In a decision published on 12 February, the UK’s Central Arbitration Committee said that management does not have to wait for the EWC to give its opinion before taking action at national or local level. The decision was made in relation to the subsidiary requirements contained in UK legislation governing the EWC in question, that of software company Oracle.

The Oracle EWC works under the Subsidiary Requirements, as set out in the UK’s Transnational Information and Consultation of Employees Regulations (TICER). In a complaint to the CAC the EWC said that Regulation 19E(c) of the Subsidiary Requirements required central management to ensure that European and local consultation in relation to “substantial changes in work organisation or contractual relations” were linked so as to begin within a reasonable time of each other.

According to the body, which complains that the consultation approach often limited its role entirely, a significant number of Oracle employees were made redundant at a time when the EWC consultation had not yet been concluded. It argued that consultation could only be meaningful if no decisions were implemented when the EWC consultation had not been concluded. The EWC contended that management had failed to establish a link between European and local consultation and the timing of both processes had not started within a reasonable time of each other.

However, the CAC decided otherwise. The committee said: “We do not accept the argument of the Complainants that the requirement to link national and transnational information and consultation processes requires that the Opinion of EWC be awaited prior to management action being taken at national/local level. Regulation 19E(1)(b) states: “Where there are circumstances likely to lead to substantial changes in work organisation or contractual relations’ management (under 19E(2)) “shall ensure that the procedures for informing and consulting the EWC and the national employee representation bodies in relation to the …(changes ) are linked so as to begin within a reasonable time of each other.”

The CAC added: “It is a limitation of the subsidiary requirements that nothing further is said concerning the links between the timing of transnational and national I&C processes – something which TICER does require EWC Agreements to determine (Reg. 17(4)(c)).”

Furthermore, according to the committee: “Management’s “right to manage” is protected (e.g. Recital 37 and 14; para 8(4)). In return it appears the Directive requires management do all it can in terms of arrangements for information and consultation to facilitate the EWC being able to give an opinion in a timely fashion which “will be useful to the decision-making process” (Recital 23 definition of consultation) and obtain a reasoned response (Para 9(7)(b)). In this way transnational consultation is intended to add value to managerial decision making. However the Regulations do not stipulate that management cannot implement its decision until an opinion has been given by the EWC.”

The CAC found that Oracle managements’ decision to hold a consolidated information and consultation meeting by teleconference did not meet the Subsidiary Requirements standards which, the CAC said, mandate that the EWC must first be informed that exceptional circumstances exist and, having been so informed, the EWC can then request a meeting. Following such a request, if one is received, management should give then EWC relevant information which the EWC can consider at a pre-meeting, followed by a consultation meeting with management. Oracle had arranged the information and consultation meeting, which suited both management and the EWC, rather than waiting for the EWC to make the request of the meeting. In addition, the CAC found that the holding of a meeting by teleconference was acceptable bearing in mind Oracle’s normal working practices, though it did note that the legislation appeared to assume face-to-face meetings.