TID241

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034402 (CA-00043368-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 23 May 2023 in accordance with Section 17B of the Transnational Information and Consultation of Employees Act.  Labour Court hearings took place on 30 May, 31 May, 4 June, 17 June and 8 July 2024.

The following is the Decision of the Court:

DECISION:

Background to the Appeal

This is an appeal by Mr Jean-Philippe Charpentier (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00034402/CA-00043368-001, dated 14 April 2023) under the Transnational Information and Consultation of Employees Act 1996 (‘the Act’). Notice of Appeal was received in the Court on 23 May 2023. The Court convened a case management conference on 25 October 2023 and proceeded to hear the appeal over five sitting days: 30 and 31 May 2024, 4 and 17 June 2024 and 8 July 2024. The Court heard the within appeal together with Complainant’s related appeal under the Act, the subject of a separate decision which bears reference number TIC/23/2. Over the course of the combined hearing, the Court heard sworn evidence from the Complainant and from the following witnesses: Dr Werner Altmeyer, Professor Martin Gruber-Risak, Mr Romuald Jagodzinski, Mr Kevin Rodgers and Mr Dragos Voinescu. Only the evidence relevant to the within appeal is recorded in this decision.

The Complaint

The Complainant is employed by Verizon France SAS and chairs the European Works Council (‘the EWC’) of Verizon Communications Inc. Verizon Ireland Limited (‘the Respondent’) has been the latter’s representative agent in the EU since late 2020. The EWC is established under the subsidiary requirements contained in the Second Schedule to the Act.

The EWC’s Select Committee (of which the Complainant is also a member) engaged the EWC Academy (based in Hamburg) to be the nominated expert to the EWC. The Select Committee/EWC engaged the services of Dr Werner Altmeyer of the EWC Academy on a number of occasions during 2021 to provide it with advice and to conduct research on its behalf. Verizon Central Management took no issue with the EWC’s choice of expert or with the expert’s rates but, to date, the invoice issued by the nominated expert remains unpaid as Central Management disputes the necessity and/or the appropriateness of certain elements of those invoices.

In this appeal, the Complainant requests the Court to direct the Respondent to make payment for the full amount of the disputed invoices (€11,200.00) plus interest at the prevailing rate under German law. The Academy’s rates are €2,640.00 per day (or €330.00 per hour) plus VAT.

 The Complainant is also seeking compensation pursuant to section 17 of the Act and his costs in respect of the within proceedings which, he told the Court, he has taken “in a representative capacity” as chair of the EWC.

It is appropriate to briefly list, at this point, the various services for which the EWC Academy has sought payment:

The Complainant’s Evidence

The Complainant outlined details of his employment with Verizon France. He told the Court that he had been elected as a member of the local works council in 2013 and was subsequently elected to the then EWC in 2014 which comprised nineteen delegates at that time (one per EU member state in which Verizon had operations). He then gave evidence in relation to the composition and role of the Select Committee vis-à-vis the EWC.

The Complainant said that the Charter under which the EWC had operated between 2016 and 2020 in the UK expired on 20 October 2020. He told the Court that there had been a series of meetings in the early part of 2020 between Central Management and the EWC about successor arrangements although it was unclear at that time where any new EWC would be located post-Brexit. According to the Complainant, the members of the former EWC became aware very shortly after the expiry of the Charter that the Irish company (i.e. the Respondent) would become the representative agent for the purposes of the Directive. At this time, Central Management’s clear position was - he said – that the mandate of the existing EWC members had ceased on the expiry of the Charter.

The Complainant’s evidence was that the first meeting of the new EWC – operating under the Subsidiary Requirements in the Act - took place on 29 January 2021. Prior to this, he said, the Select Committee had engaged the expert services of the EWC Academy to assist the EWC. The EWC agreed rates with the Academy. These were never disputed by Central Management, he said. It was the EWC’s role to review all invoices and the time spent by the Expert and to agree or disagree with it. However, as the EWC does not have a budget, bank account or legal standing the Expert’s invoices are directed to Central Management for payment.

According to the Complainant, Dr Altmeyer’s assistance with the preparation for, and conduct of, the first meeting was sought so as to ensure that everything would be transparent for future members of the EWC as only a small number had been appointed/selected prior to the date of that meeting. The Complainant added that the EWC also anticipated that there might be some ‘friction’ with Central Management, in the light of prior dealings, and it, therefore, requested Dr Altmeyer to review the minutes of the meeting.

The Complainant’s evidence was that the Select Committee decided that it was necessary and appropriate to seek the advice of the Expert in relation to the differences between Irish and UK law transposing the Directive and the implications of operating under the Charter versus under the Subsidiary Requirements.

It was also the Complainant’s evidence that obtaining the Expert’s advice on the status of UK delegates post-Brexit was necessary and appropriate as the UK delegates had represented over one-third of Verizon employees in the EU prior to Brexit. The EWC, he said, need an informed opinion as to whether or not the UK delegates could be retained as part of any EWC arrangement put in place post-Brexit.

The Complaint then told the Court that Dr Altmeyer had been engaged to draft new procedural rules for the EWC as those that had been in place under the Charter were no longer fit for purpose. According to the Complainant, the Charter obliged the EWC to furnish its rules to Central Management but there was no corresponding provision included in the Subsidiary Requirements. Therefore, he said, the EWC did not copy the new rules to Central Management.

The Complainant said the EWC engaged Dr Altmeyer to review correspondence between it and Central Management in late March 2021 regarding a proposed meeting to discuss a potential transaction because the EWC had no idea of what to expect from Central Management in the way of documentation. This issue had been comprehensively covered by the Charter, he said. The EWC also had several queries about any NDA they might be expected to agree. He again said that the decision to obtain expert advice was made in the light of previous friction between Central Management and the old EWC and was informed by a desire on the part of the Select Committee to be well prepared in advance of the proposed meeting.

The Complainant’s evidence then turned to issues surrounding the announcement about the sale of Verizon Media. The EWC, he said, needed to understand whether some form of legal action or arbitration was required in circumstances where Central Management had declined to meet with the EWC about the decision to dispose of Verizon Media.

According to the Complainant, the EWC engaged Dr Altmeyer to research the potential inconsistency between the Act and the underlying Directive as there was a dearth of information about this matter at the time. The EWC was of the view that it could benefit in this context from Dr Altmeyer’s wide network of legal and trade union contacts.

Under cross-examination, the Complainant agreed that he had been reappointed by his local works council in France to the EWC in January 2021 and that that EWC, although its membership was not yet fully constituted, was operating under Irish legislation. He also agreed that he wrote to Central Management in January 2021 to advise it of the membership of the Select Committee and of the Committee’s decision to engage Dr Altmeyer and the EWC Academy as its Expert. He agreed with Counsel that Central Management did not challenge either Dr Altmeyer’s appointment or his stated daily rate. He also agreed that there is no contractual agreement in place between Verizon and the EWC Academy as the matter of the appointment of an Expert is exclusively a matter for the Select Committee and the EWC.

In reply to Counsel’s questions, the Complainant stated that the use of an Expert to review minutes of the constituent meeting of the new EWC in January 2021 was a once-off occurrence, but he believed it was necessary on that occasion as only seven or eight members of the EWC had been elected or selected and the Select Committee was appointed at the meeting. It was put to the Complainant that it was neither necessary nor appropriate for the EWC to seek Dr Altmeyer’s expert opinion in February 2021 on the differences between UK and Irish law regulating EWCs as the Central Arbitration Committee in the UK had already decided in January 2021 that the Charter had expired. The Complainant disagreed with Counsel that the issue was moot at this stage. He adopted the same position in relation to the EWC’s request to Dr Altmeyer regarding the status of UK delegates post-Brexit as he believed it was necessary to explore whether or not there was a way in which one-third of Verizon’s workforce in the EU could continue to be represented on the EWC. The Complainant told Counsel for the Respondent that Dr Altmeyer’s engagement for the purpose of drafting procedural rules was, in his view, necessary and appropriate as the EWC’s current internal rules differ from those that applied under the Charter. Counsel observed that this was the first occasion on which this had been disclosed by the Complainant.

Evidence of Dr Werner Altmeyer

The witness gave a brief outline of his academic qualifications and his twenty-five years’ experience working with works councils. He told the Court that he is the director of the EWC Academy which he founded in 2012 and that he devotes 100% of his working time to assisting approximately 100 individual European Works Councils in several jurisdictions. He said that 12-15% of the c.1.200 EWCs that are currently extant operate under Irish law post-Brexit. However, according to the witness, only 1-2% of the total number of EWCs are based on the Subsidiary Requirements.

The witness told the Court that the Respondent is the only company of some three-hundred-and-seventeen companies he has had a professional engagement with that ever challenged the charges in an invoice. He then gave an outline of the normal process that takes place to obtain a Purchase Order Number from a company when the EWC Academy has been nominated as an expert to that company’s EWC. He said that although there had been extensive communications between the EWC Academy and the Respondent in 2021 about registering the former as a supplier, the process was never actually completed. He said that he, therefore, told his assistant to cease the engagement as it was proving to be a waste of time. As a consequence, he said, there is no concluded agreement between the Academy and the Respondent’s Central Management.

The witness then outlined the differences between the ‘French model’ and the ‘German-Dutch model’ respectively under which EWCs operate in different jurisdictions. Under the latter model, for example, he said the EWC has no bank account, no standing as a legal entity but does have partial legal capacity to enter into binding contracts with service providers etc. The witness said that, to his knowledge, the Verizon EWC had no budget of its own.

The witness said that the EWC Academy does not invoice after each individual meeting but normally waits three to six months to invoice for work done in that period. In the case of the Respondent, the EWC was unsure which legal entity it was to invoice and what VAT number to use. In reply to a question from Mr Kerr SC, the witness said that he did not believe that any of the seven items the Academy invoiced the Respondent for was excessive. Counsel took the witness through each of the seven items in some detail and the witness explained which he believed each item of advice/assistance was appropriate, reasonable and necessary. For example, in relation to item 3 (the status of UK delegates post-Brexit), the witness said that it was not a simple question of UK delegates being in or out after Brexit and that it was his duty as an expert to advise the members of the Works Council in relation to two cases before the Central Arbitration Committee at that time – Easyjet and HSBC.

Under cross-examination, the witness accepted that he is not a lawyer and has no knowledge of the practical application of Irish law. However, when asked by Mr Mallon to comment on section 6 of the Act, he said that – in his view – the limitation of ‘one expert per meeting’ was not consistent with the Directive. According to the witness, there is no one person who is expert on all the issues that can potentially arise in the course of a meeting of an EWC. Likewise, he said he didn’t believe that such expertise could be confined to the temporal duration of a meeting as often the necessary advice requires advance preparation and analysis.

Counsel then took the witness in detail through the seven items for which the EWC Academy invoiced the Respondent. Counsel said that the Respondent’s position regarding item 1 is that it will be paid when revised to exclude time spent reviewing the minutes. The witness told the Court that the Academy’s final invoice was, in fact, addressed to the Complainant’s work address and contained a French VAT number. It had not been sent to Verizon Ireland, he said. When asked why this was the case, the witness said, “We do not have a contract with Verizon Ireland”.

Counsel opened an email dated 5 July 2021 from Mr Dragos Voinescu to Ms Tea Omeragic, the witness’s personal assistant in which Mr Dragos provided details of the correct legal entity (and its VAT number) for the purposes of setting up the Respondent as a client for future services from the EWC Academy i.e. Verizon Ireland Limited, Lower Erne Street, Dublin 2, Ireland; VAT number IE 8224334A. Counsel then put it to the witness that a summary of billable hours was issued to the aforementioned address on 6 July 2021. Counsel next referred the witness to an email dated 20 July 2021 from Mr Voinescu to the Select Committee and on which Ms Tea Omeragic was carbon copied in which Mr Voinescu writes, inter alia:

“As you remember, we have also indicated in our previous emails our willingness, although not required to do so, to recognize the work that was done by the EWC Academy regarding the constituent meeting and the EWC internal rules, subject to sufficient information regarding the work performed and the time allocation.”

The witness said that the Academy, through Mr Charpentier, had proposed a meeting with the Respondent to discuss the details of the items it had invoiced for but that this was refused.

Evidence of Mr Dragos Voinescu

The witness told the Court that he is the EMEA Head of Labour Relations with Verizon, that he is based in France and is an employee of Verizon France and that he has responsibility for EWC matters and industrial relations. According to the witness, Verizon has approximately 100,000 employees worldwide, with between 3,000 and 4,000 employees in the EU post-Brexit. He said that there are nineteen countries represented on the Verizon EWC. He told the Court that the EWC was first established in 2008 under UK law and that it had been regulated by a fixed-term agreement (‘the Charter’) that had expired on 20 October 2020. The existing delegates’ mandates also expired at that time. The witness said that there had been protracted negotiations in 2020 with a view to arriving at a successor arrangement and the question of which law would apply to it was a live issue. A draft providing that Irish law would apply was rejected by the EWC members, he said. Ultimately, the discussions were unsuccessful. The witness’s evidence was that Verizon companies in individual member states were advised of the situation after 20 October 2020 and invited to elect or select, as appropriate according to local law, a delegate to a new EWC. The Complainant, he said, was reappointed by the French local works council on 17 November 2020 as were delegates from Luxembourg and Belgium. The witness also told the Court that steps were taken to initiate an election in the United Kingdom but this was subsequently cancelled after 31 December 2020. However, he said, the company proposed that UK delegates be added to invitation list for plenary meetings of the EWC so that the workforce there are kept informed of developments in the wider group of companies. By the end of January 2021, the witness said at least ten members had been appointed/elected to the new EWC.

The witness next told the Court that Central Management agreed to the appointment of the EWC Academy as expert advisor to the new EWC. It also agreed to the Academy’s hourly rate of €330.00 plus VAT. His evidence then turned to the individual items included in the invoice from the Academy. The witness said that the Respondent was willing to make payment for item 1 on the invoice (subject to a revised invoice being furnished) other than for the time Dr Altmeyer spent reviewing minutes of the constituent meeting of the Select Committee. The witness also said that the Respondent had asked on a number of occasions for a detailed explanation of item 2 and a clarification of why such advices were necessary in circumstances where the Charter no longer applied and the new EWC was clearly established under Irish law. He remarked that Dr Altmeyer had provided a more fulsome explanation, for the first time, as part of his evidence to the Court. The witness also stated that it was not until giving evidence at the within hearing that the Complainant had confirmed that there were differences between the internal rules that applied to the EWC established under the Charter and the rule that apply to the current EWC. The witness then went on to say that the Respondent had also queried the need for the EWC to seek expert advice in relation to item 5 as no meeting of the EWC in fact took place in circumstances where the mooted transaction did not occur as Verizon had been ‘down selected’ and, therefore, no transnational information and consultation process was required. In relation to item 6, the witness’s evidence was that the potential sale of Verizon Media was highly confidential and, therefore, not within scope of the information and consultation provisions and, as a result, it was unclear to the Respondent why an expert was engaged in that context. Finally, the witness said that it was his understanding that the engagement of the expert in relation to item 7 was prompted by the actions of a named company that appeared to be opposed to establishing an EWC. He queried how this could have been relevant to the Verizon EWC as Verizon had never opposed the establishment of an EWC.

Under cross-examination, the witness was asked detailed questions about his qualifications, hi role in Verizon and his reporting structure. He said he has a university degree in law, a master’s in international employment law and that he reports to Mr O’Rourke who in turn reports to the USA. However, the witness said that he has sufficient autonomy to deal locally with the EWC, with trade unions at country level and with national works councils in relation to negotiation of terms and conditions of employment. The witness denied that Verizon has a history of ‘troubled relations’ with trade unions. He said that the Irish company was non-union because no request had been received by it to deal with a trade union. He confirmed, in reply to a question from the Complainant’s Counsel, that Verizon regards its EWC as an integral part of the company. He was then asked about his engagement with the Complainant. He replied that he had first encountered him in 2019 and had subsequently engaged with him in relation to attempting to conclude an agreement to replace the Charter. Counsel asked about the reference in the Respondent’s submission to the Complainant as a ‘serial litigant’. The witness replied that, in his opinion, it was a fair statement.

Counsel questioned the witness in relation to the seven items on the Academy’s invoice. The witness said that it would have been preferable had the constituent meeting of the EWC that took place on 29 January 2021 been delayed to allow for the appointment/election of additional members to the EWC. The witness confirmed the Respondent’s position regarding items 1 and 4 i.e. the Respondent had no issue paying for these (other than for the time Dr Altmeyer spent reviewing the minutes from the constituent meeting), subject to a fresh invoice being furnished by the Academy. The witness confirmed that the Respondent had refused to date to pay for items 2, 3, 5, 6 and 7 but suggested that it may modify its position with regard to some of those matters, again subject to a fresh invoice being raised.

Evidence of Professor Martin Gruber-Risak

This witness appeared before the Court to give evidence as an expert witness. He has worked at the University of Vienna since the 1990s and was appointed Associate Professor of Law and Social Security there in 2006. He is also a member of the European Centre of Experts on Labour Law and consults with the EU Commission. He told the Court that he had, for example, reported to the Commission on the outcome of the case of the Mayr-Meinhof Packaging EWC decided by the Austrian courts. The witness confirmed to the Court that he has had no prior dealings with the Verizon EWC or with the Complainant. He also confirmed that he has no commercial relationship with the EWC Academy although he had received a request for guidance from it which he had redirected to a former PhD student of his.

The witness proceeded to give detailed evidence to the Court in relation to the facts of, and disputed issues in, the Mayr-Meinhof Packaging case and how they were determined at each stage of the judicial process in Austria. Under cross-examination, the witness confirmed that the aforementioned case is substantively about the Austrian Subsidiary Requirements.

Application for Costs

Mr Kerr SC has applied to this Court for an order in respect of the Complainant’s costs associated with bringing the within proceedings. Counsel seeks to base his application in this regard, in the first instance, on Article 10.1 of the Directive (which is transposed by section 17(1A) of the Act - and paragraph 6 of the Second Schedule to the Act. Counsel pointed to what he described as the “considerable … disparity in power and resources” between Verizon and the EWC and, in that context, submits that, as enforcement of the rights conferred by the Directive can only be addressed in the final instance by the courts and given that the European Works Council has no financial resources of its own, Central Management must bear the reasonable legal costs necessarily and appropriately incurred by the EWC. It is Counsel’s submission, that the legal costs incurred in this case are necessary and appropriate when one considers that this is not a case that the Complainant could have run himself.

Counsel also seeks to ground his application for costs in the EU principle of effectiveness of EU law i.e. that the rules for implementing the provisions of European Union law must not render impossible in practice, or excessively difficult, the exercise of rights conferred by EU law. Counsel cited the judgment of the Court of Justice in the joined cases C331/22 and C332/22:

"That since the principle of effective legal protection is a general principle of EU law, it is the responsibility of the national courts in the absence of a measure correctly transposing the Directive, to provide the legal protection which individuals derive from EU law and to ensure that those rules of fully effective."  

On the basis of the foregoing, Counsel submits that the lack of any costs provision in the Act is clearly an effective deterrent to enforcing EWC members' rights.

Mr Mallon BL opposes Mr Kerr SC’s application for costs. He submits that if the Court were to accede to the application, it would be taking on itself a jurisdiction that is not envisaged in either the Directive or the Act. Counsel also submits that generally decisions of the Court of Justice in these kinds of matters provide that the costs before that Court should be a matter for costs in the local court and the local court in this instance (i.e. this Court) is cost-neutral.

Sections 17, 17A and 17B of the Act

It is appropriate to set out the redress provisions at sections 17, 17A and 17B in the Act in full:

“17.—(1) Employees’ representatives who are employees and who perform their functions in accordance with this Act shall not—

 (a) be dismissed or suffer any unfavourable change in their conditions of employment or any unfair treatment, including selection for redundancy, or

 (b) suffer any other action prejudicial to their employment,

because of their status or reasonable activities as employees’ representatives.

(1A) Without prejudice to the competence of other bodies or organisations in this respect, central management shall provide the members of the European Employees’ Forum or European Works Council, as the case may be, with the means required to apply the rights arising from the Directive, to represent the collective interests of employees of the Community-scale undertaking or Community-scale group of undertakings concerned.

(2) Employees’ representatives shall be afforded such reasonable facilities, including time off, as will enable them to carry out their functions as employees’ representatives promptly and efficiently.

(3) Subsections (1) and (2) shall apply in particular to attendance by employees’ representatives at meetings of Special Negotiating Bodies, European Employees’ Fora, European Works Councils or any other meetings within the framework of an agreement referred to in section 11 (1) or of the Second Schedule.

(4) Employees’ representatives who are employed in a Community-scale undertaking or a Community-scale group of undertakings shall be paid their wages (within the meaning of the Payment of Wages Act, 1991) for any period of absence for the purposes of the performance of their functions under this Act.

(4A) An employees’ representative, or an alternate of that representative, who is a member of the crew of a seagoing vessel, shall be entitled to participate in—

 (a) a meeting of the Special Negotiating Body or of the European Works Council, or

 (b) any other meeting within the framework of an agreement referred to in section 11(1),

where that employees’ representative, or that alternate, is not at sea or in a port in a country other than that in which the shipping company is domiciled, when the meeting takes place.

(4B) A meeting referred to in subsection (4A) shall, where practicable, be scheduled to facilitate the participation of an employees’ representative, or an alternate of that representative, who is a member of the crew of a seagoing vessel.

(4C) Where an employees’ representative, or an alternate of that representative, who is a member of the crew of a seagoing vessel, is unable to attend a meeting, the possibility of using, where possible, new information and communications technologies shall be considered.

(5) Without prejudice to section 15, the members of the European Employees’ Forum or European Works Council, as the case may be, shall inform—

 (a) the representatives of the employees of—

 (i) the establishments of a Community-scale group of undertakings, or

(ii) the undertakings of a Community-scale group of undertakings,

or

(b) in the absence of such representatives, the workforce as a whole,

 of the content and outcome of the information and consultation procedure carried out in accordance with this Act.

(6) In so far as it is necessary for the exercise of their representative duties in a transnational setting, the members of the Special Negotiating Body, the European Employees’ Forum or European Works Council, as the case may be, shall be provided with appropriate training by their employers without loss of wages.

17A. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 17 shall do one or more of the following, namely—

 (a) declare that the complaint was or, as the case may be, was not well founded,

(b) order the employer to take a specified course of action,

(b) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances.

(c)

17B. A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 17A, shall affirm, vary or set aside the decision of the adjudication officer.

For completeness sake, it is also important to recall at this point that the Act also makes provision in section 20 for the referral to arbitration of certain disputes regarding the non-provision of commercially sensitive information by Central Management.

The Second Schedule to the Act

The Verizon EWC is established pursuant to the Subsidiary Requirements set out in the Second Schedule to the Act.

Paragraph 6 of that Schedule provides:

“6. (1) The operating expenses of the Council, including a select committee where one is established, shall be borne by the central management.

(2) The central management concerned shall provide the members of the Council with such financial and other resources as are necessary to enable them to perform their duties in an appropriate manner.

(3) In particular, the cost of ongoing meetings and arranging for interpretation facilities and the accommodation and travelling expenses of members of the Council and its select committee shall be met by the central management unless otherwise agreed.

(4) The funding of experts by the central management shall be limited to funding the equivalent of one expert per meeting.”

Discussion and Decision

The within claim relates to the non-payment by the Respondent of an invoice generated by the EWC Academy in respect of expert assistance provided by it to the Select Committee and/or the Verizon EWC. The complaint/appeal is brought by the Complainant ‘in a representative capacity’. The evidence is that the Academy did not furnish this invoice to the Respondent – although it had been provided with the Respondent’s address and VAT number – but instead issued it to the Complainant at his business address in France. The Complainant submits that he is entitled to be indemnified by the Respondent against the costs specified in the Academy’s invoice.

It is not disputed by the Respondent that the EWC is entitled to be assisted by experts of its choice. Nor does the Respondent dispute that the EWC is entitled to be funded by Central Management for the procurement of necessary and reasonable expert assistance.

What is in dispute, however, between the Parties is whether or not the redress provisions in section 17 of the Act are applicable in the context of the within proceedings. Counsel for the Respondent submits that section 17 does not concern the Respondent’s funding of the EWC’s expert as it is governed by paragraph 6 of the Second Schedule. Counsel for the Respondent also submits in this context that the funding of the EWC is a right enjoyed by all members of the EWC collectively, whereas, section 17 concerns the protection of individuals as opposed to a collective of them.

The Court does not accept that it was the intention of the legislature to provide a lesser form of protection to individual members of an EWC established pursuant to the Second Schedule than that afforded to individuals of an EWC established pursuant to an agreement. For this reason, the Court finds that the Respondent’s submission that section 17 is not applicable in the case of an EWC established under the Subsidiary Requirements is not well-founded.

In the Court’s view, however, the Complainant’s submission that he is acting in a representative capacity in bringing the within complaint is effectively a concession that the issues in dispute are collective in nature and are not particular to him as an individual. Section 17, in the Court’s view, is framed so as to afford statutory protection to individual members of EWCs qua individuals. It is not – and was not intended by the legislature – to be a means of progressing disputes that are collective in nature.

For this reason, the Court finds that within appeal, being an appeal under section 17B from a decision of an Adjudication Officer under section 17A is not well-founded. Having made this decision, the Court does not regard it as necessary for it to examine each of the items in the disputed invoice to determine whether they relate to expert advices that were necessary and appropriate.

The appeal fails and the decision of the Adjudication Officer is varied for the reasons set out above. The question of awarding the Complainant costs in respect of bringing the within proceedings is moot in circumstances where the Court has not upheld his appeal. The Complainant’s application for his costs is, accordingly, refused.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
27 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.