Published on: July 22, 2021
Authors: Tom Hayes
Topics: The UK and European Union
Article 5 of the 1994 EWC directive provides that a Special Negotiating Body (SNB) must be set up in order to negotiate the establishment of a European Works Council or an information and consultation procedure., if either management initiates the procedures or if management receive a written request from at least 100 employees or their representatives spread across at least 2 EU Member States.
Article 5, paragraph 2, details how the SNB should be constituted:
The Member States shall determine the method to be used for the election or appointment of the members of the special negotiating body who are to be elected or appointed in their territories. Member States shall provide that employees in undertakings and/or establishments in which there are no employees' representatives through no fault of their own have the right to elect or appoint members of the special negotiating body“.
In other words, the Directive gives individual EU Member States a good deal of latitude regarding mechanisms for designating members of the SNB. This led to a variety of nomination/selection/election methods reflecting the variety of worker representation traditions to be found across Europe.
Members of the SNB are appointed by a decision of the group/central or establishment-level works councils by a simple majority vote. Such decision requires the presence of at least half of the members of the works council.
Fallback 1: If, in a group of companies or in a single company, several central works councils or several establishment-level works councils exist, the chairman of the central works council or of the establishment-level works council with the largest number of employees should convene a meeting of all the relevant works council bodies to jointly agree on the appointment of the members of the SNB or EWC.
Fallback 2: If, in addition to one or more central works councils, there also exist at least one (establishment-level) works council which is not represented on any central works council, the chairpersons of the works councils and their deputies shall be invited to the meeting at which representatives on the SNB will be elected/appointed.
Members of the SNB are appointed by and from among the employees‘representatives who are members of the works councils on the basis of a unanimous agreement. If no agreement is reached, the works councils vote and the candidate with the majority of the votes is then appointed.
Fallback 1: In the absence of a works council, the member(s) of the SNB are appointed by the members of the workplace health and safety committees on the basis of an agreement. If no agreement is reached then the committees vote and the candidate with the majority of the votes is appointed.
Fallback 2: In the absence of a works council and a workplace health and safety committee, trade union delegations in the plant or companies may be authorised to designate the members of the SNB.
Fallback 3: Should none of the above apply an election will take place at company level to elect the SNB members.
- SNB members are elected in the first instance by a general assembly of all employees in the company.
- However, the general assembly may also decide to concede the functions of SNB organisations or to employee representatives who may have been previously elected for the purpose of information and consultation by a two-thirds majority of the employees in a general assembly.
Croatian members of the special negotiating body (SNB) for an EWC are elected by the employees of the company involved in a secret ballot. The candidates can be proposed either by trade unions with members in the company concerned, or by a group of at least 10% of the employees. The primary legislation does not specify whether or not SNB members must be employees of the company.
- If there is one or more trade unions in a company, then they will elect the SNB members on behalf of the employees they organise. Employees who are not members of a trade union will be represented by the trade union with the largest number of members, unless they decide otherwise.
- If the absence of a trade union, the members of the SNB are appointed from among the employees‘ representatives at a joint meeting.
- If there are no employee representatives or if they fail to carry out their functions in a company, then employees of the company may elect representatives who will participate in a joint meeting to elect one or more members of the SNB.
- In the first instance, the members of the SNB are elected from among the employees by the employees‘ representatives on the works councils (—co-operation committee“). Members of the works councils are usually trade union members.
- In the absence of a works council, the members of the SNB shall be elected by the shop-stewards or, if agreed, between the management and the employees‘ representatives.
- Otherwise, the members of the SNB are elected by all the employees.
Finnish law provides that the members of the SNB are appointed on the basis of an agreement among the employees‘representatives (usually among trade union delegates in the company).
However, with regard to the designation of EWC members, the law gives some latitude to employees to decide whether they want to appoint their representatives on the basis of an agreement or elect them.
If no agreement is reached then the election is held by the —“industrial safety delegates” in the company.
- Members of the SNB and EWC are primarily appointed by the employees‘ trade union organisations from among their members elected to the works council of the company or the plant/establishment, or among trade union representatives in the group on the basis of the results of the most recent elections.
- Seats on the SNB or EWC are distributed among electoral bodies (blue-collar/whitecollar) in proportion to the numerical size of each.
- In the absence of a trade union organisation in the company or the group, elections are held in the company.
The most encompassing level of the works council structure has the responsibility to nominate SNB and EWC members: a/ If there is a group works council covering several sites and company holdings within the country, it is this body which will appoint members of the SNB and EWC on behalf of all sites. b/ If there is a central works council covering several sites, then it is this body which will appoint members of the SNB and EWC on behalf of all sites. c/ If there is only one site in Germany, then members of the local works council shall appoint the members of the SNB and EWC.
Fallback 1: However if, in the case of groups of undertakings, some works councils or central works councils are not represented in the group works council, then the chairpersons and deputies of the unrepresented works councils are deemed to be members of the group works council and take part in the appointment of the members of the SNB and EWC.
Fallback 2: in the case of groups of undertakings, there is no group works council, but if:
- there is more than one central works council, the members of the SNB are then appointed at a joint meeting of all the central works councils.
- a local works council is not represented in the central works councils, then the chairperson and his/her deputy should be included in the central works council and take part in the appointment of the members of the SNB/EWC.
- there are several works councils, the members of the SNB and EWC will be appointed at a joint meeting of the works councils.
Greek members of the special negotiating body (SNB) are chosen in the following order of priority: by trade union organisations, by the works council, or, as a last resort, by a ballot of all employees. The legislation does not specify whether or not the individuals must be employees of the company.
The designation of the SNB or EWC members representing employees takes place either:
- In the first instance, jointly by all central works councils (if several of these exist),
- or by the central works council (if there is only one),
- or by the establishment/plant-level works council (if there is no central works council).
- Should none of the above representation structures exist, but where trade unions are present, the trade unions initiate the setting up of an election committee to elect the EWC representatives.
- Where no trade unions or other representation structures exist, employees have to set up an election committee whose members will organise a secret ballot for the election of EWC members.
In accordance with article 5, §2 of directive 94/45/EC, Hungarian law suggests that the designation of SNB or EWC members offers an opportunity to set up works councils or central works councils in order to ensure the representation of workers‘ interests at national level too, i.e. within companies that had not established such structures before.
Irish members of the special negotiating body (SNB) for an EWC are either elected by the employees; or appointed by the employees; appointed by central management on a basis agreed with the employees. Both employees and full-time trade union officials can be chosen
- Members of the SNB are appointed by the trade union organisations that are signatories to the national collective labour agreement applying in the multinational company or group concerned and by a joint trade union body in the company.
- In the absence of trade union representation in the plant/establishment or company, the trade union organisations that have signed the relevant national collective agreement should agree with the management on the procedure for the participation of the employees from that plant or company in the appointment of the representatives of the SNB.
In the metalworking sector however, the practice is as follows: SNB and EWC members are chosen from among the union representatives at the workplace. The three Italian union federations have agreed on a procedure to nominate SNB and EWC members according to the level of membership. For example, if three members are to be appointed to the SNB or EWC for Italy, then each organization will appoint one member. Should only two members have to be appointed, then the largest organisation in terms of membership in the company can appoint its member and the second seat will be appointed on a rotational basis by the other two organisations
- If a group works council exists, then it is this body whose members will elect members the SNB or EWC members.
- If there is no group works council, but a central works council, then the latter will appoint the members of the SNB or EWC.
- If no central works council exists, then the designation will take place at works council level.
In order to ensure that all the employees‘ representatives of a company participate in the designation of members of the SNB or EWC, the law also foresees that whenever a plant/ establishment works council of a company or a group is not represented at the higher level, i.e. in a central or group works council, the designation of the members of the SNB or EWC will take place at a joint meeting of all the company‘s existing works council bodies.
If no works council structure has been set up at all, then employees will elect their SNB and EWC representatives by secret ballot.
The national agreement on the establishment of European Works Councils provides that members of the SNB and EWC are elected by secret ballot by all employees of the company under the direction and supervision of the shop-stewards.
- Members of the SNB or EWC are appointed by a representative local trade union organisation.
- In the absence of any such trade union organisation, members of the SNB and EWC should be elected by the employees directly.
In companies where there is more than one trade union organisation:
- the trade union organisations shall jointly appoint members of the SNB;
- should no agreement be reached by the trade union organisations, employees shall elect members of the SNB and EWC from the candidates proposed by such organisations. Candidates will be elected by a simple majority vote.
The election is only valid if more than 50% of the workforce participates.
Portuguese law proposes two modes of workers‘ representation since it provides that:
- Members of the SNB and EWC are appointed by an agreement between the employees‘ committee and the representative trade union organisations.
- In the absence of an agreement, employees‘ representatives are elected from among the proposed candidates by a direct, secret ballot.
Romanian members of the special negotiating body (SNB) for an EWC are appointed by the existing employees’ representatives. These are defined in the legislation as the trade union representatives, unless there is no union, in which case employees have a right to elect individuals to represent their interests. If there are no existing employees’ representatives – either trade unionists or others – Romanian employees can elect the Romanian members of the SNB directly.
- The members of the SNB and EWC are appointed by employee representatives (they can either be trade union representatives or works council representatives) as a result of a joint negotiation.
- In the absence of employee representatives, employees elect representatives to participate in the joint negotiations on their behalf.
The distribution of votes in such joint negotiations shall be determined on a pro rata basis according to the number of employees represented in the plant/company.
The Slovenian European Works Councils Act provide that SNB and EWC members are directly elected by all the employees of a company by a secret ballot.
The law further specifies that representative trade unions within the undertaking shall have the right to propose candidates for membership of the SNB and EWC.
- Members of the SNB and EWC are appointed on the basis of a majority decision taken by trade union organisations which, as a whole, represent a majority of the members of the works council or staff representatives.
- The law specifies that in the case of the EWC, the appointed member must either be a works council member, a trade union representative or a staff representative in the company.
- SNB and EWC members are appointed by the local trade union organisations which are bound by collective bargaining agreements to the multinational company or group concerned.
- Where several local employees‘ organisations are bound by collective bargaining agreements, the local employees‘ organisation which represents the largest number of employees in the multinational company/group is entitled to appoint the first member of the SNB or the EWC.
- If the employees‘ organisation represents more than four-fifths of the employees in the company, then that organisation can appoint all the SNB/EWC members.
- If no organisation represents more than four-fifths of the employees, the two local employees' organisations which represent the largest number of employees may appoint one member each and one deputy member.