Transnational Information and Consultation of Employees Act , 1996

PART I Preliminary and General

1. Short title.

1.—This Act may be cited as the Transnational Information and Consultation of Employees Act, 1996.

2. Commencement.

2.—This Act shall come into operation on such day as the Minister may by order appoint.

3. Interpretation.

3.—(1)In this Act, unless the context otherwise requires—

F1[“agency worker”means an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies;]

“appointed” means, in the absence of an election, appointed by employees, or appointed by management on a basis agreed with employees;

“central management” means—

(a)in the case of a Community-scale undertaking, the central management of the undertaking, and

(b)in the case of a Community-scale group of undertakings, the central management of the controlling undertaking,

or such other level of management determined by the central management or agreed between the central management and the employees of the undertaking or group of undertakings;

“Community-scale undertaking” means any undertaking with at least 1,000 employees within the Member States and at least 150 employees in each of at least two Member States;

“Community-scale group of undertakings” means a group of undertakings with—

(a)at least 1,000 employees within the Member States, and

(b)at least one group undertaking with at least 150 employees in one Member State and at least one other group undertaking with at least 150 employees in another Member State;

“Community” means—

(a)the European Community F2[…]; and

(b)Norway, Iceland and Liechtenstein;

F3[‘consultation’means the establishment of dialogue and exchange of views between employees’representatives and central management or any more appropriate level of management, at such time, in such fashion and with such content as enables employees’representatives to express an opinion on the basis of the information provided about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which may be taken into account within the Community-scale undertaking or Community-scale group of undertakings;]

“contract of employment” means a contract of service or of apprenticeship, whether express or implied, and if express, whether oral or in writing;

“controlled undertaking” and “controlling undertaking” have the meanings assigned to them, respectively, by section 5 (1);

F3[‘Directive’means Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees;]

“elected” means elected in accordance with the First Schedule,

“employee” means a person who has entered into or works under a contract of employment with an undertaking or group of undertakings, other than a person who is employed in a managerial capacity in the central management of the undertaking or group of undertakings;

“employees’ representatives” means—

(a)in the case of a Special Negotiating Body, persons elected or appointed to that Body, who may include—

(i)employees, and

(ii)trade union officials and officials of an excepted body, whether or not they are employees,

and

(b)in the case of a European Works Council or European Employees’ Forum, or in relation to any other arrangement for the information and consultation of employees to which this Act applies, employees elected or appointed to those bodies or for the purposes of those arrangements;

“establishment”, in relation to an undertaking, means a division (however described) of the undertaking physically separated from other parts of the undertaking;

“European Employees’ Forum” means a European Employees’ Forum established in accordance with an agreement referred to in section 11 (1);

“European Works Council” means a Council established in accordance with the Second Schedule for the purpose of informing and consulting employees;

“excepted body” has the meaning assigned to it by section 6 (3) of the Trade Union Act, 1941, as amended;

“expert” means a natural person, and may be the holder from time to time of a named office or position in a body corporate or other body or organisation;

“group of undertakings” means a controlling undertaking and its controlled undertakings, and “group undertaking” has a corresponding meaning;

F4[‘information’has the meaning assigned to it by subsection (1A)(a) and shall be construed in accordance with subsection (1A)(b);]

“information and consultation procedure” means an information and consultation procedure established in accordance with an agreement referred to in section 11 (1);

“Member State” means a Member State of the Community;

“the Minister” means the Minister for Enterprise and Employment;

F1[“relevant information”means information as respects—

(a) the number of agency workers temporarily engaged to work for the employer,

(b) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do;]

“Special Negotiating Body” means a Special Negotiating Body established in accordance with section 10 to negotiate with the central management for an agreement for the establishment of arrangements for the information and consultation of employees;

“trade union official” means an official of a trade union licensed under the Trade Union Acts, 1871 to 1990, which is already recognised for collective bargaining or information and consultation purposes by the business units of the Community-scale undertaking or group of undertakings located in the State;

“undertaking” means any form of economic activity.

F4[(1A) For the purposes of this Act—

(a)‘information’means transmission of dataF1[(including relevant information)]by the employer to the employees’representatives in order to enable them to acquaint themselves with the subject matter and to examine it, and

(b) information shall be given at such time, in such fashion and with such content as are appropriate to enable employees’representatives to—

(i) undertake an in-depth assessment of the possible impact, and

(ii) where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings.]

F1[(1B) For the purposes of this Act, an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies shall, for the duration of the agency worker’s assignment with a hirer (within the meaning of that Act), be treated as being employed by the employment agency concerned and, accordingly, references in this Act to contract of employment shall, as respects any such agency worker, be construed as including references to contract of employment within the meaning of that Act.]

(2)A word or expression used in this Act that is also used in the Directive has, unless the context otherwise requires, the same meaning in this Act as it has in the Directive.

(3)In construing a provision of this Act, a court shall give it a construction that will give effect to the Directive, and for that purpose the court shall have regard to the provisions of the Directive, including its preamble.

(4)In this Act, including a Schedule to this Act—

(a)a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b)a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c)a reference to a Schedule is a reference to a Schedule to this Act.

(5)A reference in this Act to the performance of functions includes a reference to the exercise of powers and the performance of duties.

3A. F5[References to repealed directives.

3A.(1) Notwithstanding the repeal of Council Directive 94/45/EC of 22 September 1994, Council Directive 97/74/EC of 15 December 1997 and Council Directive 2006/109/EC of 20 November 2006, any reference in an enactment to any of those Directives, or to any provision of those Directives, shall be construed as a reference to the Directive or to the corresponding provision thereof in accordance with the correlation table set out in Annex III to the Directive.

(2) In this section‘enactment’has the meaning assigned to it by section 2(1) of theInterpretation Act 2005.]

4. Workforce thresholds.

4.—(1)In determining whether, for the purposes of the establishment of a Special Negotiating Body, an undertaking is a Community-scale undertaking or undertakings are a Community-scale group of undertakings, the number of employees employed in the undertaking or group of undertakings shall be taken to be the average number of employees, including part-time employees, employed in the undertaking or group of undertakings during the two years immediately preceding the request for the establishment of the Special Negotiating Body.

F6[(2) The management of every undertaking belonging to the Community-scale group of undertakings and the central management or, having regard to section 9(4), the central management referred to in section 9(3), shall be responsible for obtaining and transmitting to the parties concerned by the application of the Directive the information required for commencing the negotiations referred to in section 10, and without prejudice to the generality of the foregoing such information shall include—

(a) the information concerning the structure of the undertaking or the group and its workforce, and

(b) the information on the number of employees referred to in the definition of Community-scale undertaking and Community-scale group of undertakings in section 3(1).]

(3)For the purposes of this section—

F7[…]

“part-time employees”, in relation to employment in the State, means employees—

(a)in the continuous service of an employer for not less than 13 weeks, and

(b)normally expected to work not less than eight hours each week for the employer.

5. Definition of controlling and controlled undertaking.

5.—(1)In this Act “controlling undertaking” means an undertaking which can exercise a dominant influence over another undertaking by virtue of ownership, financial participation or the rules which govern the controlled undertaking, and “controlled undertaking” means an undertaking over which that dominant influence can be exercised.

(2)The ability of an undertaking to exercise a dominant influence shall be presumed, unless the contrary is proved, when in relation to another undertaking it directly or indirectly—

(a)holds a majority of that other undertaking’s subscribed capital,

(b)controls a majority of the votes attached to that other undertaking’s issued share capital, or

(c)can appoint more than half of the members of that other undertaking’s administrative, management or supervisory body.

(3)Subject to subsection (4), if more than one undertaking in the State meets the criteria in subsection (2), the undertaking that meets the criterion in subsection (2) (c) shall be regarded as the controlling undertaking, or if no undertaking meets the criterion in subsection (2) (c), then the undertaking that meets the criterion in subsection (2) (b) shall be regarded as the controlling undertaking in preference to one that meets the criterion in subsection (2) (a).

(4)Where an undertaking (in this section referred to as a “joint venture”), wherever in the Community located, is carried on by two undertakings in the State neither of whom can exercise a dominant influence over the joint venture, it shall be regarded as a controlled undertaking of each of them unless they agree that it is a controlled undertaking of one only of them for the purposes of this Act, in which case, but subject to subsection (5), that undertaking shall be regarded as the controlling undertaking of the joint venture.

(5)If being the controlled undertaking of one undertaking would result in employees of a joint venture being deprived of an entitlement to be informed and consulted under this Act they would have if the joint venture were a controlled undertaking of the other undertaking, that other undertaking shall be regarded as the controlling undertaking of the joint venture.

(6)For the purposes of subsections (2) and (3) but without prejudice to proof that another undertaking is able to exercise a dominant influence, a controlling undertaking’s rights as regards voting and appointment referred to in subsection (2) (b) or (c) shall include—

(a)the rights of any other of its controlled undertakings, and

(b)the rights of any person or body acting in the person’s or body’s own name but on behalf of the controlling undertaking (or any other of the controlling undertaking’s controlled undertakings) as the controlling undertaking.

(7)Notwithstanding subsections (1), (2), (3), (4) and (5), an undertaking shall not be regarded as a controlling undertaking of another undertaking in which it has holdings where the first-mentioned undertaking is a company referred to in Article 3 (5) (a) and (c) of F8[Council Regulation (EC) No. 139/2004 of 20 January 2004^5, on the control of concentrations between undertakings.

(8)A dominant influence shall not be presumed to be exercised solely by virtue of the fact that an office holder is exercising functions, according to the law of a Member State, relating to liquidation, winding-up, insolvency, cessation of payments, compositions of creditors or analogous proceedings.

(9)The law applicable in order to determine whether an undertaking is a controlling undertaking shall be the law of the Member State which governs that undertaking. Where the law governing an undertaking is not that of a Member State, the law applicable shall be the law of the Member State within whose territory the representative of the undertaking or, in the absence of such a representative, the central management of the group undertaking which employs the highest number of employees in any one Member State, is situated.

(10)Where, in the case of a conflict of laws in the application of subsection (2) (except in its application in relation to subsection (3)), two or more undertakings from a group satisfy one or more of the criteria in subsection (2), the undertaking which satisfies the criterion in subsection (2) (c) shall be regarded as the controlling undertaking unless it is proved that another undertaking is able to exercise a dominant influence.

6. Exemption.

6.—(1)Subject to subsections (3), (4) and (5) F9[and section 12A], the obligations under this Act shall not apply to Community-scale undertakings or Community-scale groups of undertakings in which, on the commencement of this Act or the 22nd day of September, 1996, whichever is the earlier, there is or was in force within the same Community-scale undertaking or Community-scale group of undertakings an agreement covering the entire workforce providing for the transnational information and consultation of employees, and while that agreement remains in force.

F10[(1A) Subject to subsections (3), (4) and (5) and section 12A, the obligations under this Act shall not apply to Community-scale undertakings or Community-scale groups of undertakings in the United Kingdom brought within the scope of this Act by virtue of the application of Council Directive 97/74/EC of 15 December 1997 and in which there was in force within the same Community-scale undertaking or Community-scale group of undertakings on 15 December 1999 an agreement covering the entire workforce providing for the transnational information and consultation of employees, and while the agreement remains in force.

(1B) For the purposes of an agreement referred to in subsection (1) or (1A), the obligations under this Act, referred to in subsection (1), or, as the case may be, (1A), shall not apply to an agreement referred to in subsection (1) or, as the case may be, (1A), where such agreements are adjusted because of changes in the structure of the Community-scale undertaking or Community-scale group of undertakings.

(1C) Subject to subsections (3), (4) and (5) and section 12A, the obligations arising from the European Communities (Transnational Information and Consultation of Employees Act 1996) (Amendment) Regulations 2011 shall not apply to Community-scale undertakings or Community-scale groups of undertakings in respect of which—

(a) there is in force, within the same Community-scale undertaking or Community-scale group of undertakings, an agreement concluded pursuant to section 12 of this Act, and

(b) such agreement was signed or revised between 5 June 2009 and 5 June 2011,

while that agreement remains in force.]

(2)An agreement referred to in F11[F12[subsection (1), (1A) or (1C)] or (1A)] may comprise multiple agreements within the same Community-scale undertaking or group of undertakings if, construed together, they satisfy the requirements of that subsection.

(3)At any time before an agreement referred to in F11[F13[subsection (1), (1A) or (1C)] or (1A)] expires or within the period of six months immediately after it expires, the parties to the agreement may jointly renew F14[or revise] it for such further period as they think fit.

(4)An agreement renewed F15[or revised] under subsection (3) within the six months period referred to in that subsection shall be deemed to have remained in force from the date it would otherwise have expired.

(5)Where an agreement is not renewed F16[or revised] in pursuance of subsection (3) before its expiration or before the expiration of the six months period referred to in that subsection, this Act shall, on the expiration of that six months period, but not before, apply in full to and in relation to the Community-scale undertaking or group of undertakings to which the agreement applied.

(6)An agreement referred to in F11[F17[subsection (1), (1A) or (1C)] or (1A)] shall be presumed to be valid unless proved to the contrary, and shall remain in force—

(a)for such period, if any, as is specified in the agreement or the agreement as renewed F18[or revised]; or

(b)in the case of an open ended agreement, until it is brought to an end in accordance with its terms.

(7)An agreement referred to in F11[F19[subsection (1) or (1A)] or (1A)] shall not be valid unless it has been accepted by a majority of the workforce to which it applies.

(8)In this section “agreement” includes an open ended agreement subject to review and alteration by the parties.

7. Regulations.