MJ O'Connor Solicitors

The Brief

19.03.2007

Keeping everyone in the loop - New consultation and information rights for employees

Commencement date

On 9th April 2006 the Employees (Protection of Information and Consultation) Act 2006 was enacted. The main aim of the Act is to provide employees with a general right to information and consultation about decisions taken by their employers in matters likely to impact on their interests. It applies to businesses with at least fifty employees

The Act brings Ireland in line with the majority of EU countries which already have some type of employee representation procedures through the form of works councils. Apart from the requirement to inform employees on the transfer of a business, under health and safety and on collective redundancies there is no obligation on employers to engage employees in discussions in matters relating to the employees.

The new legislation will oblige employers to provide employees with information and consultation on issues such as:

• Recent and probable development of employer’s activities and economic situation, for example, restructuring and expansion

• Probable development of employment and any anticipated measures, for example, redundancies

• Decisions likely to lead to substantial changes in work organisation or in contractual relations

The Act was enacted on 9th April 2006. However it will be introduced on a phased basis. The legislation initially affects businesses of at least one hundred and fifty employees. Businesses of at least one hundred employees will be affected from 23rd March 2007 and businesses of at least fifty employees with effect from the 23rd March 2008.


Request

There is no automatic right on the part of the employees to information and consultation. The Act provides that at least 10% of employees must make a written request to their employers to trigger the process (Section 7). This is subject to a minimum of fifteen and a maximum of one hundred employees making the request.

There is provision for calculating these work force thresholds. The number of employees in the business is to be reckoned by calculating the average number of employees employed in the business during the two years before the request. The employer is obliged following a request to provide details of the number of employees in the business within a specified time.

Section 7 of the Act provides that the employer shall if requested in accordance with the Act, by the employees or the Labour Court, enter into negotiations with employees or their representatives to establish information and consultation agreements.


Negotiated agreement

Within six months from commencing negotiations the parties shall agree to establish an information and consultation arrangement by means of either a negotiated agreement within the meaning of the Act or the Standard Rules within the meaning of the Act. This six month period maybe extended by agreement of the parties.

A negotiated agreement should be in writing dated and signed by the employer and approved by the employee and should be applicable to all employees to whom the agreement relates. It is also required to be available for inspection. The agreement is intended to provide for information and consultation arrangements. It should include reference to:

• The duration of the Agreement and the procedure if any for negotiation

• The subjects for information and consultation and time frame by which information is to be provided

• The method and time frame by which consultation is to be conducted

• The procedure for dealing with confidential information

The parties can agree to adopt the Standard Rules which are defined and set out in Schedule One to the Act. These constitute standard rules on information and consultation. They provide for an information and consultation forum to be composed of employee representatives which shall adopt its own rules of procedure subject to certain guidelines set out in the Schedule to the Act. The standard rules apply in default of agreement in relation to a negotiated agreement.


Employee representatives

An employee may exercise his or her right to information and consultation either directly or by means of representatives elected for that purpose. There is provision in the Act for election of representatives.

There is provision for protection of employee representatives so they are not penalised for performing their functions under the Act. The employer is also obliged to provide reasonable facilities including time off to enable the employee’s representative perform his or her functions.

There is also a provision for protection of confidential information which applies after the termination of the employment relationship of the individual concerned.


Disputes

Disputes may be referred to The Labour Court or the Labour Relations Commission.

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