Is information and consultation a wolf in sheep’s clothing?

Real battle on EU draft directive will be over shape it takes in UK

After months of speculation and rumour, member states reached political
agreement for a "common position" on the General Framework for
Information and Consultation last Monday.

Predictably, the CBI and other employer organisations were disappointed that
the coalition supporting the UK opposition had evaporated, while the TUC
welcomed the agreement. Agreement on this proposal was almost inevitable.

If there is one rule about Brussels and employment law matters, it is that
when the Commission has produced a draft directive, it never goes away. Like
this proposal, it festers on the sidelines awaiting the right moment for
legislative progression.

The text of the General Framework will be finalised in a matter of weeks and
will then be considered by the European Parliament. It has the power to
introduce amendments, which it is likely to do.

A last-minute change to the draft submitted by the Swedish Presidency
involves a special graduated transitional arrangement for those member states
where there is "no general, permanent and statutory system of information
and consultation of employees nor a general permanent and statutory system of
employee representation at the workplace allowing staff to be represented for
the purpose". For this phrase, read the UK, Ireland and Italy.

For these countries, the final directive will apply after three years to
companies with 150 or more employees, after five years to companies with more
than 100 and after seven years for those with more than 50.

HR professionals in smaller companies should not think it will be nearly a
decade before any law comes into force, as it almost inevitable that the
European Parliament will seek to reduce the seven-year timeframe and may well
reintroduce further requirements concerning penalties that were in the original
Commission-drafted text some four years ago.

Allowing for no real difficulties or changes being introduced (which is far
from certain), it is possible this proposal will become a formally adopted
directive by the year end. The pressure will then be at domestic level in the
UK to make sense of the EU text.

Unlike many recent EU employment directives, it will not simply be a matter
of "copying out" the legislation. The current text provides for
member states to define and implement the practical arrangements for
information and consultation and includes that management and staff can
determine arrangement "through negotiated agreements".

This lack of specification is a feature of EU proposals that are contentious
where agreement on a detailed text is unlikely, due to different national
systems.

So the real battle will be in the UK. What shape will the legislation take?
We have a diversity of communication and consultation practice in the UK that
reflects an organisation’s size, structure and culture. There are many examples
of excellent communications practice that on any system of measurement are
successful.

Equally, there are organisations where consultation is non-existent or
meaningless. The straitjacket of "one size fits all" and national
works councils that many commentators fear when they talk about the General
Framework for Information and Consultation will only occur if both the UK
Government and the HR community let it happen.

From now on, considerable attention in the HR press will focus on how this
proposal develops. Whatever happens, the HR community cannot simply wait for
three years or more before seeing what the UK Government intends with regard to
implementation. Ensuring the continuation of existing diverse practices will
require taking the argument to government.

Organisations must familiarise themselves with the terms of the directive
and be aware of amendments that could be introduced.

At the next stage, a review of existing practice will be necessary to
identify both effective and less effective consultation. Developing an action
plan for change will take time. It may also provide benefits not just in the
medium term from enabling an organisation to prepare for change, but from the
fact that a review will throw up issues now.

The EU building where the General Framework for Information and Consultation
was agreed is on the plateau of Kirchberg, a particularly windswept part of
Luxembourg City. In times past, the plateau was populated by sheep. Time will
tell whether this new EU law is a wolf in sheep’s clothing or in reality a
sheep in wolf’s clothing.

By Peter Reid, a European consultant with PRC. PRC is running a nationwide
series of briefings devoted to this issue. For more information contact
Caroline Morgan at PRC by fax on 020-7274 6010 or e.mail: info@PRC-Europe.com

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