The Transnational Information and Consultation of Employees Regulations 1999

• (a) was in force immediately before whichever is the earlier of 23rd September 1996 and the day after the date on which the national law or practice giving effect to the Transnational Information and Consultation Directive came into force in the Relevant State (other than the United Kingdom) whose national law governs the agreement;

• (b) covers the entire workforce in the Relevant States; and

• (c) provides for the transnational information and consultation of employees.

• (3) If an agreement when taken together with one or more other agreements satisfies the requirements specified in paragraph (2), that agreement, when taken together with such other agreements, shall be treated as an agreement for the purposes of that paragraph.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Merchant Navy

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• (1) Subject to paragraph (2), a member ... of a European Works Council or an information and consultation representative, or an alternate of such member or representative, who is a member of the crew of a seagoing vessel, is entitled to participate in a meeting ... of the European Works Council, or in any other meeting under any procedures established before exit day pursuant to regulation 17(3).

• (2) A member or representative or alternate referred to in paragraph (1) may only participate in a meeting where that member, representative or alternate is not at sea or in a port in a country other than that in which the shipping company is domiciled, when the meeting takes place.

• (3) Paragraph (2) does not apply to—

• (a) a ferry worker, or

• (b) a person who normally works on voyages the duration of which is less than 48 hours.

• (4) The meetings must, where practicable, be scheduled to facilitate the participation of a member, representative or alternate referred to in paragraph (1).

• (5) In cases where a member or a representative or alternate referred to in paragraph (1) is unable to attend a meeting, the use of information and communication technology to enable that person’s participation in the meeting must be considered.

PART X — TRANSITIONALS

Transitionals: special negotiating body

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Transitionals: Article 7 European Works Councils

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• (1) Where, immediately before the date on which these Regulations come into force, a European Works Council has been established under the provisions of the law or practice of a Relevant State other than the United Kingdom, which are designed to give effect to Article 7 of, and the Annex to, the Transnational Information and Consultation Directive, paragraphs (2) and (3) shall apply.

• (2) Where the central management is situated in the United Kingdom and regulation 43(l)(a) or 43(1)(b) applies these Regulations shall apply with the modifications specified in paragraphs (4) to (6) as if the European Works Council had been established under these Regulations.

• (3) Where the central management is not situated in the United Kingdom, or is situated in the United Kingdom but neither regulation 43(1)(a) nor 43(1)(b) applies, the regulations referred to in regulation 4(2) shall apply with the modifications specified in paragraphs (5) and (6) of this regulation.

• (4) Paragraph 2 of the Schedule shall apply in respect of the composition of the European Works Council only to the extent that it determines the number of UK members on the European Works Council but shall not affect in any way the number of non-UK members on the European Works Council.

• (5) Where, as a result of the implementation of the Extension Directive by a Relevant State (including the United Kingdom), there are required to be UK members on the European Works Council and immediately before the date on which these Regulations come into force—

• (a) no person has been designated to attend meetings of the European Works Council as a representative of employees in the United Kingdom; or

• (b) one or more persons have been designated to attend meetings of the European Works Council as a representative of employees in the United Kingdom,

then in the case mentioned in sub-paragraph (a), the UK members of the European Works Council shall be appointed or elected in accordance with paragraphs 3 to 5 of the Schedule, and in the case mentioned in sub-paragraph (b), the person or persons shall be treated as from the date on which these Regulations come into force as a UK member of the European Works Council who has been elected or appointed in accordance with paragraphs 3 to 5 of the Schedule.

• (6) Where the number of persons referred to in paragraph (5)(b) is—

• (a) in a case where paragraph 2 of the Schedule applies, less than the number of UK members of the European Works Council required by that paragraph; or

• (b) in a case where paragraph 2 of the Schedule does not apply, less than the number of UK members of the European Works Council required by the law or practice of the Relevant State under which the European Works Council was established,

the additional number of UK members needed to secure compliance with paragraph 2 or, as the case may be, the law or practice of the Relevant State referred to in sub-paragraph (b) of this paragraph shall be elected or appointed in accordance with paragraphs 3 to 5 of the Schedule.

SCHEDULE — SUBSIDIARY REQUIREMENTS

Establishment of European Works Council

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A European Works Council shall be established in the Community-scale undertaking or Community-scale group of undertakings in accordance with the provisions in this Schedule.

Composition of the European Works Council

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• (1) The European Works Council shall be constituted in accordance with sub-paragraph (2).

• (2) In each Relevant State in which employees of a Community-scale undertaking or Community-scale group of undertakings are employed to work, those employees shall elect or appoint one member of the European Works Council for each 10% (or fraction of 10%) which those employees represent of the total number of employees of the Community-scale undertaking or Community-scale group of undertakings employed in those Relevant States.

• (3) The European Works Council shall inform the central management and any more appropriate level of management of the composition of the European Works Council.

• (4) To ensure that it can co-ordinate its activities, the European Works Council shall elect from among its members a select committee comprising no more than five members who are to act on behalf of the European Works Council.

Appointment or election of UK members of the European Works Council

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• (1) The UK members of the European Works Council must be UK employees and—

• (a) in a case where all of those employees are represented by UK employees' representatives, shall be elected or appointed by such employees' representatives;

• (b) in a case where not all of those employees are represented by UK employees' representatives, shall be elected by ballot.

• (2) For the purposes of this paragraph all of the UK employees are represented by UK employees' representatives if each of the employees referred to in sub-paragraph (1) is a UK employee—

• (a) in respect of which an independent trade union is recognised by his employer for the purpose of collective bargaining; or

• (b) who has elected or appointed an employees' representative for the purpose of receiving, on the employee’s behalf, information—

• (i) which is relevant to the employee’s terms and conditions of employment; or

• (ii) about the activities of the undertaking which may significantly affect the employee’s interests

but excluding representatives who are expected to receive information relevant only to a specific aspect of the terms and conditions or interests of the employee, such as health and safety or collective redundancies.

• (3) Where sub-paragraph (l)(a) above applies, the election or appointment of members of the European Works Council shall be carried out by whatever method the UK employees' representatives decide.

• (4) Where sub-paragraph (l)(b) applies, the UK members of the European Works Council are to be elected by a ballot of the UK employees in accordance with paragraphs 4 and 5.

Ballot arrangements

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• (1) The UK management must arrange for the holding of a ballot of employees referred to in paragraph 3(4), which satisfies the requirements specified in sub-paragraph (2).

• (2) The requirements referred to in sub-paragraph (1) are that—

• (a) the ballot of the UK employees must comprise a single ballot, but may instead, if the UK management so decides, comprise separate ballots of employees in such constituencies as the UK management may determine where—

• (i) the number of UK members of the European Works Council to be elected is more than one, and

• (ii) the UK management considers that if separate ballots were held for those constituencies, the UK members of the European Works Council to be elected would better reflect the interests of the UK employees as a whole than if a single ballot were held;

• (b) a UK employee who is an employee of the Community-scale undertaking or the Community-scale group of undertakings on the day on which votes may be cast in the ballot or, if the votes may be cast on more than one day, on the first day of those days is entitled to vote in a ballot of the UK employees;

• (c) any UK employee who is an employee of the Community-scale undertaking or Community-scale group of undertakings immediately before the latest time at which a person may become a candidate in the ballot, is entitled to stand in the ballot of the UK employees as a candidate for election as a UK member of the European Works Council;

• (d) the UK management must, in accordance with sub-paragraph (6), appoint an independent ballot supervisor to supervise the conduct of the ballot of the UK employees but may instead, where there are to be separate ballots, appoint more than one independent ballot supervisor in accordance with that sub-paragraph, each of whom is to supervise such of the separate ballots as the UK management may determine, provided that each separate ballot is supervised by a supervisor;

• (e) after the UK management has formulated proposals as to the arrangements for the ballot of the UK employees and before it has published the final arrangements under paragraph (f) it must, so far as reasonably practicable, consult with the UK employees' representatives on the proposed arrangements for the ballot of the UK employees;

• (f) the UK management must publish the final arrangements for the ballot of the UK employees in such manner as to bring them to the attention of, so far as reasonably practicable, the UK employees and the UK employees' representatives.

• (3) Any UK employee or UK employees' representative who believes that the arrangements for the ballot of the UK employees are defective may, within a period of 21 days beginning on the date the UK management published the final arrangements under paragraph (f), present a complaint to the CAC.

• (4) Where the CAC finds the complaint well-founded it shall make a declaration to that effect and may make an order requiring the UK management to modify the arrangements it has made for the ballot of the UK employees or to satisfy the requirements in paragraph (e) or (f) of sub-paragraph (2).

• (5) An order under sub-paragraph (4) shall specify the modifications to the arrangements which the UK management is required to make and the requirements which it must satisfy.

• (6) A person is an independent ballot supervisor for the purposes of sub-paragraph (2)(d) if the UK management reasonably believes that he will carry out any functions conferred on him in relation to the ballot competently and has no reasonable grounds for believing that his independence in relation to the ballot might reasonably be called into question.

• (7) For the purposes of sub-paragraph (3), the arrangements for the ballot of the UK employees are defective if—

• (a) any of the requirements specified in paragraphs (b) to (f) of sub-paragraph (2) is not satisfied; or

• (b) in a case where the ballot is to comprise separate ballots, the constituencies determined by the UK management do not reflect adequately the interests of the UK employees as a whole.

Conduct of ballot

5

• (1) The UK management must—

• (a) ensure that a ballot supervisor appointed under paragraph 4(2)(d) carries out his functions under this paragraph and that there is no interference with his carrying out of those functions from the UK management, or the central management (where it is not also the UK management); and

• (b) comply with all reasonable requests made by a ballot supervisor for the purposes of, or in connection with, the carrying out of those functions.

• (2) A ballot supervisor’s appointment shall require that he—

• (a) supervises the conduct of the ballot, or the separate ballots he is being appointed to supervise, in accordance with the arrangements for the ballot of the UK employees published by the UK management under paragraph 4(2)(f) or, where appropriate, in accordance with the arrangements as required to be modified by an order made as a result of a complaint presented under paragraph 4(3);

• (b) does not conduct the ballot or any of the separate ballots before the UK management has satisfied the requirement specified in paragraph 4(2)(e) and—

• (i) where no complaint has been presented under paragraph 4(3), before the expiry of a period of 21 days beginning on the date on which the UK management published its arrangements under paragraph 4(2)(f); or

• (ii) where a complaint has been presented under paragraph 4(3), before the complaint has been determined and, where appropriate, the arrangements have been modified as required by an order made as a result of the complaint;

• (c) conducts the ballot, or each separate ballot, so as to secure that—

• (i) so far as reasonably practicable, those entitled to vote are given the opportunity to vote,

• (ii) so far as reasonably practicable, those entitled to stand as candidates are given the opportunity to stand,

• (iii) so far as is reasonably practicable, those voting are able to do so in secret, and

• (iv) the votes given in the ballot are fairly and accurately counted.

• (3) As soon as reasonably practicable after the holding of the ballot, or each separate ballot, the ballot supervisor must publish the results of the ballot in such manner as to make them available to the UK management and, so far as reasonably practicable, the UK employees entitled to vote in the ballot or who stood as candidates in the ballot.

• (4) A ballot supervisor shall publish an ineffective ballot report where he considers (whether or not on the basis of representations made to him by another person) that—

• (a) any of the requirements referred to in sub-paragraph (2) was not satisfied with the result that the outcome of the ballot would have been different; or

• (b) there was interference with the carrying out of his functions or a failure by management to comply with all reasonable requests made by him with the result that he was unable to form a proper judgment as to whether each of the requirements referred to in sub-paragraph (2) was satisfied in relation to the ballot.

• (5) Where a ballot supervisor publishes an ineffective ballot report the report must be published within a period of one month commencing on the date on which the ballot supervisor publishes the results of the ballot under sub-paragraph (3).

• (6) A ballot supervisor shall publish an ineffective ballot report in such manner as to make it available to the UK management and, so far as reasonably practicable, the UK employees entitled to vote in the ballot or who stood as candidates in the ballot.

• (7) Where a ballot supervisor publishes an ineffective ballot report then—

• (a) if there has been a single ballot or an ineffective ballot report has been published in respect of every separate ballot, the outcome of the ballot or ballots shall have no effect and the UK management shall again be under the obligation in paragraph 4(1);

• (b) if there have been separate ballots and paragraph (a) does not apply—

• (i) the UK management shall arrange for the separate ballot or ballots in respect of which an ineffective ballot report was issued to be reheld in accordance with paragraph 4 and this paragraph, and

• (ii) no such ballot shall have effect until it has been so reheld and no ineffective ballot report has been published in respect of it.

• (8) All costs relating to the holding of a ballot, including payments made to a ballot supervisor for supervising the conduct of the ballot, shall be borne by the central management (whether or not an ineffective ballot report has been made).

Competence of the European Works Council

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• (1) The competence of the European Works Council shall be limited to information and consultation on the matters which concern the Community-scale undertaking or Community-scale group of undertakings as a whole or at least two of its establishments or group undertakings situated in different Relevant States.

• (2) In the case of a Community-scale undertaking or Community-scale group of undertakings falling within regulation 5(l)(b) or 5(1)(c), the competence of the European Works Council shall be limited to those matters concerning all of its establishments or group undertakings situated within the Relevant States or concerning at least two of its establishments or group undertakings situated in different Relevant States.

• (3) Information and consultation of employees shall take place between members of a European Works Council and the most appropriate level of management according to the matters under discussion.

Information and consultation meetings

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• (1) Subject to paragraph 8, the European Works Council shall have the right to meet with the central management once a year in an information and consultation meeting, to be informed and consulted, on the basis of a report drawn up by the central management, on the progress of the business of the Community-scale undertaking or Community-scale group of undertakings and its prospects.

• (2) The central management shall inform the local managements accordingly.

• (3) The information provided to the European Works Council shall relate in particular to the structure, economic and financial situation, the probable development of the business and of production and sales of the Community-scale undertaking or Community-scale group of undertakings.

• (4) The information and consultation meeting shall relate in particular to the situation and probable trend of employment, investments, and substantial changes concerning organisation, introduction of new working methods or production processes, transfers of production, mergers, cut-backs or closures of undertakings, establishments or important parts of such undertakings or establishments, and collective redundancies.

Exceptional information and consultation meetings

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• (1) Where there are exceptional circumstances affecting the employees' interests to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or collective redundancies, the select committee or, where no such committee exists, the European Works Council shall have the right to be informed. It shall have the right to meet in an exceptional information and consultation meeting, at its request, the central management, or any other more appropriate level of management within the Community-scale undertaking or group of undertakings having its own powers of decision, so as to be informed and consulted ....

• (2) Those members of the European Works Council who have been elected or appointed by the establishments or undertakings which are directly concerned by the circumstances in question shall also have the right to participate in an exceptional information and consultation meeting referred to in sub-paragraph (1) of this paragraph organised with the select committee elected under sub-paragraph (6) of paragraph 2.

• (3) The exceptional information and consultation meeting referred to in sub-paragraph (1) of this paragraph shall take place as soon as possible on the basis of a report drawn up by the central management or any other appropriate level of management of the Community-scale undertaking or Community-scale group of undertakings, on which an opinion may be delivered at the end of the meeting or within a reasonable time.

• (4) The exceptional information and consultation meeting referred to in sub-paragraph (1) of this paragraph shall not affect the prerogatives of the central management.

Procedures

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• (1) Before an information and consultation meeting or exceptional information and consultation meeting with the central management, the European Works Council or the select committee, where necessary enlarged in accordance with sub-paragraph (2) of paragraph 8, shall be entitled to meet without the management concerned being present.

• (2) Subject to regulation 23, the members of the European Works Council shall inform—

• (a) the employees' representatives of the employees in the establishments of a Community-scale undertaking or in the undertakings of a Community-scale group of undertakings; or

• (b) to the extent that any employees are not represented by employees' representatives, the employees themselves

of the content and outcome of the information and consultation procedure carried out in accordance with the provisions of this Schedule.

• (3) The European Works Council shall adopt its own rules of procedure.

• (4) The European Works Council or the select committee may be assisted by experts of its choice, in so far as this is necessary for it to carry out its tasks.

• (5) The operating expenses of the European Works Council shall be borne by the central management; but where the European Works Council is assisted by more than one expert the central management is not required to pay such expenses in respect of more than one of them.

• (6) The central management shall provide the members of the European Works Council and its select committee with such financial and material resources as enable them to perform their duties in an appropriate manner. In particular, the cost of organising meetings and arranging for interpretation facilities and the accommodation and travelling expenses of members of the European Works Council and its select committee shall be met by the central management unless the central management and European Works Council, or select committee, otherwise agree.

• (7) The employer must ensure that the consultation referred to in paragraphs 7(1) and 8(1) is conducted in such a way that the members of the European Works Council can, if they so request—

• (a) meet with the central management; and

• (b) obtain a reasoned response from the central management to any opinion expressed by those representatives on the reports referred to in paragraphs 7(1) and 8(3).

• (8) Information and consultation carried out in accordance with this Schedule shall be carried out subject to regulation 23.

The continuing application of the subsidiary requirements

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Signed

Alan Johnson — Parliamentary Under Secretary of State for Competitiveness, — Department of Trade and Industry — 12th December 1999

Explanatory note

(This note is not part of the Regulations)

These Regulations implement Council Directive 97/74/EC (O.J. L10, 16.1.98, p.22). That Directive extends to the United Kingdom Directive 94/45/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings or Community-scale groups of undertakings for the purposes of informing and consulting employees (O.J. L254, 30.9.94, p.64).

The Regulations provide for the establishment of a European Works Council or information and consultation procedure in a Community-scale undertaking or Community-scale group of undertakings.

Part I contains general provisions. In particular, regulation 1 provides that the Regulations extend to Northern Ireland. Regulation 4 specifies regulations which apply only where the central management is situated in the United Kingdom and regulations which apply even where the central management is not situated in the United Kingdom.

Part II concerns the calculation of, and the provision of information on, the number of employees in the Community-scale undertaking or Community-scale group of undertakings. It also makes provision about requests to negotiate an agreement for a European Works Council or information and consultation procedure, and provides for the central management to be able to dispute the validity of such requests or the application of the obligation in regulation 9(1).

Part III concerns the special negotiating body, whose members are to represent employees in negotiations with the central management for an agreement to establish a European Works Council or information and consultation procedure.

Part IV makes provision about the negotiations for, and the content and scope of, an agreement for a European Works Council or information and consultation procedure. It also specifies when a European Works Council is required to be established in accordance with the provisions in the Schedule.

Part V provides for the enforcement of the establishment and operation of a European Works Council or information and consultation procedure.

Part VI deals with the unauthorised disclosure of confidential information, and with the withholding of information by central management.

Part VII contains provisions conferring protections on employees and their representatives, such as members of a European Works Council.

Part VIII concerns the bodies which are to enforce the Regulations. It also contains provisions restricting the possibility of contracting out of the provisions in Part VII and the other provisions in the Regulations.

Part IX concerns exceptions to the application of the Regulations, and Part X contains transitional provisions.

The Schedule sets out the provisions, which apply to a European Works Council, which is required to be established in the circumstances specified in regulation 18.

A Regulatory Impact Assessment of the costs and benefits which will result from these Regulations has been prepared by the Department of Trade and Industry and is available from Verona Bailey, Employment Relations Directorate 1a, Department of Trade and Industry, Bay 2135, 1 Victoria Street, London SW1H 0ET (telephone 020 7215 5768; fax 020 7215 2642). Copies have been placed in the libraries of both Houses of Parliament.

Footnotes

Editorial notes