may collectively bargain with the employer via a trade union. The result of their agreement can be a collective bargaining agreement.
European works council. A European works council can be established at an employer who does business in more than one EU member state to provide information to employees.
Employees in Spain can be represented in the following ways:
Works councils or employee delegates.
Health and safety delegates.
Ad hoc representatives.
Collective bargaining agreements (CBAs).
Works councils or employee delegates. The works council and employees' delegates represent the employees at a company level. Their basic role is to represent and defend the employees' common interests. However, certain employee thresholds must be met in order to form these groups.
The representation of employees in companies or work centres with more than ten but fewer than 50 individuals is carried out by employee delegates. Those companies or work centres that employ between six and ten people can also have employee delegates if the majority decide to appoint them. These delegates are elected by secret ballot by the employees. In companies or work centres employing up to 30 individuals, one employee delegate is appointed. In those companies or work centres employing between 30 and 49 people, three delegates are elected.
The works council, as a representative body, can be formed in work centres and in companies with more than 50 employees.
An inter-centre council can be formed provided that it is approved by a collective bargaining agreement. An inter-centre council is made up of a maximum of 13 members elected among the representatives of the councils within each centre.
When forming an inter-centre council the proportionality of the unions is maintained according to the electoral results considered as a whole.
The number of works council members at each work centre is determined by the following scale:
From 50 to 100 employees: five members.
From 101 to 249 employees: nine members.
From 250 to 500 employees: 13 members.
From 501 to 750 employees: 17 members.
From 751 to 1,000 employees: 21 members.
For work centres with 1,001 employees and above, the number of works council members is two members per thousand employees up to a maximum of 75 members.
The responsibilities of the employee representatives include, among others:
Receiving financial information on the company and information regarding contracts.
Reviewing employee terminations and the penalties imposed for serious breaches. The representatives are advised of all penalties resulting from a serious breach, whether or not the penalty involves termination of the working relationship.
Ensuring compliance with the labour and health and safety regulations in force.
Issuing reports prior to the execution of any management decision made on matters relating to workforce restructuring, reductions in working hours and transfers.
Therefore, representatives are only entitled to information and consultation rights. However, in the case of imminent danger of a serious accident, representatives (in particular, the health and security delegate) are entitled to freeze the activity of the company.
Within the scope of their responsibilities, the employee representatives are able to:
Execute administrative and judicial actions.
Negotiate collective agreements at company level.
Participate in all collective negotiation proceedings (for example, the consultancy periods held before potential collective dismissals or substantial changes to working conditions).
The representatives must keep their employees informed of all information received.
The representatives possess certain protections, for example, the priority to remain within the company, or work centre with respect to the rest of the employees in the event of suspension or termination on technological or financial grounds. In addition, they are not to be dismissed or penalised during the execution of their activities or within one year after the expiration of their term unless due to withdrawal from the council or resignation, provided that the dismissal or penalty stems from the employee’s actions in the execution of their representative activities, the ability to open adversary proceedings in the event of penalties for serious or very serious breaches, and remunerated monthly hours in order to carry out their representative tasks.
The representatives are entitled to negotiate on remuneration and working conditions at company level. Unlike in Germany, France and Austria, the works council has no right of veto.
Trade unions. Although trade unions do not formally participate at company level, in practice, they play a key role.
Trade unions nominate more than 90% of elected employee representatives, and more than 75% of elected representatives are members of the two principal trade unions in Spain, namely:
The General Union of Workers (Union General de Trabajadores de España) (UGT).
The Confederation of Workers' Commissions (Confederación Sindical de Comisiones Obreras) (CCOO).
Trade unions are non-profit, permanent employee associations of an institutional and autonomous nature which group employees working for companies, civil servants, self-employed individuals without subordinates, the unemployed and retirees with the aim of strengthening the financial and social growth of their members. They were created to defend their members' interests and improve working conditions. Their functions include bringing legal actions, providing assistance and they also have some political elements.
The most represented trade unions in each sector are the ones entitled to participate in collective negotiations with a superior set of privileges than those with less representation. Additionally, they can call elections for employee delegates and work councils. The most represented trade unions can be granted temporary use of public premises and participate in non-jurisdictional employment conflicts. This involves negotiating the creation of procedures and extrajudicial autonomous dispute settlement bodies for specific collective negotiations. The action comes in the form of inter-professional agreements that set out the rules to be adhered to in possible dispute resolution (for example, disputes related to the application of collective agreements in different areas).
Trade union delegates in the company. In companies or work centres employing more than 250 employees, the union branches, which can be made up of employees affiliated to the unions with a presence on the works council or employee delegates, must be represented, to all intents and purposes, by union delegates elected by and between the members within the company.
Health and safety delegates. These delegates are representatives with special duties regarding the prevention of occupational risks.
The health and safety delegates are appointed by and between the representative's members (works council or employees' delegates) and their number is determined according to the following scale:
Up to 30 employees: the employee delegate will also be the health and safety delegate.
From 31 to 49 employees: one health and safety delegate.
From 50 to 100 employees: two health and safety delegates.
From 101 to 500 employees: three health and safety delegates.
From 501 to 1,000 employees: four health and safety delegates.
From 1,000 to 2,000 employees: five health and safety delegates.
From 2,001 to 3,000 employees: six health and safety delegates.
From 3,001 to 4,000 employees: seven health and safety delegates.
From 4,001 employees onwards: eight health and safety delegates.
If there are more than 50 employees in the company or in a work centre, a health and safety committee will be formed.
Ad hoc representatives. In order for a company to implement changes, certain collective measures and a minimum negotiation period with the employee representatives are required. However, under certain circumstances, a company or a work centre might not have an established employee representative body (for example in newly incorporated companies or work centres, or where the company does not have the minimum number of employees required to elect a representative body, or, where neither the employees nor trade unions initiated elections). Therefore, in such situations, there is a specific procedure which allows employees to elect ad hoc representatives for the sole purpose of such a negotiation period.
Collective bargaining agreements (CBAs). CBAs are agreements signed between the employee representatives and the company representatives with the aim of:
Establishing the working and production conditions.
Maintaining harmony within the workplace.
There are two types of collective bargaining agreements, distinguished by their scope of application:
The sectoral CBAs are all those applied to a sector of economic activity, while company CBAs are those which are solely applied to the company with which the CBA was carried out.
Moreover, CBAs must deal with matters relating to finance, labour, the unions, working conditions and professional assistance or promotion. At the minimum, they must indicate the following:
The parties concerned.
Their personal, functional, territorial and seasonal scope.
The process used to resolve any discrepancies which may arise.
The procedure for both raising these conflicts and forming an advisory committee.
About 82% of employees are covered by CBAs in Spain. This percentage is relatively high in comparison to other European countries.
Employees in Switzerland can be represented in the following ways:
Employee representative body.
Collective bargaining agreements (CBAs).
Employee representative body. If a company in Switzerland has 50 or more employees, the employees are entitled to representation in the company. An employer must hold a ballot on the introduction of representation if requested to do so by at least 20% of its employees or, in a company where more than 500 individuals are employed, if requested by 100 or more employees. The number of members of the representative body is fixed by the employer and the employees together, but the minimum number is three.
Regardless of whether or not the employees are represented by such a body, in comparison with other countries the rights of employees are very restricted. First, the employer is only obliged to inform employees about the impact of the business on the number of employees once a year. Second, employees' co-determination rights exist only in terms of:
Occupational health and safety protection.
Transfer of the undertaking to a new owner.
Occupational benefit schemes.
Negotiation of a social compensation plan (in certain cases of mass dismissal).
Co-determination usually means that the employer must consult with the employees or their representative body before taking any decisions. For occupational benefits schemes, the employee representatives take part in the decision-making process.
Since 1 January 2014, larger employers must negotiate a social compensation plan in certain cases of mass dismissals. The employer is obliged to enter into social compensation plan negotiations if it:
Employs at least 250 employees.
Intends to dismiss at least 30 employees within 30 days for reasons that are unrelated to the individual employees (mass dismissal).
The employer negotiates a social compensation plan with the employee representative body. If there is no employee representative body, the employer will negotiate directly with the employees. If the parties are unable to agree a social compensation plan, an arbitral tribunal must be appointed, which will establish a social compensation plan by way of an arbitral award.
There are no official enquiries as to whether employee representatives are members of trade unions. Trade unions do not have a legal right to sit on the employee representative body.
Trade unions. Trade unions in Switzerland play an important role in negotiating CBAs. Although only about 21% of employees are members of trade unions, about 49% of all employees are affected by a CBA.
Collective bargaining agreements (CBAs). A CBA can be applicable because of any of the following:
The employer and the employee belong to an association or a trade union that is a party to the CBA.
The employer has declared it to be applicable.
It has been declared generally applicable by the state, the canton or a municipality.
CBAs can regulate the following issues, among others:
Continued payment of wages in the event of illness, accident or maternity.
Regulations concerning dismissals, in particular the negotiation and implementation of a social compensation plan.
If an employer dismisses an employee representative or a member of a trade union because of their membership or for lawfully exercising a union activity, the notice of termination is regarded as abusive by law. The employer must compensate the employee with up to six months' wages in these instances.
Employees in The Netherlands can be represented in the following ways:
Collective bargaining agreements (CBAs).
Works council. In The Netherlands, an enterprise with 50 employees or more must establish a works council, regardless of its legal form. An enterprise in the meaning of the Works Council Act is any organisation operating in the community as an independent entity in which work is performed on the basis of an employment contract.
The amount of total employees in the company proportionally determines the total number of members of the works council. Under the Works Council Act, the works council must have a minimum of three members and may have a maximum of 25 members when there are 7,000 or more employees. To elect employee representatives for the works council, a list of candidates is circulated among the employees and a secret written ballot is taken. The trade unions are permitted to provide a list of candidates consisting of employees who work for the employer.
If two or more works councils have been established for a group of enterprises, the employer may also have to establish a group works council or a central works council, if this aids the proper application of the Works Council Act. Whether the establishment of a group or central works council aids the implementation of the Works Council Act is dependent on the circumstances of the case. A group works council will be established if the separate enterprises are similar in terms of their nature, structure and management and if the group works council is able to carry out tasks more efficiently than the separate works councils.
If the employer has fewer than 50 but at least ten employees, it must establish an employee representative body upon request of a majority of its employees (51% or more of its employees).
The works council has two main rights that are mandatory in certain matters (Articles 25 and 27, Works Council Act).
A right to be consulted upfront on important contemplated decisions (for example, mergers, transfers of undertakings, changes to the company structure and collective dismissal).
A right of consent for decisions about introducing, amending or withdrawing social policies affecting the employees (for example, whistle-blower policy, regulations concerning staff appraisals, working hours, remuneration, pensions, or handling and protection of employees' personal data provided that these subjects are not governed by an applicable collective bargaining agreement (CBA)).
To maintain the quality of the works council, all members of the council have a right to education and training. The employer must take responsibility for the costs of training. The works council has the right to obtain external advice which, if reasonable and if a budget is requested prior to engaging an external advisor, is fully paid for by the employer.
The employer must provide the works council with the information that is needed to perform its tasks at a stage when the advice of the works council can still be of influence in the decision. For example, for a contemplated decision subject to consultation, the works council must be informed about:
The proposed decision.
The grounds for the decision.
The consequences for the employees.
The manner in which these consequences are compensated.
The timing of works council involvement in transactions is essential. Case law shows that works councils can delay or even prevent a transaction from being implemented. This is particularly the case if the works council has not been given (either at all or on time) the opportunity to give advice or if the works council has not received all the necessary information to be able to give proper advice. After the works council has given advice, the employer must confirm in writing what decision it will take. The advice of the works council is either positive (meaning unconditional) or negative (if the works council has set conditions). The latter is usually turned into positive advice if the employer is willing to comply with the conditions that the work council has set. This is not mandatory, however, especially if the employer can substantiate its decision to deviate from the works council's advice. Within one month of the date on which the employer's decision is announced in writing, the works council can lodge an appeal with the Enterprise Chamber of the Amsterdam Court if, for example, the works council does not agree to the continuation and implementation of the decision.
If the employer implements, changes or cancels a social policy for which works council consent is mandatory, without the consent of the works council, the works council can call for the decision to be nullified. Once the works council has become aware of the decision being taken, either by written notice from the enterprise or through the implementation of the decision, it has one month to lodge an appeal with the Enterprise Chamber of the Amsterdam Court. This can result in a decision from the Enterprise Chamber ordering the employer to revoke the decision. However, if a works council unreasonably withholds its consent, the employer can request permission from the Cantonal Court to implement the decision. Such a request from the employer will be awarded if the works council has refused its consent based on unreasonable grounds, or if the decision is necessary for economic or social reasons.
The works council of a public limited company has the right to present its opinion at the shareholders' meeting on a number of decisions, for example:
Significant changes to the company's identity or structure, including transfer of the entire company to a third party.
Remuneration of board members.
The appointment, suspension and dismissal of (supervisory) board members.
The employer must inform the works council about the company group structure in The Netherlands. Additionally, the employer must inform the works council about the international group structure if the company is part of an international group of companies.
The rights of the works council under the Works Council Act can be extended by means of a written agreement, defined as a covenant, between the employer and the works council. If the covenant is not restricted in duration, it applies for an indefinite period of time and cannot always be terminated easily.
For employers who have not established a works council, decisions that may result in a material loss of employment or a material change in the employment conditions of at least 25% of all staff are subject to consultation with the employee representative body or through a staff meeting. This will not apply if there is an applicable CBA containing contradictory measures. However, these participation bodies do not have the right to appeal an employer's decision if the employer does not follow the advice of the employee representative body or staff meeting.
Trade unions. In The Netherlands, an employee's trade union membership is not disclosed to the employer unless an employee applies for compensation from the employer for their trade union membership fee. During employee conflicts with the employer or CBA negotiations, employee trade union membership is usually revealed. Statistics show (October 2015, statistics Netherlands) that trade union membership has decreased by 30,000 to 1.7 million out of the 8.3 million employed population. The total employed population has slightly increased. However, the representation rate of employees under 25 is the lowest figure since 1991. The biggest decrease has been suffered by the Netherlands Trade Union Confederation (FNV). New trade unions are emerging and are able to agree on a new type of CBA with the employer representation group, including in the traditional market. Traditionally, trade union membership is highest in the old and more traditional industries, for example the metal industry and the trades. While trade union membership figures have dropped, the number of trade union members over the age of 65 has increased.
The trade unions can still exert power over employers, for example, for mass dismissals (more than 20 redundancies within three months). In case of mass dismissal, regardless of the manner of termination of an employment agreement (either through a court procedure, permission of the Employee Insurance Agency (Uitvoeringsinstituut Werknemersverzekeringen) (UWV) or based on mutual consent with the employee through a termination agreement) trade unions must be involved. The Employee Insurance Agency verifies whether the employer has acted in compliance with the law. If the employer is in breach of the law, an individual employee can claim continuation of employment. As of 1 July 2015, Dutch employment laws have changed drastically. For example, the grounds for termination determine whether the court can terminate the employment agreement or whether the Employee Insurance Agency should be advised. Also, from July 2015, trade unions can agree to specific rules in a CBA in case of reorganisations which would allow the employer the CBA applies to, to bypass the procedure with the Employee Insurance Agency and to terminate employment agreements through a special committee which consists of trade union representatives.
The Merger Code, as set out by the Dutch Social and Economic Council, emphasises the role of trade unions in transactions. If the contemplated merger falls within the scope of the Merger Code, transacting parties must inform the trade unions about the preparation of the merger and provide them with an opportunity to express their views on the merger with regard to how it may affect an employer's organisation.
Collective bargaining agreements (CBAs). There are two types of CBAs:
An employer that is a member of an employers' organisation that is party to a CBA is bound by it and must apply the CBA. Some CBAs are declared universally binding by the Ministry of Social Affairs, and as a result, all employers and employees who fall within its scope are legally bound by it. This applies irrespective of the employer's or the employee's membership of the contracting trade unions or employer's organisation. In 2014, CBAs were concluded for a shorter period of time. Also in 2014, many CBAs were not renewed but this trend has not been seen in 2015 where many more lapsed CBAs were renewed.
Changing employment laws. There has been extensive reform of employment law in The Netherlands. From 1 January 2015 to 1 July 2015, a number of employment laws have changed and the effects of this new legislation are clearly noticeable within the labour market.
The changes range from prohibiting the inclusion of a non-compete clause in temporary contracts to extensive changes concerning the manner in which an employment agreement can end. Contrary to the manner in which the court tended to weigh all the interests of the employee and employer before determining whether there were sufficient grounds to terminate the employment agreement, the court has a different, stricter view on dismissals. The employer must ensure that the separate grounds for dismissal are very well substantiated, in addition to which the employer must prove that it has provided the employee with sufficient training and that there are no job alternatives within the (national) group structure. New case law shows that a request by an employer to terminate an employment agreement is more likely to be refused by the court than before.
The formula which was traditionally used to calculate a severance, the Cantonal Court Formula, has been replaced by a statutory severance called the transition remuneration. The transition remuneration is due if the employment agreement continued for at least 24 months and is terminated by the employer either by serving notice with a permit from the Employee Insurance Agency (UWV) or by requesting the court to effect such termination, or if a fixed term employment agreement ends by operation of law. No transition remuneration is due in case of termination through a settlement based on mutual consent, although practice continues to show that the employer is often willing to pay a higher amount than the transition remuneration in order to arrange a swift and final settlement.
The transition remuneration amounts to one-sixth of the employee's monthly salary for every six months of employment less than ten years of employment and one-quarter of the employee's monthly salary for every six months of employment that exceeds ten years of employment. For every six months of service after reaching the age of 50 and in case of at least ten years of employment, the employee is entitled to half a monthly salary. The transition remuneration for 2017 is maximised at either EUR77,000 or, when the employee's annual wages are higher than EUR77,000, an amount that is equal to such annual wages.
In the private sector in Turkey, employees can be represented in the following ways:
Health and safety representatives.
Health and safety committees.
Collective bargaining agreements.
Committees on annual leave issues.
Health and safety representatives. If there are two or more employees at a workplace, an employee health and safety representative must be elected from among the employees. In exceptional cases, an employee health and safety representative can be appointed by the employer. The number of representatives is determined in accordance with the number of employees at the workplace using the following scale:
Workplaces with two to 50 employees: one representative.
Workplaces with 51 to 100 employees: two representatives.
Workplaces with 101 to 500 employees: three representatives.
Workplaces with 501 to 1000 employees: four representatives.
Workplaces with 1001 to 2000 employees: five representatives.
Workplaces with more than 2001 employees: six representatives.
The maximum number of health and safety representatives is six.
The representatives' key responsibility is health and safety in the workplace. They can provide opinions to the employer as well as obtain information which may be necessary for the fulfilment of their duty. Accordingly, the representatives attend workshops, supervise training sessions and propose necessary measures to overcome hazards at work. Among other issues, employers must obtain the opinions of the representatives with respect to following health and safety issues at the workplace:
The appointment of a workplace doctor and an occupational safety expert.
Risk evaluation (for example, the evaluation of relevant preservative and preventative measures, and necessary safety equipment required).
Planning the health and safety training of employees.
If the employer fails to comply with his duties with regard to the health and safety representatives, an administrative fine from TRY1,301 to TRY3,905 can be imposed, depending on the number of the employees and the risk ratio of the respective work. Preventing the representatives from taking relevant measures is subject to an administrative fine from TRY1,952 to TRY5,856 , depending on the number of the employees and the risk ratio of the respective work.
The employee representatives' powers only concern health and safety issues at the workplace and do not extend to other decision-making processes of the employer. Additionally, if there is an authorised trade union for the workplace, the trade union representatives at that workplace will act to fulfil the role of the health and safety representative.
Health and safety committees. For workplaces where the number of employees is 50 or more and regular employment is for a minimum period of six months, the establishment of a health and safety committee is compulsory. The committee consists of the following members:
Employer or the employer's representative.
Occupational safety specialist.
Human resources manager.
Employee representative or the chairman of the employee representatives (if more than one).
Civil defence expert (if such exists).
Foreman (if such exists).
Health and safety representative (head of health and safety representatives, if such exists).
The rights and duties of the committee are primarily focused on health and safety issues at the workplace, such as:
Evaluation of risks.
Determination of measures.
Ordering and supervising health and safety measures.
Drafting a policy on the use of technology in the workplace, organising the workplace, working conditions and social relations.
The committee can provide opinions and obtain any information necessary for the fulfilment of its duties. Both employers and employees are bound by the decisions taken by the committee, which are implemented by the employer.
The committee cannot participate in other decision-making processes. If an employer fails to fulfil any duties arising in connection with the health and safety committee, an administrative fine starting from TRY2,600 up to TRY7,810 can be imposed on the employer for each breach, depending on the number of the employees and the risk ratio of the work.
Trade unions. Trade unions are organised on an industrial sector basis and the number of representative trade unions for each sector varies from three to 13. They play a key role in maintaining the working relationship between employees and the employer. However, the number of employee memberships in trade unions in the private sector does not accurately reflect the importance of this role. As of July 2016, only 11.5% of the 13 million private sector employees had trade union membership.
To establish a trade union, there is no need to obtain permission from public institutions and seven or more employees together can establish a trade union. The representational entitlements of trade unions are based on the demands arising from the working relationship between the employees and the employer.
Collective bargaining agreements (CBAs). Trade unions that meet the following requirements are the only bodies permitted to negotiate and conclude CBAs on behalf of the employees:
Representing at least 1% of the employees in the sector in which the trade union is established.
Representing more than half of the employees at the workplace or at least 40% of the employees in the enterprise.
CBAs can be concluded at two levels:
The Turkish employment system does not allow for a CBA to encompass an entire industry, only specific workplaces or enterprises. CBAs initially cover the members of the trade union. However employees who are not members of this trade union at the workplace or enterprise for which a CBA was concluded can also benefit from the CBA, provided they pay solidarity contributions to the trade union. These solidarity contributions are generally paid on a monthly basis. Trade unions are also entitled to file a lawsuit on behalf of their members or the inheritors of their members in order to protect any rights arising from the employment relationship. Furthermore, trade unions are the only bodies that can call a strike.
Trade unions can exert influence in workplace operations through workplace trade union representatives. The number of representatives is determined in accordance with the number of employees and may comprise up to eight representatives. These representatives are appointed from among unionised employees by the trade union which is authorised to conclude CBAs for the relevant workplace. They are also allowed to represent and act in favour of other employees that are not members of this trade union. However, in practice, trade union representatives at the workplace only focus on the requirements of their own members.
The legislation does not provide for any co-determination rights for representatives, therefore, it is not possible to participate in the decision-making processes of the employer unless the CBA states otherwise. Representatives are responsible for the following:
Addressing employee grievances.
Ensuring collaboration among employer and employees.
Protecting the rights of employees.
Developing working conditions stipulated by labour codes and CBAs.
In addition, among other requirements, an employer intending to substantially reduce staff numbers must notify trade union representatives 30 days in advance. Following notification, representatives and employers come together and deliberate in order to prevent collective redundancies, reduce the scope of collective redundancy or prevent undesirable outcomes of collective redundancy among employees.
As a result of these special responsibilities, union representatives benefit from special protection, which prevents an employer from terminating their employment relationship on the basis of reasonable grounds. Accordingly, termination is only possible if the termination is based on valid grounds strictly stipulated by the law and if the termination is notified in writing. Additionally, trade union representatives can also take up the position of an employee representative.
Committees on annual leave issues. For workplaces with more than 100 employees, the establishment of a committee on annual leave issues is compulsory. The committee is made up of the following:
Employer or the employer representative.
Two representatives for the employees. These two representatives and their deputies are elected by the trade union representatives, if such exists. In the absences of the trade union representatives, these are directly elected by the employees.
In workplaces with fewer than 100 employees, the duties of this committee are carried out by the employer or his representative, or a third person appointed by them and a representative of the employees, who is elected among employees by the employees.
The committee focuses on employees' annual leave and provides the employer assistance regarding the regulation of the periods in which the annual leave can be taken. In this regard, the committee prepares a schedule of the requested annual leave.
If the employer fails to comply with his duties in this regard, which are also linked to the annual leave of the employees, an administrative fine of TRY285 can be imposed on for each affected employee.
United Kingdom (Scotland, England and Wales)
Employees in the UK can be represented in the following ways:
Collective bargaining agreements.
Trade unions. In the UK, the size of trade unions can significantly vary. Some of the larger trade unions are among the biggest organisations in the UK, and over six million workers are members of trade unions (representing approximately 25% of the workforce). Membership levels within the public sector are significantly higher than within the private sector more generally. Certain sectors within the UK private sector have significant pockets of trade union membership (for example, elements of manufacturing) but many others have limited, if any, trade union presence, where employees tend to be represented by elected employee representatives when they are required to do so for transfers of undertakings (under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)) or collective redundancy consultation.
Trade unions are overseen by the Trades Union Certification Officer who also awards certificates of independence for the purpose of collective bargaining.
Trade unions carry out a range of functions, including:
Negotiating agreements with employers on pay and conditions.
Consulting on major changes to the workplace such as redundancies.
Discussing members' concerns with employers.
Accompanying members to disciplinary and grievance meetings.
Providing legal and financial advice to members.
Trade union members have the right to time off to take part in trade union activities including:
Voting in ballots on industrial action.
Voting in union elections.
Taking part in meetings to discuss urgent matters.
Attending the annual trade union conference.
Employees are protected from being disadvantaged either because they are or because they are not a member of a trade union. Trade union membership is an unlawful reason for refusing a person employment, dismissing an employee or selecting an employee for redundancy. It is also illegal to compile, use, sell or supply a blacklist of trade union members that can be used to discriminate against those individuals. Employers are not allowed to operate a "closed shop" by making all workers join the employer's preferred union.
Legal changes. The UK Government has recently reviewed and changed certain trade union powers including the ability to convene lawful industrial action. The Trade Union Act 2016 increases the minimum turnout required in ballots to authorise industrial action to 50%, with "important public services" (such as health, education, fire services and transport). Strikes also require the backing of at least 40% of those eligible to vote. Under previous rules, strikes could be called if the majority of those taking part in a ballot voted in favour. Among other things, the Trade Union Act and related amendments also:
Double the amount of notice unions have to give before a strike can be held - from seven to 14 days (unless seven days is agreed by both parties).
Introduce an expiry date for ballot mandates. Industrial action can therefore be exercised only within six months of the date of the ballot (or extended up to nine months if both parties agree).
Only permit the check-off system for collecting union subscriptions direct from a salary in the public sector if the worker has the option to pay its subscriptions by other means and the union makes reasonable payments to the employers' costs for administering the system.
Collective bargaining agreements (CBAs). There are two types of CBA:
Sectoral collective bargaining does occur in the public and private sectors but is significantly more prevalent in the public sector. For example, teachers' pay scales applicable within state schools will be determined by a national joint consultative committee; similar arrangements apply to pay scales applicable within local government and within the National Health Service. In the private sector, there are longer-established trades bodies such as engineering and manufacturing that continue to have active employers' associations who negotiate with the relevant trade unions.
If a trade union is formally recognised by an employer, it can carry out collective bargaining with the employer over terms and conditions. The trade union and employer will agree what issues can be dealt with by collective bargaining. However, an employer is not obliged to bargain collectively under voluntary recognition arrangements and recognition can be confined to more limited issues. Therefore, establishing whether recognition is voluntary or compulsory is a key step when considering collective arrangements in the UK.
If an employer refuses to voluntarily recognise a trade union, provided that the trade union is confident of its level of support, it can apply to the Central Arbitration Committee for a declaration that it must be recognised. This may involve balloting of appropriate workers. This is known as the statutory recognition procedure. UK legislation however provides that collective bargaining resulting from the statutory recognition procedure covers only negotiations on pay, hours and holidays.
Collective bargaining covers the terms and conditions of workers in a defined "bargaining unit". The bargaining unit can include all employees in the workplace or just certain groups of workers. Workers can be covered by a collective agreement even if they are not a member of a trade union, if they belong to the relevant bargaining unit.
Collective bargaining can lead to an enforceable collective agreement which often results in a change to workers' employment terms and conditions. However it should be noted that terms of a collective agreement are not legally enforceable in an individual employment contract unless the parties specifically agree that they will be.
Works councils. In contrast to other EU countries, the UK does not have a system of works councils elected by all employees. Under the Information and Consultation of Employees Regulations 2004 (ICE Regulations), National Works Councils (NWC) can be established under information and consultation arrangements made up of management and employee representatives. NWCs are a method by which the employer can inform and consult its workers about any economic or employment-related matters. The number of NWCs within the UK is relatively small.
If employers or employees do not want to have a formal NWC, they can establish an ordinary staff council, which is a group of employee representatives available to engage with their employer on different issues.
NWCs are distinct from European Works Councils (EWCs) established under the Transnational Information and Consultation of Employees (Amendment) Regulations 2010 (SI 2010/1088) (TICE Regulations).
The ICE Regulations apply to all UK employers with 50 or more staff and give employees the right to ask their employer to make an arrangement to inform and consult their workforce regarding issues or changes in the organisation. If the employer does not begin the process for making such an agreement itself, the employees must make a formal request for the agreement- it is not automatic, and requires support from at least 10% of the workforce. Employers must also be aware that special rules also apply to valid pre-existing agreements, where the request is made by less than 40% of the workforce.
In order to be valid, agreements to inform and consult must:
Be in writing.
Cover all employees in the undertaking.
Detail how the employer will inform and consult employees or representatives, including when and how often discussions will take place.
Be approved by employees.
The issues on which an employer must inform and consult can be detailed in the agreement. However, if these are not set out, the ICE Regulations contain standard provisions, meaning employers must inform employees about the business's economic situation, and inform and consult employees regarding employment prospects and on decisions likely to cause substantial changes in work organisation or contractual relations.
Employee representatives. Where there are no formal standing arrangements for employee representation, employees can elect employee representatives to represent them in information and consultation processes in specific circumstances. These can apply where there is a transfer under TUPE or where information and consultation obligations are triggered in collective redundancy situations under section 188 of the Trade Union and Labour Relations (Consolidations) Act 1992.
EU legal minimums
EU law has affected the organisation of employee representation bodies and their participation and co-determination rights. This provides legal minimums, with which all member states must comply. The following Directives are relevant.
Directive 98/59/EC on collective redundancies (Collective Redundancies Directive) (formerly 75/129/EEC). The Collective Redundancies Directive (the procedure was introduced in 1975) harmonises the laws of member states concerning mass dismissals. It was introduced to prevent multinational companies in the process of restructuring from reducing personnel in the member state in which dismissals are the simplest and cheapest.
It only applies where the employer makes a certain number of employees redundant within a specific period of time. If the employer is planning mass dismissals, it must introduce and implement a procedure to provide information to and consultation with members of the employee representative body. This procedure must:
Explore options to avoid or reduce the impact of mass dismissals and mitigate the consequences for employees that are to be dismissed.
Reach consensus on how the employees are to be dismissed.
The Collective Redundancies Directive does not provide a genuine co-determination right for employee representatives. Therefore, in most of the member states, such as the UK, Belgium, France, Hungary and Italy, employee representatives cannot force agreement on the employer. However, the consultation procedure must be finalised before the employer can issue notices of dismissal.
Directive 2001/23/EC on safeguarding employees' rights on transfers of undertakings, businesses or parts of businesses (Transfer of Undertakings Directive). The Transfer of Undertakings Directive regulates the employment law consequences concerning a transfer of business on the grounds of contract, merger and spin-off. The buyer and seller must inform the employee representatives in both companies concerning:
The date or planned date of the transfer.
The reason for the transfer.
The legal, economic and social consequences of the transfer for the employees.
Any envisaged measures relating to the employees.
Directive 2009/38/EC on the establishment of a European works council (EWC Directive) (formerly 94/45/EC). Companies that employ at least 1,000 employees throughout the EU, with a minimum of 150 employees in each of at least two member states, must form either:
A European works council.
An alternative employee information and consultation procedure agreed to by the central management of a Community-scale undertaking and a special negotiation body by the employees.
The European Works Council has no right of co-determination. Instead, it has the right to be informed and consulted on any transnational company matters.
Directive 2002/14/EC on informing and consulting employees (Information and Consultation Directive). The Information and Consultation Directive provides a general right for information and consultation for employee representatives in all establishments that are of a particular size, irrespective of the form of the company. How this right is implemented depends on the member state where the establishment is domiciled. The employee representation body must be informed and consulted about:
The most recent developments and the probable further development of the company or establishment.
The employment situation.
Developments that can have consequences for the employment situation or individual employment agreements.
If the employer or employee representatives do not comply with the duty to inform and consult, the member states must provide for appropriate sanctions.
Directive 2001/86/EC supplementing the statute for a European company (European Company Statute Directive). The European Company Statute Directive provides the rules for creating a European Company (Societas Europaea (SE)). The incorporation of an SE can take place in different forms. However, an agreement on employee participation is required before the SE can be entered in the register and validly come into being.
To enter into this agreement, a special negotiating body of employees must be formed to negotiate measures with the employer to put into place a permanent representation body of employees and to structure its participation rights. The European Company Statute Directive does not provide a uniform European model for this. The parties can make their own arrangements concerning employee involvement.
In 2015, the European Commission started a first phase consultation of social partners under Article 154 of the TFEU on a consolidation of the EU Directives on information and consultation of workers. This includes the question of whether the Commission should launch an initiative to revise or recast the:
Collective Redundancies Directive.
Article 7 of the Transfer of Undertakings Directive.
Information and Consultation Directive.
Additionally, the European Commission supports transnational company agreements (TCA) in multinational companies. They provide for voluntary, innovative and socially agreed solutions in the form of collective works agreements in companies across Europe to issues such as:
Anticipation of change and restructuring.
Health and safety at work.
The companies' European works councils will be the perfect contact to negotiate the harmonisation of certain terms and conditions of employment in the European Area.
Works councils and trade unions in selected member states
Main body(ies) for employee representation at company level
Composition of works council-type bodies
Minimum thresholds for employee representation at company level
Rate of unionisation (in %)
Collective bargaining agreement coverage (in %)
Composition of a works council as of five employees.
Information, supervision, consultation, co-determination.
Five employees: works council.
Trade union (RSU).
15 employees: RSU.
Information, consultation, supervision and co-determination.
21 in all economy sectors (in 2012)
88.9 (in 2014)
Works council has at least three members.
16 (in 2011)
Employee representative body.
50 employees required for ICE Regulations; 21 workers for trade union recognition.
T +32 3 206 01 40
F +32 3 206 01 50
Professional qualifications. Belgium, 1978
Areas of practice. Employment; pensions law.
- Advised an international chemical group on cross border employment Belgium/Germany/US/China.
- Advised a major Belgian airline on strategic HR policies and international development.
- Gave expat advice and litigation for a global leader in pharmaceuticals.
- Advised a multinational production company on multiple employment and social security litigation.
T +49 221 7716 345
F +49 221 7716 334
Professional qualifications. Germany, 1995
Areas of practice. Labour; employment.
- Advising multinationals in all areas of labour and employment law, in particular on issues of restructuring and reorganisation; outsourcing; collective bargaining; works council aspects; privatisations; transactions; personnel adjustment measures.
- European projects such as cross-border transfers of business; issues of compliance; cross-border audits and compliance and internal investigations with regard to compliance issues; matrix structures of multinational companies; European works councils; the implementation of codes of conduct and whistleblowing systems.
T +36 1 483 4811
F +36 1 483 4801
Professional qualifications. Hungary, 1978; LLM in US and Global Business Law (Suffolk University Law School)
Areas of practice. Commercial; employment; competition; taxation; dispute resolution.
- Advising Samsung Electronics for more than 25 years on all general commercial issues, in particular, competition, employment, regulatory and public procurement issues and tax matters.
- Advising a major solutions provider on various employment law matters over the past ten years, including employment contracts and modification of such contracts, business transfers, collective agreements and an employee benefits and compensation scheme.
- Advising Marriott Hotels on a regular basis regarding various general commercial law issues, including contracts and employment law.
- Advising Honeywell on drafting policies, standard agreements and providing advice in contentious cases.
- Advising both Johnson & Johnson's Consumer Products and Healthcare divisions on a full range of issues from high profile employment law issues to day-to-day legal questions.
T +39 06 478 151
F +39 06 483 755
Professional qualifications. Italy, 1988
Areas of practice. Employment.
- Assisting the CEO of a leading company active in the distribution of electricity in the North of Italy for the negotiations concerning his dismissal.
- Assisting the Italian branch of a Spanish pharmaceutical company for all labour issues in relation to the sale of some of its activities.
- Assisting the publisher of one of the main sports newspapers in Italy in relation to various redundancy procedures.
- Assisting a client publisher of a major newspaper in Italy, in relation to the reorganisation of operations and dismissals of journalists.
- Assisting a German multinational conglomerate leader in the steel industry on the drafting and negotiation of various freelance contracts for the company in Italy.
- Assisting an American designer and manufacturer of clothing and accessories in relation to general employment advice.
- Assisting the Italian offices of a major international Japanese automotive company in relation to various employment related issues.
Assisting a global supplier of rotating equipment solutions to the oil, gas, petrochemical, power and process industries in relation to collective dismissals and restructuring of the company in Italy.
Assisting one of the largest publishers in Italy in the restructuring of the group in Italy.
Assisting a leading company concerning maritime transport in Italy in a labour litigation case.
Assisting a major German car manufacturer in the dismissal of a top manager.
Assisting one of the leading rolled steel companies in the world with regards to redundancy procedures, including negotiation with the unions.
T +33 4 78 95 47 99
F +33 4 78 62 75 33
Professional qualifications. France
Areas of practice. Employment and social security law.
- Assisting an international company and a French company on collective dismissals, including negotiation with the unions and the French Administration.
- Advising an international company on the implementation of new employment agreements or amendments regarding teleworking.
- Acting for hotels in relation to disciplinary procedures.
- Advising on consequences regarding social security schemes in the case of multi-activity in different European countries.
Katja van Kranenburg
CMS The Netherlands
T +31 20 3016 402
F +31 20 3016 333
Professional qualifications. The Netherlands, 1998
Areas of practice. Employment and pensions; corporate employment law; compliance; employee incentives; co-determination; transfer of undertaking; remuneration.
- Assisting the Hong Kong listed CKI with the acquisition of the Dutch waste management company AVR. The advice consisted of all works council-related matters and the negotiations on employment terms of management, among others.
- Advising the chemical tanker business Essberger on restructuring and reorganisation concerning both The Netherlands and Germany.
- Advising a number of banks in The Netherlands about their (global) remuneration policy in light of CRD4 and new Dutch remuneration rules, including a training session for the Remuneration Committee (international).
- Advising an international company on the implementation of new employment agreements, incentive schemes and restrictive covenants for higher-level staff and key employees after a worldwide merger.
T +48 22 520 5519
F +48 22 520 5556
Professional qualifications. Poland, 2002
Areas of practice. Employment, including employee representation and corporate employment law; commercial and civil law issues.
- Advising PZ Cussons, on various issues relating to the sale of its local Polish home care brands to a German consumer products group (valued at GBP46.6 million). Our role included advising on transfer of undertakings (TUPE), identifying the staff to transfer within the newly combined organisational structure, advising on internal re-organisation measures, retention programmes, employment guarantees and performance bonuses, tailoring and reviewing communication with employees, as well as advising on the employment aspects of the structure of the deal. We have also advised on retention letters, staff selection, TUPE issues, and client's negotiation strategy with the trade unions.
- Advising GE on implementation of CRD4 regulation concerning variable remuneration policy pay for risk takers in the banking sector as well as giving advice on tax equalisation strategies relating to seconded employees.
- Advising the global insurer on high level sensitive terminations of employment. The advice required a deep legal and market knowledge.
- Advising a leading off-price retailer of apparel and home fashions on international strategy on handling labour relations in the organisation and assisting in conducting all official correspondence with trade union officials. Also advising on legitimate areas of concern of the trade union in relation to any issues raised by the union.
- Assisting one of the largest world's producers of electricity on reshaping its collective relationships with its employees. In particular advising on the complex issue of whether it is possible to exit, and the possibility of a release of the group companies from the obligation to apply a collective bargaining agreement for the employer's industry.
T +41 44 285 11 11
F +41 44 285 11 22
Professional qualifications. Switzerland, 2004
Areas of practice. Employment.
- Representing and advising one of the largest Swiss retail companies, in all areas of employment matters (for example, dismissals, termination agreements, implementation of new regulations, employee representation matters, data protection issues).
- Advising Nike in all areas of Swiss employment matters.
- Advising Accenture AG with regard to cross-border assignment situations, employee leasing regulations, and retention payment agreements.
- Advising Swiss and international companies on business restructuring (including mass dismissals, agreements on social compensation plans) as well as in court disputes.
T +43 1 40443 1450
F +43 1 40443 91450
Professional qualifications. Austria
Areas of practice. Employment; pensions.
- Advising an international airline starting a business in Austria on their employment conditions outside the application of a CBA.
- Advising and representing a famous Viennese museum (Belvedere) in a highly publicised case against the current director by the former commercial director.
- Advising and representing the famous Viennese theatre and its shareholder (Burgtheater GmbH, Bundestheater-Holding) in a highly publicised case against the former director and vice director with regards to the executive's duty of care.
- Advising a multinational technology company on actions concerning pension funds, especially with regard to the interpretation of pensions schemes (part-time employment contracts).
- Advising the entire Austrian credit sector (specifically for the Austrian Bankers' Association, the Association of Austrian Savings Banks, the Association of Raiffeisenkassen, the Association of Mortgage Banks and the Association of Austrian Volksbanken-Kreditgenossenschaften) and winning a test case regarding the discrimination of part-time employees through a provision on child allowance in the collective agreement. The case is currently before the ECJ.
- Advising the globally active pharmaceutical company Amgen on various employment law related matters in Austria.
- Extensive legal advice to Johnson & Johnson on employment issues regarding the restructuring and integration of Synthes.
- Advising the leading European healthcare facilities and health tourism company VAMED with respect to individual and collective employment issues, especially concerning collective agreements.
Professional qualifications. Spain, 2000
Areas of practice. Employment.
Leading insurance company. Advising the Spanish subsidiary of one of the world's leading insurance companies on a fraud investigation and the dismissal of its managing director for gross misconduct.
Leading telecommunications company. Representing the company in several disputes before the Spanish employment tribunals.
Major petrochemical company. Advising the company regarding the employment termination agreements of its management team in Spain.
Joint venture between leading insurance and financial services companies. Advising on the employment law aspects on the joint venture.
An e-commerce company. Advising on a wide range of employment matters, including the implications of the spin-off of one of its businesses in Spain.
T +90 212 243 49 28
F +90 212 243 49 38
Professional qualifications. Turkey and Austria
Areas of Practice. Labour; employment.
- Advising an international cosmetics company on employment law matters in terms of its pre-liquidation.
- Advising a major Spanish company on HR policies and employment law.
- Advising a major international chemical group company on transfer of employment agreements subsequent to purchase of business units.
- Advised an international company on collective dismissal.
- Advised a major auto parts supplier company on employees' personal rights subsequent to spin off and division of operations.
CMS Rui Pena & Arnaut
T +351 210 958 161
F +351 210 958 155
Professional qualifications. Portugal, 1995
Areas of practice. Employment; litigation; social security; immigration; pensions.
- Advised a major player in the pharmaceutical sector on four key players in the finance sector on HR restructurings.
- Advised a major Portuguese bank on unprecedented renegotiation of the applicable CBA.
- Advised a major beverage company in the streamlining of its CBAs.
- Assisted a major auto components company in a cross-border merger and demerger.
- Assisted a major transportation company within the framework of a public tender procedure.
CMS United Kingdom
T +44 20 7367 2783
F +44 20 7367 2000
Professional qualifications. UK, 1980
Areas of practice. Employment; commercial; dispute resolution; mediation
- Advising a global manufacturer on a leading case on the enforcement of cross-border restrictive covenants.
- Acting for a global manufacturer in successfully resisting an injunction to prevent a team move.
- Advising one of the UK's largest employers on industrial relations strategy.
- Acting for a leading manufacturer on a trade union application for compulsory recognition.
- Advising on the employment aspects of corporate transactions, outsourcing, restructuring, relocations and changing terms and conditions of employment.
- Defending Royal Mail on a recent leading test case on TUPE at the Court of Appeal.
- Advising the EU on cross-border employment transfers.
- Advising a leading German bank on complex TUPE issues which arose on a merger.
- Co-ordinating advice over most European jurisdictions on different assignments including in relation to proposed pay reductions.
- Acting for an international bank in defending various high court and employment tribunal claims including stress at work and discrimination.
- Advising UK and Irish Banks on bonus payments following the banking crisis.
CMS Czech Republic
T +420 296 798 852
F +420 221 098 000
Professional qualifications. Czech Republic, 2003
Areas of practice. Commercial, employment, data privacy, disputes, anti-corruption.
- Advising an American multinational technology and consulting company (a Fortune 100 company) on complex and ongoing employment law advice in the Czech Republic. This has recently included advice on new employment contracts for managers, termination of employment relationships, contentious employment matters, advice on outsourcing, internal regulations and disciplinary policies, complex employment restructuring of its employees based in the Czech Republic as well as advice on union and employees' representatives' issues.
- Advising a partner in Pet Food CZ on employment law matters in the Czech Republic, including complex preparation and drafting of all employment contracts as well as negotiating the termination of employment relationships.
- Advising Storck Czech Republic on all labour law matters, including working time management and assessment of staff medical fitness, termination of employment and claims arising from alleged job-related illness.
- Advising Mondi on all aspects of Czech employment law, including advice on termination of employment contracts as well as assisting with drafting the management contracts.
- Advising Goodyear on all aspects of Czech employment law, including advice on termination of employment contracts and drafting management contracts.
Ružička Csekes s.r.o. in association with members of CMS
Professional qualifications. Slovakia, 2002
Areas of practice. Employment; corporate crime; anti-corruption; commercial.
Advising the premium cars production giant, BMW, on the temporary assignment of employees by an agency including issues regarding a take-over of agency employees, working conditions and drafting employment agreements.
Advising bauMax on issues related to the transfer of employees in connection with selling real estate owned by a local subsidiary.
Providing legal opinions and statements on:
transfer of rights and obligations from employment relationships;
termination of employment;
breach of the work discipline;
improvement of qualifications;
overtime work procedure;
travel costs compensation;
discriminatory language in labour law;
working time; and
health and safety at work questionnaires.
Advising GSK on several aspects of employment law, including drafting and amending internal regulations (performance, working time, security, vacation and so on), employment contract, full scope of legal advice.
Providing a detailed due diligence for the biggest logistics company who is planning opening and operating a new warehouse (fulfilment centre) in Slovakia, advice related to working conditions, hiring employees, working time and shifts, trade unions, termination, assignment.
Advising local GSK companies in the healthcare industry on implementing the Cyber Security Regulation. This included considering the labour law aspects of monitoring employees and their activities, assessing trade union requirements, implementing a procedure for cyber security monitoring, amending employment contracts and updating of internal regulations.