For a more rational comprehension of the topic, we can distinguish between individual dismissals and collective redundancies, as far as worker's representatives participation in the procedure does not play the same role in both cases.
INDIVIDUAL DISMISSALS.
The role of worker's representatives in case of individual dismissal varies quite a lot from country to country:
- In France, the worker's representatives do not play any role at all in individual dismissals.
- In Italy and United Kingdom a marginal role is played by worker's representatives. In fact, in these two countries the employee can ask for assistance in case of disciplinary dismissal. And only in U.K., and just for redundancy, this assistance can be asked when the criteria for choosing the workers to be sacked are not fairly applied.
- Regarding spanish system, worker's representatives have the right to be heard by the employer before the dismissal takes place, but only when a member of the worker's representation is going to be affected by the employer's decision.
- Finally, in Germany the Workers Council has the right to be informed and heard when an individual dismissal in planned, having even the power to oppose it.
?This quick reference to the national legislations is sufficient to put in evidence the marginal role played by worker's representatives in individual dismissals. This reality could be explained by the fact that normally in individual dismissals only an individual interest is concerned.
But, what interests have national laws tried to protect when contemplates the participation of worker's representatives in these cases?
We have found at least two different aims of national laws in such cases. The different national laws have pretended:
- either to force the employer to hear someone before adopting the decision, and in so doing establish some kind of control over the employer's managerial power,
- or to avoid a discriminatory dismissal (as could be the case of Spanish law, that pretends to protect those who hold the worker's representation against dismissals decided because of their role as worker's representatives).
Finally is interesting to point out that in the German legal system the worker's representatives are more involved in the individual dismissal than in the other countries analysed. That happens just because one of the main principles of German labour law is the representative right of co-determination which means that Work Councils have the right to participate in several aspects of the enterprise's life.
COLLECTIVE REDUNDANCIES.
Regarding collective redundancies, the main question to answer deals about the aim of national law when tries to inforce worker's representatives participation in dismissal procedures, and if the different laws reaches this objective.
The answer about the question of the aims prosecuted by nationals laws is found in the EC Directive 75/129. This document is clear enough when it says that the aim of legislative intervention is that of re-inforce worker's protection in cases of collective redundancies in order to obtain a balanced economical and social development within the Community.
How it is carried out by national laws has been the main topic of discussion in our group. For doing that we have focussed on the following points:
- Actors involved.
- Procedure.
- Consequences of breaching the procedure.
Actors involved.
Obviously the question of who is going to participate relays on the fact of the organization of worker's representation in the enterprise in the different national laws (if it is only recognised a single channel or a double channel).
We have advertised three completely different models:
a).- Exclusive intervention of elected worker's representatives. This is the case of Germany and France. But we have to take into account that in France trade unions could participate by reaching an agreement about the so-called Social Plan (necessary in enterprises of 50 or more employees). This means that elected representatives have the right to be informed and consulted, but that trade unions can negotiate with the employer all the questions about the redundancy decision (measures to adopt in order to improve worker's situation, amount of people to be affected, etc.).
b).- Main intervention of trade unions. This is nowadays the model in Italy, where the main intervention is in hand of the trade unions representation in the enterprise (the R.S.A.) -even if there is also a role played by the trade union representation at local level-. Anyway, maybe in the next future the role of elective representation could be increased.
c).- For Spain and The United Kingdom, the participation could be in hands both of the trade union's representatives or of the elective representatives.
It means, in practice, that the employer has the right to choose the representation to deal with. This could be certainly said in U.K. system but not completely in Spanish system. The reason can be found in the rules set by the "Estatuto de los Trabajadores" about the achievement of agreements in the procedure of consultation with the worker's representatives.
Spanish labour law requires, in case of agreement with the trade union representation, that the trade union represents the majority of members of the elected representation (in those elected representation there is a strong presence of the trade unions as the lists for the balloting are normally presented by the differents trade unions).
Whether or not the question of the subject to be consulted is relevant for the aim of the legislation depends on the fact that the elective representation could be in someway under employer's control (mainly in small enterprises where the employer could influence the workforce and indirectly choose his representatives).
But this problem is not exclusive of elective representatives as far as the peculiarity of U.K. system risks that the employer could design the union he is going to deal with (it must be remembered that British employers have the right of recognise and de-recognaize trade unions in his establishment, and this could be and important factor in order to get the control of trade unions by the employer).
Another important question about this point is what happens if there is not any kind of worker's representation in the enterprise.
Spanish, German and French systems do not contemplates this question, so the Courts normally does not require this proceedings because of the inexistence of representatives to be consulted.
On the other hand, Italian and British systems do contemplates this circumstance.
Italian law establishes the intervention at local level in such cases. It is the trade union at local level that has to be consulted and informed about the collective redundancy, taking the place of worker's representatives at the enterprise.
The option of British law is completely different. After a decision of the European Court banding the U.K. for not applying correctively the E.C. Directive 75/129, British law encourage the employer to deal with an ad hoc representation.
Anyway, as we are going to see, the British law does not guarantee completely worker's protection in those cases.
Some questions about the procedure.
It is true that only when legislations reassures a counterpart to deal with, worker's protection in case of collective redundancies could be achieved. But there is not only the need of a counterpart. It is also necessary that the intervention of worker's representatives could be effective as a preventive measure regarding employer's decision.
Here is where the U.K. system shows its weakness: as far as the election of these ad hoc representatives is going to take its time (after the employer has decided about the need of a collective redundancy, he should open a balloting period, so the election of this representatives would be quite delayed), that means that when the employer is able to negotiate with the worker's representation the employer's decision is going to be already taken. So few possibilities of influence can be exercise by worker's representatives in these cases.
The problem of the preventive effect of the procedure in collective redundancies has been object of a major protection in France. French law requires that the employer motivate his decline to the worker's representatives proposals done in the consultation period. Obviously that means higher protection than in the other countries where there is only the need of negotiate in good faith.
Consequences of breaching the procedure.
Finally there is the need of exam the consequences for not following the procedure. The common reaction of legislation consists in declaring the redundancy null and void. But French law adds another important way of reassuring the effectiveness of the procedure: French law gives the Works Council the power to bring a claim before the Tribunals and make the procedure start again from the very beginning.
CONCLUSIONS.
The main conclusion we have reached is that in every single country the unilateral power of the employer is preserved, even if in some countries is encouraged a more strong participation of worker's representatives in the decision. That could be said about Italian law, that encourages a collective agreement, but particularly about German Law, where there is a practice of co-decision.
Anyway, it could not be said that the proceeding in collective redundancies is a mere formality: it is conceived as a mechanism to make the employer think further about his decision. This is the aim of E.C. Directive 75/129 and the States Members of the E.C. should take into account that remark, what does not seem to be always the case.
In fact, it seems that the effectiveness of the procedure depends on the socio-political background of the country. So, in those countries where the rules of liberalism are predominant, the exigencies laid down by the Directive does not play a strong protecting role for the employees.
On the other hand, in those countries where the culture of co-decision is dominant the aim of the Directive is better reached.