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National debates

Directive 2002/14/EC, in referring explicitly in its article 2(e) to the representatives of employees as the institution with which the right of information and consultation is deposited, requires countries with a voluntarist tradition (i.e. countries without legally binding rules on information and consultation) to arrange by statute or agreement for the creation and operation of such bodies. Moreover, Directive 2002/14/EC introduces changes to the Member States’ systems of employee representation that directly affect the very organisation of representation.

Most Member States refer to national law in determining the concept of employee representation. Some domestic debates struggled on one hand with the differences between two different models of workers representation in Europe, depending on whether such representation is by the unions or by persons elected by all employees within the undertaking. In Poland and Estonia, trade unions are opposed to the opportunity offered by Community legislation to designate or elect non-union worker representation where union representation already exists within the undertaking. The arguments advanced are of two kinds: that it is an additional cost for the undertaking, or that it is a source of social conflict.

In the United Kingdom, as in Ireland, the legal framework for the representation of employees is minimalist. The transposition of directive 2002/14/EC introduces a significant change to their legal systems, to the extent that it calls for the voluntarist nature of their system of workplace relations to be dropped to permit the general exercise of the employee’s right to information and consultation, but is a step towards what has been called “uncharted waters”. Indeed the risk is of the emergence of a hybrid system in which there is either employee representation or direct consultation, with employees being consulted on issues that should be negotiated by the trade unions. The danger is that this distinction between consultation and collective bargaining may be lost and that the employers may be tempted to negotiate issues with a non-accredited representation of the employees.

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