BEERG Newsletter - EWCs: Significant Austrian ruling

According to the union-side consultancy, EWC Academy, last March the Vienna Labour and Social tribunal handed down a judgement in the long-running dispute between the EWC and management in the packaging company, Mayr-Melnhof Packaging. 

At the time of writing the full judgement is not available, only the summary from the EWC Academy, which was involved in the case, so there may be some “gloss” on their report, but it is still likely to be fairly accurate. We quote their report below”.

• Does central management have to pay for only one expert? The tribunal is of the opinion that the EWC may call on several experts, provided that they are commissioned for different areas of expertise required and the fees charged are within reasonable limits.
•  Is the expert mandate linked to a specific person? According to the tribunal, legal persons cannot be prevented from acting as experts. The mandate is then carried out by various (freelance or permanent) employees of a consultancy firm. If a natural person is appointed as an expert, e.g., an individual lawyer, he is allowed to use an assistant to fulfil the mandate.
• Must the EWC always use the cheapest advisor? According to the tribunal, the EU Directive does not require the EWC to choose the cheapest advisory option, e.g., free advice from trade union officials. In a matter as complex as EWC law, the central management must bear costs of external professionals specialised in this type of advice to a reasonable extent. 
• Is the EWC entitled to company visits abroad including interpreters? The legal regulations in Austria expressly provide that representatives of the EWC are to be granted access to company establishments. The court ruled that a personal, oral briefing of the employees on site can therefore also take place and that the costs for the visit of the EWC chairperson to an English plant, including interpreter fees, must be borne by the management.
• May the EWC commission a legal opinion? In order to clarify legal issues and justify positions to the central management of such a large and internationally active group, an opinion from an expert specialized in the field of EWC law is necessary and must be paid for by the company.
• Can the EWC conclude legally valid contracts with interpreters and consultants? As in France, local works councils in Austria have their own budget from which they can pay e.g., lawyers. However, this does not apply to European works councils, which do not have their own budget. Therefore, the tribunal also had to clarify whether an EWC has at least partial legal capacity and property rights. The ruling is based on case law in Germany. According to this, the EWC is able to conclude valid contracts with service providers within the scope of its legal duties, which lead to an obligation for central management to bear the costs.

A decision by an Austrian tribunal has no legal force outside Austria. Nevertheless, expect to hear this judgement referred to during negotiation over new agreements or the renegotiating of existing ones.