CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

Cross-border social dialogue and agreements
To guarantee greater legal certainty than at present, a legal framework
for transnational collective bargaining is necessary. Ideally, it should
be adopted at international level, but Europe-wide may constitute a first
step and this seems more attainable in the medium term. The European
Commission’s Social Agenda 2005-2010 gives, as one of its aims, the
adoption of an optional legal framework for transnational collective bargaining,
and a report by a group of labour lawyers appointed by the
Commission has drafted its main elements (Ales et al., 2006).
A legal framework for IFAs may only be optional, the social partners
being free to choose its rules and to benefit from the security it offers
or to continue to negotiate without one. It is indeed crucial not to limit
the dynamics created by IFAs — and more generally by CSR norms —
by a legal framework imposed in a general and uniform manner. IFAs
prove that the lack of a legal framework can favour the emergence of
interesting new forms of social regulation. But it is necessary to offer,
both to companies and to workers’ representatives wanting to go beyond
a voluntary commitment, a framework that defines the legal nature of the
IFA. The social partners would thus have to state explicitly their willingness
to benefit from this optional framework — an “opt-in” clause. If not,
the current “rules” would continue to apply to their agreement.
Such an optional framework should name the legitimate negotiators
on both the employers’ and workers’ sides. It seems particularly
important to set out the roles of ITUFs at sectoral level, of subsidiaries’
national trade unions and of the EWC during the negotiation and the
implementation of the texts. This instrument might also impose on the
social partners a certain minimum content as well as provisions for the
scope of application and for the monitoring process, while leaving the
social partners a wide margin of freedom as to defining the scope and the
forms that monitoring is to take.
Finally, the framework should define the legal value and impact of
IFAs. The best solution would probably be to make it mandatory for the
IFA to be transposed into legal texts in each country where the company
has subsidiaries or even internally within each subsidiary, whether
through unilateral management decisions or through collective agreements.
The legal value of those texts would change according to national
labour law, but this approach would avoid problems associated with
determining which legislation to apply, because the text of the IFA would
exist in each country and have a clear legal value under each country’s law.
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