Decision

Decision

Updated 17 January 2020

Case Number EWC/21/2019

17 January 2020

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 1999 AS AMENDED

DECISION ON COMPLAINT UNDER REGULATIONS 21 & 21A

The Parties:

1) Princes Group European Works Council

2) Jonathan Clegg

and

The Central Management of Princes Group

1. INTRODUCTION

1) On 8 April 2019, Mr. David Buckle formerly of Cubism Law and now of Laytons LLP, submitted a complaint to the CAC on behalf of the Princes Group European Works Council (the “PGEWC” or “EWC”) and Jonathan Clegg, Chairperson of the PGEWC and Steering Committee Member (collectively referred to as the Complainants) under Regulations 21 and 21A of the Transnational Information and Consultation of Employees Regulations 1999, as amended (TICER) in relation to the actions of the Central Management of the Princes Group, Mitsubishi Corporation, acting through its representative, Princes Limited (“Central Management” or “the Employer”). The CAC gave both parties notice of receipt of the complaint on 9 April 2019. The Employer submitted a response to the CAC on 24 April 2019 which was copied to the Complainants.

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 Kenny Miller as Panel Chair and Mr. David Crowe and Ms. Fiona Wilson as Members. The Case Manager appointed to support the Panel was Nigel Cookson.

2. THE COMPLAINTS

3) The complaint dated 8 April 2019 submitted to the CAC alleged that the Employer had failed to comply with the terms of the Agreement and with TICER in several respects. These complaints are listed below. The provisions of the Agreement as well as the specific regulations relevant to this complaint are set out in Appendix 2 to this decision.

4) The PGEWC raised the following complaints under Regulations 17, 18A and 21 of TICER for the failure of the Employer to comply with the terms of the EWC Agreement and Regulation 18A of TICER, namely:

a. Failing to inform and/or consult with the PGEWC prior to a decision being made in relation regarding the announcement made on 9 October 2018 in breach of Articles 2.1, 2.3, 2.5, 2.6, 2.8, 2.9, 2,10 and 9.1 of the EWC Agreement and Regulations 18A(3) and 18A(5) of TICER;

b. Refusal to hold an extraordinary meeting prior to or following the announcement made on 9 October 2018 in breach of Articles 11.1 of the EWC Agreement;

c. Refusal to allow the PGEWC an expert of their choice, namely Cubism Law ^{[footnote 1]}, under Articles 12.1 and 12.3 of the EWC Agreement;

d. Refusal to pay the expenses relating to the appointment of legal representation as an expert under the EWC Agreement to pursue a complaint with the CAC under Articles 12.1, 12.3 and 17.4 of the EWC Agreement.

5) Jonathan Clegg raised the following complaints under 19A and 21A of TICER for the failure by the Employer to provide the means required to fulfil their duty to represent collectively the interests of employees, namely, the Employer’s:

a. refusal to allow the PGEWC an expert namely Cubism Law;

b. to provide the means required to fulfil their duty to represent collectively the interests of employees, namely, the Employer’s refusal to pay the expenses relating to the appointment of legal representation to pursue a complaint with the CAC.

3. THE EMPLOYER’S RESPONSE TO THE COMPLAINTS

6) In its response to the complaints dated 24 April 2019 the Employer denied that it had breached the EWC Agreement because the proposed closure of the Chichester site and the transfer of a small volume of a particular product was not Transnational, as defined in Article 2.10 of the EWC Agreement. This stated that “matters are transnational where they concern the Princes Group as a whole or at least 2 or more employees in each of 2 or more Participating Countries”. The word “concern” meant more than something which was of interest to employees as a whole. There must be a sufficient degree of materiality about the extent of the “concern”. In this context the proposed closure and relocation must impact on them to a material degree. In any event the Italian employees would not materially be impacted on the transfer of production since the incoming production would be dealt with by the existing workforce.

7) The proposed closure of Chichester and transfer of a small volume of production to Italy did not constitute an extraordinary decision or circumstances under Article 11.1 of the EWC Agreement which would trigger an Extraordinary Meeting. This would only occur where: “there are extraordinary Transnational circumstances or decision affecting the interests of employees of the Princes Group to a considerable extent”. Whilst the interests of the employees at Chichester were clearly affected to a considerable extent by the proposed closure, the same could not be said in respect of the Italian employees or the Group.

8) Even if it was later proposed by Princes management to fill some roles (previously performed at Angri) in other Participating Countries (e.g. in Liverpool), this was just a possibility which might not even happen if the roles could be recruited from within Italy. It was therefore wholly premature for the PGEWC to categorise this as Transnational, since such an idea was currently not even a proposal.

9) On the matter of legal fees, when, on 29 March 2019, Cubism Law wrote to management in relation to it being appointed as an expert under Article 12 and Article 17 of the EWC Agreement the Employer denied liability to pay for its advice relating to the meaning of Transnational. The reference to “necessary” in Article 12 meant more than just “nice to have”. In relation to the advice provided by Cubism Law, the Employer contended that this was not necessary, since the PGEWC had already had the benefit of full advice from Unite’s legal department. It was not necessary or required that the PGEWC get that advice repeated. In any event Article 12.2 made it clear that the use of experts was only in an advisory capacity, which did not include a representation capacity.

10) Article 17.4 of the EWC Agreement did not require management to provide or pay for the resources and means referred to in this Article. This contrasted with the express obligations to do so in Articles 12.2 and 15.1 (provide)/15.2 (pay). In any event, it was denied that this clause related to the provision of legal advice or representation. Even if this were the case, legal advice was not “required” by the PGEWC. Alternatively, Article 17.4 was ambiguous and looked as if, during the negotiations that gave rise to the Agreement, the means and resources issue had been squeezed into the provision relating to the mandate by the EWC to commence, settle or cease legal proceedings by a majority.

4. Further correspondence and an informal meeting

11) The PGEWC was invited to comment on the Employer’s response which it did on 1 May 2019. These comments were cross copied to the Employer and its comments likewise invited. The Employer’s further comments were received on 9 May 2019 and cross copied to the PGEWC. As both parties had expressed a willingness, they were invited to attend an informal meeting attended by the Panel Chair and the Case Manager in order to clarify the issues and to investigate whether it was possible to narrow or resolve any of them without the need for a formal hearing. This meeting took place in Manchester on 4 June 2019 following which the complaint was stayed whilst the parties concluded their discussions on a possible settlement. However, on 16 August 2019 the PGEWC notified the CAC that informal discussions between the parties had failed to resolve matters and the PGEWC requested that the complaint progressed to a full hearing.

5. The hearing

12) On 2 September 2019 the Panel informed the parties that a hearing would take place on 24 October 2019 in Manchester. The Employer then applied to vacate the hearing which the Panel Chair granted and the parties were informed that the hearing would now take place at 10:30 a.m. on 26 November 2019. The hearing took place in Manchester on 26 November 2019 and the names of those who attended are appended to this decision. Both parties supplied the Panel with detailed written submissions in advance of the hearing together with supporting documentation. The Panel’s decision on each of the complaints has been taken after full and careful consideration of the views of both parties as expressed in their written submissions and amplified at the hearing and of all the other material adduced in evidence.

13) On 25 November 2019, Mr Buckle emailed the CAC stating that, whilst he would be in attendance at the hearing on the following day, direct conduct of this matter on behalf of the PGEWC was now being passed to Mr Richard O’Dair.

6. Background and chronology

14) This chronology has been drawn up from information provided by both parties. Any comments are attributable to the relevant party and not the Panel.

15) The PGEWC was established on 12 October 2017 under a written agreement with Princes Limited, the Representative Agent of the Mitsubishi Corporation, of the same date under Regulation 17 of TICER. A copy of this agreement can be found in Appendix 3 to this decision.

16) On 6 February 2018, the Employer announced closure of its Manchester site as well as structural changes and redundancies at head office.

17) On 9 February 2018, the PGEWC raised its concerns with the Employer that it had not been informed and consulted and there was correspondence between the parties in respect of the scope of the EWC Agreement.

18) On 27 February 2018, the PGEWC met with the Employer at an Extraordinary Meeting. The PGEWC stated that the primary purpose of this meeting was to discuss previous disputes relating to the failure by the Employer to properly inform and consult the PGEWC on such closures. The disputes arose from a disagreement between the parties on the definition of “transnational” under Article 2.10 of the EWC Agreement. According to the PGEWC, during the meeting the Employer stated that it had taken “external advice” on the definition of “transnational” and that it “fundamentally does not believe this is a transnational issue and that is why we have not consulted the EWC”. The PGEWC stated that this was despite the Employer not providing information as to how this and other closures impacted on other sites throughout Europe. This disagreement resulted in a Memorandum of Understanding being agreed and signed by the parties on 13 July 2018.

19) On 25 July 2018 the first Annual Meeting was held. The Employer stated that no reference was made to the possible closure of the Chichester factory or any review of international food production or the transfer of production to PIA in Foggia, Italy because the proposal had not been approved. The Statutory Directors Supervisory Board and Princes Limited’s Board approved the proposal on 14 August 2018. There was no complaint in relation to the Annual Meeting.

20) On 9 October 2018 the EWC was informed of the proposal to close the Chichester manufacturing site by the end of 2020. The Employer stated the PGEWC was informed, as a matter of courtesy, the day before the affected employees were provided with the information, in accordance with Clause 6 of the Memorandum of Understanding. The Employer stated that no comments or questions were raised by the EWC.

21) On 10 October 2018, all employees at the Chichester site were formally notified of the proposed closure.

22) On 11 October 2018 a Group wide UK Manufacturing Announcement was made although the PGEWC noted that it was made by the UK rather than the Group Company. It stated: “We have announced the start of a consultation with employees at our Chichester site and it is with regret that under our proposal, we are currently anticipating the closure of the Chichester site by the end of 2020. This is of course not a decision that will be taken lightly, however, it is crucial that we make significant changes to our food operations in order to future proof our business”. The PGEWC drew the Panel’s attention to the fact that the announcement included a reference to a proposal that “the production of cooking sauces, stocks and gravies, in both glass jars and pouches, will transfer from Chichester to PIA in Foggia, Italy. This transfer will improve capability at Foggia and will allow the site to increase their levels of non-seasonal production.”

23) By email dated 12 October 2018, the PGEWC informed the Employer that it should have been informed and consulted in respect of this closure and transfer. The PGEWC also formally requested that the information and consultation process commenced immediately with an extraordinary meeting. It also noted that:

“While it is unclear at the present time what the actual impact will be on employees across the Group, this announcement certainly concerns all Group employees. This has been reflected in the communication and concerns that have been expressed by EWC members representing France, Poland, Italy and the Netherlands who have all been briefed by the company. The transfer of production from the UK to Italy confirms that this is a transnational matter”.

24) The PGEWC informed the Employer that, in its view, these matters should have been covered in the annual meeting in July 2018.

25) On 18 October 2018 the Employer informed the PGEWC that it had only been told about the announcement as a matter of courtesy and that:

“The proposal does not ‘concern’ employees in Italy as there is no proposal to change terms and conditions, shift patterns, working practices etc in Italy as I explained at the meeting on 9th October 2019. This is borne out by the fact that there is no proposed local consultation in Italy as there is nothing to consult about as there will be no impact on Italian employees”.

26) The email went on to state that the requirement to call an Extraordinary Meeting was not triggered because the proposal was not transnational and it could not be said that the interests of employees, other than those in the UK, would be affected to a considerable extent. The Employer then indicated that it would be providing the PGEWC Steering Committee with a pack of documents relating to the proposal as a gesture towards building a positive working relationship and stated that it would welcome any comments or views the PGEWC had on the matter.

27) On 21 October 2018 the PGEWC informed the Employer that its interpretation of the Agreement was different to that of the PGEWC and that it intended to seek legal advice and that under the Agreement, the Employer was required to cover the costs of that advice.

28) On 25 October 2018, the Employer commenced local consultation on the closure of the Chichester site.

29) On 29 October 2018 the Employer informed the PGEWC that if the PGEWC decided to take legal advice, the EWC Agreement did not provide that this should be at its expense.

30) On 2 November 2018, the PGEWC sent to the Employer a letter prepared by the Unite legal team setting out their opinion as to whether the issues fell within the EWC Agreement. The advice from Unite was that the issues did fall within the agreement.

31) On 22 November 2018 the parties met. They disagreed on what was “transnational” and the definition of “concern” under the Agreement. There was a discussion on the letter provided by Unite. The Employer rejected the suggestion that the matter was transnational on the basis that it did not concern two or more employees in PIA in Foggia, Italy. According to the PGEWC there was an admission during the meeting that the closure of Chichester was being considered at the time of the annual meeting. The PGEWC asked for a legal expert to be appointed to give an opinion on the interpretation of the EWC Agreement. The PGEWC also asked for consultation to be stopped until the matter was resolved. In an email of the same date, Jonathan Clegg acknowledging the dispute on the definition of “transnational” requested that the second stage of the EWC dispute resolution process be bypassed to allow the matter to be decided by the CAC.

32) On 7 December 2018, the Employer wrote to the Steering Committee responding to the four points raised in the Unite letter. The PGEWC observed that this email had all the appearances of being drafted by external lawyers. According to the PGEWC the email reiterated the Employer’s view that the announcement affecting Chichester was only a proposal and that the matters relating to Chichester did not concern the Group as a whole and they “do not impact or affect employees in Italy”. The Employer’s view remained that the proposal was therefore not “Transnational” and did not fall within the requirements of Article 9.1 of the EWC Agreement. Therefore the right to an Extraordinary Meeting was not triggered. It further reiterated that at the time of the annual meeting the proposal had not been put to the Board for approval. It stated that the PGEWC had no right to seek legal advice under Article 17.4 as the reference to “the resources and means” was only a reference to providing such things as “office space for meetings etc” and that a lawyer could not be appointed to assist the EWC as an expert because this was not “necessary”. It stated that the local consultation process relating to Chichester had started on 25 October 2018 and that this would continue for six weeks and that it would not be fair to employees to suspend the process and it concluded.

“In summary, the focus of the opinions raised by the Steering Committee were not the Chichester proposal itself, but rather a general unhappiness in relation to the overall performance of the business, how it is being managed and particularly that there is no bonus this year (and that there has not been for a number of years)”.

33) Also on 7 December 2018, the PGEWC was provided with the information that had been shared with local representatives of the Chichester site. This information included the details of discussions of the move of production of sauces to Italy and this information was provided after local consultation had been completed.

34) On 10 December 2019, the PGEWC disputed the Employer’s position in respect of the information and consultation process and disputed whether any definition of the word “concern” made any difference to the application of the EWC Agreement and whether the PGEWC should have been informed and consulted. On legal representation, it referred to the funding requirements to bring enforcement action in the EWC Agreement and the fact that the PGEWC had a right to choose its own expert. Plans were then made for the matter to be referred to Acas.

35) Following collective discussions with Acas and a meeting with the same on 17 January 2019, on 3 February 2019 the PGEWC suggested the use of an independent legal expert to give its opinion on whether the Chichester consultation was “transnational” in the context of the EWC Agreement. The PGEWC proposed the appointment of Cubism Law and David Buckle as that expert.

36) On 8 February 2019 the Employer queried whether Mr Buckle was proposed as an expert under the EWC Agreement and stated that as the PGEWC had received legal advice in relation to this issue from Unite it would not be required to pay his fees. The PGEWC confirmed Mr Buckle’s appointment as an expert to the PGEWC on 11 February 2019. On 12 February 2019, the Employer stated that under Article 12 of the Agreement the PGEWC was only entitled to appoint an expert “so far as it is necessary to carry out its tasks”. The Employer queried why additional legal advice was felt to be necessary, how this would allow the parties to move forward with the current issue and requested the cost estimate in relation to this advice. In the interim the Employer would not confirm it would meet these costs. The PGEWC stated that it responded to the Employer’s email and providing a costs estimate insofar as it was possible.

37) On 27 February 2019, the Employer wrote to the PGEWC stating that it had considered whether the matter should be referred straight to the CAC to resolve the interpretation issue. It went on to state:

“Having considered this…we do not think that this will do anything to improve the relationship between Management and the EWC and will only lead to more time and costs being spent, potentially to very little end. Therefore, whilst we still maintain that there is no obligation under the EWC Agreement for Princes to consult with the EWC regarding the proposed closure of the Chichester site, we have decided that as a gesture of goodwill and in order to allow the relationship between the EWC and Management to move forward, we will begin a period of consultation with the EWC regarding this matter. We believe that meaningful consultation can still take place given that no final decisions have yet been taken”. Within that invitation the Employer stated “Following the meeting, the Steering Committee and the UK representatives will have an opportunity to provide its opinion to Management. We would ask, given the timeframes that the Company is working to, that this is provided within 7 days of the meeting.”

38) According to the PGEWC the Employer, also in its email of 27 February 2019, challenged whether legal advice was “necessary” and also challenged the independence of the proposed expert to give legal advice and that any advice would only be opinion hence “… why bodies such as the CAC exist in order to resolve disputes such as this”.

39) Provisional arrangements for an information and consultation meeting were arranged to take place on 8 March 2019.

40) The EWC attended a meeting on 12 March 2019 where a presentation took place on the Chichester proposal and the local consultation that had taken place, including alternatives suggested by the local representatives. The Employer stated that the EWC then refused to provide an opinion thereafter because of the Employer’s failure to comply with the Agreement and refused to participate further in any form of consultation. The PGEWC’s view of the meeting was that it was made clear that the Employer did not believe that the ramifications of the closure of the site were transnational. The PGEWC was told that it could still give opinions on the alleged proposals as the site was to close in December 2019 even though the local consultation process had been completed. The Employer also informed the PGEWC that it had reviewed all alternatives and this was completed before even the consultation with local staff took place. It then raised a further matter about the closure of the administrative office in Angri (Italy) and the movement of this function to Foggia (Italy) and how 32 of the 49 individuals had refused to move. The PGEWC were then told that some of these roles were to be relocated to the UK as the necessary skills were not available in Foggia. According to the PGEWC, despite stating that roles were being moved between the UK and Italy the Employer stated this was an “international issue” and not “transnational” and not directly a matter for the EWC.

41) On 29 March 2019, Cubism Law wrote to the Employer seeking confirmation of its appointment as an expert under Article 12 of the EWC Agreement, as requested by the PGEWC, and funding under Article 17.4 for the purposes of an application to the CAC.

42) On 1 April the Employer informed the Steering Committee that meaningful consultation could still occur and that the PGEWC was not engaging in the process. On 2 April 2019, Jonathan Clegg responded pointing out that the Employer was requesting an opinion on what had been confirmed to local employees some six months before.

43) On 9 April 2019, the Employer’s legal representatives wrote to Cubism Law refusing payment for any legal advice to the PGEWC. This letter also stated that meaningful consultation could still occur as the closure of Chichester was not due to occur until 2020 and that no employees had been given notice of termination.

44) On 11 April 2019, Cubism Law responded referring to the fact that the PGEWC had been trying to resolve the issues since October 2018 and that no steps had been taken to consult the PGEWC until some five months after the announcement and that the Employer had consistently denied matters were “transnational”. It pointed out that the PGEWC should have been consulted before any decision was made and that there was no scope for meaningful consultation. Despite this and taking the statement that no decision had been made and consultation was possible at face value, it suggested that the announcement regarding the closure of the Chichester site and the transfer to Italy and local consultation could be reversed.

45) On 3 May 2019, the Employer’s legal representative responded to the above letter. On the closure of the Chichester site it stated that it would not have been appropriate to involve the PGEWC in any review until a transnational proposal had been formulated and that to do so was not in accordance with the EWC Agreement. It stated that “The fact that a proposal has been formulated does not mean that a decision has been made and our client understands that where a duty to consult has arisen then no decision can be made about a proposal until the consultation has concluded.” It then asserted that the conclusion of local consultation did not preclude meaningful consultation. The proposal that the Employer reverse the steps taken regarding the closure and transfer to Italy was refused.

7. The structure of the hearing and of this decision

46) The complaints and the submissions relating to them fell into two broad categories:

Category 1 complaints - The failure to comply with the required information and/or consultation process with the PGEWC prior to a decision being made in relation to the closure of the Chichester site and the transfer from Chichester of some of its functions to PIA in Foggia and the refusal to hold an extraordinary meeting prior to or following the announcement of the closure of the Chichester site on 9 October 2018.

Category 2 complaints - Complaints about the role and costs of experts.

47) The Panel Chair suggested that each of these categories should be dealt with in a self-contained manner at the hearing and the parties were invited to make submissions and to sum up on each of the categories individually. The parties agreed to this procedure. This structure is replicated in this decision and the Panel’s considerations and decisions on each group of complaints are recorded at the end of the category to which they belong.

8. Category 1 Complaints

48) The two complaints by the PGEWC falling into category 1 were:

• The failure to comply with the required information and/or consultation process with the PGEWC prior to a decision being made in relation to the closure of the Chichester site and the transfer from Chichester of some of its functions to PIA in Foggia in breach of Articles 2.1, 2.3, 2.5, 2.6, 2.8, 2.9, 2,10 and 9.1 of the EWC Agreement and Regulations 18A(3) and 18A(5) of TICER; and

• The refusal to hold an extraordinary meeting prior to or following the announcement made on 9 October 2018 in breach of Articles 11.1 of the EWC Agreement.

9. The Complainants’ statement of case

49) Article 9 of the PGEWC agreement set out the matters that triggered the information and consultation process, specifically:

“The scope of information and consultation obligations under this agreement shall be limited to those issues which relate to the Princes Group (ii) are Transnational in nature and (iii) must relate to one or more of the following issues:

• structure economic and financial situation;

• the probable development of the business and of production and sales;

• situation and probable trend of employment;

• investments, and substantial changes concerning organization;

• introduction of new working methods or production processes;

• transfer of production;

• acquisitions, mergers, cut-backs or closures of undertakings, establishments or important parts of such undertakings or establishments and collective redundancies.”

50) Article 9.2 set out those areas that were excluded.

51) On the definition of ‘Transnational’, Article 2.10 of the Agreement stated:

“matters are transnational where they concern the Princes Group as a whole or at least 2 or more employees in each of 2 or more Participating Countries.”

52) Whether matters required an Extraordinary meeting was set out in Article 11, namely:

“Where there are extraordinary Transnational circumstances or decisions affecting the interests of employees of the Princes Group to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or Collective Redundancies, the Steering Committee shall have a right to be informed. In such circumstances, the Steering Committee shall have the right to meet in extraordinary information and consultation meeting, with management so as to be informed and consulted about the extraordinary Transnational circumstances or decisions (“Extraordinary Meeting”).”

53) By way of timing of the above process, Article 2.3 stated:

“The Princes Group will however provide information and will consult with EWC members in a way that allows opinions to be considered before decisions are reached and as part of decision making.”

54) Article 2.5 stated:

“where there is also a requirement for management to inform and consult national/local employee representatives bodies, then Management will comply with local law but will also inform and consult with the EWC in accordance with this Agreement before or at the same time as national/local level”.

55) In the definition of ‘Information’, Article 2.8 stated:

“The content of the information, the time when and the manner in which it is given, must be such as to enable the EWC Members to acquaint themselves with and examine the subject matter; to undertake a detailed assessment of the possible impact and, where appropriate to prepare for Consultation.”

56) Article 2.9 led on from this in the definition of ‘Consultation’:

“Consultation: means the establishment of dialogue and exchange of views between EWC Members and management at such a time…as enables the EWC Members to express (within a reasonable time) an opinion on the basis of the information provided about the proposed Transnational decision envisaged by Management to which the Consultation is related…This EWC Members’ opinion will be considered by management before decisions are made”. (sic)

57’) Article 11.4 stated

“The Extraordinary Meeting shall take place as soon as reasonably practicable on the basis of a report drawn up by management on which an opinion may be delivered by the EWC at the end of the Extraordinary Meeting or as soon as reasonably practicable.”

58) In summary, where there were extraordinary Transnational circumstances within the scope of Articles 9 and 11, the information and consultation process should occur at an Extraordinary Meeting before or at the same time as local requirements for consultation and as soon as reasonably practicable so as to give enough time for EWC Members to acquaint themselves with the matter and express an opinion before a decision was made.

59) The PGEWC believed that it should have been informed and consulted in this way in respect of the matters notified to them on 9 October 2018, which were publically announced on 11 October 2018, and specifically before a decision was made to close the Chichester site and undertake a partial move of production to Foggia Italy. This was not done. The announcement was within scope of the EWC agreement under Article 9.1 as it related to the Princes Group and to “the probable development of the business”, “transfer of production” and “cut-backs or closures of undertakings”.

60) In relation to the breaches of the EWC Agreement the central issues were whether the matter was ‘Transnational’, whether it ‘concerned’ employees and whether the right to an Extraordinary Meeting was triggered.

61) The meaning of ‘Transnational’ was plain. Matters were transnational where they concerned the Princes Group as a whole or at least two or more employees in each of two or more Participating Countries. This was a broad gateway through which the PGEWC should pass relatively easily and the Memorandum of Understanding was indicative of the breadth of the gate. It made clear that it did not cover purely domestic issues with the example being given in Clause 5 of changes in shift patterns at the Bradford site being a paradigm of a non-transnational matter.

62) The Employer had introduced additional provisions into the definition of ‘Transnational’ when it argued that the word ‘concern’ meant more than something which was of interest to the employees as a whole but that there must be a sufficient degree of materiality about the extent of the concern and that, in these circumstances, the Italian employees would not materially be impacted. However, the PGEWC believed that the definition of concern in this context meant “to relate to” or “to be about” in the same way that it was used in TICER rather than to be “worried about” in some way. For a matter to be Transnational, under any ordinary reading, matters merely needed to “relate to” the Group as a whole or it needed to relate to two or more employees in each of two or more Participating Countries. Here, the announcement related to two or more employees in the UK and, due to the transfer to Foggia, in Italy. The additional qualifications inferred by the Employer were simply not in the Agreement.

63) The question to be answered was at what point did the entitlement to an EGM occur? The trigger for such a meeting was set out in Article 11 and referred to two circumstances; extraordinary transnational circumstances or decisions. It was submitted that everything turned on the words that followed “affecting the interests ….to a considerable extent”.

64) Article 11 could be read two ways, either:

a) There needed to be Transnational circumstances; or a decision affecting the interests of employees of the Princes Group to a considerable extent; or b) There needed to be Transnational circumstances or a decision; affecting the interests of employees of the Princes Group to a considerable extent.

65) It was the PGEWC’s primary case that the true construction was the former and that transnational circumstances were sufficient to trigger the right to an EGM. Here, the matter was clearly Transnational and therefore the trigger was met. If the PGEWC was wrong on construction and it was the latter, it was still averred that the trigger was met. The interests of employees at Chichester were clearly affected to a considerable extent. This was admitted by the Employer in its Response to the Complaints.

66) The Employer argued that the interests of employees needed to be affected to a considerable extent in both Participating Countries. Again, the wording did not reflect this. It merely required the interests of some employees to be affected to a considerable extent. Again, the Employer was seeking to add words to the EWC Agreement to narrow its scope. Even if this was not the case, it was averred that the decision affected employees in both countries to a considerable extent. There were two broad reasons why the Employer was wrong. First, if it was correct it sets up a difficult question as to who determined whether any changes were so significant as to trigger the process when such a decision would rely on information being provided by the Employer which would only be forthcoming if the matter was transnational. Second, the Employer’s interpretation presumed that there would be no requirement to consult if proposed changes were beneficial to the Italian workforce. This begged the question as to why the PGEWC should not be consulted to changes that were beneficial to one part of the organisation but not to the other. The Employer’s approach was inconsistent with the provisions of the Agreement which defined the responsibilities of EWC and how it must communicate potential issues or decisions that could possibly affect the workforce.

67) The Employer had attempted to play down the nature of the transfer of production to Foggia in Italy. It described this move as “the transfer of a small volume of a particular product” and “transfer of a small volume of production”. It was denied that this was the case. Even if this was accepted, the transfer to Foggia was still 25% of the volume produced at Chichester. Based on statements made in the first local consultation meeting that ¼ million jars were produced every day, this equated to 75,000 jars a day. This transfer of production would still affect other employees in Foggia and result in increased work outside of the current season and in ancillary areas. There was still a transfer of equipment that employees would require as part of the process and the production process, whilst not a completely new, was still different and some training would be required. It was not credible to state that there was no potential effect on the Foggia workforce. It was also very telling that the Employer was looking at an investment of €2.3m on what it claimed to be a trivial transfer.

68) It should be noted that Article 11 made specific reference to instances to which an Extraordinary Meeting would apply. It referred to “relocations, the closure of establishments or undertakings or Collective Redundancies”. The announcement of 11 October 2018 referred to at least two of these events, underlining that an Extraordinary Meeting should have been held.

69) On the basis of the above, the matter was transnational, was in scope and an Extraordinary Meeting should have been held. It was not and the Employer refused to properly inform and consult at the correct time, breaching the provisions of Articles 2.1, 2.3, 2.5, 2.6, 2.8, 2.9, 2.10, 9.1 and 11 of the Agreement.

70) The Employer sought to argue that the meeting on 12 March 2019 in some way fulfilled its requirement to hold an Extraordinary Meeting, despite its prior refusals to hold such a meeting. In this, the Employer appeared to say that the decision to close Chichester was not made on or before 9 or 11 October 2018 or indeed before 12 March 2019. It was the PGEWC’s position that the matter crystallised before 9 October and before the public announcement of the pending closure of Chichester. The Employer announced the closure of Chichester on 11 October 2018 not only internally but publically. Some form of decision must have predated this announcement, even though it may not have been implemented. The assertion that any decision occurred later and not before 9 October 2018 appears out of step with the evidence such as the presentation on 25 October 2018 to local representatives which referred to the proposed timescales for the closure and transfer of sauces and other elements of the closure as starting in October 2018. Also, the Employer’s assertion on 12 March 2019 that it had completed a review of all food manufacturing sites during the 18 months before the announcement and that all alternatives to the closure of Chichester and the transfer had been ruled out prior to the announcement being made. There was also a letter from the Employer’s legal representative of 3 May 2019 in which it refused to reverse its decision on the announcement and the local consultation process. In this letter the Employer confirmed that what it saw as an irreversible decision had been made some time prior to any discussion with the PGEWC.

71) Whilst not binding on the CAC, this mirrored the facts and the decision in paragraphs 24, 36 and 40 of Emerson Electrical European Works Council and Others v Emerson Electric Europe (CAC, EWC/13/2015).

72) In any event, even if it was the case that no decision had been made at that stage, the requirement to inform and consult was also in respect of any “proposed Transnational decision envisaged by Management” (Article 2.9). Article 9.1 of the EWC Agreement also referred to “the probable development of the business”. It was asserted that the PGEWC should still have been informed and consulted on the announcement before a decision to proceed in any way was made.

73) Evidence of when any recommendation was formulated, what it contained and when the Princes’ and Mitsubishi Boards made a decision or at least approved any proposal would assist. It was clear a comprehensive pack was submitted in support of the proposal but no such evidence had been provided and the PGEWC submitted that the CAC should draw an inference from the failure on the Employer’s part to disclose, as part of these proceedings, any documentation that formed part of the pack that was put before the Board for consideration. The PGEWC was confident an in depth review of some kind took place as this was referred to during local consultation but no such review had been disclosed.

74) It was clear that a decision had been taken by December 2018. The documentation records that local consultation took place and a redundancy exercise was undertaken and completed and terms were sent out to affected employees. It was also clear from Article 2.3 that the Employer was obliged to provide information and consult with the PGEWC so that, as part of the decision-making process, it could provide an opinion before the Employer reached a decision. It was too late to start consulting after December 2018 when the decision had been made.

75) Article 2.9 was unambiguous in its terms which stated that the opinion of the EWC would be considered by management before decisions were made. The Employer’s submission that there was no breach because it invited the EWC to consult in March 2019 but this was after the decision was made and far too late in the process.

76) Article 2.5 set out the sequencing of local and transnational consultation. It essentially stated that it should happen at the same time. However, there was no local consultation in Italy. The Employer relied on the use of ‘implemented’ in the last sentence of Article 2.5 but if this were to be taken literally it would permit an employer to consult at any point after a decision had been made but before it had been implemented. This was contrary to the clearly drafted provisions of the Agreement, particularly Articles 2.3 and 2.9.

77) It must be admitted that there were tensions between Articles 2.5 and 2.3 on the one hand and 2.9 on the other, but the interpretation that most closely fitted was obvious and the central purpose of the Agreement was to make the PGEWC part of the decision making process and it could not be part of this if it was consulted after the decision was made. No issue should be decided until the PGEWC had been given a reasonable opportunity to put forward its opinions otherwise the Employer would make decisions and then consult which was not what was intended under the Regulations. The Employer pointed to the fact that it subsequently changed its plan but this did not excuse the fact that it failed to consult before the original decision was made. That a decision could change did not make it any less a decision.

78) Under Article 27 of the EU Charter on Fundamental Rights, it stated:

“Workers or their representatives must, at the appropriate levels be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices”.

79) Article 2.1(g) of Directive 2009/38/EC defined the concept of “consultation” as followed:

“the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management, at such time, in such fashion and with such content as enables employees’ representatives to express an opinion on the basis of the information provided about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which may be taken into account within the Community-scale undertaking or Community-scale group of undertakings”.

80) TICER transposed this concept into UK law by defining the concept of “consultation” in Regulation 2(1) of TICER as:

“the exchange of views and establishment of dialogue between members of a European Works Council in the context of a European Works Council… and central management or any more appropriate level of management”.

81) Regulation 18A(2) imposed an obligation on management to give information to the EWC in accordance with Regulation 18A(3) which stated:

“(3) The content of the information, the time when, and manner in which it is given, must be such as to enable the recipients to–

(a) acquaint themselves with and examine its subject matter.

(b) undertake a detailed assessment of its possible impact; and

(c) where appropriate, prepare for consultation.”

82) Similarly, Regulation 18A(4) imposed the obligation to consult with the EWC in accordance with Regulation 18A(5) which stated:

“The content of the consultation, the time when, and manner in which it takes place, must be such as to enable a European Works Council…to express an opinion on the basis of the information provided to them”.

83) The obligations to inform and consult under Regulation 18A of TICER was limited under Regulation 18A(7) to “transnational matters”. This was defined in Regulation 2(4A)(b) as “where they concern…at least two undertakings or establishments of the Community-scale undertaking or Community-scale group of undertakings situated in two different Member States.” The announcement concerned both Chichester in the UK and Foggia in Italy.

84) In respect of breach of the EWC Agreement, it was submitted that the Employer failed to comply with the requirements of Regulation 18A of TICER to inform and consult. In short, it refused to recognise any right to an information or consultation process even though the announcement clearly referred to transnational matters under Regulation 18A(7) and 2(4A) of TICER. It did not undertake the two-stage process referred to in the decision in Hans-Peter Hinrichs & Others v Oracle Corporation UK Limited [EWC/17/2017] in the CAC and in the Employment Appeal Tribunal [UKEAT/0194/18/RN]. Any opinion sought by the Employer was only requested after matters were decided, removing the right to give an opinion on “proposed matters” referred to in the Directive.

85) What were the extraordinary transnational circumstances that would warrant the holding of an EGM? Clearly, circumstances were not extraordinary when they were common or routine but, in any event, any such qualification was amply satisfied in this case when the events in late 2018 with the proposed closing of the Chichester site and the transfer of part of the production to Italy were examined. These were not ordinary circumstances as they generated an extraordinary amount of activity in relation to the Chichester site. A non-extraordinary transnational circumstance would, for example, be when a single employee moved to a site in another EU Member state. This would not be extraordinary as it happened on a regular basis.

86) On ‘extraordinary’, Article 11, in which the word appeared, could not be ignored. It occurred here in the definition of Extraordinary GM. The word ‘extraordinary’ should be taken to include matters not dealt with at an Annual General Meeting providing the matter was transnational. A matter could not be ‘extraordinary’ if it was mentioned in the annual report to the EWC. The word had to be interpreted in the context it appeared and here it triggered an EGM if the matter was both extraordinary and transnational.

87) It was often helpful to look at the consequences of any alternative construction. Under that approach “affecting the interests of employees’ would apply to every decision. It would very significantly narrow the scope of consultation and in particular undermined the definition of transnational found at the beginning of the Agreement. Article 2.10 Defined ‘transnational’ as matters concerning two or more participating countries. That approach, precisely set out, cannot be taken as accidental. If it was now defined as affecting employees to a ‘considerable extent’ it narrowed the gateway significantly and the same objections to the Employer’s approach to the definition of ‘concern’ would apply. How would it be defined and by whom? Would it be decided by the Employer? Article 2.10 defined transnational as matters concerning the whole Group or at least 2 or more employees in each of 2 or more Participating Countries. The alternative construction put forward by the PGEWC about it being an extraordinary matter or decision affecting employees matched that approach. The PGEWC approach had the effect of preserving the breadth of the gateway underlying the effect of Article 2.10.

88) As to the points made by the Employer, the PGEWC expressed surprise that no mention had been made previously as to the employment status of the Italian workers. It also highlighted the fact that the move to Foggia involved more than just canning tomatoes as the product would have to be transported and delivered and there was an inevitable effect on Finance and HR. The PGEWC believed that Article 9 was key when defining the scope of the Agreement. There was no question here of any degree of effect to bring it into scope. The transfer of production was a clear example of a matter in scope.

89) There were decisions and there were decisions. It was clear decisions were made. These decisions resulted in the Employer setting out redundancy terms, payments in lieu of notice, enhanced redundancies, an incentive package, a timetable set out for the closure, holiday accrual and a redundancy payment schedule. A rubicon had been crossed and decisions made which should not have been in accordance with the Agreement.

10. The Employer’s statement of case

90) It was accepted that in the UK the proposal to close the Chichester site affected the interests of the UK employees to a considerable extent but it was equally clear that the proposal to transfer a tiny element of production from Chichester to the site in Foggia, Italy would not affect the interests of the Italian employees to any, let alone any considerable, extent.

91) The Employer explained that the PGEWC had miscalculated the effect of the decision to move production to Foggia as the line concerned only ran one day a month and so production was 12,000 jars a month rather than the much greater figure quoted by the PGEWC. Currently the line ran between July and the beginning of October in the tomato season and the intention was to extend the run using seasonal workers. The workers at Foggia were temporary workers engaged for the season rather than employees and so there was no impact on ‘employees’ at Foggia. The proposal to move the line was reviewed over time and it would have involved moving machinery from Chichester to Foggia. Eventually it was realised that the investment return rendered the proposal unviable and the Employer decided not to proceed with the plan.

92) Article 2.1 of the EWC Agreement provided:

“… Princes Group’s Management … will inform and consult with the EWC relating to its operations falling within the scope of this Agreement such as to encourage a free exchange of views and opinions between the parties on the matters set out at Article 9.1”.

93) The matters set out in Article 9 included the closures of undertakings and the transfer of production.

94) However, the right to meet for information and consultation was restricted to two occasions. Firstly, there was a right to meet once a year in an information and consultation meeting: the Annual Meeting, provided for via Article 10.1. Secondly, Article 11.1 provided:

“Where there are extraordinary Transnational circumstances or decisions affecting the interests of employees of the Princes Group to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or Collective Redundancies, the Steering Committee shall have the right to be informed. In such circumstances, the Steering Committee shall have the right to meet in extraordinary information and consultation meeting, with Management so as to be informed and consulted about the extraordinary Transnational circumstances or decisions (“Extraordinary Meeting”)”.

95) These were the only two occasions on which the PGEWC had a right to information and consultation and this was made explicit in Clause 2 of the Memorandum of Understanding. There was no general duty to consult outside of these provisions. The PGEWC’s complaint must therefore be restricted to Regulation 21(1A)(a) TICER.

96) The key clause in Article 11.1 was “Where there are extraordinary Transnational circumstances or decisions affecting the interests of employees of the Princes Group to a considerable extent”. This must be read together with Article 2.10 which defined Transnational as “matters are transnational where they concern the Princes Group as a whole or at least 2 or more employees in each of 2 or more Participating Countries”; and Article 1.1:

“… To ensure long term development in a highly competitive international environment, Management, its employees and their representatives have agreed to implement an appropriate communication process relating to Princes Group’s European business, its challenges and opportunities directly affecting Princes Group on a pan-European level”.

97) These were to be understood as set out in the Memorandum of Understanding in which clause 1 stated “The parties agree that the EWC agreement relates to Transnational matters (as defined in Article 2(a) of the EWC agreement) and is not intended to cover purely local or national issues…” This clause clearly related to transnational matters as did Article 11.1 rather than to decision making. Clause 4 repeated the wording in Article 11.1 of the Agreement and went on to give the example of when an Extraordinary Meeting may be called as “this may be where Princes proposes to divest of part of the Group’s business in which employees in more than one Participating Country … are employed”. This, however, was not the situation here as only the Chichester site was closing. Clause 5 provided: “The parties recognise that where a matter purely relates to an isolated site or is an issue only concerning one Participating Country, then this would not be a matter for the EWC. By way of example, proposed changes to shift patterns at the Bradford site (assuming that is not part of a wider Transnational proposal”. This again made clear that it related only to transnational matters. It was wrong to attempt to split transnational on the one hand and decisions on the other. The Employer submitted such a interpretation was consistent with Regulation 18A(7) of TICER.

98) The crucial question for the Panel was the construction of the first clause in Article 11.1 which, the Employer believed, had to be read as a whole rather than splitting it as suggested by the PGEWC. It was clear from the text that the comma came after ‘extent’ rather than after ‘circumstances’ or ‘decisions’. If ‘or’ was deemed to split the clause then it would mean that it would be enough for one employee to trigger the clause, which was clearly wrong. Article 11.1 had to be read in conjunction with Article 1.1. The point being to ensure long term development on a transnational pan-European basis and the transnational aspect could not be hived off. There was a close nexus between the transnational nature and the effect.

99) Addressing the PGEWC’s alternative definition that the matter need only be transnational without having any impact on employees, the Employer submitted that it could not be right to limit it to ‘transnational’ matters. For example, if the Employer changed its accountant there would be no impact on employees but it would have to consult or if the Employer wished to upgrade its computers across the business would it need to call for an EGM in order to do so. Nor was it right that a decision would have to affect the whole Princes Group and this was made clear in Article 11.3.

100) Consequently, the plain reading of the EWC Agreement was that for an Extraordinary Meeting to be required the interests of employees in at least two or more countries must be affected to a considerable extent. Put simply, the AGM was about ordinary matters which impacted generally and the EGM for extraordinary matters that had an extraordinary impact.

101) The Employer accepted that the interests of employees in the UK were affected to a considerable extent. However, there was no evidence whatsoever that the interests of the Italian employees were to be affected to a considerable extent. The Panel then asked the Employer whether the matter would only be transnational if there was a significant impact to a considerable extent on the Foggia employees and if so, did this mean that if there was no effect, then the matter was not transnational? Perhaps if the Chichester site was larger and a greater proportion of its work was being transferred and the impact was a positive one? In response the Employer stated that any decision could have a positive not just negative impact on employees. Pushed to explain when a matter moved from trivial to significant, the Employer stated that a decision would have to be taken as to whether the matter went to the AGM as it had some impact or an EGM as it had considerable impact and that both the Employer and PGEWC would have to take a view and if the parties could not agree then the matter would be referred to Acas or the CAC.

102) The PGEWC appeared to contend that the circumstances or decision must simply relate to or be about the Princes Group or two or more employees in two or more countries. It claimed that by requiring a material impact, the Employer was imposing a higher test than was stated but this was a clear illegitimate reading of the Agreement. Firstly, Article 2.10 itself provided that the matter must “concern” employees. “Concern” should be understood as “affect” which was more than merely “relate to/be about”. “Concern” connoted an impact on the employees, not just something that they were interested in. Therefore, the effect must be more than minimal for Article 2.10 to be engaged. Secondly, there were only two mechanisms for consultation and in this case, the CAC could only be concerned with the Extraordinary Meeting. Articles 11.1 and 2.10 must be read together and required the interests of employees in two or more Participating Countries to be affected to a considerable extent. Thirdly, the logic of the Agreement was clear: there must be some effect to trigger Article 2.10 and consultation at the Annual Meeting; and a considerable effect to trigger an Extraordinary Meeting. There was a clear requirement for a considerable, or material, effect before an Extraordinary Meeting was triggered. It only made sense if a meeting was triggered when employees were affected transnationally: it made no sense if the trigger was decisions affecting the interests of employees. The Articles should be read coherently and consistently so that the Agreement was workable. If there was no effect then there was no consultation. If there was limited effect then the matter would go to the AGM and if there was considerable effect, then the matter would go to an EGM. The Employer referred the Panel to paragraphs 44 and 42 of the judgment of Slade J in Oracle to support its argument that decisions must be transnational as well as having an effect.

103) It was plain therefore that there had been no breach of Regulation 18A of TICER and this claim should be dismissed. In the alternative, where the CAC considered that an Extraordinary Meeting ought properly to have been held then the Panel should consider the appropriate time for consultation. Article 2.3 of the EWC Agreement provided:

“The parties will operate in good faith, trust, mutual respect and the ‘spirit of cooperation’, accepting that the EWC shall not affect the prerogative of Management … The Princes Group will however provide information and will consult with EWC members in a way that allows opinions to be considered before decisions are reached and as part of decision-making and the parties to this agreement recognise and confirm this. Both parties agree to act reasonably, to cooperate and make every effort to efficiently conclude the consultation process”.

104) Article 2.9 defined consultation and provided that it should occur at such time, in such a fashion and with such content as enabled the PGEWC members to express within a reasonable time an opinion on the basis of the information provided. Such opinion would be considered before a decision was made. It must be read together with Article 2.5 providing that no decision would be implemented until the PGEWC had been given a reasonable period in the circumstances to express its opinion.

105) The Employer offered to consult the PGEWC on 27 February 2019 as a matter of goodwill and the process commenced on 12 March 2019. However, thereafter the PGEWC refused to engage arguing that the decision had already been made and so consultation was pointless. However, although the local collective redundancy consultation had been completed at that time there was still scope for consultation. Under Regulation 2 of TICER “consultation” was defined as “the exchange of views and establishment of dialogue” as distinct from the obligations under, for example, s.188(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) which specified what must be consulted about. Consequently, there was a lower threshold for compliance with the duty to consult compared to s.188 TULRCA. This also followed from Oracle where Slade J said:

“48. The issue was not raised in this complaint but it may on occasion be said that an employer has not consulted the EWC because they did not engage in consultation in good faith. If the employer has complied with the requirement of TICER to inform and consult the EWC there is no statutory prohibition on taking decisions or implementing their proposal affecting the workforce before the EWC has given an opinion.”

106) Therefore, it was clear that there was still time and scope for the PGEWC to express an opinion which the Employer could consider and take into account. Further, Article 2.5 of the Agreement concluded thus:

“However, no decision in relation to a Transnational issue will be implemented until the EWC has been given a reasonable period in the circumstances to express its opinion.”

107) This made it clear that no implementation was to occur until the PGEWC had been given a reasonable period of time in which to express an opinion. This, the Employer argued, was the case here more so since the decisions taken were never implemented. The PGEWC seemed to argue that it should have been consulted before the Board decision was made but it was clear that TICER was not as stringent as, for example, s.188 of TULRCA and TUPE, and to argue that TICER had priority over the likes of s.188 and TUPE was fundamentally wrong. A proposal put to the Board was not a decision and, in any event, the Employer did, as a gesture of goodwill, offer to consult before the decision as finalised.

108) Furthermore, the CAC would be familiar that under s.188 of TULRCA that collective redundancy consultation must be “in good time” and include ways to avoid dismissals. The local consultation had only been completed two months earlier and the site was not due to close until the end of 2020/early 2021. There was ample time therefore for a different decision to be reached: the Employer was an agile, modern business constantly seeking to adapt and change according to the needs of the business.

109) Indeed, in point of fact, a different decision was reached after the PGEWC declined to participate in the consultation offered by the Employer because Global Baby agreed to purchase the Chichester site. The PGEWC was told that there was a potential buyer for the site and invited to provide comments as part of the consultation process. It chose not to. The Employer decided in July 2019 that it would not transfer production to Foggia and instead it would be carried out by a third party and the PGEWC was advised of this on 23 July 2019.

110) The Employer, in consulting in February and March 2019, was doing so in compliance with Article 2.5: no decision had yet been implemented. It was accepted that Article 2.3 provided for consultation to occur before decisions were reached and this should occur before or at the same time as the local level consultation (Article 2.5). However, the consultation offered still enabled the PGEWC members to “express within a reasonable time an opinion” on the basis of the information provided. That opinion, if offered in March 2019, would still have been considered before the decision was finally completed and implemented. There was still scope, and in reality this occurred, for a different outcome did result.

111) In Emerson the Panel stated: “… it was not necessary for all the information pertinent to a course of action to be made available before the information and consultation process can begin”.

112) The Employer had explained to the PGEWC that no final decision had been made because the situation was changing at speed and it was not a done deal on 1 April 2019. It was made clear to the PGEWC that it still had a role despite the Employer’s refusal to rescind its decision, as demanded by the PGEWC. As already stated, the decision itself was not actually implemented and it was made clear at the time that the decision making process was ongoing. The Chichester site was sold to Global Baby and no production was moved to Foggia. Consultation was offered but not taken by the PGEWC.

113) In the circumstances, although there was a disagreement about the applicability of Article 11.1 of the EWC Agreement, there was no breach of Regulation 18A of TICER: consultation was offered at a “time when, and manner in which it takes place … such as to enable a European Works Council .. to express an opinion on the basis of the information provided to them”.

11. Considerations

114) Under the first category of complaints the Panel must determine whether or not the decision to transfer production from Chichester to Foggia in Italy was a transnational matter and if so, was it was of sufficient import that the provisions of the Agreement were triggered and the Employer should have called for an Extraordinary General Meeting. If the Panel is of the view that the matters were both transnational and substantial enough to warrant an EGM, then it must uphold this part of the Complaint.

115) The EWC Agreement defines ‘Transnational’ in Article 2.10 which states:

“matters are transnational where they concern the Princes Group as a whole or at least 2 or more employees in each of 2 or more Participating Countries.”

116) Article 9 of the Agreement outlines those matters of a transnational nature which would fall under the terms of the Agreement. It reads:

“The scope of information and consultation obligations under this agreement shall be limited to those issues which relate to the Princes Group (ii) are Transnational in nature and (iii) must relate to one or more of the following issues:

• structure economic and financial situation;

• the probable development of the business and of production and sales;

• situation and probable trend of employment;

• investments, and substantial changes concerning organization;

• introduction of new working methods or production processes;

• transfer of production;

• acquisitions, mergers, cut-backs or closures of undertakings, establishments or important parts of such undertakings or establishments and collective redundancies.”

117) On the face of it Article 2.10 sets out a simple and relatively straightforward definition but one that seems to have vexed the parties in this matter for a while even with the assistance of the list of issues in Article 9 that informs the parties whether or not the matter is in scope.

118) The parties were also in dispute as to the mechanism that triggered the holding of an Extraordinary Meeting. Article 11.1 provided:

“Where there are extraordinary Transnational circumstances or decisions affecting the interests of employees of the Princes Group to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or Collective Redundancies, the Steering Committee shall have the right to be informed. In such circumstances, the Steering Committee shall have the right to meet in extraordinary information and consultation meeting, with Management so as to be informed and consulted about the extraordinary Transnational circumstances or decisions (“Extraordinary Meeting”)”.

119) The parties continued disagreement as to the extent of the Agreement culminated in the definition of “transnational” under Article 2.10 being discussed at an Extraordinary General Meeting held on 27 February 2018. This resulted in a Memorandum of Understanding being drawn up and signed by the parties on 13 July 2018. This Memorandum sought to clarify the definitions in the agreement that were causing friction between the parties. Clause 1 of the Memorandum states:

1. The parties agree that the EWC agreement relates to Transnational matters (as defined in Article 2(a) of the EWC agreement) and is not intended to cover purely local or national issues, nor is it intended to limit or alter the existing rights and obligations of local, group or divisional management in respect of their ability to manage the Princes Group, or take decisions, providing these decisions are taken in accordance with the EWC Agreement.”

120) Then clause 4 went on to clarify the definition of an Extraordinary meeting. It reads: “The intention of the parties is that the EWC would be able to call an Extraordinary meeting, as set out in the agreement, when there are extraordinary Transnational circumstances or decisions affecting the interests of the employees of the Princes Group to a considerable extent, particularly in the event of relocations, the closure of establishments , or undertakings or Collective Redundancies. By way of example, this may be where Princes proposes to divest of part of the Group’s business in which employees in more than one Participating Country (as defined in Article 3.1) are employed.”

121) Clause 5 of the Memorandum sought to make clear the distinction between national and transnational matters. It states:

“The parties recognise that where a matter purely relates to an isolated site or is an issue only concerning one Participating Country, then this would not be a matter for the EWC. By way of example, proposed changes to shift patterns at the Bradford site (assuming that this is not part of a wider Transnational proposal).”

122) The circumstances that gave rise to the complaint was the proposed closure of the Chichester site and the relocation of part of its production to the plant in Foggia, Italy. The Employer describes it as “a small volume of production” and explained during the course of its submissions that the figure put forward by the PGEWC as to the volume concerned was erroneously calculated. The line that would be subject to the relocation produced only 12,000 jars a month rather than accounting for 25% of the much larger volume produced at Chichester as suggested by the PGEWC. For the first time during the course of the proceedings it was also claimed by the Employer that the workers at Foggia were seasonal workers rather than employees and the move of production from Chichester to Foggia would have only affected these temporary workers rather than actual employees and it argued, though not strenuously, that the Regulations may not be even be engaged. The Employer submitted that the effect of the transfer of production would be that the temporary workers contracts would be extended to account for a prolonged season, about two months in total, with no impact on actual employees.

123) That the move in production did not actually take place because the Employer eventually deemed it uneconomical did not alter the question as to whether or not the PGEWC should have been consulted over the proposal in the first place.

124) The first task for the Panel is to decide whether or not the proposed transfer of production from Chichester to Foggia falls under the heading “transnational”. The definition of ‘transnational’ in Article 2.10 is that the matter must concern either the Group as a whole or at least 2 or more employees in each of 2 or more participating countries. This definition is in line with that in the Regulations save for specifying a minimum number of employees that must be affected. Here the matter did not concern the Group as a whole but the proposal clearly impacted on employees in the UK with the proposed closure of the site and the relocation of the line to Foggia but did it concern employees at the site in Foggia?

125) Two matters need addressing here. First, the argument raised by the Employer that the line in Foggia was to be operated by seasonal temporary workers rather than employees and as such, fell outwith the jurisdiction of TICER. When asked for evidence of the nature of employment of these operatives the Employer was unable to assist the Panel. Given that there is no evidence for the Panel to determine whether there is any merit in the Employer’s assertion the Panel must proceed accordingly. In any event, the Panel, having considered the parties’ submissions carefully, is of the view that employees at Foggia would clearly be affected by the proposed move in production as the change would not only have impacted on those that operated the line in question, whether they be seasonal workers or employees, but it would have impacted on other employees such as those responsible for overseeing the line, packaging and transportation, quality control and HR etc.

126) The second matter for consideration is whether ‘concern’ should be read as ‘affect’ as submitted by the Employer or “relate to” or “be about” as countenanced by the PGEWC. The Employer has argued that the it should be read as having an impact on the employees concerned with the inference being that the impact should be a negative one rather than a positive one. The Panel does not agree with the Employer on this point. In our view ‘concern’ should be read as relating to or be about rather than its alternative meaning of making someone anxious or worried.

127) We will look at the question of the extent of the ‘concern’ shortly as this may be of relevance as to whether or not an EGM should have been triggered but the definition of ‘transnational’ which we are looking at here, has no such qualification as can be found in Article 11.1 by the use of the phrase “considerable extent”. According to the definition in the Agreement, a matter is ‘transnational’ simply if it ‘concerns’ the requisite number of employees in the requisite number of participating countries. We do not accept the Employer’s submission that the interests of employees needed to be affected to a considerable extent in both Participating Countries. That the proposed move in production may have been a positive effect on the Italian employees concerned did not mean that the matter was not transnational. We are greatly assisted here by Article 9 which sets out the scope of information and consultation obligations under the agreement. Here it sets out the issues that fall within the terms of the agreement and upon which the Employer should inform and consult. It is clear to the Panel that the Employer’s proposal to close a site in one Member State and relocate a part of its work to another Member State covers the majority of the matters listed in Article 9 that would make the proposal subject to the Agreement. The closure of the Chichester site and the relocation of part of its production forms part of one proposal and therefore must be taken together. It is a proposal that clearly affects the structure, economic and financial situation within the undertaking. It clearly affects the probable development of the business and of production and sales; it would have an effect on the situation and probable trend of employment; the proposal clearly has an effect on investments within the undertaking (it should be remembered that this was one reason why the proposal was not carried out); it involved the transfer of production; and was a proposal that very clearly fell within the area of “acquisitions, mergers, cut-backs or closures of undertakings, establishments or important parts of such undertakings or establishments and collective redundancies”.

128) The Panel believes that it is supported in its view that this proposal was transnational by the terms of Article 9.2 which lists those topics which are not covered by the Agreement and so are by agreement not to be classed as transnational. These matters are: terms and conditions of employment including but not limited to pay, pay related issues and other non-wage benefits; issues that relate to individual employees; environmental issues; health and safety issues; individual or collective issues, grievances or disputes; political issues; severance arrangements; any aspect of bonus, incentive, reward or recognition schemes; and local or national topics subject to national legislation or any matter which is within the scope of local information, consultation or collective bargaining arrangements. The Panel believes that there is clearly a chasm between these matters which are agreed as not being transnational matters and the proposal to close a site in the UK and move some of its production to Italy.

129) Having decided that the Employer’s proposal did fall in the definition of ‘transnational’ the next step is for the Panel to determine whether or not it was of such significance that an Extraordinary Meeting should have been held.

130) The relevant Article here is Article 11.1 read in conjunction with the reference to an Extraordinary Meeting in the Memorandum of Understanding. In both documents it sets out that the trigger for the holding of an Extraordinary Meeting was “Where there are extraordinary Transnational circumstances or decisions affecting the interests of employees of the Princes Group to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or Collective Redundancies…”.

131) The parties argued over the construction of this clause. The PGEWC put forward two different ways in which it could be read: either there needed to be transnational circumstances; or a decision affecting the interests of employees of the Princes Group to a considerable extent; or there needed to be transnational circumstances or a decision; affecting the interests of employees of the Princes Group to a considerable extent. Its primary case was that the correct construction was the former and that transnational circumstances were sufficient to trigger the right to an EGM. In the alternative, if it was wrong on construction and it was the latter, it still averred that the trigger was met on the grounds that the interests of employees at Chichester were clearly affected to a considerable extent. On the other hand, the Employer submitted that Article 11.1 had to be read as a whole rather than splitting it as suggested by the PGEWC. It submitted that it was plain that the comma came after ‘extent’ rather than after ‘circumstances’ or ‘decisions’ and it should be construed accordingly.

132) Here, the Panel prefers the Employer’s construction of Article 11.1 in that it should be read as a whole without any additional punctuation, so the question now is to what degree did the Employer’s proposal affect the interest of the employees and were their interests affected to such a degree to warrant the triggering of Article 11.

133) It is accepted by both parties that the interests of those employees at Chichester were impacted to a considerable extent but, the Employer argued, the interests of employees needed to be affected to a considerable extent in both Participating Countries in order to trigger the Extraordinary Meeting whereas the PGEWC took the view that it merely required the interests of some employees to be affected to a considerable extent rather than the interests of all affected employees.

134) Here the Panel finds in favour of the PGEWC’s interpretation. The Employer is reading into the Agreement words that are not there. If the “considerable extent” is to apply to both Participating Countries then it should have been made clear in the terms of the Agreement. It does not and should not be interpreted accordingly. If we are wrong on this point we would add that in our view, the interests of employees in Foggia would have been impacted to a considerable extent given the whole operation of moving the necessary equipment from Chichester to Foggia as well as the doubling of the length of time that the line would be in operation during the season. This is on top of the effect it would have on the other employees the nature of which we touched on earlier.

135) It is the Panel’s considered opinion that the proposal in question satisfied the requirements of Articles 2.10 and 11.1. The matter was transnational and of sufficient import to warrant the engagement of Article 11.1.

136) The Panel was told that the Statutory Directors Supervisory Board and Princes Limited’s Board approved the proposal on 14 August 2018 and that the PGEWC was informed, purely as a matter of courtesy, on 9 October 2018, the day before the employees at the Chichester site were formally notified of the proposed closure. It is clear to the Panel that the Employer made the decision that the proposal was not transnational and acted accordingly. No Extraordinary General Meeting was ever called and the offer to engage with the PGEWC on 27 February 2019, some six months after the proposal was formally approved by the board, ‘as a matter of goodwill’ came too late in the day for any meaningful information and consultation to take place. The decision had been made by the time the Employer reached out to the PGEWC and even when it did reach out, it still believed that it was under no obligation to do so on the basis that it believed that the terms of the Agreement and the provisions of TICER were not engaged.

12. Decisions

137) The Panel’s decisions on the complaints contained in Category 1 are as follows:

The complaint that the Employer’s failure to inform and consult with the PGEWC prior to a decision being made in relation to the announcement made on 9 October 2018 was in breach of the EWC Agreement and and Regulations 18A(3) and 18A(5) of TICER is well-founded.

The complaint that the Employer’s refusal to hold an extraordinary meeting prior to or following the announcement made on 9 October 2018 was in breach of Articles 11.1 of the EWC Agreement is also well-founded.

The Complainants did not seek an order under regulation 21(4) of TICER and the Panel makes no such order.

13. Category 2 Complaints

138) The PGEWC raised two complaints within Category 2:

• Refusal to allow the PGEWC an expert of their choice, namely Cubism Law, under Articles 12.1 and 12.3 of the EWC Agreement;

• Refusal to pay the expenses relating to the appointment of legal representation as an expert under the EWC Agreement to pursue a complaint with the CAC under Articles 12.1, 12.3 and 17.4 of the EWC Agreement.

139) Jonathan Clegg similarly raised two complaints under Category 2 under Regulations 19A and 21A of TICER for the failure by the Employer to provide the means required to fulfil their duty to represent collectively the interests of employees, namely, the Employer’s:

• Refusal to allow the PGEWC an expert namely Cubism Law;

• Refusal to pay the expenses relating to the appointment of legal representation to pursue a complaint with the CAC i.e. to provide the means required to fulfil the PGEWC’S duty to represent collectively the interests of employees.

14. The Complainants’ statement of case

140) The PGEWC was seeking the costs of Mr Buckle from 15 February 2019 to 20 November, the date that Counsel was engaged, and the costs of Mr O’Dair of Counsel in preparing and attending the hearing.

141) Article 12 of the PGEWC Agreement stated:

“12.1 The EWC or the Steering committee may be assisted by experts of their choice in so far as is necessary for them to carry out its tasks. The experts will be used in an advisory role (“Experts”).

12.2 Where the EWC or steering committee is assisted by more than one expert the Princes Group is only required to pay fees and expenses of one expert, upon receipt of invoices submitted in accordance with Princes’ protocol.”

142) Article 15.2 Stated:

“the Princes Group will pay for such reasonable and necessary costs related to the EWC”

143) Article 15.11 stated:

“Management shall provide members of the EWC with the means required to fulfil their duty to represent collectively the interests of the employees of the Princes Group”.

144) Article 17.4 stated:

“The EWC will be entitled to resources and means required to legally enforce this Agreement, cease or settle such proceedings, at any time, by a majority vote of all EWC Members.”

145) Regulation 19A of TICER stated:

“the central management shall provide the members of a European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings under these regulations.”

146) Firstly, the PGEWC appointed Cubism Law, now Laytons LLP, as its expert to assist them with a complaint to the CAC. This was the expert “of their choice”. The Employer was required under Article 12.2 and under Regulation 19A of TICER to pay the expenses of that expert.

147) Secondly, the PGEWC also requested payment of any contingent legal costs under Article 17.4 of the EWC Agreement and under Regulation 19A TICER.

148) Whilst the CAC was not bound by its previous decisions, these could be taken into account. In IWGB and CIS Security Ltd TUR1/1091/2019, decision of 29 April 2019, paragraph 37:

“While CAC decisions are not binding on other panels they do set out the thinking of panels chosen for their industrial knowledge and experience. While many CAC decisions turn on their own facts some involve determinations of general principle. Where CAC panels have consistently determined a point of principle in one way that is of significance, particularly because it involves the consideration of the issue by a number of panels all selected for their industrial knowledge including panel members who have many years of experience in the workplace.”

149) The Employer previously referred to the decision in the case of Emerson as justification for not paying legal costs. The PGEWC referred to the more recent case of The Verizon Group (CAC, EWC/22/2019). It was of note that the Chair of the CAC in that case was also the Chair in Emerson. In that case that original decision was qualified. In paragraph 55 it was stated:

“The Panel does not consider that failure to pay legal costs as such constitutes a breach of the Charter or of regulation 19A of TICER. However this does not mean that it can never constitute such a breach. The Panel considers that, as a general principle, the assistance of an expert is “necessary” under Articles V.10 and X.1 of the Charter and falls within the “means required” under regulation 19A of TICER in relation to proceedings before the CAC. The Panel also considers that the expert is entitled to reasonable payment for acting as such and that both the Charter and TICER require the reasonable expenses of his or her appointment to be borne by the Employer. The choice of expert is a matter for the VEWC and an individual is not debarred from acting as an expert in this context because he or she is legally qualified. In this case Mr Buckle, now via Laytons LLP, was the VEWC’s chosen expert. It follows that the Panel considers that a failure on the part of the Employer to pay the reasonable expenses relating to the appointment of Mr Buckle as an expert in relation to these proceedings is in breach of the Charter and of regulation 19A of TICER.”

150) This mirrored the position in this matter.

151) The meaning of Article 17.4 was also clear. It created an entitlement “to resources and means required to legally enforce this Agreement”. As no other costs were required to enforce the EWC Agreement it must refer to legal costs and the PGEWC’s right to them. It also provided for a three-stage dispute resolution process and the PGEWC would question how it could access that part of the process without recourse to legal advice.

152) It appeared uncontentious that the Employer had consistently refused to pay any legal costs. The basis of this refusal in the Response was:

• It was not “necessary” under Articles 12.1 and 12.2 and that it was not “required” under Article 17.4.

• That experts were only to advise under Article 12.2 and not to represent;

• That the PGEWC had previous legal advice from Unite in November 2019, some 5 months before any complaint to the CAC was issued and that any legal assistance in bringing this complaint would be a repeat of that advice;

• That Article 17.4 did not create a specific obligation to pay for the resources and means referred to in that Article;

• That Article 17.4 was in some way “squeezed” into the EWC Agreement.

153) The Employer also appeared to have refused payment of legal costs under Regulations 19A/21A of TICER as these provisions:

• Did not override any express agreement in the EWC Agreement and were presumably subject to the EWC Agreement;

• Only covered such matters as “offices support facilities, ability to communicate with employees, private meeting facilities, etc”; and

• That there was only an obligation to pay for one expert.

154) Countering the above the PGEWC submitted that in the meeting of 22 November 2018 the Employer admitted that it had been receiving advice on the dispute for some time. It was also of note that the Employer had instructed solicitors to assist throughout as well as having engaged Keystone Law as additional assistance. As stated previously it was to be assumed that the Employer had sought and paid for the assistance of two sets of lawyers, one of whom was a full-service global law firm, at what would be assumed a reasonable cost, because it was “required” or “necessary” and not because it was “nice to have” as referred to in its Response to the Complaints. This was especially the case when it occurred at a time when the Employer was reducing spending and closing sites. It was currently paying for its own legal representation including representation at the hearing by Counsel yet stated that the PGEWC did not need such services in bringing its complaints. This, the PGEWC asserted, was an extraordinary position especially given the arguments at the hearing over the construction of the EWC agreement. The expectation on the Employer’s part that a lay person could have represented the PGEWC or that the PGEWC should have paid for legal services itself was unrealistic. The Panel should look to the principle of “equality of arms” when considering the merits of this argument.

155) By email on 27 February 2019 the HR Director stated in respect of the PGEWC receiving legal advice:

“With respect, he can only provide his opinion of what he believes is the correct interpretation, as is the case with any lawyer advising their client. This is why bodies such as the CAC exist in order to resolve disputes such as this. For these reasons, we do not believe that the EWC receiving advice from Mr Buckle will advance this dispute and will only result in the Company incurring additional costs at a time when it is trying to reduce spending”.

156) By refusing to change or even consider its position regarding the real meaning of transnational matter, the Employer required and made it necessary for the PGEWC to take the step of making a complaint to the CAC, triggering the obligation to provide the resources and means to do so. It appeared that the real reason for the refusal to pay for the resources and means required to enforce the EWC Agreement was the cost arising from the dispute which was irrelevant to the entitlement under the EWC Agreement.

157) More generally, on whether legal advice was “required” or “necessary” for a EWC, the PGEWC would refer to the Complainants arguments in Verizon.

158) Unite merely provided an opinion on the interpretation of the EWC Agreement following a request by the PGEWC in order to assist the PGEWC through the first stage of the dispute resolution procedure in Article 17.2. Once this and the mediation stage had been exhausted, the PGEWC needed more formal legal advice. It was of note that Unite was never paid or requested payment for this advice. The assistance was outside the scope of Article 12. The steering committee had nominated Cubism Law as its nominated paid expert for the purposes of legal advice. The advice previously provided by Mr Hayward of Unite was in respect of his opinion on the meaning of the EWC Agreement. That advice did not advise on how to make a complaint to the CAC. There was no repetition. The Employer also submitted that the PGEWC should have continued to use the services of Unite on the basis that such services were cost-free but there was no evidence of this assertion. Some members of the PGEWC were members of Unite but others were not and the PGEWC was not a Unite entity that the union was committed to backing. There was no evidence that Unite was willing to instruct a solicitor for free on the PGEWC’s behalf.

159) The assertion that under Article 12.2 of the EWC Agreement experts were only in “an advisory capacity, which does not include a representation capacity” and could not therefore represent the PGEWC was incorrect. Article 12.1 also referred to the EWC or Steering Committee being “assisted by experts of their choice”. Articles 12.2 and 12.3 also referred to assistance. In any event, lawyers as a generality advise and indeed assist. The wording of this Article did not preclude representation in the traditional sense.

160) Despite the Employer’s assertion, Article 15.2 of the Agreement did require that it provided or paid for the resources and means referred to in Article 17.4. Article 15.2 stated “the Princes Group will pay for such reasonable and necessary costs related to the EWC”. Article 15 did not state the specific elements of the EWC Agreement to which it applied and it did not exclude Article 17.4.

161) The Employer seemed to argue that the SNB inserted wording into Article 17.4 in a way that was not agreed. It referred to lengthy negotiations to agree the EWC Agreement. During the negotiations Article 17.4 was an extremely controversial issue. The SNB inserted this Article and the Employer removed it on a number of occasions. In its email of 7 December 2018 the Employer made explicit reference to Article 17.4 being negotiated directly with the SNB. It referred to the previous drafts of the EWC Agreement. To argue that this provision was in some way “squeezed in” when there was clear debate on providing the EWC with the resources and means required to enforce the agreement was therefore wholly incorrect. In any event, this Article 17.4 was included, and, as Article 15 clearly made reference to the provision of other funded assistance, it was submitted it must be taken as referring to the provision of legal advice and representation when seeking to enforce the EWC Agreement as there appeared no other reason for it. In any event, the PGEWC stated that the Panel could not rely on the history of the negotiations in order to construe the agreement and referred the Panel to the matter of Arnold v Britton and others [2015] UKSC 36.

162) It was not a good argument, as made here by the Employer, that as the events were historic then there was no point in bringing these proceedings as it was in the public interest that EWCs could enforce their agreements. The Employer had set out the Government’s view but what the Executive thought about a particular piece of legislation was not a guide on how it should be interpreted. Further, it only set out a general position.

163) As to whether Regulation 19A of TICER could override an express term of any EWC Agreement, this contradicted the position taken in both Emerson and Verizon. In neither case was Regulation 19A of TICER taken as anything other than a free standing right. Regulation 19A(2) excluded certain matters from the “means required”. It did not exclude matters agreed under Regulation 17 of TICER. Further regulation 19A of TICER was inserted following the recast of the Directive. Article 10 of the Directive asserted for the first time representatives’ entitlement to the means to apply rights arising under that Directive. The reason that the Directive was amended in 2009 was to make it more effective. Recital 7 stated:

“It is necessary to modernise Community legislation on transnational information and consultation of employees with a view ensuring the effectiveness of employees’ transnational information and consultation rights, increasing the proportion of European Works Councils established while enabling the continuous functioning of existing agreements, resolving the problems encountered in the practical application of Directive 94/45/EC and remedying the lack of legal certainty resulting from some of its provisions or the absence of certain provisions”.

164) It was suggested that the introduction of Article 10 and the “means required” to apply the rights arising from the Directive was done, at least in part, to ensure that employers respected the spirit and provisions of the Directive and to provide EWCs with financial legal assistance to ensure they did. As such, it created a free standing right to the means required outside of the provisions of any agreement under Regulation 17 or other such provisions.

165) As could be seen from the Verizon decision, Regulation 19A was not limited to “support facilities, ability to communicate with employees, private meeting facilities, etc” and this was stated nowhere in TICER nor did the Directive state that its scope should be limited in this way. Similar to regulation 18A it was inserted to create certain fundamental obligations to ensure “the effectiveness of employees’ transnational information and consultation rights”.

166) It was agreed that the PGEWC only had the right to one expert. In this matter it had been Cubism Law and now Laytons, operating through its representatives, in the same way that the Employer had specifically allowed Syndex to recently provide assistance and recognised Unite as a previous expert rather than one specific individual. The Employer relied on the intervention of Syndex, instructed on 17 September 2019 until 20 November 2019, as a reason why Mr Buckle could not be appointed as expert. However, Syndex was appointed to assist the PGEWC in the production of the annual report and the appointment no longer remained. It was the PGEWC’s case that whilst the PGEWC asked the Employer to appoint Syndex to assist, it was the Employer that made the actual appointment although there was no documentation relating to Syndex’s instruction.

167) The Employer breached the Agreement when it refused to engage Mr Buckle following his letter to the Employer of 29 March 2019. In its response dated 9 April 2019 the Employer stated its position which was that it was not obliged to meet the PGEWC’s legal costs in relation to either advice or representation regarding this matter. Having said it would not be responsible for Mr Buckle’s fees the Employer appointed Syndex at a later date. It was only able to do so because of its earlier breach of the Agreement and the refusal to meet Mr Buckle’s costs. Regulation 12 of TICER stated that only one expert can be appointed but the PGEWC questioned what would happen if it was faced with a number of discrete issues requiring experts in different fields. Syndex supplied business and admin skills in support of the EWC regarding the annual report. They were not lawyers. Did this mean that no further expert could be appointed to address legal issues and the application to the CAC? The PGEWC believed it was entitled to legal support and was wholly dependent on the right to such support under Article 12.1 and that this did not limit its ability to appoint Mr Buckle under Article 17.4.

168) The PGEWC sought an Order that the Employer had breached Articles 12.1 and 17.4 of the Agreement and Regulation 19A.1 of TICER and legal costs for enforcing the EWC Agreement and in bringing this complaint should be paid under this specific EWC Agreement and also under regulation 19A of TICER. 169. The total costs of Mr Buckle amounted to £11,340 plus VAT and Mr O’Dair, £5,000 plus VAT. These costs did not include any cost of Mr Buckle’s attendance at the hearing. If, however, the Panel found that the appointment of Syndex terminated the appointment of Mr Buckle, then his costs would amount to £7,230 plus VAT whilst Mr O’Dair’s costs remained as stated above.

170) Having heard the Employer, the PGEWC submitted that it was wrong for it to suggest that once an expert was chosen, the PGEWC could not change its mind and appoint another. This was a fundamental feature of the way legal services were provided. The PGEWC was fully entitled to appoint Mr Buckle. The PGEWC informed the Employer but the Employer simply refused. This was not right and there was no evidence to say that Unite had better legal resources and that it was unreasonable to appoint Mr Buckle. There was no overlap between Mr Buckle and Mr O’Dair and the PGEWC had attempted to provide an estimate when Mr Buckle was first appointed. The examples in Verizon were given to highlight those matters creating an inequality of arms between the parties. In the absence of provision for payment of legal costs such inequality in arms would render it difficult for any EWC to bring claims to the CAC.

15. Summary of the Employer’s submissions

171) The Employer submitted that under this category of complaints there were four relevant timeframes. First, the period up to the drafting of the application which was round 8 April 2019; second, the period from the drafting of the application to 17 September 2019 when Syndex was appointed; third, 17 September 2019 to 20 November 2019 which covered the period of Syndex’s appointment and fourth, the period from when Mr O’Dair was instructed to date.

172) The PGEWC confirmed that it was not seeking costs for the first period, prior to the application being made, so it was the remaining three periods that were disputed.

173) On 21 October 2018, the Employer was informed that the PGEWC intended to seek legal advice and that under the agreement the Employer was required to cover its legal costs. The Employer’s response was that the Agreement did not provide that legal advice sought should be at the Employer’s expense and it sought a meeting to discuss the issues fully.

174) On 2 November 2018 the Employer was sent a Legal Opinion prepared by the Unite legal team. That Opinion provided advice to the PGEWC and indeed went further. At the end of the Opinion, it specifically set out next steps including whether it was “in all parties’ interests to proceed straight to a CAC submission”. The legal advice that the EWC had stated it planned to seek was obtained: from Unite, not Mr Buckle. It was important to note that the author of the Unite letter made clear he had liaised with Unite’s Legal Department prior to giving the Opinion and this included the making of a complaint to the CAC.

175) By email dated 7 December 2018 the Employer set out its position in relation to paying legal costs. It questioned why a further legal expert was necessary when a legal opinion had already been obtained from Unite. It was the Employer’s view that there must be justification that it was necessary to change the expert. It emphasised that the wording sought by the Special Negotiating Body for Article 17.4 had been rejected in the final EWC agreement. It had specifically not been agreed that “The EWC will be provided with the legal and financial resources and means required to legally enforce this Agreement”. The Agreement was restricted to “resources and means required” and did not include the provision of “legal and financial resources”. It was the understanding of both parties to the Agreement that it would not cover legal resources. It made sense if Article 17.4 was read in conjunction with Articles 12.1 and 12.2. If the Employer was wrong in its submissions and an expert could be appointed under Article 17.4, then another could not be appointed under Article 12.1.

176) On 3 February 2019, the PGEWC informed the Employer that it considered the only way forward was to use an independent legal expert to give its opinion on whether the Chichester consultation was ‘transnational’ in the context of the agreement.

177) Consequently, the PGEWC informed the Employer that it was instructing Mr Buckle. At this stage, the legal advice sought was an opinion on the meaning of ‘transnational’. It was not to proceed with an application to the CAC.

178) By email dated 27 February 2019 the Employer emphasised that Mr Buckle could not provide a definitive interpretation of the legislation, he would only be providing his opinion. The Employer emphasised that this was the reason that the CAC existed, in order to resolve disputes and it did not see how engaging Mr Buckle would advance the dispute. This position was further emphasised in the meeting on 12 March 2019.

179) The PGEWC continued to engage Mr Buckle for both advisory work and thereafter to prepare the application to the CAC.

180) Article 10.1 of the Agreement provided that the EWC could carry out an in-depth assessment of the materials for the Annual Meeting with experts appointed in accordance with Article 12. Article 12.1 provided for the provision of “experts of their choice, in so far as this is necessary for them to carry out its tasks. The experts will be used in an advisory role”. It was clear that the provision of experts in Article 12.1 was in relation to Article 10.1: the two clauses must be understood together and only applied to experts to be used in relation to an Annual Meeting. There was no provision for the use of an expert in any other provision within the Agreement.

181) In the alternative, if Article 12.1 was applicable the key words were “necessary” and “advisory”. First, the appointment of an expert must be necessary to enable the EWC to carry out its tasks. Second, the appointment of the expert was limited to advisory work.

182) In those circumstances, the appointment of Unite could be said to be necessary and it was limited to advisory work. Mr Buckle’s appointment was not. It was not necessary because the EWC had already had advice on precisely the same point from Unite. There was no need to go to someone else. It was certainly not necessary to go to someone else who was closely affiliated with Unite. It certainly could not be argued that Unite was not competent to give advice or bring the complaint to the CAC. Furthermore, this Article did not cover any work that went beyond the provision of specific advice.

183) Separate provision was made for administration and facilities to be provided and or paid for by the Employer (Art 15.2) and for PGEWC Members reasonable expenses to be reimbursed at any EWC related meetings and related pre-meetings (Article 15.7). Article 15.11 plainly addressed administrative matters including facilities and time for EWC members to undertake their duties. It had no application to costs of legal advice and representation. The second sentence of the clause would be meaningless if “means required” included paying for legal advice and representation: there would be no reason for local and national management to be aware of such an obligation.

184) The only clause that the CAC should consider was Article 17.4 which provided:

“The EWC will be entitled to resources and means required to legally enforce this Agreement, cease or settle such legal proceedings, at any time, by a majority vote of all EWC Members”.

185) As noted above, the agreement between the parties was that “resources and means” did not include legal and financial resources. This was in striking contrast to the final bullet point in relation to stage 2 of the Dispute Resolution process at Article 17, which expressly provided that the Employer should pay the fees of the mediator. If it was intended that legal fees be paid it would have stated it in clear terms and a budget would have been set. Moreover, the key word was “required”. Payment for the services of Mr Buckle was not required or necessary.

186) The EWC had received advice from Unite. It specifically noted the options in relation to a CAC claim. There had been no evidence as to why Unite could not continue to advise and assist, and even represent the EWC. Indeed, that was the raison d’etre of a trade union like Unite who was a member of IndustriAll. As noted in Emerson, IndustriAll did not charge for trade union officials engaged in assisting EWCs. There was no need to instruct someone else to repeat what Unite had already advised on and to assist and represent the EWC, when Unite had already evinced that it was ready and willing to do so for free.

187) Furthermore, as the CAC itself noted in Emerson “The CAC is not a body where lawyers are required, and the CAC takes steps to ensure that an unrepresented party is not disadvantaged. The Panel does not consider that failure to pay legal costs as such constitutes a breach of this Agreement or of regulation 19A of TICER”.

188) The same CAC chair came to the same conclusion in Verizon stating “The Panel concurs with the view expressed in Emerson that the CAC is not a body where lawyers are required and the CAC takes steps to ensure that an unrepresented party is not disadvantaged. The panel does not consider that a failure to pay legal costs as such constitutes a breach of the Charter or of regulation 19A of TICER.”

189) The panel in Verizon went on to say:

“However this does not mean that it can never constitute such a breach. The Panel considers that, as a general principle, the assistance of an expert is “necessary” under Articles V.10 and X.1 of the Charter and falls within the “means required” under regulation 19A of TICE in relation to proceedings before the CAC. The Panel also considers that the expert is entitled to reasonable payment for acting as such and that both the Charter and TICE require the reasonable expenses of his or her appointment to be borne by the Employer”.

In those circumstances, Mr Buckle was paid in Verizon. However, counsel’s fees were not payable.

190) The Government Response to the Public Consultation – Implementation of the Recast European Works Council Directive: Draft Regulations stated: “The Government takes the view that it is very far from certain whether the 2019 Directive requires the legal costs of EWC members to be covered by central management. The Government agrees with the EEF’s comments regarding the unwelcome legal precedent that such an interpretation would create.” It was clear therefore that the intention was that the CAC would be a costs free forum. If Verizon gives carte blanche to legal fees the CAC risks becoming a costs environment for all employers. However, it would be worse than a costs regime as there are no means of proper assessment.

191) The situation was quite different in the present matter to the facts in Verizon, which the Employer believed was wrongly decided. It was simply unnecessary to come to the CAC in the first place, particularly given that the Employer was not obliged to consult in the first place; it had offered to consult in February 2019 but the PGEWC had refused; the PGEWC could and should properly have utilised Unite, which would not have incurred any costs; and any decision of the CAC in relation to this matter had little, if any, applicability to the current relationship between the Employer and PGEWC. It would have no impact on what happened at the Chichester site and the relationship between the PGEWC and the Employer had improved considerably with the Employer having offered significant comfort to the PGEWC in relation to how things would be addressed in future. In these circumstances, it was not necessary to pursue the application before the CAC or incur the costs.

192) However, if the CAC was minded to award Mr Buckle his costs, this should be strictly limited to the presentation of the CAC complaint and the work thereafter up to the end of August 2019, but no more. It should not include advisory work beforehand, as noted above. In addition, the EWC Agreement only provided for the Employer to pay for one expert. From September 2019 the Employer had paid for the services of Syndex, as requested by the EWC. Therefore there was no requirement upon the Employer to pay for the services of Mr Buckle from September 2019.

193) As for the costs of Mr O’Dair, Verizon made clear that the EWC could not have both solicitor’s and Counsel’s fees paid and the Employer suggested that the PGEWC was gaming the system by unappointing Mr Buckle and appointing Mr O’Dair so that Mr O’Dair would get a brief fee. The Employer urged the CAC to ask for a schedule of costs in relation to Mr O’Dair’s attendance at the hearing to ensure that there was no overlap with the costs being claimed by Mr Buckle.

194) In all the circumstances, there had been no breach of the Regulations nor was there any entitlement for the costs of Mr Buckle or Mr O’Dair to be paid by the Employer.

16. Considerations

195) There are two matters to be determined under this head of complaint. First, whether the Employer failed to allow the PGEWC an expert of its choice and second, whether the Employer’s refusal to pay the costs incurred in the bringing of the complaint puts it in breach of the Agreement and TICER.

196) It may be helpful at this juncture to set out the four relevant timeframes that the Panel needs to consider. The first period in question was the period leading up to the drafting of the application which was around 8 April 2019; the second was the period from the drafting of the application to 17 September 2019 which was the date that Syndex was appointed to assist the PGEWC with the Annual report; the third period ran from 17 September 2019 to 20 November 2019 and covered the period of Syndex’s appointment and the fourth and final period was the period from when Mr O’Dair was instructed, the 20 November 2019 to date. It was established during the course of the hearing that the Panel should only concern itself with the refusal to pay the costs incurred by Mr Buckle during the second and third periods and the costs of Mr O’Dair during the fourth period. We were assured by the PGEWC during the hearing that there was no overlap between Mr Buckle and Mr O’Dair.

197) Dealing with the first element of this complaint the, the PGEWC argued that Mr Buckle of Cubism Law, now Laytons LLP, was the expert it chose to assist it with a complaint to the CAC. This was the expert “of their choice”. The Employer was therefore required to accept the PGEWC’s choice.

198) The Employer’s case on this point was that it had been forewarned of the intention of the PGEWC to seek legal advice and that it was expected to cover the legal costs incurred. The Employer took the view that the advice which was subsequently provided by Unite and which was provided to the PGEWC without cost and which would include the lodging of any complaint to the CAC, was sufficient to fulfil the requirement in Article 12 and the Employer’s obligations were discharged given that advice was provided, was provided by the PGEWC’s expert of choice and it was provided cost free.

199) However, the Employer’s concern was that despite receiving advice from Unite, the PGEWC then decided to seek further advice from Mr Buckle, at that time of Cubism Law. The Employer questioned why a further legal expert was necessary when a legal opinion had already been obtained from Unite. It believed that the PGEWC should be required to justify the need to change the expert.

200) The Employer’s view was that the PGEWC should have continued to use the services of Unite on the basis that such services were cost-free but there was no evidence of this assertion nor that the services would have remained cost-free following the lodging of the application. There was also no evidence that Unite was willing to instruct a solicitor for free on the PGEWC’s behalf.

201) The Employer also questioned whether the advice satisfied the “necessary” element of Article 12.1 wherein the appointment of an expert must be ‘necessary’ in order to enable the EWC to carry out its tasks. Further, Article 12.1 stated that any expert should be used in an advisory role only. The Employer did acknowledged that the appointment of Unite could be said to be necessary and its services were limited to advisory work and that this satisfied the provisions of the agreement but it challenged the subsequent appointment of Mr Buckle arguing that it was not necessary as the PGEWC had already received suitable advice on the matter nor was Mr Buckle’s role limited to an advisory one.

202) Having considered the parties’ submissions on this question the Panel is of the view that the choice of expert is entirely a matter for the EWC. Article 12.1 makes clear in the simplest of terms that the EWC may be assisted by “experts of their choice” and it is not for the Employer to second guess the EWC’s decision. As for the question as to whom decides whether or not an expert is required, the Panel believes that, again, this must be a matter for the EWC to decide.

203) There is no provision within the agreement nor within TICER itself which limits who can be appointed or the number of experts that can be appointed. The only limitation, and one of clear importance, especially one imagines to the experts themselves, is that the Employer is only required to pay the fees and expenses of one expert at a time. Clearly this was envisaged by the Agreement as Article 12.3 obligates the chairperson of the EWC to notify the Meeting Secretary, that is the person appointed by the Employer and who is responsible for the administrative and logistical functions around EWC meetings, when they “will be assisted by experts and who these are”. That this is couched in these terms indicates the expectation that there may be more than one expert appointed by the EWC.

204) Accordingly, the Panel’s finds that the Employer did refuse to allow the PGEWC an expert of its choice, namely Cubism Law, which was contrary to Article 12.1 of the EWC Agreement.

205) The second head of complaint here was the refusal to pay the costs of the appointment of Mr Buckle as the PGEWC’s expert of choice.

206) The PGEWC argue that the Employer was obliged to pay the costs of the expert in accordance with the provisions of both the Agreement and TICER. Specifically, the PGEWC relied upon Article 12 of the Agreement which provides that the EWC or the Steering Committee may be assisted by experts of their choice in so far as it is necessary for them to carry out their tasks. The PGEWC also relied upon Article 17.4 which it said created an entitlement “to resources and means required to legally enforce this Agreement”. It submitted that no other costs were required to enforce the EWC Agreement therefore it must be a reference to legal costs and the PGEWC’s right to have them paid.

207) The PGEWC submitted that it was a contradiction on the Employer’s part for it to pay for its own legal representation, which including representation at the hearing by Counsel, yet for it to claim that it was not necessary for the PGEWC to be similarly represented. The PGEWC urged the Panel to take into account the principle of “equality of arms” when considering the merits of this argument and that such inequality in arms would render it difficult for any EWC to bring claims to the CAC. Reference here was made to recent decision in Verizon which addressed the same point as here.

208) The PGEWC did accept during the course of its submissions that the Employer’s obligation was only to pay the costs of one expert. This is relevant as there is an overlap during the third period when both Syndex and Mr Buckle were providing assistance.

209) Contrariwise, the Employer argued that not only was it not necessary for the PGEWC to seek legal representation but the Article 12.1 explicitly stated that any experts would be used only in an advisory role which was a distinct and different role from the legal representative role carried out initially by Mr Buckle and subsequently by Mr O’Dair.

210) The Employer strongly believed that the provision of experts was limited to assisting the PGEWC with an in-depth assessment of the materials for the Annual Meeting. It stated that it was purely an advisory role and the provision of experts in Article 12.1 was in relation to Article 10.1 which governed the operation of the Annual meeting rather than the provision of a legal representative to bring proceedings and act for the PGEWC

211) The Employer also referred to Article 12.2 which made clear that if the EWC was assisted by one or more experts, the Employer was only required to pay the costs of one expert. As stated above, this is material as it has a bearing on the third period of the timeframe under consideration when the PGEWC was assisted by Syndex and Mr Buckle at the same time.

212) According to the PGEWC Unite provided an opinion in order to assist the PGEWC during the first stage of the dispute resolution procedure in Article 17.2. Once this and the mediation stage had been exhausted, the PGEWC needed more formal legal advice. However, this assistance was outside the scope of Article 12.

213) The Panel accepts the Employer’s submission that reference to costs in Article 15, which is concerned with Administration and Facilities, clearly addressed those administrative matters that would assist the EWC to undertake its duties and so, contrary to the PGEWC’s assertion, it had no application to costs of legal advice and representation.

214) However, it is a different matter when one turns to Article 17 and particularly Article 17.4. The Panel is not persuaded by the argument that we should consider the history of the negotiations in order to construe the terms of Article 17.4. This Article is clear and succinct. The PGEWC is entitled to the resources and means required to legally enforce the agreement, cease or settle such legal proceedings, at any time, by a majority vote. Clearly the resources and means required must include the costs of legal advice and representation and the Panel fails to see how this Article can be interpreted otherwise.

215) Having decided that the PGEWC was entitled to appoint Mr Buckle as the expert of its choice the question arises as to whether it can appoint two experts at the same time to assist with separate and discrete issues in different fields. Specifically in this case we are looking at the third period when Syndex supplied business and admin skills in support of the PGEWC’s preparation ahead of the annual report and this period coincided with Mr Buckle’s acting as representative in this matter. Did it make a difference that Syndex were not lawyers? Could an EWC appoint an expert in multiple disciplines all at the same time? The PGEWC did seek to argue that whilst it did seek the assistance of Syndex it was the Employer that made the appointment and that this somehow negated the terms of Article 12. However, Article 12, nor the relevant provisions of TICER, restrict the right of the PGEWC to appoint multiple experts in multiple fields at the same time. What is restricted by both TICER and the agreement is the Employer’s obligation to pay for more than one expert at a time.

216) The Panel finds that the PGEWC is entitled to choose whom it appoints as expert and when it makes such an appointment. It is also fully entitled to terminate the appointment of one expert and appoint another such as here. Indeed, it would have been entitled to have had both appointments run simultaneously should it have so wished. The only stipulation as far as the Agreement and TICER is concerned is that the Employer is only obliged to pay the costs of one expert at a time. The appointment of Syndex in the third period in the timeframe above therefore terminated Mr Buckle’s eligibility under Article 12.2 to recover his fees and expenses. It follows, therefore, that Mr Buckle is not entitled to a fee for the period during which Syndex were acting on behalf of the PGEWC.

217) The Panel was taken to previous decisions of the CAC including those in Emerson and Verizon. We make the point that, as stated in CIS Security Ltd, that whilst we are not bound by decisions of other Panels of the CAC, we would say that we agree with the finding in Emerson that the CAC is not a body where lawyers are required, and the CAC would take steps to ensure that an unrepresented party was not disadvantaged. This, in our view, is certainly the case in proceedings before the CAC. However, most of the applications made to the CAC are relatively straightforward when it comes to matters of law but some, such as in this instance, are much more complicated and involve consideration of relevant authorities, perhaps even EU Directives as well as the relevant UK legislation. As the CAC cannot advocate a parties’ case nor can it provide legal advice there may be occasions when a party believes circumstances necessitates the appointment of an expert to assist in its preparation as well as acting as advocate during the course of a hearing. The decision as to whether or not an expert is necessary must be one for the applicant body, in this case the EWC, having carefully considered the particulars of the issue in question.

218) This has been an interesting and, if we may say, robustly argued case and the Panel would like to thank the Ms Fraser Butlin and Mr O’Dair for their patience and assistance during the course of the hearing.

17. Decisions

219) The Panel considers the complaints that the Employer had failed to allow the PGEWC an expert of its choice to be well-founded.

220) The Panel considers the complaints that the Employer had refused to pay the expenses relating to the appointment of Mr Buckle of Cubism Law and now of Laytons LLP and Mr O’Dair of Counsel to pursue a complaint with the CAC to be well-founded.

221) The Panel considers the complaint by Jonathan Clegg that the Employer had refused to provide the members of the PGEWC with the means required to fulfil their duty to represent collectively the interests of employees by refusing to pay the expenses relating to the appointment of Mr Buckle and Mr O’Dair to pursue these complaints to the CAC to be well- founded.

18. The Orders

222) The Complainants brought complaints under two provisions of TICER in respect of the same matter. The PGEWC complained under Regulation 21 that the terms of the PGEWC agreement had not been complied with and Jonathan Clegg complained under Regulation 21A that the Employer had refused to provide the members of the PGEWC with the means required to fulfil their duty to represent collectively the interests of employees. The Panel has found both these complaints to be well-founded. The Panel has therefore made orders under both these provisions on the basis that compliance with one order will also discharge the obligation under the second order.

223) In the exercise of its discretion under regulations 21(4) of TICER the Panel makes the following order under regulation 21(5):

a) the Employer shall pay the expenses incurred as a result of the appointment by the PGEWC of Mr David Buckle now of Laytons LLP to pursue a complaint to the CAC, being the sum of £7,230 plus VAT;

b) the Employer shall pay the expenses incurred as a result of the subsequent appointment by the PGEWC of Mr Richard O’Dair for representation at the hearing, being the sum of £5,000 plus VAT;

c) the Employer failed to undertake to make this payment on 8 February 2019;

d) this order must be complied with within 21 days of the date of this decision.

224) In the exercise of its discretion under regulation 21A(3) of TICER the Panel makes the following order under regulation 21(5):

a) the Employer shall pay the expenses incurred as a result of the appointment by the PGEWC of Mr David Buckle now of Laytons LLP to pursue a complaint to the CAC, being the sum of £7,230 plus VAT;

b) the Employer shall pay the expenses incurred as a result of the subsequent appointment by the PGEWC of Mr Richard O’Dair for representation at the hearing, being the sum of £5,000 plus VAT;

c) the Employer failed to undertake to make this payment on 8 February 2019;

d) this order must be complied with within 21 days of the date of this decision.

The Panel

Professor Kenny Miller, Panel Chair

Mr David Crowe

Ms Fiona Wilson

17 January 2020

19. Appendix 1

Names of those who attended the hearing on 26 November 2019:

For the Complainants

Mr Richard O’Dair - Counsel

David Buckle - Solicitor, Laytons LLP

Jonathan Clegg - Chair PGEWC

Paul Russell - PGEWC

For the Employer

Stephen Cardall - Chief Executive, Finance - Princes

Joe Dent - Group HR Director – Princes

Sarah Fraser Butlin - Counsel

Alison Treliving - Partner, Squire Patton Boggs

20. Appendix 2

Transnational Information and Consultation of Employees Regulations 1999, as amended: regulations relevant to this decision

Information and consultation 18A.—(1) This regulation applies 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.

(2) The central management, or any more appropriate level of management, shall give information to—

(a) members of a European Works Council; or

(b) information and consultation representatives, as the case may be, in accordance with paragraph (3).

(3) The content of the information, the time when, and manner in which it is given, must be such as to enable the recipients to—

(a) acquaint themselves with and examine its subject matter;

(b) undertake a detailed assessment of its possible impact; and

(c) where appropriate, prepare for consultation.

(4) The central management, or any more appropriate level of management, shall consult with—

(a) members of a European Works Council; or

(b) information and consultation representatives, as the case may be, in accordance with paragraph (5).

(5) The content of the consultation, the time when, and manner in which it takes place, must be such as to enable a European Works Council or information and consultation representatives to express an opinion on the basis of the information provided to them.

(6) The opinion referred to in paragraph (5) shall be provided within a reasonable time after the information is provided to the European Works Council or the information and consultation representatives and, having regard to the responsibilities of management to take decisions effectively, may be taken into account by the central management or any more appropriate level of management.

(7) The information provided to the members of a European Works Council or information and consultation representatives, and the consultation of the members of a European Works Council or information and consultation representatives shall be limited to transnational matters.

(8) Where information as to the employment situation in the Community-scale undertaking or, as the case may be, the Community-scale group of undertakings, is disclosed by the central management or any more appropriate level of management, this shall include suitable information relating to the use of agency workers (if any).

21. Means required

19A.—(1) Subject to paragraph (2), the central management shall provide the members of a European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings under these Regulations.

(2) The obligation on central management in paragraph (1) does not include an obligation to provide a member of a European Works Council with—

(a) time off during working hours to perform functions as such a member, or remuneration for such time off (as required by regulations 25 and 26);

(b) the means required to undertake training (as required by regulation 19B); or

(c) time off during working hours to undertake training, or remuneration for such time off (as required by regulations 25 and 26).

21.—(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 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 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.

(1B) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure or non-compliance.

(2) In this regulation, “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management.

(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; or

(b) in the case of a failure concerning an information and consultation procedure, either the central management or any one or more of the information and consultation representatives, and “defaulter” means the persons mentioned in sub-paragraph (a) or (b) against whom the complaint is presented.

(4) Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with the terms of the agreement under regulation 17 or, as the case may be, the provisions of the Schedule.

(5) An order made under paragraph (4) shall specify—

(a) the steps which the defaulter is required to take;

(b) the date of the failure; and

(c) the period within which the order must be complied with.

(6) If the CAC makes a decision under paragraph (4) and the defaulter in question is the central management, the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.

(6A) Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the central management requiring it to pay a penalty to the Secretary of State in respect of the failure.

(7) Paragraph (6A) shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the central management, that the failure resulted from a reason beyond the central management’s control or that it has some other reasonable excuse for its failure.

(8) Regulation 22 shall apply in respect of a penalty notice issued under this regulation.

(9) No order of the CAC under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.

22. Disputes about operation of European Works Council or information and consultation procedure

21.—(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 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 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.

(1B) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure or non-compliance.

(2) In this regulation, “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management.

(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; or

(b) in the case of a failure concerning an information and consultation procedure, either the central management or any one or more of the information and consultation representatives, and “defaulter” means the persons mentioned in sub-paragraph (a) or (b) against whom the complaint is presented.

(4) Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with the terms of the agreement under regulation 17 or, as the case may be, the provisions of the Schedule.

(5) An order made under paragraph (4) shall specify—

(a) the steps which the defaulter is required to take;

(b) the date of the failure; and

(c) the period within which the order must be complied with.

(6) If the CAC makes a decision under paragraph (4) and the defaulter in question is the central management, the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.

(6A) Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the central management requiring it to pay a penalty to the Secretary of State in respect of the failure.

(7) Paragraph (6A) shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the central management, that the failure resulted from a reason beyond the central management’s control or that it has some other reasonable excuse for its failure.

(8) Regulation 22 shall apply in respect of a penalty notice issued under this regulation.

(9) No order of the CAC under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.

23. Disputes about failures of management

21A.—(1) A complaint may be presented to the CAC by a relevant applicant who considers that—

(a) because of the failure of a defaulter, the members of the special negotiating body have been unable to meet in accordance with regulation 16(1A);

(b) because of the failure of a defaulter, the members of the European Works Council have not been provided with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings in accordance with regulation 19A;

(c) because of the failure of a defaulter, a member of a special negotiating body or a member of the European Works Council has not been provided with the means required to undertake the training referred to in regulation 19B; or

(d) regulation 19E(2) applies and that, because of the failure of a defaulter, the European Works Council and the national employee representation bodies have not been informed and consulted in accordance with that regulation.

(2) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure.

(3) Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with regulation 16(1A), 19A, 19B or 19E(2), as the case may be.

(4) An order made under paragraph (3) shall specify—

(a) the steps which the defaulter is required to take;

(b) the date of the failure; and

(c) the period within which the order must be complied with.

(5) If the CAC makes a decision under paragraph (3), the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.

(6) Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the defaulter requiring it to pay a penalty to the Secretary of State in respect of the failure.

(7) Paragraph (6) shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the defaulter, that the failure resulted from a reason beyond the defaulter’s control or that it has some other reasonable excuse for its failure.

(8) Regulation 22 shall apply to a penalty notice issued under this regulation.

(9) No order of the CAC under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.

(10) In this regulation—

(a) “defaulter” means, as the case may be—

(i) the management of any undertaking belonging to the Community-scale group of undertakings;

(ii) the central management; or

(iii) the representative agent or the management treated as the central management of the Community-scale undertaking or Community-scale group of undertakings within the meaning of regulation 5(2);

(b) “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management;

(c) “relevant applicant” means—

(i) for a complaint in relation to regulation 16(1A), a member of the special negotiating body;

(ii) for a complaint in relation to regulation 19A, a member of the European Works Council;

(iii) for a complaint in relation to regulation 19B, a member of the special negotiating body or a member of the European Works Council;

(iv) for a complaint in relation to regulation 19E(2), a member of the European Works Council, a national employee representation body, an employee, or an employees’ representative.

24. Appendix 3 - The Princes Group EWC Agreement

PRINCES GROUP

EUROPEAN WORKS COUNCIL AGREEMENT

THIS AGREEMENT dated 12th October 2017

BElVVEEN

PRINCES LIMITED, the Representative Agent of Mitsubishi Corporation in accordance with Article 1.5, whose registered office is at Royal Liver Building, Pier Head, Liverpool, L3 1NX (“Princes”);

and;

THE SPECIAL NEGOTIATING BODY of employee representatives whose names are listed at the end of this Agreement (the “SNB”).

Article 1 - INTRODUCTION

1.1 Princes Group will inform and consult with the EWC or its Steering Committee under this Agreement. Princes Group (“Management”) and its employee representatives consider that appropriate dialogue between the Management and employees to be one of the foundations for the economic success of the Princes Group. To ensure long term development in a highly competitive international environment, Management, its employees and their representatives have agreed to implement an appropriate communication process relating to Princes Group’s European business, its challenges and opportunities directly affecting Princes Group on a pan-European level. For the purposes of this agreement, “Princes Group” shall mean Princes Limited and all of its subsidiary companies in the EEA which it directly or indirectly controls as defined by the Transnational Information and Consultation of Employees Regulations 1999 (as amended).

1.2 Because Management and employee representatives believe social dialogue to be one of the foundations underpinning its economic success, Princes Group intends to back up its development by creating a European Works Council to facilitate this dialogue between Management and the representatives of the Princes Group ‘s employees.

1.3 This Agreement is effective 1ih October 2017 and defines the scope, role, membership and operation of the Princes Group European Works Council {the “EWC”) and fulfils Princes Group’s obligations under EU Council Directive 2009/38/EC (the “Directive”).

1.4 This Agreement has been negotiated by the parties in accordance with regulations 16 and 17 of the Transnational Information and Consultation of Employees Regulations 1999 (as amended in 2010) {the “Regulations”.)

1.5 Mitsubishi Corporation has appointed Princes Limited as its representative agent for the purposes of the EU Directive No 2009/38/EC (the “Directive”) and the Regulations.

1.6 The first EWC Members will be those SNS representatives who signed this Agreement, unless this conflicts with national/local legislation on the appointment of EWC representatives or they decide not to stand for election/appointment in which case their positions will be open for election/appointment in accordance with local laws.

Article 2 - AIM AND SCOPE OF AGREEMENT

2.1 The EWC is an employee representative’s only body consisting of EWC Members. Princes Group’s Management (whose make up with be as set out in article 8.1 below)will inform and consult with the EWC relating to its operations falling within the scope of this Agreement such as to encourage a free exchange of views and opinions between the parties on the matters set out at Article 9.1.

2.2 Within the Agreement, Princes Group Management and the EWC will be referred to as the “parties·.

2.3 The parties shall operate in good faith, trust, mutual respect and the ‘spirit of cooperation’, accepting that the EWC shall not affect the prerogative of Management who remain responsible for making business decisions at local, national and transnational levels. The Princes Group will however provide information and will consult with EWC Members in a way that allows opinions to be considered before decisions are reached and as part of decision-making and the parties to this agreement recognise and confirm this. Both parties agree to act reasonably, to cooperate and make every effort to efficiently conclude the consultation process.

2.4 Nothing in this Agreement shall limit or alter the existing rights and obligations of local, group or divisional management in respect of their ability to manage the Princes Group or take decisions nor shall it limit the rights and obligations of works councils, recognised trade unions or other employee representatives.

2.5 If an issue is Transnational and falls within the scope of this Agreement, and where there is also a requirement for management to inform and consult national/local employee representative bodies, then Management will comply with local law but will also inform and consult with the EWC in accordance with this Agreement before or at the same time as national/local level (should local law apply). These processes will continue concurrently and independently of each other, in such a way that the prerogatives of the EWC and national/local employee representative bodies are respected. National/local information and consultation will follow the procedures set out in national/local law. Information and consultation with the EWC will follow the procedures set out in this Agreement. In the event that a national/local representative body expresses an opinion before the EWC have concluded the information and consultation process prescribed in this Agreement, this opinion may be taken into consideration by the EWC. However, no decision in relation to a Transnational issue will be implemented until the EWC has been given a reasonable period in the circumstances to express its opinion.

2.6 Management and the EWC agree that where Transnational Consultation is necessary in accordance with this Agreement, to act in a spirit of cooperation with due regard to their reciprocal rights and obligations under this Agreement.

2.7 The EWC shall consist of EWC members appointed under the procedures set out in this Agreement (“EWC Members”).

Article 2 (a) - definitions

2.8 Information: Management shall give information to the members of the EWC. The content of the information, the time when and the manner in which it is given, must be such as to enable the EWC Members to acquaint themselves with and examine the subject matter; to undertake a detailed assessment of the possible impact and, where appropriate to prepare for Consultation.

2.9 Consultation: means the establishment of a dialogue and exchange of views between EWC Members and Management at such a time, in such a fashion and with such content as enables the EWC Members to express (within a reasonable time) an opinion on the basis of the information provided about the proposed Transnational decision envisaged by Management to which the Consultation is related, without prejudice to the responsibilities of the Management. This EWC Members’ opinion will be considered by Management before decisions are made. Consultation should be conducted with a view to reaching an agreement and in such a way that enables the EWC Members, if they so reasonably request, to meet with Management and obtain a response, and the reason for that response to any opinions they might express.

2.10 Transnational: matters are transnational where they concern the Princes Group as a whole or at least 2 or more employees in each of 2 or more Participating Countries.

Article 3 - OPERATIONS COVERED

3.1 This Agreement covers all Participating Countries. “Participating Countries” means Italy, Poland, Netherlands, France and the UK plus any other country in the EEA in which the Princes Group subsequently has a location which employs Princes Group employees.

Article 4w COMPOSITION OF THE Princes Group EWC

4.1 The Princes Group shall establish a European Works Council covering all employees within Princes Group who are working within the Participating Countries. The EWC shall comprise of those employees of the Princes Group who have been elected or appointed in accordance with this Agreement to represent all Princes Group employees within the Participating Country which has appointed or elected them. The rules for the adaption of the representation for each country in the event of a significant change in the structure of the Princes Group are contained in Article 6.

Article 5 - APPOINTMENT OF EWC MEMBERS

5.1 For the purposes of this Agreement, the EWC Members are those who, from time to time, have been elected / selected to the EWC under the terms of this Agreement and in accordance with the procedures set out in national law and/or practice. In the absence of any national law, in the first instance if trade unions are present or recognised, they will be given the first opportunity to nominate EWC Members. In the event that there is no national legislation or trade union presence, the EWC Members will be selected in accordance with the procedure providing for the election/appointment of EWC Members under the subsidiary requirements of that country’s national law implementing the Directive.

5.2 Seats on the EWC will be allocated on the following basis. This will be assessed every 2 years at the Annual Meeting. As at the date of this Agreement this results in the allocation of EWC Members seats as set out below:-

Country	EWC Members
ltaly	3
Netherlands	1
Poland	1
UK	9
France	1

In the event that employee numbers significantly increase in a particular participating country, the number of allocated seats will be reconfigured to reflect this change in employee numbers. In no event will the total number of EWC members on the EWC exceed 30.

5.3 All EWC Members shall have a term of office for 4 years and will be appointed / elected in accordance with article 5.1 above.

5.4 An EWC Member shall cease to be entitled to participate in the EWC, or in any related EWC activity, or have any rights in connection with the EWC, or under this Agreement in the event that he/ she:

• ceases to be employed by any Princes Group in the Participating Country which he/she represents at the EWC for whatever reason; or
• loses, in accordance with local laws, the local mandate to represent employees in his/her country; or
• is removed from participating in EWC meetings or activities in accordance with Article 14.8 below; or
• resigns as an EWC Member; or
• is not re-elected or re-appointed as an EWC Member following the expiry of his/her term of office,
• but will continue to be bound by the duty of confidentiality under this Agreement and the confidentiality agreement signed by them.

Article 6- ADAPTATION OF THE EWC TO CHANGES IN PRINCES GROUP STRUCTURE

6.1 In the event that the Princes Group acquires a separate business which already has its own European Works Council, the Steering Committee and Management shall discuss whether any adjustment needs to be made to the employee representation on the EWC. The guiding principle will be that the European Works Council arrangements for the acquired business will be disbanded and its employees will be represented through the EWC set up under this Agreement. If it is agreed that changes in employee representation are needed, any adjusted employee representation shall comply with the principles set out in Article 5.

6.2 In the event that the Princes Group is acquired by a third party which also has its own European Works Council, this Agreement shall continue (until such time as either party gives notice under Article 16) so as to enable discussions to take place between the management of the acquiring Princes Group and the Steering Committee.

Article 7 STEERING COMMITTEE

7.1 The EWC shall during the first meeting of the EWC elect from its EWC Members a Steering Committee and also a EWC Chairperson and Deputy, who shall be members of the Steering Committee.

7.2 The Steering Committee shall be composed of 5 current EWC Members and meet at least twice a year with management and between themselves as and when reasonably necessary in order to carry out their duties and responsibilities and have the following functions:

• discuss dates, times and location of meetings;

• to propose to Management items for the agenda for any Annual Meeting; to collect agenda items from the EWC Members for proposal to Management;

• to agree the minutes of EWC meetings and joint communiques with Management;

• to be the primary interface between Management and the EWC as a whole; to prepare for Annual and Extraordinary Meetings (as necessary);

• liaise with the Meeting Secretary over training in accordance with Article 15.8 below;

• dispute resolution in accordance with Article 17.2;

• adjustments to composition of the EWC in accordance with Article 6;

• to arrange the undertaking of any detailed assessment;

• to appoint Experts as in accordance with Article 12;

• Discuss the suggested time scales for consultation with a view to agreeing a timetable for information and consultation

Where agreed, the Steering Committee will carry out functions between the Annual Meeting and any Extraordinary Meeting by teleconference or video conference.

7.3 All meetings of the Steering Committee shall be held in English, however appropriate translation/interpretation facilities will be provided when requested .

7.4 The Steering Committee will take responsibility to ensure the representation, coordination and provide a contact point for participating countries.

7.5 The EWC and the Steering Committee will devise its own internal rules and procedures.

Article 8 - MANAGEMENT TEAM

8.1 The Princes Group shall appoint Management to meet and/or interface with the EWC and/or its Steering Committee. Management shall consist of up to 4 members of senior management from within Princes Group, who will be of appropriate seniority and level and will have the power to make or change decisions, as from time to time nominated by the Princes Group.

8.2 The Princes Group will appoint from among its management team a senior manager who will be the Management Chairperson for meetings and be the interface between the EWC and Management.

8.3 The Princes Group will also appoint a Meeting Secretary whose shall be responsible for the administrative and logistical functions around EWC meetings with Management, Including:-

• organising joint meetings of the EWC and Management (e.g. facilitating agreement on dates, accommodation, translation services and location etc.);

• arranging for the taking of minutes of joint meetings of the EWC and Management;

• agreeing the minutes of joint meetings of the EWC and/or the Steering Committee and Management;

• distribution of agenda and meeting papers to EWC Members and Management;

• communication with EWC Members and Management on dates and other administrative arrangements for EWC Meetings;

• agreeing the text of all joint communiques with the EWC Steering Committee following an EWC meeting;

• administering the remuneration of the Experts in accordance with the terms of this Agreement;

• authorising internally the expenses of the EWC.

Article 9 - FRAMEWORK AND SCOPE OF THE EWC

9.1 The scope of information and consultation obligations under this agreement shall be limited to those issues which (i) relate to the Princes Group (ii) are Transnational in nature and (iii) must relate to one or more of the following issues:

• structure economic and financial situation;

• the probable development of the business and of production and sales;

• situation and probable trend of employment;

• investments, and substantial changes concerning organization;

• introduction of new working methods or production processes;

• transfer of production;

• acquisitions, mergers, cut-backs or closures of undertakings, establishments or important parts of such undertakings or establishments and collective redundancies.

9.2 The following topics do not fall within the scope of this Agreement:-

• terms and conditions of employment including but not limited to pay, pay related issues and other non-wage benefits;

• issues that relates to individual employees; environmental issues;

• health and safety issues;

• individual or collective issues, grievances or disputes; political issues;

• severance arrangements;

• any aspect of bonus, incentive, reward or recognition schemes;

• local or national topics subject to national legislation or any matter which is within the scope of local information, consultation or collective bargaining arrangements.

Article 10 OPERATION OF THE ANNUAL MEETING

10.1 The EWC has the right to meet with Management once a year in an information and consultation meeting, to be informed and consulted, on the basis of a report drawn up by Management on the progress on the business of Princes Group and its prospects. The report will be provided 5 weeks prior to the Annual Meeting so the EWC can carry out an in-depth assessment with experts appointed in accordance with Article 12.

10.2 The information and consultation meeting shall relate to subject matter in 9.1.

An Annual Meeting shall usually take place over five consecutive days comprised as follows:-

• Day 1: To be used by EWC Members who have extensive UK or overseas travel to undertake to reach the venue of the EWC meeting at an appropriate time in line with current Princes Group protocol based on the location of departure.

• Day 2: The EWC will have a pre-meeting, to discuss any in-depth assessment and information provided to the employee representatives in preparation for the meeting with management.

• Day 3: An information and consultation meeting between the EWC and central management.

• Day 4: The EWC will have a post meeting to disseminate the exchange of views and to provide an opinion as required on the information provided or in writing within 14 days of the end of the annual meeting. Those with non­ extensive UK or overseas travel will then travel home.

• Day 4/5: The remaining EWC members will travel home.

Management and the Steering Committee may agree a longer or shorter timetable than 5 days if appropriate.

10.3 Although English will be the official language for EWC business and meetings, where necessary, appropriate translation and simultaneous interpretation facilities will be made available for Annual and Extraordinary Meetings. Where any conflict exists between the English language version of any EWC related document and other languages, the English version shall take precedence.

10.4 In addition to the general reporting items listed in Article 9.1, the Meeting Secretary shall jointly agree with the Steering Committee whether any additional proposed items should be placed on the agenda for an Annual Meeting. To be on the agenda the item must meet the requirements of Article 9.1.

10.5 The Meeting Secretary shall be responsible for facilitating the production of the agenda for the Annual Meeting by requesting of the Steering Committee whether it wishes to propose any additional items for the agenda. The report and initial proposed agenda will be circulated to the Management and the EWC Members 5 weeks ahead of the Annual Meeting. The Meeting Secretary shall be responsible for facilitating the production of the final agenda for the Annual Meeting by requesting of the Steering Committee whether it wishes to propose any additional items for the agenda. This will normally happen 3 weeks ahead of the planned date for the Annual Meeting.

10.6 All EWC Members shall be entitled to attend the Annual Meeting.

10.7 Annual Meetings will be chaired by the Management Chairperson or his / her nominee.

Article 11 - EXTRAORDINARY DECISIONS OR CIRCUMSTANCES

11.1 Where there are extraordinary Transnational circumstances or decisions affecting the interests of employees of the Princes Group to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or Collective Redundancies, the Steering Committee shall have the right to be informed. In such circumstances, the Steering Committee shall have the right to meet in extraordinary information and consultation meeting, with Management so as to be informed and consulted about the extraordinary Transnational circumstances or decisions (“Extraordinary Meeting”).

11.2 Collective Redundancy: means the possible or potential termination of at least 20 Princes Group employees over a 90 day period in 2 Participating Countries in the European Economic Area (“EEA”) where the Princes Group has employees, provide that such redundancies are linked together.

11.3 Those members of the EWC who have been elected or appointed by the establishments or undertakings which are directly concerned by the circumstances in question shall also have the right to participate in the Extraordinary Meeting organised with the Steering Committee.

11.4 The Extraordinary Meeting shall take place as soon as reasonably practicable on the basis of a report drawn up by Management on which an opinion may be delivered by the EWC at the end of the Extraordinary Meeting or as soon as reasonably practicable.

11.5 If agreed, it may be necessary to start the information and consultation process in relation to an extraordinary event (as referred to in Article 11.1 above) by convening an initial meeting either in person or via a telephone or video conference, depending on the urgency of the particular Extraordinary decision or circumstance.

11.6 The Extraordinary Meeting shall not affect the prerogatives of Management.

Article 12- EXPERTS

12.1 The EWC or the steering committee may be assisted by experts of their choice, in so far as this is necessary for them to carry out its tasks. The experts will be used in an advisory role (“Experts’’).

12.2 Where the EWC or steering committee is assisted by more than one expert the Princes Group is only required to pay the fees and expenses of one expert, upon receipt of invoices submitted in accordance with Princes’ protocol.

12.3 The EWC Chairperson, on behalf of the EWC or Steering Committee, will notify the Meeting Secretary when they will be assisted by experts and who these are.

Article 13.-THE LEGAL STATUS AND PROTECTION OF EWC MEMBERS

13.1 EWC Members are entitled to the same level of protection against adverse treatment as is applicable to employee representatives under the local laws in the countries where they are employed.

Article 14 “CONFIDENTIALITY

14.1 The Princes Group may classify specific written or oral information supplied to EWC Members, the Steering Committee or the Experts as confidential. To avoid doubt, information will not be treated as confidential unless it is expressly so designated. EWC Members and the EWC’s duly appointed Experts must maintain strict confidentiality in respect of all such information and must not disclose to a third party or use such confidential information, other than as permitted by this Agreement. This obligation regarding confidentiality shall apply until such time as that information comes properly into the public domain (other than by way of unauthorised disclosure by anyone).

14.2 All EWC members will be required to sign a confidentiality agreement which is included in this Agreement as Annex 2.

14.3 Where an EWC Member is required under local laws to disclose confidential EWC information to a works council/trade union, he/she shall be entitled to disclose the confidential information to that works council/trade union provided that the Meeting Secretary has been notified prior to such disclosure and that the local works council/trade union strictly observes such confidentiality.

14.4 Experts appointed to advise the EWC must sign the confidentiality undertaking in a similar form to the template at Annex 1. Interpreters will also be required to sign a confidentiality undertaking in a similar form to the template at Annex 1.

14.5 There may be certain types of confidential information which cannot be disclosed to the EWC by the Princes Group due to a potential breach of a legal obligation, or rules of a regulatory body, or court order or where the disclosure of which would be likely to cause serious harm or prejudice to any Princes Group.

14.6 Princes Group will provide an explanation why such information must remain confidential. Disputes over whether specific information is correctly designated as “confidential” will be dealt with in accordance with the Disputes Resolution procedures under this Agreement. However there will be no unauthorised use or disclosure of such confidential information until and unless the Central Arbitration Committee authorises it.

14.7 These confidentiality constraints continue to apply to EWC Members after they have ceased to be a EWC Member and the termination of their employment with a Princes Group.

14.8 In cases where there is a proven breach of confidentiality by an EWC Member or Expert the following procedure will apply:-

• the Management Chairperson and one other member of the Management team will meet promptly with two members of the Steering Committee to discuss the situation.

• where, following this meeting, the Management Chairperson has reasonable evidence to support this proven) breach, he may, in his discretion, suspend the relevant EWC Member from all EWC activities pending an investigation into the alleged breach.

• If the relevant EWC Member or Expert has breached his/her duty of confidentiality, such EWC Member or Expert may be required to withdraw from the EWC.

Depending on the particular circumstances of the case, local management reserve the right to take disciplinary action against the individual in accordance with local laws.

Article 15-ADMINISTRATION AND FACILITIES

15.1 Management shall ensure that the EWC and its Steering Committee have appropriate office facilities, including photocopying, fax, secretarial, telephone and internet communications to enable them to communicate with each other and to perform their EWC duties properly.

15.2 Subject to the other provisions of Article 15 and the relevant provisions of this Agreement generally, the Princes Group will pay for such reasonable and necessary costs related to the EWC and this includes any reasonable translation and interpretation facilities. The EWC or its Steering Committee will inform the Meeting Secretary of the details of all proposed costs and obtain his/her authorisation prior to incurring them since it may be possible for the Princes Group to provide some of these arrangements either directly through corporate arrangements or at lower costs than proposed by the Steering Committee. Where external costs are incurred by the EWC or its Steering Committee, these must be supported by appropriate invoices giving an appropriate description of the services supplied. Any expenses will be claimed in accordance with the Princes Group’s expenses policy in place from time to time.

15.3 The Meeting Secretary shall procure that minutes are taken of all Annual and Extraordinary Meetings and promptly circulated to all EWC Members and Management. The Meeting Secretary shall liaise with the EWC Chairperson with a view to agreeing such minutes within the 14 days following any EWC related Meeting. If the minutes cannot be agreed, then they will record where the EWC disagrees with Management’s version of the meeting. It is the intention that such minutes will be a factual summary of the main points made and not a verbatim note of the meeting.

15.4 The Meeting Secretary and the Steering Committee shall, immediately after the end of an Annual or Extraordinary Meeting, seek to agree the text of a communique to be sent to all Princes Group employees in the Participating Countries. This text will then be issued by the Meeting Secretary within a week. The communique shall be a factual summary and shall not include any confidential information .

15.5 Management will provide a copy of this Agreement to local and national management so they are aware of the obligations and provisions under this Agreement.

15.6 The Princes Group shall ensure that the employing company of each EWC Member shall permit him/her reasonable time off work to participate in appropriate EWC related activities that are necessary to fulfil their duties. Since EWC activities are treated as part of the Princes Group’s business, paid time off shall be granted for all authorised meetings and travel time as if it was a business meeting.

15.7 EWC Members shall be reimbursed for their reasonable expenses in respect of their attendance at any EWC related meetings and related pre-meetings and de­ brief meetings for accommodation, travel and subsistence as would normally be applicable for attending a Princes Group business meeting in their employing Princes Group.

15.8 Management shall provide an employee who is an EWC Member with the means required to undertake training to the extent necessary for the exercise of the employee’s representative duties in line with Princes Group training authorisation procedure.

15.9 The EWC Members have a responsibility to communicate to their constituents the outcomes and issues discussed at the EWC and also potential issues or decisions that could potentially affect the workforce. As specified in this Agreement, the EWC Members will be afforded time (with pay) to communicate with their constituents and give them the opportunity to express their views and opinions. The aim of this is not only to provide for continuous improvement in the operation of the EVVC, but also to allow for rapid responses to employees.

15.1 O Either the EWC or Management may request the attendance of another employee within the Princes Group in the EEA to attend all or part of an Annual or Extraordinary Meeting, but this shall only be permitted where:

• the Management Chairperson and EWC Chairperson both agree to such attendance and any conditions attached to it; and

• the proposed attendee will attend for the purpose only of providing technical or specialist advice on a specific agenda item at an Extraordinary or Annual Meeting.

• The proposed attendee has entered into the appropriate confidentiality agreement.

15.11 Management shall provide the members of the EWC with the means required to fulfil their duty to represent collectively the interests of the employees of the Princes Group. Management will ensure that local and national management are fully aware of the obligations and provisions of this agreement and will ensure that they fully respect and adhere to its terms.

Article 16-DURATION OF AGREEMENT

16.1 This Agreement will be treated as having commenced on 12’h October 2017 for an initial four year term and shall continue indefinitely until either party serves notice to terminate under Article 16.2 and such notice must be served by email or letter or fax .

16.2 This Agreement may be terminated by either the EWC or the Princes Group by serving 12 months written notice to the other, subject to the minimum time period referred to in Article 16.1.

16.3 In the event that either the EWC or the Princes Group serve notice to terminate this Agreement under clause 16.2, the parties may, if they both so wish, seek to re-negotiate its terms during the notice period. If no new agreement has been reached before the expiry of such notice, this Agreement shall, subject to any continuing obligations of confidentiality, be dissolved and replaced by the subsidiary requirements as stipulated in the Regulations.

16.4 The EWC members elected onto the EWC created by this Agreement will be solely competent to ratify the renewal or termination of this Agreement with Princes Group.

Article 17-LEGAL STATUS AND DISPUTE RESOLUTION

17.1 This Agreement is negotiated under Article 6 of the Directive and is to be governed and construed according to the UK transposition of that Directive under the Regulations 1999 and 2010.

17.2 All disputes concerning the interpretation and operation of this Agreement will be dealt with in accordance with the procedure below. The procedure has three stages:

• Stage 1: Formal discussion between Management and the EWC Steering Committee

• Stage 2: Mediation

• Stage 3: Legal proceedings

Stage 1 - Discussion

• Management will meet with the Steering Committee in an attempt to resolve the dispute. This meeting (either in person or by telephone) will take place as soon as is reasonably practicable once the written dispute notification is received by the other party, normally within 7 working days.

• The party who is raising the dispute will send to the other party a written notification of the dispute which sets out (i) the Article In this Agreement which It claims to have been contravene d; and (ii) an explanation of how it is claimed that the Article has been contravened.

• The parties can decide to have further meetings at Stage 1, if they both so agree.

Stage 2 - Mediation

• If either party considers that the dispute has not been resolved at Stage 1, it may trigger Stage 2 by sending a written notice to that effect on the other party.

• Stage 2 shall be dealt with by way of mediation by a single mediator from ACAS . Management shall have the responsibility of making such a request within 7 working days of receiving or sending the written notice to trigger Stage 2 for a mediator to be appointed. It will copy the Steering Committee with the request.

• The parties agree that they will use their reasonable efforts to ensure that the mediation takes place promptly and no later than 20 working days after the appointment of the mediator. Both parties recognise the logistical issues required to ensure that the relevant persons are able to attend the mediation.

• Stage 2 is mandatory unless both parties agree not to use it or to follow an alternative dispute resolution method.

• The Princes Group shall bear the costs of providing the mediation facilities and the fees of the mediator.

Stage 3 - Legal action

• If Stages 1 or 2 fail to resolve the dispute, either party can take the matter to the Central Arbitration Committee (CAC) under the Regulations.

Both parties will apply the disputes procedure in good faith. Where the issue in dispute is genuinely very urgent, the parties will use their best efforts to arrange the holding of the Stages in a timely manner which recognises the degree of urgency.

17.3 Any legal dispute occurring in the interpretation or operation of this Agreement will be resolved under English law in accordance with the provisions of the Regulations, subject to the provisions of Article 17.2 of this Agreement.

17.4 The EWC will be entitled to resources and means required to legally enforce this Agreement, cease or settle such legal proceedings, at any time, by a majority vote of all EWC Members.

Article 18 -MISCELLANEOUS

18.1 This Agreement may only be amended by written agreement between the EWC and the Princes Group.

18.2 The signatories of this Agreement hereby confirm that they are fully authorised to agree the terms of this Agreement.

18.3 No-one, other than a current EWC Member at the relevant time, or the EWC as a body or the Princes Group shall have any rights under this Agreement, except for a successor in title or assignee of the Princes Group.

18.4 This Agreement represents the entire agreement between the parties in relation to the EWC arrangements for the Princes Group.

18.5 This Agreement shall be subject to the exclusive jurisdiction of the courts, and construed in accordance with the laws of England & Wales.

18.6 The English language version of this Agreement shall be deemed to be the authoritative version.

SIGNATURES

Signed on behalf of the Special Negotiating Body:

Name	Signature	Country
Jonathan Clegg	……………..	UK
Paul Russel	……………..	UK
Colin Cunnington	……………..	UK
Patricia Smith	……………..	UK
Harry Johnson	……………..	UK
Andy Friday	……………..	UK
Antonio Castriotta	……………..	ITALY
Olivier Frederic	……………..	FRANCE
Francesco Paolo Capocchiano	……………..	ITALY

Signed on behalf of Princes Limited

………………………….

Joseph Dent

Group HR Director

Annex 1 - Template (To be signed by Experts Only)

Princes Limited
Royal Liver Building
Pier Head
Liverpool
L3 1NY

[Insert date]

Dear Sirs

Confidentiality Undertaking

I acknowledge that the business of the Princes Group European Workers Council (“EWC”) is likely to entail the management of Princes Group disclosing to those present information which is of a confidential or commercially sensitive nature. I also recognise that if such information enters into the public domain or comes to the notice of any competitor or any person, it could cause substantial damage and / or prejudice to Princes Group or its joint venture partners. I therefore recognise the need to protect and preserve strict confidentiality.

Therefore, in consideration for my being permitted to:-

(a) attend any pre-meetings or de-brief meetings of the EWC; and/or

(b) attend in an advisory capacity any joint meetings between Princes Group management and the EWC or its Steering Committee, and/or

(c) advise EWC Members on matters to be discussed at EWC meetings, and so have access to Confidential Information disclosed to the EWC;

I hereby give the following undertakings which shall exist both during my appointment as an expert to the EWC or its Steering Committee and after its cessation (without limitation in time):-

1. I will not directly or indirectly (i) disclose to any person (other than any current EWC Member) or (ii) use for any purpose which is not strictly within the scope of the business of the EWC, any Confidential Information disclosed to me or which comes to my attention, at or in connection with or arising from any meeting of the EWC or any pre-meeting or subsequent meeting thereto.

2. Without prejudice to the generality of paragraph 1 above, I will not directly or indirectly disclose or communicate to any press or any other media any Confidential Information which is referred to in paragraph 1 above.

3. On my ceasing to be an expert in connection with the EWC process I will use my best endeavours to deliver back to the Princes Group all notes, documents and summaries (including copies) of any Confi9ential Information which came to my possession or control in connection with the EWC.

4. I recognise that if I breach any of my above undertakings I may be subject to exclusion from all future meetings connected with the EWC and/or other legal action.

5. “Confidential Information” means any information which is marked “confidential” or “secret” or which I or EWC Members have been informed orally or in writing by the Princes Group or its nominee is of a confidential status.

“Princes Group” means Princes Limited and all of its subsidiary companies in the EEA which it directly or indirectly controls as defined by the Transnational Information and Consultation of Employees Regulations 1999 (as amended).

Yours sincerely

…………………….

of …………………….

Annex 2 - EWC Member’s Confidentiality Undertaking

(To be signed by EWC Members only)

Princes Limited
Royal Liver Building
Pier Head
Liverpool
L3 1NY

[Insert date]

Dear Sirs

Confidentiality Undertaking

I acknowledge that the business of the Princes Group European Workers Council (“EWC”) is likely to entail the management of Princes Group disclosing to those present information which is of a confidential or commercially sensitive nature. I also recognise that if such information enters into the public domain or comes to the notice of any competitor or any person, it could cause substantial damage and / or prejudice to Princes Group or its joint venture partners. I therefore recognise the need to protect and preserve strict confidentiality.

I hereby give the following undertakings which shall exist both during my appointment as an EWC Member and after I have ceased to be one {without limitation in time):-

1. I will not directly or indirectly (i) disclose to any person (other than any current EWC Member) or (ii) use for any purpose which is not strictly within the scope of the business of the EWC, any Confidential lnfonnation disclosed to me or which comes to my attention, at or in connection with or arising from any meeting of the EWC or any pre-meeting or subsequent meeting or as part of my duties as an EWC Member thereto.

2. Without prejudice to the generality of paragraph 1 above, I will not directly or indirectly disclose or communicate to any press or any other media any Confidential Information which is referred to in paragraph 1 above.

3. On my ceasing to be an EWC Member I will use my best endeavours to deliver back to the Princes Group all notes, documents and summaries (including copies) of any Confidential Information. which came to my possession or control in connection with the EWC.

4. I recognise that if I breach any of my above undertakings I may be subject to exclusion from all future meetings connected with the EWC, be subject to disciplinary action and/or other legal action and/or may no longer be able to be an EWC Member.

1. Now Mr Buckle of Laytons LLP. ↩