Employees (Provision of Information and Consultation) Act 2006

1. Interpretation.

1.— (1) In this Act—

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 the employees and the basis on which that appointment is made may, if the employees so determine, be such as is agreed by them with the employer;

“Commission” means the Labour Relations Commission;

“consultation” means the exchange of views and establishment of dialogue between either or both—

(a) one or more employees,

(b) the employees’ representative or representatives,

and the employer;

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

“Court” means the Labour Court;

“Directive” means Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community;

“employee” means a person who has entered into or works under a contract of employment and references, in relation to an employer, to an employee shall be read as references to an employee employed by that employer;

“employee threshold” has the meaning assigned by section 7;

“employees’ representative” has the meaning assigned by section 6;

“employer”, in relation to an employee, means the person by whom the employee is employed under a contract of employment;

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

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

“information” means transmission by the employer to one or more employees or their representatives (or both) of data in order to enable them to acquaint themselves with the subject matter and to examine it and cognate words shall be read accordingly;

“Information and Consultation Forum” means a Forum established in accordance with Schedule 1 for the purpose of informing and consulting employees;

“Minister” means Minister for Enterprise, Trade and Employment;

“negotiated agreement” has the meaning assigned by section 8;

“pre-existing agreement” has the meaning assigned by section 9;

“prescribed” means prescribed by regulations made by the Minister;

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;]

“relevant workforce threshold” has the meaning assigned by section 4;

“trade union” means a trade union which holds a negotiation licence under Part II of the Trade Union Act 1941, as amended;

“undertaking” means a public or private undertaking carrying out an economic activity, whether or not operating for gain.

F1[(1A) 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 that is used in this Act and is also used in the Directive has the same meaning in this Act as it does in the Directive.

(3) For the avoidance of doubt, a reference in this Act—

(a) to the negotiation of an agreement establishing information and consultation arrangements or to such an agreement that has been negotiated, or

(b) to an Information and Consultation Forum,

includes a reference—

(i) to the negotiation of more than one such agreement or, as appropriate, to more than one such agreement that has been negotiated, or

(ii) to more than one such Forum.

(4) Subsection (3) is without prejudice to section 18(a) of the Interpretation Act 2005.

2. Regulations.

2.— (1) The Minister may make regulations prescribing any matter or thing referred to in this Act as prescribed or to be prescribed.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or for giving full effect to this Act.

3. Right of employees to information and consultation.

3.— (1) Subject to the provisions of this Act, an employee employed in an undertaking employing 50 or more employees has a right to information and consultation.

(2) This Act is without prejudice to—

(a) the information and consultation procedures under the Protection of Employment Act 1977, as amended by the Protection of Employment Order 1996 (S.I. No. 370 of 1996), and the European Communities (Protection of Employment) Regulations 2000 (S.I. No. 488 of 2000),

(b) the information and consultation procedures under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003),

(c) the information and consultation procedures under the Transnational Information and Consultation of Employees Act 1996 and the European Communities (Transnational Information and Consultation of Employees Act 1996) (Amendment) Regulations 1999 (S.I. No. 386 of 1999), and

(d) any right to information, consultation or participation conferred on employees by any other Act or instrument thereunder.

(3) For the avoidance of doubt, the according to employees of their rights through a European Employees’ Forum, an Information and Consultation procedure or a European Works Council established under the Transnational Information and Consultation of Employees Act 1996 or by an agreement under section 6 of that Act, is not sufficient compliance by the employer with this Act.

4. Application — workforce thresholds.

4.— (1) This Act applies—

(a) from a date to be prescribed (being a date before 23 March 2007) to undertakings with at least 150 employees,

(b) from 23 March 2007 to undertakings with at least 100 employees, and

(c) from 23 March 2008 to undertakings with at least 50 employees.

(2) The number of employees referred to in subsection (1) is referred to in this Act as a “relevant workforce threshold”.

5. Calculating workforce thresholds.

5.— (1) In determining whether employees are employed in an undertaking that meets a relevant workforce threshold, the number of employees in the undertaking shall be reckoned by calculating the average number of employees employed in the undertaking during the 2 years before the date that a request is—

(a) made under subsection (2),

(b) received under subsection (4) by the Court or a nominee of the Court, or

(c) received under section 7 by the employer, the Court or a nominee of the Court.

(2) Without prejudice to subsection (4), following a request from one or more employees or employees’ representatives (or both), the employer shall provide details of the number of employees in the undertaking during the period referred to in subsection (1) to those employees or employees’ representatives (or both) not later than 4 weeks from the date of receipt of that request (but that period of 4 weeks may be extended by agreement between the parties).

(3) If the undertaking has been in existence for less than 2 years, the period of 2 years referred to in subsection (1) shall be replaced by the period the undertaking has been in existence.

(4) One or more employees may request the Court or a nominee of the Court to make the request referred to in subsection (5) of the employer and to do the other things mentioned therein.

(5) Where a request under subsection (4) is received by the Court or a nominee of the Court, the Court or the nominee shall—

(a) notify the employer as soon as is reasonably practicable that a request under that subsection has been made,

(b) request from the employer details of the numbers of employees in the undertaking during the period referred to in subsection (1), and

(c) issue a written notification to the employee or employees who made the request under subsection (4) confirming the number of employees in the undertaking during the period concerned.

(6) Where the Court or its nominee requests information from the employer under subsection (5)(b), the employer shall provide the information requested not later than 4 weeks from the date of receipt of that request (but that period of 4 weeks may be extended by agreement between the employer and the Court or its nominee).

(7) If the number of employees for the time being in an undertaking falls below the relevant workforce threshold and remains below the threshold for 12 months, then, at the request of the employer or a majority of the employees, the Information and Consultation Forum established under section 10 shall stand dissolved unless both parties agree to its continuation.

6. Employees’ representative.

6.— (1) In this Act, “employees’ representative” means an employee elected or appointed for the purposes of this Act.

(2) Subject to subsections (3) and (4), the employer shall arrange for the election or appointment of one or more than one employees’ representative under this section.

(3) Without prejudice to section 11, where it is the practice of the employer to conduct collective bargaining negotiations with a trade union or excepted body, employees who are members of a trade union or excepted body that represents 10 per cent or more of the employees in the undertaking shall be entitled to elect or appoint from amongst their members one or more than one employees’ representative for the purposes of this Act.

(4) The number of employees’ representatives (if any) elected or appointed under subsection (3) shall be determined on a pro rata basis by reference to the number of other employees’ representatives (if any) elected or appointed under this section.

(5) Where a dispute arises under this section, it may be referred by the employer, trade union, excepted body or one or more than one employee to the Labour Court for determination in accordance with the procedures set out in subsections (6), (7), (9) and (10) of section 15.

7. Process for establishing information and consultation arrangements.

7.— (1) Subject to subsection (2) and section 9, the employer—

(a) may at his or her own initiative, or

(b) shall at the written request of at least 10 per cent of employees received either by him or her on the one hand, or by the Court or a nominee of the Court on the other hand,

enter into negotiations with employees or their representatives (or both) to establish information and consultation arrangements.

(2) The minimum requirement of 10 per cent of employees of the undertaking provided for in subsection (1)(b) shall be construed as meaning the lesser of—

(a) 10 per cent of the employees in the undertaking concerned (but not less, in any case, than 15 employees), or

(b) 100 employees,

(to be known and in this Act referred to as the “employee threshold”).

(3) Where a request is received by the Court or a nominee of the Court under subsection (1)(b), the Court or the nominee shall—

(a) notify the employer as soon as is reasonably practicable that the request has been made,

(b) request from the employer the information that it or its nominee requires to verify the number and names of the employees who have made the request, and

(c) issue a written notification to the employer and the employees who have made the request confirming how many employees have made the request and whether the employee threshold has been met on the basis of the information provided by the employees and the employer.

(4) Where the Court or its nominee requests information from the employer under subsection (3)(b), the employer shall provide the information requested as soon as is reasonably practicable.

(5) Where a notification under subsection (3)(c) confirms that the request meets the employee threshold, the date of receipt of the notification by the employer shall be taken to be the date on which the employer received the request.

(6) Within 6 months from commencing negotiations, the parties shall agree to establish an information and consultation arrangement by means of—

(a) a negotiated agreement under section 8, or

(b) the Standard Rules under section 10 (as set out in Schedule 1).

(7) The period of 6 months referred to in subsection (6) may be extended by agreement of the parties.

(8) If, at the time of making a request under subsection (1)(b), the employee threshold is not met, the employees of the undertaking shall not make a further request for negotiations until 2 years have passed from the date on which the initial or previous request was received by the employer or the date of receipt of notification by the employer under subsection (3)(c).

8. Negotiated agreements.

8.— (1) An agreement establishing one or more information and consultation arrangements may be negotiated by the employer and the employees or their representatives (or both) (to be known and in this Act referred to as a “negotiated agreement”).

(2) A negotiated agreement shall be—

(a) in writing and dated,

(b) signed by the employer,

(c) approved by the employees,

(d) applicable to all employees to whom the agreement relates, and

(e) available for inspection by those persons and at the place agreed between the parties.

(3) For the purposes of subsection (2)(c), the agreement shall be regarded as having been approved by the employees—

(a) where a majority of those employees employed in the undertaking who cast a preference do so in favour of the terms of the agreement,

(b) where a majority of employee representatives, elected or appointed for the purposes of negotiations under this Act, approve the agreement in writing, or

(c) where the result of employing any other procedure agreed to by the parties for determining whether the agreement has been so approved discloses that it has been so approved.

(4) The employer shall ensure that the procedure for the casting of a preference referred to in subsection (3)(a) is confidential and capable of independent verification and of being used by all employees.

(5) A negotiated agreement shall include reference to the following matters:

(a) the duration of the agreement and the procedure, if any, for its renegotiation;

(b) the subjects for information F2[(including relevant information)] and consultation;

(c) the method and timeframe by which information is to be provided, including as to whether it is to be provided directly to employees or through one or more employees’ representatives;

(d) the method and timeframe by which consultation is to be conducted, including as to whether it is to be conducted directly with employees or through one or more employees’ representatives; and

(e) the procedure for dealing with confidential information.

(6) At any time before a negotiated agreement expires or within 6 months after its expiry, the parties to the agreement may renew it for any further period they think fit.

(7) A negotiated agreement renewed under subsection (6) within the period of 6 months referred to in that subsection shall be deemed to have remained in force from the date it would otherwise have expired.

9. Pre-existing agreements.

9.— (1) Subject to the provisions of this section, where an agreement (to be known and in this Act referred to as a “pre-existing agreement”) exists within—

(a) an undertaking referred to in section 4(1)(a), on or before a date to be prescribed (being a date before 23 March 2007),

(b) an undertaking referred to in section 4(1)(b), on or before 23 March 2007, or

(c) an undertaking referred to in section 4(1)(c), on or before 23 March 2008,

and that pre-existing agreement satisfies the requirements of this section, the employer is not obliged to comply with a request under section 7.

(2) A pre-existing agreement shall be—

(a) in writing and dated,

(b) signed by the employer,

(c) approved by the employees,

(d) applicable to all employees to whom the agreement relates, and

(e) available for inspection by those persons and at the location agreed by the parties.

(3) For the purposes of subsection (2)(c), a pre-existing agreement shall be regarded as having been approved by the employees—

(a) where a majority of those employees employed in the undertaking who cast a preference do so in favour of the terms of the agreement, or

(b) where the result of employing any other procedure agreed to by the parties for determining whether the agreement has been so approved discloses that it has been so approved.

(4) The employer shall ensure that the procedure referred to in subsection (3)(a) is confidential and capable of independent verification and of being used by all employees.

(5) A pre-existing agreement shall be presumed to be valid unless proved to the contrary, and shall remain in force—

(a) for the period, if any, specified in the agreement or the agreement as renewed,

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

(c) until it is brought to an end by agreement of the parties.

(6) Where a pre-existing agreement is not in force for 6 months, section 7 shall apply.

(7) A pre-existing agreement shall include reference to the following matters—

(a) the duration of the agreement and the procedure, if any, for its review,

(b) the subjects for information and consultation,

(c) the method by which information is to be provided, including as to whether it is to be provided directly to employees or through one or more employees’ representatives, and