SIPTU representatives have made an official complaint to the European Union concerning how the EU Directive on European Works Councils (EWC’s) was transposed in to Irish law.

Since Brexit, up to 150 companies have transferred the legal base of their EWC’s from the UK to the Republic of Ireland. Among the reasons for their move is the lack of collective bargaining rights in Ireland for workers and the difficulty facing European workers who want to process a complaint through the Irish legal system. They are also attracted by the miniscule penalties that are enforced for breaches in Ireland, if a case against an employer is successful.

The Government has failed to enact the full terms of the EU Directive into Irish law and industrial relations disputes coming under its remit can only be investigated and processed through the criminal courts at the discretion of the Minister for Enterprise and Employment.

This was highlighted in a recent complaint by SIPTU, Ireland’s largest trade union, to the EU which challenged the manner in which the Directive on EWC’s was transposed into Irish law. The union cited the case of the Kingspan Group, an Irish based company which employs 10,000 workers across their operations in Europe.

SIPTU and the Belgium trade union, ABV V-METAAL applied in writing to the Kingspan Group seeking the formation of a Special Negotiating Body to negotiate the creation of an EWC. Under the terms of the EU Directive, this process should be completed within six months.

Kingspan breached the six month time-frame and only partially engaged some eight months after the application. In 2018, Kingspan representatives held a meeting with SIPTU EWC expert, Denis Sheridan and agreed to the formation of a EWC in the company. 

It was also agreed that the parties would engage early in 2019. However, the company has since refused to engage on the matter.

SIPTU referred the matter to the Workplace Relations Commission (WRC), which invited both parties to conciliation. However, Kingspan did not respond to this request by the State’s industrial relations agency.

SIPTU had no option but to make a complaint to the Minister as it could not forward a case through the normal industrial relations procedures.

Then government minister, Pat Breen, referred the case back to the WRC, which again failed to secure a resolution to the case.  

In January, 2021, in response to a complaint by SIPTU Deputy General Secretary, Gerry McCormack, regarding the failure to properly transpose the EU Directive into Irish law, the Minister for Enterprise and Employment, Leo Varadkar, said that the situation would be reviewed.

Due to the lack of action by the Government on the matter since that correspondence, Mr McCormack has made an official complaint to the EU regarding its failure to enact the Directive and the difficulties and hardship this has created for workers in Ireland and across Europe. 

 

 

Letter sent by SIPTU to Minister Varadker on 20th November, 2020 requesting changes to the EWC legislation as it is not fit for purpose. With between 100 -200 EWC’s moving their legal base from the UK to Ireland due to Brexit, employers are utilising Ireland due to the failings of how it was transposed from the EU Directive.

 

Mr Leo Varadkar TD
Tánaiste and Minister for Enterprise, Trade and Employment
 
Dear Minister,
 
Many multinational companies operating European Works Councils (EWCs) based under British legislation are now taking steps to move their legal base to Ireland because of Brexit.  This is now leading to numerous concerning issues under Irish legislation.
 
Unlike many countries in Europe, Ireland has no statutory right to trade union recognition and as the legislation itself was not transposed into Irish law for the purposes of issues being dealt with through the normal Industrial Relations resolutions mechanisms, this has a negative affect for workers in Ireland and for workers throughout Europe whose legislative base will now be Ireland. These issues could have far-reaching consequences for Ireland as the restrictive measures of the legislation will now affect many employees in Europe as well.
 
The EWC legislation needs to be brought into line with employment legislation in Ireland and in Europe.
 
When the European Directive was introduced in 1996 it was for the purpose of putting in place procedures for sharing information and consultation between Employers and Employees on a transnational basis.  The 2009 recast Directive went further and gave clearer definitions of consultation, information and other elements of the Directive.  We in SIPTU are of the view that there are serious difficulties with how it was transposed into Irish law.
 
It was always the intention of European Directives that the dispute resolution mechanisms of each individual country would provide the forum for the parties to resolve their own grievances.  SIPTU, in trying to pursue a claim on behalf of a group of workers/members under this piece of legislation, has found that there are gaps in the Act which has led to it being very restrictive.  The Irish legislation has not been implemented ‘to the spirit of the directive’ in that where parties in dispute and/or can reach agreement, they can only utilise the state’s dispute resolution services in three ways:
  1. Section 17: Protection of employee representatives;
  2. Section 20: Seeking arbitration in relation to confidentiality and withholding of sensitive information;
  3. Section 21: Seeking arbitration into disputes concerning interpretation or operating of agreements.
In relation to Section 17, cases are heard, in the first instance, at the adjudicator service and then appealed to the Labour Court.  The other two sections of legislation only provide for the appointment of an arbitrator.
 
With regard to companies failing to provide the legally-required information and failing to set up a Special Negotiating Body within 6 months of the applications, only the Minister’s Department has the right to prosecute the employer concerned.
 
As you are aware, the normal industrial relations issues associated with European Works Councils’ legislation in Ireland have no place in this piece of legislation and access through the industrial relation state resolution mechanisms do not apply.  The spirit of the Directive is not being adhered to and Ireland is one of the few, if not the only, member-state where parties to the legislation cannot utilise the industrial relations state resolution mechanisms for resolving disputes.  This has led to Irish employers not taking claims under this act seriously as there are no repercussions for them because of the gaps in the current legislation and the lack of redress available to workers in this matter.
 
The central tenets of this letter have already been sent to your Department and to the WRC by our own EWC Co-ordinator, Denis Sheridan.  Due to the recent change in government, the matter remains outstanding.
 
As you are aware, Brexit is complete and the transition period will end in January 2021.  It is of the upmost importance that this issue is reviewed and amended in order to protect and enhance the consultative process in EWCs for Irish workers and for our European and British colleagues.
Minister, we respectfully request that you take the necessary steps to amend the legislation as a matter of priority.
 
We are available to discuss this matter directly with the main stakeholders if required.
 
Yours sincerely,
 
Gerry McCormack
Deputy General Secretary
Private Sector
SIPTU

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