Information and Consultation 

October, 2005 - Catherine Kelly

Until recently, employers in Ireland were only obliged to consult with employees in very limited circumstances, such as collective redundancies and transfer of undertakings. Those obligations will remain intact, however the provisions of the Employees (Provision of Information and Consultation) Bill 2005, will provide employees in undertakings of at least 50 employees with the right to information and consultation in the workplace on a greater number of issues. Who does the legislation apply to? The legislation will apply in accordance with the following timetable: Undertakings with at least 150 employees from a date to be prescribed following enactment of the Bill. Undertakings with at least 100 employees from 23rd March 2007. Undertakings with at least 50 employees from 23rd March 2008. What does the legislation require an employer to do? The legislation obliges employers to provide information and consultation on issues such as the following: Recent and probable development of the employer’s activities and economic situation, e.g. restructuring, expansion etc. Decisions likely to lead to substantial changes in work organisation or in contractual relations. Situation, structure and probable development of employment and any anticipatory measures envisaged e.g. redundancies. There is no automatic right to information and consultation. The process must be triggered by the employees. A request must be made by 10% of the employees, subject to a minimum of 15 and a maximum of 100 (the “Employee Threshold”). A request for information and consultation can also be made to the Labour Court, which will then notify the employer, request relevant information from the parties and issue a notification confirming whether or not the request meets the Employee Threshold. How does an employer put in place information and consultation arrangements? If there is no pre-existing Agreement in place, the employer must enter into negotiations with the employees to agree a procedure. Within 6 months of entering into these negotiations the parties must agree to establish an arrangement either by way of a Negotiated Agreement or a Standard Rules Agreement. (a) Negotiated Agreement This option offers the parties some degree of flexibility as the Agreement may be tailored to meet their specific requirements. This agreement must be in writing and include details as to its duration and renegotiation. It must be dated and signed by the Employer. It must detail the subjects for information and consultation, the method and time frame by which the information is to be provided and by which consultation is to be conducted. It must be approved by the employees, applicable to all employees and must be made available for inspection. In relation to this, employee approval will be obtained where: A majority of the employees who cast a preference are in favour of the terms of the Agreement. A majority of employee representatives approve the Agreement in writing. Any other procedure agreed to by the parties. A Negotiated Agreement may be renewed by the parties within 6 months of its expiration. (b) Standard Rules Agreement Where the parties either agree, refuse to enter into negotiation within 3 months of receiving a request or fail to reach agreement on a Negotiated Agreement during a period of 6 months, an Information and Consultation Forum must be established in accordance with the Standard Rules. The Standard Rules set out procedures for the setting up of a Forum which will comprise of elected employee representatives. In the absence of an election, employee representatives should be appointed by employees or the employer with the agreement of the employees. The employer must arrange for the election process and cover the cost of it. The Forum should have at least 3 but not more than 30 members and can adopt its own rules subject to the following; Meeting arrangements must be agreed by the employer and employee/employees representatives. Minutes of the meetings must be approved by both parties. The Forum will be entitled to meet prior to any meeting without the employer being present. Members of the Forum are to inform employees of the content and outcome of the Forum meetings. The Forum should have the right to meet with the employer at least twice a year. The Forum is to be provided with any financial resources necessary and reasonable to enable it carry out its duties. A Standard Rules Agreement may be subject to review after two years and, from then on, as agreed between the parties. In circumstances where the number of employees falls under the Employee Threshold for a period of 12 months the Forum will be dissolved. Can employers put in place their own Agreements prior to this legislation coming into force? As an alternative to the above arrangements, an employer can negotiate now in relation to pre-existing arrangements and thereby bring themselves in line with the legislation before a date yet to be fixed. This provides an employer with an opportunity to have its own Agreement in place before the procedures set out under the legislation come into force. To be a valid Agreement, it must be in writing, dated, signed by the employer, approved by the employees, applicable to all employees and available for inspection. It should include the subjects for information and consultation and the method for conducting consultation. What are the implications of non-compliance with the legislation? Contravention of the legislation may result in fines of up to €3,000 and/or 6 months imprisonment on summary conviction, or fines not exceeding €30,000 and/or three years imprisonment on conviction on indictment. Conclusion As this Bill is due to be enacted by the end of 2005, it would be advisable for employers to act now and put in place their own Agreements. The advantage of this is that a structure can be devised that suits the needs of each individual employer. However, care must be taken to ensure that any such agreement complies with the provisions of the legislation.


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