Post on 02-Jan-2016
INFORMATION & CONSULTATION
Are You Ready ?
Tom Flanagan
7 October 2004
Popular Misconceptions• The new Regs require you to create a
“Domestic Works Council” - NO !
• You must put something in place by 6 April 2005 - NO !
• A Pre-Existing Agreement means that you escape the Regs requirements - NO !
• If you satisfy these Regs, you avoid the risk of penalties under existing laws on TUPE and collective redundancy - Not necessarily !!
Structure of Talk
• Choose your approach
• Directive: basic principles
• Regulations: current state / introduction
• Overview
• Key practical issues
• Practical solutions
Choose your Approach
• Don’t care / too busy / irrelevant
• Compliant
• Gain positive advantage (“High
Performance Workplace”)
• Evangelical
The Directive - Basic Principles (1)
• General framework - up to Member States• Existing law on I&C inadequate• Earlier I&C preferred (Renault / M&S /
Vauxhall)• 3 levels: (Article 4):
– inform– inform and consult– …with a view to reaching agreement
The Directive - Basic Principles (2)
• Exception (Article 5)
• Basis of “Pre-Existing Agreement”
• Agreement between “management and labour”
• Which does not need to follow Article 4
• As long as “respecting the principles laid down in Article 1”
I&C Regs: Current State of Play
• In force by 25 March 2005
• UK Government plans 6 April 2005
• 2 Consultation Papers: “High Performance Workplaces” - 2002/2003
• Current Draft Regs / DTI Guidance
• DTI seeks views before 22 October 2004
• Possibility of further change ?
I&C Regs: Introduction
• April 2005: >150 employees (c.14,000)
• March 2007: >100 employees
• March 2008: >50 employees (c.38,000 in all)
• Employees “in the undertaking”
Overview
• “High Performance Workplaces”
• Flexibility (allegedly)
• Obligation to I&C
• Comply with Directive
• Empowering Trade Unions ?
Overview : The Structure of the Regs (1)
• Voluntary
• Negotiated
• Statutory
Overview : The Structure of the Regs (2)
• Obligation to negotiate an I&C process• if either/or…
– employer volunteers– trigger is pulled
• Trigger: – 10% of workforce– min. 15% / max 2,500
• Unless: pre-existing agreement• If neither: Standard Provisions (statutory fall-back)
Key Practical Issues
• Undertaking
• Pre-existing agreement
• Sanctions
• Overlap with existing law
Undertaking
• “a public or private undertaking carrying out an economic activity, whether or not for gain…” (similar to “old” TUPE
• DTI: “a separately incorporated legal entity” (why?)
• Not “establishment, division or business unit of a Company”
• But if TUPE jurisprudence applies, DTI guidance must be doubtful
Significance of Undertaking
• Application
• Trigger
• Pre-existing agreement
• Election / appointment of negotiating reps
• Election of I&C reps
Pre-Existing Agreements (1)
• Valid employee request (10%/2,500 (etc))• By less than 40% “in the undertaking”• Agreement
– in writing– covers all employees “in the
undertaking”– approved by the employees– sets out I&C procedures
• More than one undertaking’s employees
Pre-Existing Agreements (2)
• Content not prescriptive
• ACAS guidelines
• Different parts of undertaking
• As long as, together, cover all employees of the undertaking
• Collective agreements
Pre-Existing Agreements (3)Employee Approval
• Simple majority in ballot
• Majority through signatures
• Agreement of those representing majority
• Different methods for different agreements
Pre-Existing Agreements (4)Effect
• No “Article 13” opt-out• Still have to ballot or negotiate• 40%+ majority = endorsement negotiate• Pre-existing agreements still exist?
(Collective Agreements)• <40% or minority = no endorsement• Therefore, no obligation to negotiate• Pre-existing agreement stands• 3 year moratorium
Pre-Existing Agreements (5)Effect
• Does not let you off the hook
• Still need a ballot
• If survives - 3 year moratorium
• If it doesn’t survive - negotiate a new I&C process
• Going on to the negotiated procedure
Do You Have a Pre-Existing Agreement ?
• Irrelevant unless trigger pulled already
• Don’t drive policy based wholly on it
• Adapt existing processes
• …with half an eye to a PEA
• Unlikely that you can satisfy it
Why is it Unlikely ?
• Covers all employees in the
undertaking
• Approval of the workforce
Sanctions
• Complaint to CAC (not for PEAs)
• Declaration
• Penalty notice, from EAT
• Max of £75,000 per failure
• Paid to DTI
Overlap with Existing Law (1)
• Collective Redundancies (s188 TULRCA)• TUPE• “Double” jeopardy
– protective award: redundancy - up to 3 months
– compensation: TUPE - up to 13 weeks– I&C Regs: up to £75,000 fine
Overlap with Existing Law (2)
• Overlapping obligations
– redundancy: TU Reps / elected
– TUPE: TU Reps / elected
– ICON: reps under Regs
• Exclude ICON in redundancy / TUPE cases ?
• Hidden trap ?
Practical Solutions• Employees in the undertaking
– umbrella agreement– sub-committees
• Employee approval– existing procedures– reps are truly representative– “employee representative” not defined
• Voluntary / PEA: do what you like ?• Collective agreements survive a PEA
Conclusion
• “DON’T PANIC
• Avoid the trigger
• Not necessarily a PEA
• Satisfied workforce
• Engage trade unions