The High Court will soon consider for the first time the operation of European Works Councils (“EWCs”) in Ireland following an appeal of two recent Labour Court decisions. Employers who operate EWCs from Ireland will be watching developments closely.
The complainant has appealed the Labour Court’s first decisions in respect of EWCs, which were handed down in Verizon Ireland Limited v Jean-Philippe Charpentier in August 2024. These decisions provided guidance on the provision of training to employee representatives, and illustrated a potential solution to shortcomings in Ireland’s transposition of the Directive on European Works Councils 2009/38/EC (the “Directive”). A degree of ambiguity remained following the Labour Court’s declining to address the issue of costs and confirmation that it had no jurisdiction to resolve collective disputes: the appetite of the Courts to deal with the matter will now be tested.
We revisit the Labour Court decisions below in anticipation of the case reaching the High Court in the coming months.
European Works Councils in Ireland
EWCs are bodies designed for the exchange of information and consultation between workers and employers on European transnational matters. Notwithstanding the transposition of the Directive into Irish law in 1996 under the Transnational Information and Consultation of Employees Act, 1996 (“TICEA”), EWCs were not a significant feature of the Irish industrial relations landscape when compared to other jurisdictions.
This changed following Britain’s decision to leave the European Union, when many multinational companies who could no longer operate an EWC from the United Kingdom selected Irish entities as their representative agents. It is estimated that over 100 different global organisations moved their EWCs to Irish law following Brexit. Since then, stakeholders representing both employees and employers have raised concerns that TICEA is not fit for purpose, in particular noting that it does not provide for an effective mechanism to resolve collective disputes.
Verizon Ireland Limited v Jean-Philippe Charpentier
The Verizon Labour Court decisions are novel because they are the first decisions of an appellate court concerning EWCs. The claims were brought by Jean-Philippe Charpentier, a member of Verizon’s EWC. The key issues raised by Mr Charpentier were whether Verizon:
- should pay a disputed invoice for expert assistance by the EWC Academy (pursuant to section 17(1A) of the Irish transposing legislation); and
- was obliged to reimburse Mr Charpentier for attending an unapproved training session in Hamburg (in accordance with section 17B of TICEA), as well as his legal costs for taking this claim.
The matters were heard first before the Workplace Relations Commission (“WRC”), the adjudicative body of first instance for employment disputes in Ireland. Mr Charpentier was partially successful in the claim involving expert assistance, and unsuccessful in the claim relating to the unapproved training session.
Mr Charpentier appealed both decisions to the Labour Court. The Labour Court dismissed both these appeals, finding that:
- as Mr Charpentier was acting in a representative capacity, the claim concerning the expert assistance invoice was a “collective” dispute and therefore not within the scope of section 17(1A) of TICEA. This provision safeguards “individual” rights only and the WRC and Labour Court are not “a means of progressing disputes that are collective in nature.”
- Verizon was not obligated to reimburse the cost of Mr Charpentier’s training event in Hamburg. Mr Charpentier had been informed by Verizon prior to the training event that they would not fund it and Verizon were also held to have met their training requirements under TICEA. While the WRC found that the successful party was not entitled to cover its costs, the Labour Court declined to decide on this stating that, as the appeal was rejected, the issue was “moot”.
Clarity on what constitutes “training”
As employers must provide training to EWC representatives, the Labour Court’s comments on what level of training is required provided welcome clarity. This is a matter that has been appealed to the High Court, and accordingly we await further developments, but the Labour Court decision remains the current position.
Verizon had sought to satisfy the training requirement by engaging two industry experts to provide the required training (an employment law specialist with experience in advising on EWCs and a former member of the Labour Court). Mr Charpentier argued that this was not sufficient, and that further training was necessary. Verizon disagreed with this, and refused to fund the training.
The approach of the Labour Court is noteworthy. Mr Charpentier produced extensive expert evidence over the course of five days concerning the meaning of “training”: in characteristic fashion, the Labour Court distilled this information and identified what it considered to be the key issues quickly. It found that the training provided to the EWC was sufficient, highlighting the recognised expertise of both presenters in the area of Irish and EU employment law generally and that the law does not require employers to present EWC representatives with a “blank cheque” for training.
Rather, the exercise should be collaborative, with input from the EWC representatives and management representatives. An employer is not required to provide training that goes beyond what is reasonably required and appropriate. An advance warning from an employer to an employee that training will not be reimbursed (as happened in this case) will be a relevant factor in determining the success of any claim for reimbursement of training costs.
The absence of an effective mechanism for resolving collective disputes remains a difficulty
The Labour Court decisions were a timely reminder that the legislation deals only with individual disputes, not collective disputes. The Labour Court confirmed that this jurisdiction will not be expanded by Irish adjudicative bodies. This was not a surprising outcome, and is a matter of critical importance to the appeal to the High Court.
In 2022, the European Commission initiated infringement proceedings against Ireland on the basis that TICEA failed to guarantee the right to go a national court over disputes related to breaches of the rights and obligations under the Directive. Stakeholders representing both employees and employers have for many years raised concerns that TICEA does not provide for an effective mechanism to resolve collective disputes.
While arbitration provisions are contained in the legislation, it has proven impracticable to use these provisions in the Irish context, as they are still incomplete. The approach of the WRC and the Labour Court to these issues provides a glimpse of a potential solution to the issue – both bodies regularly adjudicate legal and industrial relations disputes, and their involvement has been suggested by many stakeholders as the potential solution to the “gap” in Irish law.
It will be argued before the High Court that the Labour Court erred in law in declining to decide on this matter due to lack of jurisdiction. In light of the context above, we anticipate that this is a matter that will require legislative action to address – the extent of legislative action required will become clearer once the High Court have considered the matter.
While debate is continuing at European level on the provisions of a new EWC Directive (proposed to be updated later this year), the Irish Government has indicated its preference to wait until there is agreement at that level before addressing concerns in relation to the current dispute resolution mechanism. This indicates that unless the High Court takes an interventionist approach, the “gap” is likely to remain in place for some time.
For further information please contact our Employment, Pensions and Benefits Group, who advise on all aspects of EWCs and are on hand to provide support as needed.
This article was co-authored by Employment, Pensions and Benefits senior associate Rachel Barry, associate Colum Holland and trainee Keeva McHugh.