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The new Law 10/2011 introduces significant amendments to the wording of former legislation on European Works Councils (EWC) and, more specifically, adds new provisions. As included in the Preamble, its purpose is to “advance in the objectives of information and consultation of workers in Community-scale undertakings and groups of undertakings providing real and effective existence to these processes…”

Comment writter by Ricardo Rodriguez Contreras, Labour Asociados

Spanish Law 10/2011 of 19 May, amending earlier legislation (Law 10/1997) on the rights of information and consultation of workers in Community-scale undertakings and Community-scale groups of undertakings, has been recently published in the National Official Journal, on 20 May 2011. The Spanish government thereby complies, by a couple of weeks, with the deadline (5 June 2011) set for transposition into national legislation of the recast Directive 2009/38/EC.
The social partners were consulted in the Draft Law proceedings. Several amendments, some of a formal nature and some of law, were discussed by the political groups in parliament; in particular, one presented by the Popular Group (conservative) which requested an enlargement of the exception criteria from the scope of implementation to cover more agreements (and undertakings).

The purpose to achieve greater effectiveness in the establishment and functioning of the EWC is reflected in the incorporation of new definitions for information and consultation, harmonised with regard to other European regulations such as Directive 2001/86/EC on the Statute of a European company, or Framework Directive 2002/14/EC amongst others, so that these rights are exercised suitably and on time, and prior to the undertakings’ management making decisions.
With the new legislation, the content of the information to be processed must guarantee its effectiveness and must allow workers’ representatives to carry out a detailed assessment of impact and, given the case, prepare consultation. The latter is characterised by establishing a dialogue and exchange of opinions that makes it possible to issue a decision within a reasonable time frame, so that it may be taken into account by the undertaking or group of undertakings.
According to the new law, transnational issues on which the EWC or an equivalent body may intervene are defined as those which affect the undertaking or group of undertakings as a whole, or at least two undertakings or establishments located in two different member states.
The transposition incorporates the procedural norms established in Directive 2009/38/EC, confirming, for instance, the responsibility of the local undertaking’s management to obtain and transmit essential information to start negotiations, especially with regard to the undertaking’s or group of undertaking’s structure and its staff, as pointed out by the sentences of the European Court of Justice.
New guarantees for the special negotiation body are also specified: for instance, the right to meet before and after each meeting with central management -and not only before as formerly regulated- and without the presence of the latter. Similarly, advice and assistance from experts chosen by the negotiation body, of a consultative nature towards the negotiation meetings, is also made possible.
The relevance of the content of the agreement to establish the EWC is strengthened by establishing that it must necessarily include certain elements such as the agreement’s date of entry into force, its duration, modalities to report or amend it, and when and how it must be renegotiated, especially when changes take place in the structure of the undertaking or group of undertakings.
The implementation of a proportional system is established with regard to the composition of the special negotiation body and the EWC: for each member state there must be one member for every group of workers employed in the member state representing 10 per cent of the workers employed in all member states overall. However, it guarantees that workers located in any member state have at least one representative, regardless of whether or not they meet the percentage requirement.
The establishment of a restricted council of the EWC is also compulsory, with no more than five members and with the means necessary to exercise their regular activity.
The topics on which information and consultation –and not only analysis as in the former regulation- must be carried out are listed expressly (the situation and probable trend of employment, investments, substantial changes concerning organisation, closures or transfer of production, collective redundancies). The EWC is also entitled to meet, at their request, with central management or any other, more suitable level of management in the undertaking or group of undertakings with the competence to make its own decisions, with the aim to receive information on these topics and to be consulted on them.
On the other hand, no substantial advances are made in the right of the members of the negotiation body and the EWC to receive training regarding their representative function: except for stipulating that it will be carried out “without loss of wages”, it is up to the autonomy of negotiation between the parties and a vague “in so far as this is necessary”.
As established in the Directive 2009/38/EC, the members of the EWC are obliged to inform workers’ representatives in the undertakings or establishments of the content and result of the information and consultation processes, safeguarding the duty of confidentiality.
Coherence and coordination between the Community and national spheres is solved by specifying that information and consultation will be carried out simultaneously both in the EWC and the national body or bodies of representation; that is, through a respectful articulation of the competences of each.
In the case that no provisions exist in current agreements or in the case of a conflict of interpretation, Law 10/2011 incorporates a novel procedure to be followed in the establishment of a new EWC when relevant changes take place in the structure of the undertaking or group of undertakings whose central management is located in Spain.