Introduction

The Recast European Works Council (EWC) Directive 2009/38/EC contains two specific references to the right to training. In the preamble, it states that “employees’ representatives … must be able to receive the training they require” in order to “perform their representative role fully and to ensure that the European Works Council is useful.” This is then translated into a legal requirement in Article 10 on the role and protection of employee representatives, where the directive states that “in so far as this is necessary for the exercise of their representative duties in an international environment, the members of the special negotiating body and of the European Works Council shall be provided with training without loss of wages.”

However, this right to training is not available to the members of all European Works Councils. Article 14 of the Directive makes it clear that most of the obligations of the directive, including the obligation to provide training, do not extend to many existing EWCs. The European Works Councils not covered by the obligations are the so-called voluntary agreements, signed before the directive came into force, as well as agreements signed or revised between 5 June 2009 and 5 June 2011.

The arguments for the right to training

The benefits of a right to training are set out in the report of the group of experts on the implementation of the Directive published in December 2010. They noted that, although the right to training was the measure with the largest cost impact on companies, the measure was, nevertheless “not controversial and meets the interests of both workers and companies”. They drew attention to the 2005 “Lessons learned” document published by the social partners which stated that ‘the ability to understand complex issues discussed in the EWC determines the quality in communication. Investing in language as well as technical/content training helps to optimise the functioning of the European Works Council and to reduce overall functioning costs’”

The national transposition of training rights

In most countries, national legislation implanting the training provisions of the directive has followed the wording of the directive fairly closely. The main areas of difference relate to:

• the content and type of the training;
• the groups with a right to training; 
• how those being trained are chosen;
• the conditions under which paid leave is provided; and
• the length of leave for training

However, it is important to emphasise that the differences are generally small and in most cases only apply to a minority of countries.

The content and type of training

The content and type of training is the area where the largest number of countries diverges from the directive, with15 countries having provisions which are different. For 11 it is simply that there is no reference to the need for training to be that necessary for the exercise of duties “in an international environment”. The countries in this position are: Croatia, the Czech Republic, France, Germany (where although there is no reference to an international environment, the legislation refers specifically to “knowledge required for the work of the European Works Council”), Lithuania, the Netherlands (whose training rights were included in the initial EWC transposition legislation in 1997), Poland (where the international environment is referred to in relation to training for the SNB but not for the EWC), Portugal, Slovakia, Sweden and the UK.

In Austria and Germany, the type of training described in the legislation “training and educational events” (Schulungs- und Bildungsveranstaltungen in the German text) is different from the simple “training” (Schulungen) included in the directive. In Greece, as well as referring to the exercise of representative duties at an international level, the legislation also allows SNB and EWC members to take paid leave to go to “meetings or conferences related to this law and organised by a recognised body doing work or tertiary trade union organisation [the union confederation] in the country”.

The Hungarian legislation is much more detailed in its description of the training for which there is a right to have paid time off. It sets out what should be particularly considered as being training necessary for the exercise of representative duties in an international environment. This is:

"Training that aims at providing knowledge required for the fulfilment of needs relating to practical requirements of  the activity of the European Works Council, including communication skills and foreign language skills, and for the understanding of the legal and labour background, international structure and strategy of the Community-scale undertaking or Community-scale group of undertakings …”

The Hungarian legislation does, however, go on to say that “an application for training shall not be rejected if the training is reasonably necessary for the exercise of representative duties in an international environment by the members of the special negotiating body and of the European Works Council”.

In Italy and Latvia, the legislation deals specifically with the question as to who decides the content of the training, stating it should de decided jointly by the two sides.

In Italy, the wording of the legislation is that “the content of the training … is decided jointly by the central management and the select committee or, where no such committee exists, the European Works Council”. In Latvia, the transposition legislation states that the “content of training shall be determined by mutual agreement of the central management and the special negotiating body or the European Works Council”. (This section of the Latvian legislation also refers to the need for training – see below).

The groups with a right to training

The directive states that the groups with a right to training are “the members of the special negotiating body and of the European Works Council”. This wording has been adopted in all the states examined, with the exception of Croatia, where the section of the legislation referring to training rights for EWC members (Article 190 of the Labour Act), does not give similar rights to SNB members.

There are also two countries (Bulgaria and Lithuania) where the specific right of the select committee for training is referred to, although as the select committee is made up of EWC members, the failure to specify them would not remove their training rights.

• Bulgaria: “Where necessary for the exercise of their representative duties in an international environment, the members of the European works council or standing committee shall be provided with training”
• Lithuania: “Members of the European Works Council or of the committee of the European Works Council, as well as members of the special negotiating committee who are on the staff of the establishment of the European Union-scale undertaking operating in the Republic of Lithuania or the undertaking of the European Union-scale group of undertakings having its registered office in the Republic of Lithuania shall be … provided with training opportunities where required by their representation duties, while retaining their job and average wage.”

Greece and the Netherlands also refer to the training rights for other representatives under alternative arrangements for informing and consulting employees.

How those being trained are chosen

The Directive says nothing about how those being trained are chosen, and in most countries the transposition legislation is also silent on this issue. However, there are two exceptions.

The German legislation states that, “the European Works Council may [“kann” in German] designate members to take part in training and educational events where such events impart knowledge necessary (“erforderlich”) for the work of the European Works Council. It goes on to say that this task can be delegated to the select committee.

In Luxembourg, the EWC legislation states that training for EWC and SNB members should be in line with national provisions on employee representative training. Among other things these state that the choice of those receiving training should be decided within the framework of a list agreed between the employers and the most representative unions at national level, although it is not clear how this can be applied to EWC members.

The conditions under which training is provided

This is also an issue which is not regulated in the directive and which also is not covered in the transposition legislation of most states. The few exceptions are:

• Germany, where the EWC or the select committee is required to “notify the central management in good time of participation and date [of training]” and where in setting the date “operational needs shall be taken into account”
• Greece, where employees “must, if necessary, provide the employer with proof of attendance at meetings and conferences to qualify for the relevant paid leave”. (This relates to meetings and conferences organised by the union or other recognised bodies.)
• Hungary, where “applications for training shall contain information on training needs, the content and other relevant data of training and the reasons which support the fact that it is necessary for the exercise of representative duties in an international environment”.
• Latvia, where the “need for”, as well as the content of training (see above) “shall be determined by mutual agreement of the central management and the special negotiating body or the European Works Council”.
• Portugal, where training as well as other aspects of the EWC’s work “may be regulated differently by agreement with central management”.
• UK, where the legislation states that the time off for training shall be “reasonable”, wording that in a national context has been taken to involve the content of the training as well as its timing and who is providing it.

The length of leave for training

The length of training to be provided is not regulated in the directive and Luxembourg is the only country to do so in its transposition legislation. This is because the legislation in Luxembourg makes specific reference to national training provision, stating that “members of the special negotiating body and the European Works Council receive training without loss of pay in line with the provisions of Article L.415-10 [of the Labour Code]”. 

This article states that employers are required to provide paid time off for training (congé formation) to employee representatives allowing them to attend training organised by the unions or other specialised bodies. In smaller workplaces – 50 employees or below – this is one week over the five-year period of office, paid for by the state; in workplaces with between 51 and 150 employees it is two weeks, with one week paid by the state and one by the employer; in workplaces with more than 150 employees it is one week per year, paid by the employer. As with the choice of individuals receiving training (see above), it is not clear how this national legislation relates to training for EWC and SNB members.

The legislation in Hungary also makes reference to the length of training, although it does not itself set a limit. Instead it states that “the minimum time allotted for the training may be set by the parties in an agreement”.

Conclusions

The most striking aspect of the transposition of the training provisions of the recast EWC directive is how closely most countries have followed the wording of the directive. Those where there are the most significant changes are:

• Croatia, where training rights for SNB members appear not to have been transposed;
• Germany, where EWC members are to be designated by the EWC, or select committee, the training must impart the knowledge “necessary”  for the work of the EWC and the timing must take account of operational concerns and be notified to management in good time;
• Greece, where EWC members can go to meetings and conferences organised by a recognised body or the national trade union confederation, although they must provide proof of attendance;
• Hungary, where the type of training which is to be approved is set out in detail;
• Italy, where the content of the training is to be agreed between the select committee and management;
• Latvia, where the content of and need for the training shall be agreed between the two sides;
• Luxembourg, where the length of the training as well as a mechanism as to who should receive it is set out in the legislation;
• Portugal, where there is a specific possibility of training being regulated in a different way through an agreement with management; and
• the UK, where time off for training should be reasonable.

Where there are differences from the directive, it is clear that national legislation has often played an important role. This is obvious in Luxembourg, where the national legislation applies directly in some cases, but is also clear elsewhere. For example in the UK, the reference to reasonable, echoes the reference to time off rights which are “reasonable in all the circumstances” in the UK national legislation. Similarly in the German transposition, the rights for training for EWC members are similar to those provided to national works council members.

In contrast, in most countries, the transposition legislation does not resolve the detailed issues of what training can be provided under what circumstances, by whom, to whom and when. However, here too national legislation and custom and practice are likely to prove decisive.