Developing procedural benchmarks

The study will imitate Falkner et al’s in that one benchmark it will employ to assess ‘effective’ implementation is the extent to which the Agreements were implemented ‘on time’. Thus, just as Falkner et al appraised whether the Directives that were the subject of their study were implemented in member states within the requisite time period, our study will assess whether the Framework Agreements were subject to some form of procedural implementation in member states in the three year timescale foreseen by the Framework Agreements.

In the absence of the ‘legal incorporation’ benchmark with which Falkner et al were able to appraise the implementation of EU Social Policy Directives, a further

benchmark with which it will be auspicious to gauge the implementation of the Telework and Work-related Stress Agreements is the national ‘procedures and practices’ implementation clause by which the Agreements were to be transposed in accordance with. As Agreements that have their foundation in Article 139 of the Social Protocol that was annexed to the Maastricht Treaty, it is clearly specified in both Agreements that they be implemented ‘in accordance with the procedures and practices specific to management and labour in the member states’. Thus, the study will also benchmark the implementation of the Framework Agreements with the

national ‘procedures and practices’ implementation clause in the same way as Falkner et al benchmarked the implementation of EU Directives by assessing whether the terms of the Directives had been transposed into national law.

Given the existence of the national ‘procedures and practices’ clause, it has been insisted by the European-level trade union movement that national social partners display fidelity to national ‘procedures and practices’ when transposing the two Agreements. This is the espoused position of ETUC (Prosser, 2007), and the national ‘procedures and practices’ clause is also referred to in the European social partner ‘Joint Implementation Report on the Telework Agreement’(2006). Advocates of this view (Larsen and Andersen, 2007) argue that in practice this implementation clause impels national social partners to use the instrument they would ‘normally’ use at the national level to transpose the European Agreement. Thus, if in country x the

‘normal’ social partner tool for the regulation of an issue such as teleworking was a legally binding social partner national collective agreement, then the ‘effective’ procedural implementation of the Telework Agreement would entail the use of this method to transpose this Agreement. If the social partners in country x were to

employ, for example, a set of non-legally binding guidelines to transpose the

Telework Agreement, then this would imply that the Telework Agreement had been transposed ‘ineffectively’.

In their study of the implementation of the Telework Agreement in the member states, Larsen and Andersen (2007) explicitly identified the national ‘procedures and

practices’ implementation clause as the criterion deployed for assessing the

‘effective’ implementation of the Telework Agreement. Others have advocated the principle in broader terms. Hoffmann et al (2002), in a work predating the Telework Agreement, argued that the most appropriate manner in which to evaluate the implementation of EU ‘soft’ law was to appraise how the EU text was treated when compared to equivalent national regulation. Marginson and Sisson (2004) also advocated the use of this benchmark, arguing that it offered a pragmatic and constructive way of appraising the effect of EU ‘soft’ law.

The national ‘procedures and practices’ implementation clause has also been the subject of criticism. The main objection that has been raised is the existence of a large body of states in which national ‘procedures and practices’ are either ill-defined or in their infancy. In the case of the former, critics such as Berndt Keller (2003) have pointed to examples such as the UK, where there is no forum for inter-sectoral collective bargaining, sectoral bargaining only exists in a minority of sectors, and collective relations between management and labour, where there is a trade union presence, primarily take place at firm or plant level. In the case of the latter, there are the majority of the new member states that have acceded to the European Union since 2004 (Prosser, 2007). In these states, structures for bipartite dialogue are developing at the inter-sectoral and sectoral levels, but the systems are as yet largely characterized by de-centralized plant or firm level social dialogue and/or inter- sectoral tripartite concertation with a heavy emphasis on the role of the state.

Although European Agreements may stimulate the development of social dialogue in states such as the UK and the new member states (European Social Partners, 2006),

the extent to which the implementation of the Telework or Work-related Stress Agreements may be carried out in accordance with national ‘procedures and practices’ is debatable given the dis-organized nature of social dialogue structures.

Despite these criticisms, the national ‘procedures and practices’ implementation clause nonetheless provides a promising benchmark for the evaluation of the cross- national implementations of the Framework Agreements. It is widely used both by policy makers and scholars, and also crucially has a legal basis in the Social Protocol and is specifically referred to in the two Agreements.