012 Noviembre 2021

Works councils… defence or defencelessness

Any law or regulation should be constituted to include, in addition to the precise and concrete functioning of what it intends to legislate, the guidelines that allow us to preserve the fundamental rights and obligations established in the rest of the laws that govern us. In other words, a law, by the fact of compliance with it, cannot oblige us to break another law.

In principle, this imprecise and casual definition is something that we do not naturally question. And we may even be convinced that these objectives are the ones that are always taken into account when making a law, rule or regulation.

Thus, for example, the Law of the Statute of Workers (Spain) establishes the right of workers to participate in their company through certain representative bodies, mainly the staff delegates and works councils. It also establishes their competences, the way they are elected, their amount, etc.

Without discussing the details, and as I am sure everyone knows, workers’ representatives are elected every four years by voting from lists of candidates proposed by the trade unions.

Once elected, and this is a very important factor, throughout their term of office, these representatives have the power to sign and negotiate with the company whatever they wish, without the need or formal obligation to consult the workers, as their election implies a delegation of worker representation to them.

It should also be said that both the electors and those elected must be employees of the company, meeting only the minimum age and length of service in the company.

In general, nobody pays much attention to their representatives or works council in a company if everything is going well. This is like what happens with insurance: it is better to spend the extra money but never have to use it, rather than not having it. A strange contradiction perhaps, but indisputable in its practical essence. But as with insurance, when you have to use it, there are often problems and surprises.

Being a member of the works council has disadvantages because of its obligations and advantages because of its rights, or as the law says, because of the guarantees required to protect the development of its activity in defence of workers’ interests.

On the one hand, they cannot be dismissed during the four years of their mandate or the following one. Nor can they be included in any redundancy programme. Unlike the rest of the workers, they also have the right to reply to any labour sanction imposed on them. They have a certain number of free hours per month without justification for their work activity and preference in the company’s training programme.

For the company, its existence also has advantages. The first and reciprocal to that of the workers is to have a concrete and defined body for dialogue and decision-making with the workers. But no one is unaware that it is undoubtedly much easier to “kidnap” the will of 10 members of a works council than that of its 8,000 representatives, to give an example. And therein lies the problem.

Power corrupts, and there is no need to spend dozens of lines here to corroborate this. But, unfortunately, it is a circumstance that is almost consubstantial to the human being and tends to appear as temptation as soon as we add 1 to the loneliness of the individual. And trade union activity is not exempt from these temptations. Trade unions in this country (Spain) move a lot of money, both directly and indirectly. In 2011 alone, they received 18.3 million euros indirect subsidies from the Ministry of Labour, in addition to other income, mainly from the training courses and social and labour insertion programmes they developed (175 million euros in 2010).

And within a company? Well, let everyone draw on their memory and experience and assess the kind of temptations, favours and advantages to which their trade union representatives are subjected and draw conclusions. How many have turned them down, and how many have not.

The worst thing is that at that point, workers in practice can do nothing to demand the highest quality of union representation from their union representatives, just as nothing can be done, to take the example of insurance, to change the conditions of our ill-fated insurance when the claim has already occurred.

We conclude that the system is perverse, and while pursuing healthy and equitable preservation of justice and workers’ rights, once again, human “idiosyncrasy” has taken care to make the most of it for the benefit of itself and a few.

The delegation of workers’ rights, for certain causes and processes of labour disputes, should be able to fall to professionals, we insist, to professionals who are competent and independent in this defence and, above all, completely alien to any possibility of acquiring debts and special favours on the part of the company. In the negotiation of a Redundancy Procedure (ERE), people without a “rucksack” who, among other things, will not take away your job but will not keep it either.

In the same way that when a worker or the company itself is faced with a relevant process that affects their rights, they hire the best quality legal services they can afford, outside the scope of their company in the second case and those they can access in the first case.

Taking CX’s ERE as an example, have they not hired a prestigious law firm as advisors instead of their legal professionals? Does the FROB itself not hire external consultants and advisors for its reports, instead of doing so with its technicians, which it has, and of indisputable quality?

The lives of 2,453 people cannot be left in the hands of 13 people, without the latter having the necessary mechanisms to be able to moderate and express their participation and agreement in the decisions of these few, who do not even have the right to approve the representativeness of those who will sit at a negotiating table, with the excuse of a simple question of union discipline or due obedience for four years.

In civil society, one person can grant powers of attorney to another. Still, just as freely and voluntarily as he or she grants them, he or she can revoke them and render them ineffective.

The problem is not a new one, but just another variant, with the same effects and implications and causes, as the often controversial and discussed Spanish electoral system and its closed lists.

We know that the solution is not simple and that the purpose of raising it should not be considered as a proposal for a grotesque discussion on what we believe to be the privatisation of the trade union function, far from it. But there are certain situations, frequent and in everyone’s memory, which, due to their critical nature in the labour and personal future of workers, the role of trade union representatives is not up to the task in terms of credibility or prestige, nor does it respond to the real needs or the will of the workers.

Source: http://dimesecretillos.blogspot.com/2013/09/comites-de-empresadefensa-o-indefension.html