FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), EMPLOYEES (PROVISION OF INFORMATION AND CONSULTATION) ACT, 2006 PARTIES : NORTEL (IRELAND) LIMITED (REPRESENTED BY WILLIAM FRY) - AND - INFORMATION AND CONSULTATION FORUM NORTEL (IRELAND) LIMITED (REPRESENTED BY PURDY FITZGERALD SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Failure to provide the Employee Forum with any financial resources
BACKGROUND:
2. The Forum referred its case to the Labour Court on the 15th October, 2009. A Labour Court hearing took place on the 10th February, 2010, in Galway. The Forum's case is that Company has refused to provide it with financial resources that are both necessary and reasonable to enable it to perform its duties in an appropriate manner as is provide for under the legislation pertaining to the establishment of such bodies, specifically Section 15(1) of the Information and Consultation Act, 2006. The Company maintains that the only issue involved is that of legal costs and that it is not obliged to pay such costs. The following is the Court's recommendation.
RECOMMENDATION:
This is a referral to the Court by the representatives of employees of Nortel (Ireland) Ltd (hereafter the applicants) pursuant to s.15 of the Employees (Provision of Information and Consultation) Act 2006 (hereafter the Act) in a dispute concerning the interpretation and operation of the Standard Rules applicable to an Information and Consultation Forum established under s.10 of the Act.
Background
The background against which this dispute arose can be summarised as follows: -
1. In October 2008 Nortel (Ireland) Ltd (hereafter the Employer) and its employees entered into an Information and Consultation Agreement. The agreement provided that the standard rules set out in s.10 of the Act would apply to the operation of the Forum established by the Agreement.
2. In or about January 2009 the Employer became insolvent. It obtained the protection of the High Court in England and was placed in Administration by order of that Court. That order took effect in this jurisdiction pursuant to Council Regulation 146/2000 on Insolvency Proceedings.
3. Prior to the Employer being placed under the protection of the Court, it sold part of its business to another undertaking known as Avaya Incorporated. Consequent upon this transfer some 258 of the Employer’s employees were transferred to the employment of Avaya. The Administrators of the Employer are continuing to seek buyers for the remaining parts of the business.
4. The Forum sought funding from the Employer to meet certain costs incurred in obtaining legal advice on employment related issues. The Employer refused to provide such funding.
The Applicants contend that the employer is obliged to provide the Forum with such financial resources as are necessary and reasonable to enable them to perform their duties in an appropriate manner. The Employer acknowledges that it is so obligated but it contends that this obligation does not require it to meet legal costs incurred by the Forum.
Conclusions of the Court
The relevant provisions of the Model Rules at issue in this case are contained at Clause 5 thereof. This Clause provides as follows: -
- 5. (1) The expenses incurred in the operation of the Forum shall be borne by the employer.
(2) The employer shall provide the members of the Forum with any financial resources that are necessary and reasonable to enable them to perform their duties in an appropriate manner.
The import of this provision is clear. The financial resources which an employer is obligated to provide must be for the purpose of enabling the Forum to perform it duties under the Act and must be necessary to that end. The resources required must also be within the bounds of what is reasonable in the circumstances of the case under consideration.
It is the Employer’s contention that the only claim advanced by the Forum was that it be put in funds to meet legal costs. The Applicants contend that the claim is not simply for the reimbursement of legal costs. However, their claim for financial resources has not been particularised in its submissions to the Court although it is clear from correspondence opened to the Court that what was previously raised by the Forum was a claim that the employer should meet its legal costs.
It seems to the Court that the criteria of necessity and reasonableness can only be applied where the purpose for which the resources are claimed is clearly identifiable. In that regard the only discernable claim made by the forum was for the payment of legal costs incurred, actually or potentially, in the pursuance of industrial relations claims or in obtaining advice on employment related matters.
Having regard to all the circumstance of this case the Court does not accept that legal advice or representation is necessary for the pursuance of industrial relations claims. Nor does the Court accept that the pursuance of such claims falls within the range of duties ascribed to an information and consultation forum under the Act. In relation to the matters upon which the forum wished to seek advice, the Court is satisfied that the information which they required could have readily been obtained elsewhere, including from State Agencies, without the need to incur legal costs.
Recommendation
For the reasons outlined above the Court does not recommend that the employer is obliged under Clause 5 of the Model Rules set out a Schedule 1 of the Act to provide the applicants with fund for the purpose of meeting the legal costs which it previously claimed.
Signed on behalf of the Labour Court
Kevin Duffy
5th March, 2010______________________
CONChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.