Abstract
Legislation underpins board-level employee representation in 18 European Union member states and Norway, but its characteristics vary greatly, restricted in some countries to the state sector and dependent in others on various company-size thresholds. We explore these variations as well as the initiatives taken by the Commission to introduce a harmonized system across Europe. We review evidence on the influence of board-level employee representatives before examining countries without board-level employee representation. We outline the articles in this special issue and conclude that board-level employee representation remains attractive to those concerned with improving corporate accountability because it allows influence at an early stage over strategic corporate decisions.
Introduction
Legislation underpins board-level employee representation (BLER) in 18 EU member states. 1 Such representation also applies in companies that have adopted European company status within the scope of the 2001 European Company Statute (ECS). Sectoral coverage, company size, structure of the board and the proportion of worker representatives are the principal, but by no means the only, sources of variance within national systems. The assumption underlying all systems of BLER, however, is that worker representatives exert influence and power over corporate decision-making on behalf of the workforce. This special issue examines the impact of variations in systems of BLER on board practices, the exercise of influence and power by representatives and the effects of the increasing influence of neoliberal economic policies and financialization on its future.
Assumptions concerning the influence and power of board-level representatives are rarely made explicit in the two predominant areas of analysis. Corporate governance literature focuses on the different perspectives of owners and managers as a means to examine ownership and control within the firm, the objectives to which control can be directed and the impact of different and changing regulatory regimes (Barker, 2010; Gourevitch and Shinn, 2005). This literature originates in the USA (Jensen, 1993) and often omits consideration of BLER. In contrast, industrial relations literature tends to situate BLER as a means to democratize work and the employment relationship (Clegg, 1960; Müller-Jentsch, 2008) and to mitigate the impact of alienation and the inequalities of power faced by workers (Poole, 1975, 1982). The assumption, albeit rarely explicitly examined, in the industrial relations literature is that board-level representatives may enhance the experience of work and reduce alienation. Neither literature explains how employee representatives on the board produce the intended outcomes.
Academics and policymakers contest BLER. Some corporate governance academics, for example, argue that it fails to address the principal-agency issue and is thus not relevant to their analyses (Fama, 1980; Fama and Jensen, 1983). Others who adopt political or sociological perspectives emphasize the range of alliances that may permeate board practice and view employee representatives as participating in these alliances (Höpner, 2001; Jackson, 2005b). Among industrial relations scholars, BLER is also contested: some argue that it underpins movements towards the democratization of work (Müller-Jentsch, 2003, 2008), while others view it as a source of ‘incorporation’ of worker representatives who thereby come to serve the interests of capital rather than those of labour (Clarke, 1977).
Among policymakers, BLER is also contested. Managerial critics, for example, argue that BLER may raise the operating costs of firms and lengthen the time required for decision-making (Brannen, 1983; Speth, 2004). There is also no consensus on labour’s side of the table. Some unions in Belgium and Italy, for example, have long been hostile to BLER, while their counterparts in Germany and Sweden have mounted concerted campaigns in its support or in favour of reforming its underpinning legislation when confronted by employer opposition (Hamskär, 2012; Markovits, 1986: 53–60). Under changing economic and political circumstances, the contestation of BLER may intensify as parties strive to meet new challenges. Furthermore, the failure of company boards to oversee the financial practices of companies such as Enron, Worldcom and Parmalat (Blackburn, 2002; Coffee, 2005) has placed centre stage the reform of corporate governance, again suggesting contested changes to board practices.
Economic and political circumstances have changed markedly since encompassing legislation on BLER was enacted in most Western European countries. Until the 1970s, it was restricted principally to the Federal Republic of Germany (BRD), with its origins in the Weimar Republic (Dukes, 2005). Initially introduced into the iron and steel industry in 1951, it has subsequently been extended to all large companies as a key component (along with works councils) of German industrial relations. In most other Northern European countries, BLER was not introduced until the 1970s, with major variations between systems. In France, though workers have had the right to representation in a consultative capacity on the board since 1946, it was not until 1983 that the law stipulated compulsory BLER with voting rights in state-owned companies, extended by decree in 1986 to allow private companies to adopt the same system. Hence, much Western European legislation was initially enacted during the 1970s during a period of high trade union density and intense strike activity, suggesting an association between the power of labour and the introduction or extension of BLER. While this association is far from straightforward (Waddington and Conchon, 2016: 19), it is beyond doubt that current economic and political circumstances are very different. Has the function or practice of BLER changed accordingly in the light of different economic and political circumstances? And what has been the effect of the expansion of the European Union since 2004?
We address these issues in five sections. The first maps BLER, and the second reviews evidence on the influence and power of board-level representatives. We then examine the EU member states without BLER. After outlining the articles which follow, we conclude that BLER is likely to remain attractive to those concerned with making corporate governance more accountable because it gives employees potential influence at an early stage over the strategic decisions that affect their futures and livelihoods.
Mapping BLER
Putting aside the 10 member states with no statutory arrangements, Waddington and Conchon (2016) have identified four categories of countries with BLER; here, we add a fifth category, consisting only of the Netherlands. The principal characteristics of these categories are discussed below. We then outline the attempts by the EU to introduce and harmonize systems across all member states.
Institutional variation
Ireland, Greece and Spain have the most limited coverage of BLER, as legislation applies only to specified state-owned companies. Privatization and the financial crisis have reduced the number of employee representatives as fewer companies fall within the scope of the legislation. The legislation, however, remains in place. Unitary boards operate in all three countries, and the extent of employee representation varies from up to 33 percent of board members in Ireland, two or three members in Spain and one or two in Greece.
France and Poland comprise a second category, as BLER is largely restricted to the public sector. In both countries, this situation is qualified. In Poland, privatization reduced the number of employee representatives from more than 1000 in 2003 to around 400 by 2011 (Conchon, 2012). In France, legislation enacted in 2013 formally extended BLER to private companies with 5000 employees in France or 10,000 worldwide, but to date very few companies appear to have implemented this (Conchon, 2018: 54–55). In consequence, the thresholds were reduced in 2015 to 1000 employees in France and 5000 worldwide. It is noteworthy that privatized companies have usually retained BLER. In Poland, only two-tier boards are allowed, whereas in France, both types of board are permitted. Legislation allows for employee representation of 33 percent of the board in France and 40 percent in Poland.
A third group comprises Croatia, Czech Republic, Finland, Luxembourg and Slovakia, where BLER applies throughout the public sector but only in those private companies that meet a threshold: 50 employees in the Czech Republic and Slovakia, 150 in Finland, 200 in Croatia and 1000 in Luxembourg. The obligation for Czech private companies to introduce BLER was effectively withdrawn as a result of legislation in 2014. Since 2003, in both the Czech Republic and Slovakia, the number of board-level representatives has declined because of privatization, together with weak or non-existent workplace trade union organization. Employee representatives comprise a minimum of 20 percent of the board in four of the countries in this category, and in Croatia, there is a single employee representative on the board. In the Czech Republic and Slovakia, two-tier boards only are permitted; in Croatia, Luxembourg and Finland, both forms are allowed.
A fourth category comprises Austria, Denmark, Germany, Hungary, Norway, Slovenia and Sweden, where BLER applies throughout the entire economy. Only Swedish legislation stipulates a unitary board structure. Since 2006 in Hungary and Slovenia and 2010 in Denmark, companies may choose board arrangements, whereas elsewhere two-tier boards are required. The size threshold for BLER varies from 25 employees in Sweden to 500 in Germany. Similarly, the number of board-level employee representatives varies from one on Slovenian unitary boards to 50 percent on German and Slovenian supervisory boards.
A fifth category comprises only the Netherlands, where BLER is unique insofar as those that represent employees on company boards are not themselves employees but are drawn from outside the company on the recommendation of the works council. They are often academics or experts in areas such as finance, law or industrial relations.
This brief mapping of the principal sources of variation in European BLER raises two issues that resonate throughout this special issue. First, BLER is not a monolithic or uniform category, but is subject to marked national variation with implications for the functioning and practice of company boards. Second, legislative change that extends coverage is more frequent than change which curtails it. There are, however, indicators that BLER is under increasing pressure in some countries as a result of the financial crisis and, particularly in Eastern Europe, non-existent or weak workplace union organization is incapable of sustaining its presence. There is a further issue that must now be explored to complete this mapping exercise: the role of the EU in attempting to harmonize systems across member states.
Role of the EU
The variations in practice outlined above highlight the challenges faced by (what is now) the European Union in attempting to harmonize regulation across the member states. Since its origins in the 1950s, the Commission has pursued the harmonization of company law across member states as a top–down, technocratic process designed to achieve the common market, a pursuit that continued with the creation of the Single European Market and the introduction of Economic and Monetary Union (Enriques, 2017; Gelter, 2017). Among the areas of company law targeted for harmonization was BLER, which by 1972 had statutory support in three of the then six member states (France, the BRD and the Netherlands).
The dilemma for the Commission was that while harmonization would help secure a common set of workers’ rights over significant areas of corporate decision-making, it would require major changes to some domestic systems of corporate governance. The five categories of BLER identified above reveal how acute this dilemma has become with the gradual expansion of the EU. Corporate governance in each member state is the product of lengthy historical and social evolution and is deeply embedded in the institutional frameworks particular to that country. It would always prove awkward, if not impossible, to harmonize arrangements across member states without generating hostility among employers and unions in those countries unaccustomed to the statutory regulation of industrial relations.
Nevertheless, the Commission made two attempts to introduce BLER through EU-level legislation, both initiated when there were only six member states. The first, the ECS, was originally proposed in 1970 and amended in 1975 (notably by providing for the co-option of ‘independents’ on to supervisory boards), but progress was then suspended until resuscitated as part of the Single European Market programme. The Commission published an amended draft regulation and draft directive in 1989 and negotiations continued until 2001, when the Council eventually reached agreement on both, which came into force in October 2004 (Hernández, 2019; Schwimbersky and Gold, 2013). The Statute and Regulation for a European Co-operative Society came into force along similar lines in 2006, but the Commission withdrew its proposal for a European private company covering small and medium-sized enterprises in 2013. One controversy that slowed its progress concerned BLER. It has since been replaced by a proposal for directive on a single-member private limited liability company, which lacks any such requirement. More recently, in April 2018, the Commission published its EU company law package, which also contains provisions for BLER, though which the ETUI fears could be used to ‘freeze out employee representation’ (Hoffmann and Vitols, 2018: 3). The provision of BLER at EU level clearly remains highly contested.
The ECS had always been a voluntary measure: companies headquartered in the EU may become European companies under certain circumstances, but are not required to do so. The second attempt by the Commission to introduce BLER would have been compulsory. The draft Fifth Directive on the structure of public limited companies was proposed in 1972. Its preamble noted that the laws on ‘worker participation within the supervisory board’ of such companies varied across member states, but that these differences ‘must be eliminated’ as they formed a barrier to the application of Community rules on cross-border reorganization of these companies. It observed that there were two arrangements for the administration of public limited companies then applicable across member states, either a single management board or a supervisory board in addition, but argued that the clear demarcation of the responsibility of board members required a two-tier system, which accordingly ‘must be made compulsory’ for all such companies.
At that time, the draft directive would have required these companies to introduce supervisory boards with a membership of at least one-third worker representation, either elected (the ‘German model’) or co-opted (the ‘Dutch model’). This draft was heavily amended in 1983 and included, for example, a negotiated option for BLER and a higher threshold for companies affected (1000 rather than 500 employees). Because it required unanimity in the Council, the draft remained deadlocked and was eventually withdrawn by the Commission in January 2004. However, its role in promoting debate about BLER in those countries without it, such as Italy (Leonardi and Gottardi, 2019) and the UK (see below), as well as within the European labour movement more generally, should not be underestimated.
Overall, we have seen that while BLER has a predominant role across the member states of the EU, its configuration remains variable. It also remains under pressure from economic and political developments across the EU, not least the continuing effects of the financial crash in 2007 and 2008. Even before that, however, the EU had failed in its attempts to introduce a harmonized system and fell back on the voluntary and extremely complex arrangements embodied in the ECS. Any convergence in systems of corporate governance that has taken place, particularly in codes of governance and certain forms of practice (though not BLER), have resulted from competitive pressures and pro-shareholder trends supported by governments and institutional investors and only to a limited degree from EU policies (Davies and Hopt, 2013).
The influence and power of employee representatives
Given the variations in systems of BLER, the influence and power of employee representatives is also likely to vary. We examine this by reference to current literature, most of which is country specific.
For example, board-level representatives in Sweden (Movitz and Levinson, 2013; Wheeler, 2002) and Finland (Sairo, 2001) influence local decisions and conditions, but are markedly less influential on strategic corporate decision-making and agenda setting. By contrast, around 30 percent of Danish and Norwegian board-level employee representatives thought that they had considerable influence over strategic corporate decision-making compared to 7 percent (Denmark) and 15 percent (Norway) who thought they had no or little influence (Hagen, 2011; Rose, 2008). Polish and Slovenian research replicates the Nordic data insofar as employee representatives have a limited capacity to influence board decisions or act as shareholders rather than stakeholders on the board (Prašnikar and Gregorič, 2002; Skupień, 2011). Around 90 percent of French employee representatives participate by means of information and consultation and are thus unable to exert power over strategic decision-making (Conchon, 2013). German representatives now have an enhanced role in strategic decision-making compared to the 1970s as a consequence of changes in German corporate governance (Gerum, 2007; Jürgens et al., 2008).
Comparative evidence does not contradict the detailed national studies. Interview evidence from 20 board-level representatives, for example, confirms a qualified influence over decision-making while also highlighting the importance of early involvement if any influence is to be exerted (Gold, 2011). A more wide-ranging study based on 282 questionnaire responses from representatives of nine nationalities concluded that only a few have no influence over decision-making, while very few felt that they exerted much influence (Carley, 2005; O’Kelly, 2006). Large-scale evidence from a sample of more than 4000 representatives showed that the manner in which they exert influence and power varies between systems: most exert some influence and power over restructuring decisions and strategic corporate decision-making 2 though a significant minority (around 45 percent of all respondents) were unable to influence strategic corporate decision-making as they participated on the board only through information and consultation (Waddington and Conchon, 2016: 128–135).
Countries without BLER
Various explanations have been advanced for the presence of BLER in some countries but not others. In a comprehensive literature review and analysis, Jackson considers the following: corporate governance factors (ownership, legal rights of shareholders and the degree of capital market activity), the difference between common law and civil law systems, the capital market, trade unions and coordinated collective bargaining and political systems. He identifies ‘two distinct configurations of causal factors leading to employee codetermination’ (Jackson, 2005a: 254): Both configurations contain a central combination of factors: namely, union co-ordination, consensus-oriented political systems and concentrated corporate ownership. The Scandinavian countries also share a stronger union density and greater power for centre-left forms of government, alongside stronger rights for shareholders. Meanwhile, Germany, Austria and the Netherlands follow more ‘conservative’ pathways where union density and left political parties are weaker, and corporate governance reflects weaker shareholder rights and lesser transparency in accounting.
Insightful though these findings are, this analysis, conducted before EU enlargement in 2004, does not consider the position of the new member states nor does it (or can it, given its methods) examine the differences from those countries without BLER. We offer a closer analysis of these countries, which reveals that several have historical experience of BLER (with traces that may remain), while others may grant limited rights to unions to participate on boards but only under certain conditions. This blurs the binary divide between countries with and without BLER.
Table 1 summarizes the predominant board structure in countries without BLER alongside a brief note about their history and current situation. This reveals several striking patterns among these countries. First, there are those that grant employee representatives the opportunity to participate under certain circumstances in shareholders’ meetings, either at management discretion (Estonia) or as a right (Bulgaria). In Bulgaria, an employee representative may vote on a consultative basis at the general meeting of a public limited company with 50 or more workers, a provision introduced in 2003 in the context of preparations to join the EU. In Romania, representative unions have the right to participate in management boards to discuss ‘problems of professional, economic, social, cultural and sports interest’. In these circumstances, union delegates do not have a vote, but they should be given the agenda, access to the material to be discussed and informed of the board’s decisions within 48 hours. The extent to which this opportunity is taken by unionists remains uncertain.
Countries without board-level employee representation.
Source: ETUI (2018) and Fulton (2015).
In a second group of countries, Cyprus and Malta, forms of BLER have been abolished. In Cyprus, the Cyprus Workers’ Confederation (Sinopostondía Ergazopénon Kíprou, SEK) has discussed the issue extensively when it was among the priorities of the European Trade Union Confederation (ETUC), but it has never been discussed at the higher levels of tripartite social dialogue owing to employer resistance. Union pressure led to the appointment in 2006 and 2007 of a representative of the bank employees’ union to the boards of two major banks, but this ended following the banking crisis. In Malta, the Labour government introduced a self-management structure for the dry docks in 1975, the highest decision-making body of which comprised only directly elected workers’ representatives to whom management was responsible. In 1977, a uniform system of participation was introduced at board level in state and parastatal enterprises through the Ministry of Parastatal and People’s Industries. Economic pressures and inter-union rivalries began to undermine these participative structures followed, in 1987, by the election of the Nationalist Party (NP) which led to increasingly serious confrontations between government and unions (Zammit, 1996). BLER has since vanished under successive NP governments, either because companies were privatized or because it was abolished in state-run companies. Only three employee directors remain, in two companies belonging to the General Workers’ Union and the Malta Labour Party.
In the third group of countries, Belgium, Italy and UK, there have either been, or there are currently, serious attempts to introduce BLER. The case of Italy, where legislation in 2003 specifically ruled out employee representation on company boards, is covered in detail by Leonardi and Gottardi in this issue, explaining how advances towards BLER made directly after 1945 were soon rolled back as a result of employer hostility, union rivalries and the country’s voluntaristic traditions.
In Belgium, employee representatives sit on the boards of certain state-owned companies, such as the Flemish public bus company De Lijn which includes two union officials. In November 2017, the Flemish Green Party (Groen) approved a text that called for employee representation on company boards as well as for greater stakeholder involvement, particularly in the public sector (such as transport and health care). At the same time, in Wallonia, the Parti socialiste (PS) has set out a proposal for a ‘co-decision’ corporate form in Belgium, based on the concept of ‘economic bicameralism’: all board-level decisions would require the consent of both chambers of a bicameral assembly, consisting of equal numbers of elected representatives of shareholders and workers (Ferreras, 2017). Neither Groen nor the PS is currently in office, but these developments might help to provoke a debate on BLER in both regions of the country.
Until recently, the most important discussion of BLER in the UK focused around the Committee of Inquiry on Industrial Democracy (the Bullock Committee) set up by the Labour Government in 1975 to propose measures for worker directors in UK-based companies (Williamson, 2015). Its appointment was largely, but certainly not exclusively, a result of pressure from the then European Economic Community (Gold, 2005). Following its report in 1977, the government published a White Paper in 1978 which proposed that companies should negotiate the details of BLER themselves with the unions, but that statutory fall-back arrangements should apply in cases of failure to agree (which included an optional two-tier board with one-third employee representation). The Conservative government elected in 1979 abolished worker director schemes at British Steel (Brannen et al., 1976) and the Post Office (Batstone et al., 1983) and crushed any hope of further progress in the area for a generation. Subsequent experience with BLER in the UK has been meagre, with just a few examples in employee-share-owned bus companies, transport operator First Group, British Rail and, most recently, Sports Direct.
More recently, Theresa May, launching her bid to lead the Conservative Party in July 2016, announced that she wanted a more accountable business sector: ‘if I’m Prime Minister … we’re going to have not just consumers represented on company boards, but employees as well’ (May, 2016). Her government’s subsequent Green Paper, Corporate Governance Reform, outlined four possible options: the introduction of stakeholder advisory panels, designating an existing non-executive director to ensure that the voice of employees is heard at board level, appointing [sic] individual stakeholder representatives to boards and strengthening the reporting requirements relating to stakeholder engagement (BEIS, 2016: 34–42). BLER, if it exists at all in these options, would involve the appointment of a single employee to a unitary board with no guaranteed support or training. By contrast, John McDonnell, Labour’s Shadow Chancellor, announced in September 2018 that under a Labour government, ‘a third of the seats on company boards will be allocated to workers’. He added that shares would be transferred into an inclusive ownership fund to be managed by workers, to give them ‘the same rights as other shareholders to have a say over the direction of their company’ (McDonnell, 2018: 3). The Trades Union Congress, which has campaigned to reform corporate governance for years, also includes BLER among its proposals (TUC, 2013). After 40 years, BLER has re-emerged as a significant issue on the UK political agenda.
This analysis leaves only two countries – Latvia and Lithuania – with no examples of BLER (of which the authors are aware). It demonstrates, however, that even in those countries regarded as lacking any of these forms, there is generally some kind of relevant experience that may be called on: it might involve conditional rights to consultation with shareholders’ meetings or the board, historical examples, the occasional voluntary arrangement, draft legislation that did not survive or proposals drawn up by significant political parties for implementation in the future.
Overview of the special issue
The articles contained in this special issue explore the issues outlined above in greater depth. Rosenbohm and Haipeter examine the operation of BLER in subsidiary companies of MNCs, while Scholz and Vitols argue that BLER leads to higher levels of corporate sustainability among German companies as it helps to integrate stakeholder interests other than those of shareholders into their governance. Rose and Hagen explore how the degree of influence held by board-level representatives in Denmark and Norway depends on a number of individual and company characteristics. Zybała provides an overview of BLER in the Visegrád countries, based on an analysis of historical and cultural backgrounds. To give an EU perspective, Lafuente Hernández evaluates the provisions of the ECS by means of a content analysis of 62 European company agreements retrieved from the ETUI database. Finally, Leonardi and Gottardi examine in detail the reasons why Italy failed to introduce any system of employee representation on the boards of either public or private companies, despite undergoing similar pressures in the 1970s to other West European countries that did so.
Conclusion
BLER remains a highly contested form of employee participation. While its pedigree stretches back to Weimar Germany, it was first consolidated in the BRD after World War II (and to a lesser degree in France), but burgeoned across Europe during the 1970s as a response to widespread fears of the increasing concentration and power of large companies. Its institutional format varies widely between countries – in terms of the type of companies covered, size thresholds, the extent of employee representation and the nature of the board – particularly after its adoption by many of the EU-accession countries after 2004. The Commission has been unable to introduce a harmonized form of BLER as a result of reluctance or hostility from certain employers, unions and governments. The ECS has proved weak instrument for BLER, and there remain 10 EU member states without it. Nevertheless, closer inspection reveals that most of these countries do share some kind of experience of BLER, including limited access to shareholders’ meetings or the board, significant examples in the past or continuing voluntary arrangements in one sector or another.
Whatever the reasons, such experience suggests that BLER fulfils a critical industrial relations function: namely, access by employees to the strategic decision-making body in the company that affects their futures and livelihoods. Sub-board decisions, though important, are generally operational, while those taken by the board are long-term, significant and strategic. It is for this reason that BLER is likely to retain its appeal to those who seek to curb corporate power. Indeed, though under pressure from privatization and financialization across many EU member states, it has recently returned to the political agenda in Belgium and the UK as a result of continuing concerns over unaccountable corporate power. While such power remains, an interest in BLER is likely to remain as well.
Footnotes
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
