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Confederation generale du travail & Ors
(Social policy) [2007] EUECJ C-385
“The questions referred
As a preliminary point, it is clear from the Court’s case-law that the encouragement of recruitment constitutes a legitimate aim of social policy and that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion (see, inter alia, Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraphs 71 and 74, and Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraphs 55 and 56).
However, the margin of discretion which the Member States enjoy in matters of social policy cannot have the effect of frustrating the implementation of a fundamental principle of Community law or of a provision of that law (see, to that effect, Seymour-Smith and Perez, paragraph 75, and Kutz-Bauer, paragraph 57).
The first question
By its first question, the national court asks, in substance, whether Article 3(1) of Directive 2002/14 is to be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers within the meaning of that provision.
In that regard, it should be noted that, pursuant to Article 2(d) of Directive 2002/14, ’employee’ means any person who, in the Member State concerned, is protected as an employee under national employment law and in accordance with national practice.
It follows that, since it is not disputed that the workers aged less than 26 referred to in the national provision at issue in the main proceedings are protected by national employment legislation, they are employees within the meaning of Directive 2002/14.
It is true that the second subparagraph of Article 3(1) of the Directive provides that Member States are to determine the method for calculating the thresholds of employees employed. However, that provision concerns determination of the method of calculation of the thresholds of employees employed and not the actual definition of the concept of an employee.
Since Directive 2002/14 defined the group of persons to be taken into account at the time of that calculation, Member States cannot exclude from that calculation a specific category of persons initially included in that group. Thus, although that directive does not prescribe the manner in which the Member States are to take account of employees falling within its scope when calculating the thresholds of workers employed, it does nevertheless require that they be taken into account.
As is apparent from the Court’s case-law, where a Community provision refers to national legislation and practice, Member States cannot adopt measures likely to frustrate the objective of the Community legislation of which that provision forms part (see, to that effect, Case C-151/02 Jaeger [2003] ECR I-8389, paragraph 59).
With regard more particularly to Directive 2002/14, firstly, it is clear from both Article 137 EC, which constitutes its legal basis, and the 18th recital in the preamble to the Directive and Article 1(1) thereof that its objective is to lay down minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community.
Secondly, the fact remains that the system put into place by Directive 2002/14 is intended to apply to all employees referred to in Article 2(d) of that directive, apart from certain exceptions laid down in Article 3(2) and (3) thereof.
Legislation such as that at issue in the main proceedings which, as the Advocate General observed in point 28 of his Opinion, has the consequence of exempting certain employers from the obligations laid down in Directive 2002/14 and of depriving their employees of the rights granted under that directive, is liable to render those rights meaningless and thus make the Directive ineffective.
Furthermore, it follows from the observations submitted by the French Government that the national provision at issue in the main proceedings is intended to relax the constraints created, for employers, by the fact that the recruitment of additional employees may cause them to cross the thresholds laid down, inter alia, for application of the obligations under Directive 2002/14.
With regard to the interpretation of Directive 2002/14 proposed by the French Government, to the effect that Article 3(1) of the Directive does not prohibit Member States from instituting, as is the case of the provision at issue in the main proceedings, methods for the calculation of thresholds of employees which may go as far as temporarily excluding certain categories of employee, inasmuch as that exclusion is justified on the basis of an objective of general interest constituted by the promotion of employment of young people and complies with the principle of proportionality, it is sufficient to note that such an interpretation is incompatible with Article 11(1) of Directive 2002/14, which requires Member States to take all necessary steps enabling them to guarantee the results imposed by Directive 2002/14 at all times, in that it implies that those States would be allowed to evade, even temporarily, that obligation to reach a clear and precise result imposed by Community law (see, by analogy, Case C-212/04 Adeneler and Others [2006] ECR I-0000, paragraph 68).
In the light of the foregoing, the answer to the first question referred must be that Article 3(1) of Directive 2002/14 is to be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers within the meaning of that provision.
The second question
By its second question, the national court asks, in substance, whether Article 1(1)(a) of Directive 98/59 is to be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers set out in that provision.
In order to answer the question reformulated in that way, it should first be observed that Directive 98/59 is designed to ensure comparable protection for workers’ rights in the different Member States and to harmonise the costs which such protective rules entail for Community undertakings (see, by analogy, Case C-383/92 Commission v United Kingdom [1994] ECR I-2479, paragraph 16).
Secondly, it is clear from Articles 1(1) and 5 of Directive 98/59 that it is intended to provide minimum protection with regard to the information and consultation of employees in the event of collective redundancies, Member States remaining free to adopt national measures more favourable to such employees.
The fact remains that the thresholds laid down in Article 1(1) of Directive 98/59 constitute precisely such minimum provisions from which Member States may derogate only by provisions more favourable to employees.
Firstly, it follows from the Court’s case-law that national legislation which makes it possible to impede protection unconditionally guaranteed to workers by a directive is contrary to Community law (Commission v United Kingdom, paragraph 21).
Secondly, and contrary to the submissions of the French Government, Directive 98/59 cannot be interpreted as meaning that the methods for calculation of those thresholds, and therefore the thresholds themselves, are within the discretion of the Member States, since such an interpretation would allow the latter to alter the scope of that directive and thus to deprive it of its full effect.
As is clear from the decision for reference and from points 73 and 74 of the Advocate General’s Opinion, a national provision such as that at issue in the main proceedings is liable to deprive, even temporarily, all workers employed by establishments normally employing more than 20 workers of the rights which they derive from Directive 98/59 and thus undermines its effectiveness.
In the light of the foregoing, the answer to the second question referred must be that Article 1(1)(a) of Directive 98/59 is to be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers set out in that provision.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. Article 3(1) of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers within the meaning of that provision.
2. Article 1(1)(a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers set out in that provision.”
Nortel (Ireland ) Limited v IICFN (Ireland) Limited
RIC101
“SUBJECT:
1. Failure to provide the Employee Forum with any financial resources
BACKGROUND:
2. The Forum referred its case to the Labour Court on the 15th October, 2009. A Labour Court hearing took place on the 10th February, 2010, in Galway. The Forum’s case is that Company has refused to provide it with financial resources that are both necessary and reasonable to enable it to perform its duties in an appropriate manner as is provide for under the legislation pertaining to the establishment of such bodies, specifically Section 15(1) of the Information and Consultation Act, 2006. The Company maintains that the only issue involved is that of legal costs and that it is not obliged to pay such costs. The following is the Court’s recommendation.
RECOMMENDATION:
This is a referral to the Court by the representatives of employees of Nortel (Ireland) Ltd (hereafter the applicants) pursuant to s.15 of the Employees (Provision of Information and Consultation) Act 2006 (hereafter the Act) in a dispute concerning the interpretation and operation of the Standard Rules applicable to an Information and Consultation Forum established under s.10 of the Act.
Background
The background against which this dispute arose can be summarised as follows: –
1. In October 2008 Nortel (Ireland) Ltd (hereafter the Employer) and its employees entered into an Information and Consultation Agreement. The agreement provided that the standard rules set out in s.10 of the Act would apply to the operation of the Forum established by the Agreement.
2. In or about January 2009 the Employer became insolvent. It obtained the protection of the High Court in England and was placed in Administration by order of that Court. That order took effect in this jurisdiction pursuant to Council Regulation 146/2000 on Insolvency Proceedings.
3. Prior to the Employer being placed under the protection of the Court, it sold part of its business to another undertaking known as Avaya Incorporated. Consequent upon this transfer some 258 of the Employer’s employees were transferred to the employment of Avaya. The Administrators of the Employer are continuing to seek buyers for the remaining parts of the business.
4. The Forum sought funding from the Employer to meet certain costs incurred in obtaining legal advice on employment related issues. The Employer refused to provide such funding.
The Applicants contend that the employer is obliged to provide the Forum with such financial resources as are necessary and reasonable to enable them to perform their duties in an appropriate manner. The Employer acknowledges that it is so obligated but it contends that this obligation does not require it to meet legal costs incurred by the Forum.
Conclusions of the Court
The relevant provisions of the Model Rules at issue in this case are contained at Clause 5 thereof. This Clause provides as follows: –
5. (1) The expenses incurred in the operation of the Forum shall be borne by the employer.
(2) The employer shall provide the members of the Forum with any financial resources that are necessary and reasonable to enable them to perform their duties in an appropriate manner.
The import of this provision is clear. The financial resources which an employer is obligated to provide must be for the purpose of enabling the Forum to perform it duties under the Act and must be necessary to that end. The resources required must also be within the bounds of what is reasonable in the circumstances of the case under consideration.
It is the Employer’s contention that the only claim advanced by the Forum was that it be put in funds to meet legal costs. The Applicants contend that the claim is not simply for the reimbursement of legal costs. However, their claim for financial resources has not been particularised in its submissions to the Court although it is clear from correspondence opened to the Court that what was previously raised by the Forum was a claim that the employer should meet its legal costs.
It seems to the Court that the criteria of necessity and reasonableness can only be applied where the purpose for which the resources are claimed is clearly identifiable. In that regard the only discernable claim made by the forum was for the payment of legal costs incurred, actually or potentially, in the pursuance of industrial relations claims or in obtaining advice on employment related matters.
Having regard to all the circumstance of this case the Court does not accept that legal advice or representation is necessary for the pursuance of industrial relations claims. Nor does the Court accept that the pursuance of such claims falls within the range of duties ascribed to an information and consultation forum under the Act. In relation to the matters upon which the forum wished to seek advice, the Court is satisfied that the information which they required could have readily been obtained elsewhere, including from State Agencies, without the need to incur legal costs.
Recommendation
For the reasons outlined above the Court does not recommend that the employer is obliged under Clause 5 of the Model Rules set out a Schedule 1 of the Act to provide the applicants with fund for the purpose of meeting the legal costs which it previously claimed.
HSE v HSE Staff Panel
RIC081
“BACKGROUND:
2. The Unions claim that the Health Service Executive (HSE) breached an Agreement on Information and Consultation between the parties. The Agreement was concluded in September 2006 as a pre existing agreement under Section 9 of the Employees (Provision of Information and Consultation) Act, 2006. The Unions believe that the HSE has contravened the Agreement by not consulting with them over the implementation of a recruitment freeze and other cutbacks. The HSE contend that senior management met the Trade Unions in September 2007 and provided a comprehensive overview of their financial difficulties. It was also stated that the recruitment suspension was temporary and the terms and conditions of existing staff would not be effected.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement could not be reached the dispute was referred to the Labour Court at the request of the Unions in accordance with Section 15(1) Employees (Provision of Information and Consultation) Act, 2006. A Labour Court hearing took place on the 28th January, 2008
RECOMMENDATION:
This case was referred to the Court pursuant to Section 15(1) of the Employee (Provision of Information and Consultation) Act 2006 (the Act). The dispute concerns the interpretation or operation of an Agreement on Information and Consultation made between the health services management and trade unions working under the auspices of the Health Service National Partnership Forum, dated 1st September 2006 (the Agreement). This is a pre-existing agreement within the meaning of s9 of the Act. The substance of the complaint is that the HSE contravened the Agreement in failing to consult with the Trade Unions in relation to an initiative which it introduced in September 2007, known as the “Financial Break Even Plan”.
The factual background upon which this complaint is grounded is the same as that giving rise to the dispute dealt with by the Court in Recommendation
No. 19152. The Unions contend that HSE’s failure to consult with them in relation to the initiative in issue constitutes a breach of both Towards 2016 and the Agreement. This Recommendation should, therefore be read in conjunction with Recommendation No. 19152
The provisions of the Agreement which are material for present purposes are at Clauses 12 and 19 and at Appendix 5
Clause 12 provides: –
Dealing With Unexpected Circumstances.
It is recognised that some changes and associated decisions need to be made in an expeditious and timely fashion, in order to respond effectively to unexpected circumstances and compromise may be necessary on some of the rigour of this agreement. All employees and their union representatives should be informed of such circumstances at the earliest possible date.
Clause 19 provides:-
Subject of Consultation
Consultation (meaning the exchange of views and establishment of dialogue between the employees’ representatives and the employer) shall take place on all issues relating to ;
Probable developments of the activities of the relevant health service organisation(s)
Probable development of employment within the health service or any measure envisaged, in particular where there is a threat to employment
All decisions likely to lead to substantial changes in work organisation or in contractual relations (ref Article 4.2 of Directive, copied at Appendix 2)
Reflective of the intent of the EU Directive (Article 4.4) and the Act, such consultation shall be with a view to reaching agreement on such decisions.
A more comprehensive list of areas for information and consultation is set out at appendix 5
Appendix 5 sets out an indicative list of examples what are to be regarded as significant issues on which consultation is required.
The Act and the Agreement are intended to give effect the rights and responsibilities of the parties arising from Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community. Accordingly the Agreement must be interpreted and applied in the light of the wording and purpose of the Directive in order to achieve the objective pursued by the Directive (see the Decision of the ECJ in Case 14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891.
Article 4.2 of the Directive provides
2. Information and consultation shall cover:
(a) information on the recent and probable development of the undertaking’s or the establishment’s activities and economic situation;(b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;(c) information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provisions referred to in Article 9(1).
The HSE accepts that it did not consult with the Unions in respect to the initiative giving rise to the dispute. Its defence to the present claim, as set out in its submission to the Court, is that it was not required to do so under the Agreement. In advancing that argument it pointed out that the introduction of a temporary pause in employment is not listed as a “significant issue” under Appendix 5 of the Agreement.
The Unions submitted that the issues arising under the impugned initiative came within the ambit of Clause 19 of the Agreement and should have been the subject of consultation and information.
Conclusions of the Court.
There is no serious conflict between the parties as to the salient facts of this case. The net issue for consideration by the Court is whether or not the HSE was obliged by the Agreement to have informed and consulted the Unions on its breakeven initiative prior to its finalisation and implementation. The answer to that question lies in the application of the various provisions of the Agreement identified as material, when interpreted in the light of the wording and purpose of the Directive.
In relation to each of these provisions the Court has concluded as follows: –
Clause 12.
Clause 12 of the Agreement provides that in the case of difficulties arising from unforeseen circumstances the obligation to consult may be abridged but it does not relieve the employer of that obligation altogether. In any event the Court has very considerable doubt as to whether the events giving rise to this dispute could properly be classified as unforeseen as the HSE must have had some prior indication that its budget was being overrun. Furthermore, the HSE did not inform the unions of any circumstances coming within the scope of this Clause, as it required by the Clause itself. Neither does the HSE now seek to rely on this provision in support of its defence to the present complaint.
Appendix 5 of the Agreement.
The HSE’s principal defence is that the decisions implemented in relation to existing staff do not come within the ambit of any of the issues listed as significant in Appendix 5. The HSE is correct in pointing out that none of the issues mentioned in this list are directly apposite in the present case. However the list is expressly not exhaustive and, in the Court’s view, the overriding determinant of what gives rise to the obligation to consult is the type of circumstances referred to at Clause19.
Clause 19.
This Clause prescribes an obligation to consult onprobable developments of the activities of the relevant health service organisation(s).This wording must be interpreted in light of the wording of Article 4.2 (a) and (b) of the Directive. Article 4.2 (a) imposes an obligation to provide information on “the recent and probable development of the undertaking’s or the establishment’s activities and economic situation”.Article4.2(b) provides that an obligation to inform and consult arises “on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment”.It is noted that this provision applies, in particular, where there is a threat to employment (and the HSE told the Court that there was no threat to employment). However, it is clear from the language in which this provision is expressed that its application is not confined to such situations.
In Recommendation No. 19152 the Court found that the initiatives giving rise to this dispute did have a significant effect on staff. It had the effect of reducing the number of staff available to provide a service to patients and this, in turn, placed available staff under additional pressure. It also affected staff in that overtime and promotions were curtailed and staff members who had a legitimate expectation of resuming work after a career break had their return to employment delayed.
In the Court’s view the combined effect of Clause 19 of the Agreement and Article 4.2 of the Directive creates an obligation to inform and consult of sufficiently wide application to cover the type of developments which arose in this case.
The Court accepts that the obligation to consult does not provide the parties to be consulted with a right of veto. Nor should it be seen as inhibiting the right or duty of management to take appropriate action to deal with changing circumstances. However, the Agreement (and consequently the Act) required the HSE to inform and consult with the unions in respect of the employment related implications of its breakeven initiative. Moreover the obligation imposed by the Agreement is to consult with a view to reaching agreement. That required the HSE to provide the unions with an opportunity to put forward their views on what was proposed so as to have a real and constructive input into the decision making process.
Having regard to all the circumstances of this case the Court must conclude the Unions’ complaint is well-founded and that the HSE contravened the Agreement by its failure to inform and consult with the Unions in advance on its breakeven initiative.
The Court recommends that the HSE should assure the Unions that should the need for a similar initiative arise in the future full and adequate consultation will take place.
The Court does not consider it appropriate to make any further recommendations in this case.”