On 30 and 31 March 2011, a first interactive training was organised for SE board-level employee representatives. The purpose of this two-day seminar was to help worker representatives to deal with everyday problems related to information declared to be confidential. It was organised in a communicative and interactive style, allowing a lively exchange between the participants. Representatives from nine different companies and five different countries exchanged ideas and experiences, were informed about the regulations concerning the subject of confidentiality and discussed the relevant issues with trade union experts and practitioners.
The seminar was divided into two main sections. In the first part the theoretical background was discussed, while in the second part the focus was rather on practice.
The first theoretical session was introduced by Dr Roland Köstler of the Hans Böckler Foundation, who outlined the legal background of confidentiality rules. The Regulation on the Statute for a European Company clearly states that board members are under a duty not to divulge any information which might be prejudicial to the company’s interests. To properly understand the impact of this general rule, the provisions applicable to companies in the member state where the registered office is situated have to be considered. As the vast majority of active European Companies with board-level employee representation are situated in Germany, Dr Köstler also elaborated on the German Law on Stock Companies. After the presentation, a discussion ensued about the tension between the duty of secrecy and the specific role of an employee representative, reflecting on what can and cannot be communicated, to whom and at what time.
Next, Eva Karnehed of the Swedish private sector employees’ trade union PTK, and Hannes Schneller of the Austrian Arbeitskammer Wien, explained their national systems of board-level employee representation and confidentiality rules. They also talked about specific trade union approaches to dealing with this. Under the Swedish rules, the ‘duty of care’ is a central principle. It implies that board members should always ensure the best interests of the company and are not allowed to damage it in any way. The Austrian expert distinguished five levels of confidentiality: (i) board members – works council representatives – and (ii) their experts, (iii) the workforce affected by a certain decision, (iv) all employees and, finally, (v) the outside world.
The practical part of the training started with a working group activity. Six case studies were presented to the participants, dealing with trade union expectations, centralisation plans, bad management, big bonuses, a leak and insider trading. The mission was to discuss what the best response would be in the given situation. These cases, which were inspired by real or potential conflicts between responsibility as a workers’ representative and the duty of confidentiality, gave rise to a lively debate between the participants and the experts present. This allowed them to exchange their personal experiences with similar situations and to explore different ways of dealing with them.
Finally, Dr Robbert van het Kaar of Amsterdam University, Philippe Cadorel, former employee representative on the Air France board of directors and Peter Rimfort of the Danish trade union cartel of industrial employees CO-industri presented their personal experiences with confidentiality restrictions as employee representatives in boardrooms. Mr Rimfort started with some comments on the lawsuit Grøngaard & Bang, which involved insider trading by a third person receiving confidential information from a board-level employee representative. Dr van het Kaar outlined the Dutch regulations with regard to board-level employee representation, according to which Dutch works councils can nominate only external experts to the Raad van Commissarissen. Board members are not allowed to represent partial interests such as the workforce. Using concrete examples, he also underlined the tension between getting information early, on the one hand, and informing the workforce, on the other. Mr Cadorel elaborated on his personal experience as an employee representative on the Air France board of directors for six years. Although obviously bound by the duty of confidentiality, he succeeded in producing a newsletter containing a report on the main discussions and decisions of the board about once every two months.
All participants and experts were very enthusiastic about the interactive way in which the seminar was conducted. The quality of the debates and presentations was very much appreciated. Many suggestions were made about topics for future courses. This was clearly an initiative that deserves to be repeated.
Documentation of the workshop
- Confidentiality in SE boardrooms - the legal background (Dr. Roland Köstler, Hans Böckler Foundation)
Confidentiality in SE Boardrooms - a (very) brief presentation (Hannes Schneller, Arbeiterkammer Wien)
The Netherlands: a special case (Dr. R.H. van het Kaar, Hugo Sinzheimer Instituut, Universiteit van Amsterdam)
Confidentiality In – and outside the boardroom - A Danish example (Peter Rimford, CO-industri)
- Confidentiality in Swedish company boardrooms, SE companies and EWC (Eva Karnehed, PTK)
- Case studies on confidentiality (Bruno Demaître, EWPCC)