Drs. André van DeijkMember of the board of consultingeuropa
The role of the expert in labor relations in the Netherlands
The Dutch systems of labor relations is a two channel system with separate roles for the trade unions and the works councils. Contrary to the practice in many European countries, the link between the two is not necessarily strong: most works councils –not all- have unionized members, but in most cases they are not in the majority. More importantly, unions and works councils each recognize the role of the other and the differences that exist between them.
The main difference is that the unions, by law, carry the responsibility for matters regarding so called primary labor conditions, in most cases laid down in collective agreements that may cover laborers of one specific company or of an entire sector. These agreements typically apply to union members and none-members, because the Minister of Social Affairs has the power to declare an agreement binding for members and none members alike. Unions are also the preferred partner to negotiate social plans that deal with the social consequences of a restructuring. As a matter of fact these plans almost have the judicial status of a collective agreement.
Works councils on the other hand only represent the people working in the enterprise and they only deal with issues regarding that specific enterprise. Which matters they deal with is defined in two articles of the Law on Works Councils, i.e. articles 25 and 27. When items in article 27 (mainly dealing with HR-related issues) are already covered by a collective union agreement, that agreement prevails.
The role of the expert then, revolves around these two articles in the law on works councils and on the law itself, on its application and pursuing conflicts. Before we go into further detail it should be mentioned that the unions of course function as experts too, mostly for their members. Unions do work as experts for works councils, but quite often only where they have a substantial membership. In the majority of cases, experts work for commercial organizations.
As stated, the subjects works councils deal with, are defined in the articles 25 and 27 of the law on works councils. Article 25 deals with management decisions that are potentially of great impact on the enterprise and therefor on the people that work there. Broadly speaking they involve decisions on restructuring, financing and loans, major investments or divestments and matters in the area of mergers and acquisitions etc. Works councils have the right to advise the management before management takes a final decision. In case management does not comply with the conditions the law demands from a “request for advice” and the procedure it involves, or in case the final decision of the management does not meet the conditions of the works council in its advise, the council can go to court.
The subjects dealt with in article 27 typically involve matters regarding the people working in the enterprise and policies dealing with them. Pension plans, job rating systems, reward systems etc. On these matters the works council has a right of consent. Failing to recognize the verdict of the works council also means the council can go to court.
Given these definitions the expert working for a works council typically knows her way around matters dealing with business administration, organizational design and development, business strategy and any such areas of expertise when dealing with “article 25”matters, while experts dealing with “article 27” matters, typically are poised on matters dealing with major HR-themes, including of course strategic HR. And as mentioned before, because of the judicial context of the law on works councils one often sees lawyers working on behalf of works councils.
Although these are fairly complex areas of expertise, most experts are generalists, who know a little about a lot and who combine their general knowledge with one area of true expertise, usually in either an article 25 area or an article 27 area.
Works councils require that their experts help them, not only with the content of the proposed decision they are requested to support, but also with the process of the request for advice or request for consent that is on the table. So the role of the expert requires knowledge about the content as well as feeling for and intricate knowledge of the process and all judicial aspects they involve. Finally the expert role requires creativity to deal with any mishaps that occur.
When it comes to the content the law requires that a request for advice or consent clearly states what measures the management proposes, why they propose them, what the consequences will be for the workers and how they will deal with these consequences through social measures. It follows then that the expert first of all needs to establish that the definition of the problem that management takes measures for, is adequate. Have the right analyses been made and the right conclusions drawn? He or she has to validate that the proposed solution is the best solution for the company and its stakeholder the workforce and that it is a balanced solution and that where social consequences occur, the proposed social plan is dealing with them. In many cases negotiations with the unions have not been finalized at the time of submission of a request, which requires the expert to work with the unions, delaying the advice to facilitate them in their negotiations. Given the higher complexity of organizations, with both internationalization and networking as the two most powerful complicating factors, more often than not the expert has a team of colleagues he or she can draw upon.
On the process side the expert helps the works council to gain and maintain a position. More often than not, due to internationalization, the management that is responsible, is residing in a far away country with local management putting pressure on the council to take a swift decision. Unions tend to put pressure on the council, through their members, to take a decision that is in line with their policies and views and the constituent of the council pressures the council in a position that is in line with their short term interests, whereas the council is required to also look at what is good for the company (as stated in the law).
Finally the council is a council of equals and taking a decision that often hurts part of the constituent of the council is no easy matter. In that role the expert works as a sparring partner for the special committee of the council and the council itself.
In short, in the role of the expert in the two channel Dutch system of labor relations generally is the role of a professional, helping a client (a works council) to validate the proposed management decisions through analysis of data, strategy etc. and to deal with the process both internal (in the council) and external, because of pressure by other stakeholders. Because of the two channel system, with in many cases a limited role for the unions in a works council, experts are quite often not union related.
Maud StéphanCEO of Consultingeuropa
Anticipating change in skills needs, in Labour market developments and in Vocation Education Training
The European Commission started a process five years ago to foster the anticipation of change in skills needs at European level: “New Skills for New Jobs”, launched in December 2008, was later included in the Europe 2020 strategy. Other initiatives followed up amongst them EU Sector skills councils and Skills panorama.*
As the European Commission promotes the setting up of European Sector Skills Councils (ESSC), the European social partners are requested to consider the feasibility of EU sector skills council in their own sector.
Up to now, at mid-year 2013, two Sector skills councils have been officially set-up, the first one in 2011 by European Textile, clothing and Leather social partners and the second one at end of 2012 in Commerce sector.
Consultingeuropa has been involved in these two projects and supported as well two other sectors – Electricity and Chemical – in the feasibility study on EU sector skills councils. The first step indeed is to map national skills bodies as well as relevant stakeholders which deal with occupations, skills anticipation and market prospective in relation to the concerned sector. A national Observatory is an organization that is at least bi-partite or tri-partite working with Public Authorities and social partners.
The second step is to build a network gathering key stakeholders who deal in one way or another with issues relating to the future of jobs, skills needs or qualifications in the sector and contribute to tackling problems of skills mismatch and labour shortages. This stage is the most important and difficult as well as all stakeholders of such a network should find their own interest and added-value in this initiative in order to make it successful. In return they are willing to provide some inputs, to exchange on practices and methods and to drive common work on defined issues.
During the feasibility stage, workshops are arranged with all stakeholders to discuss the interest and the possibilities for creating the network of observatories at European level. What are the key factors to analyse before taking the decision of setting-up an ESSC? What would be the added value of an ESSC?
The first experiences point out a real interest from national skills bodies and social partners. The main expectation and motivation are to learn from others, to exchange practices, knowledge on labour market trend and to understand how other member states are dealing with skills needs and anticipation. An ESSC could bridge the gap between industry and education & training fields. And all agree that an ESSC is a useful tool to improve: skills forecast, transnational mobility, attractiveness and image of the sector.
Most of the European social partners, already committed in this ESSC process, want to go further to the next stage and requested support fro0m the European Commission. We wish them to succeed in this approach and to achieve great advances in the knowledge and anticipation of occupations, mobility and attractiveness of their industry.
To know more about:
Pierre FerracciChairman of Groupe Alpha
With the launch of Consultingeuropa, Groupe Alpha is stepping into a new phase in the involvement in European projects and, more widely, in the support to social partners on labor, employment and skill issues.
At this time of global economic and social crisis, there is an urgent necessity to help social actors in defining solutions on wage, financial, working conditions and many other fronts. Developing social dialogue and strengthening the European social model is more relevant than ever. It is our ambition to help you, trade unions, employer federations, European institutions, in promoting this social dialogue, not only at national level but also at European level.
At this time of crisis, we must also promote tools aimed at developing Workers’s skills. Europe 2020 and the Agenda for new skills and jobs are opportunities that should result in real and concrete actions.
We need to use every means available to us to equip workers for facing labor market challenges, but also to support a sustainable efficiency of organizations, of enterprises.
It seems essential to empower stakeholders on the major issue of lifelong training, with the help of a constructive social dialogue:
a dialogue to be established within businesses on the issue of the training plan;
a dialogue to be organized at local level, by bringing around the table, for example in France, the State, the regions and the social partners for establishing a regional strategy for the development of vocational training. Groupe Alpha is actively involved in meeting this challenge, by assisting some regions in this process and facilitating territorial social dialogue.
a social dialogue at European level, in interaction with public policies. The Sector Councils on Employment and Skills established by European social partners are expected to network national and regional actors and to help forging stronger community of shared practice and experience.
This is also an important area where we engage, with consultingeuropa, by supporting social partners in the establishment of their sector councils.
Prof. Dr. Klaus Kost PCG - Project Consult
Many companies have international partners. Decisions are increasingly taking place in headquarters in foreign countries. Our answer to cross border problems in a globalized economy is “consultingeuropa – for participation and social justice.”
For European advisory services for trade unions and for the support of workers in European works councils, cross-border cooperation between consulting firms is of the highest importance.
Many companies have international partners. Decisions are increasingly taking place at far-away places. The necessity for European cooperation in the context of consulting oriented at the working world is obvious and in urgent need of expansion. In many places, consulting services for employee representatives exist solely in isolated sectors and only in a few cases are such services intensively used.
Our response to this evident deficit of consultation is “consultingeuropa – for participation and social justice”. As part of our consulting services, national differences, manners and peculiarities of all stakeholders are taken into account, because mutual understanding of problem solving methods and approaches is a prerequisite for successful cooperation.
What kind of advice do employees and their representatives need at European level? Almost daily we can see media reports about new restructuring programmes in large European and global corporations – often associated with massive job losses or sales of assets and production sites. These and other changes force trade unions and employees’ representatives to respond operationally at local, national, European and global level. With the help of constructive consulting it is important to formulate, counterproposals in the form of detailed validation checks and constructive suggestions for cost savings beyond the reduction of staff costs.
A European network of labour-oriented consulting services is urgently needed on many levels. The more visibly and more effectively employee representatives want to act; the more they are dependent on expert advice. The transnational cooperation of ,consultingeuropa’ is our contribution to safeguard workers’ interests at European level.
Jean Jacques ParisOffice Manager in Brussels
“Posting of workers” directive
Jean Jacques Paris, while he was working at the european Commission, took part in drafting the “posting workers” directive and bargained with the european institutions.
Jean Jacques Paris gives us a few proposals about the potential review of the “posting of workers” directive. January, 2012
In its 2010 communiqué headed “For a highly competitive social market economy”, the European Commission intended to review the “posting of workers” directive, in particular in the name of social justice suitable for “mobilising all economic players and social partners”.
This review cannot however be limited, as some fear, to a restructuring of the administrative cooperation procedures that the Commission considers to be too complex to enable the proper application of the directive.
The lack of true control measures relating to posted workers
It is less the complexity of the procedures in place which currently cause the inadequate application of community provisions than the lack of true control measures relating to posted workers. Evidence of this is the growing lack of data on the matter, whatever the sector, and this ten years after the adoption of the directive!
Why not just establish new controls, inspired for example by practices in force in the maritime sector where representatives of social partners have the right to draw up reports in the event of any infringement of any social rules applicable to the vessel in question (in particular vessels sailing under a flag of convenience or registered with a second registry)? Why not create a true network of works inspectors making it possible to exchange relevant experiences and information on posting. It is really only the Commission that can bring about such measures.
The proportionality principle should be reviewed
The review of the directive should clearly emphasise respect for mandatory labour rules concerning workers rights having regard to the requirements of the Right to Provide Services, which the ECJ does not appear to accept, in the name of proportionality, in itsLaval and other rulings.
However, this proportionality principle should now take into account the entry into force of the Lisbon treaty, which introduces a horizontal social clause which is intended to affirm the pre-eminence of the social purposes of the policies and actions of the Union. This provision, combined with the EU Charter of Fundamental Rights, should modify the usage of the proportionality principle : it is not a question of merely justifying a social rule in economic terms, but also the implementation of an economic policy in social terms.
For respect of social relation systems in Member states
Finally we should point out that the aforementioned ECJ rulings call into question the system of social relations in place in member states such asSweden, inasmuch as they would not make it possible to extend collective labour agreements to all companies established on their soil: why would they then apply to foreign service providers? Community legislators have sought to remedy these risks of discrimination between companies with relatively complex solutions that should be simplified.
Why not provide, in the reviewed directive, a cover rate (75% for example) of collective agreements after which, in the absence of a generally applicable system (extension), agreements may apply within the context of a posting ?
These proposals may see the light of day in a new legal context thanks to the entry into force of theLisbontreaty, the future in any event being in the hands of social partners and community institutions.