TID242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034402 (CA-00046123-001).

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-00046123-001, 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/23/1. 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.

In this appeal, the Complainant requests the Court to direct the Respondent to make payment for the full amount of the cost of his attendance at a training event for members of EWCs held in September 2021 at the EWC Academy in Hamburg. He is seeking payment of the conference fee and his travel expenses. In addition, the Complainant is seeking an award of costs from the Court. The Respondent’s position is that adequate training had been provided at its expense to the Complainant (and his fellow EWC members) at an online training event held earlier in 2021 and that he had been instructed in advance of attending the Hamburg event that the Respondent would not fund it. The Respondent submits that the Complainant’s attendance at the Hamburg event was unnecessary having regard to the training that had previously been provided to him in the course of an online training conference held on 26 and 27 May 2021 and conducted by two leading Irish experts on EWCs. The Respondent submits that by making available the aforementioned training event, it had fulfilled its obligations under s.17(6) of the Act. Finally, on the question of costs, the Respondent’s position is that this Court has no jurisdiction to make such an award as there is no statutory basis for costs awards in either the Act or in Directive 2009/38/EC (‘the Directive’).

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).

The Complainant said that the Charter under which the EWC had operated between 2016 and 2020 in the UK expired on 20 October 2020 and the mandate of the existing EWC members had ceased on the expiry of the Charter.  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. The Complainant told the Court that he was appointed in January 2021 by his local works council in France to the new EWC operating under Irish legislation.

The Complainant gave the following assessment of the online training event organised by the Respondent in May 2021for members of the new EWC. He said that, in his view, the first part of that training had been too general. He also said that the EWC’s preference would have been to compress the high-level material covered at the beginning and to allow for more time to deal with specific complex issues such as confidentiality and non-disclosure agreements. He said the coverage of confidentiality was confined to one or two slides only. The witness was very complimentary of both presenters and described them as excellent people although he thought their focus was more academic than practical. He criticised what he perceived to be an absence of practical exercises and case studies to reinforce the attendees’ learning experience. He also said that there was very little time for questions and answers.

The Complainant told the Court that he had been one of the guest speakers on the first day of the two-day conference hosted by the EWC in Hamburg in September 2021 and that he was, therefore, only required to pay half the conference fee (i.e. a total of €750.00 plus VAT).

His evidence was that he had emailed Mr Dragos Voinescu on 19 August 2021 as follows:

“Hi Dragos,

The EWC and its members are interested in a training organised by the EWC Academy in Hamburg on “Current issues in EWC and SE work and dealing with confidential information in the EWC”.

The group has nominated 5 members to take part in such training with a view to have a debrief with the full group after the event.

The training itself is 1250 Euros per member + travel and accommodation costs.

In order to minimise travel costs as much as possible and to be compliant with travel policy guidelines, could you confirm that you will cover the cost for such training.”

The Complainant attached a two-page brochure about the conference to his email.

Mr Dragos replied on 20 August 2021, stating inter alia:

“Regarding your point, as you remember, during our discussion on 10 June, we have agreed to further discuss the potential need for the EWC for training, given the fact that extensive training was already organised and provided by Verizon to all EWC members in May this year.

Therefore, would you please elaborate on how this training will provide additional necessary elements, in order for you to fulfil your duties?

Besides, we have noticed that you are a speaker at this Conference. This is a rather offhand manner to inform us that you will discuss a matter in relation to Verizon during a public Conference and request Verizon to fund this as a training.

It is obvious that you are not taking part as a trainee but as a guest speaker. To this extent, I am sure you will understand that we cannot finance your intervention and this will need to happen in your own time.”

The Complainant next told the Court that he wrote again to Mr Voinescu on 23 August 2021:

“Regarding the training, please note that this is the first request for training since the EWC started its term of office in October 2020. We are of course happy when management offers us additional training, but the assessment of training needs and the selection of training providers is first of all made by the EWC itself.

The symposium in September in Hamburg has two special topics: the work of an EWC during the Corona pandemic and – as the overriding topic during both days: the legal basics and practical handling of confidential information in the EWC. Neither was part of the management training in May 2021.

We would like to explicitly emphasise that the issue of confidentiality is of paramount importance to EWC members. It may be that central management attaches somewhat less importance to it, but we want to know and understand the legal details of this issue fully. Therefore the symposium in Hamburg is absolutely necessary.

I will speak for 1.5 hours. Sometimes other guest speakers do not wish to attend the whole conference. They arrive shortly before their speech and leave directly to without hearing another speaker. So they have to pay nothing. However, I would like to stay for the whole conference – especially the second day. The EWC Academy’s policy in this case is as follows: if a guest speaker wants to attend the entire conference, the participation fee will be reduced to half. The same rule applies to the other guest speaker, the EWC chairman of TUI.

The conference is not a public event. Only registered participants have access and there is no video stream or recording. All information given about Verizon is already published by the CAC or could be seen as a personal report from everyday practice, just as other conference participants will share from their company during the general discussion. In addition to the input from speakers and trainers, the aim of the conference is a general exchange of good and bad practice among EWC members from different companies.

We therefore reiterate our intention as a group (5+1) to attend this training, and would like confirmation that you will support the costs relating to this training no later than Wednesday 25th of August to be within the 2 weeks timeframe as per the Travel policy.

Once more I am offended by your assumption that I was part of the 5 members requesting the full funding to attend this training, I did intend to share the cost as well as taking days off.”

Mr Dragos replied to the Complainant on 24 August 2021 advising that Verizon “cannot finance this training”. He also ooutlined how, in his opinion, the Respondent had fulfilled its obligations under section 17(6) of the Act, having provided the EWC members  ‘appropriate training … without loss of wages’ in May 2021.

Mr Dragos’s email includes the following clear instruction to the Complainant and his colleagues:

“For all the above, Verizon will not finance your participation in this conference. Obviously, we have no objection to this being self-funded by the 5 members wishing to attend during their time-off. As a reminder, given the content of this conference, the attendance cannot be done on work time and is not linked to local WC responsibilities.”

The Complainant told the Court that he proceeded to attend the conference in Hamburg but did not book time off to do so, contrary to Mr Dragos’s instructions. He said he attend the conference because he believed it was essential for him to get an informed understanding of the issue of confidentiality as it applies to the operation of an EWC. He also, he said, valued the opportunity to network with members of other EWCs. He confirmed that in his view his attendance at the conference had improved his skills in the area of confidentiality.

Under cross-examination, the Complainant agreed with Counsel that it was ‘reasonable’ that the first training event provided to the new EWC would focus on the operation of an EWC under the Subsidiary Requirements of the Irish legislation. However, the Complainant stated that he did regard the online sessions – or any part of them - delivered to the EWC members in May 2021 as ‘training’. He described it instead as “an excellent lecture”. He said that it lacked an essential element of training i.e. there were no steps taken by the presenters to ensure that the knowledge they had imparted had been understood by the participants and could be put into practice by them. He also emphasised that they there had been exercises undertaken and that, in his view, meant that the event did not qualify as ‘training’. He also said, that as a result of the low level of interaction between the speakers and the participants, he himself had become “bored”.

The Complainant said that he agreed to be a speaker at the Hamburg conference about two weeks before the event took place in mid-September 2021. He then outlined the structure of the first day of the conference, listing the speakers and their individual topics. He said that the programme included specific timeslots for “interventions” and therefore could be described as “training”. In relation to his own presentation, he said it comprised of a pre-prepared lecture of approximately one hour’s duration followed by Q&A for a half hour. In his opinion, he had used the session to pass knowledge based on his experience to others so that they had the opportunity to see what they could do to apply that knowledge.

His evidence then moved to the second day of the conference which was focused on confidentiality. He said that Dr Altmeyer spoke for one hour and then there was a discussion based on examples/scenarios derived from real cases. Later, Dr Altmeyer gave presentations on two other topics including recent court judgments. The day, he said, was interspersed with benchmarking exercises and discussion about scenarios and, therefore, also constituted training.

Counsel put it to the Complainant that he had not expressly mentioned to Mr Voinescu in his email of 19 August 2021 that he was going to be a speaker at the Hamburg conference and had not, therefore, made any distinction between himself and the other people who intended attending the conference. It was also put to the Complainant that he and his colleagues had proceeded to attend the conference in full knowledge of the company’s position, as it had been outlined by Mr Dragos, and knowing that they wouldn’t recover their costs or attendance fees. The Complainant said that he subsequently made a claim for travel, accommodation and conference fee costs knowing that the company had already said it wouldn’t pay for them. Finally, he told Counsel that he thought he had arranged to take annual leave for the duration of the conference in Hamburg.

In response to questions from the Court, the Complainant confirmed that he himself has no formal training qualifications. He also confirmed that he has no formal business relationship with the EWC Academy. He said he had volunteered to make a presentation at the Hamburg conference and agreed that he must have done so well before 18 July 2021. He also agreed that that the first occasion on which he raised his intended attendance at the conference with his employer was 19 August 2021. When asked why the EWC had refused to share the new internal rules with the Respondent, the Complainant said that trust needed to be built on both sides but that the negotiation process following the expiry of the Charter had left a bitter taste; in his view, the EWC had been “giving but not receiving”. He also said that he felt that there was no willingness on the part of the company “to rebuild bridges destroyed in the past”.

The Complainant said that the EWC had been given ten days’ prior notice of the proposed programme for the training scheduled for May 2021 and had indicated that it wished to see the first part of the programme shortened with additional time available to discuss the Irish system and law. The Complainant said that things had been done differently when the Charter had been in place. In the past, he said, the EWC’s training needs had been identified at the start of each year and there was ongoing dialogue between Central Management and the EWC but the former didn’t interfere with the latter’s choice of training and just paid for it.

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 gave the Court a detailed overview of the EWC Academy’s conference that took place in Hamburg in September 2021. He said it had been the thirteenth conference held by the EWC Academy and it had been attended by forty-one participants (including speakers) from eleven countries, with nineteen companies represented. The witness said that the conference had been originally scheduled to take place in January 2021 but had been postponed due to the Pandemic. When the conference was rescheduled for September, the agenda had been redrawn, he said, and his recollection was that it had been finalised in April 2021. The witness took the Court through the programme and speakers listed for the first day of the conference and emphasised that each presenter had a slot of 1.5 hours which comprised one hour for their presentation followed by thirty minutes of Q&A. Each session was followed by a break, he said, when participants could network. The witness said that a different format was adopted for the second day of the conference based on feedback from participants at previous conferences who had requested increased opportunities for interaction in order to learn from each other having regard to their different cultural backgrounds, companies and EWC experiences. The format used on the second day of the conference, in the light of this feedback, he said was to seat people in groups of six or seven at small tables so that they could engage in group workshops. He said that a series of three workshops were run in parallel which comprised an input followed by group discussion based on pre-set questions which gave participants an opportunity to share experiences. Each workshop group then gave feedback to the plenary group. The theme for the entire day was confidentiality, he said.

The witness’s evidence is that no speaker was paid for their contribution to the Hamburg conference. In previous years, freelance presenters who were not members of an EWC had been paid. Finally, he told the Court that six or seven EWC conferences had taken place in London in previous years and the Verizon had been represented at one of those conferences.

The witness was then taken through various sections of the 2010 Report of the Group of Experts on the Implementation of Recast Directive 2009/38/EC on European Works Councils of December 2010.

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 was asked about the EWC training event organised by the company in May 2021. He said that all delegates to EWC were in place by that time and about fifteen of them participated in the training event. It was the witness’s evidence that there had been several discussions between Central Management and the Select Committee prior to the training event taking place. He said Management was very aware that the new EWC was established and operating for the first time under Irish law and believed it was important to provide training on this legal framework. For that reason, he said, the company engaged with its legal advisors to source qualified and impartial trainers. The training in May was delivered remotely because of Covid. The object of the training, he said, was to make both parties familiar with Irish law and Irish rules applicable to EWCs. It therefore, he said, tried to cover the general landscape (particularly for new members) and also outline how EWCs operate under Irish law, including the topics confidentiality and local dispute resolution mechanisms. He said the company had suggested this framework for the training to the trainers in advance and had also engaged with the EWC in relation to it. He said there had been no prior objections from the EWC to the proposed programme and no complaints from the EWC after its delivery. According to the witness, the immediate feedback he received was that the training had been engaging and informative. He had received no feedback, he said, to suggest that the training had been inadequate.

The witness said he accepted that much of the introductory material covered on day 1 of the training was not needed by all participants. In general, he said, the contents of the programme had been informed by issues that arose during negotiations to find a replacement for the Charter. He said, the fact that the slides used in the training had not been circulated afterwards was an oversight and not intentional.

The witness said that he only became aware from the Complainant of his intention to contribute to the Hamburg conference a couple of weeks before it took place although Dr Altmeyer’s evidence to the Court suggested that this had been arranged considerably earlier. According to the witness, he had participated in an informal meeting with the Select Committee in July 2021 and no reference had been made to the Hamburg conference then or to the Complainant’s intended role in it.

The witness said training had been arranged for EWC members in relation to handling financial information in Verizon. There had also been several discussions, he said, about the EWC’s ongoing training needs in 2024 but they hadn’t yet concluded. According to the witness, the Hamburg conference is the only training request from the EWC that had been refused. Finally, in direct examination on this topic, he said that the Complainant did not take annual leave on the dates on which the Hamburg conference took place and that he was paid as normal for those dates.

Under cross-examination, the witness confirmed that he was aware of the varying levels of expertise amongst members of the new EWC that came into being in late 2020. He accepted, however, that no skills assessment was undertaken prior to finalising the training event scheduled in May 2021. He did say, though, that discussions had taken place with the EWC about their training needs, particularly in the latter half of 2021 but that this had also formed part of the ‘meet and greet’ meeting in February 2021. He agreed that the issue of confidentiality had arisen as an issue of concern for EWC members both during the 2020 negotiations and subsequently.

Asked if the request received from the EWC in advance of the May training, following the sharing of the draft programme with them, to shorten the first part of the proposed programme to allow more time to address the Irish legal framework, had been taken onboard by the trainers, the witness said he believed it had.

Evidence of Mr Romuald Jagodzinski

The witness outlined his extensive experience as a Senior Researcher working from 2006 until 2022 with ETUI, an independent training and research centre, funded by the EU Commission in support of social dialogue and labour relations. He said that during his time with ETUI, he had been project manager for a number of research projects and had also conducted independent research. He said he project managed the ETUI database on EWCs, had carried out both qualitative and quantitative research on EWCs, co-operated with experts, academics and external researchers. He had also, he said, contributed to the ETUI’s pedagogical offering for EWCs.

The witness gave evidence of his participation in training courses run by ETUI as an expert contributor. He said that he received several invitations to speak at external pedagogical events and at individual EWC training events. He left ETUI in 2022, he said, and has been operating since as freelance trainer and researcher and has no formal tie to any institution or trade union although he does lead seminars for trade unions and EWCs. He said is often approached by management to provide training to EWC members and has no issue with working with or for management.

The witness told the Court that he was a presenter at the EWC Academy conference in Hamburg in September 2021. He said he believes he met the Complainant at that conference and had also met him at previous events organised by ETUI, in a professional capacity only.

Asked about his understanding of the purpose of providing training to EWC members he said that, in his view, it was to provide information in a pedagogical event in order to develop skills necessary to implement the rights guaranteed under the Directive. He outlined the key characteristics of training as he understands them. Asked about his assessment of the training delivered to the Complainant and his EWC colleagues in May 2021, the witness said that in his view that training was “basic and rudimentary” in terms of the information that had been provided by the presenters. He also said that the presenters had been biased in so far as they referred only to cases that had been decided in the company’s favour and this sent out a subliminal message to the effect that it is inadmissible for EWCs to go to court. The witness characterised what had been delivered in May 2021 as more of a seminar than a training event as it didn’t include any element of practical skills development. He pointed to the absence of groupwork, simulations and scenario-building exercises which he said greatly enhance the effectiveness of training. He also said that an online format – such as that used in May 2021 - greatly inhibits the effectiveness of trainers and limits the participants’ receptiveness. By contrast, he said that ETUI had delivered much more effective online training during the Pandemic by incorporating breakout sessions where participants engaged in small group exercises and were required to feedback afterwards to the full group and encouraged to participate in discussion with one another.

Under cross-examination, the witness was asked about his academic qualifications and his work experience. He said he has a master’s degree and a one-year postgraduate qualification in European Studies. He said he worked for about three months in a sales role before joining ETUI in 2006. He told the Court he has no formal qualification in education or training. Whilst at ETUI, he said that his research areas included transnational industrial relations, transnational workers’ representation and EWCs. He said he had not engaged in any methodological research regarding training or teaching although he had implicitly had to master elements of teaching methodology. When Counsel queried whether the witness is an expert in training, he replied that he is “a trainer and an expert trainer”. It was then put to him by Counsel that there is a difference between an expert who can give an opinion based on independent research and someone who can give an opinion based on their own experience. The witness replied that his opinion is based both on his own experience and his qualitative research of the training needs and expectations of EWC members. He referred the Court to two examples of publications he has co-authored in this area: “European Works Councils – Contested and Still in the Making” and “Can anybody hear us? An overview of the 2018 survey of EWC and SEWC representatives”.

The witness confirmed that he spoke at the EWC Academy’s conference in Hamburg in 2021 but was not paid for his contribution as he was still a member of staff at ETUI at that time. He said that ETUI may have invoiced the Academy for a half day of his time and/or for travel costs.

Counsel queried the witness’s independence in the context of the within proceedings. He put it to the witness that he had contributed along with the Complainant and with Mr Frӧding (a complainant/appellant in associated proceedings) to an online event about EWC training in US companies in February/March 2022. The witness accepted that the event had occurred but said that all speakers at it were considered to be receiving training as it was an interactive event and the cost of their participation was covered by ETUI. Attendees were only obliged to cover travel and accommodation costs.

Counsel asked the witness about the provision of training to new EWC members. He accepted this would normally be a long-term process. He said he himself had no experience of delivering training in the context of an EWC changing jurisdiction but he, nevertheless, accepted that in such a context there would be a need for specific training.

When redirected, the witness referred to a reference in a slide from the May 2021 training which suggested that because management has responsibility under the Directive to provide training to EWC members without loss of earnings, management had the sole right to choose the trainer was incorrect and ‘factually wrong’. Counsel also reminded that Dr Altmeyer in his evidence had characterised the EWC community as ‘a small village’. The witness agreed and concluded that it was not, therefore, any surprise that he had encountered the Complainant and Mr Frӧding at an event in 2022.

Evidence of Mr Kevin Rodgers

The witness is employed by Verizon’s Danish operating company. He briefly outlined the history of his membership of the EWC, commencing in 2012. He became a member of the Select Committee in 2016. He told the Court that he had been informed in October that the Charter under which the EWC had operated up until then had expired. He said that he was elected to the current EWC in mid-March 2021 but did not consider himself a member of the EWC between the date on which the Charter had expired and the date of his election to the current EWC. He did not, he said, for example take part in the meeting of the members in January 2021 although he did subsequently receive the minutes of that meeting after his re-election.

In reply to a question from the Complainant’s Counsel, the witness said that there had been no assessment made of his training needs following his re-election to the EWC in 2021. The witness told the Court that his recollection is that the company circulated the agenda for the May event three days before it took place. He described what took place in May as being about what every EWC should and shouldn’t do. He also said that Central Management had refused a request to have the May event recorded. He told the Court that when he and others attempted to ask questions during the presentations they were told by the presenters that the answers to those questions would emerge later if the presenter was allowed to continue. According to the witness, much of what was presented at the sessions in May 2021 was “redundant for him”. He did say that there were less experienced members of the EWC present, however. The witness said he had asked one of the presenters about dispute resolution and for his advice in relation to it, but the presenter had replied that he wasn’t in a position to give legal advice. The witness said that it was unclear to him, what the presenter’s role was during the event beyond giving information.

The witness said that he hadn’t personally received anything from the May sessions that he could act on. He did not improve his skills as an EWC member as a consequence of attending the training. There were a few things arising from the first presenter’s presentation he would have liked to look into, but he didn’t get to do so because the slides were never subsequently circulated. The witness thought he may have requested the slides later from management but did not receive them. He was not asked for, and nor did he provide, feedback on the May 2021 training.

The witness said he discussed attending the Hamburg seminar with his supervisor who had authorised his attendance. He said that he had explained to his supervisor that he expected that Central Management would not cover the cost of his attendance at the seminar. He attended in any event, he said. He told the Court that he found the discussions regarding confidentiality and non-disclosure agreements very informative and useful.

In cross-examination, Counsel referred the witness to an email from Ms M dated 21 April 2021 (i.e. some weeks before the May 2021 training took place) asking him to let her know if there was anything, in particular, he would like to see included in the proposed presentation on the Irish legislation. Attached to Ms M’s email was a draft outline of the programme.

The witness told the Court that the decision to attend the Hamburg conference was his own and that he had applied for two days’ annual leave to do so. He subsequently applied for his travelling expenses (but not the conference fee), he said, although he knew he would not be reimbursed for them.

The witness was asked by the Court of his experience of attending training events organised by ETUI. He said ETUI had organised a variety of training modules tailored respectively for new and experienced EWC members. There was no cost to attend these although participants had to cover travel and accommodation costs. The EWC members themselves decided which topics were of value to them and the company (Verizon) had never refused to pay their expenses when attending ETUI training. The witness accepted that the company had made its position regarding the Hamburg conference very clear in advance and had been consistent in this regard.

Submissions

Mr Kerr SC submits that this appeal raises fundamental questions going to the heart of the European Works Council Directive and the manner in which the Directive has been transposed into Irish law. He emphasised that the objective of the Directive, according to Article 1.1, is to improve the right to information and consultation of employees in Community scale undertakings. He said that the Directive stipulates, amongst other things, in a clear and unambiguous manner that European Works Council members have a right to receive appropriate training to assist them in fulfilling their roles effectively.

Counsel referred the Court specifically to Recital 33 to the Directive and to Article 10.4 and the provision there to the effect that "EWC members shall be provided with training without loss of wages." He submitted that the following four questions arise from Recital 33 and Article 10.4 of the Directive: What is meant by training? Who decides what training is required? Who is to provide that training? Who is to pay for the training? 

Addressing the first question, Counsel drew the Court’s attention to standard dictionary definitions of ‘training’ such as the following: "The process of improving workplace skills"; "The process of learning the skills that one needs to do a job"; "The act of teaching a person a particular skill"; and "The act or process of providing or receiving instruction in or for a particular skill, profession or occupation." Counsel, on the basis of the foregoing sample definitions, submitted that ‘training’, is all about effective skills enhancement. In that context he requested the Court to decide whether what was provided by the company in May 2021 and the EWC Academy in September 2021 constituted training. In particular, Counsel suggested that the Court should contrast the presentations in May 2021 with the presentations in September 2021 concerning the issue of confidential information (some six bullet points in May versus a fifty-four page presentation in September). 

In addressing his second question, Counsel referred the Court to the Report of the Group of Experts on the Implementation of Recast Directive 2009/38/EC on European Works Council of December 2010 where, at page 44, it is stated that:

"Insofar that a training is ‘necessary for the exercise of their representative duties in an international environment’, EWC members ‘shall be provided' with it (Art. 10.4) which implies that management should in principle not refuse reasonable training requests in this context." 

Counsel submitted that the Court should have regard to both appropriateness and reasonableness when it comes to the question as to who decides on training requirements.

Counsel again referred to the Expert Report when discussing the third question, ‘Who is to provide the training?’ He submitted that the requirement of the Directive that ‘employee representatives shall be provided with training’ does not imply that management is to give the training. The Expert Report, he submits, makes clear that, in practice, training could be delivered by training providers, trade unions, consultants, academics, company experts or language trainers at either central or local levels. Counsel further submitted that there is a clear issue of compatibility between the Directive and the Act because section 17(6) of the latter qualifies the provision of the requirement in respect of training by saying: "provided by the employer,"; no such qualifying words appear in either Recital 33 or Article 10.4. Finally, in discussing his fourth question, ‘Who is to pay for the training?’, Counsel quoted the following from the Report of the Expert Group:

"Whatever the case, it is not for the EWC members themselves to bear the costs of training and the training has to be provided to them without loss of wages."

Counsel reminded the Court that the aforementioned questions arise for consideration in the within case in circumstances where there is no agreement in place (such as had been the case when the EWC operated under the Charter in the UK) between Central Management and the EWC that makes provision, inter alia, for the training needs of members.

Mr Mallon BL, for the Respondent, submits that the justification advanced by the Complainant for his attendance at the Hamburg training, as presented in evidence, is predicated on his criticism of the online training event in May 2021, particularly in relation to what the Complainant perceived to be the scant treatment given to the issue of confidentiality in May. Counsel further submits that the Complainant played very coy about his role as a speaker at the Hamburg conference, and did not address the fact that he only indirectly informed management about his acting in that capacity only two weeks before the event took place by attaching flyer about the conference to his email to Mr Voinescu seeking permission for his attendance along with five of his colleagues from the Verizon EWC, even though it is clear from all of the evidence that he must have known about it at least a month before that.

In Counsel’s submission, any training fees or training costs being claimed by the Complainant must be reasonable, appropriate and necessary. He also submits that But the appointment of trainers should preferably be by agreement between Central Management and the EWC. In this context, he remined the Court that the evidence before it in relation to the Dublin training was that there had been communications in advance from Central Management about the proposed training and the company had identified appropriate Irish experts to deliver that training.

Counsel next submitted – while acknowledging that the law is clear that central management have to pay for training costs - that there can be no ‘blank cheque’ in respect of training. The training costs – he submits - have to be ‘appropriate’ and/or ‘reasonable’ and/or ‘necessary’. This case is, he said, about whether the training in Hamburg met any of those criteria. Counsel queried how the small-group discussions amongst peers about the issue of confidentiality that took place on the second day of the Hamburg conference could be deemed to be superior to the training provided by two of the leading Irish experts in employment law and the impact of European employment law on Irish employment law. Counsel submitted that the Court ought to take the following facts, established in evidence, into account when determining whether the Complainant should recover his fees and expenses for attending the Hamburg conference: the casual manner in which the company was advised of his attendance; the Complainant’s own evidence that he had decided he would attend the Conference and litigate about it later; his failure to book annual leave even though he was a contributor at the event.

Counsel next addressed a number of the issues raised by Mr Kerr SC regarding the provision of training for EWC members. In Counsel’s submission, training requirement should be identified by agreement. He referred, in this context, to Mr Voinescu’s evidence that Central Management had engaged with the EWC in advance of the Dublin training and that it continues to discuss attempts to agree further training with the EWC. In contrast, Counsel noted, the evidence is that the Complainant hadn’t reciprocated in advance of attending the Hamburg conference; there had been no discussion about his attendance, merely a unilateral decision on his part to do so. With regards to the issue of who should select the trainers, Counsel made a similar submission to the effect that this should be by agreement between the EWC and Central Management.  He also submitted that there had been no challenge from the EWC either immediately before or immediately after the Dublin training about the suitability of the trainers on that occasion. Counsel made it clear that the Respondent accepts that the cost of training for EWC members must be borne by the employer, as long as that cost is reasonable and related to training that is necessary and appropriate; it’s not a question of providing ‘a blank cheque’, he said.

Counsel took issue with the admission of Mr. Jagodzinski as an expert independent witness and requested that his evidence should be disregarded by the Court, as in Counsel’s submission, he is neither an expert, nor is he independent. In support of his submission, Counsel opened the judgment of Mr. Justice Collins in the Court of Appeal in the case of Duffy v Brendan McGee T/A McGee Insulation Services [2022] IECA 254 which includes a detailed analysis of the law in relation to the role of the expert witness. Counsel said that Collins J in paragraph 5 of the judgment notes that Order 39,Rule 58(1) of the Rules of the Superior Court provide that:  "expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings”. Counsel submitted that, in like manner to the Superior Courts, expert evidence should only be entertained by this Court where it is necessary to determine an issue before the Court. 

Mr Mallon reminded the Court that Mr Jagodzinski himself had said in evidence that he is an expert trainer and that he had also confirmed that he was not an expert in training. In Counsel’s submission he could not be regarded as an expert, therefore, in respect of the issue he had been called as an expert to give evidence about i.e. as to why the Dublin event was not ‘training’ and the Hamburg conference was ‘training’.

Counsel directed the Court to paragraph 14 of the aforementioned judgment where Collins J said: 

"Conversely, where the science or body of knowledge concerned is not widely recognised, a party seeking to lead evidence in that area would be required to set up not only the qualifications and expertise of the individual skilled witness but also the methodology and validity of that field of knowledge or science." 

He then quoted from paragraph 17 of the judgment, when the learned judge said:

"The position in this jurisdiction as regards the issue of reliability would therefore appear to be as follows. There is no general requirement that expert evidence must meet any specific threshold of reliability as a condition of admissibility nor do the Irish courts have the “gatekeeping” function contemplated by [Daubert v Merrell Dow Pharmaceuticals (1993) 509 US 579]. However, in any given case the admissibility of expert evidence may be challenged on the basis that it lacks a reliable scientific or methodological foundation. At what stage of the proceedings, and in what manner, such a challenge should be determined is a matter for case-by-case assessment. Finally, even where admissible, issues of reliability may properly affect the weight to be given to expert evidence." 

Counsel submitted that in the event that the Court were to accept that Mr Jagodzinski is in some way an expert, there is a question mark over the weight to be given to his evidence. In this regard, Counsel referred to paragraph 19 of Collins J’s judgment:

"To properly perform its function, the court must be able to understand and engage with the evidence, which in turn requires that experts should sufficiently explain their opinions and the basis for them. Their entitlement to express such opinions “is predicated upon also informing the court of the factors which make up their opinion and supplying to the court the elements of knowledge which their long study and experience has furnished to them whereby they have formed the opinion so that, in those circumstances, the court may be enabled to take a different view”: Flynn v Bus Eireann [2012] IEHC 398, per Charleton J at para 9."

Counsel said that later in that same paragraph, the learned judge states: "It follows that the expert witness must “provide material on which a court can forms its own conclusions on relevant issues “… Mere assertion or “bare ipse dixit”' on the part of the expert witness is, accordingly, “worthless”: Kennedy v Cordia (Services) LLP [2016] UKSC 6, [2016] 1 WLR 597, at para 48.” Counsel submitted that Mr Jagodzinski, when giving evidence, was expressing his own views as a trainer, not as a training expert. He also submitted that Mr Jagodzinski did not meet the requirements of independence as described in Hodgkinson & James, Expert Evidence: Law and Practice (5th ed., 2020) from which Collins J quoted with approval: 

"Expert evidence presented to the court should be and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation."  

Counsel highlighted that Mr Jagodzinski had been a co speaker with not only Mr. Charpentier at the conference in Hamburg, which was organised by the EWC Academy,  (which he referred to as a for-profit consultancy, which has more than a passing interest in the outcome of both sets of proceedings brought by the Complainant), but also a contributor with Mr. Frӧding at another conference.  Counsel closed on this point by submitting that Mr Jagodzinski is not independent because he is simply too close to the EWC Academy and to the Complainant and Mr. Frӧding.

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.

Relevant Legislation

Sections 17(1A), (2) and (6) of the Act

“(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.

…….

(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.

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.”

Recital 33 to the Directive

“(33) In order to perform their representative role fully and to ensure that the European Works Council is useful, employees' representatives must report to the employees whom they represent and must be able to receive the training they require.”

Article 10.4 of the Directive

“4. In so far as this is necessary for the exercise of their representative duties in an international environment, the members of the special negotiating body and of the European Works Council shall be provided with training without loss of wages.”

Discussion and Decision

The Court heard a considerable amount of evidence and received detailed and erudite submissions from Counsel on both sides in the course of this five-day appeal. Nevertheless, the Court is of the view that there matters in respect of which it has to make a decision cannot be netted down as follows:

(a) Did the online seminar organised by Central Management for the EWC Members in May 2021 constitute training?

(b) Was Management’s decision to refuse to fund the Complainant’s attendance at the EWC Academy conference in September 2021 unreasonable?

(c) Should the Respondent be directed by the Court to reimburse the Complainant for the costs associated with his attendance at the Hamburg conference?

(d) How should decisions re EWC Members’ training needs be determined?

(e) Who bears the cost of such training?

(f) Should the Court make an award in respect of the costs of bringing the within proceedings in favour of the Complainant?

(a) One of the dictionary definitions of ‘training’ put before the Court by Counsel for the Complainant was “The act or process of providing or receiving instruction in or for a particular skill, profession or occupation." The Court has had the benefit of reviewing the PowerPoint presentations used by the presenters at the so-called Dublin training in May 2021. On the basis of its consideration of the material covered in those presentations and having regard to the Court Members’ own experience of continuous professional development and training, the Court is satisfied that the Dublin event meets the aforementioned definition of training – it undoubtedly amounted, in the Court’s view, to ‘[a] process of providing … instruction” to participants relevant to their ‘occupation’ as Verizon EWC members in so far as it endeavoured to provide the attendees with a detailed overview of the company and its activities and objectives; the history, role and function of European Works Councils; key concepts underlying the working of EWCs; a comprehensive overview of the Act and the practical outworking of the Subsidiary Requirements therein; and the Irish system of dispute resolution. The Court is also cognisant, in arriving at this conclusion, of the recognised expertise of both presenters in the area Irish and EU employment law generally.

 (b) Having carefully considered the communications exchanged between the Complainant and Mr Voinescu in relation to the former’s request to attend the Hamburg conference in September 2021, the Court finds that the company’s refusal to fund his attendance at that event was not unreasonable. The Complainant had been less than frank with Mr Voinescu when making his application; although he enclosed a copy of the conference programme, he had not directly informed Mr Voinescu that he was listed as a contributor on the first day of the conference. It was established in evidence that the Complainant knew that this would be the case as April 2021. Mr Voinescu also gave clear and uncontradicted evidence to the Court that there were ongoing discussions between Central Management and the EWC at the time about the future training needs of the EWC and those discussions had not concluded.

 (c) The Court does not find the Respondent should be liable for the Complainant’s costs of attending the Hamburg conference in circumstances where he had been unequivocally informed in advance that the company would not fund his attendance. The Complainant’s decision to attend the conference was a unilateral one made in the full knowledge that his attendance would not be supported by his employer. Furthermore, the evidence also established that the Complainant did not take annual leave to attend the conference although Mr Voinescu had made it clear that should he decide to attend it he would be doing so on his own time.

 (d) The Court agrees with the position advanced by Counsel for the Respondent in relation to the issue of who should determine the training to be provided to EWC members: this should be a collaborative activity with input from both the EWC members themselves and representatives of management. In that context, the Court accepts the submissions of Mr Kerr SC in relation to the lack of compatibility between section 17(6) of the Act and Recital 33 and Article 10.4 of the Directive in so far as the Act qualifies the provision of the requirement in respect of training by saying: "provided by the employer" and  no such qualifying words appear in either Recital 33 or Article 10.4. 

 (e) There is no real dispute between the Parties as to who is required under the Directive and Act to bear the cost of training of EWC members; it is the employer’s responsibility to discharge the cost of training that is reasonably required and appropriate in all the circumstances. Mr Mallon BL is correct, in the Court’s view, in emphasising that it is not a case that a company is required under the Directive or the Act to furnish its EWC with a blank cheque.

 (f) 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.

 For the foregoing reasons, the appeal fails and the decision of the Adjudication Officer is upheld.

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.