S.I. No. 487/2000 - European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) (Amendment) Regulations, 2000

I, MARY HARNEY, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), for the purpose of giving further effect to Council Directive No. 77/187/EEC of 14 February, 1977¹ , make the following Regulations:

1.

2.

“Act of 1994” means Terms of Employment (Information) Act, 1994 (No. 5 of 1994);

“Principal Regulations” means European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980 ( S.I. No. 306 of 1980 ).

3.

4.

“‘excepted body’ has the meaning assigned to it by section 6 (3) of the Trade Union Act, 1941 (No. 22 of 1941), as amended;

‘Minister’ means Minister for Enterprise, Trade and Employment;

‘representatives’, in relation to employees employed in an undertaking, business or part of a business who are affected, or likely to be affected, by the transfer of that undertaking, business or part of a business means—

• (a) a trade union, staff association or excepted body with which it has been the practice of the employees' employer to conduct collective bargaining negotiations; or

• (b) in the absence of such a trade union, staff association or excepted body, a person or persons chosen (under an arrangement put in place by the employer) by such employees from among their number to represent them in negotiations with the employer.”

5.

• (a) give the parties an opportunity to be heard by the rights commissioner and to present to the rights commissioner any evidence relevant to the complaint,

• (b) give a decision in writing in relation to the complaint, and

• (c) communicate the decision to the parties.

• (2) A decision of a rights commissioner under paragraph (1) of this Regulation shall do one or more of the following:

• (a) declare that the complaint is or, as the case may be, is not well founded,

• (b) require the employer to comply with the Principal Regulations as amended by these Regulations and, for that purpose, to take a specified course of action;

• (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable in the circumstances, but not exceeding 4 weeks renumeration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 (No. 10 of 1977),

and a reference in this paragraph to an employer shall be construed, in a case where ownership of the relevant undertaking, business or part of the business of the employer changes after the contravention to which the complaint relates occurred, as a reference to the person who, by virtue of the change, becomes entitled to such ownership.

• (3) A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to him or her within the period of 6 months beginning on the date of the alleged contravention to which it relates or (where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period) such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

• (4) For the purposes of this Regulation—

• (a) subsections (4), (5), (6) and (7)(a) of section 7 of the Act of 1994 shall apply in relation to a complaint presented under this Regulation as they apply in relation to a complaint under subsection (1) of that section 7, with the modification that in that subsection (6) a reference to a decision is substituted for a reference to a recommendation, and any other necessary modifications, and

• (b) sections 8 to 10 of the Act of 1994 shall apply as they apply for the purposes of that Act, with the following modifications, namely:

• (i) the substitution in those provisions of references to a decision for references to a recommendation,

• (ii) the substitution in section 9 of the Act of 1994 of—

• (I) references to the Circuit Court for references to the District Court, and

• (II) the following subsection for subsection (3):

• “(3) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade or business.”,

and any other necessary modifications.

6.

• (a) in subparagraph (a), by the substitution of “£1,500” for “£500”; and

• (b) in subparagraph (b), by the substitution of “£1,000” for “£300”.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations amend the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980 to provide for representation of, and consultation with, employees in the absence of a trade union, staff association or excepted body; to provide for a right of complaint to a rights commissioner where an employer contravenes Regulation 7 (information and consultation of employees) and to provide for increases in the levels of fines for offences.

Footnotes