Decision

Decision

Updated 18 January 2021

Applies to England, Scotland and Wales

Case Number EWC/33/2020

18 January 2021

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 1999 AS AMENDED

DECISION ON COMPLAINT UNDER REGULATION 21

The Parties:

Verizon European Works Council

and

Verizon UK Limited

1. Introduction

1) On 15 December 2020, Mr. Philip Sack of EWC Legal Advisers submitted a complaint to the CAC on behalf of the Verizon European Works Council (the VEWC), (the Complainant) under Regulation 21 of the Transnational Information and Consultation of Employees Regulations 1999, as amended (TICER) in relation to the actions of the Central Management of the Verizon Group (the Employer). The CAC gave both parties notice of receipt of the complaint on 15 December 2020. The Employer submitted a response to the CAC on 22 December 2020 which was copied to the Complainant.

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. Mike Cann and Mr. Paul Noon OBE as Members. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Background

3) The background to the complaint, based on material supplied by the parties, is as follows ^{[footnote 1]}. Verizon Communications Inc. is an American communications technology company ^{[footnote 2]}. It has subsidiaries in the USA and in the European Union (EU); these, together with Verizon, constitute the “Verizon Group”. Until 20 October 2020 Verizon UK Limited (“Verizon (UK)”) was its representative agent in the European Union for the purposes of Directive 2009/38/EC (the Directive). Verizon (UK) was also its representative agent for the purposes of TICER; whether this continued beyond 19 October 2020 was a matter of dispute between the parties. ^{[footnote 3]}

4) On 20 October 2016 the VEWC entered into the Verizon European Works Council Agreement (“the Charter”) with the Employer; this replaced a previous agreement dating from 2008. The Charter was governed by TICER. Articles of the Charter of particular relevance to this case are as follows:

The present Agreement covers all the countries of the European Union (EU), the European Economic Area (EEA) and Switzerland, in which the Verizon group has or will have establishments. All employees of such establishments will be covered by its provision and will be directly represented in the EWC. (Article III.1)

The EWC will consist of Verizon employee representatives, called EWC members. The EWC shall represent collectively the interests of Verizon employees in Europe. (Article IV.1)

Each country covered by this Agreement will have one EWC member. (Article IV.2)

For each EWC member, a substitute member will be selected … A substitute member will only be invited to attend the physical EWC meetings when the employee representative he/she was selected for as a substitute, is no longer eligible or is unable to attend. The substitute member may serve for up to the remainder of the term of office of the representative he/she replaces. There should always be a primary and a substitute representative for each country covered by this Agreement. (Article (IV.4)

EWC members should serve a four year term, unless binding national legislation dictates otherwise. (Article IV.7)

The provisions of the present agreement are governed by United Kingdom law … [TICER] (Article XII.1).

In case of conflict, the EWC members and Central Management shall attempt to resolve their differences among themselves. In case this works out to be impossible, the parties to the present agreement agree to submit their differences within one week to an arbitration panel composed of three arbitrators. One of the arbitrators is selected by the EWC and another one is selected by Central Management. Together these two arbitrators appoint a third arbitrator. The arbitral panel will decide within a week by simple majority vote and make a recommendation to the EWC. If those efforts fail, and only then, may a party initiate a court procedure. The parties agree that the recommendation of the arbitration panel should be given substantial consideration. The labour courts of the United Kingdom will be considered as the competent courts. (Article XII.2)

The present Agreement is concluded for a period of time of four years, starting from the date of signature of the Agreement. (Article XIII.1)

After 3 years of being in force, Central Management and the European Works Council will evaluate the Agreement. The Agreement will be tacitly prolonged for a similar period of four years if both parties agree upon that on the basis of the evaluation. If one of the parties involved so requests, the EWC Agreement will be renegotiated. (Article XIII.2)

The request to renegotiate the EWC Agreement has to be given in writing and has to be addressed to Central Management if given by the EWC or to the Select Committee of the EWC if notice is given by Central Management. In case of renegotiation, the EWC will negotiate the new EWC agreement on behalf of all the employees of the Verizon (sic) within the territorial scope of the present Agreement. During the negotiations, the existing Agreement remains valid and in force. (Article XIII.3).

5) At a plenary meeting between the Employer and the VEWC on 8 October 2019, the Employer said that it was contemplating changing its representative agent for European Works Council purposes from its headquarters in the UK to Ireland in case of a no-deal Brexit. The Employer also stated that there was a need for a re-evaluation of the Charter; that both parties should meet to evaluate it; and that this evaluation would basically trigger the need for a renegotiation.

6) On 21 October 2019 the Employer wrote to the VEWC stating that it would like to convene a meeting on 25 October 2019 to discuss further (1) the impact of a no-deal Brexit on the Charter and the choice of a new representative agent in the EU; and (2) the evaluation of the Charter. This meeting took place on 25 October 2019. On 7 July 2020 the Employer noted in an email to the VEWC:

Back in October 2019, we engaged in discussions with you regarding the evaluation of the current Agreement. More specifically, we shared with you our intention to enter into negotiations regarding the applicable provisions after the end of the Agreement on 20 October 2020…

Therefore, as per the provisions in article XIII.3, and after sharing our evaluation of the Agreement, we informed you in writing that we consider it necessary to renegotiate the EWC Agreement.

On 16 July 2020, the Employer and the EWC held a first renegotiation meeting. A second meeting was held on 27 July 2020. At that second meeting the VEWC said that the evaluation of the Charter had taken place on the Employer’s side but the VEWC thought that evaluation needed to be done jointly. The Employer said that, in its view, the evaluation had taken place the previous October but it invited the VEWC to make any representations it wished to make at the meeting as part of its evaluation. After further discussion the VEWC said that “We agreed to start negotiations and whether the evaluation took place is rather irrelevant. So we consider the evaluation to be behind us” and “We won’t come back in October - and you can note this - that all is not valid because the evaluation was not completed.” Further negotiation meetings were held on 28 August 2020, 15 September 2020, 28 September 2020, 5 October 2020, 8 October 2020, 14 October 2020, 15 October 2020 and 19 October 2020. There was also a regular plenary meeting on 7 October 2020, and two exceptional information and consultation meetings on 16 and 19 October 2020.

7) The parties exchanged draft agreements between themselves during the negotiation process. At 5.11pm on 19 October 2020 the Employer emailed the VEWC attaching the Employer’s “final agreement” requesting electronic signatures by 7pm and saying that if they were not received by that time “we will assume that you wish not to sign the Agreement and proceed as discussed”. This Agreement retained Switzerland and the UK within the scope of a future EWC. At 7.42pm the VEWC Chairperson, Mr Charpentier, replied to the Employer saying that the full VEWC had voted against signing the current proposal; that the VEWC considered the two sides were “not that far from reaching an agreement which could satisfy both parties”; and expressed the belief that negotiations should continue in good faith. The Employer replied at 10.06pm in the following terms:

…. let’s try to solve any outstanding points before the end of the Charter tonight. Therefore, we invite you to table any counter proposals that you may have in that regard in good time before midnight BST tonight, and in any event by 23.00 BST so that Verizon can consider them in good faith. If you really have no counter proposals to make then that suggests to us that, despite our best efforts, we are actually some way apart still and, unfortunately, this means that negotiations have now ended, along with the Charter.

8) On 19 October 2020, Verizon (USA), with effect from 20 October 2020, terminated Verizon (UK)’s appointment as its representative agent for European Works Council purposes and appointed Verizon Ireland Limited (“Verizon (Ire)”) as its new representative agent. In its letter to Verizon (UK) and Verizon (Ire), Verizon (USA), after noting the significance of 31 December 2020 as the date on which the UK would cease to be part of the EU’s legal framework on European Works Councils due to the end of its Brexit transition period, said as follows:

Verizon (USA) has decided that these changes should have effect from 20 October 2020, and not only from 1 January 2021, as that is the date on which the European Works Council agreement to which Verizon (UK) is currently party shall expire. It accordingly enables a new arrangement immediately to replace its group’s existing European Works Council arrangements instead of a new arrangement coming into force under UK law on 20 October 2020 that could only last until 31 December 2020.

9) On 20 October 2020 the Employer emailed employees notifying them that the four-year term of office of VEWC members, along with the Charter, had expired. The letter stated that the VEWC had been unable to reach an agreement on a new EWC Agreement and a new EWC would, therefore, be established under the Irish subsidiary requirements. The email said that Swiss employees would not be represented on the new EWC and that UK employees would probably not be represented from 1 January 2021. However, in its response to the complaints dated 22 December 2020, the Employer stated that Verizon (Ire) had taken UK employees into account when allocating seats on the new EWC to each country based on their headcounts and that, once that allocation was complete, UK management had begun the process of UK employees electing the UK members of the new EWC in accordance with TICER.

10) In an email to the Employer dated 22 October 2020 Mr Charpentier maintained that the Charter was still valid and stated that negotiations had only begun in earnest at the end of September 2020. His email requested the appointment of an arbitration panel under Article XII of the Charter. In an email to Mr Charpentier dated 6 November 2020 the Employer reiterated that the Charter had expired on 19 October 2020. In an email to the Employer dated 13 November 2020 Mr Charpentier maintained the VEWC’s position on the continuing validity of the Charter; acknowledged the change of jurisdiction to Irish law; and repeated its request for arbitration under Article XII of the Charter. He informed the Employer that the VEWC had appointed a local expert from a firm of solicitors in Ireland to assist the EWC in the dispute resolution process. He also notified an intention to bring a complaint in the appropriate Irish fora if management refused to continue to recognise the current EWC. In an email to Mr Charpentier dated 20 November 2020 the Employer once again reiterated its disagreement that the Charter continued to exist. The Employer also refused to agree to the appointment of arbitrators.

11) On 7 January 2021 UK employee representatives were informed by the Employer that, because there was no deal between the EU and the UK that kept the UK within the scope of EU law, the remit of the Verizon EWC was now legally restricted to EU member states, Iceland, Liechtenstein and Norway. Consequently, the process for electing UK representatives to the EWC was discontinued.

3. The Complaints

12) The VEWC raised complaints under Regulation 21 of TICER as amended in relation to the failure of Central Management to comply with the terms of the EWC Agreement ^{[footnote 4]} in the following respects:

• Failing to evaluate the Agreement in breach of Article XIII.2 of the Agreement;

• Failing to engage in dispute resolution with the EWC in breach of Article XII.2 of the Agreement;

• Purporting to terminate the Agreement in breach of Article XIII of the Agreement;

• Ceasing to recognise the current EWC members as members of the EWC in breach of Article IV of the Agreement; and

• Denying Verizon employees in the UK and Switzerland the right to be represented on the EWC in breach of Article III.1 of the Agreement.

The Complainant also said that Central Management’s decision to terminate the designation of its representative agent in the UK, and then to seek to establish an EWC under the subsidiary requirements of the Irish legislation, had the effect of frustrating the information and consultation rights of its UK employees and was intended to do so, contrary to TICER.

4. Issues addressed in this decision

13) In a letter dated 11 January 2021, commenting on the Employer’s response to the complaints, the Complainant withdrew the complaint that Central Management had failed to evaluate the Agreement in breach of Article XIII.2 of the Agreement. The Complainant did so on the basis that it did not dispute the Employer’s record of the meeting on 27 July 2020 where the VEWC had stated that “whether the evaluation took place is rather irrelevant. So we consider the evaluation to be behind us” and “We won’t come back in October - and you can note this - that all is not valid because the evaluation was not completed.” The summaries of the Employer’s response to the complaints, and the Complainant’s further submissions following that response, do not, therefore, include material relevant to the question of whether any evaluation which took place was in accordance with the Charter and the Panel makes no finding on that matter

14) In its response to the complaints the Employer contended that the CAC had no jurisdiction to hear the remaining complaints and that any complaints should instead be brought in Ireland against Verizon (Ire) as the representative agent of Verizon (USA) since 20 October 2020. The Panel has addressed the question of jurisdiction as a preliminary issue and its summaries of the parties’ submissions which follow focus on that question.

5. Summary of the Employer’s response to the complaints

15) The Employer submitted that, at the end of 19 October 2020, each member of the VEWC ceased to hold office under Article IV.7 of the Charter and the Charter expired in accordance with Article XIII.1. The Employer submitted that, having regard to regulations 21(1) and 21(3) of TICER, the CAC had no jurisdiction to hear the complaints. Regulation 21(1) and 21(3) of TICER read, so far as material, as follows:

(1) Where –

(a) a European Works Council or information and consultation procedure has been established under regulation 17; or

(b) a European Works Council has been established by virtue of regulation 18, a complaint may be presented to the CAC by a relevant applicant …

(3) In this regulation “relevant applicant” means –

(a) in the case of a failure concerning a European Works Council, either the central management or the European Works Council ….

The Employer submitted that none of the former members of the EWC were a “relevant applicant” and that Verizon (UK) was not “central management” in accordance with regulations 4(1) and 5 of TICER. Regulation 4(1) states that:

…. the provisions of regulations 7 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.

Regulation 5 states that the central management shall be responsible for creating the conditions and means necessary for the setting up of a European Works Council where, inter alia, the central management is situated in the United Kingdom or the central management is not situated in a Member State and the representative agent of the central management (to be designated if necessary) is situated in the United Kingdom.

6. Summary of the Complainant’s response to the Employer’s response

16) The Complainant contended that the Charter expressly provided for the Charter’s continuation after 19 October 2020 during negotiations for a new agreement and that therefore the VEWC’s members’ mandates remained valid and the VEWC was a “relevant applicant” as defined in regulation 21(3). The Complainant drew attention to the following words of Article XIII.3 of the Charter:

In case of renegotiation, the EWC will negotiate the new EWC agreement on behalf of all the employees of the Verizon (sic) within the territorial scope of the present Agreement. During the negotiations, the existing Agreement remains valid and in force (emphasis added).

The Complainant submitted that this last sentence must refer to the Agreement remaining “valid and in force” after 19 October 2020 because the Agreement would be “valid and in force” during negotiations before and up to 19 October 2020 without the need to say so. The Complainant submitted that Article XIII.3 provides for negotiations to lead to a new Agreement, with the current Charter remaining in force until such agreement was reached, stating that

In case of renegotiation, the EWC will negotiate the new EWC agreement (emphasis added) on behalf of all the employees of the Verizon (sic) within the territorial scope of the present Agreement.

The Complainant said that a new EWC Agreement was therefore the expected outcome from these negotiations and submitted that this was supported by Article XIII.2 which states:

….If one of the parties involves so requests, the EWC agreement will be renegotiated (emphasis added)

The Complainant alleged that the Employer had unilaterally sought to terminate the negotiations on the false assertion that it was not possible to continue those negotiations after 19 October 2020. The Complainant contended that the Employer had deliberately compressed negotiations into a matter of weeks in order to give the VEWC as little time as possible to co-ordinate its position, and to review and respond to the Employer’s proposals, with the aim of forcing the EWC to accept restrictions on its activities through a new agreement. The Complainant referred in detail to the scheduling of meetings and what had been done at these meetings in support of this contention.

17) The Complainant said that the Charter did not provide, either expressly or impliedly, for the subsidiary requirements of any country’s legislation to apply in the absence of a new agreement. The Complainant contended that, if it had been intended that the subsidiary requirements should apply in the absence of agreement, then the Charter would need to have been drafted more precisely to specifically cover this idea; it would need to have included the extra wording applying the subsidiary requirements as other EWC agreements did.

18) The Complainant submitted that the restrictions on “contracting out” contained in regulation 40 of TICER were relevant in this case. Regulation 40 provides as follows:

(1) Any provision in any agreement (whether an employee’s contract or not) is void in so far as it purports–

(a) to exclude or limit the operation of any provision of these Regulations other than a provision of Part VII; or

(b) to preclude a person from bringing any proceedings before the Appeal Tribunal or the CAC, or in Northern Ireland the High Court or the Industrial Court, under any provision of these Regulations other than a provision of Part VII.

(2) Paragraph (1) does not apply to any agreement to refrain from continuing any proceedings referred to in sub-paragraph (b) of that paragraph made after the proceedings have been instituted.

The Complainant contended that if the provisions of the Charter were interpreted in the way asserted by the Employer such that the EWC no longer exists; that its members are no longer members; that they cannot bring a complaint to the CAC; and that UK employees no longer have a right to be represented on the EWC, then that would fall foul of regulation 40 as it would “exclude or limit the operation” of the requirement to inform and consult in accordance with the Charter and with TICER after 19 October 2020. It would also have the effect, from 1 January 2021, of excluding UK employees from the scope of the VEWC contrary to TICER and preclude the VEWC from bringing any proceedings before the CAC under regulation 21. The Complainant submitted that, to the extent that the Employer’s interpretation of the Charter was correct (which the EWC disputed), then in accordance with regulation 40, section XIII of the Charter was void in so far as it purported to have this effect.

19) The Complainant said that it firmly believed that the Charter remained “valid and in force” in accordance with section XIII.3 and that, as a consequence, the VEWC was still in existence and was therefore a “relevant applicant” for the purpose of bringing this complaint to the CAC under TICER. The Complainant said that where there was a dispute between the VEWC and the Employer regarding the operation of the Charter, section XII.2 provided for arbitration. The Complainant said that the VEWC had requested arbitration in its email of 22 October 2020 but that the Employer had refused arbitration on the grounds that the Charter had expired.

20) The Complainant referred to section XII.1 of the Charter which provides that the Charter was governed by UK law in the form of TICER. The Complainant said that the Charter did not provide for either party to unilaterally amend the Charter; the only circumstances in which its provisions could be amended were via the renegotiation provided for in section XIII which required the results of any renegotiation to be agreed between the parties. The Complainant said that this meant that the VEWC must agree to a change to section XII (Applicable law) and that the VEWC had not agreed to such a change. The Complainant said that in an email of 29 October 2019 to the Employer Mr Charpentier had indicated the EWC’s willingness to change the applicable law from the UK to Ireland, but that this was on the basis (a) that no other changes would be made to the Charter; and (b) that management had told the EWC (incorrectly as it turned out) that “the Charter will come to an end” in the event of a “no-deal Brexit”. The Complainant said that the UK Parliament had already passed amendments to TICER on 4 March 2019 which would maintain TICER in amended form after the UK had exited the EU. The Complainant said that it understood that this was part of the Government’s commitment not to remove EU-derived employment rights following Brexit. The Complainant referred to the Explanatory Memorandum to the legislation amending TICER (The Employment Rights (Amendment) (EU Exit) Regulations 2019, SI 2019 No. 535) which reads as follows:

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.

21) The Complainant said that this intention to maintain TICER in force and to allow the enforcement framework via the CAC to remain in place was reflected in various changes to the Regulations including regulation 21 the first two clauses of which now provide as follows:

(1) Where–

(a) a European Works Council or information and consultation procedure has been established before exit day under regulation 17 [ie under an EWC agreement]; or

(b) a European Works Council has been established before exit day by virtue of regulation 18 [ie under the subsidiary requirements], a complaint may be presented to the CAC by a relevant applicant where paragraph 1A applies.

(1A) This paragraph 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; or

(b) regulation 18A has not been complied with, or the information which has been provided by the management under regulation 18A is false or incomplete in a material particular.

22) The Complainant said that it believed that it had been misled by the Employer when it was told that the Charter would come to an end in the event of a no-deal Brexit. This explained why, in his email of 13 November 2020, Mr Charpentier had said that the VEWC acknowledged the change of jurisdiction to Irish law. The Complainant said that it now believed it was mistaken in acknowledging a change in applicable law and that since 13 November 2020 it had become aware of the continuing applicability of TICER to the VEWC which was “a European Works Council … [that] has been established before exit day under regulation 17” to quote regulation 21(1)(a) as amended.

23) The Complainant said that it did not dispute the need for the Employer to also designate a representative agent in one of the EEA member states in order to comply with the requirements of the EWC Directive as transposed into the national laws of the member states. The Complainant said that this was clear from the wording of the Directive and also from the European Commission’s Notice to Stakeholders dated 21 April 2020 which states that “the central management or the central management’s representative agent have to be situated in the EU” (section 3) and “the law of the Member State where the central management or the ‘deemed central management’ or the central management’s representative agent are situated will be relevant so as to ensure that the rights of employees under Directive 2009/38/EC remain enforceable within the EU (section 4). The Complainant said that the Commission’s Notice to Stakeholders did not take into account the fact that TICER continued to apply, since 1 January 2021, to an EWC established “before exit day under regulation 17”. The Complainant said that it understood that both the Directive (as transposed by the laws of the member states) and TICER continued to apply to the Employer, to the VEWC and to the Charter. The Complainant said that it did not dispute the Employer’s right to designate its Irish subsidiary as its representative agent for the purpose of the EWC Directive but it could not unilaterally “terminate” its designation of its UK subsidiary for the purpose of the Charter and TICER which the Charter expressly stated was the applicable law.

24) The Complainant contended that the Employer’s decision to terminate the designation of its representative agent in the UK, and to then seek to establish an EWC under the subsidiary requirements of the Irish legislation had the effect of frustrating the information and consultation rights of its UK employees, and was intended so to do so, contrary to TICER. The Complainant acknowledged that the Employer’s “final offer” to the VEWC expressly included UK employees within the scope of the future EWC but alleged that the way that the Employer had proceeded - unilaterally declaring the negotiations over, declaring the Charter terminated and declaring the Irish subsidiary requirements applicable – would, if allowed to stand, have the effect of excluding UK employees from a future EWC after 31 December 2020. The Complainant said that it did not follow from the Employer’s right to designate its Irish subsidiary as its representative agent for the purpose of the EWC Directive, which the Complainant did not dispute, must necessarily entail terminating its designation of its UK subsidiary for the purpose of the Charter and TICER as the latter would require an agreed amendment to the Charter. The Complainant distinguished the present case from HPE ^{[footnote 5]} where, unlike here, there was no EWC agreement in place restricting the company’s freedom to terminate the designation of its representative agent in the UK.

25) The Complainant concluded its submissions by drawing attention to paragraph 41 (Complaints and proceedings) of Schedule 2 to The Employment Rights (Amendment) (EU Exit) Regulations 2019, which provides as follows;

Despite the amendments and revocations made by Part 1 of this Schedule, the 1999 Regulations continue, on and after exit day, to have effect, in relation to any complaint or application presented under those Regulations before exit day to the Central Arbitration Committee or the Employment Appeal Tribunal, as they had effect immediately before that day but subject to the modifications.

7. Considerations

26) As stated in paragraph 14 above the Panel decided to treat as a preliminary issue whether it has jurisdiction to consider the complaints referred to in paragraph 12 other than that of failing to evaluate the Agreement, which was withdrawn by the Complainant in its letter of 11 January 2021. The Panel has considered carefully the written submissions of both parties. The Panel has concluded that it does not have jurisdiction to consider these complaints.

27) The Employer contended that the terms of office of members of the VEWC, and the Charter itself, expired at the end of 19 October 2020 and that the former members of the VEWC had no standing under regulation 21 of TICER to bring the complaints in question. It further submitted that Verizon (UK) was not the central management, having been replaced by Verizon (Ire) on 20 October 2020. The Complainant contended that the Charter expressly provided for the Charter’s continuation after 19 October 2020 during negotiations for a new agreement; that the VEWC’s members’ mandates remained valid; and that the VEWC was therefore a “relevant applicant” as defined in regulation 21(3) of TICER.

28) The Panel observes that the Charter does not expressly deal with the situation that has arisen in this case and considers that it is required, as a consequence, to consider the relevant provisions of the Charter as a whole. The Panel notes that the final sentence of Article XIII.3 provides that “During the negotiations, the existing Agreement remains valid and in force”. The Panel notes the Complainant’s argument that this should be interpreted as referring to the Charter remaining “valid and in force” after 19 October 2020 because it would be “valid and in force” during negotiations before and up to 19 October 2020 without the need to say so. However there are other provisions of the Charter which set clear time limits. The first is Article XIII.1 of the Charter which states that it is concluded “for a period of time of four years, starting from the date of signature of the Agreement”. Article XIII.2 provides for the Charter to be “tacitly prolonged” for a similar period of four years but this is only if both parties agree to that on the basis of an evaluation, and such agreement did not happen here. The Panel accepts that it is arguable, if the wording of Article XIII.3 were considered in isolation from the rest of the Charter, that Article XIII.3 has the effect of extending the duration of the Charter. However the clear terms of Article XIII.1 and XIII.2 have a contrary effect. The Panel does not consider that Article XIII.3 is sufficiently explicit to override the clear terms of Articles XIII.1 and XIII.2 The Panel also notes in this regard the provisions of the Charter relating to VEWC members’ terms of office. Article IV.7 states that VEWC members should serve a four-year term; it does not provide any facility for this period to be extended in order for negotiations for a new agreement to be completed or for any other reason. Article IV.4 provides for substitute members but a substitute member may serve for up to the remainder of the term of office of the representative he or she replaces and no longer. Having considered all these provisions carefully the Panel has concluded that the Charter did not envisage the possibility of an extension beyond the initial four-year period in the circumstances of this case and that the Charter therefore terminated at the end of 19 October 2020.

29) The Panel notes that Article XIII of the Charter is drafted in terms which envisage the Charter’s replacement by a new agreement unless Article XIII.2 applies but does not consider that failure to agree a replacement agreement has the consequence that the time limits prescribed in the Charter are thereby overridden. Although it may have been desirable for the Charter to provide expressly for the application of the subsidiary requirements in the event of a failure to agree, the Panel does not consider the absence of such provision to be a barrier to their application.

30) The Complainant submitted that Article XIII of the Charter was void in that, if the Employer’s submissions were correct, it would, contrary to regulation 40 of TICER, exclude or limit the operation of the requirement to inform and consult in accordance with the Charter and with TICER after 19 October 2020. The Complainant said that it would also have the effect, from 1 January 2021, of excluding UK employees from the scope of the VEWC contrary to TICER and preclude the VEWC from bringing proceedings before the CAC under regulation 21. The Panel does not accept this submission. For the reasons given in paragraph 28 above, the Panel considers that the Charter, including Article XIII, expired at the end of 19 October 2020. Article XIII was therefore no longer capable of having the effect contended for by the Complainant. To the extent that the exclusion of UK employees from the EWC or other consequences of the expiry of the Charter are open to legal challenge, a matter on which we express no view, Article XIII itself cannot preclude such a challenge.

31) For the reasons given in paragraphs 28-30 above the Panel does not consider that the VEWC is a “relevant applicant” under regulation 21(3) of TICER.

8. Concluding observations

32) The Complainant acknowledged that the Employer was entitled to designate Verizon (Ire) as its representative agent for the purposes of the Directive but contended that, under the Charter, it could remove the designation of Verizon (UK) for the purposes of the Charter and TICER only with the agreement of the VEWC. In view of its conclusion that the VEWC is not a “relevant applicant” under regulation 21(3) of TICER the Panel has not found it necessary to consider this submission and expresses no opinion on it.

33) The Complainant alleged that the Employer had deliberately compressed negotiations into a matter of weeks in order to give the VEWC as little time as possible to co-ordinate its position, and to review and respond to the Employer’s proposals, with the aim of forcing the EWC to accept restrictions on its activities through a new agreement. The Complainant also alleged that it had been misled by the Employer when it was told that the Charter would come to an end in the event of a no-deal Brexit and that this had led the VEWC erroneously to acknowledge the change of jurisdiction to Irish law. The Panel has not investigated these or any other allegations of bad faith, misrepresentation or misjudgement by either party contained in the written submissions; makes no findings on them; and they have played no part in its decision.

9. Decision

34) For the reasons given in paragraphs 28-31 above the Panel has decided that it does not have jurisdiction to consider the complaints referred to in paragraph 12 above (the complaint relating to failure to evaluate the Agreement having been withdrawn).

Professor Gillian Morris, Panel Chair

Mr Mike Cann

Mr Paul Noon OBE

18 January 2021

1. The summary which follows is designed to provide the context for the issue of jurisdiction which the Panel addressed as a preliminary issue in this decision: see paragraph 14 below The complaints submitted by the Complainant initially included failing to evaluate the Verizon European Works Council Agreement in breach of Article XIII.2 of the Agreement: see paragraph 12 below This complaint was later withdrawn by the Complainant: see paragraph 13 below. This decision does not, therefore, record in detail the events which took place prior to 19 October 2020 which were material to whether or not an evaluation had been carried out. ↩

2. The information in this and the sentence which follows are taken from EWC/26/2020, paragraph 3. ↩

3. See paragraphs 23, 24 and 32 below. ↩

4. As stated in paragraph 4 above, in this decision we generally refer to the Verizon European Works Council Agreement as “the Charter” but we have retained the reference to “the Agreement” in this paragraph to reflect the language of the complaints. We have, however, replaced the reference in the complaints to a “section” of the Agreement with the term “Article” to reflect the language of the Charter itself. ↩

5. EWC/19/2018 ↩