Mr. Tom Hayes:

Good morning. I thank the committee for the invitation to be here today. I will start by saying that BERG, the Brussels European Employee Relations Group, is not a representative body. We are more like a think-tank - an information sharing network of major multinational companies. We are not a secret society, although do not publish our membership list.

It is well known from publications like Industrial Relations News that members include companies like Oracle, Google, Amazon and IBM. We had a meeting near Barcelona last week and among our guests were representatives from SIPTU; Mr. Kevin Duffy, the former chair of the Labour Court; Fabien Zuleeg, the chief executive of the European Policy Centre in Brussels; and Wilma Liebman, the former chair of the National Labour Relations Board in the United States, who was appointed to that position by President Obama. We are a group of companies that is open-minded and will talk to anybody. We involve people in our meetings who are interested in developing and progressing good industrial relations.

As is obvious from my accent, I am Irish, originally from the northside of Dublin, although I have lost a bit of that. I have been living in France for the last 20 years and have been involved in industrial relations all my life since I left college in 1972. I joined the old Workers Union of Ireland and worked there before becoming a personnel director. Effectively, I have been a consultant since the early 1980s. In full and open disclosure, I have to say that my younger brother, Brendan Hayes, was the deputy general secretary of SIPTU for many years and then he was vice-chair of the Labour Court. I come from very much a labour background even if I work on the other side of the street these days.

I am not going to read our opening statement in full because I always find those things a bit boring and the members have read it themselves, but I will make some remarks around it. European works councils have been in existence since the early 1990s. The first legislation was adopted in 1994 and became law at national level in 1996. I have been involved with European works councils ever since that time. I have participated in negotiations and renegotiations of probably more than 100 agreements and continue to do so to this day. For instance, just in the last couple of months, I had a small background role in helping Amazon negotiate its first ever European works council agreement, which is based on Irish law, and I am currently working with Google and with several other companies to do the same. All of this information is in the public domain.

European works councils have, by law, to be based in the country in which the company is headquartered. For example, the European works council of Volkswagen is based in Germany, the European works council of Danone is based in France, and so on. The exception to this is where a company is headquartered outside the European Union or the European Economic Area. We are primarily talking here about American companies, but also about Japanese and Canadian companies and one or two others. For the most part, however, we are talking about American companies. In recent years, most American companies would have based their European works council in the UK. The primary reason for this is not because of the generality of labour laws in the UK but simply because of English. Most companies want to work in their own language. This has practical implications as well. I will give an example. There was a recent case before the central arbitration committee in the UK, which involved something like 1,100 pages of submission. The Americans read English badly, I would say, and speak it worse, but imagine if you had to study that in German, Swedish or Polish and have it translated. Then when the proceedings are taking place, you are sitting there wondering what is being said. You want to be able to work in the English language. When it became impossible to continue to base European works councils in the UK because of Brexit - and the European Commission has made it clear in a note of April 2020 that European works councils could not be based in the UK after Brexit - they began then to look at other options. The option of choice for many companies was Ireland. This was for the same reasons. We work in English and many of them have a significant footprint here. The multinational sector employs something like 275,000 people in Ireland, which is around 11% of the workforce. If we take it that for everyone directly employed, at least one other person is indirectly employed, we can see the size of the footprint they have here. They have moved here. There is no official list, and they are not required to register, but we estimate from our own information that there is probably somewhere between 100 and 150 European works councils now based in Ireland. As I mentioned, that includes companies such as Amazon, Google, or it will shortly, Oracle, Hewlett Packard, Hewlett Packard Enterprises and so on. The Brussels European Employee Relations Group and I have been very prominent in encouraging companies to come to Ireland.

We are aware, however, of the fact that there is a significant gap in the law. The procedures that are necessary and should be in place to allow disputes between the employee side and the management side of a works council to be resolved when they cannot be in direct talks are deficient. When the original Act was written in 1996, it was anticipated that a series of statutory instruments would be made to flesh it out. They never were made. Only a handful of Irish companies have European works councils, that is, companies that are headquartered in Ireland such as the Kerry Group, Smurfit, Glen Dimplex and one or two others. There was never any pressure because there were never any disputes. Life being what it is, we tend to only deal with problems when we absolutely have to. Statutory instruments were never made.

We now face the situation where, with more than 150 European works councils in Ireland, we are looking at the real possibility of disputes. As we sit here, I am aware of one such dispute before the Workplace Relations Commission, WRC, this morning. That is the first one. I am also aware of another company that has written to the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Leo Varadkar, to appoint an arbitrator to deal with a dispute. An arbitrator has not been appointed because the statutory instrument is not in place to allow it.

When we became aware of this gap, we asked Mr. Kevin Duffy, the former chair of the Labour Court, to have a look at the matter for us to see if we were right in thinking that the legislation was deficient. Mr. Duffy wrote a paper, which I have given to the committee, confirming that the legislation was deficient. This was largely because of fact that statutory instruments had not been made. Rather than go back through legislation that was written in the 1990s to try to flesh that out, the better approach is to take the WRC and the Labour Court, which we have today, and devise a procedure which allow disputes to go to the WRC for mediation before they go to the Labour Court. We noticed, and Mr. Duffy confirmed, that such a procedure is already to be found in the Employees (Provision of Information and Consultation) Act 2006, which allows for a reference to the WRC, then to the Labour Court for a recommendation and then to the Labour Court for a binding decision if the parties have not been able to find a solution between them based on the first two steps. We think this is the way forward.