Coronavirus: The Importance of Maintaining Social Dialogue During the Crisis
A high-quality social dialogue in the company implies sustained and regular exchanges between the employer and the employee representatives, which was made particularly difficult by the health crisis linked to Covid-19. More than ever, employee representatives must be the bridge between the company's management and the employees, a means of maintaining the link, especially when the workforce is fragmented due to extensive remote working.
Although a certain deterioration in the quality of social dialogue seems to be unanimous, this statement should however be put in context: most of the countries have not called into question any of the rights belonging to the employee representatives, on the contrary, the countries have adapted certain rules to enable the employee representatives in the company to carry out their missions. The European legislators have not altered the prerogatives of the employee representative bodies, whose principles remain intact, particularly when it comes to the fact that they must be consulted prior to the employer's final decision. That applies with a few exceptions, such as in the United Kingdom, where the principle of prior consultation has never existed, the employer being able to proceed with the implementation of the project as soon as he has provided adequate information to the employee representatives. At the other end of the spectrum, in Germany, the principle of prior consultation applies in theory even in cases of emergency and even if it concerns a decision for which the employer must obtain a positive opinion from the employee representatives (co-determination). In France, this principle of prior consultation has not been called into question either, although the health crisis has imposed certain temporary adjustments: the opinion of the employee representatives may be obtained after the employer's decision on a partial activity application or on the implementation of a system imposing the compulsory use of paid leave or rest days.
Measures were also adopted, where they were necessary, to maintain social dialogue during the period of confinement: the relaxation of certain formalities is remarkable, as in France or Germany in the area of videoconferencing or audioconferencing, France even went so far as to admit, albeit in a subsidiary manner, the use of “instant messaging”. In the Netherlands or the United Kingdom, there was no provision imposing physical meetings, so that videoconferencing has naturally become the norm. Finally, in Spain, no difficulties were encountered in this respect. Generally speaking, with the notable exception of Italy, very few countries have chosen to prohibit physical meetings, which are only discouraged. As to professional elections, the solutions vary. While Spain and France, for example, have suspended the electoral processes, the United Kingdom has not, probably because the secrecy of the vote is only imposed “so far as reasonably practicable”.
The challenges are shifting quickly and the time has already come to move beyond the “minimalist” solution to the mere maintenance of social dialogue and to transform it into an effective tool for managing the economic and social consequences of the health crisis
The challenges are shifting quickly and the time has already come to move beyond the “minimalist” solution to the mere maintenance of social dialogue and to transform it into an effective tool for managing the economic and social consequences of the health crisis... It has now become urgent to deal with the economic crisis: social dialogue could be a useful factor in kick-starting economic growth. This is notably the case in France, where the legislator has already adopted provisions reducing the time limits applicable for consultation of the CSE from 3 May 2020 until 23 August 2020 for all consultations on the employer's decisions to deal with the Covid-19. Spain has also adopted provisions to this effect. This trend to combine social dialogue with the requirement of economic recovery is likely to grow in the upcoming weeks.
How should and information / consultation process be conducted during the lockdown period? More precisely, how should opinions be gathered? Can the Works Council give its opinion after the implementation of measures aiming to deal with the Covid-19 pandemic?
The current restrictions in the UK would make in-person employee consultation meetings difficult (but not impossible) to implement. Depending on the total number of employee representatives, consultation meetings could potentially still go ahead in person, but appropriate safeguards would need to be put in place (for example, to maintain social distancing). There is however no requirement under any of the applicable legislation that consultation meetings take place face to face. Although this is the preferable approach where circumstances allow, there is also an established practice of using phone or video conference for consultation meetings, for example where employee representatives are spread across a large geographical area or there are logistical difficulties with finding a venue big enough for all representatives. This is the approach we are seeing many UK employers take for employee consultation processes during the COVID-19 lockdown.
Large-scale consultations could also be run as multiple small meetings, with subgroups of the total number of employee representatives
Large-scale consultations could also be run as multiple small meetings, with subgroups of the total number of employee representatives. This would be beneficial both for in-person meetings (to aid social distancing) and for virtual meetings (to enable more effective use of the technology). However, the employer would need to take steps to ensure that the collective nature of the consultation is not affected, for example by ensuring that questions arising from each subgroup are collated and circulated to all representatives. Although the legal position is not entirely clear, the prevailing view seems to be that furloughed employees can take part in employee consultation processes, and in doing so will not breach the requirement not to undertake any work during furlough. In terms of voting procedure to elect employee representatives, most of the legislation requires that “so far as reasonably practicable”, voting should be done in secret. This would normally be achieved by either a workplace ballot (where employees vote in person), or a postal ballot. In the context of the COVID-19 outbreak, some employers are making use of online portals to enable employees to cast their votes (provided that the portal is suitably secure). Works councils are far less common in the UK than in other European jurisdictions. Provided that the employer has given the works council the necessary information on its proposals and engaged in the required consultation process, the employer is not required to wait for an opinion from the works council before taking and implementing its decision.
Ordinance No. 2020-389 of April 1, 2020 provides for the relaxation of the rules governing the organization of CSE (“Works Council”) meetings. Contrary to the rules of ordinary law, the use of videoconferencing or telephone meetings is authorized, as long as the members of the CSE have been informed that this will be possible for all of the meetings taking place during the Covid-19 crisis. If it is not possible to hold a meeting by videoconference or telephone, or if a collective agreement so provides, the meeting may be held by instant messaging (“chat” like Whatsapp). A Decree of April 12th provides for some rules framing this uncommon possibility, as for instance that the employer specifies to the members by instant messaging when the meeting starts and when it will end (earliest possible closure).
While physical meetings have not been formally prohibited, it is strongly advised to do otherwise.
Finally, any electoral processes are suspended and the current terms of office held by employees will be extended for a period of up to 3 months after the end of the health crisis.
Apart from the case where a secret vote is required by a legal provision or by a collective agreement, a show of hands is allowed under French law (for example in case of videoconferences).
In any case, it is strongly advised to keep a written record of the vote or to obtain the validation of the vote by e-mail from the Works Council secretary. When an instant messaging system is used, electronic surveys could prove to be useful. If a secret vote is required, the voting device must ensure that the identity of the voter cannot at any time be linked to the vote that was cast. Where voting is organized by electronic means, the system must ensure the confidentiality of the data that is sent and the security of the means of authentication, as well as the issuing, recording and counting of votes. In principle, the Works Council must still give its opinion before any decision can be made by the employer. However, if the situation is urgent, the employer can take precautionary measures related to work organization before consulting with the Works Council. If the employer imposes paid leave or time off (“RTT” days) on the employees, the Works Council’s opinion may be gathered within one month after the measure has been implemented.
As from 3 May 2020 and until 23 August 2020, various regulations provide for a reduction of the time limits applicable to consultation procedures (i.e., depending on the circumstances, the time limits for communicating the agenda of the meeting to the CSE are reduced to 3 or 2 days, the time limits for consultation are reduced to 8, 11 or 12 days, and the time limits applicable to experts opinions are reduced to 24 or 48 hours) as long as the information or consultation of the CSE relates to employer's decisions aiming to deal with the economic, financial and social consequences of the spread of the Covid-19 epidemic.
Because of the extremely broad definition of decisions covered by the reduction of consultation time limits (i.e., “decisions of the employer which aim to deal with the economic, financial and social consequences of the spread of the Covid-19 epidemic”), the exact scope of the consultations affected by these measures remains uncertain and will have to be assessed on a case-by-case basis. In any event, consultations conducted in the event of a redundancy plan (“PSE”), for the signature of a collective performance agreement, as well as all recurrent consultations (strategic orientations, economic and financial situation, social policy and working conditions) are expressly excluded from the time limits reductions.
Prior to the lockdown due to the Covid-19 pandemic, for many employee representative bodies the basic principle was that resolutions had to be adopted in physical meetings.On 24 April 2020, the German parliament passed a new law amending the German Works Constitution Act and other provisions relevant for the rights of employee representative bodies. According to the new law, participation in works council meetings as well as the adoption of works council resolutions can be carried out via video and telephone conference, if the following requirements are met:
- It must be ensured that third parties cannot take note of the content of the meeting. To ensure this, appropriate technical and organisational measures must be taken, such as encryption of the connection and the use of a non-public area for the duration of the meeting. The works council will have to carefully document both the encryption of the connection and the non-public nature of the meeting, in order to be able to demonstrate proper decision-making in case of a dispute.
- The participants must confirm their presence to the chairperson in text form.
- A recording of the virtually conducted works council meetings is not permitted.
The above regulations apply accordingly to meetings of the economic committee (Wirtschaftsausschuss) and the conciliation body (Einigungsstelle). In addition, almost identical provisions will be in place for other employee representative bodies such as the employee representative body for executive employees (Sprecherausschuss), the European works council, the special negotiating body of the European works council, as well as the SE-works council and the SCE-works council. However, the new rules do neither apply to the special negotiating body of an SE or SCE nor to employee participation in cross-boarder mergers. Workforce meetings (Betriebsversammlungen) can also be held in audio-visual form if it is ensured that only persons entitled to participate can take note of the content of the meeting, whereby a recording is also not permitted.
The new law shall enter into force retroactively from 1 March 2020 and apply until 31 December 2020. The law must still be published in the Federal Law Gazette (Bundesgesetzblatt) (which is likely to happen on 4 May 2020) before it can come into force. Even though physical meetings are not expressly prohibited, it is recommended that employee representative bodies meet via telephone or video conference once the new law is in force. So far, no special provisions for electoral processes have been adopted in Germany.
Unless a works council member requests otherwise, the works council’s voting procedures are in principle open and not secret. This rule has not been changed due to the Covid-19 pandemic. The works council has a general obligation to keep all trade or business secrets of the company confidential. In order to ensure confidentiality in telephone or video conference meetings, such meetings are only permitted if appropriate technical and organisational measures are taken so that third parties cannot take note of the meeting’s content. Under German law, the employer must inform/consult with the works council timely in advance before the employer makes any decisions or takes any measures which require works council involvement. Where the works council has a true co-determination right, i.e. where the works council’s consent is required, such consent must also be obtained before the employer implements the planned measure. Depending on the intended measure, specific deadlines may apply. These rules concerning timely information/consultation and co-determination of the works council have not been changed due to the Covid-19 pandemic. As a result, even in urgent matters (e.g., the implementation of short-time work), the employer must inform and consult with the works council or, where the measure triggers a co-determination right of the works council, even come to an agreement with the works council before implementing the measure.
During Covid-19 health crisis, the general principle introduced by the “emergency legislation” is to avoid any gathering (Art. 1 lett. D of Prime Minister Decree of 26 Apr. 2020). In line with this general principle, the national protocol providing for the general safety measures to be adopted by all employers during the Covid-19 crisis - which has been signed by all main unions, is referred to in Prime Minister Decree of 26 April and is thus mandatory - includes, among others, the prohibition to hold “physical” meetings, that should be held remotely or by videoconference instead, except for particular emergencies (in which case the number of participants should nevertheless be limited).
These general principles should consistently apply to union meetings.
A provision specifically requiring a “telematic” consultation had been introduced only with reference to union consultation procedures to be carried out for the purpose of applying for the special Covid lay-off funds, (Law Decree No. 18/2020). However, this particular consultation procedure is no longer required (as it has been subsequently abolished by Law No. 27/2020). As concerns union electoral processes, in Italy these are not regulated by national legislation, nor has any specific rule been issued within the Covid emergency. That being said, analyzing the practice followed in the last weeks (based on information publicly available), it appears that:
- in some cases elections for the renewal of trade union representatives were carried out remotely despite the emergency;
- in other cases, certain trade unions asked to suspend the elections in order to carry them out “physically” when this will again be possible.
In the Italian industrial relations system, generally speaking, unions are not required or entitled to provide “opinions” on organization measures to be mandatorily taken by the employer (they only have “veto” rights in certain very specific and limited situations).
Obviously, prior union consultation procedures are required in several cases (collective dismissals, transfer of business, etc.), but reaching an agreement with the unions generally is not a legal precondition to implement the final decision.
That being said, whenever an agreement is reached with unions, unions express their will as a “body”, while the voting process that leads to the decision of signing the agreement is an internal matter of the unions (which is not governed by national legislation nor in any way supervised or controlled by the employer).
The Dutch Works Councils Act ("WCA") does not provide for specific rules on how works council meetings should take place. This is primarily a matter governed by the by-laws, which are drawn up by the works council in conjunction with the company. In general, the use of (e.g.) videoconferencing and telephone meetings will not be excluded in the works council by-laws, enabling meetings to take place in this way during the Covid-19 crisis. In any case, it is advised that the company and the works council make clear and written arrangements on how the proper application of the WCA within the company will be safeguarded during the Covid-19 crisis. In general, the company should make the necessary facilities available to the works council, enabling the works council to perform its duties properly. The general advise of the Dutch government is to work from home as much as possible. People should only go to work if they cannot work from home. In principle, all work meetings are prohibited until 20 May 2020. The only meetings excluded from this prohibition are meetings that are necessary for the continuation of the daily business of companies and other institutions. These meetings may, however, only take place if (i) certain hygiene measures are observed and (ii) if it is possible for the participants of the meeting to keep a distance of at least 1.5 metres. Under certain special circumstances, a works council meeting could be considered necessary for the continuation of the daily business. However, in general it will be strongly advised to have works council meetings by way of videoconferencing or telephone. Finally, the WCA does not provide for rules on the suspension of electoral processes. In principle, the term of office of the works council expires by operation of law in accordance with the works council by-laws. However, as it is currently likely not possible to organise elections in a proper and careful manner due to restrictive measures, we suggest that, in case of the expiry of the term of a works council, the company and the acting/former works council make clear and written arrangements on, for example, the extension of the term of office to ensure the proper application of the WCA within the company, during the Covid-19 crisis.
The organization of works council meetings is primarily governed by the works council by-laws. This also applies to the voting procedure. The by-laws may stipulate that certain decisions require a secret vote. Except for secret votes, a show of hands or a clear 'for' or 'against' should, in general, be sufficient to make up the vote (for example in case of videoconferences or telephone meetings). In any case, works councils normally keep a written record of the outcome of the vote (e.g. in their minutes). The voting within the works council is generally considered as an internal works council matter. The works council will inform the company in writing of its decision/advice. Finally, the works council must still render its advice (article 25 WCA) or give its consent (article 27 WCA) on a contemplated decision before certain decisions can be made by the employer. However, these processes are often time-consuming. It is obvious that, during the Covid-19 crisis, some decisions do not tolerate any unnecessary delay. It is quite common that the company and the works council make arrangements about the timing of the advice or consent procedure, and that a date is agreed on which the works council will ultimately render its decision (i.e. render an advice or decide on a request for consent). During the Covid-19 crisis, it may become even more relevant to agree upon such procedural arrangements with the works council in respect of certain urgent matters.
Although physical meetings are allowed during the lockdown for the compliance of social dialogue, in practice, videoconferences or phone-based meetings are now the general rule to conduct the negotiations that are taking place during this period and no relevant problems have arisen. Unions and works council have been cooperative in this regard so far. In addition, electoral processes have been suspended in all cases. Minutes of meetings with unions and works councils are usually drafted under normal circumstances and this practice has not changed during this period: in other words, the parties are also drafting minutes of the meetings held via phone or video. Although some companies have implemented digital signatures for their employees (so each participant is able to digitally sign the minute), if this is not possible, labour authorities are accepting communications via email as a valid method to confirm that the works council agrees with the minute of the meeting (including any agreement reached during that meeting). Some companies have opted to record the meetings, but this is not a general practice at this time and requires the consent of all the participants. Under Spanish law, no secret vote is required, so this is not an issue. In connection with consultation obligations, the only changes introduced by new regulations affect to some terms (that have been shortened), but the companies need to consult in advance with works council and unions in the same cases that before the state of alarm.
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