Decision

Question 1

1. Introduction

Accepted Answer

1) On 2 June 2021, Mr. Philip Sack of EWC Legal Advisers submitted a complaint to the CAC on behalf of the HSBC European Works Council (“EWC”), (the Complainant) under Regulations 21 and 21A of the Transnational Information and Consultation of Employees Regulations 1999, as amended by The Employment Rights (Amendment) (EU Exit) Regulations 2019, (amended TICER) ^{[footnote 1]} in relation to the actions of HSBC Continental Europe (the Employer). The CAC gave both parties notice of receipt of the complaint on 2 June 2021. The Employer submitted a response to the CAC dated 16 June 2021 which was copied to the Complainant.^{[footnote 2]}

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to consider the case. The Panel consisted of Professor Gillian Morris as Panel Chair and Mr Michael Clancy and Mr Mustafa Faruqi as Members. The Case Manager appointed to support the Panel was Linda Lehan.

Question 2

2. Background

Accepted Answer

3) The Employer employs staff in many European countries, both within the European Economic Area (“EEA”) and outside it. On 9 October 2015 the Employer’s central management and members of the Special Negotiating Body representing the Employer’s employees in the EEA Member States entered into the HSBC European Works Council Agreement (“the Agreement”). The Agreement stated that for the purposes of EU Council Directive 2009/38 EC (“the Directive”) the central management was situated in the United Kingdom (“UK”) which meant that the agreement was subject to TICER. Provisions of the Agreement of particular relevance to this decision are as follows:

Question 3

3. Article 2 - INTRODUCTION

Accepted Answer

2.1 This Agreement is made on 9 October 2015 between the central management of HSBC (hereafter “HSBC Central Management”) and the duly appointed or elected members of the Special Negotiating Body representing HSBC employees in the European Economic Area (EEA) Member States. 2.2 This Agreement is effective following the appointment of the EWC members and defines the scope, role, membership and operation of the HSBC European Works Council (the “EWC”) and fulfils HSBC’s obligations under EU Council Directive 2009/38/EC (“the Directive”). 2.3 For the purposes of the EWC Directive HSBC Central Management is situated in the United Kingdom which means that this agreement is subject to the United Kingdom’s Transnational Information and Consultation of Employees Regulations, 1999 and 2010 (TICER) 2.4 In accordance with the terms of TICER 1999 and 2010 the role of the Special Negotiating Body will end upon the signing of this Agreement. At the first meeting of the EWC, the Special Negotiating Body representatives will be invited to attend in order to provide an explanation of the negotiations and ensure a smooth and pragmatic hand over.

Question 4

4. Article 18 - DURATION OF AGREEMENT

Accepted Answer

…. 18.5 If HSBC Central Management and the members of the EWC deem it necessary, this Agreement may be amended by mutual consent. Either HSBC Central Management or the EWC, following a two-thirds majority vote of EWC members, can request the revision of all or part of this Agreement. A revision request must be sent in writing to all signatories, setting out the purpose of the revision request. If the revision is not agreed within six months from the opening of negotiations, the revision request is considered to be ineffective.

Question 5

5. Article 19 - LEGAL STATUS AND DISPUTE RESOLUTION

Accepted Answer

19.1 This Agreement is negotiated under Article 6 of Council Directive 2009/38/EC and is to be governed and construed according (sic) TICER and English law.
19.2 Any disputes between the parties as regards the meaning and/or operation of this Agreement shall be resolved in accordance with the procedures set out in The Transnational Information and Consultation of Employees (Amendment) Regulations 1999 and 2010. 19.3 The English text of this Agreement is the binding text. 19.4 The parties agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
19.5 The signatories of this Agreement hereby confirm that they are fully authorised to agree the terms of this Agreement.

4) In November 2020, the Employer decided to relocate its central management under the Directive from the UK to the Republic of Ireland with effect from 1 January 2021. In a letter dated 3 December 2020 the Employer wrote to HSBC Securities Services (Ireland) DAC (“HSBC Ireland”) confirming that HSBC Ireland would act as its representative agent with effect from 1 January 2021. On 4 December 2020, HSBC gave the EWC notice of its intention to designate HSBC Ireland as its central management representative agent with effect from 1 January 2021. This notice was accompanied by an updated version of the Agreement confirming the appointment of HSBC Ireland (at Article 2.3) and the application of Irish law and non-exclusive jurisdiction of the Irish courts over related disputes or claims (at Articles 19.2 and 19.4). These provisions read as follows:

Question 6

6. Article 2 – INTRODUCTION

Accepted Answer

2.1 This Agreement was made on 9 October 2015 between the central management of HSBC (hereafter “HSBC Central Management”), and the duly appointed or elected members of the Special Negotiating Body representing HSBC employees in the European Economic Area (EEA) Member States. 2.2 This Agreement is effective following the appointment of the EWC members and defines the scope, role, membership and operation of the HSBC European Works Council (the “EWC”) and fulfils HSBC’s obligations under EU Council Directive 2009/38/EC (“the Directive”). 2.3 HSBC Central Management is situated in the United Kingdom, which meant that this agreement was subject to the United Kingdom’s Transnational Information and Consultation of Employees Regulations, 1999 and 2010 (TICER) until 31 December 2020 when the transition period following the United Kingdom’s withdrawal from the EEA ended. As HSBC Central Management is no longer situated in an EEA Member State, it has designated HSBC Securities Services (Ireland) DAC in the Republic of Ireland to act as its representative agent from 1 January 2021 (the “Representative Agent”). 2.4 Any references to HSBC Central Management in this agreement shall include a reference to the Representative Agent with effect from 1 January 2021 2.5 With effect from the date of appointment of the Representative Agent, this agreement is governed by Irish law and subject to Ireland’s Transnational Information and Consultation of Employees Act 1996 (as amended) (“TICEA”).

Question 7

7. Article 19 – LEGAL STATUS AND DISPUTE RESOLUTION

Accepted Answer

19.1 This Agreement is negotiated under Article 6 of Council Directive 2009/38/EC and is to be governed and construed according (sic) TICER and English law.
19.2 Any disputes between the parties as regards the meaning and/or operation of this Agreement shall be resolved in accordance with the procedures set out in The Transnational Information and Consultation of Employees (Amendment) Regulations 1999 and 2010. 19.3 The English text of this Agreement is the binding text. 19.4 The parties agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
19.5 The signatories of this Agreement hereby confirm that they are fully authorised to agree the terms of this Agreement.

The letter also stated that as the Agreement covered only EEA operations the Employer had concluded that it was no longer appropriate for the UK business to remain involved in its EWC, or for UK employees to be represented by it, from 2021.

Question 8

8. The Complaint

Accepted Answer

5) The Complaint dated 2 June 2020 submitted to the CAC by Mr Sack read, so far as material, as follows:

This complaint is made pursuant to regulations 21 (Disputes about operation of European Works Council) and 21A (Disputes about failures of management) of the TICE Regulations.

On 4 December 2020, HSBC Central Management wrote to Mr Brian Statham, Chairman of the EWC Select Committee, informing him that it had decided, with effect from I January 2021:

(a) to designate a representative agent in Ireland for the purpose of the EWC Directive to assume the role of central management under the Directive; (b) to exclude HSBC’s UK business from the scope of the EWC Agreement; (c) to exclude UK representatives as members of the EWC; and (d) to amend Articles 2 and 19 and Appendix I of the EWC Agreement accordingly.

The letter enclosed a revised version of the EWC Agreement with changes made to Articles 2 and 19. The EWC does not believe it has received a revised Appendix 1 to the Agreement.

The EWC’s complaint pursuant to regulation 21 is that HSBC central management has not complied with the terms of the Agreement by:

(1) Excluding its UK business from the scope of the Agreement in breach of Article 5 (Operations Covered) of the EWC Agreement (as interpreted by the amended TICE Regulations);

(2) Excluding UK representatives from the EWC in breach of Article 7 (Appointment of EWC Members) of the Agreement (as interpreted by the amended TICE Regulations); and

(3) Amending the EWC Agreement without the consent of the members of the EWC in breach of Article 18.5 of the EWC Agreement.

The EWC considers that references in the EWC Agreement to “the EEA Member States” should now be read as references to “the Relevant States” in accordance with the amended TICE Regulations.

In addition, central management has informed the EWC that it will not pay for, or contribute towards, my fees for assisting the EWC members in relation to this complaint. The EWC considers this to be a breach of Article 14 (Expert) of the EWC Agreement and of regulation 19A (Means required) of the TICE Regulations. The EWC therefore brings this element of the complaint under both regulation 21 (Disputes about operation of European Works Council) and regulation 21A (Disputes about failures of management) of the TICE Regulations.

Question 9

9. The first decision and matters left open in the first decision

Accepted Answer

6) In a decision dated 22 June 2021 (“the first decision”) the Panel decided that the first and second complaints set out in paragraph 5 above were not well- founded in their entirety and that the third complaint was not well-founded insofar as it related to the exclusion of the UK business from the scope of the Agreement and the exclusion of UK representatives from the EWC. That being so, the Panel did not give any consideration to the merits of a request by the Employer for a stay in the proceedings pending the outcome of an appeal to the Employment Appeal Tribunal (“EAT”) in EasyJet European Works Council and easyJet PLC ^{[footnote 3]} regarding the CAC’s jurisdiction to hear the Complaint on the basis that such a stay, even if it had been granted, would have merely constituted an unnecessary delay in informing the parties of the Panel’s decision on those matters. The Panel also noted the Employer’s request for the issue of jurisdiction to be treated as a preliminary issue on which the Employer wished to make further submissions. In the light of its conclusions on the substance of the complaints referred to, the Panel decided that it would be appropriate to dispose of those complaints on the assumption that the CAC had jurisdiction to consider them without determining the question of jurisdiction either way.

7) The Employer had stated in its response to the Complaint that the Complainant had not challenged the Employer’s right to designate its representative agent in the Republic of Ireland. In the light of its view that it was appropriate to dispose of the complaints referred to in paragraph 6 above without delay, the Panel did not consider it appropriate to investigate before disposing of those complaints whether the Complainant wished to challenge the change of representative agent or other amendments to Articles 2 and 19 of the Agreement under the heading of the third complaint. The Panel decided that if, having considered the contents of the first decision, the Complainant wished to challenge any of the amendments to Articles 2 and 19 of the Agreement under the heading of the third complaint it should inform the CAC of this in writing within 21 days of the first decision, specifying the amendments which were the subject of challenge. The Panel also said that the Complainant, in any such communication to the CAC, should respond to the Employer’s request that consideration of the jurisdictional issue should be stayed pending the outcome of an appeal to the EAT in easyJet. The Complainant was further told that if it wished to pursue a complaint relating to payment of Mr Sack’s fees it should inform the CAC in writing within 21 days of the first decision.

Question 10

10. The Complainant’s response to matters left open in the first decision

Accepted Answer

8) In an email to the CAC dated 12 July 2021 the Complainant confirmed that it wished to challenge the changes to Articles 2.3, 2.4, 19.1, 19.2 and 19.4 and the inclusion of new Article 2.5 under the heading of the third complaint. The Complainant opposed the Employer’s request for a stay pending the outcome of an appeal to the EAT in easyJet. The Complainant said that the circumstances of easyJet were different to those of this case because the easyJet EWC was established under the subsidiary requirements of amended TICER by virtue of regulation 18 whereas the EWC in this case had been established under an agreement made pursuant to regulation 17. The Complainant said that in its decision in easyJet the Panel had considered the specific wording of regulation 18 in concluding that the subsidiary requirements continued to apply to easyJet whereas in the present complaint there was no equivalent provision to regulation 18 and the CAC would need to consider, amongst other things, the specific wording of regulations 21 and 18A. The Complainant said that the CAC may additionally need to consider the specific wording of the Agreement in deciding whether it had jurisdiction to hear the Complaint, something it did not have to do in easyJet, so that the legal issues that the CAC, and potentially the EAT, would need to consider would be somewhat different to those in easyJet. The Complainant also said that staying the CAC procedure would mean that the present situation, where there was uncertainty over the law governing the Agreement and where the Complainant should bring any future dispute, would persist for an unknown length of time pending the outcome of the easyJet appeal and that any decision taken by the EAT in easyJet could be further appealed, extending the timeframe – and therefore the period of uncertainty - even further. The Complainant said that it had confidence in the CAC’s decision regarding its jurisdiction to hear the easyJet case, and believed that that decision, to the extent that it was relevant to the current Complaint, should be respected unless and until it was overturned on appeal.

9) The Complainant said that the Employer had now agreed in principle to pay Mr Sack’s fees for assisting the Complainant in relation to the Complaint and on that basis the Complainant would not pursue that element of the Complaint.

Question 11

11. The Panel’s response to the Complainant’s email

Accepted Answer

10) In a letter to the parties dated 14 July 2021 the Case Manager informed the parties that the Panel had decided that the proceedings should not be stayed pending the outcome of an appeal to the EAT in easyJet regarding the jurisdictional issue. The letter also said that the Panel had decided that the most efficient and effective way of dealing with the Complaint was to consider the jurisdictional issue and the remaining substantive issues at the same time rather than dealing with the jurisdictional issue as a preliminary issue. The letter to the Employer invited the Employer to comment on both the jurisdictional issue and the substance of the complaints relating to the amendments to Articles 2 and 19 of the Agreement in as much detail as possible and to supply any documentation which it considered relevant by noon on 23 July 2021.

Question 12

12. Summary of the Employer’s response to the Case Manager’s letter of 14 July 2021

Accepted Answer

11) In its response dated 23 July 2021 the Employer said that the Agreement was confined to EEA member countries and solely concerned operations in EEA member states; it no longer had any relevance or effect in the UK. The Employer said that it had designated HSBC Ireland to act as its central management representative agent, and thus relocated its EWC central management under the Directive to the Republic of Ireland, with effect from 1 January 2021 due to Brexit. The Employer said that it had considered Ireland to be the most appropriate choice and the least disruptive to the operation of the EWC on account of the law being similar to that in England, the proximity and accessibility of Ireland, and the continuity of the use of the English language. The Employer said that as a consequence of its decision to relocate to the Republic of Ireland, any complaints about the EWC must now be brought under Ireland’s Transnational Information and Consultation of Employees Act 1996 (“TICEA”) and under the Agreement as opposed to under TICER which implemented the Directive in the UK.

12) The Employer said that the EWC had been operating effectively during 2021 based in the Republic of Ireland and it submitted that any change to this would be unnecessary and, indeed, could be more disruptive to the smooth operation of the EWC. The Employer gave examples of how it had continued to engage effectively with the EWC. The Employer said that the EWC was presently holding elections for its Chair, Deputy Chair and Select Committee.

13) The Employer referred to its previous submissions on the jurisdictional issue summarised in paragraphs 11 and 12 of the first decision. The Employer said that the CAC should not follow the approach in easyJet, which the Employer submitted contained errors of law. The Employer said that the CAC was required to apply regulations 4(1) and 5 of amended TICER and that, contrary to the CAC’s decision in easyJet, regulation 4(1) of amended TICER should be given its clear and ordinary meaning. The Employer emphasised the following wording:

Subject to paragraph (2) the provisions of regulations 17 to 41 and of regulation 46 shall apply in relation to a Community-scale undertaking or Community-scale group of undertakings only where, in accordance with regulation 5, the central management is situated in the United Kingdom (emphasis added).

The Employer submitted that the effect of regulation 4(1) was that there was jurisdiction “only where” regulation 5 applied. The Employer said that it was common ground that the EWC no longer fell within regulation 5 and it must follow, therefore, that the CAC no longer had jurisdiction over it. The Employer submitted that this position reflected the express intention of Parliament in deleting regulation 5(1)(a) from amended TICER, meaning that amended TICER did not apply where “central management is situated in the United Kingdom” and did not, therefore, apply to the Employer.

14) The Employer said that the CAC had accepted in easyJet that regulation 4(1) of amended TICER was “ capable of being read in the way that” easyJet contended and the Employer concurred that this was how it should be applied in this case. The Employer submitted that this accorded with the correct approach to statutory interpretation. The Employer said that Lord Nicholls had provided a useful overview in ex p Spath Holme Ltd ^{[footnote 4]}

Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and of the words used may be impressively complete or woefully inadequate. Thus, when the courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.

The Employer said that this focus on the words used was reiterated in R (Jackson) v Attorney General by Lord Bingham : ^{[footnote 5]}

A careful study of the statutory language, read in its statutory and historical context and with the benefit of permissible aids to interpretation, is the essential first step in any exercise of statutory interpretation”. As a result, the ordinary words usually provide the answer: London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 at [19]: “In summary, whatever the legal character of the document in question, the starting-point – and usually the end-point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.

The Employer said that the ordinary words of amended TICER must be respected even where the statutory consequences gave rise to curiosities. The Employer said that in Presidential Insurance Company Ltd v Resha St Hill ^{[footnote 6]} the Privy Council had decided that the natural meaning of the text (which was an amended provision) should prevail, even though that meant that the amendments that had been made to that provision had little or no effect.

15) The Employer said that where an enactment was grammatically capable of only one meaning (as here) and, on an informed interpretation, the interpretative criteria did not raise any real doubt as to that meaning, the enactment must be given its grammatical meaning. The Employer said that in the absence of anything to the contrary, it should not be assumed that Parliament made an error and intended the opposite of the words it used. The Employer referred to the words of Leggatt J in R (on the application of N) v Walsall Metropolitan Borough Council : ^{[footnote 7]}

When courts identify the intention of Parliament, they do so assuming Parliament to be a rational and informed body pursuing the identifiable purposes of the legislation it enacts in a coherent and principled manner. That assumption shows appropriate respect for Parliament, enables Parliament most effectively to achieve its purposes and promotes the integrity of the law. In essence, the courts interpret the language of a statute or statutory instrument as having the meaning which best explains why a rational and informed legislature would have acted as Parliament has. Attributing to Parliament an error or oversight is therefore an interpretation to be adopted only as a last resort.

16) The Employer said that regulation 18 of amended TICER was not relevant to this case (due to the Agreement). The Employer said that it did not properly give rise to any real doubt in easyJet as there was no “conflict” between regulation 4(1) and regulations 18, 18A and 21 of amended TICER. The Employer said that regulation 4(1) read with regulation 5 provided for the continuing application of regulations 18, 18A and 21 “on and after exit day in any case where they applied before exit day” in all circumstances in which they are given legislative effect by regulation 4(1). The Employer said that those regulations continued to apply to undertakings falling within regulation 5(1)(b) and (c) and 5(2) and that regulations 18, 18A and 21 did not contradict regulation 4(1) but applied in situations where regulations 4 and 5 provided that they did apply. The Employer said that this did not include the EWC. The Employer said that, in any event, regulations 18, 18A or 21 would not permit the ordinary and natural meaning and effect of regulation 4(1) of amended TICER to be reversed, when the express repeal of regulation 5(1)(a) of TICER made clear that Parliament did not intend amended TICER to apply to undertakings (like the Employer) which would have formerly fallen within regulation 5(1)(a) of TICER.

17) The Employer said that the EWC was presently operating subject to the laws of the Republic of Ireland and in particular TICEA and the representative agent in Ireland had assumed the relevant duties and obligations under the Directive. The Employer said that the CAC had no jurisdiction to interpret or apply that legislation and the intention of Parliament was that amended TICER would not purport to give the CAC dual jurisdiction in circumstances such as these which would offend against general principles of conflicts of laws. The Employer therefore invited the CAC to apply the ordinary and natural meaning of amended TICER and hold that it did not have jurisdiction over the Complaint.

18) The Employer said that the CAC’s approach of considering the jurisdictional issue and the remaining substantive issues at the same time placed the parties in a difficult situation in making submissions on the potential substantive issues without knowing what the jurisdictional basis was for the Complaint. The Employer said that it would nevertheless endeavour to respond as best it could to the substantive issues in these circumstances. The Employer said that it followed from the CAC’s first decision in this case that the remaining complaints should also be dismissed were there jurisdiction to hear them. The Employer referred to its initial response to the Complaint and said that the proposed amendments to Articles 2 and 19 of the Agreement followed automatically from the UK ceasing to be an EEA Member State. The Employer said that the change to Article 2.3 was purely a recital which did not affect the rights or obligations of the parties, but was a matter of clarification and information about what had lawfully taken place; it recorded the effect of Brexit and the designation of HSBC Ireland in the Republic of Ireland to act as the Employer’s representative agent from 1 January 2021. The Employer said that Article 2.4 was clarification which followed from Article 2.3. The Employer said that Article 2.5 and Article 19 were (once again) recitals which did not affect the rights or obligations of the parties, but provided clarification and information about what had lawfully taken place. The Employer said that the Agreement was governed by Irish law and subject to Ireland’s TICEA as a matter of law and not as a matter of the choice of the parties to the Agreement. The Employer submitted that the applicable law of any EWC agreement was imposed on the parties by law and not a matter of their contractual choice and that the proposed changes purely informed the readers of the Agreement of the accurate situation and removed any room for confusion between the text of the Agreement which was no longer correct and valid and the current legal position.

19) The Employer stated that Article 18.5 of the Agreement provides for where the “Agreement may be amended by mutual consent” and submitted that, as the amendments to Articles 2 and 19 simply reflected changes imposed by operation of law, Article 18.5 did not apply. The Employer also submitted that, having regard to paragraph 171 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, it would not encourage and promote fair and efficient practices and arrangements in the workplace for the text of the Agreement to have been in contradiction and contravention of the legal reality. The Employer submitted that there was no breach of the Agreement even if there was jurisdiction to hear the substantive issues.

20) The Employer reiterated that it remained fully committed to its collaborative relationship with its EWC and believed that the steps it had taken since it designated HSBC Ireland to act as its central management representative agent had demonstrated how effectively the EWC continued to operate. The Employer also said that it remained committed to continuing to engage with its UK workforce in accordance with its obligations under UK law and that its need to relocate its EWC central management to the Republic of Ireland was in no way a reflection of any diminution of the significance of its UK workforce to its overall business or any desire on its part to reduce the significant impact the EWC played in good employee relations.

21) The Employer’s response was copied to the Complainant, which was invited to comment on the Employer’s response by noon on 30 July 2021.

Question 13

13. Summary of the Complainant’s comments on the Employer’s response

Accepted Answer

22) In its comments dated 30 July 2021 the Complainant submitted that the CAC had jurisdiction under amended TICER to hear the Complaint. The Complainant submitted that in regulation 4(1) the words “only where” apply not to the phrase “in accordance with regulation 5” but to the words “the central management is situated in the United Kingdom” and that this was the express intention of Parliament. The Complainant said that Parliament’s intentions could be seen from other changes to the Regulations made at the same time, in particular the changes to regulations 18, 18A, 20 and 21. The Complainant said that regulations 18A and 21, which were relevant to the Employer, were amended by Parliament to state that they apply where a European Works Council had been established before exit day under regulation 17 (or by virtue of regulation 18). The Complainant said that, although not relevant to the Employer, regulation 18 was amended to state that the provisions of the Schedule continued to apply on and after exit day in any case where they applied before exit day and regulation 20 was amended to apply where, inter alia, agreement was reached before exit day on the establishment of a European Works Council. The Complainant submitted that it was clear from these changes that Parliament intended that EWCs established under TICER before the end of the Brexit transition period should be able to continue to enforce their legal rights at the CAC.

23) The Complainant said that the Employer had adduced no evidence of what it claimed to be Parliament’s “express intention” in deleting regulation 5(1)(a) from amended TICER. The Complainant submitted that the express intention of Parliament in deleting regulation 5(1)(a) from amended TICER was not, as the Employer argued, to exclude groups or companies whose central management is situated in the UK from the ambit of regulation 4(1), but to remove the responsibility from the central management of such groups or companies to “[create] the conditions and means necessary for the setting up of a European Works Council or an information and consultation procedure” (to use the words in the unamended regulation 5(1)) after the end of the Brexit transition period. In other words, the deletion of regulation 5(1)(a) and the changes to the opening paragraph of regulation 5(1) enacted Parliament’s intention that no new requests to set up a European Works Council in the UK may be made after exit day. The Complainant said that, in its amended form, regulation 5 now served only to make clear that groups or companies whose deemed central management is situated in the UK are also within the ambit of regulation 4(1), as well as groups/companies whose actual central management is in the UK.

24) The Complainant directed the Panel to the Explanatory Memorandum to The Employment Rights (Amendment) (EU Exit) Regulations 2019 (“the EU Exit Regulations”), the Regulations which made the relevant amendments to TICER. The Complainant said that the Explanatory Memorandum explained the intentions behind the changes, and it was on this basis that Parliament debated and ultimately approved the changes. Paragraphs 7.4 to 7.6 state as follows (with emphasis added by the Complainant):

7.4 A no deal exit would mean that after exit the UK is no longer included within EU rules on European Works Councils. As such changes are required to the legislative framework set out in the TICE Regulations 1999 to address this. In a ‘no deal’ scenario, the government will ensure the enforcement framework, rights and protections for employee representatives in the UK European Works Councils continue to be available, as far as possible. 7.5 Provisions relevant to existing European Works Councils, which can continue to operate, are maintained. These include: • the enforcement framework, for example where there is a dispute about the operation of an existing European Works Council; • the employee representative rights and protections, such as the rights to training and time off, and the protections from suffering detriment or unfair dismissal; and • the protection for confidential information shared with the European Works Council or through the information and consultation procedure. 7.6 However, the SI amends the TICE Regulations 1999 so that no new requests to set up a European Works Council or information and consultation procedure can be made. This removes the provisions covering: • requests for information on employee numbers; • the right to request that a European Works Council or information and consultation procedure is set up; • the negotiation process for establishing a European Works Council or information and consultation procedure, including setting up a special negotiating body; and • the content of new European Works Council or information and consultation procedure agreements.

25) The Complainant said that the CAC’s decision in easyJet,^{[footnote 8]} although not binding on the present Panel, adopted the approach that the Complainant took in saying:

… applying regulation 4(1) to exclude situations where central management is situated in the UK without recourse to regulation 5 would conflict with other provisions of amended TICER…. Regulation 18A, headed Information and consultation” states that it applies, inter alia, where a European Works Council has been established before exit day by virtue of regulation 18. Regulation 21, headed so far as material “Disputes about operation of European Works Council …” allows complaints to be presented to the CAC by a relevant applicant where a European Works Council has been established before exit day by virtue of regulation 18. The only requirement under both regulations 18A and 21 is that the European Works Council should have been established before exit day.
…. Regulations 18A and 21 also reflect an intention that the provisions they contain should continue to apply, without qualification, to a European Works Council that has been established under regulation 18 prior to exit day. Having considered the provisions of amended TICER as a whole the Panel has decided that regulation 4(1) does not apply to exclude situations where central management is situated in the United Kingdom without recourse to the provisions of regulation 5 (emphasis added by the Complainant). The Panel notes the Employer’s contention in paragraph 21 above that the Explanatory Memorandum to the EU Exit Regulations should be given limited if any weight. The Panel concurs with this view but observes that its conclusion does not conflict, and indeed accords, with the provisions of that memorandum recorded in paragraph 25 above.
…. Having considered the matter carefully the Panel has concluded that it retains jurisdiction to hear complaints relating to alleged failures or non-compliance by the Complainant occurring prior to exit day (as well as subsequently) which fall within the time limit imposed by regulation 21(1B). The Panel observes that the Employer’s submission would have the consequence that there would potentially be no forum in which an employer’s alleged failures in relation to a European Works Council governed by TICER which occurred prior to exit day could be challenged and does not consider that this is an outcome which Parliament could have intended.

The Complainant submitted that the same reasoning applied in the case of a company like the Employer with central management in the UK that had an EWC established under an agreement made pursuant to the former regulation 17. The Complainant said that regulation 21 applied not only to a European Works Council that had been established before exit day by virtue of regulation 18, but also to “a European Works Council or information and consultation procedure [that] has been established before exit day under regulation 17” (regulation 21(1)(a)), allowing a complaint to be presented to the CAC by a relevant applicant where paragraph 21(1A) applied. Paragraph 21(1A) states that it “applies where a relevant applicant considers that, because of the failure of a defaulter—(a) the terms of the agreement made before exit day under regulation 17 or, as the case may be, the provisions of the Schedule, have not been complied with”. The Complainant said that the Employer’s central management was“ situated in the United Kingdom” in accordance with the CAC’s interpretation of regulation 4(1) in easyJet and had a European Works Council that was “established before exit day under regulation 17”. The Complainant said that it considered that, because of a failure of the central management, the terms of the Agreement had not been complied with.

26) The Complainant said that in its submission the Employer had cited the following words of Leggatt J in R (on the application of N) v Walsall Metropolitan Borough Council ^{[footnote 9]}

When courts identify the intention of Parliament, they do so assuming Parliament to be a rational and informed body pursuing the identifiable purposes of the legislation it enacts in a coherent and principled manner. That assumption shows appropriate respect for Parliament, enables Parliament most effectively to achieve its purposes and promotes the integrity of the law. In essence, the courts interpret the language of a statute or statutory instrument as having the meaning which best explains why a rational and informed legislature would have acted as Parliament has. Attributing to Parliament an error or oversight is therefore an interpretation to be adopted only as a last resort.

The Complainant submitted that the interpretation of the legislation for which it contended, and which the CAC adopted in easyJet, was entirely consistent with the above statement; it assumed that Parliament was a rational and informed body pursuing an identifiable purpose, which was to continue the application of TICER so that the CAC would continue to have jurisdiction to hear complaints but prevented new requests for an EWC to be established in the UK. The Complainant said that its and the CAC’s interpretation “promote[d] the integrity of the law” by making regulation 4(1) consistent with regulations 18, 18A, 20 and 21 and gave the legislation the meaning which best explained why Parliament acted as it did and did not attribute to Parliament any error or oversight. The Complainant said that, in contrast, the Employer’s interpretation would impute to Parliament an intention with no rational explanation – the exclusion of UK-based companies but the inclusion of non-EEA-based companies, something the Employer appeared to admit was a ‘curiosity’ (see paragraph 14 above). The Complainant submitted that the Employer’s interpretation also undermined rather than promoted the integrity of the law by making regulation 4(1) inconsistent with regulation 18 in particular, but also regulations 18A, 20 and 21.

27) The Complainant said that the Employer had given no explanation in its submission as to why Parliament would have excluded UK-based EWCs from the CAC’s jurisdiction and that the only explanation it had given was reported in paragraph 11 of the first decision in this case where it was stated that:

The Employer said that the provision of TICER which had formerly applied to the Employer had been repealed (regulation 5(1)(a)) and that Parliament had expressly removed the CAC’s jurisdiction which was an inevitable consequence of Brexit as the Directive (which TICER implemented) no longer applied to central management in the UK.

The Complainant said that it was not “an inevitable consequence of Brexit” that Parliament should exclude UK-based EWCs from regulation 4(1) and that the Employer had not explained why it believed this was an inevitable consequence. The Complainant said that Parliament was perfectly entitled to legislate so that TICER would continue to apply to UK-based EWCs. The Complainant said that there was nothing in either the Directive, or the EU-UK Withdrawal Agreement or the EU-UK Trade and Co-operation Agreement preventing the UK Parliament from doing so, as long as it was understood that companies could not meet their obligations flowing from the Directive by having an EWC governed by TICER. The Complainant said that, in enacting the amendments to TICER, Parliament had exercised its sovereign right to create a legal regime for “European Works Councils” in the UK, one that was no longer derived from the Directive, just as it had created legislation on working time, temporary agency workers, information and consultation of employees, a “UK Societas” and other areas of law all of which were formerly derived from EU legislation.

28) The Complainant said that the terms of the Agreement lent further weight to its stance that TICER continued to apply to the EWC. The Complainant referred to Article 19:

Question 14

14. Article 19 – Legal status and dispute resolution

Accepted Answer

19.1 This Agreement is negotiated under Article 6 of Council Directive 2009/38/EC and is to be governed and construed according (sic) TICER and English law.
19.2 Any disputes between the parties as regards the meaning and/or operation of this Agreement shall be resolved in accordance with the procedures set out in The Transnational Information and Consultation of Employees (Amendment) Regulations 1999 and 2010. 19.3 The English text of this Agreement is the binding text. 19.4 The parties agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
19.5 The signatories of this Agreement hereby confirm that they are fully authorised to agree the terms of this Agreement.

The Complainant submitted that the Employer had illegitimately purported to amend Article 19 which, in its legitimate unamended form, provided for: (1) the Agreement to be governed by TICER (2) any disputes to be resolved in accordance with the procedures in TICER (ie via the CAC) and (3) the courts of England and Wales to have non-exclusive jurisdiction to settle any disputes. The Complainant said that this was entirely consistent with the fact that TICER continued to apply to UK-based companies like the Employer, as held by the CAC in easyJet. The Complainant said that the fact that the Employer had designated a representative agent in Ireland, as it was required to do for the purposes of the Directive, did not alter this: the Employer’s (actual) central management remained in the UK which meant that it came within the scope of TICER regulation 4(1), while its representative agent in Ireland had become the deemed central management assuming the role of actual central management but only for the purposes of the Directive. The Complainant submitted that the central management of a UK company could not take itself out of the scope of TICER by designating a representative agent in a different country for the purposes of the Directive.

29) The Complainant said that it acknowledged that its interpretation would mean that the EWC was subject to two jurisdictions – the UK (by virtue of TICER) and Ireland (by virtue of the Directive and the fact that the Employer had designated a representative agent in Ireland for the purposes of the Directive). The Complainant said that, however, (1) the Agreement itself envisages that it may be subject to more than one jurisdiction to settle any dispute or claim arising – see Article 19.4; and (2) the Agreement allows for its provisions to be amended and this would allow amendments to be made to Article 19 to remove this dual jurisdiction – but any amendments must be made by mutual consent of management and the EWC in accordance with Article 18.5, not unilaterally imposed by management. In summary, the Complainant maintained that the CAC had jurisdiction to hear its complaint, that this was clear from the wording of TICER, that Parliament intended this, and that the CAC was correct in its understanding of Parliament’s intentions in the easyJet case.

30) The Complainant said that the Employer’s had asserted that:

management had amended Articles 2 and 19 of the Agreement; that these amendments “followed automatically from the UK ceasing to be an EEA Member State”; and that they “did not affect the rights or obligations of the parties but provided clarification and information about what had lawfully taken place” and

“[t]he Agreement was governed by Irish law and subject to Ireland’s Transnational Information and Consultation of Employees Act 1996 as a matter of law and not as a matter of the choice of the parties to the Agreement” and that “[t]he applicable law of any EWC agreement is imposed on the parties by law and not a matter of their contractual choice”.

The Complainant said that it disagreed with all these statements.

31) The Complainant said that the amendments to Articles 2 and 19 did not follow “automatically from the UK ceasing to be an EEA Member State”. The Complainant said that, as noted above, the UK Parliament had created a legal regime which applies to European Works Councils established under TICER before the end of the Brexit transition period and the fact that the UK was no longer a member state of the EEA did not alter this. The Complainant said that the Employer was required to designate a representative agent in one of the Member States for the purposes of the Directive, but this did not mean that it could unilaterally amend the Agreement to exclude the EWC from the scope of TICER. The Complainant said that the rights and obligations of the parties to the Agreement would be affected by the purported changes to the Agreement. In particular, the change to the governing law would remove the rights and obligations conferred by TICER regulation 18A (Information and consultation) and the right of the EWC to bring a complaint to the CAC under regulation 21. The Complainant said that it was management’s purported amendments that had sought to make the Agreement subject to the Irish legislation in place of the UK TICER, through its designation of an Irish representative agent and the changes to Article 19, not simply “as a matter of law”.

32) The Complainant said that it did not agree that the applicable law of any European Works Council agreement was imposed on the parties by law; rather it was a matter of their contractual choice. The Complainant said that the Directive did not require that a European Works Council agreement was governed by the law of the member state in which the central management of the group or company was situated; the Directive only imposed the legislation of the member state in which the central management was situated in relation to the subsidiary requirements which apply where there is no agreement. The Complainant said that this meant that, according to the Directive, the governing law for an agreement was a matter for the negotiations that led to the agreement, and that the vast majority of European Works Council agreements did indeed state the governing law that applied, as did the Agreement. The Complainant said that if the applicable law were imposed by operation of law there would be no need to state in the agreement what the governing law was.

33) The Complainant said that TICER continued to apply to the Employer and to the Agreement, so that the company could not unilaterally remove itself from TICER’s scope by purporting to amend the Agreement. The Complainant said that this was particularly the case where the Agreement itself provided a mechanism for amending its provisions, which it did in Article 18.5. The Complainant said that Article 18.5 did not create an exception for any part of the Agreement: articles 2 and 19 did not state that they could be amended unilaterally by management by way of exception to Article 18.5 and management must therefore follow the process set out in Article 18.5 for amending the Agreement, which it failed to do. The Complainant said that the Employer did not send a “revision request” to all signatories (or to the current EWC members) setting out the purpose of the revision request and there were no “negotiations” between management and the EWC over the changes, to which the EWC did not give its consent or agree. Rather, through its letter dated 4 December 2020, management simply “[gave] the EWC notice that with effect from 1 January 2021 … for Irish law and Irish EWC legislation to be the new applicable law for our EWC Agreement. Articles 2 and 19 and Appendix 1 of our EWC Agreement has been updated accordingly.” The Complainant said that in its view there had been no amendment to the Agreement, and according to Article 18.5 of the Agreement, the revision “request” was considered to be “ineffective”.

34) The Complainant said that it sought a decision from the CAC pursuant to regulation 21(4) that its complaint was well-founded, and an order requiring the Employer, if it wishes to change Articles 2 and 19 of the Agreement, to follow the procedure set out in Article 18.5 of the Agreement.

Question 15

15. Considerations

Accepted Answer

35) The Complainant submits that the Employer has not complied with the terms of the Agreement by amending the Agreement without the consent of members of the EWC in breach of Article 18.5 of the Agreement.

Question 16

16. Article 18.5 reads as follows:

Accepted Answer

18.5 If HSBC Central Management and the members of the EWC deem it necessary, this Agreement may be amended by mutual consent. Either HSBC Central Management or the EWC, following a two-thirds majority vote of EWC members, can request the revision of all or part of this Agreement. A revision request must be sent in writing to all signatories, setting out the purpose of the revision request. If the revision is not agreed within six months from the opening of negotiations, the revision request is considered to be ineffective.

The specific amendments of which the Complainant complains are the changes to Articles 2.3, 2.4, 19.1, 19.2 and 19.4 and the inclusion of Article 2.5.

Articles 2.3, 2.4, 19.1, 19.2 and 19.4 in their unamended form read as follows:

2.3 For the purposes of the EWC Directive HSBC Central Management is situated in the United Kingdom which means that this agreement is subject to the United Kingdom’s Transnational Information and Consultation of Employees Regulations, 1999 and 2010 (TICER) 2.4 In accordance with the terms of TICER 1999 and 2010 the role of the Special Negotiating Body will end upon the signing of this Agreement. At the first meeting of the EWC, the Special Negotiating Body representatives will be invited to attend in order to provide an explanation of the negotiations and ensure a smooth and pragmatic hand over.

19.1 This Agreement is negotiated under Article 6 of Council Directive 2009/38/EC and is to be governed and construed according (sic) TICER and English law.
19.2 Any disputes between the parties as regards the meaning and/or operation of this Agreement shall be resolved in accordance with the procedures set out in The Transnational Information and Consultation of Employees (Amendment) Regulations 1999 and 2010. 19.4 The parties agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

These articles in their amended form, together with new Article 2.5, read as follows:

2.3 HSBC Central Management is situated in the United Kingdom, which meant that this agreement was subject to the United Kingdom’s Transnational Information and Consultation of Employees Regulations, 1999 and 2010 (TICER) until 31 December 2020 when the transition period following the United Kingdom’s withdrawal from the EEA ended. As HSBC Central Management is no longer situated in an EEA Member State, it has designated HSBC Securities Services (Ireland) DAC in the Republic of Ireland to act as its representative agent from 1 January 2021 (the “Representative Agent”). 2.4 Any references to HSBC Central Management in this agreement shall include a reference to the Representative Agent with effect from 1 January 2021 2.5 With effect from the date of appointment of the Representative Agent, this agreement is governed by Irish law and subject to Ireland’s Transnational Information and Consultation of Employees Act 1996 (as amended) (“TICEA”).

19.1 This Agreement is negotiated under Article 6 of Council Directive 2009/38/EC and is to be governed and construed according (sic) TICER and English law.
19.2 Any disputes between the parties as regards the meaning and/or operation of this Agreement shall be resolved in accordance with the procedures set out in The Transnational Information and Consultation of Employees (Amendment) Regulations 1999 and 2010. 19.3 The English text of this Agreement is the binding text. 19.4 The parties agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
19.5 The signatories of this Agreement hereby confirm that they are fully authorised to agree the terms of this Agreement.

36) The Panel has considered the submissions and the accompanying documentation provided by the parties carefully. Having reviewed the documentation the Panel is satisfied that, for the reasons set out below, the complaint regarding these amendments is not well-founded. The Panel is satisfied that it was able to reach a decision on the complaint fairly without a hearing and on the basis of the documentation before it without further submissions from either party. The Panel noted the parties’ submissions on the issue of the CAC’s jurisdiction under amended TICER. In the light of its conclusions on the substance of the complaint referred to, the Panel decided that it would be appropriate to dispose of that complaint on the assumption that the CAC had jurisdiction to consider it under amended TICER without determining the question of jurisdiction under amended TICER either way. For the avoidance of doubt, the Panel has not given any consideration to the question of jurisdiction under amended TICER for the purpose of this decision and nothing in this decision should be taken as expressing the Panel’s view on any of the submissions relating to that question. The Panel’s decision is based entirely on its interpretation of the Agreement and whether the amendments made by the Employer to the Agreement were made in breach of Article 18(5) of the Agreement.

37) The amendments to the Agreement which are the subject of the complaint cover two substantive areas: the designation of HSBC Ireland as the Employer’s representative agent with effect from 1 January 2021^{[footnote 10]} and the change in the law governing the Agreement from English to Irish law and, in particular, the exclusion of English law. This decision addresses each of these areas in turn.

38) It is common ground between the parties that the Employer was required by EU law to designate a representative agent within an EU Member State for the purposes of the Directive once the transition period following the UK’s withdrawal from the EU ended.^{[footnote 11]} The Complainant did not appear to dispute the choice of HSBC Ireland as the representative agent for the purposes of the Directive but nevertheless sought to argue that the amendments to Articles 2.3 and 2.4 which reflect this change constituted a breach of the Agreement as the procedure in Article 18.5 of the Agreement had not been followed prior to the amendments being made. The Panel does not uphold this contention. The Panel is satisfied that once HSBC Ireland had been designated as the representative agent for the purposes of the Directive (such designation not having been disputed by the Complainant) it would have been anomalous for the Agreement to continue to state, as it did in Article 2.3 in its unamended form, that for the purposes of the Directive the central management was situated in the United Kingdom.^{[footnote 12]} The Panel has therefore concluded that it was a necessary consequence of the change of representative agent to HSBC Ireland that the Agreement should be amended to reflect that change and rejects the submission that the amendments to Articles 2.3 and 2.4 were made in breach of the Agreement because the amendments were not agreed by the EWC. The Panel also observes that the procedure in Article 18.5 does not appear to have been designed to cover amendments which are required by law rather than being proposed at the will of the parties. Article 18.5 lays down a procedure for amending the Agreement by mutual consent in which failure to agree to a revision of the Agreement within six months of the opening of negotiations means that the revision request is “considered to be ineffective” and the status quo prevails. It is clear that the Agreement would no longer have been compliant with the Directive if the substantive position as represented in unamended Article 2(3) had remained unchanged; indeed, under the Directive the role of representative agent would have been automatically transferred to the establishment or group undertaking employing the greatest number of employees in a Member State had the Employer itself failed to designate a new representative agent in a Member State. In such circumstances it would be anomalous for the text of the Agreement not to reflect the new reality regardless of whether the EWC had explicitly consented to that amendment.

39) The remaining amendments to Article 2.3, the amendments to Articles 19.1, 19.2 and 19.4, and the inclusion of Article 2.5, refer to the change in the law governing the Agreement from English to Irish law. The Complainant acknowledged that an EWC governed by TICER would not comply with the Directive and that it followed from the designation of HSBC Ireland as the representative agent for the purposes of the Directive that Irish law would apply to the Agreement (see paragraphs 27 and 29 above). However the Complainant submitted that the application of Irish law did not preclude the continued application of English law; rather, both systems would apply unless and until the EWC had consented to the removal of English law in accordance with the procedure in Article 18.5. The Employer submitted that the change to Irish from English law occurred as a matter of law rather than as a matter of the choice of the parties to the Agreement and that the amendments to Articles 2 and 19 merely informed readers of the accurate situation, removing any room for confusion between the text of the Agreement and the current legal position.

40) It was common ground between the parties that it followed from the designation of HSBC Ireland as the representative agent for the purposes of the Directive that Irish law would apply to the EWC (although they differed on whether English law would also continue to apply, the Complainant saying that Article 19.4 of the Agreement envisaged that the Agreement may be subject to more than one jurisdiction). On that basis it was clear that some amendments to Articles 2 and 19 of the Agreement, which in their unamended form referred only to English law and TICER, were required to reflect the application of Irish law, even if English law were to continue to apply. The Panel does not consider that the introduction of references to Irish law in these articles without the procedure in Article 18.5 being followed would, in itself, constitute a breach of the Agreement as it would merely reflect the legal position as understood by both parties. The Panel also reiterates its observation set out in paragraph 38 above that Article 18.5 does not appear to be designed to cover situations in which, should the parties fail to reach agreement on a proposed amendment, retention of the status quo is not an option.

41) The Complainant submitted that the Employer had breached the Agreement by seeking to remove the application of English law to the Agreement without the Complainant’s consent. The Complainant submitted that the choice of law governing a European Works Council Agreement was a matter for negotiation between the parties and the designation of HSBC Ireland did not automatically mean that English law ceased to apply. The Panel is content to assume for the purposes of this decision (without deciding the matter) that the choice of law governing a European Works Council agreement is potentially a matter for negotiation. However the Panel is satisfied that under the Agreement the parties saw the designation of the central management for the purposes of the Directive ^{[footnote 13]} and the law governing the Agreement as inextricably linked. Article 2.3 in its unamended form reads as follows:

For the purposes of the EWC Directive HSBC Central Management is situated in the United Kingdom which means that this agreement is subject to the United Kingdom’s Transnational Information and Consultation of Employees Regulations, 1999 and 2010 (TICER)

It follows from this provision that once the Employer’s central management ceased to be situated in the UK for the purposes of the Directive, HSBC Ireland being the ‘deemed central management’ for those purposes, the Agreement ceased, under the terms of that Agreement, to be subject to TICER. The Panel does not consider that the Employer was unilaterally and illegitimately removing itself from TICER’s scope as the Complainant contended; rather it was a consequence of the link (and severance of the link) between the situation of central management for the purposes of the Directive and the governing law laid down in unamended Article 2.3, itself a product of agreement between the parties.

42) As stated in paragraph 40 above the Panel regards the inclusion of Article 2.5 and the amendments to Articles 19.1, 19.2 and 19.4 as a necessary consequence of the application of Irish law to the Agreement following the designation of HSBC Ireland as the representative agent. The removal of any reference to English law in those articles follows from the Panel’s interpretation of Article 2.3 set out in paragraph 41 above and does not, in the Panel’s view, constitute a breach of the Agreement.

43) The Complainant drew attention to the wording of Article 19.4 which states that the Agreement is subject to the non-exclusive jurisdiction of the courts of England and Wales, in its unamended form and, as amended, to the non-exclusive jurisdiction of the courts of Ireland. The Complainant said that this meant that the Agreement itself envisaged that it may be subject to more than one jurisdiction to settle any dispute or claim arising. The Panel does not consider that, in either its unamended or amended form, Article 19.4 changes the identity of the governing law specified in Articles 2.5, 19.1 and 19.2; rather it deals with the fora in which disputes or claims under that governing law may be settled. The CAC is a creature of statute whose jurisdiction does not extend to TICEA or other provisions of Irish law. The Panel does not consider, therefore, that Article 19.4 can be relied upon to retain the CAC’s jurisdiction under the Agreement over disputes or claims arising out of the Agreement.

Question 17

17. Decision

Accepted Answer

44) For the reasons given in paragraphs 38-43 above the Panel’s decision is that the complaint that the Employer has not complied with the terms of the Agreement by amending Articles 2.3, 2.4, 19.1, 19.2, 19.4 and including Article 2.5 without the consent of members of the EWC in breach of Article 18.5 of the Agreement is not well-founded.

Question 18

18. Concluding observation

Accepted Answer

45) The Panel has held that the Employer did not breach the Agreement by making the amendments to the Agreement which are the subject of this complaint without the consent of members of the EWC. However the Panel observes that good industrial relations practice would have favoured some form of prior consultation with the EWC on these measures prior to their introduction regardless of whether this was required under the Agreement itself.

Panel

Professor Gillian Morris, Panel Chair

Mr Michael Clancy

Mr Mustafa Faruqi

11 August 2021

In this decision we refer to The Transnational Information and Consultation of Employees Regulations 1999 prior to their amendment by The Employment Rights (Amendment) (EU Exit) Regulations 2019 as “TICER” and The Transnational Information and Consultation of Employees Regulations 1999 following their amendment by The Employment Rights (Amendment) (EU Exit) Regulations 2019 as “amended TICER”. ↩
The CAC does not expect parties themselves to copy their submissions directly to the other party; the CAC expects to cross-copy submissions with a covering letter stating whether any response to what has been sent is required by the Panel and if so the specific nature of any such response. In this case the Employer copied its response directly to the Complainant. ↩
EWC/36/2021. ↩
[2001] 2 AC 349 at 396. ↩
[2005] UKHL 56 at [29]. ↩
[2012] UKPC 33, particularly at [32]-[33]. ↩
[2014] EWHC 1918 at [65]. ↩
Above, note 3. ↩
See note 7 above. ↩
Article 4(3) of the Directive states that: For the purposes of this Directive, the [central management’s ] representative or representatives …. shall be regarded as the central management.See also paragraph 3 of the European Commission’s Notice to Stakeholders on the Withdrawal of the United Kingdom and EU Rules on European Works Councils dated 21 April 2020 (“the European Commission’s Notice), referred to in paragraph 16 of the first decision in this case. ↩
See paragraphs 18 and 28 above and paragraph 16 of the first decision, where the Employer referred also to designation by default pursuant to the European Commission’s Notice in the event that it had not designated a representative agent. ↩
See note 10 above. ↩
See note 10 above. ↩

Decision

Applies to England, Scotland and Wales

1. Introduction

2. Background

3. Article 2 - INTRODUCTION

4. Article 18 - DURATION OF AGREEMENT

5. Article 19 - LEGAL STATUS AND DISPUTE RESOLUTION

6. Article 2 – INTRODUCTION

7. Article 19 – LEGAL STATUS AND DISPUTE RESOLUTION

8. The Complaint

9. The first decision and matters left open in the first decision

10. The Complainant’s response to matters left open in the first decision

11. The Panel’s response to the Complainant’s email

12. Summary of the Employer’s response to the Case Manager’s letter of 14 July 2021

13. Summary of the Complainant’s comments on the Employer’s response

14. Article 19 – Legal status and dispute resolution

15. Considerations

16. Article 18.5 reads as follows:

17. Decision

18. Concluding observation

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Applies to England, Scotland and Wales

1. Introduction

2. Background

3. Article 2 - INTRODUCTION

4. Article 18 - DURATION OF AGREEMENT

5. Article 19 - LEGAL STATUS AND DISPUTE RESOLUTION

6. Article 2 – INTRODUCTION

7. Article 19 – LEGAL STATUS AND DISPUTE RESOLUTION

8. The Complaint

9. The first decision and matters left open in the first decision

10. The Complainant’s response to matters left open in the first decision

11. The Panel’s response to the Complainant’s email

12. Summary of the Employer’s response to the Case Manager’s letter of 14 July 2021

13. Summary of the Complainant’s comments on the Employer’s response

14. Article 19 – Legal status and dispute resolution

15. Considerations

16. Article 18.5 reads as follows:

17. Decision

18. Concluding observation

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