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Information and consultation at the Covid-19 test: videoconferencing

by Giorgio Verrecchia, expert in Labour Law of CTS OpenCorporation

As is well known, the objective pursued by the European legislator is to improve the right to information and consultation of employees in Community undertakings in its dual role of protecting the “harmonious development” of economic activities and the fundamental right of employees and their representatives.

Today, the question is whether or not videoconferencing is adequate to achieve the result required by the regulations, as the current health emergency forces physical distancing, and therefore the impossibility of holding meetings in the classic way. In the spirit of European legislation, in the event of ‘common agreement’ between the parties, there is certainly the possibility of meeting by videoconference. In fact, the collective agreement is the privileged venue for the definition of the modalities of operation of the SNB (Special Negotiation Delegation) and the EWC (European Works Council). So much so that in the absence of agreement between the parties (or in the case of refusal by the central management to start negotiations or, again, if the parties decide to do so), the reference legislation establishes that the so-called “accessory requirements” apply: a sort of minimum threshold of rights, a safety net that allows the fundamental right of workers to information and consultation not to be sacrificed because of the lack of agreement between the parties.

In the regulatory system outlined by European law, all decisions are therefore left to collective autonomy, which alone can derogate, both in an improvement and a worsening sense, from the provisions of the regulation itself.

However, the Central Management remains responsible for ensuring the effectiveness of the meeting, in the sense of providing the highest technological expertise and simultaneous translation, since videoconferencing allows the company to save on travel and accommodation costs. In this regard, we must make it clear that it appears to be contrary to Community legislation and the fundamental nature of the right to information and consultation to introduce elements of evaluation such as savings in management costs. Therefore, it is not in itself abnormal for a European trade union meeting to take place by videoconference in order to guarantee the right to health not only of the individual representative but, in the current period, of collective health. The main issue is therefore the agreement of the parties to use an alternative tool to the physical meeting. Only if there is agreement is it possible to meet electronically, provided that all the prerogatives granted to the workers guaranteed in the physical meeting are respected. From this point of view, many behaviours are required: the right of the employees’ representatives to discuss with each other in the absence of the employer must be guaranteed, the meeting must not be recorded, the parties must undertake not to let third parties hear the meeting. Finally, the Central Management must bear all the expenses necessary to make the meeting useful and profitable: from the purchase or provision (if already in use in the multinational company) of specific software and remove the obstacles that could in fact make it impossible to participate in the online meeting.

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