WORKERS' PARTICIPATION IN THE ENTERPRISE — TRANSCENDING COMPANY LAW?*
| Author | S. Simitis |
| Date | 01 January 1975 |
| Published date | 01 January 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01397.x |
THE
MODERN
LAW
REVIEW
Volume
38
January
1975
No.
1
WORKERS’
PARTICIPATION IN THE
ENTERPRISE-TR ANSCENDING
COMPANY LAW
7
*
I
MY
first reaction to the announcement that
I
would have the honour
and the privilege to give this lecture was to try to establish some
connection between my subject and the topics of the last two years.
But
I
quickly dismissed the idea. Obviously, workers’ participation is
far too remote from Professor Kahn-Freund’s remarks on
comparative law’ and from Professor Hart’s analysis of
demystification.a On second thoughts, however,
I
suspected, that
participation might prove to be
a
striking example of the leading
ideas of both lectures.
In fact, no other slogan is at the moment
so
popular. Phenomena
like the
comitc? d’entreprise
in France or the
Mitbestimmung
in
Germany are no longer regarded as an interesting but extremely
particular feature of a small number of laws. Countries which up to
now never considered the lack of statutory rules on participation as a
serious disadvantage have radically revised their attitude. One has
only to think
of
the recent changes and proposals in Norway, Sweden
and Switzerland. Trade unions which, like the British, were for
a
long time rather critical if not openly hostile to workers’
representation speak of a probably
“
desirable development.” And
even legislation already accepting participation seems to be involved
in a process of continuous reforms, as the example of the Dutch law
of
1971
or
of the recent German draft shows.
No
wonder therefore
that the chances of a European company statute were thought to
depend almost entirely on its attitude towards workers’
repre~entation.~
This is the third
Chorley
Lecture.
delivered at the London School
of
Economics
on June 26, 1974.
*
Kahn-Freund (1974) 37
M.L.R.
1.
2
Hart (1973) 36
M.L.R.
2.
3
Industrial
Democracy,
Interim report
by
the T.U.C. General Council, 1973.
p.
36.
4
For the latest development see the minutes
of
the European Parliament 1974-
1975
Doc.
67/74
of
June 26, 1974.
VOL.
38
(1)
1
1
2
THE MODERN LAW REVIEW
[Vol.
38
Yet, in spite of the constant references to the necessity of
participation by
so
many laws and proposals, the term is interpreted
in very different and sometimes contradictory ways. While for
instance the Belgian legislator states that the
conseil d’entreprise
can
have no other purpose than to “associate” the personnel to the
efforts of the
‘‘
chef d’entreprise
”
the German government speaks
of ‘‘co-decision.”8
So
what for the one appears to be just a better
means of consultation marks for the other the transition to new
economic and social structures. Thanks to what seems to be
a
genuine
contribution of comparative law such differences are however
increasingly dissimulated. Instead of examining the particular aspects
as well as the background of the various foreign models, an
impressive enumeration of already existing regulations is presented.
Since the concept of each
of
these models remains unquestioned,
participation may in fact be regarded as a feature common to a
steadily increasing number
of
laws. Besides, once attention has been
focused on the positive attitude of
so
many laws, doubts seem
to
be senseless. Comparative law contributes thus not only a great deal
to the current mystification of participation; it also incites to an
uncritical imitation. Any further attempt to examine the implications
of participation has to be conscious of the fact that its magic can only
be destroyed by abandoning a comparison which is reduced to a
simple record of apparently identical expressions.
I1
One of the main difficulties in comparing the various models and
analysing their consequences is the constant change of the level at
which participation affects economic activity. While some statutes
restrict participation to the plant, others extend
it
to the enterprise
or even include national economic policies.
It is however by no means sufficient to distinguish the level.
A
common point of departure does not necessarily lead to
a
uniform
organisational structure. Both the German and the French law attach
for instance a great importance to the plant; they have nevertheless
followed a very different path. The
Betriebsrut
is a collective organ
elected by the workers and having an exclusive jurisdiction in a series
of
cases clearly defined by the 1aw.l The
d&l&gu&s du personnel
are,
on the contrary, individual representatives of the workers and it is up
to them whether they prefer to seek the assistance
of
the
d&l&guh
or
to address themselves directly to the employer.* As to the enterprise
6
Expos6 des
motifs,
Doc.par1. Chambre 1947-1948, no.
50,
p. 13.
See
also Piron-
Denis,
Les conseils d’entreprise et les comitds
de
sdcuritd er &hygiene.
1972, p.
35:
‘’
.
.
.
le
conseil d’entreprise
est
essentfeilement
un
organe de collaboration
et
non
de participation
ii
la gestion de l’entreprlse.”
6
Die Mitbestimmung der Arbeitnehmer,
published by the Federal German
Ministry
of
Labour. 1974, p. 6.
7
BerriebsverJassungsgeselr
of
1972,
00
74-118.
8
Art. 3, paras.
1
and
4
of
the Law on the
Dkldguds du Personnel
of
April
16
1946. See also Suet.
Comires d‘entreprise,
ddldgds
du
personnel
el
d4ldguda
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