A model of German works councils and a Russian Case
of labor rights protection: a comparative analysis
At present time the Russian academic and social communities are actively discussing the relationship between the practice of works councils in Germany and the Russian experience of organized protection of workers’ rights. This problem became acute after the publication by the Russian president on the 7 of May 2012 a decree “On measures for implementation of the state social policy,” which refers to the need for the development of proposals and amendments to the laws of the country to establish works councils and determine their functions. In essence, this ordinance provides as an initiative of the executive power to integrate the experience of workers participation in company management realizing in Germany into the Russian context.
In my view, such an attempt to instill the “civilized” features to the Russian version of capitalism in its ideological form is a step to overcome the gaps in the social partnership model, which has not yet formed after the collapse of the Soviet Union and is not able to be formed in the country of peripheral capitalism. However, the origins of that initiative are not aimed at limiting the influence of capital through increased employees’ participation in company governance but at the suppression of any intentions of employees to form a really functioning labour democracy with a radical anti-capitalist basis.
I would like to justify that thesis on the following ground. As it is well-known, in the European countries (e.g., Austria, Germany, Scandinavian countries, France), i.e. in the societies of western capitalism, there is a two-tier system of protection of labor rights, namely on the level of trade unions and on the level of works councils. If the basis of the trade union is an autonomous and independent self-organization of workers aimed at protection their interests, at least modern works councils are based on the idea of peaceful coexistence between labor and capital.
The dualistic nature of the German works councils is demonstrated in the following: on the one hand, they are organized on the basis of the workers’ initiative and represent the interests of all workers of a company. In particular, the Law on works councils in Germany defines that works councils may be established by not less than 5 employees. A member of the works council is elected by the employees, and their number is determined in proportion to the number of employees in an enterprise. If the total number of company staff comprises from 200 to 500 employees, the one elected member of the works council is released to perform its tasks and functions, and so on the Law sets the ratio between the number of employees employed in the enterprise, and released members of the works council.
The duties of the works council includes daily organization of labour, work scheduling; supervision of employment of new workers; control over the execution of collective bargaining agreements between sectoral (territorial) trade unions and employers, the training of the employees etc. If we talk about the prevalence of works councils, it should be emphasized that for 2007 only in 56% of German companies had works councils.
On the other hand, works councils institutionally linked to the welfare of the company, or with the interests of capital. According to the law the German works councils are called to protect the company’s interests and maintain social peace. In other words, they have no right to organize any collective action or a strike of workers against the owner of production. Moreover, the costs associated with the activities of the works council, including salaries of its members, are directly taken by an employer. This moment does not allow the works council to enter into a direct confrontation with the owners of the company, and thus take a tough stance in defending the interests of workers.
Such a contradictory nature of works councils is based on the pledged by German social-reformist strategy of compromise between labor and capital. Besides, it should be born in mind the presence in the high-developed capitalist countries, and especially in Germany, quite organized and influential trade unions, which are capable by means of collective action to put pressure on employers and thus hold the balance of interests, including reinforcing the activities of works councils. German trade unions, organized on a territorial and sectoral principle, which are interested not only in increasing their representatives at the workshop committee at the enterprises (Vertrauensleutekörper), but also in attracting to its ranks as many as possible the members of the works councils.
What can cause an attempt to introduce the experience of the German works councils into the Russian practice labor relations?
Firstly, I want to emphasize that the classical capitalism has developed differently in comparison with the countries belonging to peripheral capitalism. If in the first case social tension and discontent among employers and the working class can be reduced by means of the redistribution of income from production located on the periphery of capitalism in favor of the center, as well as of the pressure of trade unions politics; in the second case (e.g. in the Russian one) – as a rule, the small number of powerful trade unions and the dependent position of the ruling class of the country on the financial and industrial elite of the capitalist centre (on the account of foreign investment attraction) lead to the rise of exploitation of the working class, to the restriction of trade union activity, the merge of interests between capital and bureaucracy in the peripheral societies. Therefore, the introduction of the model of works councils into the Russian practices of labour relations would not lead to the implementation of the reformist strategy in the relationship between capital and labor (as in Germany), but to the distorted fragmentation the rights and responsibilities of the different actors that protect the interests of employees (if to take hypothetically amid “works council, trade unions and representative bodies”). The last eventually will lead to the erosion of the grounds to elaborate the radical position of the working class in the protection of their social and labor rights.
In this regard I think it is important to address to the opinions of the actors of production process. Carrying out the research on the perspectives of alternative trade union movements in Russia, I have put for the members of the independent trade unions a question concerning their attitude towards to the introduction of the German works councils experience into the social and labor relations in Russia. Let me cite some responses.
The member of the Interregional Trade Union of the automotive industry (MPRA), the plant “Benteler Automotive”, Kaluga city: “I have to be honest some suspicion to this structure: how can protect workers’ right a body which really depends on the employer? If the trade union has its own organizational units, their means of influence, the members of works council are paid by the employer. The works council does not own a resource for collective action and leverage. At one point even if the employer wants, works council will not be able to gather as the first may not provide a room. It is one thing when the works council is organizing the technical, social and domestic issues, but, in fact, they are trying to replace trade unions – employers are trying to make an organization (works council) that would work as if on behalf of workers. This is troubling, so I am quite skeptical with respect to the practice of a works council”.
The member of the MPRA, the plant “Volkswagen”, Kaluga city: “The works council instills fear. The fact is that the employer is trying to create in our plant such a body. If the works council will organize technical issues, such as clothing, then it will take a huge load of associated problems from the trade union, but if the works council will deal with the collective agreement then it is a serious point since it does touch the questions of wages, in fact, our bread. The union should have more influence and define the relationship of the employees with the employer. In fact, the works council is a sort of “wooden shirt” which is now being put on us, whereas culture should gradually form itself historically. In essence, rather than to wait until the culture may gradually emerge itself as a result of certain development, now we are deprived of our own development and a civilized choice. We are imposed by the same way the principles of democracy. However, our nation is still living with its consciousness under the Tzar regime. Therefore, the attempt to impose what has not yet formed in the public consciousness will not lead to the positive results”.
The representative of the MPRA, St. Petersburg: “I do not have any problems with the introduction of works councils. As long as it does not take a perverted form as it happened with the birth of councils of labor collectives in the end of the USSR. In my view, there must be competent and well-balanced approach to their introduction, we are not afraid because there is a definite experience, and it should be adopted. Currently there is a work in the “Volkswagen” plant to establish the works council. Now we are trying to agree on and formulate clear rules of the game that it was not a game in pseudo democracy but a real democracy where the elections must be democratic enough. The function between the works council and the trade union can be clearly divided as it is happening in Europe. In fact, my colleagues from the “old trade unions” fear all that, as the majority of the old trade unions already realized the duties of a works council in the form that exists around the world – but the smallest part of these functions since the questions of production they generally do not discuss, except for some enterprises. So when they are reborn from the name “trade union” into the name of “works council” and will perform its function, then everything will be loud and clear: there will be no war between the “old trade union” and the union MPRA but a war between the union and the corrupted works council. Everything will have its name, so I am just – for ».
The member of the trade union “Novoprof” (“New trade union”), St. Petersburg: “The model of works councils in the framework offered by V. Putin aims at shattering of trade unions and enterprises. This will lead to increased investment into the Russian economy because labor will become cheaper. We understand perfectly that these works councils will not be even hand-held but dependent on the employer as elections, where there is no democracy, are nothing. Accordingly there will be normally lured workers who will represent the interests of the employer. In Germany there are territorial and sectoral unions. They should not be registered as a primary trade union organization at the company (as we have in Russia), they have to win the elections into work councils. We do not have all that, that is why without changing the law on trade unions, without restoring the guarantees of released unionists, companies and the state just wish to introduce these works councils”.
The member of the “Russian Trade Union of Seamen” (RPSM), St. Petersburg: “When I was in Germany I saw the works council hears opinions of workers. The chairman of the German works council once said: “It is good that we have a union, because the works council is not funded”. In our case, it may turn out differently in the law can be written that collective agreements may enter only the trade unions and workers’ organizations, and the works council is not an organization of workers. Why would the director need an organization of workers? It may be called as a council of the labor collective, where the heads of management are not included. If this will be done on the model of Germany, it would be great, but if the unions will be said, “You are no longer under necessity”, – I do not support such an initiative. If there will be in one body employer and employees, the exploiters and the exploited – it is wrong, it violates the principle of trade union activities. In the “old” trade unions, employers may include, in our trade union – it is impossible”.
The member of the Russian union of dockers (RPD), St. Petersburg: “The works councils in Germany actually work. There are trade unions, which work accordingly to the industrial sectors, i.e. the sailors, miners, metalworkers, and in a definite enterprise – at this plant, at this mine, or in the port – there are works councils, which coordinate own activities with the unions. What is offered to us, that is, on the one hand, at the level of the Labour Code stipulates that the union represents workers, has the right for collective bargaining, but if the union does not aggregate more than 50% of the employees, there shall be a general meeting of all employees which may entrust the negotiations to another body. We are already faced with a situation when the employer makes a “yellow union”, attracts people, or, for example, in the chemical complex in the port of “East” the employer created a body of “public initiative” to which any employee would be automatically enrolled. It was the body with which the employer began to conduct negotiations and sign a collective agreement. In fact, the body replaced the union. I see in the creation of works councils knowing the wishes of the employer – although they say that their activities will not overlap with the union – an alternative to the trade unions and with that their end in certain enterprises. We are well aware that if the trade union has at least some independence according to the law from the employer and the authorities, the works council will be fully under the control of an employer”.
Secondly, the uncritical transfer of the experience of social practices from one cultural context into another, leads to nonviability of such an exchange, actually its discrepancy increases if such practices are taken not by the actors of production themselves but are imposed from the outside.
The practice of the German works councils develops in a different form and content of labor (social in general) relations, namely in the framework of the balance of interests between employers and employees (Mitbestimmung). The German model of social partnership has many advantages due to the fact that the unions are recognized as equal to the employer actors of social and labor relations, and where the works councils cooperate closely with the unions.
While modern Russian labor practices which are also within market economy have been developing in the opposite direction: even when the embodied in the Labour Code rights of the trade union for collective bargaining encounters every possible rejection from the side of the employer. Therefore, trade unions in Russia before to be one and thus protect the rights of workers must at first overcome tough obstacles of non-recognition created by the employer. Moreover, it should be born in mind a Russian trade union according to the new adopted in December 2001 Labour Code (replaced the Code of Laws on Labour (1992-2001) that having come partly from its soviet version still allowed broader protection of trade unions) must be firstly established on the level of a concrete factory, company or enterprise. And only this primary trade union organization (Article 29 of the Labour Code) having in its membership obligatory more than 50% of the company’s employees has a right to carry out a collective bargaining which makes almost impossible to win negotiations in the favor of employees, – therefore to spread practices of collective agreements. The number of collective agreements concluded between employers and sectoral trade unions is practically small. That is why even in that aspect it is possible to argue that the framework of Russian labour relations differs a lot from the German one in order to tear out some of its parts and to apply them in another scope.
Thirdly, the Russian labor legislation already provides for the establishment by the employees for the protection of their interests a representative body (Article 31 Labour Code), if there is no at company a primary trade union organization, as well as, if it does not incorporates more than 50% of the employees to start a collective bargaining. Under the Article 31 of the Labor Code, the representative body is elected from the employees on the basis of a secret ballot at a general meeting of workers. The list of the main authorities of the representative body allows the acquisition from the employer a complete and accurate information necessary for collective bargaining agreements and monitoring their implementation (Article 22); maintenance on behalf of employees of collective bargaining (Article 36), the right to participate in the governance of the organization (Articles 52, 53), etc.
If to compare, we can see that the works council in Germany, as well as a representative body of employees according to the Labour Code of Russia is set up under the initiative of employees. But if to look at the contradictions and inconsistencies around the notion of “representative body”, which in practice of labor relations are often expressed in the formation of employer-controlled structures, as if representing the interests of workers, it becomes apparent that even lawfully laid down rules of employees’ self-organization may find the opposite filling in practice.
It should be noted in this connection that in Russian companies already exists the practice of founding under the influenced of the employer (!) so-called “yellow” unions that aim at increasing the number of its members so as to weaken the position of alternative trade unions at a definite company. In these circumstances, in my opinion, the creation of works councils which should consist of the representatives from all employees will be fulfilled in the same “as if” way, and therefore very likely structures depending on their management as well as accountable on it will cause repression of independent trade unionist self-organization.
Therefore, in my view, it would be much more efficient to overcome both the legal and practical problems that are built around the institution of the representative body of workers. Moreover, it is worth considering an ambiguous experience of councils of labor collectives of the late 1980s – where elected workers, foremen, masters, experts, representatives of the administration, party, trade union, komsomol and other public organizations – in order to improve on the present stage already existing forms of worker participation in the governance of the enterprise .
Thus, the adoption into labor relations of Russia the model of works council without the necessary conditions for its real activity, namely, the existence of strong trade unions, will not lead to the empowerment of workers. As it has been said, if works councils in Germany are working in a functioning system of collective bargaining between workers (trade unions) and the employer, and a system of codetermination. In Russia the practice of social partnership has not been able to form on the account of the predatory and barbaric nature of the return of the country into the capitalist system after the collapse of the Soviet Union.
Therefore, the slogan that focuses on the formation of so-called “labor aristocracy”, in reality, reflects current concerns and awareness of the ruling class of the state towards the fact that the emergence of broad mass protests amid the working class in the current rising deterioration of its status position is only a question of time. Therefore, offering a model of works councils, in particular, according to the model of Germany, the Russian ruling class is willing to create a layer of controlled employees who imitating the representation of workers’ interests in reality will destabilize the grounds for the development of alternative the trade union movement of new generation.
 Betriebsverfassungsgesetz §9. BetrVG, Ausfertigungsdatum: 15.01.1972. (Закон Германии о производственных советах).
 Betriebsverfassungsgesetz §38. BetrVG, Ausfertigungsdatum: 15.01.1972. (Закон Германии о производственных советах).
 BISS (Ruhr-Universität Bochum), 2007.
 Betriebsverfassungsgesetz §2. BetrVG, Ausfertigungsdatum: 15.01.1972. (Закон Германии о производственных советах).
 Betriebsverfassungsgesetz §38, 40. BetrVG, Ausfertigungsdatum: 15.01.1972.